Exhibit (d)(14)
EUROS 150,000,000-
MULTICURRENCY REVOLVING CREDIT FACILITY
BETWEEN
RHODIA
as Initial Borrower
RHODIA
as Guarantor
and
*
as Initial Bank
- ----------------
* 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
1. Interpretation
2. The Facility
3. Purpose
4. Conditions Precedent
5. Drawdown
6. Repayment
7. Prepayment and Cancellation
8. Interest Periods
9. Interest
10. Optional Currencies
11. Payments
12. Taxes
13. Market disruption
14. Increased costs
15. Illegality
16. Additional Borrowers and Additional Banks
17. Representations and Warranties
18. Undertakings
19. Default
20. Commitment fees
21. Expenses
22. Stamp duties
23. Indemnities
24. Evidence and Calculations
25. Set-off
26. Severability
27. Counterparts
28. Notices
29. Language
30. Governing law
Schedules
1.A Accession Agreement (Borrower)
1.B Conditions precedent for the Additional Borrower
2. Accession Agreement (Additional Bank)
3. Conditions Precedent Documents
4. Allocations and Administrative details
5. Form of Compliance Certificate
6. Form of Request
7. Guarantee
THIS AGREEMENT is dated January 3rd, 2000 between:
(1) RHODIA, a French societe anonyme,
Quai Paul Doumer, 25-92408 COURBEVOIE (FRANCE)
as borrower ("the Initial Borrower") and as guarantor (the "Guarantor");
(2) *
lender (the "Initial Bank")
IT IS AGREED AS FOLLOWS:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
"Accession Agreement"
means an agreement as proposed in Schedule 1 to add an Additional Bank or
an Additional Borrower.
"Additional Bank"
means any subsidiary (including their branches) of the Initial Bank
becoming a party to the facility agreement after execution of an Accession
Agreement.
"Additional Borrower"
means any subsidiary of the Initial Borrower becoming party to the
facility agreement in accordance with article 30 thereof and after
execution of an Accession Agreement.
"Advance"
means any and each of the:
* Tranche 1 Advance: an advance made available to a Borrower by a Bank
under the Tranche 1 Facility;
* Tranche 2 Advance: an advance made available to a Borrower by a Bank
under the Tranche 2 Facility.
"Available Facility Amount"
means:
* when designated Tranche 1, the amount of the Tranche 1 Facility Amount
less the Original EUR Amount of the then outstanding Tranche 1 Advances;
* when designated Tranche 2, the amount of the Tranche 2 Facility Amount
less the Original EUR Amount of the then outstanding Tranche 2 Advances;
"Banks"
means the Initial Bank and the Additional Banks.
"Bank's Spot Rate of Exchange"
means the Bank's spot rate of exchange for the purchase of the relevant Optional
Currency in the Brussels or London foreign exchange market at or about 11:00
a.m. (local time) on a particular day.
"Borrowers"
means the Initial Borrower and the Additional Borrowers
"Business Day"
means a day (other than a Saturday or a Sunday) on which:
. in relation to a transaction involving a payment in an Optional Currency,
banks are open for business in the principle financial centre of the country
of that Optional Currency;
. in relation to a payment in EUR, the TARGET system is operating;
. in relation to any other matter (a.o. notices to the Banks,...), banks are
open for business in the country of the Facility Office of the relevant Bank
and in the country of the relevant Borrower.
"CHF" or "Swiss franc(s)"
means the lawful currency of Switzerland.
"Consolidated Net Worth"
means the difference between (i) total liabilities and total stockholders equity
and (ii) the sum of total current liabilities, long term debt (including
participating loans), other long term liabilities and mandatorily redeemable
partnership interests (if any) as each of the foregoing amounts shall be
determined from the items so described in the consolidated balance sheet of the
Group included in the annual consolidated accounts most recently delivered by
RHODIA to the Banks.
For the avoidance of doubt, on the basis of the Original Group Accounts,
Consolidated Net Worth is amounting to FRF. 13.973.000.000-.
"Commitment Period"
means any and each of the:
. Tranche 1 Commitment Period: the period from the date of this Agreement to the
Tranche 1 Final Maturity Date (both dates inclusive);
. Tranche 2 Commitment Period: the period from the date of this Agreement to the
Tranch 2 Final Maturity Date (both dates inclusive).
"Default"
means an Event of Default or an event which, with the giving of notice, lapse of
any period of time, in each case under the Agreement, would constitute an Event
of Default under the Agreement and which is not capable of being cured without
material adverse effect on the Obligers.
"Drawdown Date"
means the first day of an Advance.
EBITDA"
(after cash impact of provisions) means:
Operating Income
. plus: Depreciation and amortization of assets
. plus: Increase in other long term provisions (or minus decrease in other
long term provisions, if any).
Operating Income
means: net sales, minus operating expenses. Operating expenses are production
costs and expenses, administrative and selling expenses, research and
development expenses, additional goodwill amortization (if any), provision for
restructuring and environmental costs.
Depreciation and amortization of assets includes:
- - amortization of acquisition goodwill and equity goodwill in net income of
affiliated companies,
- - amortization of patents, licences, trade-marks and software,
- - amortization of other intangible assets,
- - depreciation of land, buildings and other tangible assets,
- - additional goodwill amortization (if any)
- - investments allowance.
Increase (or decrease, if any) in other long term provisions comprises:
- - change in provisions for retirement
- - change in provisions for restructuring
- - change in provisions for other long term risks and liabilities.
as each of the foregoing amounts shall be determined from the items so described
in the consolidated statements of operations of the Group and in the
consolidated statements of cash flows, included in the annual consolidated
accounts most recently delivered by RHODIA to the Banks.
For the avoidance of doubt, on the basis of the Original Group Accounts, EBITDA
is amounting to FRF 4,873,000,000-.
"EURIBOR"
means, in relation to any period, the rate per annum offered in the euro
interbank market for deposits in euros for such period, as reported on page 248
of the Telerate screen or, in case of unavailability thereof, on the EURIBOR 01
page of the Reuters screen (or any successor to such pages or screens) at or
about 11:00 am (Brussels time) on the Interest Determination Date or, if such
rate shall not be so reported, the arithmetic mean (rounded upwards, as the case
may be, to the nearest 1/32%) of the rates offered to prime banks by the
Reference Banks for deposits in euros for such period at or about 11:00 am
(Brussels time) on the Interest Determination Date.
"EUR" or "euro(s)"
means the single currency of the European Union.
"Event of Default"
means an event specified as such in Clause 19.1 (Events of Default).
"Facility"
means each and any of:
the Tranche 1 Facility: a multicurrency revolving facility granted to the
Borrowers in this agreement and referred to in Clause 2.1 (a);
the Tranche 2 Facility: a multicurrency revolving facility granted to the
Borrowers in this agreement and referred to in Clause 2.1 (a).
"Facility Amount"
means
. when designated Tranche 1: EUR 50,000,000,- or such amount to which the
Tranche 1 Facility has been reduced in accordance with the provisions of this
Agreement;
. when designated Tranche 2: EUR 100,000,000,- or such amount to which the
Tranche 2 Facility has been reduced in accordance with the provisions of this
Agreement
"Facility Office"
means the office identified in Schedule 4 or such other office as each Bank may
from time to time select.
"Final Maturity Date"
means
. when designated Tranche 1: the date falling 364 days from the date of this
Agreement;
. when designated Tranche 2: the date falling on the fifth anniversary of the
date of this Agreement.
"Financial Indebtedness"
means:
(i) any indebtedness for monies borrowed;
(ii) any indebtedness (actual or contingent) under a guarantee, security,
indemnity or other commitment designed to protect any creditor against
loss in respect of any financial indebtedness of any third party.
(iii) any indebtedness under any acceptance credit;
(iv) any indebtedness under any debenture, note, bill of exchange, bonds,
commercial paper, certificate of deposit or similar instrument on which
either of the Borrower is liable;
(v) any indebtedness for money owing in respect of any interest swap, or
currency swap, such indebtedness to be measured on a mark-to-market basis
at the relevant time and to include, vis-a-vis any particular
counterparty, application of the relevant ISDA netting procedures.
(vi) any payment obligations under any lease entered into for the purpose of
obtaining or raising finance.
"GBP" or "sterling"
means the lawful currency of the United Kingdom of great Britain and Northern
Ireland.
"Guarantor"
means Rhodia
"Guarantee"
means the guarantee to be issued in the form of Schedule 7 by the Guarantor in
accordance with article 16 of the Agreement and which is an integral part of
the Agreement.
"Group"
means Rhodia and its Subsidiaries.
"Initial Bank"
means* (including its branches).
"Initial Borrowers"
means Rhodia
"Interest Determination Date"
means, in relation to any period for which an interest rate is to be determined
hereunder, the day on which quotations would ordinarily be given by prime banks
in the relevant interbank market for deposits in the currency in relation to
which such rate is to be determined for delivery on the first day of that
period, provided that, if, for any such period, quotations would ordinarily
be given on more than one date, the Interest Determination Date for that
period shall be the last of those dates.
"Interest Period"
means each period determined in accordance with Clause 8 (Interest Periods)
"LIBOR"
means, in relation to any period and in any currency which is an Optional
Currency, the rate per annum offered in the London interbank market for
deposits in such currency for such period, as reported on pages 3740 or 3750 of
the Telerate screen or, in the case of unavailability thereof, on the LIBOR page
of the Reuter screen (or any successor to such pages or screens) at or about
11.00 am (London time) on the Interest Determination Date or, if such rate
shall not be so reported, the arithmetic mean (rounded upwards, as the case may
be, to the nearest 1/32%) of the rates offered to prime banks in London by the
Reference Banks for deposits in such currency for such period at or about 11.00
am (London time) on the Interest Determination Date.
"Margin"
means
.when designated Tranche 1: 0,20 per cent. per annum;
.when designated Tranche 2: 0,40 per cent. per annum.
"Material Adverse Change"
means any event on the assets or financial condition of the Group taken as a
whole having a material adverse effect in the reasonable opinion of the Initial
Bank on the ability of Rhodia to perform in a timely manner all or any of its
payment obligations under this Agreement (including the Guarantee).
"Material Subsidiary"
means any Subsidiary of Rhodia whose total net fixed assets represent not less
than 5 per cent of the total next fixed assets of the Group each as calculated
from the then latest consolidated accounts of the Group.
"Net Financial Expenses"
means Interest expenses minus Interest income.
- - Interest expenses includes: interests on financial debts and financing
operations (Interests on loans payable, on bank overdrafts, discounts of
notes receivable, amortization of redemption premium) after
capitalization of financial expenses related to the financing of certain
assets and incorporated in the purchase cost of such assets. Are
excluded: 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 spread or not 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 Group.
- - Interest income includes: interest income on financial assets (loans
receivable, debit balance on bank current accounts, etc.). Are excluded
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 for marketable securities, gains on
repurchase of shares, debentures or other securities issued by the Group.
as each of the foregoing amounts shall be determined from the items so described
in the consolidated statements of operations of the Group included in the annual
consolidated accounts most recently delivered by RHODIA to the Banks. For the
avoidance of doubt, on the basis of the Original Group Accounts, Net Financial
Expenses are amounting to FRF 640.000.000-.
"Obligor"
means any of the Borrowers or the Guarantor.
"Optional Currency"
means USD, JPY, CHF and GBP.
"Original Group Accounts"
means the audited consolidated accounts of the Group for the year ended 31st
December, 1998.
"Original EUR Amount" means:
(a) the principal amount of an Advance denominated in EUR; or
(b) the principal amount of an Advance denominated in an Optional Currency,
translated into EUR on the basis of the Bank's Spot Rate of Exchange on
the third Business Day prior to the Drawdown Date for that Advance.
"Party"
means a part to this Agreement.
"Reference Banks"
means
- in relation to the London interbank market, National Westminster Bank,
Lloyds TSB Bank, Citibank NA and Barclays Bank;
- in relation to the Euro interbank market, KBC, Banque Bruxelles
Lambert, ABN Amro and Societe Generale.
"Repayment Date"
means, with respect to an Advance, the last day of its Interest Period.
"Request"
means a request made by a Borrower for an Advance, substantially in the
form of Schedule 6.
"Security Interest"
means any mortgage, pledge, lien, charge, assignment, hypothecation or
security interest or any other agreement or arrangement having the effect
of conferring security.
"Subsidiary"
of an entity means:
a corporate body of which such entity owns directly or indirectly more
than fifty per cent (50%) of all voting rights.
"USD" or "US dollars"
means the lawful currency of the United States of America.
1.2 Construction
(a) in this Agreement, unless the contrary intention appears, a
reference to:
(i) "assets" includes properties, revenues and rights of every
description;
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, if there is no
numerically corresponding day in the month in which that period
ends, that period shall end on the last day in that calendar
month;
a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the force
of law) of any governmental body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(ii) a Clause or a Schedule is a reference to a clause of or a
schedule to this Agreement;
(iii) a pension includes its successors and assigns;
(b) Unless the contrary intention appears, a term used in any other
document or in any notice given under or in connection with any
document has the same meaning in that 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.
2. THE FACILITY
2.1 Facility
(a) Subject to the terms of this Agreement, the Banks grant to the
Borrowers a
. Tranche 1 Facility under which the Banks shall, when requested by a
Borrower, make Advances during the Tranche 1 Commitment Period to the
Borrowers up to an aggregate Original EUR Amount not exceeding the
Tranche 1 Facility Amount;
. Tranche 2 Facility under which the Banks shall, when requested by a
Borrower, make Advances during the Tranche 2 Commitment Period to the
Borrowers up to an aggregate Original EUR Amount not exceeding the
Tranche 2 Facility Amount.
(b) Without prejudice to paragraph (a), each Bank shall be obliged to make
Advances only
- to the Borrowers,
- up to the maximum amount allocated and
- through the Facility Office
set opposite its name in Schedule 4.
(c) The Guarantor may at any time ask the Initial Bank to change the
maximum amount allocated to any Borrower. If the Initial Bank agrees on
that request, an amendment to this Agreement will be signed between the
Guarantor (on behalf of itself and of the Borrowers) and the Initial
Bank (on behalf of itself and of the other Banks) and Schedule 4 will
be adapted.
The relevant Borrower and the relevant Bank will be informed
accordingly by the Initial Bank.
2.2 Nature of the Banks' rights and obligations
The obligations of the Banks under this facility are several. Failure of a
Bank to carry out those obligations does not relieve any Borrower or the
Guarantor of its obligations under this facility nor shall any other party
be liable for the failure by such Bank to perform its obligations
hereunder.
3. PURPOSE
(a) The Borrowers shall apply all the proceeds of the Advances towards
financing their general corporate purposes.
(b) Without affecting the obligations of either Obligor in any way, the
Banks are not bound to monitor or verify the application of any
Advance.
4. CONDITIONS PRECEDENT
4.1 Documentary conditions precedent
The obligations of the Banks to either Obligor under this Agreement are
subject to the condition precedent that the Initial Bank has received all
of the documents set out in Schedule 3 in form and substance satisfactory
to the Initial Bank.
4.2 Further conditions precedent
As long as the EUR 1,400,000,000 5-year revolving credit facility agreement
to be entered between Rhodia and a syndicate of banks is in full force and
effect, the obligations of the Banks to grant an Advance are subject to the
further conditions precedent that:
(a) on both the date of Request and the Drawdown Date for that Advance:
(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 Advance is made; and
(ii) no Default is outstanding or might result from the making of the
Advance; and
(iii) Clause 7.4 is not applicable; and
(b) on the Drawdown Date for that Advance, the Original EUR Amount of such
Advance does not exceed
. the Tranche 1 Available Facility Amount, if the Advance is a Tranche
1 Advance;
. the Tranche 2 Available Facility Amount, if the Advance is a Tranche
2 Advance.
As soon as the EUR 1,400,000,000 5-year revolving credit facility agreement
to be entered between Rhodia and a syndicate of banks is no longer in full
force and effect, the obligations of the Banks to grant an Advance are
subject to the further conditions precedent that:
(a) on both the date of the Request and the Drawdown Date for that Advance:
(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 Advance is made; and
(ii) no Default is outstanding or might result from the making of the
Advance; and
(iii) The Consolidated Net Worth calculated as at 31 December of the
financial year referred to in the audited consolidated accounts
of the Group most recently delivered by Rhodia S.A. to the Banks,
is greater than FRF 13,000,000,000-;
5. DRAWDOWN
5.1 Commitment Period
The Borrowers may borrow a Tranche 1 Advance during the Tranche 1
Commitment Period and/or a Tranche 2 Advance during the Tranche 2
Commitment Period if the relevant Bank receives, not later than 9 am on the
second Business Day prior to the Drawdown Date, a duly completed Request.
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 during the Commitment Period;
(b) only one currency is specified and the principal amount of the Advance
is:
(i) if the currency is EUR, a minimum of EUR 200.000,-; or
(ii) if the currency is an Optional Currency, a minimum of the
equivalent of EUR 200,000,- in that Optional Currency; or
(iii) such other amount as the relevant Bank and the relevant Borrower
may agree;
(c) the Interest Period selected complies with Clause 8 (Interest Periods)
and does not extend beyond the Tranche 1 Final Maturity Date if it
relates to a Tranche 1 Advance or beyond the Tranche 2 Final Maturity
Date if it relates to a Tranche 2 Advance.
and
(d) the payment instructions comply with Clause 11 (Payments).
Each Request, once delivered, shall be irrevocable.
5.3 Number of Requests and Drawdowns
No more than one Request may be delivered on the same day by the same
Borrower and no more than 10 Advances may be outstanding at the same time.
5.4 Making of an Advance
Subject to the terms of this Agreement, the relevant Bank shall make an
Advance available to the relevant Borrower on the relevant Drawdown Date.
6. REPAYMENT
Each Borrower shall repay each Advance made to him in full on its Repayment
Date.
7. PREPAYMENT, CANCELLATION AND MANDATORY PREPAYMENT
7.1 Cancellation
(a) The Tranche 1 Facility shall be cancelled in full on the Tranche 1
Final Maturity Date.
(b) The Tranche 2 Facility shall be cancelled in full on the Tranche 2
Final Maturity Date.
(c) The Borrowers may, by giving not less than 30 days' prior notice to the
Initial Bank, cancel the undrawn amount of the Tranche 1 Facility or of
the Tranche 2 Facility in whole or in part (but, if in part, in a
minimum amount of EUR 1,000,000,-).
7.2 Additional right of prepayment and cancellation
If:
(a) an Obligor is required to pay to a Bank any additional amounts under
Clause 12 (Taxes); or
(b) an Obligor is required to pay to Bank any amount under Clause 14
(Increased Costs), then, without prejudice to the obligations of
either Obligor under those Clauses, the Borrowers may, whilst the
circumstances continue, serve a notice of prepayment and cancellation
on the Initial Bank. On the date falling five Business Days after the
date of service of the notice:
(i) the Borrowers shall prepay the Banks together with all other
amounts payable by them under this Agreement; and
(ii) the undrawn part of the facility shall be cancelled
7.3 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid.
(c) No prepayments or cancellation is permitted except in accordance with
the express terms of this Agreement
(d) Any amount of an Advance which is repaid under Clause 6 (Repayment)
may subsequently be reborrowed in accordance with the terms of this
Agreement.
(e) No amount prepaid under this Agreement may subsequently be
re-borrowed. No amount of the facility cancelled under this Agreement
may subsequently be reinstated
7.4 Mandatory prepayment
If the following ratio is breached:
Adjusted EBITDA to Consolidated Net Indebtedness is at any time greater
than 3.5 on any Testing Date falling before 31 December 2001; and 3.0 on
any Testing Date falling on or after 31 December 2001,
then,
(i) the Initial Bank will issue a notice to the Borrowers stating that
the ratio is breached;
(ii) the Borrowers will be obliged to repay all outstanding Advances on
their Repayment Date;
(iii) no new Advances will be granted by the Banks;
(iv) any Advance the Repayment Date of which exceed the date which is two
months after the notice given by the Initial Bank will have to be
prepaid on the latter date together with all other amounts payable
by them to the Bank under this Agreement.
As soon as the EUR 1,400,000,000 5-year revolving credit facility agreement
to be entered between Rhodia and a syndicate of banks is no longer in full
force and effect, this Clause 7.4 will no longer be valid.
For the purpose of this Clause 7.4
"Adjusted EBITDA" means, in respect of a particular period, Rhodia's
consolidated EBITDA plus the sum of the EBITDA of each Relevant Entity (the
"Relevant Entity EBITDA") (all as determined from the accounts of that Relevant
Entity most recently delivered by Rhodia to the Initial Bank), provided that the
amount of such adjustment shall be pro rata to Rhodia's participation in the
capital of the Relevant Entity. For the avoidance of doubt, the adjustment to
EBITDA for the period ending on 31st December, 1999 shall reflect 100% of the
Relevant Entity EBITDA of Albright & Wilson plc, as determined from the audited
consolidated accounts of Albright & Wilson plc for its financial year ending on
that Testing Date;
"Consolidated Net Indebtedness" means, without double counting, the aggregate of
Rhodia's long term debt (including participating loans), bank overdrafts,
current portion of long term debt, guarantees given with respect to Financial
Indebtedness of third parties or joint ventures in which Rhodia is involved or
Rhodia's unconsolidated subsidiaries or otherwise and short term borrowings
minus the aggregate of cash, short term deposits, marketable securities, each as
calculated from the items so described in the consolidated accounts of Rhodia
most recently delivered by Rhodia to the Initial Bank). For illustrative
purposes only, Consolidated Net Indebtedness as shown in the Original Group
Accounts is FRF9,439,000,000;
"Testing Date" means 31st December of any year;
"Relevant Entity" means:
(a) any unconsolidated Subsidiary of Rhodia or joint venture entity, in each
case: (i) in which Rhodia owns or effectively controls, directly or
indirectly at least 20 per cent. of the capital and voting rights; and
(ii) in relation to the Financial Indebtedness of which Rhodia has given a
guarantee; and
(b) prior to the exercise of the Call Option, the Albright and Wilson Group;
and
---
"Call Option" means the option granted to Rhodia by Donauchem GmbH over all of
the issued and outstanding shares of common stock of Danube Chemicals
Acquisition Corporation".
8. INTEREST PERIODS
8.1 General
Each Advance shall have one Interest Period only.
8.2 Selection
(a) The Borrowers shall select an Interest Period for an Advance in the
relevant Request.
(b) Subject to the following provisions of this Clause 8, each Interest
Period will be one, two, three, six or twelve months or any other
period not exceeding 12 months as may have been agreed between the
relevant Bank and the relevant Borrower prior to the delivery of a
Request specifying such other period.
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 Coincidence with Repayment Dates
If an Interest Period of a Tranche 1 Advance would otherwise overrun the
Tranche 1 Final Maturity Date or if an Interest Period of a Tranche 2
Advance would otherwise overrun the Tranche 2 Final Maturity Date, it shall
be shortened so that it ends on the relevant Final Maturity Date.
9. INTEREST
9.1 Interest rate
The rate of interest on each Tranche 1 Advance or Tranche 2 Advance, as the
case may be, is the rate per annum determined by the relevant Bank to be
the aggregate of:
(a) the Tranche 1 Margin or Tranche 2 Margin, as the case may be;
(b) EURIBOR for the EUR or LIBOR for the other currencies;
9.2 Due dates
Except as otherwise provided in this Agreement, accrued interest on an
Advance is payable by the relevant Borrower on the last day of the Interest
Period for that Advance and also, if the Interest Period is longer than six
months, on the expiry of each period of six months after the first day of
that Interest Period.
9.3 Default interest
If an Obligor fails to pay any amount payable by it under this
Agreement, it shall forthwith on demand by the relevant Bank pay
interest on the overdue amount from the due date up to the date of
actual payment, as well after as before judgment, at a rate (the
"default rate") determined by such Bank to be one per cent, per annum
above the higher of:
(i) the rate on the overdue amount under Clause 9.1 (Interest rate)
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 an Advance in the
currency of the overdue amount for such successive Interest
Periods of such duration as such Bank may determine (each a
"Designated Interest Period").
9.4 Notification
The relevant Bank shall promptly notify each relevant Borrower of the
determination of a rate of interest under this Agreement.
10. OPTIONAL CURRENCIES
10.1 Selection
The Borrowers may request an Advance denominated in an Optional Currency.
10.2 Change of currency
If, before 9:30 a.m. on the Interest Determination Date of an Advance to be
denominated in an Optional Currency, the relevant Bank notices that:
(a) it is impracticable for the Bank to fund its Advance in that Optional
Currency in the ordinary course of business in the Euro or London
interbank market: or
(b) the use of the proposed Optional Currency might contravene any law or
regulation applicable thereto.
then:
(i) the Bank shall promptly and in any event before 10:00 a.m. on that
Interest Determination Date notify the Borrower;
(ii) if the Bank receives notice from the Borrower by 10:30 a.m. on the
relevant Interest Determination Date, the Advance shall not be made;
(iii) if the Bank does not receive any notice under sub-paragraph (ii)
above, the Advance will be denominated instead in EUR in an amount
equal to its Original EUR Amount.
10.3 Notification of rates and amounts
The relevant Bank shall notify each relevant Party of any applicable Bank's
Spot Rate of Exchange or Original EUR Amount promptly after it is
ascertained.
11. PAYMENTS
11.1 Place
All payments by an Obligor under this Agreement shall be made to the
relevant Bank to its account at such office as it may notify to that
Obligor for this purpose.
11.2 Funds
Payments under this Agreement to any Bank shall be made for value on the
due date at such times and in such funds as such Bank 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 Currency
(a) A repayment or prepayment of an Advance is payable in the currency in
which the Advance is denominated.
(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 this Agreement is, except as otherwise
provided in this Agreement, payable in EUR.
11.4 Set-off and counterclaim
All payments made by an Obligor under this Agreement shall be made without
set-off or counterclaim.
11.5 Non-Business Days
(a) If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calender month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal
under paragraph (a) above interest is payable on that principal at the
rate payable on the original due date.
11.6 Partial payments
(a) If a Bank receives a payment insufficient to discharge all the
amounts then due and payable by the Obligors under the facility,
the Bank shall apply that payment towards the obligations of the
Obligors under the facility in the following order:
(i) first, in or towards payment pro rata of any unpaid costs
and expenses of the Bank under this Agreement;
(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 facility.
(b) The Bank may vary the order set out in sub-paragraphs (a)(ii) to
(iv) above.
(c) Paragraphs (a) and (b) above shall override any appropriation
made by an Obligor.
12. TAXES
12.1 Gross-up
All payments by an Obligor under the facility shall be made without any
deduction and free and clear of and without deduction for or on account
of any taxes, except to the extent that the 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, the Obligor shall pay such
additional amounts as may be necessary to ensure that the Bank receives
a net amount equal to the full amount which it would have received had
payment not been made subject to tax.
12.2 Indemnity
Without prejudice to the provisions of Clause 12.1 (Gross-up), if a
Bank is required to make any payment on account of tax or otherwise on
or in relation to any sum received or receivable hereunder by such Bank
(including, without limitation, any sum received or receivable under
this Clause 12) or any liability in respect of any such payment is
asserted, imposed, levied or assessed against such Bank, the Borrowers
shall, upon demand of the Bank, indemnify such Bank against such
payment or liability, together with any interest, penalties and
expenses payable or incurred in connection therewith.
12.3 Tax receipts
All taxes required by law to be deducted or withheld by an Obligor from
any amounts paid or payable under the facility shall be paid by the
relevant Obligor when due and the Obligor shall, within 30 days of the
payment being made, deliver to the Bank evidence satisfactory
(including all relevant tax receipts) that the payment has been duly
remitted to the appropriate authority.
12.4 Tax Credits
If an Obligor pays any additional amount (a "Tax Payment") under Clause
12.1 (Gross-up) and the Bank effectively obtains a refund of tax, or
relief or credit against tax (a "Tax Credit") and is able to identify
the Tax Credit as being attributable to the Tax Payment, then it shall
reimburse to that Obligor the amount which the Bank reasonably
determines (in its absolute discretion exercised in good faith) to be
the proportion of the Tax Credit which will leave it, after that
reimbursement, in no better or worse position than it would have been in
if the Tax Payment had not been required. The Bank shall have an
absolute discretion as to whether to claim any Tax Credit and, if it
does claim, the extent, order and manner in which it does so. The Bank
shall not be obliged to disclose any information regarding its tax
affairs or computations to any Obligor.
13. MARKET DISRUPTION
13.1 Absence of quotations
If a Reference Bank does not supply an offered rate by 11.30 a.m. on the
Interest Determination Rate, the applicable EURIBOR or LIBOR shall,
subject to Clause 13.2 (Market disruption), be determined on the basis
of the quotations of the remaining Reference Banks.
13.2 Market disruption
If:
(a) no, or only one of the Reference Banks supplies a rate for the
purposes of determining EURIBOR or LIBOR or the relevant Bank
otherwise determines that adequate and fair means do not exist for
ascertaining EURIBOR or LIBOR; or
(b) the relevant Bank has the opinion that:
(i) matching deposits may not be available in the Euro or London
interbank market in the ordinary course of business to fund
its participation for the relevant Interest Period;
or
(ii) the cost of obtaining deposits in the Euro or London interbank
market would be in excess of EURIBOR or LIBOR for the relevant
Interest Period
the Bank shall promptly notify the relevant Borrower of the fact and
that this Clause 13 is in operation.
13.3 Suspension of drawdowns
If a notification under Clause 13.2 (Market disruption) applies to an
Advance which has not been made, that Advance shall not be made.
However, within five Business Days of receipt of the notification, the
Borrowers and the Banks shall enter into negotiations for a period of
not more than 30 days with a view to agreeing an alternative basis for
the borrowings of that and any future Advance. Any alternative basis
agreed shall be binding on all the Parties.
14. INCREASED COSTS
14.1 Increased costs
(a) Subject to Clause 14.2 (Exceptions), the Borrowers shall forthwith on
demand by a Bank pay to that Bank the amount of any increased cost
incurred by it as a result of (i) any change in or introduction of any
law or regulation (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) or in its interpretation or
administration and/or (ii) compliance with any request from or
requirement of any central bank or other fiscal, monetary or other
authority.
(b) In this Agreement "increased cost" means:
(i) an additional cost incurred by the Bank as a result of having
entered into, or performing, maintaining or funding its
obligations under, this Agreement.
or
(ii) a reduction in any amount payable to the Bank or the effective
return to the Bank under this Agreement or on its capital; or
(iii) the amount of any payment made by the Bank or the amount of any
interest or other return forgone by the Bank, calculated by
reference to any amount received or receivable by the Bank from
any other Party under this Agreement.
14.2 Exceptions
Clause 14.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the operation of Clause 12 (Taxes);
(b) attributable to any change in the rate of tax on the overall net income
of the Bank imposed in the jurisdiction in which the relevant Facility
Office for the time being is situated; or
(c) resulting from compliance with the matters set out in the July 1988
report of the Basle Committee on Banking Regulations and Supervisory
Practices entitled "International Convergence of Capital Measurement
and Capital Standards", unless it results from any change after the
date of this Agreement in, or in the interpretation or application of,
these matters as contemplated on the date of this Agreement.
14.3 Notification
If a Bank intends to make a demand under Clause 14.1 (Increased costs),
then it shall, promptly upon becoming aware of the event giving rise to an
increased cost, deliver to the Borrowers a certificate to that effect
specifying in reasonable detail the relevant event and the amount, basis
and computation of that claim. Notwithstanding the above, the Bank is not
obliged to disclose in any such certificate any confidential or
commercially sensitive information.
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 an Advance, then:
(a) such Bank may notify the Borrowers accordingly; and
(b) (i) the Borrowers shall forthwith prepay the Bank together with all
other amounts payable by them to the Bank under this Agreement;
and
(ii) the Bank's obligations under this Agreement shall forthwith be
cancelled.
16. ADDITIONAL BORROWERS AND ADDITIONAL BANKS
16.1. Rhodia may at any time ask the Initial Bank that one of its Subsidiaries
becomes an Additional Borrower. However, if the Subsidiary is located in
an country other than Japan, USA, Canada, and the countries of the
European Union, the prior approval of the Initial bank will have to be
obtained.
An Accession Agreement in the form of Schedule 1 shall then be executed
and Schedule 4 will be adapted.
Nevertheless, no Additional Borrower will be authorized to acceed to the
Agreement until such time as Rhodia has issued the Guarantee.
16.2. The Initial Bank may at any time add one of it subsidiaries, as
Additional Bank, to the Agreement.
An Accession Agreement in the form of Schedule 2 shall be executed and
Schedule 4 will be adapted.
17. REPRESENTATION AND WARRANTIES
17.1. Representations and warranties
Each Obligor makes the representations and warranties set out in this
Clause 17 to the Banks.
17.2. Status and Due Authorisation
It is a corporation duly organised under the laws of its jurisdiction of
incorporation with power to enter into this Agreement and to exercise its
rights and perform its obligations hereunder and all corporate and other
action required to authorise its execution of this Agreement and its
performance of its obligations hereunder has been duly taken.
17.3 Legal validity
The Agreement to which it is or will be a party constitutes, or when
executed in accordance with its terms will constitute, its legal, valid
and binding obligation enforceable in accordance with its terms.
17.4. No default
No Default is outstanding or might result from the making of any Advance.
17.5. Accounts
The audited accounts of the Group most recently delivered by RHODIA to
the Banks (which, at the date of this Agreement, are the Original Group
Accounts), to the best of its knowledge and belief:
(i) have been prepared in accordance with accounting principles and
practices generally accepted in France consistently applied; and
(ii) fairly represent its financial condition as at the date to which
they were drawn up,
and there has been no Material Adverse Change since the date to which
those accounts were drawn up.
17.6 Litigation
No litigation, arbitration or administrative proceedings are current or,
to the best of its knowledge and belief, pending or threatened, which
might, if adversely determined, constitute a Material Adverse Change.
17.7 Information
The information supplied by or on behalf of it to the Initial Bank in
connection with this Agreement was true and accurate in all material
respects as at the date it was supplied, and it is not aware of any
facts or matters not disclosed to the Initial Bank which, if disclosed,
might adversely affect the decision of a person considering whether to
enter into this Agreement.
17.8 Pari passu ranking
The obligations of each Obligor under this Agreement will rank at least
pari passu with the claims of all its other present and future unsecured
creditors save those whose claims are mandatorily preferred by law
applying to companies generally.
17.9 Times for making representations and warranties
The representations and warranties set out in this Clause 17:
(a) are made on the date of this Agreement; and
(b) (with the exception of Clause 17.5 (Accounts), 17.6 (Litigation)
and 17.7 (Information)) 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.
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 or may be outstanding under this
Agreement.
18.2 Financial Information
Each Obligor shall supply to the Banks:
(a) as soon as the same are available (and in any event within 180 days
of the end of each of its financial years):
(i) in the case of the Borrowers and the Guarantor, their audited
accounts for that financial year; and
(ii) in the case of the Guarantor, the consolidated audited
accounts of the Group for that financial year;
(b) as soon as the same are available (and in any event within 90 days
of the end of the first half-year of its financial years) the
published interim consolidated accounts of the Group;
(c) in the case of the Guarantor together with the accounts specified
in paragraph (a)(ii) above, a certificate signed by the Chief
Financial Officer on its behalf setting out in reasonable detail
computations establishing compliance with Clause 19.7 (Financial
ratios) as at the date to which those accounts were drawn-up (such
certificate to be substantially in the form set out in Schedule 5).
18.3 Information - miscellaneous
Each Obligor shall supply to the Banks:
(a) promptly, upon request of the Banks such other information
regarding the financial condition and operations of either Obligor
as the Banks may reasonably request in order to monitor compliance
with the Obligors' obligations under the Facility;
(b) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending, and which might, if adversely determined,
have a Material Adverse Effect.
18.4 Notification of Default
Each Obligor shall notify the Bank of any Default (and the steps, if
any, being taken to remedy it) promptly upon its occurrence.
18.5 Authorisations
Each Obligor shall promptly obtain, maintain and comply with the terms
of any authorisation required under any law or regulation to enable it
to perform its obligations under, or for the validity or enforceability
of this Agreement.
18.6 Pari passu ranking
Each Obligor shall procure that its obligations under this Agreement do
and will rank at least pari passu with all its other present and future
unsecured obligations.
18.7 Negative pledge
(a) No Obligor shall and the Guarantor shall procure that no Material
Subsidiary will create or permit to subsist any Security Interest
on any of its assets.
(b) Paragraph (a) above does not apply to the following Security
Interests:
- in connection with the purchase, maintenance or improvement of
an asset, provided the amount of Financial Indebtedness secured
remains confined to such asset or such improvements.
- created to secure Financial Indebtedness owing to EIB, IFC,
CREDIT NATIONAL, FONDS INDUSTRIEL DE MODERNISATION, FONDS DE
DEVELOPPEMENT ECONOMIQUE ET SOCIAL or any other governmental,
EEC or international controlled financial institution which in
its normal lending practice requires such encumbrance.
- existing at a time when a corporation is merged into,
consolidated with or acquired by an Obligor or Material
Subsidiary and not created in contemplation of such event,
provided that such encumbrance 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.
- existing on any asset prior to the acquisition thereof by an
Obligor or Material Subsidiary and not created in contemplation
of such acquisition provided that such encumbrance 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.
- arising out of a refinancing of any indebtedness secured by
encumbrance permitted above, provided that such Financial
Indebtedness is not increased or secured by any additional
assets or revenues.
- arising after 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.
- created over assets held in trust by another person, which assets are to
be used by such other person solely for satisfying any Obligor's or
Material Subsidiary's, scheduled payment obligations in respect of
principal and/or interest in respect of any of their Financial
Indebtedness in circumstance where such other person has undertaken
responsibility for the discharge of such obligation.
- over assets or receivables of any Obligor or Material Subsidiary which
encumbrances 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 such Obligor or Material Subsidiary in
respect of such assets or receivables) relating to non-payment in respect
of such assets or receivables are, as a result of such refinancing, not
borne by such Obligor or Material Subsidiary.
- over a deposit made by any Obligor or Material Subsidiary using the
proceeds of its Financial Indebtedness provided that (A) the depositary
of such proceeds lends an amount at least equal to the amount of the
deposit to a subsidiary of such Obligor or Material Subsidiary and (B)
that such loan has a maturity date which is not earlier that the date for
repayment of such deposit.
- not in one of the above categories to secure Financial Indebtedness as
long as the amount of Financial Indebtedness secured thereby does not
exceed 7.5% of Consolidated Net Worth.
18.8 Insurance
Each Obligor shall maintain insurances on and in relation to its business
and assets with reputable underwriters or insurance companies against such
risks and to such extent as is usual for companies carrying on a business
such as that carried on by each Obligor.
18.9 Change of business
Rhodia shall procure that no substantial change is made to the general
nature or scope of the business of the Group from that carried on at the
date of this Agreement.
19. DEFAULT
19.1 Events of Default
Each of the events set out in Clauses 19.2 (Non-payment) to 19.15 (Material
adverse change) (inclusive) is an Event of Default (whether or not caused
by any reason whatsoever outside the control of either Obligor or any other
person).
19.2 Non-payment
An Obligor does not pay any amount payable by it under this Agreement at
the place at and in the currency in which it is expressed to be payable,
unless such default is remedied within five Business Days after the Bank
has given notice to such Obligor
19.3 Breach of other obligations
An Obligor does not comply with any provision of this Agreement (other than
those referred to in Clause 19.2 (Non-payment) and such default is (if
capable of remedy) not remedied within 30 days after a Bank has given
notice to such Obligor.
19.4 Misrepresentation
A representation, warranty or statement made or repeated in or in
connection with this Agreement or in any document delivered by or on
behalf of either Obligor is incorrect in any material respect when made or
deemed to be made or repeated.
19.5 Cross default
Any Financial indebtedness of any Obligor or any Material Subsidiary
(taken together) aggregating EUR 50,000,000,-(or equivalent in other
currencies) or more becomes prematurely due and payable or is placed on
demand as a result of an event of default (howsoever described and after
expiry of any applicable grace period) under the document relating to that
Financial Indebtedness, unless such default is contested in good faith by
the Obligor or Material Subsidiary by appropriate proceedings.
19.6 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, 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
general moratorium is declared in respect of any of its indebtedness;
or
(c) an Obligor or any Material Subsidiary by reason of financial
difficulties, begins negotiations with one or more of its creditors
with a view to the readjustment or rescheduling of any of its
indebtedness.
19.7 Financial ratios
(a) any of the following ratios is breached:
(i) Consolidated Net Worth is at any time greater than
FRF12,000,000,000,-;
(ii) EBITDA to Net Financial Expenses is at any time greater than 5.
(b) All the terms used in paragraph (a) above and in clause 4.2.(a)(iii)
are to be calculated in accordance with the accounting principles
applied in connection with the Original Group Accounts and are to be
calculated as at 31 December of the financial year referred to in the
annual consolidated accounts of the Group most recently delivered by
Rhodia to the Banks.
19.8 Liquidation
Any Obligor is declared bankrupt, is defendant in an action for its
bankruptcy which remains undismissed for a period of thirty days, applies
for a "redressement judiciaire" or is subject to a "reglement amiable" (as
such terms are defined by French Law), is dissolved or enters into
liquidation (except when such dissolution or liquidation has been approved
by the Banks), or an administrateur judiciaire, commissaire
special,sequestre or similar officer is appointed in relation to such
Obligor or any corporate action or other steps are taken or legal
proceedings are started with a view to any of the above events.
19.9 Creditors' process
Any attachment, sequestration, distress or execution affects any
substantial part of the assets of any Obligor or any Material Subsidiary
and is not discharged within thirty days.
19.10 Analogous proceedings
These occurs, in relation to any Obligor or any Material Subsidiary, any
event anywhere in other jurisdictions which in the reasonable opinion of
the Banks, appears to correspond with any of those mentioned in Clauses
19.6 (Insolvency), 19.8 (Liquidation) or 19.9 (Creditors' process).
19.11 Cessation of business
Any Obligor ceases, or threatens to cease, to carry on all or a
substantial part of its business.
19.12 Unlawfulness
It is or becomes unlawful for either Obligor to perform any of its
obligations under this Agreement.
19.13 Guarantee
The guarantee of the Guarantor is not effective or is alleged by an
Obligor to be ineffective for any reason.
19.14 Ownership of the Guarantor and of the Borrowers
Any Additional Borrower or the Guarantor is not or ceases to be a
Subsidiary of RHODIA.
19.15 Material adverse change
Any event or series of events occurs which, in the reasonable opinion of
the Banks, irremediably compromises the ability of any Obligor to perform
in a timely manner any of its payment obligations under the Agreement as
provided for by article 60 of the French law no. 84-46 of the 24 January
1984.
19.16 Acceleration
On and at any time after the occurrence of an Event of Default the Initial
Bank (on behalf of the Banks) shall, by notice to the Borrowers:
(a) cancel the facility; and/or
(b) demand that all or part of the Advances, together with accrued
interest and all other amounts accrued under this Agreement be
immediately due and payable, whereupon they shall become immediately
due and payable; and/or
(c) demand that all or part of the Advances be payable on demand whereupon
they shall immediately become payable on demand.
20. COMMITMENT FEE
(a) Rhodia S.A. shall pay to the Initial Bank (for account of the Banks)
- a commitment fee computed at the rate of 0,10 per cent. per annum on
the undrawn uncancelled amount of the Tranche 1 Facility during the
period from the date of this Agreement up to and including the
Tranche 1 Final Maturity Date;
- a commitment fee computed at the rate of 0,20 per cent. per annum on
the undrawn uncancelled amount of the Tranche 2 Facility during the
period from the date of this Agreement up to and including the
Tranche 2 Final Maturity Date;
(b) For this purpose, Advances are taken at their Original EUR Amount.
(c) Accrued commitment fee is payable quarterly in arrear.
21. EXPENSES
The Borrowers shall forthwith upon presentation of duly documented evidence
pay to the Banks the amount of all costs and expenses (including legal
fees) incurred by them in connection with the enforcement of, or the
preservation of any rights under this Agreement.
22. STAMP DUTIES
The Borrowers shall pay and forthwith upon presentation of duly documented
evidence indemnify the Banks 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 this
Agreement.
23. INDEMNITIES
23.1 Currency indemnity
(a) If the Banks receive an amount in respect of an Obligor's liability
under this Agreement or if that liability is converted into a claim,
proof, judgment or order in a currency other than the currency (the
"contractual currency") in which the amount is expressed to be payable
under this Agreement:
(i) that Obligor shall indemnify the Banks as an independent
obligation against any loss or liability arising out of or as a
result of the conversion upon presentation of duly documented
evidence;
(ii) if the amount received by the Banks, when converted into the
contractual currency at a market rate in the usual course of
its business is less than the amount owed in the contractual
currency, the Obligor concerned shall forthwith upon
presentation of duly documented evidence pay to the Banks an
amount in the contractual currency equal to the deficit; and
(iii) the Obligor shall pay to the Banks forthwith upon presentation
of duly documented evidence any exchange costs and taxes
payable in connection with any such conversion.
(b) Each Obligor waiver any right it may have in any jurisdiction to pay
any amount under this Agreement in a currency other than that in which
it is expressed to be payable.
23.2 Other indemnities
The Borrowers shall forthwith upon presentation of duly documented evidence
indemnify each Bank against any loss or liability which it incurs as a
consequence of:
(a) the occurrence of any Default;
(b) the operation of Clause 19.16 (Acceleration);
(c) 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;
(d) (other than by reason of negligence or default by the Banks) an
Advance not being made after a Borrower has delivered a Request for
that Advance.
The Borrower's liability in each case includes any loss or expense on
account of funds borrowed, contracted for or utilised to fund any amount
payable under this Agreement, any amount repaid or prepaid or any Advance.
24. EVIDENCE AND CALCULATIONS
24.1 Accounts
Accounts maintained by the Banks in connection with this Agreement are
prima facie evidence of the matters to which they relate.
24.2 Certificates and determinations
Any certification or determination by the Bank of a rate or amount under
this Agreement is, in the absence of manifest error, conclusive evidence of
the matters to which it relates.
24.3 Calculations
Interest accrues from day to day and is calculated on the basis of the
actual number of days elapsed and a year of 360 days or, if market
practice.
The Commitment fee payable under Clause 20.1 accrues from day to day and is
calculated on the basis of the actual number of days elapsed and a year of
360 days.
25. SET-OFF
Any amount (the "Early Termination Amount") due and payable to the Banks by
the Obligors in circumstances where an Event of Default has occurred, may,
at the option of the Banks, be reduced by its set-off against any amount(s)
due and payable at such time by the Banks to such Obligor (irrespective of
the currency, place of payment or booking office of the obligation) under
any other agreement(s) between the Banks and such Obligor or instrument(s)
or undertaking(s) issued or executed by one party to or in favour of the
other party (and the other amount will be discharged promptly and in all
respects to the extent it is so set-off).
The Bank will give notice to the other party of any set-off effected.
For the purpose of cross-currency set-off, the Banks may convert any
obligation into another currency at a market exchange rate selected by them
on the relevant date. For the purpose of the determination of this
exchange rate, the Banks shall poll three (3) Banks for their mid-market
quotations on the relevant date. A simple average of the three (3)
aforementioned quotations will determine the applicable exchange rate.
If the amount of an obligation is unascertained, the Banks may in good
faith estimate that obligation and set-off in respect of the estimate
subject of the relevant party accounting to the other when the amount of
the obligation is unascertained. In the event where such accounting reveals
a discrepancy from the amount previously set-off, an appropriate adjustment
will be made.
Nothing in this Clause shall be effective to create a charge or other
security interest. This Clause shall be without prejudice and in addition
to any right of set-off, combination of accounts, lien or other right to
which any party is at any time otherwise entitled (whether by operations of
law, contract or otherwise).
26. SEVERABILITY
If a provision of this Agreement 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 this Agreement; or
(b) the validity or enforceability in other jurisdictions of that or any
other provision of this Agreement.
27. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this has
the same effect as if the signatures on the counterparts were on a single
copy of this Agreement.
28. NOTICES
28.1 Giving of notices
All notices or other communications under or in connection with this
Agreement shall be given in writing or by telex or facsimile. Any such
notice will be deemed to be given as follows:
(a) if in writing, when delivered;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and at the
end of the sender's copy of the notice; and
(c) if by facsimile, when received
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.
28.2 Addresses for notices
The address, telex number and facsimile number of each Party for all
notices under or in connection with this Agreement are:
(i) those set in Schedule 4 or those notified by that Party to the Banks
on or before the date it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Banks by not
less than ten Business Days' notice.
28.3 Facsimile
(a) Each Obligor shall indemnify and hold the Banks harmless from and
against all actions, proceedings, costs, claims, demands, expenses or
losses which the Banks may suffer, incur or sustain as a consequence
of the Banks accepting and/or acting upon any instructions under this
Agreement received by a Bank from an Obligor by facsimile and which
would not have been suffered, incurred or sustained if, at the time of
receipt, the Bank had been given the instructions other than by
facsimile transmission.
(b) No Obligor shall make any claim or take any action or proceedings
against the Bank for any loss whatsoever suffered by the Obligor by
reason of a Bank accepting and/or acting upon any instructions
hereunder received by the Bank from the Obligor by facsimile and which
would not have been suffered, incurred or sustained if, at the time of
receipt, the Bank had been given the instructions other than by
facsimile transmission.
29. LANGUAGE
(a) Any notice given under or in connection with this Agreement shall be
in English.
(b) All other documents provided under or in connection with this
Agreement shall be: in English or in French.
31. GOVERNING LAW
This Agreement is governed by Belgian law. Only the courts of Brussels
will be competent. For the purposes of any legal proceedings in connection
with this Agreement, each Obligor which is not incorporated in Belgium
elects domicile at the registered office from time to time of RHODIA
BELGIUM S.A which hereby consents to act as the agent of those Obligors
for the service of process in Belgium.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
Initial Borrower
RHODIA
/s/ ILLEGIBLE
Guarantor
RHODIA
/s/ ILLEGIBLE
Initial Bank
*
/s/ * /s/ *
* *
Credit Manager Directeur
SCHEDULE 1.A:ACCESSION AGREEMENT
BETWEEN
* (acting on its behalf and on behalf of the other Banks)
and
RHODIA (acting on its behalf as Borrower and Guarantor and on behalf of the
other Borrowers)
and
(name subsidiary)
Dated:
1. Reference is made to an agreement (the "Agreement") dated <> and made
between RHODIA as Initial Borrower and as Guarantor and * as Initial Bank.
2. Terms defined in the Agreement shall bear the same meaning herein.
3. RHODIA hereby requests that (name subsidiary) becomes an Additional
Borrower pursuant to Clause 16 of the Agreement.
4. (name subsidiary) hereby agrees to such request and accordingly:
(i) hereby makes, for the benefit of the Banks, each of the
representations referred to in Clause 17 of the Agreement; and
(ii) undertakes, upon its becoming a Borrower, to perform all the
obligations expressed to be undertaken under the Agreement by a
Borrower in all respects as if it had been an original party thereto
as a Borrower
5. (name subsidiary) undertakes to deliver the documents listed in the
Schedule 1.B of the Agreement.
6. The Guarantor confirms that it will guarantee in accordance with the
Guarantee referred to in Clause 16 of the Agreement all the obligations of
(name subsidiary) under the Agreement in all respects in accordance with
the terms of the Agreement.
7. RHODIA BELGIUM S.A. agrees to act as agent of the Additional Borrower for
service of process in Belgium.
8. RHODIA
(i) hereby repeats, for the benefit of the Banks, each of the
representations referred to in Clause 17 of the Agreement (with the
exception of Clause 17.5 (Accounts), 17.6 (Litigation) and 17.7
(Information); and
(ii) confirms that no Default has occurred.
9. By execution of this Accession Agreement the Initial Bank accepts (name
subsidiary) as a party to the Agreement.
10. (name subsidiary)'s administrative details as follows:
Address:
Telephone No.:
Facsimile No.:
11. Schedule 4 of the Agreement will be adapted accordingly.
12. This Accession Agreement shall be governed by and construed in all
respects in accordance with Belgian law.
RHODIA
(name of subsidiary)
*
SCHEDULE 1.B.: CONDITIONS PRECEDENT FOR THE ADDITIONAL BORROWER
[Corporate authorisations]
[Government or other consents]
[Other documents or evidence]
[Legal opinions]
SCHEDULE 2: ACCESSION AGREEMENT
BETWEEN
1. *
2. RHODIA (acting on behalf of itself as Borrower and Guarantor and on behalf
of the other Borrowers)
3. (name subsidiary)
Dated:
1. Reference is made to an agreement (the "Agreement") dated ( ) and made
between RHODIA as Initial Borrower and as Guarantor and * as Initial Bank.
2. Terms defined in the Facility Agreement shall bear the same meaning herein.
3. * hereby requests that (name subsidiary) becomes an Additional bank pursuant
to Clause 16 of the Agreement.
4. (name subsidiary) hereby agrees to such request and undertakes, upon its
becoming a Bank, to perform all the obligations expressed to be undertaken
under the Agreements by a Bank in all respects as if it had been an original
party thereto as a Bank.
5. (name subsidiary) shall be obligated to make Advances only to the Borrower,
up to the amount and through the Facility Office set opposite its name in
Schedule 4.
6. Schedule 4 will be adapted accordingly.
7. The Guarantor confirms that it will guarantee on accordance with the
Guarantee referred to in Clause 16 of the Agreement all the obligations
of the Borrowers towards (name subsidiary) under the Agreement.
8. By execution of this Accession Agreement, RHODIA S.A. accepts (name
subsidiary) as a party to the Agreement.
9. (name subsidiary)'s administrative details as follows
Address:
Telephone No:
Facsimile no:
10. This Accession Agreement shall be governed by and construed in all respects
in accordance with Belgian Law.
*
(Name Subsidiary)
RHODIA
SCHEDULE 3: CONDITIONS PRECENDENT DOCUMENTS
In relation to RHODIA
(i) an original "extrait K-bis" issued less than 30 days ago;
(ii) a copy of the Constitutional Documents of RHODIA;
(iii) the specimen signature of the signatories;
(iv) the name of the persons (and the specimen of their signature)
authorised to request an Advance or to give any other instructions under
this Agreement;
(v) at the time of issue of the Guarantee, a copy of the decision of the
"Conseil d'Administration" authorizing the issue and the signing of the
Guarantee and duly empowering the signatories of the Guarantee.
SCHEDULE 4: ALLOCATIONS AND ADMINISTRATIVE DETAILS
A) ALLOCATIONS
NAME OF FACILITY NAME OF MAXIMUM MAXIMUM AMOUNT
BANK OFFICE BORROWER AMOUNT ALLOCATED
ALLOCATED TRANCHE B
TRANCHE A
- -----------------------------------------------------------------------------
* BRUSSELS RHODIA EUR 100,000,000,- EUR 50,000,000,-
*
EUR
EUR
B) ADMINISTRATIVE DETAILS
* for *
address: *
Contact persons:
(i) for operational matters
*
tel: 32-2-*
fax: 32-2-*
(ii) for other matters
*
tel: 32-2-*
fax: 32-2-*
* for Rhodia
address: Quai Paul Doumer, 25, 92408 COURBEVOIE CEDEX (FRANCE)
Contact persons:
(i) Pierre PROT, Chief Financial Officer
tel: 33-1-47.68.24.28
(ii) Elisabeth TEYSSIER, Director of Corporate Finance
tel: 33-1-47.68.20.77
(iii) Rabih CHACAR, Deputy Director of Corporate Finance
tel: 33-1-47.68.27.94
fax: 33-1-47.68.14.74
SCHEDULE 5: FORM OF COMPLIANCE CERTIFICATE
To: (name of Banks)
Date:
Dear Sirs,
We refer to an agreement (the "Agreement") dated ( ) and made between RHODIA as
Initial Borrower and as Guarantor, and * as Initial Bank.
Terms defined in the Facility Agreement shall bear the same meaning herein.
We confirm that:
(i) as at ( ), Consolidated Net Worth was ( ) and
(ii) as at ( ), EBITDA to Net Financial Expenses was ( )
We set out below in reasonable details any relevant computations:
SCHEDULE 6:FORM OF REQUEST
TO: (name of Bank)
From: (name of Borrower)
EUR 150.000.000- Multicurrency Revolving Credit Facility dated ()
1. We wish to borrow an Advance as follows:
(a) Tranche:
(b) Drawdown Date:
(c) Amount
Currency
(d) Interest Period
(e) Payment Instructions
2. We confirm that each conditions specified in clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request.
BY:
(name of Borrower)
SCHEDULE 7: GUARANTEE
(on letterhead of guarantor)
1. Reference is made to an agreement (the "Agreement") dated () and made
between RHODIA as Initial Borrower and as Guarantor and * as Initial Bank.
2. Terms defined in the Agreement shall have the meaning herein.
3. Pursuant to Clause 16 of the Agreement, RHODIA may ask the Initial Bank that
one of its Subsidiaries with the prior approval of the Initial Bank becomes
an Additional Borrower.
4. RHODIA confirms that it will guarantee all the obligations of any Additional
Borrower under the Agreement in all respects in accordance with the terms of
the Guarantee.
AS A CONSEQUENCE RHODIA ISSUES THE FOLLOWING GUARANTEE:
1. Guarantee
Rhodia irrevocably and unconditionally:
(a) guarantees to the Banks due and punctual performance by the Borrowers
of all their obligations under the Facility when due;
(b) undertakes with each Bank that whenever a Borrower does not pay any
amount when due under or in connection with the Facility, Rhodia shall
forthwith on demand by the Bank pay that amount as if Rhodia instead of
that Borrower were expressed to be the principal obligor; and
(c) indemnifies the Bank on demand against any loss or liability suffered
by it if any obligation guaranteed by Rhodia is or becomes
unenforceable, invalid or illegal.
2. Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of all sums payable by the Borrowers under the Facility, regardless
of any intermediate payment or discharge in whole or in part.
3. Reinstatement
(a) Where any discharge (whether in respect of the obligations of either
Obligor or any security for those obligations or otherwise) is made in
whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of Rhodia under this Guarantee shall continue as if the
discharge or arrangement had not occurred.
(b) The Banks may concede or compromise any claim that any payment,
security or other disposition which is liable to avoidance or
restoration.
4. Waiver of defences
The obligations of Rhodia under this Guarantee will not be affected by an
act, omission, matter or thing which, but for this provision, would reduce,
release or prejudice any of its obligations under this Guarantee or
prejudice or diminish those obligations in whole or in part, including
(whether or not known to it or the Banks):
(a) any time or waiver granted to, or composition with, a Borrower or other
person;
(b) the taking, variation, compromise, exchange, renewal or release of, or
refusal or neglect to perfect, take up or enforce, any rights against,
or security over assets of, a Borrower or other person or any non-
presentation or non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full value of
any security;
(c) any incapacity or lack of powers, authority or legal personality of or
dissolution or change in the members or status of a Borrower or any
other person;
(d) any variation (however fundamental) or replacement of the Agreement or
any other document or security so that references to the Agreement or
document in this Guarantee shall include each variation or replacement;
(e) any unenforceability, illegality or invalidity of any obligation of any
person under the Agreement or any other document or security, to the
intent that Rhodia's obligations under this Guarantee shall remain in
full force and its guarantee be construed accordingly, as if there were
no unenforceability, illegality or invalidity; or
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Borrower under the
Agreement resulting from any insolvency, liquidation or dissolution
proceedings or from any law, regulation or order so that each such
obligation shall for the purposes of Rhodia's obligations under this
Guarantee be construed as if there were no such circumstance.
5. Immediate recourse
Rhodia waives any right it may have of first requiring the Bank to proceed
against or enforce any other rights or security or claim payment from any
person before claiming from Rhodia under this Guarantee.
6. Appropriations
Until all amounts which may be or become payable by the Obligors under or in
connection with the Agreement have been irrevocably paid in full, each Bank
may:
(a) refrain from applying or enforcing any other moneys, security or rights
held or received by it in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and Rhodia shall not be entitled to
the benefit of the same; and
(b) hold in a suspense account any moneys received from Rhodia or on
account of Rhodia's liability under this Guarantee, without liability
to pay interest on those moneys.
7. Non-competition
Until all amounts which may be or become payable by the Obligors under or in
connection with the Agreement have been irrevocably paid in full, Rhodia
shall not, after a claim has been made or by virtue of any payment or
performance by it under this Guarantee:
(a) be subrogated to any rights, security or moneys held, received or
receivable by any Bank or be entitled to any right of contribution or
indemnity in respect of any payment made or money received on account
of Rhodia's liability under this Guarantee;
(b) claim, rank, prove or vote as a creditor of the Borrowers or their
estate in competition with any Bank; or
(c) receive, claim or have the benefit of any payment, distribution or
security from or on account of a Borrower, or exercise any right of
set-off as against a Borrower.
Rhodia shall hold in trust for and forthwith pay or transfer to the Banks
any payment or distribution or benefit of security received by it contrary
to this Clause 7.
8. Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other security now or subsequently held by the Bank.
9. Governing Law
This guarantee shall be governed by and construed and interpreted in
accordance with the law of Belgium.
Rhodia irrevocably submits to the jurisdiction of the courts in Brussels in
respect of any action or proceeding relating to this guarantee and for this
purpose elects domicile at the registered office from time to time of RHODIA
BELGIUM S.A.