Exhibit (d)(12)
AGREEMENT
Dated 24 January, 2000
(Euro)100,000,000
MULTICURRENCY REVOLVING CREDIT FACILITY
for
RHODIA
ARRANGED BY
*
- ----------------
* Confidential treatment for the name of the bank has been requested pursuant
to Item 1007(d) of Regulation M-A under the Securities Exchange Act of 1934,
and the name of the bank has been filed separately with the Securities and
Exchange Commission.
INDEX
Clause Page
1. Interpretation.......................................................... 1
2. Facility................................................................ 12
3. Purpose................................................................. 13
4. Conditions Precedent.................................................... 14
5. Drawdown................................................................ 14
6. Repayment............................................................... 15
7. Prepayment and Cancellation............................................. 16
8. Interest Periods........................................................ 18
9. Interest................................................................ 19
10. Optional Currencies..................................................... 20
11. Payments................................................................ 21
12. Taxes................................................................... 23
13. Market Disruption....................................................... 24
14. Increased Costs and Other Payments...................................... 25
15. Illegality.............................................................. 27
16. Mitigation.............................................................. 27
17. Representations and Warranties.......................................... 27
18. Undertakings............................................................ 31
19. Financial Covenants..................................................... 36
20. Default................................................................. 39
21. The Agent............................................................... 43
22. Fees.................................................................... 47
23. Expenses................................................................ 47
24. Stamp Duties............................................................ 48
25. Indemnities............................................................. 48
26. Evidence and Calculations............................................... 50
27. Amendments and Waivers.................................................. 50
28. Changes to the Parties.................................................. 51
29. Disclosure of Information............................................... 54
30. Set-off................................................................. 54
31. Pro Rata Sharing ....................................................... 55
32. Severability............................................................ 56
33. Notices................................................................. 56
34. Language................................................................ 57
35. Jurisdiction............................................................ 58
36. Waiver of Immunity...................................................... 58
37. Governing Law........................................................... 59
Schedules
1. Various Parties........................................................... 60
2. Conditions Precedent Documents............................................ 61
Part I - To Be Delivered Before The First Loan............................ 61
Part II - To Be Delivered By An Additional Borrower....................... 62
3. Form of Request........................................................... 64
4. Form of Accession Documents............................................... 65
Part I - Form of Novation Certificate..................................... 65
Part II - Form of Borrower Accession Agreement............................ 67
5. Effective Global Rate Letter.............................................. 68
6. Financial Covenant Compliance Certificate................................. 70
7. Form of Guarantee......................................................... 71
Signatories.................................................................. 73
THIS AGREEMENT is dated 24th January, 2000 and made BETWEEN:
(1) RHODIA, a company incorporated as a French societe anonyme under the Laws
of France, the registered office of which is at 26 quai Alphonse le Gallo,
92512 Boulogne Billancourt Cedex, registered with the Trade and Companies
Registry (Registre du Commerce et des Societes) of Nanterre under the
number B 352-170-161 (the "Company");
(2) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "Banks"); and
(3) * as agent (in this capacity the "Agent").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
"Additional Borrower"
means a member of the Group which becomes a Borrower in accordance with
Clause 28.7. (Additional Borrowers).
"Affiliate"
means a Subsidiary or a Holding Company of a person or any other Subsidiary
of that Holding Company.
"Agent's Spot Rate of Exchange"
means the Agent's spot rate of exchange for the notional purchase of the
relevant Optional Currency in the Paris foreign exchange market with Euros
at or about 11.00 a.m. on a particular day.
"Borrower"
means the Company or an additional Borrower.
"Borrower Accession Agreement"
means a letter in the form of Part II of Schedule 5 with such amendments as
the Agent may approve or reasonably require.
"Business Day"
means a day (other than a Saturday or a Sunday) on which banks are open for
general business in London and Paris and:
(a) in relation to a transaction involving a currency other than Euros,
the principal financial centre of the country of that currency; and
2
(b) in relation to a payment date for Euros, a TARGET Day.
"Commitment"
means:
(a) in relation to a Bank which is a Bank on the date of this Agreement,
the amount in Euros set opposite its name in Schedule 1 and the amount
of any other Bank's Commitment acquired by it under Clause 28 (Changes
to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of any other Bank's Commitment acquired by it
under Clause 28 (Changes to the Parties),
to the extent not cancelled, reduced or transferred under this Agreement.
"Commitment Period"
means the period from (and including) the date of this Agreement up to (and
including) the date falling one Business Day prior to the Final Maturity
Date.
"Consolidated Subsidiary"
means, at any time, any Subsidiary which the Company is required in
accordance with French accounting principles and practices (or such other
accounting principles and practices in accordance with which the Company's
consolidated accounts are drawn up, subject to Clause 19.4 (Calculation and
interpretation) to consolidate by way of full consolidation.
"Dangerous Substance"
means any radioactive emissions, noise and any natural or artificial
substance (in whatever form) the generation, transportation, storage,
treatment, use or disposal of which (whether alone or in combination with
any other substance) gives rise to a risk of causing harm to man or any
other living organism or damaging the Environment or public health or
welfare, including (without limitation) any controlled, special, hazardous,
toxic, radioactive or dangerous waste.
"Dollars"
means the lawful currency for the time being of the United States of
America.
"Drawdown Date"
means the date of the advance of a Loan.
"Environment"
means all, or any of, the following media: the air (including the air
within buildings and the air within other natural or man-made structures
above or below ground), water (including, without limitation, ground and
surface water) and land (including, without limitation, surface and sub-
surface soil).
3
"Environmental Law"
means all laws (including, without limitation, common law), regulations,
directives, codes of practice, circulars, guidance notices and the like
having legal effect concerning the protection of human health, the
Environment, the conditions of the work place or the generation,
transportation, storage, treatment or disposal of Dangerous Substances.
"Environmental Licence"
means any permit, licence, authorisation, consent or other approval
required by any Environmental Law.
"EURIBOR"
means, in relation to a Loan in Euros, or any other amount denominated in
Euros:
(a) the rate per annum which appears on Telerate Page 248; or
(b) if no such rate is available for the relevant period, the rate
(expressed as a percentage) determined by the Agent to be the
arithmetic mean of the rates per annum (rounded upwards to four
decimal places) as supplied to the Agent at its request quoted by the
EURIBOR Reference Banks to leading banks in the European interbank
market,
at or about 11.00 a.m. on the applicable Rate Fixing Day for the offering
of deposits in Euros for a period comparable to the relevant Interest
Period or, as appropriate, Reinvestment Period, and in this definition
"Telerate Page 248" means the display designated as Page 248 on the
Telerate Service (or such other pages as may replace Page 248 on that
service or such other service as may be nominated by the Banking Federation
of the European Union (including the Reuters Screen) as the information
vendor for the purposes of displaying Banking Federation of the European
Union Interest Settlement Rates for deposits in Euro).
"EURIBOR Reference Banks"
means Societe Generale, Credit Commercial de France, UBS AG and HSBC Bank
plc, acting through their Paris branches.
"Euro" or "(Euro)"
means the single currency of the Participating Member States and (for the
avoidance of doubt) excludes National Currency Units.
"Event of Default"
means an event specified as such in Clause 20 (Default).
"Facility Office"
means the office(s) notified by a Bank to the Agent:
4
(a) on or before the date it becomes a Bank; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"Final Maturity Date"
means the fifth anniversary of the date of this Agreement or, if that is
not a Business Day, the Business Day immediately preceding the fifth
anniversary of the date of this Agreement.
"Finance Document"
means this Agreement, a Guarantee, a Novation Certificate, a Borrower
Accession Agreement or any other document designated as such by the Agent
and the Obligors' Agent.
"Finance Party"
means a Bank or the Agent.
"Financial Indebtedness"
means any indebtedness in respect of.
(a) moneys borrowed;
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance credit;
(f) any lease (including, without limitation, an operation de credit-bail)
entered into primarily as a method of raising finance or financing the
acquisition of the asset leased;
(g) any currency swap or interest swap, cap or collar arrangements or any
other derivative instrument (and the amount of Financial Indebtedness
in relation to any such contract or instrument shall be the "marked to
market" value of that instrument and shall take into account the
operation of any netting provisions contained within that instrument
or contract);
(h) any amount raised under any other transaction having the commercial
effect of a borrowing or raising of money; or
(i) any guarantee, indemnity or similar assurance against financial loss
of any person.
"France"
means the Republic of France.
"FRF"
5
means the lawful currency, for the time being, of France.
"Group"
means the Company and its Subsidiaries.
"Guarantee"
means each guarantee entered into by the Company in favour of the Finance
Parties, substantially in the form of Schedule 7 and delivered in respect
of each Additional Borrower under Clause 28.7 (Additional Borrowers).
"Holding Company"
means in relation to a person, an entity of which that person is a
Subsidiary.
"Information Systems and Equipment"
means all computer hardware, firmware and software, as well as other
information processing systems, or any equipment containing embedded
microchips, in each case whether directly owned, licensed, leased, operated
or otherwise controlled by a Borrower, including through third-party
service providers, and which, in whole or in part, is used, operated,
relied upon, or integral to, the conduct of the business of that Borrower.
"Interest Period"
means each period determined in accordance with Clause 8 (Interest
Periods).
"LIBOR"
means, in relation to a Loan in an Optional Currency other than Sterling,
or any other amount denominated in an Optional Currency other than
Sterling:
(a) the rate per annum which appears on Telerate Page 3750 or Telerate
Page 3740 (as appropriate); or
(b) if no such rate appears on the Telerate Screen the rate (expressed as
a percentage) determined by the Agent to be the arithmetic mean
(rounded upward to four decimal places) of the rates per annum, as
supplied to the Agent at its request, quoted by the LIBOR Reference
Banks to leading banks in the London interbank market,
at or about 11.00 a.m. (London time) on the applicable Rate Fixing Day for
the offering of deposits in the relevant currency for a period comparable
to the relevant Interest Period or, as appropriate, Reinvestment Period,
and in this definition "Telerate Page 3750" means the display designated as
Page 3750, and "Telerate Page 3740" means the display designated as Page
3740, in each case on the Telerate Service (or such other pages as may
replace Page 3750 or Page 3740 on that service or such other service as may
be nominated by the British Bankers' Association (including the Reuters
Screen) as the information vendor for the purposes of displaying British
Bankers' Association Interest Settlement Rates for deposits in the relevant
currency).
6
"LIBOR Reference Banks"
means Societe Generale, UBS AG, HSBC Bank plc and Citibank, N.A., acting
through their London branches.
"Loan"
means, subject to Clause 10 (Optional Currencies), the principal amount of
each borrowing by a Borrower under this Agreement or the principal amount
outstanding of that borrowing.
"Majority Banks"
means, at any time, Banks:
(a) whose participations in the Loans then outstanding aggregate 66 2/3
per Cent. or more of all the Loans then outstanding, or
(b) if there are no Loans then outstanding, whose Commitments then
aggregate 66 2/3 per cent. or more of the Total Commitments; or
(c) if there are no Loans then outstanding and the Total Commitments have
been reduced to nil, whose Commitments aggregated 66 2/3 per cent. or
more of the Total Commitments immediately before the reduction.
"Mandatory Cost"
means the cost imputed to the Banks of compliance with:
(a) the banking supervision or other costs imposed by the United Kingdom
Financial Services Authority, as determined in accordance with Clause
14.3 (Other payments); and
(b) any reserve asset requirements of the European Central Bank.
"Margin"
means, zero point three five zero (0.35%) per cent per annum.
"Material Adverse Effect"
means a material adverse effect on the ability of (a) any Obligor to
perform any of its payment obligations, (b) the Company to comply with
Clause 19 (Financial Covenants) or (c) any Obligor to perform any other
material obligation under this Agreement.
"Material Subsidiary"
means, at any time any Consolidated Subsidiary of the Company whose total
net fixed assets represent not less than 5% of the total net fixed assets
of the Group as calculated from the English language version of the
consolidated accounts of the Company most recently delivered under Clause
18.2(a)(i) (Financial information).
7
"Maturity Date"
means the last day of the Interest Period of a Loan.
"National Currency Unit"
means a currency unit (other than Euros) of a Participating Member State.
"Novation Certificate"
has the meaning given to it in Clause 28.4 (Procedure for novations).
"Obligor"
means a Borrower or the Company (including, in relation to the latter, in
its capacity as a guarantor under each Guarantee).
"Obligors' Agent"
means the Company.
"Optional Currency"
means Dollars, Sterling, Swiss Francs and Yen.
"Original Euro Amount"
in relation to a Loan, means:
(a) if that Loan is denominated in Euros, the amount of that Loan; or
(b) if that Loan is denominated in an Optional Currency, the equivalent in
Euros of the amount of that Loan at the Agent Spot Rate of Exchange
two Business Days before its Drawdown Date.
"Original Group Accounts"
means the audited consolidated accounts of the Group for the year ended
31st December, 1998.
"Participating Member State"
means a member state of the European Communities that adopts or has adopted
the Euro as its currency in accordance with legislation of the European
Union relating to European Economic and Monetary Union.
"Party"
means a party to this Agreement.
8
"Permitted Reorganisation"
means an amalgamation, demerger, merger or reconstruction involving an
Obligor:
(a) full details of which are provided by the Obligors' Agent to the Agent
timeously prior to its taking place;
(b) where, in the case of an amalgamation, demerger, merger or
reconstruction involving the Company, immediately following such
amalgamation, demerger, merger or reconstruction either:
(i) the credit standing of the surviving entity (whether or not it
is the Company) is, in the reasonable opinion of the Majority
Banks, the same or better than the credit standing of the
Company before such amalgamation, demerger, merger or
reconstruction (if at the relevant time no, or only one, Rating
Agency publishes a credit rating for the surviving entity); or
(ii) the credit rating of the surviving entity (whether or not it is
the Company) as published by at least two Rating Agencies is
investment grade or better (if at the relevant time two or more
Rating Agencies publish a credit rating for the surviving
entity);
(c) where, in the case of an amalgamation, demerger, merger or
reconstruction involving an Obligor other than the Company and the
Obligor is not the surviving entity, the surviving entity is a member
of the Group;
(d) in relation to which the Agent (if the Agent so requests) has first
received legal opinions from the Obligor's internal general counsel
addressed to the Finance Parties, in form and substance satisfactory
to the Agent, confirming:
(i) either that the Obligor shall be the surviving entity and that
notwithstanding such amalgamation, demerger or reconstruction
the Finance Documents shall remain at all times the legal, valid
and binding obligations of the Obligor, enforceable in
accordance with their terms, or
(ii) that upon such amalgamation, demerger or reconstruction the
surviving entity (not being the Obligor) will accede to the
obligations of the Obligor under the Finance Documents in full
and that the Finance Documents shall be the legal, valid and
binding obligations of the surviving entity, enforceable in
accordance with their terms,
(e) where, in the case of an amalgamation, demerger, merger or
reconstruction involving the Company, the place of incorporation and
registered head office of the surviving entity (whether or not it is
the Company) is within the European Union or Switzerland; and
(f) where, in the case of an amalgamation, demerger, merger or
reconstruction involving an Obligor other than the Company, the
country in which the surviving entity (whether or not it is the
Obligor) is incorporated is a member of the Organisation for Economic
Co-operation and Development (excluding South Korea, Turkey and
Mexico).
9
"PIBOR"
means, in relation to a Loan in Sterling or any other amount denominated in
Sterling, the arithmetic mean (rounded upward to four decimal places) of
the offered rates per annum (as supplied to the Agent at its request)
quoted by the EURIBOR Reference Banks to leading banks in the Paris
interbank market at or about 11.00 a.m. on the applicable Rate Fixing Day
for the offering of Sterling deposits for a period comparable to the
Interest Period of the relevant Loan or, as appropriate, the Reinvestment
Period in respect of the relevant amount.
"Potential Event of Default"
means an event (the "Event") which, with the giving of notice or lapse of
time (or any combination of the foregoing), is likely to constitute an
Event of Default unless, in the reasonable opinion of the Majority Banks,
the Company is able to prevent the Event from leading to an Event of
Default without giving rise to a Material Adverse Effect.
"Rate Fixing Day"
means:
(a) the second Business Day before the first day of (1) the Interest
Period for a Loan or, in relation to any payment of principal being
received from any source otherwise than on the last day of the
Interest Period relative to the amount so received only, (2) the
Reinvestment Period for that amount; or
(b) in the case of (1) a Loan in Euros or (2) a payment of principal being
received in Euros from any source otherwise than on the last day of
the Interest Period relative to the amount so received only (in each
case), the second TARGET Day before the first day of the Interest
Period for that Loan or Reinvestment Period for that amount (as
appropriate),
or, in each case, such other day on which it is market practice in the
relevant interbank market for prime banks to give quotations for deposits
in the relevant currency for delivery on the first day of the relevant
Interest Period (or Reinvestment Period (as appropriate)), as determined
by the Agent.
"Rating Agency"
means each of Standard & Poor's Ratings Group, Moody's Investor Services,
Inc and Fitch IBCA.
"Reference Banks"
means:
(a) in relation to a Loan or an amount outstanding in Euro or Sterling,
the EURIBOR Reference Banks; and
(b) in relation to a Loan or an amount outstanding in Dollars, Swiss
Francs or Yen, the LIBOR Reference Banks.
10
"Reinvestment Period"
means, in relation to any payment of principal being received from any
source otherwise than on the last day of the Interest Period relative to
the amount so received, the period starting on the second Business Day
following the date of receipt by the Agent of that principal and ending on
the last day of that Interest Period.
"Request"
means a request made by the Obligors' Agent for a Loan, substantially in
the form of Schedule 3.
"Security Interest"
means any:
(a) hypotheque, nantissement, privilege, cession de creance a titre de
garantie par bordereau Dailly, "gage-especes", any surete reelle or
droit de retention;
(b) mortgage, pledge, lien, charge, assignment by way of security or for
the purpose of providing security, hypothecation, right in security,
security interest or (to the extent applicable) trust arrangement for
the purpose of providing security; and
(c) other security agreement or other arrangement having the effect of
providing security (including, without limitation, the deposit of
moneys or property with a person with the primary intention of
affording such person a right of set-off.
"Sterling" or "(Pound)"
means the lawful currency for the time being of the United Kingdom.
"Subsidiary"
means an entity from time to time of which a person has direct or indirect
control or owns directly or indirectly more than fifty per cent. (50%) of
the share capital or similar right of ownership or voting rights.
"Swiss Francs"
means the lawful currency for the time being of Switzerland.
"TARGET Day"
means a day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is operating.
"Total Commitments"
means the aggregate for the time being of the Commitments, being
(Euro)100,000,000 at the date of this Agreement.
11
"Year 2000 Compliant"
means, in relation to material Information Systems and Equipment, that it
accurately processes date data (including, but not limited to, calculating,
comparing and sequencing), before, during and after the year 2000, as well
as same and multi-century dates, or between the years 1999 and 2000, taking
into account all leap years, including the fact that the year 2000 is a
leap year, and further that when used in combination with, or interfacing
with, other Information Systems and Equipment, shall accurately accept,
release and exchange date data, and shall in all material respects continue
to function in the same manner as it performs on the date of this Agreement
and shall not otherwise impair the accuracy or functionality of any other
Information Systems and Equipment.
"Yen"
means the lawful currency for the time being of Japan.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) an "amendment" includes a supplement, novation or re-enactment and
"amended" is to be construed accordingly;
"assets" includes present and future properties, revenues and rights
of every description;
an "authorisation" includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or notarisation;
the Company undertaking to "procure" that a Material Subsidiary
performs or does not perform an act shall be construed as the Company
giving its porte-fort within the meaning of Article 1120 of the French
Civil Code;
"control" in relation to an entity has the meaning given it in Article
355-1 of law no. 66-537 of 24th July, 1966.
a "month" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
calendar month, except that:
(1) 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 calendar month; or
(2) if an Interest Period commences 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 it is to end;
a "person" includes any individual, company, unincorporated
association or body of persons (including a partnership, joint venture
or consortium), government, state, agency, international organisation
or other entity;
12
a "regulation" includes any decret, regulation, rule, official
directive, request or guideline (whether or not having the force of
law but if not, being of a type with which the person to which the
regulation relates is accustomed to complying) of any governmental,
intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
the "equivalent in other currencies" or like terms, unless otherwise
agreed or the context otherwise requires, means in relation to any
amount expressed to be denominated in a currency other than Euro,
the equivalent thereof in Euro converted at the Agent's Spot Rate of
Exchange on the day on which any such calculation falls to be made;
(ii) a provision of law is a reference to that provision as amended or
re-enacted (except as stated in the definition of "control" in
paragraph (i) above);
(iii) a Clause or a Schedule is a reference to a clause of or a schedule
to this Agreement;
(iv) a person includes its permitted successors, transferees, novatees
and assigns;
(v) a Finance Document or another document is a reference to that
Finance Document or other document as amended; and
(vi) a time of day is a reference to Paris time.
(b) Unless the contrary intention 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.
(c) The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement.
(d) The Schedules form an integral part of this Agreement.
2. FACILITY
2.1 Facility
(a) Subject to the terms of this Agreement, the Banks agree to make Loans
during the Commitment Period to the Borrowers.
(b) The aggregate Original Euro Amount of all outstanding Loans shall not, at
any time, exceed the Total Commitments.
(c) No Bank is obliged to lend if it would cause the Original Euro Amount of
its participations in the Loans to exceed its Commitment.
(d) In addition to Loans outstanding to the Company, Loans may not be
outstanding at any time to more than two Additional Borrowers.
13
2.2 Nature of a Finance Party's rights and obligations
(a) The obligations of a Finance Party under the Finance Documents are
several. Failure of a Finance Party to carry out those obligations does
not relieve any other Party of its obligations 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 a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
2.3 Nature of Obligors' rights and obligations
(a) Each Obligor by its execution of this Agreement (or a Borrower Accession
Agreement in the case of an Additional Borrower) irrevocably appoints
the Obligors' Agent to act on its behalf as its agent in relation to the
Finance Documents and irrevocably authorises:
(i) the Obligors' Agent on its behalf to supply all information
concerning itself contemplated by the Finance Documents to the
Finance Parties and to give all notices and instructions
(including Requests), to execute on its behalf any Borrower
Accession Agreement and to make such agreements capable of being
given or made by any Obligor notwithstanding that they may
affect such Obligor without further reference to or the consent
of such Obligor; and
(ii) the Agent to give any notice, demand or other communication
(including, without limitation, the letter referred to in Clause
9.5 (Taux Effectif Global)) to such Obligor pursuant to the
Finance Documents to the Obligors' Agent on its behalf (and any
notice given to the Obligors' Agent for an Obligor shall be
deemed to have been given to that Obligor,
and in all cases an Obligor shall be bound by notices and instructions
given by or to the Obligors' Agent on its behalf and by acts done by the
Obligors' Agent on its behalf as if the same had been given by or to, or
done by, the Obligor itself.
(b) Every act, omission, agreement, undertaking, settlement, waiver, notice
or other communication given or made by the Obligors' Agent or given to
the Obligors' Agent under this Agreement, or in connection with the
Finance Documents (whether or not known to any other Obligor and whether
occurring before or after such other Obligor became an Obligor under
this Agreement) shall be binding for all purposes on all Obligors as if
each Obligor had expressly made, given or concurred with the same. In
the event of any conflict between any notice or other communication from
or of the Obligors' Agent and any other Obligors, those of the
Obligors' Agent shall prevail.
3. PURPOSE
Each Borrower shall apply each Loan towards its general corporate
purposes. Without affecting the obligations of any Obligor in any way,
no Finance Party is bound to monitor or verify the application of any
Loan.
14
4. CONDITIONS PRECEDENT
4.1 Documentary conditions precedent
The Obligors' Agent may not deliver the first Request until the Agent
has notified the Obligors' Agent and the Banks that it has received all
of the documents set out in Schedule 2 in form and substance
satisfactory to the Agent.
4.2 Further conditions precedent
The obligation of each Bank to participate in each Loan under Clause 5.3
(Advance of Loan) is subject to the further conditions precedent that:
(a) on both the date of the Request and the Drawdown Date:
(i) the representations and warranties in Clause 17
(Representations and Warranties) to be repeated on those
dates are correct and will be correct immediately after
the Loan is made; and
(ii) no Potential Event of Default or Event of Default is
outstanding or would result from the Loan; and
(b) the making of the Loan would not cause Clause 2.1 (Facility) to
be contravened.
5. DRAWDOWN
5.1 Commitment Period
A Borrower may borrow a Loan during the Commitment Period if the Agent
receives, not later than 10.00 a.m. (London time in the case of a Loan
in Dollars, Swiss Francs or Yen) two Business Days before the proposed
Drawdown Date, a duly completed Request. Each Request is irrevocable.
5.2 Completion of Requests
A Request will not be regarded as having been duly completed unless:
(a) the Drawdown Date is a Business Day in the Commitment Period;
(b) if the currency selected is Euro, the amount of the Loan is:
(i) a minimum of (Euro)10,000,000 and an integral multiple
of (Euro)5,000,000; or
(ii) the balance of the undrawn Total Commitments; or
(iii) such other amount as the Agent may agree;
(c) if the currency selected is an Optional Currency, the amount of
the Loan is:
(i) an integral multiple of at least 100,000 of the largest
currency unit of that Optional Currency but at least the
equivalent of (Euro)10,000,000;
15
(ii) the balance of the undrawn Total Commitments; or
(iii) such other amount as the Agent may agree;
(d) the amount selected under paragraphs (b) or (c) above does not
cause Clause 2.1 (Facility) to be contravened;
(e) the currency selected complies with Clause 10 (Optional
Currencies);
(f) the Interest Period selected complies with Clause 8 (Interest
Periods) and does not extend beyond the Final Maturity Date; and
(g) the payment instructions specify an account of the Borrower in
Paris (in the case of Euros) or in the principal financial
centre of the country of the relevant currency (in the case of
an Optional Currency).
Each Request must specify one Loan only. Unless otherwise agreed by the
Agent, no more than five Loans may be outstanding at any time.
5.3 Advance of Loan
(a) The Agent shall promptly notify each Bank of the details of the
requested Loan and the amount of its participation in that Loan.
(b) Subject to the terms of this Agreement, each Bank shall make its
participation in the Loan available to the Agent for the relevant
Borrower in the currency in which it is to be borrowed on the relevant
Drawdown Date.
(c) The amount of each Bank's participation in the Loan will be the
proportion of the Loan which its Commitment bears to the Total
Commitments on the date of receipt by the Agent of the relevant Request.
6. REPAYMENT
6.1. Repayment
(a) The Borrowers shall repay each Loan in full on its Maturity Date to the
Agent for the Banks.
(b) Subject to paragraph (c) below, where the Maturity Date for an
outstanding Loan (the "Outstanding Loan") coincides with the Drawdown
Date of another Loan (the "New Loan") and the Outstanding Loan and the
New Loan are denominated in the same currency, the Agent shall apply the
New Loan in or towards repayment of the Outstanding Loan so that:
(i) where the amount of the Outstanding Loan exceeds the amount of
the New Loan the Borrowers shall pay to the Agent only the
excess;
(ii) where the amount of the Outstanding Loan is equal to the amount
of the New Loan, the Borrowers shall not make any payment to the
Agent; and
16
(iii) where the amount of the New Loan exceeds the Outstanding Loan,
the excess only shall be advanced to the relevant Borrower on
the Drawdown Date for the New Loan.
(c) Paragraph (b) above shall only apply if the further conditions precedent
referred to in Clause 4.2 (Further conditions precedent) are satisfied
on the date of the Request and the Drawdown Date for the New Loan.
(d) Nothing in paragraph (b) above shall have the effect of converting any
Loan, or any part of any Loan, into a term loan.
6.2 Re-borrowing
Subject to the other terms of this Agreement, any amounts repaid under
Clause 6.1 may be re-borrowed.
7. PREPAYMENT AND CANCELLATION
7.1 Automatic cancellation
The Commitment of each Bank shall be automatically cancelled at the
close of business in Paris on the Final Maturity Date.
7.2 Voluntary prepayment and cancellation
(a) The Obligors' Agent may, by giving not less than 10 days' prior notice
(or such shorter period as the Majority Banks may agree) to the Agent,
cancel the unutilised portion of the Total Commitments in whole or in
part (but, if in part, in a minimum Of (Euro)10,000,000 and an integral
multiple of (Euro)5,000,000).
(b) Any cancellation in part shall be applied against the Commitment of each
Bank pro rata.
7.3 Mandatory prepayment and cancellation
(a) Upon and at any time after the occurrence of a Prepayment Event, the
Agent, acting on the instructions of the Majority Banks, may serve a
notice of mandatory prepayment and cancellation on the Obligors' Agent
and:
(i) on the date of the notice the Total Commitments shall be
cancelled; and
(ii) on the date which is the early of the next Maturity Date and,the
date falling six months after the date of service of such
notice the Borrowers shall prepay the Loans made in full
together with any other amounts then due in connection with such
Loans.
(b) In this Clause 7.3, "Prepayment Event" shall mean any of the following:
(i) litigation, arbitration or administrative proceedings being
threatened, made or commenced against any Obligor or any
Material Subsidiary which proceedings, in the reasonable opinion
of the Majority Banks, have or would have, if adversely
determined, a Material Adverse Effect, unless the Company
demonstrates to the satisfaction of the Majority Banks (acting
reasonably) that such proceedings are
17
frivolous or vexatious and are being defended by the relevant
Obligor or Material Subsidiary in good faith by appropriate
means;
(ii) the ratio of Consolidated Net Indebtedness to EBITDA being, on
any Testing Date, greater than 3.5:1, and in this paragraph
(ii) "Consolidated Net Indebtedness", "EBITDA" and "Testing
Date" are each as defined in Clause 19.1 (Financial covenant
definitions);
(iii) any person or group of persons acting in concert, acquiring more
than 50% of the issued and fully paid up share capital or voting
rights in the Company (the "Acquisition") unless immediately
following the Acquisition either:
(A) the credit standing of the Company is, in the reasonable
opinion of the Majority Banks, the same or better than
the credit standing of the Company before the
Acquisition (if at the relevant time no, or only one,
Rating Agency publishes a credit rating for the
Company); or
(B) the credit rating of the Company as published by at
least two Rating Agencies is investment grade or better
(if at the relevant time two or more Rating Agencies
publish a credit rating for the Company),
provided that a Prepayment Event will not occur under this
paragraph (iii) before the date on which the Acquisition is
legally effective;
(iv) the entry by an Obligor into an amalgamation, demerger, merger
or reconstruction which is not a Permitted Reorganisation
(including, without limitation, an amalgamation, demerger,
merger or reconstruction resulting from or constituted by an
Obligor making a disposal or disposals of assets), provided that
a Prepayment Event will not occur under this paragraph (iv)
before the date on which the relevant Obligor's entry into the
amalgamation, demerger, merger or reconstruction has been
approved by the Obligor's board of directors and shareholders.
7.4 Additional right of prepayment
If.
(a) a Borrower is required to pay to a Bank any additional amounts
under Clause 12 (Taxes); or
(b) the Company is required to pay to a Bank any amount under Clause
14 (Increased Costs and other Payments),
then, without prejudice to the obligations of any Borrower under Clause
12 or the Company under Clause 14, the Obligors' Agent may, whilst the
circumstances continue, give a notice of prepayment and cancellation to
that Bank through the Agent. On the date failing five Business Days
after the date the notice is given:
(i) each Borrower shall prepay that Bank's participation in all the
Loans; and
(ii) the Commitment of that Bank shall be cancelled.
18
7.5 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Banks promptly of receipt of any
such notice.
(b) All prepayments under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to Clause 25.2 (Other
indemnities), without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
(d) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(e) Without prejudice to the right of the Borrowers to re-borrow under
Clause 6.2 (Re-borrowing), no amount prepaid under this Agreement with a
corresponding cancellation of Commitment may subsequently be
reborrowed.
8. INTEREST PERIODS
8.1 General
Each Loan has one Interest Period only.
8.2 Selection
(a) The Obligors' Agent may select an Interest Period for a Loan in the
relevant Request. Each Interest Period for a Loan will commence on its
Drawdown Date.
(b) Subject to the following provisions of this Clause 8, each Interest
Period will be one, two, three or six months or any other period (of up
to 12 months) agreed between the Obligors' Agent and the Banks.
8.3 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
8.4 No overrunning of the Final Maturity Date
If an Interest Period would otherwise overrun the Final Maturity Date,
it shall be shortened so that it ends on the Final Maturity Date.
8.5 Notification
The Agent shall notify the Obligors' Agent and the Banks of the duration
of each Interest Period promptly after ascertaining its duration.
19
9. INTEREST
9.1 Interest rate
The rate of interest on each Loan for its Interest Period is the rate
per annum determined by the Agent to be the aggregate of the
applicable:
(a) Margin; and
(b) EURIBOR or, in the case of a Loan in an Optional Currency, LIBOR
or, in the case of a Loan in Sterling, PIBOR.
9.2 Due dates
Except as otherwise provided in this Agreement, accrued interest on each
Loan is payable by the relevant Borrower on its Maturity Date and also,
if the Interest Period of the Loan is longer than six months, on the
dates falling at six-monthly intervals after the Drawdown Date.
9.3 Default interest
(a) If an Obligor fails to pay any amount payable by it under the Finance
Documents, it shall, forthwith on demand by the Agent to the
Obligors' Agent, pay interest on the overdue amount from the due date up
to the date of actual payment, as well after as before judgement, at a
rate (the "default rate") determined by the Agent to be one per cent.
per annum above the higher of:
(i) the rate on the overdue amount under Clause 9.1 immediately
before the due date (if of principal); and
(ii) the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Loan in the
currency of the overdue amount for such successive Interest
Periods of such duration (not exceeding three months) as the
Agent may determine (each a "Designated Interest Period").
(b) Default interest shall accrue automatically as of right and without need
of notification (mise en demeure) to the relevant Obligor or to the
Obligors' Agent and is in addition, and without prejudice, to the other
rights of the Finance Parties. Neither a demand by the Agent under
Clause 9.1 (a) or the payment by an Obligor or default interest shall
constitute the grant of an extension of the due date for the overdue
amount or any waiver of the Finance Parties' rights under the Finance
Documents in relation to such overdue amount.
(c) If the Agent determines that deposits in the currency of the overdue
amount are not at the relevant time being made available by the
Reference Banks to leading banks in the relevant interbank market, the
default rate will be determined by reference to the cost of funds to the
Agent from whatever sources it may reasonably select.
(d) The default rate will be determined by the Agent on each Business Day or
the first day of, or two Business Days before the first day of, the
relevant Designated Interest Period, as appropriate.
20
(e) Default interest will be compounded annually in accordance with Article
1154 of the French Civil Code.
9.4 Notification
The Agent shall promptly notify each relevant Party of the determination
of a rate of interest under this Agreement.
9.5 Taux Effectif Global
In order to comply with the provisions of Articles L313-1 and L313-2 of
the French Consumer Code (Code de la Consommation), the effective global
rate ("taux effectif global") calculated in accordance with the articles
referred to above is as set out in a letter dated the date of this
Agreement from the Agent to the Obligors' Agent substantially in the
form set out in Schedule 5.
10. OPTIONAL CURRENCIES
10.1 Selection
(a) The Obligors' Agent shall select the currency of a Loan in the relevant
Request.
(b) The currency of each Loan must be Euros or an Optional Currency.
(c) The Obligors' Agent may not choose a currency if as a result the Loans
would be denominated at any one time in more than three currencies.
(d) The Agent shall notify each Bank and the Obligors' Agent of the currency
and the Original Euro Amount of each Loan to be denominated in an
Optional Currency, and the applicable Agent Spot Rate of Exchange,
promptly after they are ascertained.
(e) The Agent shall in good faith notify the Obligors' Agent of the source
or basis of the Agent's Spot Rate of Exchange at the same time as it
gives the notification to the Obligors' Agent and the Banks under
paragraph (d) above.
10.2 Revocation of currency
If before 11.00 a.m. (London time in the case of a Loan in Dollars,
Swiss Francs or Yen) on any Rate Fixing Day, the Agent receives notice
from a Bank that:
(a) it is impracticable for the Bank to fund its participation in
the relevant Loan in the relevant Optional Currency during its
Interest Period in the ordinary course of business in the
relevant interbank market; and/or
(b) the use of the proposed Optional Currency might contravene any
law or regulation,
the Agent shall give notice to the Obligors' Agent and to the Banks to
that effect before 12.00 a.m. (London time in the case of a Loan in
Dollars, Swiss Francs or Yen) on that day. In this event:
(i) the Obligors' Agent and the Banks may agree that the drawdown
will not be made; or
21
(ii) in the absence of agreement and in any other case:
(1) that Bank's participation in the Loan (or, if more than
one Bank is similarly affected, those Banks'
participations in the Loan) shall be treated as a
separate Loan denominated in Euros;
(2) in the definition of "EURIBOR" (insofar as it applies to
that Loan) in Clause 1.1 (Definitions):
(A) there shall be substituted for the time "11.00
a.m." the time "1.00 p.m."; and
(B) paragraph (b) of that definition shall apply.
11. PAYMENTS
11.1 Place
All payments by an Obligor or a Bank under the Finance Documents shall
be made to the Agent to its account at such office or bank:
(a) in the principal financial centre of the country of the relevant
currency; or
(b) in the case of Euros, in the principal financial centre of a
Participating Member State or London,
as it may notify to the Obligors' Agent or Bank for this purpose by not
less than 5 Business Days' prior notice.
11.2 Funds
Payments under the Finance Documents to the Agent shall be made for
value on the due date at such times and in such funds as the Agent may
specify to the Party concerned as being customary at the time for the
settlement of transactions in the relevant currency in the place for
payment.
11.3 Distribution
(a) Each Payment received by the Agent under the Finance Documents for
another Party shall, subject to paragraphs (b) and (c) below, be made
available by the Agent to that Party by payment (on the date and in the
currency and funds of receipt) to its account with such office or bank
in the principal financial centre of the country of the relevant
currency as it may notify to the Agent for this purpose by not less than
five Business Days' prior notice.
(b) The Agent may apply any amount received by it for an Obligor in or
towards payment (on the date and in the currency and funds of receipt)
of any amount due from any Obligor under this Agreement or in or towards
the purchase of any amount of any currency to be so applied.
(c) Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that Party
until it has established that it has actually received that sum. The
Agent may, however, assume that the sum has been paid to it in
accordance with this Agreement, and, in reliance on that assumption,
make available to that
22
Party a corresponding amount. If the sum has not been made available but
the Agent has paid a corresponding amount to another Party, that Party
shall forthwith on demand by the Agent refund the corresponding amount
together with interest on that amount from the date of payment to the
date of receipt, calculated at a rate determined by the Agent to reflect
its cost of funds.
11.4 Currency
(a) A repayment or prepayment of a Loan is payable in the currency in which
the Loan is denominated on its due date.
(b) Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses and taxes and the like are
payable in the currency in which they are incurred.
(d) Any other amount payable under the Finance Documents is, except as
otherwise provided in this Agreement, payable in Euros.
11.5 Set-off and counterclaim
All payments made by any Obligor under the Finance Documents shall be
made without set-off or counterclaim.
11.6 Non-Business Days
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day.
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate payable
on the original due date.
11.7 Partial payments
(a) If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Obligors (or any of them) under the
Finance Documents, the Agent shall apply that payment towards the
obligations of the Obligors (or any of them) under the Finance Documents
in the following order:
(i) first, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Agent under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest
due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
23
(b) Paragraphs (a) and (b) above will override any appropriation made by any
Obligor.
12. TAXES
(a) All payments by an Obligor under the Finance Documents shall be made
without any deduction and free and clear of and without any deduction
for or on account of any taxes, except to the extent that an Obligor is
required by law to make payment subject to any taxes. If any tax or
amounts in respect of tax must be deducted, or any other deductions must
be made, from any amounts payable or paid by an Obligor, or paid or
payable by the Agent to a Finance Party, under the Finance Documents,
that Obligor shall pay such additional amounts as may be necessary to
ensure that the relevant Finance Party receives a net amount equal to
the full amount which it would have received had payment not been made
subject to tax or any other deduction.
(b) If an Obligor is, or becomes obliged, to make any deductions from any
amounts paid or payable by that Obligor to a Finance Party and is
prevented by applicable law from paying the additional amounts referred
to in paragraph (a) above:
(i) the Finance Party (if a Bank) may, by notice to the Obligors'
Agent through the Agent, require the Borrowers to prepay all or
part of its participation in the Loans; and
(ii) the Commitment of that Finance Party shall be cancelled
forthwith and each Borrower shall prepay the participations of
that Finance Party in each Loan made to it on the date falling
ten days after the date of the notice,
provided that notwithstanding such prepayment the Company shall be
obliged to pay the additional amounts to that Finance Party which the
relevant Obligor is prevented from paying as soon as it may legally do
so and such obligation shall survive any cancellation or termination of
this Agreement,
(c) Each Obligor shall:
(i) pay when due all taxes required by law to be deducted or
withheld by it from any amounts paid or payable under the
Finance Documents;
(ii) promptly deliver to the Agent for the relevant Bank evidence
satisfactory to that Bank (including all relevant tax receipts)
that the payment has been duly remitted to the appropriate
authority; and
(iii) forthwith on demand indemnify each Finance Party (which demand
shall be accompanied by a certificate from the Finance Party
setting out, in reasonable detail, calculations relating to the
amount claimed) against any loss or liability which that Finance
Party incurs as a consequence of the payment or non-payment of
those taxes (other than in respect of tax on the net income of a
Finance Party which is imposed by the jurisdiction in which it
is incorporated or in which its Facility Office is for the time
being situated).
(d) If an Obligor pays any additional amount under paragraph (a) above (a
"Tax Payment") for the account of a Finance Party and such Finance Party
effectively obtains a refund of tax, or
24
credit against or remission for or reduction of its overall tax
liability, by reason of that tax Payment (a "Tax Credit"), and such
Finance Party is able to identify the Tax Credit as being attributable
to the Tax Payment, then such Finance Party promptly after actual
receipt of such Tax Credit shall (provided that no Potential Event of
Default or Event of Default has occurred and is continuing), reimburse
to that Obligor such amount as such Finance Party shall in its opinion
acting in good faith determine to be the proportion of the Tax Credit as
will leave such Finance Party (after the reimbursement) in no better or
worse position than it would have been in if the Tax Payment had not
been required, provided that such Finance Party need not make any
reimbursement if (acting reasonably) it believes the making of the
reimbursement would cause it to lose the benefit of the Tax Credit. Each
Finance Party shall have an absolute discretion, acting in good faith,
as to whether to claim any Tax Credit and, if it does claim, the extent,
order and manner in which it does so. No Finance Party shall be obliged
to disclose any information regarding its tax affairs or computations to
any Obligor.
13. MARKET DISRUPTION
13.1 Absence of quotations
If EURIBOR, LIBOR or PIBOR is to be determined by reference to the
Reference Banks but a Reference Bank does not supply an offered rate by
11.30 a.m. (London time in the case of LIBOR Reference Banks) on the
relevant Rate Fixing Day, the applicable EURIBOR, LIBOR or PIBOR shall,
subject to Clause 13.2, be determined on the basis of the quotations of
the remaining Reference Banks.
13.2 Market disruption
If:
(a) EURIBOR, LIBOR or PIBOR is to be determined by reference to the
Reference Banks but no, or only one, Reference Bank supplies a
rate by 11.30 a.m. (London time in the case of LIBOR Reference
Banks) on the relevant Rate Fixing Day or the Agent otherwise
determines that adequate and fair means , do not exist for
ascertaining EURIBOR, LIBOR or PIBOR; or
(b) the Agent receives notification from Banks whose participations
in a Loan exceed 35 per cent. of that Loan that, in their
opinion:
(i) matching deposits may not be available to them in the
relevant interbank market in the ordinary course of
business to fund their participations in that Loan for
the relevant Interest Period; or
(ii) the cost to them of obtaining matching deposits in the
relevant interbank market would be in excess of EURIBOR,
LIBOR or PIBOR, as appropriate, for the relevant
Interest Period,
the Agent shall promptly notify the Obligors' Agent and the Banks of the
fact and that this Clause 13 is in operation.
25
13.3 Substitute basis
After any notification under Clause 13.2 the relevant Loan shall not be
made. However, within five Business Days of receipt of the notification,
the Obligors' Agent and the Agent shall enter into negotiations for a
period of not more than 30 days with a view to agreeing a substitute
basis for determining the rate of interest and/or funding applicable to
that Loan and (to the extent required) any future Loan. Any substitute
basis agreed shall, with the prior consent of all the Banks, be binding
on all the Parties.
14. INCREASED COSTS AND OTHER PAYMENTS
14.1 Increased costs
(a) Subject to Clause 14.2, the Company shall forthwith on demand by a
Finance Party pay to that Finance Party the amount of any increased cost
incurred by it or its Holding Company as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation; or
(ii) compliance with any regulation made after the date of this
Agreement,
including any law or regulation relating to taxation, change in currency
of a country or reserve asset, special deposit, cash ratio, liquidity or
capital adequacy requirements or any other form of banking or monetary
control.
(b) In this Agreement "increased cost" means:
(i) an additional cost incurred by a Finance Party or its Holding
Company as a result of it having entered into, or performing,
maintaining or funding its obligations under, any Finance
Document; or
(ii) that portion of an additional cost incurred by a Finance Party
or its Holding Company in making, funding or maintaining all or
any advances comprised in a class of advances formed by or
including that Finance Party participations in the Loans made or
to be made under this Agreement as is attributable to that
Finance Party making, funding or maintaining those
participations; or
(iii) a reduction in any amount payable to a Finance Party or the
effective return to a Finance Party or its Holding Company under
this Agreement or (to the extent that it is attributable to this
Agreement) on its capital; or
(iv) the amount of any payment made by a Finance Party or its Holding
Company, or the amount of any interest or other return foregone
by a Finance Party or its Holding Company, calculated by
reference to any amount received or receivable by that Finance
Party or its Holding Company from any other Party under this
Agreement.
14.2 Exceptions
Clause 14.1 does not apply to any increased cost:
26
(a) compensated for by the payment of the Mandatory Cost;
(b) compensated for by the operation of Clause 12 (Taxes);
(c) attributable to any change in the rate of, or change in the
basis of calculating, tax on the overall net income of a Bank
(or the overall net income of a division or branch of the Bank)
or attributable to any taxes which are not related directly or
indirectly to the entry into the Finance Documents or the
performance, maintenance or funding of obligations thereunder,
in each case imposed in the jurisdiction in which its principal
office or Facility Office is situated; or
(d) arising from a Finance Party or its Holding Company having
failed to comply with any applicable law or regulation, provided
that this exception shall not apply to the extent that such law
or regulation is applied retrospectively.
14.3 Other payments
(a) Together with each payment of interest by it under Clause 9.2 (Due
dates) each Borrower shall, subject to paragraph (e) below, pay to the
Agent for each Bank the amount of any Mandatory Cost incurred by that
Bank during the Interest Period to which the payment of interest
relates.
(b) The Mandatory Cost referred to in paragraph (a) of the definition of
Mandatory Cost for a Loan in a currency other than Sterling for its
Interest Period is the rate determined by the Agent in accordance with
the following formula:
Mandatory Cost = F x 0.01 % per annum
---------
300
where on the day of the application of the formula, F is the charge
payable by the Bank to the Financial Services Authority under paragraph
2.02 or 2.03 (as appropriate) of the Fees Regulations but where, for
this purpose, the figure in paragraph 2.02b and 2.03b will be deemed to
be zero, expressed in pounds per (Pound)1 million of the fee base of the
Bank. The formula is applied on the first day of the Interest Period of
the Loan.
(c) In paragraph (b) above,
(i) "Fees Regulations" means the Banking Supervision (Fees)
Regulations 1999 and/or any other regulations governing the
payment of fees for banking supervision; and
(ii) "fee base" has the meaning given to it in the Fees Regulations.
(d) If the Agent (acting in good faith) determines that a change in law,
regulation or any requirements from time to time imposed by the Bank of
England, the European Central Bank or the Financial Services Authority
(or any other authority which replaces the relevant functions of any of
those entities) has rendered, or will render, the formulae
inappropriate, the Agent (after consultation with the Banks and the
Obligors' Agent) shall notify the Obligors' Agent of the manner in which
the Mandatory Cost referred to in paragraph (b) above will subsequently
be calculated. The manner of calculation so notified by the Agent shall,
in the absence of manifest error, be binding on all the Parties.
27
(e) A Borrower shall only be obliged to pay Mandatory Cost under paragraph
(a) above if so directed by the Agent and the Agent shall only give such
a direction in respect of the Mandatory Cost incurred by a Bank if that
Bank has first requested the Agent to do so.
15. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for a Bank to give
effect to any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Loan,then:
(a) that Bank may notify the Obligor's Agent through the Agent
accordingly; and
(b) (i) each Borrower shall forthwith prepay the participations
of that Bank in all the Loans made to it; and
(ii) the Commitment of that Bank shall forthwith be
cancelled.
16. MITIGATION
If circumstances arise in respect of any Finance Party which would, or
would upon the giving of notice, result in:
(a) an Obligor being obliged to pay to or for the account of that
Finance Party additional amounts under Clause 12(a) (Taxes) or
the Company being obliged to pay to or for the account of that
Finance Party additional amounts under Clause 14.1 (Increased
costs); or
(b) the Borrowers being obliged to prepay that Finance Party's
participation in a Loan pursuant to Clause 15 (Illegality),
then, without in any way limiting, reducing or otherwise qualifying any
Obligors' obligations under Clauses 12(a), or 15 or the Company's
obligations under Clause 14.1, the relevant Finance Parties shall, in
consultation with the Agent and the Obligors' Agent, endeavour in good
faith for a period not exceeding thirty days to take such reasonable
steps as may be open to it to remove such circumstances or mitigate the
consequences thereof to the Obligor concerned, the Obligors or the
Company (as the case may be), including (without limitation) changing
its Facility Office to one in another jurisdiction or the transfer of
its rights and obligations under this Agreement to another institution,
unless in any such case to do so might (in the sole opinion of that
Finance Party) be prejudicial to that Finance Party.
17. REPRESENTATIONS AND WARRANTIES
17.1 Representations and warranties
Each Obligor makes the representations and warranties set out in this
Clause 17 to each Finance Party. Such representations and warranties
constitute an essential element (condition essentielle et determinante)
of the decision of each Finance Party to enter into this Agreement.
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17.2 Status
(a) It is a company ("societe anonyme" in the case of the Company), duly
incorporated with limited liability and validly existing under the laws
the jurisdiction of its incorporation; and
(b) it has the power to own its assets and carry on its business as it is being
conducted.
17.3 Powers and authority
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into, performance and delivery of, the
Finance Documents to which it is or will (in the case of any Borrower
Accession Agreement or Novation Certificate) be a party and the
transactions contemplated by those Finance Documents.
17.4 Legal validity
Each Finance Document to which it is or will (in the case of any Borrower
Accession Agreement or Novation Certificate) be a party constitutes, or
when executed in accordance with its terms will (in the case of any
Borrower Accession Agreement or Novation Certificate) constitute, its
legal, valid and binding obligation enforceable in accordance with its
terms and would be so treated in the courts of France, and each Finance
Document is in proper form for its enforcement in such courts.
17.5 Authorisations
All authorisations required in connection with the entry into, performance,
validity and enforceability of the Finance Documents and the transactions
contemplated by the Finance Documents have been obtained or effected and
are in full force and effect.
17.6 Pari passu ranking
Its obligations under the Finance Documents rank at least pari passu with
all its other unsecured and unsubordinated obligations, except for
obligations mandatorily preferred by law applying to companies generally.
17.7 Taxes on payments
All amounts payable by eich Obligor under the Finance Documents may be made
free and clear of and without deduction for or on account of any tax.
17.8 Stamp duties
No stamp or registration duty or similar taxes or charges are payable in
France in respect of any Finance Document (other than "timbres de
dimension").
17.9 Immunity
(a) The execution by each Obligor of each Finance Document constitutes, and its
exercise of its rights and performance of its obligations under each
Finance Document will constitute, private and commercial acts done and
performed for private and commercial purposes; and
29
(b) no Obligor will be entitled to claim immunity from suit, execution,
attachment or other legal process in any proceedings taken in France in
relation to any Finance Document.
17.10 No adverse consequences
(a) It is not necessary under the laws of France:
(i) in order to enable any Finance Party to enforce its rights under any
Finance Document; or
(ii) by reason of the execution of any Finance Document or the performance
by it of its obligations under any Finance Document,
that any Finance Party should be licensed, qualified or otherwise entitled
to carry on business in France; and
(b) no Finance Party is or will be deemed to be resident, domiciled or
carrying on business in France by reason only of the execution,
performance and/or enforcement of any Finance Document.
17.11 Security Interests
No Security Interests exist over the Company's assets nor any Material
Subsidiary's assets other than as permitted by Clause 18.8 (Negative
Pledge).
17.12 Accounts
(a) In the case of the Company and to the best of the Company's knowledge,
information and belief, on enquiry, the audited consolidated accounts of
the Company most recently delivered to the Agent (which, at the date of
this Agreement, are the Original Group Accounts):
(i) have been prepared in accordance with accounting principles and
practices generally accepted in France, consistently applied; and
(ii) give a true and fair view (donnent une image fidele et sincere) of
the consolidated financial condition of the Group as at the date to
which they were drawn up.
(b) In the case of the Company, there has been no material adverse change in
the consolidated financial condition or in the business or assets of the
Group since the date to which the Original Group Accounts were drawn up.
(c) Without prejudice to paragraphs (a) and (b) above, in the case of each
Obligor other than the Company, and to the best of the relevant Obligor's
knowledge, information and belief, on enquiry, its audited consolidated
accounts most recently delivered to the Agent:
(i) have been prepared in accordance with accounting principles and
practices generally accepted in the jurisdiction of its
incorporation, consistently applied; and
(ii) give a true and fair view (donnent une image fidele et sincere) of
its financial condition as at the date to which they were drawn up.
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17.13 Environmental matters
Each Obligor and each Material Subsidiary has obtained any and all
Environmental Licences required for the carrying on of its business as
currently conducted and is in compliance in all material respects with (a)
the terms and conditions of such Environmental Licences and (b) all other
applicable Environmental Law which in each case, if not complied with,
has, or could be expected to have, in each case in the reasonable opinion
of the Majority Banks, a Material Adverse Effect.
17.14 Non-conflict
(a) The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not:
(i) conflict with any law or regulation or judicial or official order
binding on any Obligor; or
(ii) conflict with the constitutional documents of any Obligor; or
(iii) conflict with any document which is binding upon any Obligor or any
asset of any Obligor.
(b) The borrowing of the Total Commitments in full will not cause any
borrowing limit binding on any Borrower to be exceeded.
17.15 No default
No Potential Event of Default or Event of Default is outstanding or would
result from the making of any Loan.
17.16 Litigation
(a) No material litigation, arbitration or administrative proceedings which
are material in the context of any Obligor's operations taken as a whole
are current, pending or threatened against any Obligor which might, in the
reasonable opinion of the Majority Banks, if adversely determined, have a
Material Adverse Effect.
(b) No proceedings of any nature are current, pending or threatened against
any Obligor for the winding-up or dissolution of, or in respect of any
insolvency proceeding of any nature relating to any Obligor.
17.17 Times for making representations and warranties
The representations and warranties set out in this Clause 17:
(a) (i) in the case of an Obligor which is a Party on the date of this
Agreement, are made by that Borrower on that date, and
(ii) in the case of an Obligor which becomes a Party after the date
of this Agreement, will (with the exception of the
representation and warranty set out in Clause 17.12(b)
(Accounts)) be deemed to be made by that Obligor on the date it
executes a Borrower Accession Agreement; and
(b) are deemed to be repeated by each Obligor on the date of each Request
and the first day of each Interest Period with reference to the facts
and circumstances then existing, with the exception of:
(i) the representations and warranties set out in Clause 17.12(b)
(Accounts) and Clause 17.16 (Litigation), which are deemed to
be repeated by each Obligor on the date of the first Request
and the first Drawdown Date only, with reference to the facts
and circumstances then existing,
(ii) the representation and warranty set out in Clause 17.7 (Taxes
on payments); and
(iii) the representation and warranty set out in Clause 17.13
(Environmental matters), which is deemed to be repeated by each
Obligor on the date of each release by the Company of its
annual report only, with reference to the facts and
circumstances then existing.
18. UNDERTAKINGS
18.1 Duration
The undertakings in this Clause 18 remain in force from the date of this
Agreement for so long as any amount is outstanding under this Agreement or
any Commitment is in force.
18.2 Financial information
(a) The Company shall (to the extent the same is publicly available) supply to
the Agent in sufficient copies for all the Banks:
(i) as soon as the same are available (and in any event within 180 days
of the end of each of its financial years):
(1) its audited consolidated accounts for that financial year;
(2) its audited accounts for that financial year, and
(3) the audited accounts of each other Obligor for that financial
year,
(ii) as soon as the same are available (and in any event within 90 days of
the end of each of its financial half years) its revised consolidated
accounts for that half year.
(b) The Company shall ensure that:
(i) each set of accounts relating to the Company delivered by it pursuant
to paragraph (a) above:
(1) is prepared in accordance with accounting principles and
practices generally accepted in France consistently applied,
and (in the case of the accounts
32
referred to in paragraph (a)(i) above) on the same basis as was
used in the preparation of the Original Group Accounts;
(2) shall give a true and fair view (donnent une image fidele et
sincere) of the financial condition of the Group as at the end
of the period to which those accounts relate and of the results
of its operations during that period; and
(3) is (in the case of the accounts referred to in paragraph (a)(i)
above) audited by an internationally recognised independent
qualified firm of auditors; and
(ii) each set of accounts relating to each other Obligor delivered by it
pursuant to paragraph (a) above:
(1) have been prepared in accordance with accounting principles and
practices generally accepted in the jurisdiction of
incorporation of the relevant Obligor, consistently applied;
and
(2) shall give a true and fair view (donnent une image fidele et
sincere) of the financial condition of the relevant Obligor as
at the end of the period to which those accounts relate and of
the results of its operations during that period.
(c) Together with each set of accounts relating to the Company delivered under
paragraph (a)(i) above, the Company shall deliver a certificate
(substantially in the form of Schedule 6) (the "Certificate") signed by
its chief financial officer setting out in reasonable detail computations:
(i) establishing compliance with the financial covenants in Clause 19
(Financial Covenants); and
(ii) showing the ratio of Consolidated Net Indebtedness to EBITDA (as each
of those terms is defined in Clause 19.1 (Financial covenant
definitions),
in each case as at the Testing Date (as defined in Clause 19) to which
those accounts were made up.
(d) If the Agent in good faith disagrees with the interpretation of any term
of Clause 19.1 (Financial covenant definitions) or any computation, in
each case contained in any Certificate, it may notify the Obligors' Agent
to that effect and the Company shall, within 10 Business Days of such
notice, deliver to the Agent a certificate signed by its statutory
auditors setting out in reasonable detail (to the Agent's reasonable
satisfaction) computations:
(i) establishing compliance with the financial covenants in Clause 19
(Financial Covenants); and
(ii) showing the ratio of Consolidated Net Indebtedness to EBITDA (as each
of those terms is defined in Clause 19.1),
in each case as at the Testing Date (as defined in Clause 19) to which the
accounts with which the relevant Certificate was delivered were made up.
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(e) Together with each set of accounts relating to the Company delivered under
paragraph (a)(i)(1), the Company shall deliver to the Agent a certificate
listing the Material Subsidiaries as determined from those accounts.
18.3 Information - miscellaneous
The Company shall supply to the Agent:
(a) all documents despatched by it to its shareholders (or any class of
them); and
(b) promptly, such further information in the possession or control of
the Company regarding its or any Material Subsidiary's or any other
Obligor's financial condition and operations as the Agent may
reasonably request,
in sufficient copies for all of the Banks, if the Agent so requests.
18.4 Notification of default or Prepayment Event
(a) Each Obligor shall notify the Agent of any Potential Event of Default or
Event of Default (and the steps, if any, being taken to remedy it)
promptly upon its occurrence.
(b) The Obligors' Agent shall notify the Agent of any Prepayment Event (as
defined in Clause 7.3(b) (Mandatory prepayment and cancellation)) promptly
after its occurrence.
18.5 Compliance certificates
The Company shall supply to the Agent:
(a) together with the accounts specified in Clause 18.2(a)(i) (Financial
information); and
(b) promptly at any other time, if the Agent so requests (acting in good
faith),
a certificate signed by its chief financial officer on its behalf
certifying that no Potential Event of Default or Event of Default is
outstanding or, if a Potential Event of Default or Event of Default is
outstanding, specifying the Potential Event of Default or Event of Default
and the steps, if any, being taken to remedy it.
18.6 Authorisations
Each Obligor shall promptly:
(a) obtain, maintain and comply with the terms of; and
(b) supply certified copies to the Agent of,
any authorisation required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability of,
any Finance Document.
18.7 Pari passu ranking
Each Obligor shall procure that its obligations under the Finance
Documents will rank at least pari passu with all its other present and
future unsecured and unsubordinated
34
obligations, except for obligations mandatorily preferred by law applying
to companies generally.
18.8 Negative pledge
(a) The Company shall not, and shall procure that no Material Subsidiary will,
create or permit to subsist any Security Interest on any of its assets.
(b) Paragraph (a) does not apply to:
(i) Security Interests created in connection with the purchase,
maintenance or improvement of an asset, providing the amount of
Financial Indebtedness secured remains confined to such asset or
such improvement;
(ii) Security Interests created to secure Financial Indebtedness owing
to EIB, IFC, Fonds Industriel de Modernisation, Fonds de
Developpement Economique et Social or any other governmental, EU
or international controlled financial institution which in its
normal lending practices requires such Security Interests;
(iii) Security Interests existing at time when a corporation is merged
into, consolidated with or acquired by the Company or a Material
Subsidiary and not created in contemplation of such event, provided
that any such Security Interest remains confined to such asset and
improvements and additions thereto and does not secure any
Financial Indebtedness not so secured at the time of such event;
(iv) Security Interests existing on any asset prior to the acquisition
thereof by the Company or a Material Subsidiary and not created in
contemplation of such acquisition provided that any such Security
Interest remains confined to such asset and improvements and
additions thereto and does not secure any Financial Indebtedness
not so secured at the time of such event;
(v) Security Interests arising out of a refinancing of any Financial
Indebtedness secured by Security Interests permitted above,
provided that the amount of such Financial Indebtedness is not
increased or secured by any additional asset or revenues;
(vi) Security Interests arising out of orders of attachment, distraint
or similar legal process arising in connection with court
proceedings so long as the claims secured are being contested in
good faith;
(vii) Security Interests created over assets held in trust by another
person, which assets are to be used by such other person solely for
satisfying the Company's or a Material Subsidiary's scheduled
payment obligations in respect of the principal and/or interest in
respect of any Financial Indebtedness of the Company or that
Material Subsidiary in circumstances where such other person has
undertaken responsibility for the discharge of the Company's or the
Material Subsidiary's obligations in relation to such Financial
Indebtedness;
(viii) Security Interests created over assets or receivables of the
Company or a Material Subsidiary which Security Interests have been
given in connection with the refinancing of such assets or
receivables and where the risks (except in relation to any credit
enhancement provided by the Company or the Material Subsidiary in
respect of such assets or receivables) relating to the non-payment
in respect of such
35
assets or receivables are, as a result of such refinancing, not borne
by the Company or the Material Subsidiary;
(ix) Security Interests created over a deposit made by the Company or a
Material Subsidiary using the proceeds of Financial Indebtedness of
the Company or that Material Subsidiary provided that (A) the
depository of such proceeds lends an amount at least equal to the
amount of the deposit to a Subsidiary of the Company or the Material
Subsidiary and (B) such loan has a maturity date which is not earlier
than the date for repayment of such deposit; and
(x) other Security Interests not falling in the above paragraphs provided
that the amount of Financial Indebtedness secured thereby does not
exceed, in aggregate, 7.5% of the Company's Consolidated Net Worth
(as defined in Clause 19.1).
18.9 Change of business/registered office
(a) The Company shall procure that no substantial change is made to the
general nature or scope of the business of the Company or the Group (taken
as a whole) from that carried on at the date of this Agreement, if such a
change has, or could be expected to have, in each case in the reasonable
opinion of the Majority Banks, a Material Adverse Effect.
(b) The Company shall not change its place of incorporation or registered head
office to one outside the European Union or Switzerland.
18.10 Insurance
Each Obligor shall, and the Company shall procure that each Material
Subsidiary will, maintain insurance with financially sound and reputable
insurers with respect to its assets of an insurable nature against such
risks and in such amounts as are normally maintained by persons carrying
on the same or a similar class of business.
18.11 Maintenance of status
Each Obligor shall, and the Company shall procure that each Material
Subsidiary will:
(a) do all such things as are necessary to maintain its corporate
existence; and
(b) ensure that it has the right and is duly qualified to conduct its
business as it is conducted in all applicable jurisdictions.
18.12 Compliance with laws
Each Obligor will, and the Company shall procure that each Material
Subsidiary will comply in all material respects with all applicable laws
and regulations of any governmental authority, whether domestic or
foreign, having jurisdiction over it or any of its assets, where failure
to comply with any such laws or regulations has, or could be expected to
have, in each case in the reasonable opinion of the Majority Banks, a
Material Adverse Effect.
18.13 Millennium compliance
Each Obligor will, and the Company shall procure that each Material
Subsidiary will use its best endeavours to ensure that its material
Information Systems and Equipment are at all
36
times Year 2000 Compliant, except insofar as the failure of the
Information Systems and Equipment to be Year 2000 Compliant does not
result, or could not be expected to result, in each case in the reasonable
opinion of the Majority Banks, in a Material Adverse Effect, and the
Obligors' Agent shall notify the Agent promptly upon detecting any failure
of the Information Systems and Equipment to be Year 2000 Compliant. In
addition, each Obligor shall provide the Agent with such information about
its year 2000 computer readiness (including, without limitation,
information as to contingency plans, budgets and testing results) as the
Agent may reasonably request.
19. FINANCIAL COVENANTS
19.1 Financial covenant definitions
In this Clause 19:
"Consolidated Net Indebtedness"
means, without double counting, the aggregate of the Company's long term
debt (including participating loans), bank overdrafts, current portion of
long term debt and short term borrowings minus the aggregate of cash,
short term deposits, marketable securities, each as calculated from the
items so described in the English language version of the consolidated
accounts of the Company most recently delivered by the Company to the
Agent under Clause 18.2(a)(i)(1)). For illustrative purposes only,
Consolidated Net Indebtedness as shown in the Original Group Accounts is
FRF7,452,000,000.
"Consolidated Net Worth"
means the aggregate of total liabilities and total stockholders equity
minus the aggregate of the sum of total current liabilities, long term
debt (including participating loans), other long term liabilities and
mandatorily redeemable partnership interest (if any) and minority
interests each as calculated from the items so described in the
consolidated accounts of the Company most recently delivered by the
Company to the Agent 18.2(a)(i)(1). For illustrative purposes only, the
Company's Consolidated Net Worth as shown in the Original Group Accounts
is FRF13,973,000,000.
"EBITDA"
means, in respect of a particular period, (after cash impact of
provisions), the aggregate of the Company's Operating Income, Depreciation
and Amortisation of Assets (including additional goodwill amortisation, if
any), and increase in other long term provisions,(or minus decrease in
other long term provisions, if any) and provisions for restructuring and
environmental costs during that period, where:
(a) Operating Income means net sales minus operating expenses (operating
expenses being production costs and expenses, administrative and
selling expenses, research and development expenses, additional
goodwill amortisation (if any) and provision for restructuring and
environmental costs);
37
(b) Depreciation and Amortisation of Assets means:
(i) amortisation of acquisition goodwill and equity goodwill in net
income of affiliated companies;
(ii) amortisation of patents, licenses, trade-marks and software;
(iii) armoritisation of other intangible assets;
(iv) depreciation of land, buildings and other tangible assets;
(v) additional goodwill amortization (if any); and
(vi) investments allowance; and
(c) "increase (or decrease, if any) in other long term provisions shall
comprise" means:
(i) changes in provisions for retirement;
(ii) changes in provisions for restructuring; and
(iii) changes in provisions for other long term risks and
liabilities,
each, in the case of the Company, as calculated from the items so
described in the English language version of the consolidated accounts of
the Company most recently delivered by the Company to the Agent under
Clause 18.2(a)(i)(1). For illustrative purposes only, the Company's EBITDA
as shown in the English language version of the Original Group Accounts is
FRF4,873,000,000.
"Net Financial Expenses"
means, in respect of a particular period, Interest Expenses minus Interest
Income, where:
(a) Interest Expenses means the aggregate of the Company's interest on
financial debts and financing operations (being interest on loans
payable and bank overdrafts, discounts of notes receivable and
amortisation of redemption premium) after capitalisation of financial
expenses related to the financing of certain assets and incorporated
in the purchase cost of such assets, excluding penalties or
commissions for loan prepayment, losses on financial instruments such
as interest rate options and interest rate swaps, interest payable on
non financial debts (commercial or other), loans issuing costs
whether or not spread over the duration of the loan, net losses on
disposals of marketable securities, decreases in the probable stock
exchange value of trading securities, losses on repurchase of
shares, debentures and other securities issued by the Company or its
Subsidiaries; and
(b) Interest income means the Company interest income on financial
assets (loans receivable, debit balance on bank current accounts,
etc.), excluding income from non financial receivables, gains on
financial instruments such as interest rate swaps or interest rate
options, gains on disposal of marketable securities, increase in the
probable stock exchange value of trading securities, income from
marketable securities, gains on repurchase of shares, debentures or
other securities issued by the Company or its Subsidiaries,
each as calculated from the items so described in the English language
version of the consolidated accounts of the Company most recently
delivered by the Company to the Agent under Clause 18.2(a)(i)(1). For
illustrative purposes only, the Company's Net Financial Expenses as shown
in the Original Group Accounts is FRF640,000,000.
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"Testing Date"
means 31 st December of each year.
19.2 Minimum Consolidated Net Worth
The Company shall procure that its Consolidated Net Worth is on each
Testing Date greater than (Euro)1,830,000,000.
19.3 Ratio of EBITDA to Net Financial Expenses
The Company shall procure that the ratio of its EBITDA to its Net
Financial Expenses is, on each Testing Date, greater than 5.0:1.
19.4 Calculation and interpretation
(a) All the terms used in Clause 19.1 are to be calculated in accordance with
the accounting principles and practices applied in connection with the
Original Group Accounts, consistently applied.
(b) The Obligors' Agent shall promptly notify the Agent of;
(i) each change in the accounting principles and practices in accordance
with which the Company's consolidated accounts are prepared; and
(ii) each change in the end of the Company's financial year.
(c) Following each change of the type referred to in paragraph (b) above, the
Company shall:
(i) procure that its chief financial officer or (if the Agent so
requests) its statutory auditors deliver with the audited accounts of
the Company next delivered under Clause 18.2(a) (Financial
information) (the "New Accounts") a certificate containing a
description of the change in the basis on which the Company's
consolidated accounts are prepared from that used in the preparation
of the consolidated accounts of the Company delivered immediately
prior to the change (the "Old Accounts") and information:
(1) sufficient, in the reasonable opinion of the Majority Banks, to
allow the Finance Parties to make an accurate comparison of the
Company's financial position as set out in the Old Accounts and
that set out in the New Accounts and any adjustments necessary
to ensure that the New Accounts reflect the format, and/or
basis used in the preparation, of the Old Accounts; and
(2) sufficient, in the reasonable opinion of the Agent, to enable
the Agent to ascertain (A) the compliance by the Company with
the financial covenants contained in Clauses 19.2 and 19.3, and
(B) the ratio of Consolidated Net Indebtedness to EBITDA; and
(ii) at the request of the Agent (acting on the instructions of the
Majority Banks), negotiate in good faith with the Agent with a view
to agreeing such amendments to
39
Clause 19 as may be necessary to ensure that the Finance
Parties' interests under this Agreement are not prejudiced by such
change.
20. DEFAULT
20.1 Events of Default
Each of the events set out in this Clause 20 is an Event of Default
(whether or not caused by any reason whatsoever outside the control of any
Obligor or any other person or any law or regulation or judicial or
administrative decision.
20.2 Non-payment
An Obligor does not pay on the due date (or, if not on the due date and
the Agent is satisfied that non-payment is due solely to administrative or
technical error in the transmission of funds, within five Business Days of
the Agent giving notice to the Oligors' Agent of the non-payment) any
amount payable by it under the Finance Documents at the place at and in
the currency in which it is expressed to be payable.
20.3 Breach of other obligations
(a) The Company does not comply with any financial covenant referred to in
Clause 19 (Financial Covenants); or
(b) any other provision of the Finance Documents (other than those referred to
in Clause 20.2 (Non-payment)) is not complied with and, if such non-
compliance is capable of remedy (in the reasonable opinion of the Majority
Banks), it is not remedied within 20 Business Days of the date on which
the Agent gives notice thereof to the Obligors' Agent.
(c) Without prejudice to paragraph (b) above, a Material Subsidiary which is
not an Obligor:
(i) performs any act which the Company is obliged by Clause 18.8
(Negative pledge) to procure that that Material Subsidiary will not
perform; or
(ii) fails to perform any act which the Company is obliged by Clause
18.10 (Insurance), Clause 18.11 (Maintenance of status) or Clause
18.12 (Compliance with laws) to procure that that Material Subsidiary
will perform,
and, if the circumstances as are referred to in paragraphs (i) and (ii)
above are capable of reversal or remedy (in the reasonable opinion of the
Majority Banks), such circumstances are not remedied or reversed within
20 Business Days of the date on which the Agent gives notice thereof to
the Obligors' Agent.
20.4 Misrepresentation
A representation or warranty made or repeated in or in connection with any
Finance Document or in any document delivered by or on behalf of any
Obligor under or in connection with any Finance Document is materially
incorrect in any respect when made or deemed to be made or repeated
(whether or not intentionally).
40
20.5 Cross-acceleration
(a) Any Financial Indebtedness of any Obligor or any Material Subsidiary is
not paid when due or within any applicable grace period; or
(b) any Financial Indebtedness of any Obligor or any Material Subsidiary is
declared due and payable or is placed on demand as a result of an event of
default (howsoever described) under the document relating to that
Financial Indebtedness,
provided that there shall not be an Event of Default under this Clause
20.5 if the aggregate amount of Financial Indebtedness which is not paid
when due or within any applicable grace period under paragraph (a) above
and/or which is declared due and payable or is placed on demand under
paragraph (b) above is (Euro)35,000,000 (or the equivalent in other
currencies) or less.
20.6 Insolvency
(a) An Obligor or any Material Subsidiary is, or is deemed for the purposes of
any law to be, unable to pay its debts as they fall due or to be insolvent
(including without limitation "en etat de cessation des paiements"), or
admits inability to pay its debts as they fall due; or
(b) an Obligor or any Material Subsidiary suspends making payments on all or
any class of its debts or announces an intention to do so, or a moratorium
is declared in respect of any of its indebtedness; or
(c) an Obligor or any Material Subsidiary, by reason of financial
difficulties, applies for, or is subject to, an amicable settlement or a
"reglement amiable" pursuant to law 84-148 of 1st March, 1984 of France,
or begins negotiations with one or more of its creditors with a view to
the readjustment or rescheduling of any of its indebtedness.
20.7 Insolvency proceedings
(a) Any step (including petition, proposal or converting a meeting) is taken
with a view to a composition, assignment or arrangement with any creditors
of an Obligor or any Material Subsidiary; or
(b) a meeting of an Obligor or any Material Subsidiary is convened for the
purpose of considering any resolution for (or to petition for) its
winding-up or for its administration (including without limitation
"dissolution, liquidation, or redressement judiciaire') or any such
resolution is passed; or
(c) any person presents a petition for the winding-up or for the
administration of an Obligor or any Material Subsidiary; or
(d) an order for the winding-up or administration of an Obligor or any
Material Subsidiary is made;
(e) a judgement is issued for the judicial liquidation ("liquidation
judiciaire") or the transfer of the whole of the business ("cession de
l'entreprise") of an Obligor or any Material Subsidiary; or
41
(f) any other step (including petition, proposal or convening a meeting) is
taken with a view to the rehabilitation, administration, custodianship,
liquidation, winding-up or dissolution of an Obligor or any Material
Subsidiary or any other insolvency proceedings involving an Obligor or any
Material Subsidiary,
provided that the solvent liquidation or winding up of a Material
Subsidiary:
(i) that is not an Obligor, on arm's length terms and where the assets of
that Material Subsidiary are transferred in full to another member
of the Group prior to such liquidation or winding up taking effect;
or
(ii) on terms previously approved by the Majority Banks,
shall not be an Event of Default under this Clause 20.7.
20.8 Appointment of receivers and managers
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator, administrateur
judiciaire, provisoire mandataire ad hoc, conciliateur or mandataire
liquidateur or the like is appointed in respect of an Obligor or a
Material Subsidiary or any part of the assets of an Obligor or a Material
Subsidiary; or
(b) the directors an Obligor or a Material Subsidiary request the appointment
of a liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator,
administrateur judiciaire, provisoire mandataire ad hoc, conciliateur or
mandataire liquidateur or the like; or
(c) any other steps are taken to enforce any Security Interest over any part
of the assets of an Obligor or a Material Subsidiary where the asset or
assets the subject of such Security Interest has or have a value, in
aggregate, in excess of (Euro)2,000,000 unless such enforcement is being
contested by the relevant Obligor or Material Subsidiary in good faith.
20.9 Creditors' process
Any attachment, sequestration, distress or execution affects any material
asset of an Obligor or a Material Subsidiary which is material in the
context of this Agreement and which, in the reasonable opinion of the
Majority Banks, has or could be expected to have a Material Adverse Effect
and is not discharged within 45 days.
20.10 Analogous proceedings
There occurs, in relation to an Obligor or any Material Subsidiary, any
event in any relevant jurisdiction which, in the opinion of the Majority
Banks (acting in good faith), appears to correspond with any of those
mentioned in Clauses 20.6 (Insolvency) to 20.9 (Creditors' process)
(inclusive).
20.11 Cessation of business
An Obligor or any Material Subsidiary ceases, or threatens to cease, to
carry on all or a substantial part of its business (excluding Rhodia
Chimie in the context of its intended filialisation).
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20.12 Unlawfulness and invalidity of Finance Documents
(a) It is or becomes unlawful for any Obligor to perform any of its
obligations under the Finance Documents.
(b) Any of the Finance Documents ceases to be in full force and effect in any
material respect or ceases to constitute the legal, valid and binding
obligation of any Obligor.
20.13 Audit qualification
The Company's auditors qualify their report on any audited consolidated
accounts of the Company in any manner whatsoever (except where such
qualification is of a technical or non-material nature) which, in the
opinion of the Majority Banks, is material in the context of the Finance
Documents and the transactions contemplated thereby and where the reason
for the qualification, in the reasonable opinion of the Majority Banks,
has or could be expected to have a Material Adverse Effect.
20.14 Repudiation
An Obligor repudiates this Agreement or does or causes anything to be done
any act or thing evidencing an intention to repudiate this Agreement.
20.15 Ownership of the Borrowers
A Borrower (other than the Company) is not or ceases to be a member of the
Group.
20.16 Guarantees
Any Guarantee is not effective or is alleged by any Obligor to be
ineffective to any extent or for any reason.
20.17 Acceleration
On and at any time after the occurrence of an Event of Default the Agent
may, and shall if so directed by the Majority Banks, by notice to the
Obligors' Agent:
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loans, together with accrued interest
and all other amounts accrued under the Finance Documents be
immediately due and payable, whereupon they shall become immediately
due and payable;
(c) demand that all or part of the Loans together with accrued interest
and all other amounts accrued under the Finance Documents be payable
on demand, whereupon they shall immediately become payable on demand
by the Agent acting on the instructions of the Majority Banks; and/or
(d) take all steps open to, and exercise all rights conferred on, the
Finance Parties under the Finance Documents or applicable law.
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21. THE AGENT
21.1 Appointment and duties of the Agent
(a) Each Finance Party (other than the Agent) irrevocably appoints the Agent
to act as its agent under and in connection with the Finance Documents.
(b) Each Party appointing the Agent irrevocably authorises the Agent on its
behalf to:
(i) perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in
connection with the Finance Documents, together with any other
incidental rights, powers and discretions; and
(ii) execute each Finance Document expressed to be executed by the Agent
on that Party's behalf
(c) The Agent has only those duties which are expressly specified in this
Agreement. Those duties are solely of a mechanical and administrative
nature.
21.2 Relationship
The relationship between the Agent and the other Finance Parties is that
of agent and principal only. Nothing in this Agreement constitutes the
Agent as trustee or fiduciary for any other Party or any other person and
the Agent need not hold in trust any moneys paid to it for a Party or be
liable to account for interest on those moneys.
21.3 Majority Banks' instructions
(a) The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of any
right, power or discretion or any matter not expressly provided for in the
Finance Documents. Any such instructions given by the Majority Banks will
be binding on all the Banks. In the absence of such instructions, the
Agent may act as it considers to be in the best interests of all the
Banks.
(b) The Agent is not authorised to act on behalf of a Bank (without first
obtaining that Bank's consent) in any legal or arbitration proceedings
relating to any Finance Document.
21.4 Delegation
The Agent may act under the Finance Documents through its personnel and
agents.
21.5 Responsibility for documentation
The Agent is not responsible to any other Party for:
(a) the execution, genuineness, validity, enforceability or sufficiency of any
Finance Document or any other document;
(b) the collectability of amounts payable under any Finance Document; or
(c) the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document.
43
44
21.6 Default
(a) The Agent is not obliged to monitor or enquire as to whether or not a
Potential Event of Default or Event of Default has occurred. The Agent
will not be deemed to have knowledge of the occurrence of a Potential
Event of Default or Event of Default. However, if the Agent receives
notice from a Party referring to this Agreement, describing the Potential
Event of Default or Event of Default and stating that the event is a
Potential Event of Default or Event of Default, it shall promptly notify
the Banks.
(b) The Agent may require the receipt of security satisfactory to it, whether
by way of payment in advance or otherwise, against any liability or loss
which it will or may incur in taking any proceedings or action arising out
of or in connection with any Finance Document before it commences those
proceedings or takes that action.
21.7 Exoneration
(a) Without limiting paragraph (b) below, the Agent will not be liable to any
other Party for any action taken or not taken by it under or in connection
with any Finance Document, unless directly caused by its gross negligence
or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or agent
of the Agent in respect of any claim it might have against the Agent or in
respect of any act or omission of any kind (including gross negligence or
wilful misconduct) by that officer, employee or agent in relation to any
Finance Document.
21.8 Reliance
The Agent may:
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by a director or employee of any person
regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in the Agent's employment and those
representing a Party other than the Agent).
21.9 Credit approval and appraisal
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Bank confirms that it:
(a) has made its own independent investigation and assessment of the
financial condition and affairs of the Obligors and their related
entities in connection with its participation in this Agreement and
has not relied exclusively on any information, provided to it by the
Agent in connection with any Finance Document; and
45
(b) will continue to make its own independent appraisal of the
creditworthiness of the Obligors and their related entities while
any amount is or may be outstanding under the Finance Documents or
any Commitment is in force.
21.10 Information
(a) The Agent shall promptly forward to the person concerned the original or a
copy of any document which is delivered to the Agent by a Party for that
person.
(b) The Agent shall promptly supply a Bank with a copy of each document
received by the Agent under Clause 4 (Conditions precedent), upon the
request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the Agent is
not obliged to review or check the accuracy or completeness of any
document it forwards to another Party.
(d) Except as provided above, the Agent has no duty:
(i) either initially or on a continuing basis to provide any Bank with
any credit or other information concerning the financial condition
or affairs of the Obligors or of their related entities, whether
coming into its possession before, on or after the date of this
Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance with
a Finance Document, to request any certificates or other documents
from any Obligor or the Obligors' Agent.
21.11 The Agent individually
(a) If it is also a Bank, the Agent has the same rights and powers under this
Agreement as any other Bank and may exercise those rights and powers as
though it were not the Agent.
(b) The Agent may:
(i) carry on any business with any Obligor or their related entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, any Obligor or their related entities; and
(iii) retain any profits or remuneration in connection with its activities
under this Agreement or in relation to any of the foregoing.
(c) In acting as the Agent, the agency division of the Agent will be treated
as a separate entity from its other divisions and departments. Any
information acquired by the Agent which, in its opinion, is acquired by it
otherwise than in its capacity as the Agent may be treated as confidential
by the Agent and will not be deemed to be information possessed by the
Agent in its capacity as such.
(d) The Obligors irrevocably authorise the Agent to disclose to the other
Finance Parties any information which, in the opinion of the Agent, is
received by it in its capacity as the Agent.
46
(e) The Agent may deduct from any amount received by it for the Banks pro rata
any unpaid fees, costs and expenses of the Agent incurred by it in
connection with the Finance Documents.
21.12 Indemnities
(a) Without limiting the liability of the Obligors under the Finance
Documents, each Bank shall forthwith on demand indemnify the Agent for
that Bank's proportion of any liability or loss incurred by the Agent in
any way relating to or arising out of its acting as the Agent, except to
the extent that the liability or loss arises directly from the Agent's
gross negligence or wilful misconduct.
(b) A Bank's proportion of the liability or loss set out in paragraph (a)
above will be the proportion which its participation in the Loans (if any)
bear to all the Loans on the date of the demand. However, if there are no
Loans outstanding on the date of demand, then the proportion will be the
proportion which its Commitment bears to the Total Commitments at the date
of demand or, if the Total Commitments have then been cancelled, bore to
the Total Commitments immediately before being cancelled.
(c) The Company will forthwith on demand reimburse each Bank for any payment
made by it under and in accordance with paragraph (a) above.
21.13 Compliance
(a) The Agent may refrain from doing anything which might, in its opinion,
constitute a breach of any law or regulation or be otherwise actionable at
the suit of any person, and may do anything which, in its opinion, is
necessary or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not disclose any
information relating to any Obligor or any of their related entities if
the disclosure might, in the opinion of the Agent, constitute a breach of
any law or regulation or any duty of secrecy or confidentiality or be
otherwise actionable at the suit of any person.
21.14 Resignation of the Agent
(a) Notwithstanding its irrevocable appointment, the Agent may resign by
giving notice to the Banks and the Obligors' Agent, in which case the
Agent, with the prior consent of the Obligors' Agent (not to be
unreasonably withheld or delayed) may forthwith appoint one of its
Affiliates as successor Agent or, failing that, the Majority Banks may
appoint a successor Agent.
(b) If the appointment of a successor Agent is to be made by the Majority
Banks but they have not, within 30 days after notice of resignation,
appointed a successor Agent which accepts the appointment, the Agent may,
with the prior consent of the Obligors' Agent (not to be unreasonably
withheld or delayed, appoint a successor Agent.
(c) The resignation of the Agent and the appointment of any successor Agent
will both become effective only upon the successor Agent notifying all the
Parties that it accepts its appointment. On giving the notification, the
successor Agent will succeed to the position of the Agent and the term
"Agent" will mean the successor Agent.
47
(d) The retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as the Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 21 shall continue to
benefit the retiring Agent in respect of any action taken or not taken by
it under or in connection with the Finance Documents while it was the
Agent, and, subject to paragraph (d) above, it shall have no further
obligations under any Finance Document.
(f) The Majority Banks may, by notice to the Agent, require it to resign in
accordance with paragraph (a) above. In this event, the Agent shall resign
in accordance with paragraph (a) above but it shall not be entitled to
appoint one of its Affiliates as successor Agent.
21.15 Banks
(a) The Agent may treat each Bank as a Bank, entitled to payments under this
Agreement and as acting through its Facility Office(s) until it has
received not less than five Business Days' prior notice from that Bank to
the contrary.
(b) The Agent may at any time, and shall if requested to do so by the Majority
Banks, convene a meeting of the Banks.
22. FEES
22.1 Commitment fee
(a) The Company shall pay to the Agent for each Bank a commitment fee in Euro
computed at the rate of zero point one seven five (0.175%) per cent. per
annum on the undrawn, uncancelled amount of that Bank's Commitment during
the Commitment Period.
(b) Accrued commitment fee is payable quarterly in arrear (including, without
limitation, commitment fee which has accrued on an amount of cancelled
Commitment before such cancellation takes effect).
22.2 VAT
Any fee referred to in this Clause 22 is exclusive of any value added tax
or any other tax which might be chargeable in connection with that fee. If
any value added tax or other tax is so chargeable, it shall be paid by the
Company at the same time as it pays the relevant fee.
23. EXPENSES
23.1 Initial and special costs
The Company shall forthwith on demand pay the Agent the amount of all
costs and expenses (including legal fees) incurred by it:
(a) the negotiation, preparation, printing and execution of this
Agreement and any other documents referred to in this Agreement
(subject to the cap agreed between the Agent and the
Obligor's Agent in the term sheet relating to this
48
Agreement signed by the Agent and the Borrower dated 19th
November, 1999); and
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of the
Obligors and relating to a Finance Document or a document referred
to in any Finance Document.
23.2 Enforcement costs
The Company shall forthwith on demand pay to each Finance Party (which
demand shall be accompanied by a certificate from the Finance Party
setting out calculations in reasonable detail relating to the amount
claimed) the amount of all reasonable costs and expenses (including duly
documented legal fees) incurred by it in connection with the enforcement
of, or the preservation of any rights under, any Finance Document.
24. STAMP DUTIES
The Company shall pay, and forthwith on demand indemnify each Finance
Party (which demand shall be accompanied by a certificate from the Finance
Party setting out calculations in reasonable detail relating to the amount
claimed) against any liability it incurs in respect of, any stamp,
registration and similar tax which is or becomes payable in connection
with the entry into, performance or enforcement of any Finance Document.
25. INDEMNITIES
25.1 Currency indemnity
(a) If a Finance Party receives an amount in respect of any Obligor's
liability under the Finance Documents or if that liability is converted
into a claim, proof, judgement or order in a currency other than the
currency (the "contractual currency") in which the amount is expressed to
be payable under the relevant Finance Document:
(i) the Company shall indemnify that Finance Party as an independent
obligation against any loss or liability arising out of or as a
result of the conversion;
(ii) if the amount received by that Finance Party, when converted into
the contractual currency at a market rate (as certified in good
faith by the Finance Party to the Obligors' Agent) in the usual
course of its business is less than the amount owed in the
contractual currency, the Company shall forthwith on demand pay to
that Finance Party an amount in the contractual currency equal to
the deficit; and
(iii) the Company shall forthwith on demand pay to the Finance Party
concern (which demand shall be accompanied by a certificate from the
Finance Party setting out calculations in reasonable detail relating
to the amount claimed) any exchange costs and taxes payable in
connection with any such conversion.
(b) The Company waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which
it is expressed to be payable
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25.2 Other indemnities
The Company shall forthwith on demand indemnify each Finance Party (which
demand shall be accompanied by a certificate from the Finance Party
setting out calculations in reasonable detail relating to the amount
claimed) against any loss or liability which that Finance Party incurs as
a consequence of:
(a) the occurrence of any Potential Event of Default or Event of Default;
(b) a change in currency of a country or the operation of Clause 27.3
(Change in currency), Clause 20.17 (Acceleration) or Clause 31 (Pro
Rata Sharing);
(c) the amount of any Tax Payment reimbursed by any Finance Party to an
Obligor being subsequently clawed back directly or indirectly from
any such Finance Party;
(d) any payment of principal or an overdue amount being received from any
source otherwise than on the last day of a relevant Interest Period
or Designated Interest Period (as defined in Clause 9.3 (Default
interest)) relative to the amount so received (other than in
connection with a prepayment pursuant to Clause 7.3(a) (Mandatory
prepayment and cancellation)), and the Company's liability under this
paragraph (d) in respect of a payment of principal is limited to an
amount equal to the amount (if any) by which (i) the additional
interest which would have been payable on the principal repaid or
prepaid on the last day of the relevant Interest Period (had it not
been repaid or prepaid), exceeds (ii) the amount of interest
calculated at the Reinvestment Rate which would be received in
respect of a deposit equal to, and in the currency of, that principal
amount for a period comparable to the Reinvestment Period, and in
this paragraph (d):
"Reinvestment Rate"
in relation to a principal amount repaid or prepaid means
EURIBOR if that amount is denominated in Euro, PIBOR if that
amount is denominated in Sterling and LIBOR if that amount is
denominated in an Optional Currency other than Sterling;
(e) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment or (other than by reason of negligence or
default by that Finance Party) a Loan not being made after the
Obligors' Agent has delivered a Request; or
(f) complying with any request (including without limitation a request to
provide information) made by any court, judicial, administrative or
regulatory authority where such request would not have been made in
relation to that Finance Party but for this Agreement.
The Company's liability in each case (subject to paragraph (d) above)
includes any loss of margin or other loss or expense on account of funds
borrowed, contracted for or utilised to fund any amount payable under any
Finance Document, any amount repaid or prepaid or any Loan.
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26. EVIDENCE AND CALCULATIONS
26.1 Accounts
Accounts maintained by a Finance Party in connection with this Agreement
are (in the absence of manifest error) prima facie evidence of the matters
to which they relate.
26.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or amount
under the Finance Documents is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
26.3 Calculations
Interest and the fee payable under Clauses 22.1 (Commitment fee) accrue
from day to day and are calculated on the basis of the actual number of
days elapsed and a year of 360 days or, in the case of interest payable on
an amount denominated in Sterling or where market practice otherwise
dictates, 365 days.
27. AMENDMENTS AND WAIVERS
27.1 Procedure
(a) Subject to Clause 27.2, any term of the Finance Documents may be amended
and any breach or prospective breach waived, with the agreement of the
Obligors' Agent and the Majority Banks. The Agent may effect, on behalf of
any Finance Party, an amendment or waiver permitted under this Clause.
(b) The Agent shall promptly notify the other Parties of any amendment or
waiver effected paragraph (a) above, and any such amendment or waiver
shall be binding on all the Parties.
27.2 Exceptions
(a) An amendment or waiver which relates to any of the following may only be
effected if agreed by the Obligors' Agent, the Agent and each of the
Banks:
(i) the definition of "Majority Banks" in Clause 1.1 (Definitions);
(ii) an extension of the date for, or a decrease in an amount or a change
in the currency of, any payment to the Banks under the Finance
Documents (including the Margin and any fee payable under Clauses
22.1 (Commitment fee));
(iii) an increase in a Bank's Commitment or the extension of the Final
Maturity Date;
(iv) a term of a Finance Document which expressly requires the consent of
the Banks; or
(v) Clause 2.2 (Nature of Finance Party's rights and obligations),
Clause 21.15 (Resignation by the Agent), Clause 28.2 (Transfers by
the Obligors), Clause 28.3 (Transfers by Banks), Clause 31 (Pro Rata
Sharing) or this Clause 27.
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(b) An amendment or waiver which affects the rights and/or obligations of the
Agent may not be effected without the agreement of the Agent.
27.3 Change of currency
(a) Unless otherwise prohibited by law, if more than one currency or currency
unit are at the same time recognised by the central bank of any country as
the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that country
shall be translated into, or paid in, the currency or currency unit
of that country designated by the Bank; and
(ii) any translation from one currency or currency unit to another shall
be at the official rate of exchange recognised by the central bank
for the conversion of that currency or currency unit into the other,
rounded up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement will, to
the extent the Agent (acting reasonably) specifies to be necessary, be
amended (after prior consultation with the Obligors' Agent) to comply with
any generally accepted conventions and market practice in the relevant
interbank market and otherwise to reflect the change in currency.
27.4 Waivers and remedies cumulative
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
28. CHANGES TO THE PARTIES
28.1 Binding force
This Agreement shall be binding upon and shall inure to the benefit of
each Obligor and each Finance Party and their respective permitted
successors and assigns.
28.2 Transfers by the Obligors
No Obligor may not assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Finance Documents.
28.3 Transfers by Banks
(a) A Bank (the "Existing Bank") may, subject to paragraph (b) below, at any
time novate any of its Commitment and/or rights and/or obligations under
this Agreement to another bank or financial institution (etablissement de
credit) (the "New Bank").
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(h) The benefit of each Guarantee is expressly reserved in accordance with
Articles 1278 and 1281 of the French Civil Code and each Guarantee shall
benefit each New Bank with the same ranking as prior to the novation.
28.4 Procedure for novations
(a) A novation is effected if:
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate, substantially in the form of Schedule 4 (a
"Novation Certificate"); and
(ii) either:
(A) the Agent executes it; or
(B) the Agent and the Obligors' Agent execute it.
(b) To the extent that they are expressed to be the subject of the novation in
the Novation Certificate:
(i) the Existing Bank and the other Parties (the "existing Parties")
will be released from their obligations to each other (the
"discharged obligations");
(ii) the New Bank and the existing Parties will assume obligations
towards each other which differ from the discharged obligations only
insofar as they are owed to or assumed by the New Bank instead of
the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties and
vice versa (the "discharged rights") will be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights against
each other which differ from the discharged rights only insofar as
they are exercisable by or against the New Bank instead of the
Existing Bank,
all on the date of execution of the Novation Certificate by the Agent or,
if later, the date specified in the Novation Certificate.
28.5 Mandat
Each Obligor and each other Party (other than the Existing Bank and the
New Bank) grants an irrevocable mandate (mandat irrevocable) to the Agent
to sign on its behalf and in its name each Novation Certificate, provided
that where the consent of the Obligors' Agent is required for the novation
concerned, the Agent may not execute a duly completed Novation Certificate
on behalf of the Obligors before the consent of the Obligors' Agent is
given or deemed to have been given under Clause 28.3(b)(ii)).
28.6 Additional Costs
If any assignment, transfer or novation by a Bank would, at the time
thereof, result in additional amounts becoming payable by an Obligor under
Clause 12 (Taxes) or amounts becoming payable by the Company under Clause
14.1 (Increased Costs), then, unless the
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(b) (i) A transfer of part of a Commitment must be in a minimum amount of
(Euro)10,000,000 and an integral multiple of (Euro)5,000,000; and
(ii) the prior consent of the Obligors' Agent is required for any such
assignment, transfer or novation, unless the New Bank is another
Bank or an Affiliate of a Bank or if an Event of Default has
occurred and is continuing under any of Clause 20.2 (Nonpayment) or
Clauses 20.6 (Insolvency) to 20.10 (Analogous proceedings)
inclusive. However, the prior consent of the Obligors' Agent must
not be unreasonably withheld or delayed and will be deemed to have
been given if, within one month of receipt by the Obligors' Agent of
an application for consent, it has not been expressly refused in
writing.
(c) On each occasion an Existing Bank novates any of its Commitment and/or
rights and/or obligations under this Agreement, the New Bank shall, on the
date the novation takes effect pay to the Agent for its own account a fee
of (Euro)1,500.
(d) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or sufficiency
of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance Document; or
(iii) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document.
(e) Each New Bank confirms to the Existing Bank and the other Finance Parties
that it:
(i) has made its own independent investigation and assessment of the
financial condition and affairs of the Obligors and their related
entities in connection with its participation in this Agreement and
has not relied exclusively on any information provided to it by the
Existing Bank in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Obligors and their related entities while
any amount is or may be outstanding under this Agreement or any
Commitment is in force.
(f) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the Commitment and/or
rights and/or obligations assigned, transferred or novated under
this Clause; or
(ii) support any losses incurred by the New Bank by reason of the non-
performance by any Obligor of its obligations under the Finance
Documents or otherwise.
(g) Any reference in this Agreement to a Bank includes a New Bank but excludes
a Bank if no amount is or may be owed to or by it under this Agreement and
its Commitment has been cancelled or reduced to nil.
54
assignment, transfer or novation was being effected pursuant to Clause 16
(Mitigation), that Obligor shall be required to pay such additional
amounts under Clause 12 and the Company shall be required to such amounts
under Clause 14. 1, in each case to or for the account of the assignee,
transferee or New Bank only to the extent that it would have been required
to pay the same had there been no such assignment, transfer or novation.
28.7 Additional Borrowers
(a) If the Company wishes another member of the Group to become an Additional
Borrower, then the Obligors' Agent shall notify the Agent of that fact and
of the identity of the relevant member of the Group.
(b) If the Agent consents (such consent not to be unreasonably (in the opinion
of the Agent) withheld) to a member of the Group the subject of a
notification under paragraph (a) above becoming an Additional Borrower,
the Obligors' Agent may deliver to the Agent the documents listed in Part
II of Schedule 2.
(c) On delivery of a Borrower Accession Agreement, executed by the relevant
member of the Group and the Obligors' Agent, the member of the Group
concerned will become an Additional Borrower. However, the Obligors' Agent
may not submit a Request in respect of that Borrower until the Agent
confirms to the other Finance Parties and the Obligor's Agent that it has
received all the documents referred to in paragraph (a) above in form and
substance satisfactory to it.
(d) Delivery of a Borrower Accession Agreement, executed by the relevant
member of the Group and the Obligors' Agent, constitutes confirmation by
that member of the Group and the Obligors' Agent that the representations
and warranties set out in Clause 17 (Representations and warranties) to be
made by them on the date of the Borrower Accession Agreement are correct,
as if made by them with reference to the facts and circumstances then
existing.
28.8 Register
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
29. DISCLOSURE OF INFORMATION
A Bank may disclose to one of its Affiliates or any person with whom it is
proposing to enter, or has entered into, any kind of transfer,
participation or other agreement in relation to this Agreement:
(a) a copy of any Finance Document; and
(b) any information which that Bank has acquired under or in connection
with any Finance Document.
30. SET-OFF
Following the occurrence of an Event of Default, a Finance Party may set
off any matured, exigible or connexe obligation owed by any Obligor under
the Finance Documents (to the extent beneficially owned by that Finance
Party) against any matured, exigible or connexe obligation owed by that
Finance Party to any Obligor, regardless of the place of payment,
55
booking branch or currency of either obligation. If the obligations are in
different currencies, the Finance Party may convert either obligation at a
market rate of exchange in its usual course of business for the purpose of
the set-off. If either obligation is unliquidated or unascertained, the
Finance Party may set off in an amount estimated by it in good faith to be
the amount of that obligation.
31. PRO RATA SHARING
31.1 Redistribution
If any amount owing by any Obligor under the Finance Documents to a
Finance Party (the "recovering Finance Party") is discharged by payment,
set-off or any other manner other than through the Agent in accordance
with Clause 11 (Payments) (a "recovery"), then:
(a) the recovering Finance Party shall, within three Business Days,
notify details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of the
amount which the recovering Finance Party would have received had the
recovery been received by the Agent and distributed in accordance
with Clause 11 (Payments);
(c) subject to Clause 31.3, the recovering Finance Party shall, within
three Business Days of demand by the Agent, pay to the Agent an
amount (the "redistribution") equal to the excess;
(d) the Agent shall treat the redistribution as if it were a payment by
the Obligors under Clause 11 (Payments) and shall pay the
redistribution to the Finance Parties (other than the recovering
Finance Party) in accordance with Clause 11.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering Finance
Party will be subrogated to the portion of the claims paid under
paragraph (d) above and the relevant Obligor will owe the recovering
Finance Party a debt which is equal to the redistribution,
immediately payable and of the type originally discharged.
31. Reversal of redistribution
If under Clause 31.1:
(a) a recovering Finance Party must subsequently return a recovery, or an
amount measured by reference to a recovery, to an Obligor; and
(b) the recovering Finance Party has paid a redistribution in relation to
that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid to
that Finance Party together with interest on the amount to be returned to
the recovering Finance Party for the period whilst it held the re-
distribution. Thereupon, the subrogation in Clause 31.1(e) will operate in
reverse to the extent of the reimbursement.
56
31.3 Exceptions
(a) A recovering Finance Party need not pay a redistribution to the extent
that it would not, after the payment, have a valid claim against the
relevant Obligor in the amount of the redistribution pursuant to
Clause 31.1(e).
(b) A recovering Finance Party is not obliged to share with any other Finance
Party any amount which the recovering Finance Party has received or
recovered as a result of taking legal proceedings, if the other Finance
party had an opportunity to participate in those legal proceedings but did
not do so or did not take separate legal proceedings,
32. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other
provision of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or any
other provision of the Finance Documents.
33. NOTICES
33.1 Giving of notices
All notices or other communications under or in connection with the
Finance Documents shall be given in writing and, unless otherwise stated,
may be made by letter or facsimile. Any such notice will be deemed to be
given as follows:
(a) if by letter, when delivered personally or on actual receipt; and
(b) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
33.2 Addresses for notices
(a) The address and facsimile number of each Party (other than the Obligors'
Agent and the Agent) for all notices under or in connection with the
Finance Documents:
(i) those notified by that Party for this purpose to the Agent on or
before the date it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent by not
less than five Business Day's notice.
(b) The address and facsimile number of the Obligors' Agent are:
Rhodia
57
26 quai Alphonse le Gallo,
92512 Boulogne Billancourt
Cedex
Fax number: 00 33 (0)1 55 38 44 71 / 21
Attention: Chief Financial Officer and General Counsel
or such other as the Obligors' Agent may notify to the Agent by not less
than five Business Day's notice.
(c) The address and facsimile number of the Agent are:
(i) for Requests:
*
*75002 Paris
France
Fax number: +33 (O)l *
Attention: Martine, *
or such other as the Agent may notify to the Obligors' Agent by not
less than five Business Day's notice.
(ii) for all communications other than Requests
*
*75002 Paris
France
Fax number: +33 (O)l *
Attention: Frederic *
or such other as the Agent may notify to the other Parties by not
less than five Business Day's notice.
(d) All notices from or to the Obligors' Agent shall be sent through the
Agent.
(e) The Obligors' Agent shall notify the Agent of any change in the identity
of the individual or individuals authorised to sign and despatch Requests
on behalf of the Obligors' Agent and provide the Agent with evidence
satisfactory to it as to the authority of any newly named individual or
individuals to do so.
(f) The Agent shall, promptly upon request from any Party, give to that Party
the address, or facsimile number of any other Party applicable at the time
for the purposes of this Clause.
34. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall be
in English.
58
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English, accompanied by an English translation and, in
this case, the English translation shall prevail unless the
document is a statutory or other official document.
35. JURISDICTION
35.1 Submission
For the benefit of each Finance Party, the Obligors agree that any court
within the jurisdiction of the Cour d'Appel de Paris shall have
jurisdiction to settle any disputes in connection with any Finance
Document and accordingly submits to the jurisdiction of such courts.
35.2 Non-exclusivity
Nothing in this Clause 35 limits the right of a Finance Party to bring
proceedings against any Obligor in connection with any Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction
and the Obligors waive any objection to such court or jurisdiction on
grounds of inconvenient forum or otherwise as regards proceedings in
connection with a Finance Document.
36. WAIVER OF IMMUNITY
Each Obligor irrevocably and unconditionally:
(a) agrees that if a Finance Party brings proceedings against it or
its assets in relation to a Finance Document, no immunity from
those proceedings (including, without limitation, suit,
attachment prior to judgement, other attachment, the obtaining
of judgement, execution or other enforcement) will be claimed by
or on behalf of itself or with respect to its assets;
(b) waives any such right of immunity which it or its assets now has
or may subsequently acquire; and
(c) consents generally in respect of any such proceedings to the
giving of any relief or the issue of any process in connection
with those proceedings, including, without limitation, the
making, enforcement or execution against any assets whatsoever
(irrespective of its use or intended use) of any order or
judgement which may be made or given in those proceedings.
59
37. GOVERNING LAW
This Agreement is governed by French law.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
60
SCHEDULE 1
BANKS AND COMMITMENTS
Banks Commitments
(Euros)
* 100,000,000
-----------------
Total Commitments (Euro)100,000,000
-----------------
61
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
PART I
TO BE DELIVERED BEFORE THE FIRST LOAN
1. A copy of the statuts of the Company and a K-bis extract from the Trade
and Companies Registry relating to the Company dated no more than one
month prior to the date of this Agreement.
2. Evidence satisfactory to the Agent of the authority of a specified
individual or individuals:
(a) to sign this Agreement on behalf of the Company; and
(b) to sign and despatch Requests on behalf of the Obligors' Agent.
3. A specimen of the signature of each person authorised to sign this
Agreement on behalf the Company and to sign and despatch each Request on
behalf of the Obligors' Agent.
4. A list identifying each Subsidiary of the Company which is a Material
Subsidiary within the meaning of paragraph (a) of the definition
thereof, as determined from the Original Group Accounts.
5. A certificate signed by the chief financial officer of the Company
setting out in reasonable detail computations establishing compliance
with the financial covenants in Clause 19 (Financial covenants) as at
31st December, 1998.
6. A copy of any other authorisation or other document or opinion which the
Agent in good faith considers to be necessary in connection with the
entry into and performance of, and the transactions contemplated by, any
Finance Document or for the validity and enforceability of any Finance
Document.
7. A certificate of an authorised signatory of the Company certifying that
each copy document delivered under this Schedule 2 is correct, complete
and in full force and effect as at a date no earlier than the date of
this Agreement.
8. A legal opinion of the Company's internal general counsel, addressed to
the Finance Parties, relating to this Agreement and in form and
substance satisfactory to the Agent.
62
PART II
TO BE DELIVERED BY AN ADDITIONAL BORROWER
1. A Borrower Accession Agreement duly executed by the Additional Borrower
and the Obligors' Agent.
2. A copy of the constitutional documents of the Additional Borrower
(being, in relation to an Additional Borrower that is incorporated in
France, the statuts of the Additional Borrower and a K-bis extract from
the Trade and Companies Registry relating to the Additional Borrower
dated no more than one month prior to the date of the Borrower Accession
Agreement).
3. If the Agent reasonably requests, a copy of resolutions of the board of
directors of the Additional Borrower approving the terms of, and the
transactions contemplated by the, Finance Documents and the execution by
the Additional Borrower of the Borrower Accession Agreement.
4. A Guarantee (caution solidaire), substantially in the form of Schedule 7
in respect of the obligations of the Additional Borrower duly executed
by the Company.
5. (a) either a certificate of an authorised signatory of the Company
certifying that the constitutional documents (statuts) of the Company
most recently delivered to the Agent under this Agreement remain in full
force and effect and have not been amended or, if those constitutional
documents have been amended, a copy of the constitutional documents
(statuts) of the Company then in force and (b) a K-bis extract from the
Trade and Companies Registry relating to the Company dated no more than
one month prior to the date of the Guarantee delivered under paragraph 4
above.
6. A copy of resolutions of the board of directors of the Company approving
the terms of, and the transactions contemplated by the Guarantee
delivered under paragraph 4 above and the execution by the Company of
that Guarantee.
7. Evidence satisfactory to the Agent of the authority of a specified
individual or individuals to sign the Borrower Accession Agreement on
behalf of the Additional Borrower and the Guarantee delivered under
paragraph 4 above on behalf of the Company.
8. A specimen of the signature of each person authorised to sign the
Borrower Accession Agreement on behalf of the Additional Borrower and
the Guarantee delivered under paragraph 4 above on behalf of the
Company.
9. A copy of any other authorisation or other document or opinion which the
Agent in good faith considers to be necessary in connection with the
Additional Borrower's entry into and performance of, and the
transactions contemplated by, any Finance Document or the Company's
entry into and performance of, and the transactions contemplated by, the
Guarantee delivered under paragraph 4 above or for the validity and
enforceability of any Finance Document against the Additional Borrower
or the Guarantee delivered under paragraph 4 above against the Company.
10. If available, a copy of the latest audited accounts of the Additional
Borrower.
11. A certificate of an authorised signatory of:
63
(a) the Additional Borrower certifying that each copy document
specified in Part II of this Schedule 2 relating to it is
correct, complete and in full force and effect as at a date no
earlier than the date of the Borrower Accession Agreement; and
(b) the Company certifying that each copy document specified in Part
II of this Schedule 2 relating to it is correct, complete and in
full force and effect as at a date no earlier than the date of
the Guarantee delivered under paragraph 4 above.
12. A legal opinion of the Company's internal general counsel, addressed to
the Finance Parties and in form and substance satisfactory to the Agent,
relating to the Borrower Accession Agreement and the Guarantee delivered
under paragraph 4 above.
64
SCHEDULE 3
FORM OF REQUEST
To: [ * ] as Agent
From: RHODIA
Date: [ ]
RHODIA - (Euro)100,000,000 Revolving Credit Facility dated 21st January, 2000
1. We request the making of a Loan as follows:
(a) Borrower: [ ]
(b) Drawdown Date: [ ]
(c) Original Euro Amount: (Euro)[ ]
(d) Currency: [ ]
(e) Interest Period: [ ]
(f) Payment instructions: [ ]
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Request, and
repeat, as if set out in this Request, those Representations and
Warranties contained in Clause 17 (Representations and Warranties) which
are to be repeated on the date of this Request pursuant to
Clause 17.17(b).
By:
RHODIA
Authorised Signatory
65
SCHEDULE 4
FORM OF ACCESSION DOCUMENTS
PART I
FORM OF NOVATION CERTIFICATE
To: [ * ] as Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
RHODIA - (Euro)100,000,000 Revolving Credit Facility dated 21st January, 2000
We refer to Clause 28.4 (Procedure for novations).
1. We [ ] (the "Existing Bank") and [ ] (the
"New Bank") agree to the Existing Bank and the New Bank novating the
Existing Bank's Commitment (or part) and/or rights and obligations
referred to in the Schedule in accordance with Clause 28.4 (Procedure
for novations).
2. The specified date for the purposes of Clause 28.4(b) (Procedure for
novations) is [date of novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 33.2 (Addresses for notices) are set out in the
Schedule.
4. It is agreed that the rights and privileges of the Existing Bank in
relation to the Commitment and/or rights and obligations referred to in
the Schedule are expressly transferred to the New Bank. The Guarantor
agrees that benefit of each Guarantee is expressly reserved in
accordance with Articles 1278 and 1281 of the French Civil Code and each
Guarantee shall benefit each New Bank with the same ranking as prior to
the novation.
5. This Novation Certificate is governed by French law.
THE SCHEDULE
Commitment/Rights and obligations to be novated
[Insert relevant details]
[New Bank]
[Facility Office Address for notices]
Execution
[Existing Bank] [New Bank]
By: By:
66
Date: Date:
[AGENT]
(for itself and on behalf of the
Obligors and each Bank other than
the New Bank and the Existing Bank)
By:
Date:
67
PART II
FORM OF BORROWER ACCESSION AGREEMENT
To: [AGENT] as Agent
From: [PROPOSED BORROWER] and RHODIA
Date: [ ]
RHODIA - (Euro)100,000,000 Revolving Credit Facility dated 21st January, 2000
(the "Credit Agreement")
We refer to Clause 28.7 (Additional Borrowers) of the Credit Agreement.
We, [name of company] of [ ] agree to become an Additional Borrower and to
be bound by the terms of the Credit Agreement as an Additional Borrower in
accordance with Clause 28.7 (Additional Borrowers).
Our address for notices for the purposes of Clause 33.2 (Addresses for notices)
is:
[
]
This Borrower Accession Agreement is governed by French law.
By:
[PROPOSED BORROWER]
Authorised Signatory
By:
RHODIA
Authorised Signatory
68
SCHEDULE 5
EFFECTIVE GLOBAL RATE LETTER
To: Rhodia
[Seat, number and address]
Date: [ ], 2000
Dear Sirs,
Subject: (Euro)100,000,000 Revolving Credit Facility dated 21st January, 2000
(the "Agreement")
We refer to the Agreement between your company as borrower and guarantor, the
Borrowers and the Banks (each as defined in the Agreement) and * as Agent.
Term defined in the Agreement shall bear the same meaning in this letter unless
otherwise defined in this letter.
We confirm that:
1. this is the letter referred to in Clause 9.5 (Taux Effectif Global) of
the Agreement;
2. the applicable effective global rate ("taux effectif global") referred
to in Clause 9.5 (Taux Effectif Global), for a Loan denominated in Euro,
calculated on the basis of a 360 day year, is:
. for an Interest Period of one month and at EURIBOR rate of [ ]%
per annum, [ ]%
. for an interest Period of three months and at EURIBOR rate of
[ ]% per annum, [ ]%
. for an Interest Period of six months and at EURIBOR rate of [ ]%
per annum, [ ]%
The above rates are given on an, indicative basis and for information
only, in order to comply with the provisions of article L.313-1 to
L.313-6 of the French Code de la Consommation on the basis (i) that
drawdown for the full amount of the facility has been made in Euros on
[date], (ii) that the EURIBOR rate, expressed as an annual rate, is as
fixed on [DATE], (iii) [that the Margin is the [maximum] applicable and
(iv)]of the commissions and various fees payable by you on the terms of
the Agreement.
We should be grateful if you would confirm your acceptance of the terms of this
letter by signing and returning to us the enclosed copy.
This letter is designated a Finance Document and forms an integral part of the
Agreement.
Yours faithfully,
69
______________________________
* as Agent
We agree to the above.
______________________________
Rhodia
70
SCHEDULE 6
FINANCIAL COVENANT COMPLIANCE CERTIFICATE
To: [AGENT)
From: [RHODIA'S CHIEF FINANCIAL OFFICER]
[DATE]
Dear Sirs
RHODIA - (Euro)100,000,000 Revolving Credit Facility dated 21st January, 2000
(the "Credit Agreement")
I refer to the Credit Agreement and in particular to Clause 19.2 (Minimum
Consolidated Net Worth), Clause 19.3 (Ratio of EBITDA to Net Financial Expenses)
and Clause 7.3(b)(ii) thereof. Terms defined in the Credit Agreement shall have
the same meaning when used in this certificate.
I certify as follows:
1. As at the Testing Date 31st December, [insert year]:
(a) the Company's Minimum Consolidated Net Worth was [ ];
(b) the Company's EBITDA was [ ];
(c) the Company's Consolidated Net Indebtedness was [ ]; and
(d) the Company's Net Financial Expenses were [ ].
Accordingly as at the Testing Date referred to above:
(i) the ratio of the Company's EBITDA to its Net Financial Expenses
was: [ ]; and
(ii) the ratio of the Company's Consolidated Net Indebtedness to
EBITDA was: [ ].
______________________________
Chief Financial Officer
Rhodia
71
SCHEDULE 7
FORM OF GUARANTEE ("CAUTION SOLIDAIRE")
To: * , for itself
and as Agent for the
Finance Parties under
the Loan Agreement
referred to below,
and to such Finance Parties
RHODIA - (Euro)100,000,000 Revolving Credit Facility dated 21st January, 2000,
between Rhodia as borrower, the Borrowers and Banks as defined therein and
* as Agent (the "Loan Agreement")
This guarantee is given by RHODIA, a company incorporated as a French societe
anonyme under the Laws of France, the registered office of which is at 26 quai
Alphonse le Gallo, 92512 Boulogne Billancourt Cedex, registered with the Trade
and Companies Registry (Registre du Commerce et des Societes) of Nanterre under
the number B 352-170-161 (the "Guarantor").
Reference is made to the Loan Agreement and to the Borrower Accession Agreement
dated [dated] executed by [insert name of Additional Borrower] "the Borrower")
and ourselves as Obligors' Agent. Terms defined in the Loan Agreement shall have
the same meaning when used in this Guarantee unless otherwise defined herein.
1. The Guarantor irrevocably, unconditionally, and jointly and severally
guarantees, as "caution solidaire", to, and for the benefit of, each Finance
Party from time to time, the payment and repayment, by the Borrower, of any
and all sums of principle, interest, fees, expenses, costs and ancillary
charges which are or may become due from the Borrower under or in connection
with the Finance Documents. The Guarantor agrees to make such payments or
repayments on the dates and in the currencies in which such sums are or may
become due in accordance with the provisions of the Finance Documents,
whether on the contractual date or earlier in the case of a default for any
reason whatsoever. Accordingly, the Guarantor undertakes to make a payment
or repayment immediately to * as Agent on behalf of the Finance
Parties, of any sums which the Borrower does not pay when due under or in
connection with the Finance Documents.
2. Without prejudice to Clause 11 (Payments) of the Loan Agreement, the
Guarantor agrees to make all payments or repayments which are or may become
due under this Guarantee in the place of payment, without any deduction or
withholding for or on account of any taxes, duties, expenses, costs or other
charges whatsoever, present or future and otherwise in accordance with
Clause 11 of the Loan Agreement.
72
3. The Guarantor expressly agrees that this Guarantee will continue in full
force and effect notwithstanding any extension of time, renewal, amendment
or modification of any of the clauses, terms or conditions of the Finance
Documents, and the Guarantor expressly agrees to waive and waives any rights
which it may have to claim that any such event operates as a novation so as
to release the Guarantor from its obligations under this Guarantee or the
Loan Agreement.
4. The Guarantor expressly waives and renounces any rights which it may have to
claim a novation and release under this Guarantee or the Loan Agreement
because of a change in the legal form or personality of the Borrower in the
future or any merger or other restructuring (fusion, scission ou apport
partiel d'actif) of or involving the Borrower with another company even if
this leads to the establishment of a new legal entity.
5. The Guarantor agrees that it will continue to be bound by the terms of this
Guarantee notwithstanding any merger or other restructuring (fusion,
scission or apport partiel d'actif) of any of the Finance Parties with
another company and notwithstanding any modification in the legal form of
personality of any of the Finance Parties and this, even if it leads to the
creation of a new legal entity or person. The benefit of this Guarantee will
extend automatically and as a matter of law of each new Finance Party,
assignee or transferee of, or successor to, the rights and obligations of
any Finance Party according to the terms of the Finance Documents.
6. The Guarantor expressly renounces and waives any right which it may have to
request the Finance Parties (or any of them) to make demand first on the
Borrower or any other party ("benefice de discussion") and to make a demand
on, enforce or claim any share in any other guarantee or security ("benefice
de division") both with respect to any other principal debtors and/or co-
obligors. The Guarantor undertakes that, until all amounts which may become
due and payable by the Borrower under or in connection with the Finance
Documents have been irrevocably paid in full, it shall not be or seek to be
subrogated or take any measures which could result in it competing with the
Finance Parties (or any of them).
7. The Guarantor's obligations as a "caution solidaire" will continue in full
force and effect until all sums due or which may become due by the Borrower
under or in connection with the Finance Documents have been irrevocably paid
in full and discharged.
8. This Guarantee is governed by French law.
Made in Paris [ ], 1998
By: RHODIA
73
SIGNATORIES
Company
RHODIA
By: /s/ illegible
*
By: /s/ illegible /s/ illegible
illegible illegible
Agent
*
By: /s/ illegible /s/ illegible