EXHIBIT 4.3
▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇ LIMITED LIABILITY PARTNERSHIP
C H A N C E EXECUTION COPY
DATED FEBRUARY 2004
BETWEEN
DYNEA CHEMICALS OY
NORDKEM AS
as Borrowers
and
CITIBANK INTERNATIONAL plc
as Facility Agent
and
CITIBANK INTERNATIONAL plc
as Security Trustee
and
CITIBANK, N.A.
as Issuing Bank
and
CITIGROUP GLOBAL MARKETS LIMITED (formerly SALOMON BROTHERS
INTERNATIONAL LIMITED)
as Lead Arranger
and
DYNEA OY
as Term D Lender
------------------------------------------------------
AMENDMENT AND RESTATEMENT AGREEMENT
RELATING TO A
CREDIT AGREEMENT
DATED 7 AUGUST 2000
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation.............................................................. 1
2. Restatement And Novation.................................................................... 2
3. Representations And Warranties.............................................................. 2
4. Continuity.................................................................................. 2
5. Expenses.................................................................................... 2
6. Miscellaneous............................................................................... 3
7. Law And Jurisdiction........................................................................ 3
Schedule 1 CONDITIONS PRECEDENT.................................................................... 5
Schedule 2 RESTATED AGREEMENT...................................................................... 8
THIS AGREEMENT is made on February 2004
BETWEEN
(1) DYNEA CHEMICALS OY (formerly known as Neste Chemicals Oy), a company
incorporated in Finland with registered number 769.380 ("DYNEA");
(2) NORDKEM AS, a company incorporated in Norway with registered number
981313054 ("NORDKEM");
(3) CITIBANK INTERNATIONAL PLC of Citigroup Centre, Canada Square, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as the Facility Agent (as that term is more
particularly defined below);
(4) CITIBANK INTERNATIONAL PLC of Citigroup Centre, Canada Square, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as the Security Trustee (as that term is more
particularly defined below);
(5) CITIBANK, N.A. of Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ as the Issuing Bank (as that term is more particularly defined
below);
(6) CITIGROUP GLOBAL MARKETS LIMITED (FORMERLY SALOMON BROTHERS
INTERNATIONAL LIMITED) of Citigroup Centre, Canada Square, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as the lead arranger of the facilities made
available under this Agreement (in such capacity, the "LEAD ARRANGER");
and
(7) DYNEA OY, a company incorporated in Finland with registered number
1562077-1 (the "TERM D LENDER").
RECITALS
(A) By a credit agreement dated 7 August 2000 between Dynea, Nordkem,
certain banks, Citibank International plc as facility agent, Citibank
International plc as security trustee, Citibank, N.A. as issuing bank
and Citigroup Global Markets Limited as lead arranger, certain
facilities were made available on the terms and conditions thereof (as
amended from time to time, the "CREDIT AGREEMENT").
(B) The Majority Banks (as defined in the Credit Agreement) have authorised
the Facility Agent to enter into this Agreement on behalf of the Banks.
(C) The parties have agreed, inter alios, to the Term D Lender providing a
new term loan facility to Dynco, to provide for the Term D Lender to
become a party to the Credit Agreement as a Bank and to amend and
restate the Credit Agreement upon the terms set out below.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
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"EFFECTIVE DATE" means the date on which the Facility Agent confirms to
the Banks and Dynea that it has received each of the documents listed
in Schedule 1 (Conditions Precedent) in a form and substance
satisfactory to the Facility Agent.
"NEW FEE LETTER" means the letter dated on or about 13 February 2004
from the Facility Agent to Dynea relating to certain fees payable to
the Facility Agent in respect of the amendments to the Credit Agreement
which relate to the Term D Loan Facility, being described on its face
as the "New Fee Letter".
"NEW TRANSACTION DOCUMENTS" means this Agreement, the New Fee Letter,
the Performance Guarantees, the Put and Call Agreement, On-Lending
Agreement and each document referred to in paragraph 3 of Schedule 1
(Conditions Precedent).
"RESTATED AGREEMENT" means the Credit Agreement, as amended and
restated by this Agreement, the terms of which are set out in Schedule
2 (Restated Agreement).
1.2 INCORPORATION OF DEFINED TERMS
Terms defined in the Credit Agreement shall, unless otherwise defined
herein, have the same meaning herein and the principles of construction
set out in the Credit Agreement shall have effect as if set out in this
Agreement.
1.3 CLAUSES
In this Agreement any reference to a "Clause" or "Schedule" is, unless
the context otherwise requires, a reference to a Clause or Schedule
hereof. Clause headings are for ease of reference only.
2. RESTATEMENT AND NOVATION
On the Effective Date:
2.1.1 the Credit Agreement shall be amended and restated so that it
shall be in the form set out in Schedule 2 (Restated
Agreement); and
2.1.2 the Term D Lender shall become a party to the Credit Agreement
as a Bank on the terms set out in the Restated Agreement.
3. REPRESENTATIONS AND WARRANTIES
Dynea hereby makes the representations and warranties set out in
clauses 11.1.1 (Status) to 11.1.7 (Litigation) (inclusive) of the
Credit Agreement on the basis that references to the Credit Agreement
are references to the Restated Agreement.
4. CONTINUITY
The provisions of the Credit Agreement shall, save as amended and
novated hereby, continue in full force and effect.
5. EXPENSES
Dynea shall, from time to time on demand of the Facility Agent,
reimburse the Facility Agent for all costs and expenses (including
legal fees) together with any VAT thereon incurred by it or any Finance
Party in connection with the negotiation, preparation and
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execution of this Agreement, any other document referred to in this
Agreement and the completion of the transactions herein contemplated.
6. MISCELLANEOUS
6.1 INCORPORATION OF TERMS
The provisions of clause 18 (Amendments and Waivers) and clause 19.1
(Severance) of the Credit Agreement shall be incorporated into this
Agreement as if set out in full herein and as if references therein to
"this Agreement", "the Financing Documents" or "the Transaction
Documents" are references to this Agreement.
6.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
6.3 WAIVER
On the Effective Date, the Banks hereby waive any Default that may have
arisen prior to the Effective Date in respect of the financial
undertakings set out in clause 12.6 (Financial Undertakings) of the
Credit Agreement.
6.4 BUSINESS PLAN
On the Effective Date, the Banks hereby approve the business plan for
the Group for the Financial Years ending 31 December 2004, 31 December
2005 and 31 December 2006 delivered to the Facility Agent on 15
December 2003.
7. LAW AND JURISDICTION
7.1 LAW
This Agreement is governed by and shall be construed in accordance with
English law.
7.2 JURISDICTION
7.2.1 The Parties agree that the courts of England shall have
jurisdiction to settle any disputes which may arise in
connection with this Agreement and that any judgment or order
of an English court in connection with this Agreement is
conclusive and binding on them and may be enforced against
them in the courts of any other jurisdiction. This sub-clause
7.2.1 is for the benefit of each Agent, the Issuing Bank and
the Lead Arranger only and shall not limit the right of each
Agent, the Issuing Bank and the Lead Arranger to bring
proceedings against any Borrower in connection with this
Agreement in any other court of competent jurisdiction or
concurrently in more than one jurisdiction.
7.2.2 Each Borrower:
(a) waives any objections which it may have to the
English courts on the grounds of venue or forum non
conveniens or any similar grounds as regards
proceedings in connection with this Agreement; and
(b) consents to service of process by mail or in any
other manner permitted by the relevant law.
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AS WITNESS the hands of duly authorised representatives of the parties hereto
the day and year first before written.
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SCHEDULE 1
CONDITIONS PRECEDENT
1. DELIVERY OF CERTIFIED COPIES
The Facility Agent shall have received a Certified Copy of each of the
following in form and substance satisfactory to it:
(a) the certificates of incorporation, any certificate of
incorporation on change of name (or in each case any foreign
equivalent) and the constitutional documents of each of
Issueco, Dynea, Nordkem, Dynea Oy, Dynea ASA, Dynea NZ Ltd and
Dynco;
(b) the minutes of a meeting of the board of directors or, where
relevant (and including in respect of the execution, delivery
and performance of the On-Lending Agreement by Dynco), a
shareholders' meeting of each of Issueco, Dynea, Nordkem,
Dynea Oy, Dynco and Dynea ASA (including the resolutions
passed at those meetings):
(i) approving and authorising the execution, delivery and
performance of this Agreement and each New
Transaction Document to which it is a party, and in
the case of Dynco its Deed of Accession, on the terms
and conditions of those documents;
(ii) showing that the relevant board (or shareholders)
meeting was quorate and that all declarations of
interests required in connection with any New
Transaction Document to which it is a party, and in
the case of Dynco its Deed of Accession, were made;
and
(iii) authorising any director whose name and specimen
signature is set out in those minutes to sign or
otherwise attest the execution of those documents and
any other documents to be executed or delivered
pursuant to those documents.
2. DELIVERY OF ORIGINAL NON-SECURITY DOCUMENTATION, ETC.
The Facility Agent shall have received each of the following in form
and substance satisfactory to it:
(a) each of the following documents duly executed by the parties
thereto:
(i) the On-Lending Agreement (as such term is defined in
the Restated Agreement);
(ii) the Performance Guarantees (as such term is defined
in the Restated Agreement); and
(iii) the Put and Call Agreement (as such term is defined
in the Restated Agreement);
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(b) the New Fee Letter duly countersigned by Dynea together with
evidence that the Amendment Fee payable to each Agreeing Bank
(as each such term is defined therein) on the date of this
Agreement has been or shall be paid;
(c) evidence that Tranche D1 of the Term D Loan Facility (as each
such term is defined in the Restated Agreement) has been or
will simultaneously be drawn down in full by Dynco under the
terms of the Restated Agreement and that the proceeds thereof
have been or will simultaneously be on-lent by Dynco to Dynea
under the terms of the On-Lending Agreement and paid to
Issueco to be applied in payment of interest due on the Senior
Subordinated Notes;
(d) a certificate from two directors of Issueco certifying that it
is not and, immediately after the Effective Date, will not be
in breach of any of the terms of the Senior Subordinated Notes
Documents;
(e) legal opinions from ▇▇▇▇▇▇▇▇ Chance LLP, Luostarinen Mettala &
Raikkonen, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ & Partners and
▇▇▇▇▇▇▇ ▇▇▇▇▇ (as to matters of English, Finnish, Norwegian,
Austrian and New Zealand law);
(f) a legal opinion from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as to the due execution
and a legal opinion from ▇▇▇▇▇▇▇▇ Chance Limited Liability
Partnership as to the legality and enforceability of the
Performance Guarantees entered into by IK 1997 Limited and IK
2000 Limited;
(g) share certificates in respect of the entire issued share
capital of Dynea NZ Limited together with a signed transfer in
respect of those shares;
(h) a resolution of the board of directors of Dynea NZ Limited
resolving to approve any transfer of the shares pursuant to
the Share Charge referred to in paragraph 3(b) below, if
enforced;
(i) all information required to register a financing statement on
the New Zealand Personal Property Securities Register against
Dynea ASA relating to the property secured by the Share Charge
entered into by Dynea ASA in respect of the entire issued
share capital of Dynea NZ Limited;
(j) a power of attorney in the form set out in Schedule 1 of the
Share Charge referred to in paragraph 3(f) below, duly
executed by Dynea;
(k) a Deed of Accession duly executed by Dynco; and
(l) share certificates in respect of the entire issued share
capital of Dynco.
3. DELIVERY OF SECURITY DOCUMENTS
The Facility Agent shall have received each of the following in form
and substance satisfactory to it:
(a) the Dynea Security Assignment (as such term is defined in the
Restated Agreement), together with Notices of Assignment in
the form set out in Schedule 1 of the Dynea Security
Assignment duly signed by Dynea and
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addressed to, and acknowledged by, IK 1997 Limited, IK 2000
Limited and Dynea Oy;
(b) a Share Charge entered into by Dynea in respect of the entire
issued share capital of Dynco;
(c) a Share Charge entered into by Dynea ASA in respect of the
entire issued share capital of Dynea NZ Ltd;
(d) written acknowledgement from Issueco that the Share Charge
granted by Issueco over the shares in Dynea will remain in
full force and effect notwithstanding the amendments to the
Credit Agreement to be effected pursuant to this Agreement and
will secure each of the Facilities;
(e) written acknowledgement from Dynea that the Share Charge
granted by Dynea over the shares in Dynea Finland Oy will
remain in full force and effect notwithstanding the amendments
to the Credit Agreement to be effected pursuant to this
Agreement and will secure each of the Facilities; and
(f) a letter of confirmation from Dynea in relation to the Share
Charge granted by Dynea over the entire issued share capital
of Dynea Holding GmbH,
together with, in each case, all documents deliverable with them.
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SCHEDULE 2
RESTATED AGREEMENT
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▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇ LIMITED LIABILITY PARTNERSHIP
C H A N C E
SCHEDULE 2
DATED 7TH AUGUST 2000
DYNEA CHEMICALS OY
NORDKEM AS
as Borrowers
and
THE BANKS
and
CITIBANK INTERNATIONAL plc
as Facility Agent
and
CITIBANK INTERNATIONAL plc
as Security Trustee
and
CITIBANK, N.A.
as Issuing Bank
and
CITIGROUP GLOBAL MARKETS LIMITED (formerly SALOMON BROTHERS
INTERNATIONAL LIMITED)
as Lead Arranger
------------------------------------------------------
CREDIT AGREEMENT
(as novated and amended up to and including 13 February 2004)
relating to
(i) a term A loan facility of Euro 189,841,693;
(ii) a term B loan facility of Euro 94,920,847;
(iii) a term C loan facility of Euro 94,786,533;
(iv) a term D loan facility of Euro 31,700,000; and
(v) a multicurrency revolving loan and guarantee facility
of Euro 100,000,000
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation.......................................................... 1
2. Facilities.............................................................................. 32
3. Conditions Precedent.................................................................... 36
4. Utilisation Of The Facilities........................................................... 36
5. Alternative Currencies.................................................................. 43
6. Interest................................................................................ 45
7. Repayment, Prepayment And Cancellation.................................................. 50
8. Changes In Circumstances................................................................ 55
9. Payments................................................................................ 60
10. Security................................................................................ 64
11. Representations And Warranties.......................................................... 65
12. Undertakings............................................................................ 70
13. Default................................................................................. 85
14. Set-Off................................................................................. 88
15. Pro Rata Sharing........................................................................ 88
16. The Finance Parties..................................................................... 89
17. Fees And Expenses....................................................................... 99
18. Amendments And Waivers.................................................................. 100
19. Miscellaneous........................................................................... 102
20. Notices................................................................................. 102
21. Assignments And Transfers............................................................... 104
22. Indemnities............................................................................. 107
23. Law And Jurisdiction.................................................................... 108
Schedule 1 THE BANKS........................................................................... 109
Schedule 2..................................................................................... 117
Part I Conditions Precedent............................................................. 117
Part Ii Conditions Subsequent........................................................... 122
Part Iii Additional Security............................................................ 125
Schedule 3..................................................................................... 127
Part I Drawdown Notice.................................................................. 127
Part Ii Bank Guarantee Request.......................................................... 128
Schedule 4 THE GROUP........................................................................... 129
Part I Charging Group Companies...............................................................129
Part Ii Other Group Companies.................................................................130
Schedule 5 MANDATORY COST RATE.......................................................................131
Schedule 6 FORM OF TRANSFER CERTIFICATE..............................................................133
Schedule 7 FORM OF DEED OF ACCESSION.................................................................138
Schedule 8 ORIGINAL EURO AMOUNT......................................................................140
Schedule 9 PROVISIONS RELATING TO THE TERM D LOAN FACILITY...........................................141
Schedule 10 SUBORDINATION............................................................................143
THIS AGREEMENT is made on 7th August 2000
BY:
(1) DYNEA CHEMICALS OY (formerly known as Neste Chemicals Oy), a company
incorporated in Finland with registered number 769.380 ("DYNEA");
(2) NORDKEM AS, a company incorporated in Norway with registered number
981313054 ("NORDKEM");
(3) THE BANKS listed in Schedule 1 (The Banks);
(4) CITIBANK INTERNATIONAL PLC of Citigroup Centre, Canada Square, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as the Facility Agent (as that term is more
particularly defined below);
(5) CITIBANK INTERNATIONAL PLC of Citigroup Centre, Canada Square, ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as the Security Trustee (as that term is more
particularly defined below);
(6) CITIBANK, N.A. of Citigroup Centre, Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ as the Issuing Bank (as that term is more particularly defined
below); and
(7) CITIGROUP GLOBAL MARKETS LIMITED of Citigroup Centre, Canada Square,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as the lead arranger of the facilities
made available under this Agreement (in such capacity, the "LEAD
ARRANGER").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCOUNTANTS' REPORTS" means:
(a) the report dated on or about 7 October 1999 prepared by
PricewaterhouseCoopers relating to the NCO Target Companies
and the Dynea Target Assets; and
(b) each of the reports dated on or about 1 December 1999 and 20
June 2000 respectively prepared by PricewaterhouseCoopers
relating to Dyno and its Subsidiaries,
in each case addressed, among others, to the Finance Parties or subject
to a reliance letter in favour of the Finance Parties.
"ACCOUNTING PRINCIPLES" means IAS as at the date of this Agreement.
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"ACCOUNTS" means:
(a) in relation to Dynea, its audited consolidated accounts
(including all additional information and notes to the
accounts) together with the relevant directors' report and
auditors' report; and
(b) in relation to any other Material Company from time to time,
its accounts (including all additional information and notes
to the accounts), audited to the extent required for
consolidation, together with the relevant auditors' report.
"ACQUISITION COSTS" means those fees, commissions, costs and expenses
properly incurred by Parentco, Dynea or Nordkem in relation to the
Dynea Acquisition or the Dyno Acquisition (including the financing
thereof).
"ACQUISITION GOODWILL" means the net goodwill arising on the Dynea
Acquisition and the Dyno Acquisition.
"ACT" means the Companies ▇▇▇ ▇▇▇▇.
"ADDITIONAL COST RATE" means, in relation to any Advance and:
(a) a Bank acting out of a Lending Office in the United Kingdom,
the Mandatory Cost Rate; or
(b) a Bank acting out of a Lending Office outside the United
Kingdom, the cost, if any, certified by any Bank as the net
cost to it of complying with the reserve asset and other
regulatory requirements of the European Central Bank in
relation to that Advance or any class of loans which that
Advance forms part, expressed as a percentage rate per annum
for the relevant Interest Period.
"ADVANCE" means a Term Advance or a Revolving Advance.
"AGENTS" means the Facility Agent and the Security Trustee; and "AGENT"
means either of them.
"ALTERNATIVE CURRENCY" means any currency (other than Euro) which is
freely convertible into Euro, freely transferable and readily available
in the London interbank market.
"ASSET SECURITY DOCUMENT" means, in relation to a Group Company, such
document or documents in favour of the Security Trustee as will under
the laws of that Group Company's jurisdiction of incorporation create
security over substantially all of its assets and undertaking and which
are in form and substance reasonably satisfactory to the Security
Trustee.
"AUDITORS" means, in relation to each Group Company,
PricewaterhouseCoopers or any other firm of chartered accountants of
internationally recognised standing that has been appointed as auditors
of such Group Company.
"AUSTRIAN HOLDCO" means Dynea Holding GmbH, a company incorporated in
Austria with registered number FN 189161d.
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"AUSTRIAN INVESTCO I" means Krems Chemie Chemical Services GmbH, a
company incorporated in Austria with registered number FN189167m.
"AUSTRIAN INVESTCO II" means KCA Chemische Produkte GmbH, a company
incorporated in Austria with registered number FN 189166k.
"AUSTRIAN NESTE" means Krems Chemie GmbH, a company incorporated in
Austria with registered number 189206W.
"AVAILABLE REVOLVING CREDIT COMMITMENT" means, in relation to a Bank,
its Revolving Credit Commitment less the Original Euro Amount of (a)
its Participations in the Revolving Advances and (b) its Bank
Indemnity.
"AVAILABLE REVOLVING CREDIT FACILITY" means the aggregate of the
Available Revolving Credit Commitments of the Banks.
"BANK GUARANTEE" means any guarantee, bond, indemnity, letter of
credit, documentary or other credit, or any other instrument of
suretyship or payment, issued, undertaken or made or, as the case may
be, proposed to be issued, undertaken or made by the Issuing Bank under
the Revolving Credit Facility.
"BANK GUARANTEE REQUEST" means a request substantially in the form set
out in Part II of Schedule 3 (Bank Guarantee Request).
"BANK INDEMNITY" means, in relation to a Bank, the indemnity given by
that Bank to the Issuing Bank under Clause 4.15 (Counter indemnity from
the Banks); and "BANK INDEMNITIES" shall be construed accordingly.
"BANKS" means (a) the banks and financial institutions listed in
Schedule 1 (The Banks) and any Bank Transferee, together with their
respective successors in title, PROVIDED THAT any bank or financial
institution which transfers all of its Commitment in accordance with
Clause 21.4 (Transfers by Banks) shall cease to be a "Bank" and (b)
(save for the purpose of determining the Majority Banks and for the
purpose of sub-clause 18.2.3 of Clause 18.2 (All Banks) at any time
prior to the Senior Discharge Date) the Term D Lender.
"BANK TRANSFEREE" has the meaning given to that term in sub-clause
21.4.2 of Clause 21.4 (Transfers by Banks).
"BOOZ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ REPORTS" means each of the market reports prepared
by ▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ entitled "Primus - Operations Improvement"
dated 15 June 2000 and "Construction and Furniture Industry Trends"
dated 24 November 1999 respectively and each addressed, among others,
to the Finance Parties, or subject to a reliance letter in favour of
the Finance Parties.
"BORROWER INDEMNITY" means, in relation to a Borrower, the indemnity
given by that Borrower to the Issuing Bank and each Bank under Clause
4.14 (Counter indemnity from the Borrowers); and "BORROWER INDEMNITIES"
shall be construed accordingly.
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"BORROWERS" means Dynea, Nordkem, Dynco and any other Charging Group
Company that becomes a party to this Agreement pursuant to Clause 2.4
(Additional Borrowers); and "BORROWER" shall be construed accordingly.
"BUSINESS DAY" means a day (other than Saturday or Sunday) on which
banks are open for general interbank business in London, Oslo and
Helsinki and:
(a) in relation to a transaction involving an Alternative
Currency, in the principal financial centre of the country of
that Alternative Currency; and
(b) in relation to any date for payment or purchase of a sum
denominated in the Euro, any TARGET Day.
"CANADIAN NESTE" means Dynea Canada Limited, a company incorporated in
Canada.
"CAN DOLLARS" and "CAN $" means the lawful currency for the time being
of Canada.
"CAPITAL EXPENDITURE" has the meaning given to that term by IAS.
"CAPTIVE BRIDGING LOAN" means the loan made pursuant to the Captive
Bridging Loan Agreement.
"CAPTIVE BRIDGING LOAN AGREEMENT" means the bridging loan agreement
made or to be made between Dyno ASA and Leonia Corporate Bank plc and
guaranteed by Parentco.
"CAPTIVE INSURANCE COMPANY" means Forsikringsselskap Eksplosionsskade.
"CASH EQUIVALENTS" means all bonds, notes, certificates of deposit and
commercial paper with a maturity of not more than 12 months and rated
at least A-1 by Standard and Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc or P-1 by ▇▇▇▇▇'▇ Investor Services Inc.
"CASHFLOW" means, in respect of the Group in relation to any period,
the aggregate of EBITDA for that period:
(a) plus, to the extent not already taken account of in EBITDA,
the Net Cash Proceeds in relation to Disposals of fixed assets
during that period;
(b) plus any decrease, or minus any increase, in Net Working
Capital during that period;
(c) plus any receipts by way of extraordinary or exceptional items
and minus any payments by way of extraordinary or exceptional
items, in each case, received or made during that period;
(d) minus any dividends paid in respect of minority interests for
that period;
(e) plus any dividends received from other fixed assets
investments during that period;
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(f) plus income from participating interests in associated
undertakings to the extent received in cash and minus any
payment made to associated undertakings during that period;
(g) plus any increase or minus any decrease in provisions for
liabilities and charges made in respect of that period;
(h) minus Capital Expenditure (but excluding, for the avoidance of
doubt, any Capital Expenditure paid by any joint ventures
and/or associated undertakings) paid or contractually required
to be paid during that period;
(i) plus realised exchange gains and minus realised exchange
losses charged during that period to the extent not already
taken account of in EBITDA for that period;
(j) minus any Restructuring Costs paid in such period;
(k) minus, to the extent included in EBITDA, the Net Cash Proceeds
of the Disposals of the Paper Chemicals Business, the
Investcos, the Explosive Subsidiaries (and any other part of
the explosives business of Dyno) and the entire issued share
capital of NCT Holland B.V. received in such period;
(l) plus any Chemitec Proceeds received in cash by a Group Company
in such period save to the extent the same are applied in
prepayment of the Term Loan Facilities;
(m) minus the aggregate of all corporation or other similar Taxes
(other than Taxes paid in respect of the Disposal of the
Oilfield Chemicals Business up to an aggregate maximum amount
of EUR 15,000,000) paid during that period;
(n) plus the proceeds of any part of the Initial Equity Injection
and any Term D Advance received by Dynco in cash during that
period; and
(o) minus all amounts paid to, and plus all amounts released
(other than where the same are applied in prepaying the
Facilities) from, a bank account to which sub-clauses
12.4.2(b) and 12.4.2(h) of Clause 12.4 (Negative Undertakings)
refer.
(For the purposes of this definition: (1) there shall be no double
counting and (2) "NET WORKING CAPITAL" means the aggregate of Current
Assets (excluding all of cash at bank and cash in hand, all assets in
relation to Tax and accrued interest receivable) less the aggregate of
Current Liabilities (excluding moneys due in relation to the Facilities
and liabilities in relation to Tax, extraordinary items and dividends
payable); "CURRENT ASSETS" means, in relation to the Group, the
aggregate value of its assets which are treated as current assets in
accordance with IAS; and "CURRENT LIABILITIES" means, in relation to
the Group, the aggregate value of its liabilities which are treated as
current liabilities in accordance with IAS).
"CASH MARGIN" means:
(a) in respect of the Term A Loan Facility and the Revolving
Credit Facility, subject to Clause 6.2 (Margin Ratchet), 2.00
per cent. per annum;
-5-
(b) in respect of the Term B Loan Facility, 2.50 per cent. per
annum;
(c) in respect of the Term C Loan Facility, 3.00 per cent. per
annum; and
(d) in respect of the Term D Loan Facility, 3.00 per cent. per
annum.
"CERTIFIED COPY" means, in relation to a document, a copy of that
document bearing the endorsement "Certified a true, complete and
accurate copy of the original, which has not been amended otherwise
than by a document, a Certified Copy of which is attached hereto",
which has been signed and dated by a duly authorised officer of the
relevant company and which complies with that endorsement.
"CHANGE" means, in relation to a Bank (or any company of which that
Bank is a Subsidiary), the introduction, implementation, repeal,
withdrawal or change in, or in the interpretation or application of,
(a) any law, regulation, practice or concession, or (b) any directive,
requirement, request or guidance (whether or not having the force of
law but if not having the force of law, one which applies generally to
a class or category of financial institutions of which that Bank (or
that company) forms part and compliance with which is in accordance
with the general practice of those financial institutions) of the
European Community, any central bank including the European Central
Bank, the Financial Services Authority, or any other fiscal, monetary,
regulatory or other authority.
"CHANGE OF CONTROL" means a situation where, at any time:
(a) Industri Kapital and/or funds managed by it ceases to be the
beneficial owner (whether directly or indirectly) of shares in
the share capital of Parentco carrying the right to exercise
more than 50 per cent. of the votes exercisable at a general
meeting of Parentco; or
(b) Parentco ceases to be the beneficial owner of all of the
issued share capital of Issueco; or
(c) Issueco ceases to be the beneficial owner of all of the issued
share capital of Dynea.
"CHARGING GROUP COMPANIES" means each Group Company that has executed,
or is by the terms of this Agreement to execute, in the case of a Group
Company incorporated in England and Wales or Ireland, a Guarantee and
Debenture and, in the case of a Group Company incorporated outside of
England and Wales or Ireland, a Guarantee and an Asset Security
Document, and "CHARGING GROUP COMPANY" shall be construed accordingly.
"CHEMITEC COMPANIES" means each of Dynea Erkner GmbH, Dynea France SA,
Dynea Resins France SAS, Dynea A/S, Dynea Aycliffe Ltd, Chemitec do
Brasil LTDA, SCP Dynea do Brasil and Dynea Holding BV, The Netherlands.
"CHEMITEC PROCEEDS" means the proceeds of an Issueco Loan or a
subscription for new shares in Dynea by Issueco in an aggregate amount
of EUR 35,000,000 made at or about the time of the acquisition of the
share capital of the Chemitec Companies by a Group Company.
-6-
"CHRISTIANIA FACILITIES" means the credit facilities up to the maximum
aggregate amount of NOK2,750,000,000 provided by Christiania Bank og
Kreditkasse to Dyno Nobel ASA for the purpose of, among other things,
the financing of the acquisition of the Explosives Subsidiaries and all
other parts of the explosives business of Dyno.
"COMMITMENT" means, in relation to a Bank, the aggregate of its Term A
Loan Commitment, its Term B Loan Commitment, its Term C Loan
Commitment, its Term D Loan Commitment and its Revolving Credit
Commitment.
"COMPLIANCE CERTIFICATE" has the meaning given to that term in
sub-clause 12.2.5 of Clause 12.2 (Information Undertakings).
"CONFIRMATION DOCUMENT" means:
(a) each of the documents referred to in sub-paragraphs (b) and
(c) of paragraph 2 of Part III of Schedule 2;
(b) written acknowledgement from Issueco that the Share Charge
granted by Issueco over the shares in Dynea will remain in
full force and effect notwithstanding the amendments to the
Credit Agreement to be effected pursuant to this Agreement and
will secure each of the Facilities;
(c) written acknowledgement from Dynea that the Share Charge
granted by Dynea over the shares in Dynea Finland Oy will
remain in full force and effect notwithstanding the amendments
to the Credit Agreement to be effected pursuant to this
Agreement and will secure each of the Facilities; and
(d) a letter of confirmation from Dynea in relation to the Share
Charge granted by Dynea over the entire issued share capital
of Dynea Holding GmbH.
"DANGEROUS MATERIALS" means any element or substance, whether
consisting of gas, liquid, solid or vapour, identified by any
Environmental Law to be, to have been, or to be capable of being or
becoming, harmful to mankind or any living organism or damaging to the
Environment.
"DEED OF ACCESSION" means a deed substantially in the form set out in
Schedule 7 (Form of Deed of Accession).
"DEFAULT" means any event specified as such in Clause 13.1 (Default).
"DEFAULT NOTICE" has the meaning given to that term in sub-clause
13.2.1 of Clause 13.2 (Acceleration etc).
"DEFEASED DYNO BONDS INDEBTEDNESS" means that part of the Indebtedness
under the Existing Dyno Bonds that has been cash collateralised.
"DEPRECIATION" has the meaning given to that term by IAS.
"DISCLOSURE LETTER" has the meaning given to the Disclosure Schedule in
the Dynea Acquisition Agreement.
-7-
"DISPOSAL" means a sale, transfer or other disposal (including by way
of lease or loan) by a person of all or part of its assets, whether by
one transaction or a series of transactions and whether at the same
time or over a period of time.
"DRAWDOWN DATE" means the date on which an Advance is made, or is
proposed to be made.
"DRAWDOWN NOTICE" means a notice substantially in the form set out in
Part I of Schedule 3 (Drawdown Notice).
"DUTCH HOLDCO" means Nordkem B.V., a company incorporated in the
Netherlands with registered number 27174375.
"DYNCO" means Dynea Investment Oy, a company incorporated in Finland
with corporate business ID 1849133-8.
"DYNEA ACQUISITION" means the acquisition by Dynea of the Dynea Shares
and the Dynea Assets pursuant to the Dynea Acquisition Agreement.
"DYNEA ACQUISITION AGREEMENT" means the sale and purchase agreement
dated 8th October 1999 relating to the sale and purchase of the Dynea
Shares and the Dynea Assets and made between (a) Dynea Chemicals Oy
(formerly Neste Chemicals Oy) and Neste Chemicals Benelux Holdings, (b)
Dynea, (c) Fortum Oil and Gas Oy and (d) Industri Kapital (but, for the
avoidance of doubt, shall not include the Disclosure Letter).
"DYNEA ASSETS" means the Assets as such term is defined in the Dynea
Acquisition Agreement.
"DYNEA INVESTCOS" means Austrian Investco I, Austrian Investco II and
German Investco.
"DYNEA SECURITY ASSIGNMENT" means the assignment by way of security
entered into by Dynea in favour of the Security Trustee on or about 13
February 2004 in respect of its rights under the Performance
Guarantees.
"DYNEA SHARES" means the Neste Austrian Shares, the Neste Canadian
Shares, the Neste French Shares, the Neste Swedish Shares, the Neste US
Shares and the Remaining Dynea Shares.
"DYNO" means Dyno ASA, a company incorporated under the laws of Norway
with registered number 820 051 122.
"DYNO ACQUISITION" means the acquisition by Nordkem of the Dyno Shares
pursuant to the Offer.
"DYNO EXPLOSIVES SALE AGREEMENT" means the sale and purchase agreement
relating to the explosives business of Dyno made or to be made between,
among others, Dyno and Dyno Nobel ASA.
"DYNO INVESTCOS" means Dyno Speciality Polymer AS, Dyno Radnor AS and
Dynopart AS.
-8-
"DYNO SHARES" means all of the issued share capital of Dyno.
"EBITDA" means, in relation to the Group for any period the
consolidated net profit of the Group for that period before Taxation
and Total Net Interest Costs and adding back:
(a) Depreciation charged to the consolidated profit and loss
account of the Group during such period;
(b) any amount of Acquisition Goodwill amortised in that period
against the consolidated profit and loss account of the Group;
(c) Acquisition Costs and other non-cash items charged or
amortised in that period to, or against, the consolidated
profit and loss account of the Group;
(d) Restructuring Costs paid in such period to the extent the same
do not constitute an extraordinary or exceptional item;
(e) to the extent not taken account of in paragraph (a) above, any
insurance proceeds received in such period in respect of
business interruption to the extent such proceeds covers loss
of revenue for the Group; and
(f) the proceeds of any Further Equity Injections made after the
Effective Date received in such period up to an aggregate
maximum amount, for the period of 18 months following the
Effective Date, of Euro 15 million,
but excluding:
(i) profit and loss attributable to minority interests (if any);
(ii) any profit or loss arising on the disposal of fixed assets;
(iii) income from, and investments in, participating interests in
associated undertakings and income from any other fixed asset
investment (excluding income from Methanor V of which, for the
avoidance of doubt, shall be included in the consolidated net
profit of the Group);
(iv) amounts written off the value of investments;
(v) realised and unrealised exchange gains and losses; and
(vi) extraordinary and exceptional items; and
(vii) without double counting, all professional fees (being legal
and accounting fees) directly incurred in relation to the
amendment and restatement of this Agreement on or about 13
February 2004 or the implementation of both the business plan
for the Group for the Financial Years ending 31 December 2004,
31 December 2005 and 31 December 2006 delivered to the
Facility Agent on 15 December 2003 and the New Business Plan,
in each case to the extent taken into account in the
calculation of EBITDA for the relevant period.
For the purposes of sub-clause 12.6.2 of Clause 12.6 (Financial
Undertakings) in relation to any period (the "RELEVANT PERIOD") of 12
months ending on or before the date
-9-
falling 12 months after the date of this Agreement, EBITDA shall be
calculated on an annualised basis by multiplying EBITDA for the period
(the "CALCULATION PERIOD") from the date of this Agreement to the end
of the Relevant Period by the dividend of 365 divided by the number of
days in the Calculation Period. In addition, in computing EBITDA for
any 12 month period there shall be added (1) if but only if such
proceeds are greater than or equal to EUR 5,000,000, up to a maximum of
EUR 10,000,000 of the proceeds of any Issueco Loan or any Subscription
Proceeds (other than, in either case, any of the same which constitute
Chemitec Proceeds or are taken into account in ensuring that Dynea has
received the amounts referred to in sub-clause 13.1.17 of Clause 13.1
(Default) on the dates for receipt of such amounts set out therein)
made in cash during such period and (2) in the event that the Group
acquires Chemitec Companies on or before 31 March 2003, the earnings
before interest, tax depreciation and amortisation of the Chemitec
Companies (computed, mutatis mutandis, on the same basis as EBITDA) for
any part of such period falling on or after 1 January 2003 and before
the date the Group acquired the Chemitec Companies.
"EFFECTIVE DATE" has the meaning ascribed thereto in the amendment and
restatement agreement dated on or about 12 November 2001 which relates
to this Agreement.
"EMU LEGISLATION" means legislative measures of the Council of the
European Union for the introduction of, changeover to, or operation of,
the Euro.
"ENCUMBRANCE" means any mortgage, charge, assignment by way of
security, pledge, hypothecation, lien, right of set off, retention of
title provision, trust or flawed asset arrangement (for the purpose of,
or entered into with the intention of, granting security) or any other
security interest of any kind whatsoever, or any agreement, whether
conditional or otherwise, to create any of the same, or any agreement
to sell or otherwise dispose of any asset on terms whereby such asset
is or may be leased to or re acquired or acquired by any Group Company.
"ENVIRONMENT" means all or any of the following media: air (including
air within buildings or other structures and whether above or below
ground); land (including buildings and any other structures or
erections in, on or under it and any soil and anything below the
surface of land); land covered with water; and water (including sea,
ground and surface water).
"ENVIRONMENTAL LAW" means any statutory or common law, treaty,
convention, directive or regulation having legal or judicial effect
whether of a criminal or civil nature, concerning:
(a) pollution or contamination of the Environment;
(b) harm, whether actual or potential, to mankind and human
senses, living organisms and ecological systems;
(c) the generation, manufacture, processing, distribution, use
(including abuse), treatment, storage, disposal, transport or
handling of Dangerous Materials; or
(d) the emission, leak, release or discharge into the Environment
of noise, vibration, dust, fumes, gas, odours, smoke, steam,
effluvia, heat, light, radiation (of any
-10-
kind), infection, electricity or any Dangerous Material and
any matter or thing capable of constituting a nuisance or an
actionable tort of any kind in respect of such matters.
"ENVIRONMENTAL REPORTS" means (a) the report prepared by J&W Energi och
Miljo dated 6 May 1999 relating to the business of the NCO Target
Companies and (b) the report prepared by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇▇ in
respect of Dyno and its Subsidiaries dated 26 November 1999 each
addressed, among others, to the Finance Parties or subject to a
reliance letter in favour of the Finance Parties.
"EQUITY INJECTION" means (i) the subscription in cash for new issued
share capital in Issueco by Parentco or Industri Kapital or the making
of a subordinated loan to Issueco by Parentco or Industri Kapital and
the making of an Issueco Loan with the proceeds of that subscription or
loan, (ii) the subscription in cash for new issued share capital in
Neste by Parentco or Industri Kapital or the making in cash of a
subordinated loan to Issueco by Parentco or Industri Kapital (where the
terms of the subscription are approved by the Majority Banks), or (iii)
the distribution of pre-tax income in cash by a company incorporated in
Norway to a Group Company as described in sections 10.2, 10.3 and 10.4
of the 1999 General Tax Act of Norway or an equivalent distribution
made to the satisfaction of the Facility Agent (acting reasonably) in
compliance with the laws of Finland.
"EURO" means the single currency of the Participating Member States.
"EURO EQUIVALENT" means, in relation to an amount in an Alternative
Currency on the day on which the calculation falls to be made, the
amount of Euro which could be purchased with that amount of the
Alternative Currency using the Facility Agent's spot rate of exchange
for the purchase in the London foreign exchange market of Euro with the
Alternative Currency at or about 11.00 a.m. on the second Business Day
before that date.
"EXISTING DYNO BONDS" means Dyno's NOK300,000,000 5.65%
obligassjonsslan 1997/2002 and Dyno's NOK300,000,000 7%
obligassjonsslan 1993/2000.
"EXPLOSIVES SUBSIDIARIES" means the subsidiaries and associated
companies of Dyno and Dyno Industries USA Inc. in the explosives
industry sold or to be sold pursuant to the Dyno Explosives Sale
Agreement to the purchasers referred to therein.
"FACILITIES" means the Term A Loan Facility, the Term B Loan Facility,
the Term C Loan Facility, the Term D Loan Facility and the Revolving
Credit Facility; and "FACILITY" shall be construed accordingly.
"FACILITY AGENT" means Citibank International plc in its capacity as
facility agent and each successor Facility Agent appointed under Clause
16.3 (Default).
"FEES LETTER" means the letter dated the same date as this Agreement
from the Facility Agent to Dynea relating to certain fees payable to
the Lead Arranger, the Agents and the Issuing Bank by Dynea in relation
to this Agreement, being described on its face as the "Fees Letter".
-11-
"FINAL REPAYMENT DATE" means:
(a) in relation to the Term A Loan Facility and the Revolving
Credit Facility, 30 June 2007;
(b) in relation to the Term B Loan Facility, 30 June 2008;
(c) in relation to the Term C Loan Facility, 30 June 2009; and
(d) in relation to the Term D Loan Facility, 31 December 2009.
"FINANCE LEASE" means any lease, hire agreement, credit sale agreement,
hire purchase agreement, conditional sale agreement or instalment sale
and purchase agreement which should be treated in accordance with IAS
as a finance lease or in the same way as a finance lease.
"FINANCE LEASE EXPENDITURE" means the capital value of any asset the
subject of a Finance Lease to which a Group Company is a party.
"FINANCE PARTIES" means the Banks, the Agents, the Issuing Bank and the
Lead Arranger.
"FINANCIAL PLAN" means the projected financial statements for the Group
dated July 2000 and prepared by the Management.
"FINANCIAL YEAR" means in relation to a company, the tax and accounting
year of such company.
"FINANCING DOCUMENTS" means this Agreement, the Fees Letter, the
Interest Rate Protection Agreements and the Security Documents.
"FRENCH HOLDCO" means Marmorandum Holding S.A., a company incorporated
in France with registered number 1999B02984.
"FRENCH NESTE" means Neste Chimie France S.A., a company incorporated
in France with registered number 353 078 868.
"FURTHER EQUITY INJECTION" means one or more Equity Injections made
after the Effective Date.
"GERMAN INVESTCO" means Neste Chemicals GmbH.
"GERMAN NESTE" means Neste Chemicals Service GmbH, a company
incorporated in Germany.
"GLOBAL TRANSFER AGREEMENT" means a global transfer agreement in the
agreed form.
"GROUP" means Dynea, Nordkem, Dyno and each of their respective
Subsidiaries (but excluding the Explosives Subsidiaries and the
Investcos); and "GROUP COMPANY" means any one of them.
"GUARANTEE" means a guarantee in the agreed form executed or to be
executed in favour of the Security Trustee.
-12-
"GUARANTEE AND DEBENTURE" means a guarantee and debenture in the agreed
form executed or to be executed in favour of the Security Trustee.
"GUARANTOR" means each Group Company that has executed a Guarantee.
"GUARANTEED AMOUNT" means, in relation to a Bank Guarantee, the maximum
aggregate amount of the actual and contingent liabilities of the
Issuing Bank under that Bank Guarantee.
"HOLDCOS" means the Austrian Holdco, the Canadian Holdco, the French
Holdco, the Dutch Holdco and the US Holdco.
"IAS" means the international accounting principles formulated by the
International Accounting Standards Committee.
"INDEBTEDNESS" means, in relation to a person, its obligation (whether
present or future, actual or contingent, as principal or surety) for
the payment or repayment of money (whether in respect of interest,
principal or otherwise) incurred in respect of:
(a) moneys borrowed or raised;
(b) any bond, note, loan stock, debenture or similar instrument;
(c) any acceptance credit, ▇▇▇▇ discounting, note purchase,
factoring (to the extent that there is recourse to such
person) or documentary credit facility;
(d) the supply of any goods or services which is more than 90 days
past the expiry of the period customarily allowed by the
relative supplier after the due date;
(e) any Finance Lease;
(f) any guarantee, bond, stand by letter of credit or other
similar instrument issued by a financial institution, state or
agency of a state in connection with the performance of
payment obligations;
(g) any interest rate or currency swap agreement or any other
hedging or derivatives instrument or agreement;
(h) any arrangement entered into primarily as a method of raising
finance pursuant to which any asset sold or otherwise disposed
of by that person is or may be leased to or re acquired by a
Group Company (whether following the exercise of an option or
otherwise); or
(i) any guarantee, indemnity or similar insurance against
financial loss given in respect of the obligation of any
person which would fall within (a) to (h),
PROVIDED THAT there shall be no double counting.
"INDUSTRI KAPITAL" means both of Industri Kapital 1997 Limited and
Industri Kapital 2000 Limited, each incorporated under the laws of
Jersey whose registered office is at ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇, Channel Islands.
-13-
"INFORMATION PACKAGE" means:
(a) the Accountants' Reports;
(b) the Financial Plan;
(c) the Legal Due Diligence Reports;
(d) the Environmental Reports;
(e) the ▇▇▇▇▇ Europe Consultants Reports;
(f) the Booz ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Reports; and
(g) the PWC Tax Review Report.
"INITIAL EQUITY INJECTION" means an Equity Injection of Euro 30,000,000
made after the date the first Advance was made but on or before the
Effective Date.
"INSURANCE PROCEEDS" means all proceeds of insurance (net of Taxes and
costs and expenses associated with the making of the relevant claims
under the relevant policies) payable to (or to the order of) or
received by a Group Company in respect of loss or destruction of, or
damage to, an asset.
"INTELLECTUAL PROPERTY RIGHTS" means all patents, trade marks, service
marks, trade names, design rights, copyright (including rights in
computer software and moral rights and in published and unpublished
work), titles, rights to know-how and other intellectual property
rights, in each case whether registered or unregistered and including
applications for the grant of any of the foregoing and all rights or
forms of protection having equivalent or similar effect to any of the
foregoing which may subsist anywhere in the world.
"INTERCREDITOR AGREEMENT" means the intercreditor agreement dated the
same date as this Agreement made between Issueco, Dynea, the Banks
(other than the Term D Lender), the Facility Agent, the Security
Trustee, the Issuing Bank and the Noteholder Trustee.
"INTEREST DATE" means the last day of an Interest Period.
"INTEREST RATE PROTECTION AGREEMENTS" means each agreement entered into
or to be entered into between a Group Company and a Bank (other than
the Term D Lender) for the purpose of hedging the Group's interest rate
liabilities in relation to all or any part of the Term Loans.
"INTEREST PERIOD" means each period determined in accordance with
Clause 6 (Interest) for the purpose of calculating interest on Advances
or overdue amounts.
"INTRA-GROUP LOAN AGREEMENT" means each loan agreement, in the agreed
form, made or to be made between Issueco and Dynea.
"INVESTCOS" means the Dynea Investcos and the Dyno Investcos.
-14-
"INVESTMENT AGREEMENT" means the subscription and shareholders'
agreement dated 8 October 1999 as amended on as about the date of this
Agreement made between, among others, (a) Parentco, (b) the Investors,
(c) Orkla ASA, Swiss Branch, (d) Stichting Pensioenfonds PGGM, (e)
Lansforsakringar Wasa Liv Forsakrings AB and (f) Weyerhaeuser Company
Master Retirement Trust, together with the management shareholders'
agreement dated on or about the date of this Agreement made between (a)
Parentco, (b) the Management and (c) the Investors.
"INVESTORS" means each of the entities specified in Schedule 1 of the
Investment Agreement.
"ISSUECO" means Dynea International Oy, a company incorporated in
Finland with registered number 789.544 or any company that is
substituted as the principal obligor in respect of the Senior
Subordinated Notes pursuant to article 13 of the Senior Subordinated
Notes Instrument and which has agreed to be bound by the terms of the
Intercreditor Agreement pursuant to clause 16.2 of the Intercreditor
Agreement.
"ISSUECO BRIDGING LOAN" means the loan made pursuant to the Issueco
Bridging Loan Agreement.
"ISSUECO BRIDGING LOAN AMOUNT" means the principal amount of the
Issueco Bridging Loan, as increased from time to time by the
capitalisation of accrued interest.
"ISSUECO BRIDGING LOAN AGREEMENT" means the credit agreement made or to
be made between Issueco, Dynea, certain banks, Citibank International
plc as facility agent and Salomon Brothers International Limited as
lead arranger.
"ISSUECO LOAN" means each loan made by Issueco to Dynea pursuant to an
Intra-Group Loan Agreement or any other loan made by Issueco to a Group
Company which is subject to the terms of the Intercreditor Agreement.
"ISSUE DATE" means the date on which a Bank Guarantee is issued or is
proposed to be issued by the Issuing Bank.
"ISSUING BANK" means Citibank, N.A. or any other Bank (other than the
Term D Lender) which is appointed as a successor Issuing Bank under
Clause 16.15 (Distribution of Proceeds of Enforcement) as issuer of
Bank Guarantees under the Revolving Credit Facility pursuant to Clause
4 (Utilisation of the Facilities).
"▇▇▇▇▇ EUROPE CONSULTANTS REPORTS" means the reports prepared by ▇▇▇▇▇
Europe Consultants dated 27 October 1999 and 27 April 2000
respectively, each addressed, among others, to the Finance Parties or
subject to a reliance letter in favour of the Finance Parties.
"LEGAL DUE DILIGENCE REPORTS" means (a) the report entitled "Project
Nova/Figaro Due Diligence Report Legal" dated September 1999 prepared
by Messrs. Advokatfirman ▇▇▇▇▇ and (b) the report dated 25 November
1999 prepared by Messrs. ▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, in each case
addressed, among others, to the Finance Parties or, as the case may be,
subject to a reliance letter in favour of the Finance Parties.
-15-
"LENDING OFFICE" means, in relation to a Bank, the office set out under
its name in Schedule 1 (The Banks) or in the Schedule to its relevant
Transfer Certificate, or such other office through which that Bank's
Commitment is maintained and through which its Participation in the
Facilities is made and maintained under this Agreement.
"LIBOR" means, in relation to an Advance or overdue amount in a
particular currency and in relation to a particular Interest Period:
(a) the interest rate for deposits in that currency for a period
equal to that Interest Period which appears on the screen
display designated as "Page 248", "Page 3750", "Page 3740" or
"Page 3770", as appropriate, on the Telerate Service (or such
other screen display or service as may replace it for the
purpose of displaying British Bankers' Association LIBOR Rates
for deposits in that currency in the London interbank market)
at or about 11.00 a.m. on the applicable Rate Fixing Day for
that currency; and
(b) if no such interest rate appears on the Telerate Service (or
such replacement), the arithmetic mean (rounded upwards to the
nearest whole multiple of 1/16%) of the rates per annum (as
quoted to the Facility Agent at its request) at which each
Reference Bank was offering deposits in that currency in an
amount comparable with that Advance or overdue amount, as the
case may be, to leading banks in the London interbank market
for a period equal to that Interest Period at or about 11.00
a.m. on the applicable Rate Fixing Day for that currency.
"LISTING" means the admission of any part of the share capital of
Parentco or any Group Company to any recognised securities exchange.
"LOANS" means the Term A Loan, the Term B Loan, the Term C Loan, the
Term D Loan and the Revolving Loan; and "LOAN" shall be construed
accordingly.
"MAJORITY BANKS" means a group of Banks whose Commitments comprise at
least 66-2/3 per cent. of the Total Commitments (taking no account, for
the purpose of this definition, of the last sentence of sub-clause
13.2.1 of Clause 13.2 (Acceleration, etc).
"MANAGEMENT" means Oeivind ▇▇▇▇▇▇▇, Per ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ Silantera and Arve Sem-▇▇▇▇▇▇▇▇▇.
"MANAGEMENT ACCOUNTS" has the meaning given to that term in sub-clause
12.2.2 of Clause 12.2 (Information Undertakings).
"MANDATORY COST RATE" means the rate determined in accordance with
Schedule 5 (Mandatory Cost Rate).
"MARGIN" means the Cash Margin and, in respect of the Term D Loan
Facility, the PIK Margin.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
ability of (a) any Group Company to comply with its payment obligations
under any Financing Document or (b) Dynea to comply with its
obligations under Clause 12.4 (Negative Undertakings).
-16-
"MATERIAL COMPANY" means each Borrower, each Guarantor, Dynea Fort
▇▇▇▇▇ Inc., Dyno Chemicals Ireland Ltd. and Dyno Overlays Inc. and each
other Subsidiary of Dynea:
(a) whose earnings before interest, Tax, depreciation and
amortisation (computed, mutatis mutandis, on the same basis as
EBITDA) are equal to or greater than 5 per cent. of EBITDA; or
(b) whose net sales are equal to or greater than 5 per cent. of
the aggregate net sales of the Group; or
(c) whose assets have a value equal to or greater than 5 per cent.
of the aggregate value of all assets owned by the Group.
For the purpose of paragraphs (a) and (b), earnings before interest,
Tax, depreciation, EBITDA and amortisation and net sales shall be
measured over a period of at least 12 months duration ending on a
Quarter Date.
"NCO TARGET COMPANIES" means the NCO Group as such term is defined in
the Dynea Acquisition Agreement.
"NESTE AUSTRIAN SHARES" means all of the issued share capital of the
Austrian Neste.
"NESTE CANADIAN SHARES" means all of the issued share capital of the
Canadian Neste.
"NESTE FRENCH SHARES" means all of the issued share capital of the
French Neste.
"NESTE GROUP FACILITIES" means the senior term loan and revolving
credit facilities in a maximum principal amount of Euro 288,300,000
made available, inter alia, by the Banks (other than the Term D Lender)
to Dynea pursuant to a credit agreement dated 30th November 1999 and
the mezzanine loan facility in a maximum principal amount of Euro
67,275,000 made available by certain lenders to Dynea pursuant to a
mezzanine loan agreement dated 30 November 1999.
"NESTE SWEDISH SHARES" means all of the issued share capital of the
Swedish Neste.
"NESTE US SHARES" means all of the issued share capital of the US
Neste.
"NET AVAILABLE PROCEEDS" means in relation to any Disposal by Dynea,
the Net Cash Proceeds relating to such Disposal and in the case of any
Disposal by any other Group Company such part of the Net Cash Proceeds
thereof as:
(a) such Group Company would be able lawfully to make available,
directly or indirectly, to Dynea to enable Dynea to apply the
same in prepayment of the Term Advances; and
(b) in the case of a Disposal by a Group Company outside the
United Kingdom, can be repatriated to Dynea without breaching
any relevant exchange control or similar restrictions in the
country where the Net Cash Proceeds are received by such Group
Company.
-17-
"NET CASH PROCEEDS" means in relation to a Disposal, the cash proceeds
of such Disposal actually received by the Group Company concerned
including, as at the date of actual receipt thereof any deferred
consideration or consideration which is received, for whatever reason,
otherwise than at the time of such Disposal, less:
(a) all legal, title, registration and recording taxes and
expenses, commissions, costs, fees and expenses incidental to,
incurred on and fairly attributable to that Disposal;
(b) such amount as the Auditors shall consider reasonable as
provision against any Tax liability of any Group Company
arising as a result of that Disposal as certified to the
Facility Agent by such Auditors;
(c) in the case of a Disposal by a Subsidiary of Dynea such
provision as Dynea shall consider reasonable for all costs and
Taxes incurred by the Group and fairly attributable to
up-streaming the cash proceeds or making any distribution in
connection therewith to enable them to reach Dynea;
(d) any amount paid by the Group to top up an underfunded pension
scheme in a Subsidiary or business disposed of to the extent
necessary to facilitate the Disposal; and
(e) any amount required to be paid by the Group to the proprietor
of any Intellectual Property Rights related to the assets
disposed of where such payment is required to enable such
Intellectual Property Rights to be transferred with such
assets to the extent necessary to facilitate the Disposal.
"NEW BUSINESS PLAN" means the financial model including profit and
loss, balance sheet and cash flow projections relating to the Group for
the years 2005 to 2007 inclusive together with the written business
plan each prepared by senior management of Dynea.
"NORWEGIAN KRONER" and "NOK" means the lawful currency for the time
being of Norway.
"NOTEHOLDER TRUSTEE" means The Bank of New York as trustee for the
holders of the Senior Subordinated Notes and any successor trustee.
"OFFER" means the offer for the Dyno Shares to be made by Nordkem on
the terms and conditions contained in the Offer Document.
"OFFER DOCUMENT" means the document pursuant to which the Offer has
been made.
"OILFIELD CHEMICALS BUSINESS" means the business carried on by certain
Group Companies specialising in the production of the speciality
oilfield chemicals used predominantly to facilitate oil production and
transportation.
"ON-LENDING AGREEMENT" means the loan agreement dated 13 February 2004
between Dynco and Dynea pursuant to which Dynco agrees to lend the
proceeds of the Term D Advances to Dynea.
-18-
"OPERATING BUDGET" means, in relation to the Group and the period
starting not later than the date of this Agreement and ending on 31
December 2000, the Financial Plan, and in relation to each successive
12 month period thereafter during the Security Period:
(a) a projected balance sheet;
(b) a projected profit and loss account;
(c) a projected cash flow statement; and
(d) projected covenant calculations relating to each financial
undertaking contained in Clause 12.4 (Negative Undertakings),
relative to each such period and on a month by month basis and in
relation to (b) and (c), on both consolidated and a segment business
unit by segment business unit basis together with the Management's
commentary drawing on the previous period's performance and forecast
market conditions.
"ORIGINAL EURO AMOUNT" means:
(a) in relation to an Advance, or a Participation in an Advance,
denominated in Euro, the amount of that Advance or that
Participation, as the case may be;
(b) subject to paragraph (e) below, in relation to an Advance, or
a Participation in an Advance, denominated in an Alternative
Currency, the Euro Equivalent of the amount of that Advance or
that Participation, as the case may be, calculated as at the
Drawdown Date of that Advance;
(c) in relation to a Bank Guarantee, or that part of a Bank
Indemnity relating to a particular Bank Guarantee, denominated
in Euro, the Guaranteed Amount of that Bank Guarantee or the
corresponding amount of the actual and contingent liability
under that Bank Indemnity, as the case may be;
(d) in relation to a Bank Guarantee, or that part of a Bank
Indemnity relating to a particular Bank Guarantee, denominated
in an Alternative Currency, the Euro Equivalent of the
Guaranteed Amount of that Bank Guarantee or the Euro
Equivalent of the corresponding amount of the actual and
contingent liability under that Bank Indemnity, as the case
may be, calculated as at the Issue Date of that Bank
Guarantee;
(e) in relation to a Term Advance denominated in an Alternative
Currency under any Tranche or Facility listed in Column 1 of
Schedule 8 (Original Euro Amount), or a Participation in any
such Advance the amount in Euros set out in Column 2 of
Schedule 8 (Original Euro Amount) opposite that Tranche or
Facility or, as the case may be, the relevant portion of such
amount; and
(f) in relation to a Term Advance to be made under Tranche A1 or
Tranche B1 or a Participation in any such Term Advance, the
equivalent in euros calculated on the basis of an exchange
rate of euro 1:NOK 8.0869,
-19-
PROVIDED THAT if all or part of a Revolving Advance is not made or is
repaid or prepaid or the liability of the issuer of a Bank Guarantee
under that Bank Guarantee is permanently reduced, the "Original Euro
Amount" of that Revolving Advance and of the Participations of the
Banks in that Revolving Advance or, as the case may be, that Bank
Guarantee and any related Bank Indemnities, shall be correspondingly
reduced.
"OXO SALE AGREEMENT" means the agreement dated on or about the date of
this Agreement made between Nordkem B.V. and Lagrummet December nr 638
AB (to be renamed Oxo Holding AB) relating to the sale of the entire
issued share capital of Marmorandum Holding AB.
"PAPER CHEMICALS BUSINESS" means the paper chemicals business of
Austrian Neste and its Subsidiaries and associated companies.
"PAPER CHEMICALS BUSINESS SALE AGREEMENT" means the sale and purchase
agreement relating to the Paper Chemicals Business made or to be made
between Dynea and Austrian Neste as sellers and Kemira Chemicals Oy and
Kemira Chemie GesmbH as buyers.
"PARENTCO" means Nordkemi Oy Ab, a company incorporated in Finland with
registered number 770.353.
"PARTICIPATING MEMBER STATE" means a member state of the European Union
which has adopted or adopts the single currency in accordance with the
Treaty establishing the European Community (as that Treaty is amended
from time to time).
"PARTICIPATION" means, in relation to a Bank:
(a) and an Advance or a Loan, the part of that Advance or that
Loan, as the case may be, made available or to be made
available by that Bank and thereafter the part of that Advance
or that Loan, as the case may be, owing to that Bank from time
to time;
(b) and the Facilities, the aggregate of its Participations in
each Loan and its liabilities under its Bank Indemnity.
"PARTY" means a party to this Agreement.
"PERFORMANCE GUARANTEES" means:
(a) the performance guarantees entered into on or about 13
February 2004 by IK 1997 Limited and IK 2000 Limited in favour
of Dynea guaranteeing the availability of Euro 9,700,000 of
Tranche D2 of the Term D Loan Facility; and
(b) the performance guarantee entered into on or about 13 February
2004 by Dynea Oy in favour of Dynea guaranteeing the
availability of Euro 300,000 of Tranche D2 and all of Tranche
D3 of the Term D Loan Facility.
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance created under the Financing Documents;
-20-
(b) any right of set off or lien, in each case arising by
operation of law or in the ordinary course of its day to day
business;
(c) any retention of title to goods supplied to a Group Company in
the ordinary course of its trading activities;
(d) any right of netting or set off over credit balances on bank
accounts of Group Companies arising in the ordinary course of
the banking arrangements of the Group including, for the
avoidance of doubt, as part of a cash pooling arrangement;
(e) any agreement entered into by a Group Company in the ordinary
course of its trading activities to sell or otherwise dispose
of any asset on terms whereby that asset is or may be leased
to or re-acquired or acquired by a Group Company;
(f) any lien in favour of a bank over goods and documents of title
to goods arising in the ordinary course of documentary credit
transactions entered into in the ordinary course of its
trading activities;
(g) any Encumbrance over an asset of a company which becomes a
Subsidiary of Dynea (other than by reason of its
incorporation) after the date of this Agreement, being an
Encumbrance which is in existence at the time at which that
company becomes such a Subsidiary but only if (i) that
Encumbrance was not created in contemplation of such company
becoming a Subsidiary of Dynea, (ii) the principal amount
secured by that Encumbrance has not been and shall not be
increased and (iii) that Encumbrance is discharged within 6
months of the date on which that company became a Subsidiary
of Dynea;
(h) any Encumbrance over an asset acquired by a Group Company
after the date of this Agreement and subject to which that
asset is acquired but only if (i) that Encumbrance was not
created in contemplation of its acquisition by that company,
(ii) the amount secured by that Encumbrance has not been
increased in contemplation of, or since the date of, its
acquisition by that company and (iii) that Encumbrance is
discharged within 6 months of the date of its acquisition by
that company;
(i) for the period from the Unconditional Date to and including
the date falling 30 days thereafter, any Encumbrance over the
assets of Dyno and its Subsidiaries existing as at the date of
this Agreement;
(j) until the first Drawdown Date, Encumbrances securing the Neste
Group Facilities;
(k) any other Encumbrance created with the consent of the Majority
Banks;
(l) any Encumbrance over Dyno's future claims against the Captive
Insurance Company securing Indebtedness under the Captive
Bridging Loan Agreement;
(m) any Encumbrance in respect of cash collateral provided in
respect of Indebtedness under the Existing Dyno Bonds; and
-21-
(n) any Encumbrance not otherwise permitted pursuant to paragraphs
(a) to (l) (inclusive) in respect of any assets not exceeding,
in aggregate, Euro 4,500,000 in value (but where the value of
such assets which are beneficially owned by the Charging Group
Companies does not exceed, in aggregate Euro 2,000,000).
"PERMITTED INDEBTEDNESS" means:
(a) Indebtedness under any Financing Document;
(b) Indebtedness under the Intra-Group Loan Agreements;
(c) Indebtedness existing at the date of this Agreement between
Group Companies;
(d) Indebtedness under any Finance Lease permitted under
sub-clause 12.6.1(e) of Clause 12.6 (Financial Undertakings);
(e) Indebtedness of any Charging Group Company to another Charging
Group Company;
(f) Indebtedness of any Group Company which is not a Charging
Group Company to another such Group Company;
(g) any Indebtedness that is subordinated to the Facilities on
terms satisfactory to the Majority Banks;
(h) Indebtedness of any Group Company to a Charging Group Company;
(i) Indebtedness of any Group Company under any forward or spot
foreign exchange contract or any interest rate or currency
swap agreement or any other hedging or derivatives instrument
or agreement PROVIDED THAT such contract, agreement or
instrument is entered into by such Group Company in the
ordinary course of its day-to-day business for non-speculative
purposes;
(j) Indebtedness of Dynochem Vietnam in respect of a subsidised
NORAD loan up to the maximum aggregate amount of
NOK13,600,000;
(k) Indebtedness of Krems Chemie AG up to the maximum aggregate
amount of ATS 36,500,000 in respect of three loans made by
CA-BV and Osterreichische Investkredit;
(l) Indebtedness under the indemnity given in clause 10.5 of the
Dynea Acquisition Agreement;
(m) Indebtedness under any cash management facility entered into
by one or more Group Companies;
(n) Indebtedness under any documentary credit facility which is
discharged within 120 days of the date such credit is issued;
(o) until the first Drawdown Date, Indebtedness arising under the
Neste Group Facilities;
-22-
(p) Indebtedness of Dyno under the Captive Bridging Loan
Agreement;
(q) Indebtedness of Dynea under its guarantee of the Issueco
Bridging Loan contained in the Issueco Bridging Loan
Agreement;
(r) Indebtedness of Dynea under its guarantee of the Senior
Subordinated Notes contained in the Senior Subordinated Notes
Instrument and under any indemnity given under the purchase
agreement or the registration rights agreement or the Senior
Subordinated Notes Instrument relating to the Senior
Subordinated Notes;
(s) until the date falling 30 days after the Unconditional Date,
Indebtedness of Dyno and its Subsidiaries which existed at the
date of this Agreement;
(t) guarantees in respect of employees' Indebtedness to the extent
that such guarantees when aggregated with loans under
sub-clause 12.4.6(f) of Clause 12.4 (Negative Undertakings) do
not exceed Euro 1,000,000;
(u) until the date falling 60 days after the Unconditional Date,
Indebtedness of Dyno under the Existing Dyno Bonds;
(v) Defeased Dyno Bonds Indebtedness;
(w) Indebtedness of Dynea under the On-Lending Agreement; and
(x) Indebtedness not otherwise referred to in paragraphs (a) to
(w) (inclusive) in an aggregate principal amount not exceeding
Euro 9,500,000 for the Group taken as a whole.
"PERMITTED SENIOR SUBORDINATED NOTES PAYMENT" means:
(a) a payment of interest on the Senior Subordinated Notes at a
rate of 12.25 per cent. per annum pursuant to section 4.01 of
the Senior Subordinated Notes Indenture;
(b) a payment of fees, costs, indemnities, taxes and/or expenses
pursuant to article 7 of the Senior Subordinated Notes
Instrument;
(c) a payment of an Additional Amount (as defined in the Senior
Subordinated Notes Instrument) pursuant to section 4.15 of the
Senior Subordinated Notes Instrument;
(d) a payment of Special Interest (as defined in the Senior
Subordinated Notes); or
(e) the repayment of the Senior Subordinated Notes on the Stated
Maturity (as defined in the Senior Subordinated Notes
Instrument of the Senior Subordinated Notes.
"PIK MARGIN" means, in respect of the Term D Loan Facility, 1.00 per
cent. per annum.
"POLYESTER BUSINESS" means the business carried on by certain Group
Companies specialising in the production of unsaturated polyesters and
polyester gel coats.
-23-
"POTENTIAL DEFAULT" means an event or omission which, with the giving
of any notice or the lapse of time, in each case, under Clause 13.1
(Default), would be a Default.
"PROPERTY CHARGE" means a mortgage or charge over real property in the
agreed form.
"PUT AND CALL AGREEMENT" means the put and call agreement entered into
on or about 13 February 2004 between the Security Trustee, Dynea and
Dynea Oy.
"PWC DYNO STRUCTURING MEMORANDUM" means the memorandum prepared by
PricewaterhouseCoopers in relation to, inter alia, the acquisition of
the Dyno Shares.
"PWC TAX REVIEW REPORT" means the tax review report prepared by
PricewaterhouseCoopers entitled "PWC Project Fire - Limited Tax Review
Report" dated 24 November 1999 addressed, among others, to the Finance
Parties or subject to a reliance letter in favour of the Finance
Parties.
"QUARTER DATE" means each 31 March, 30 June, 30 September and 31
December.
"RATE FIXING DAY" means, in relation to any currency and any Interest
Period, the day on which quotes are customarily given in the London
interbank market for deposits in that currency for delivery on the
first day of that Interest Period, PROVIDED THAT if, for any such
period, quotations would ordinarily be given on more than one date, the
Rate Fixing Day for that period shall be the last of those dates.
"RECEIVING AGENT" means Orkla Enskilda Securities ASA, ▇ ▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ in its capacity as receiving agent for
acceptances under the terms of the Offer.
"REFERENCE BANKS" means the principal London offices of Citibank N.A.
or such other bank or banks as may be agreed between the Facility Agent
(acting on the instructions of the Majority Banks) and Dynea.
"REMAINING DYNEA SHARES" means that part of the issued share capital of
each of the NCO Target Companies acquired pursuant to the Dynea
Acquisition Agreement, other than the Neste Austrian Shares, the Neste
Canadian Shares, the Neste French Shares, the Neste Swedish Shares and
the Neste US Shares.
"RESERVATIONS" means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court, the
limitation of enforcement by laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, administration
and other laws generally affecting the rights of creditors, the time
barring of claims, the possibility that an undertaking to assume
liability for or to indemnify against non payment of stamp duty may be
void, defences of set off or counterclaim and similar principles.
"RESTRUCTURING COSTS" means any of the restructuring costs set out in
the cashflow statement for the year 2000 contained in the Financial
Plan which are paid by 31 December 2001 (up to an aggregate maximum
amount of Euro 20,000,000).
-24-
"REVOLVING ADVANCE" means an advance made or to be made to a Borrower
under the Revolving Credit Facility or, as the case may be, the
outstanding principal amount of any such advance.
"REVOLVING CREDIT COMMITMENT" means, in relation to a Bank, the
principal amount described as such set opposite its name in Schedule 1
(The Banks) or set out under the heading "Amount of Commitment
Transferred" in the Schedule to any relevant Transfer Certificate, in
each case as reduced or cancelled in accordance with this Agreement.
"REVOLVING CREDIT COMMITMENT PERIOD" means the period from and
including the date of this Agreement to but excluding the date falling
1 month before the Final Repayment Date in relation to the Revolving
Credit Facility.
"REVOLVING CREDIT FACILITY" means the multicurrency revolving loan and
guarantee facility referred to in sub-clause 2.1.1(e) of Clause 2.1
(Facilities).
"REVOLVING CREDIT FACILITY LIMIT" means, subject to Clause 7.15
(Cancellation of Facilities), Euro 100,000,000.
"REVOLVING LOAN" means, at any time, all Revolving Advances at that
time.
"SALE" means a disposal of all or substantially all of the business and
assets of the Group.
"SECURITY DOCUMENTS" means:
(a) any Guarantee executed by a Group Company;
(b) any Share Charge executed by Issueco or a Group Company;
(c) any Guarantee and Debenture executed by a Group Company;
(d) any Asset Security Document executed by a Group Company;
(e) any Property Charge executed by a Group Company;
(f) the Dynea Security Assignment;
(g) the Put and Call Agreement;
(h) each Confirmation Document;
(i) the Intercreditor Agreement; and
(j) any guarantee and any document creating security executed and
delivered after the date of this Agreement as security for any
of the obligations and liabilities of any Borrower and the
other Group Companies under any Financing Document.
"SECURITY PERIOD" means the period starting on the date of this
Agreement and ending on the date on which all of the obligations and
liabilities of the Group Companies under each Financing Document are
discharged in full and none of the Finance Parties has any continuing
obligation in relation to the Facilities.
-25-
"SECURITY TRUSTEE" means Citibank International plc in its capacity as
security trustee and agent and each successor Security Trustee
appointed under Clause 16.2 (Payments).
"SENIOR DISCHARGE DATE" means the date on which all of the obligations
and liabilities of the Group Companies in respect of the Term A Loan
Facility, the Term B Loan Facility, the Term C Loan Facility and the
Revolving Credit Facility are discharged in full and none of the
Finance Parties has any continuing obligation in relation to such
Facilities.
"SENIOR SUBORDINATED NOTES" means up to Euro 250,000,000 fixed interest
senior subordinated notes due 2010 to be issued by Issueco and shall
include any Exchange Notes (as defined in the Senior Subordinated Notes
Instrument).
"SENIOR SUBORDINATED NOTES DOCUMENTS" means the Senior Subordinated
Notes Instrument and the Senior Subordinated Notes.
"SENIOR SUBORDINATED NOTES INSTRUMENT" means the indenture executed or
to be executed by Issueco, Dynea and the Noteholder Trustee pursuant to
which the Senior Subordinated Notes are or will be constituted.
"SHARE CHARGE" means any share charge or share pledge, in each case in
the agreed form, executed or to be executed in favour of the Finance
Parties represented by the Security Trustee over all or substantially
all of the issued share capital of any Group Company.
"SHARED SECURITY DOCUMENTS" has the meaning given to that term in
sub-clause 16.15.1 of Clause 16.15 (Distribution of Proceeds of
Enforcement).
"SUBSCRIPTION PROCEEDS" means the proceeds of a subscription for new
shares in Dynea by Issueco where such shares are subject to a Share
Charge executed by Issueco.
"SUBSIDIARY" means a company, partnership or stock corporation:
(a) in respect of which another company, partnership or stock
corporation holds (whether directly or indirectly) more than
50 per cent. of the voting rights in it; or
(b) in respect of which another company, partnership or stock
corporation is a member of it and either (i) has the right to
appoint or remove a majority of its board of directors or (ii)
controls alone, pursuant to an agreement with other
shareholders, members, holders of partnership interests or
stockholders, more than 50 per cent. of the voting rights in
it; or
(c) which is a subsidiary of a company, partnership or stock
corporation which is itself a subsidiary of that other
company, partnership or stock corporation.
"SURPLUS CASH" means, in relation to any Financial Year of Dynea, the
amount by which Cashflow for that Financial Year exceeds the aggregate
of (a) Total Funding Costs for that Financial Year, (b) the aggregate
amount of prepayments of the Term Loan Facilities made in that
Financial Year pursuant to Clauses 7.6 (Mandatory Prepayment of Net
Available Proceeds), 7.8 (Mandatory Prepayment of Insurance Proceeds),
7.9 (Mandatory Prepayment of Vendor Payments), 7.11 (Net Cash Proceeds
of the Polyester
-26-
Business) and 7.13 (Voluntary Prepayment of Advances) inclusive and (c)
Euro 10,000,000 PROVIDED THAT for the purpose of this definition
Cashflow shall be calculated excluding paragraph (n) of that definition
and PROVIDED THAT in computing Cashflow for the above purposes, no
account shall be taken of paragraph (l) of the definition thereof or of
(1) in the last sentence of the definition of EBITDA.
"SWEDISH KRONER" and "SEK" means the lawful currency for the time being
of Sweden.
"TARGET" means the Trans-European Real-Time Gross Settlement Express
Transfer payment system.
"TARGET DAY" means any date on which TARGET is open for the settlement
of payments in Euro.
"TAXES" includes all present and future taxes, charges, imposts,
duties, levies, deductions, withholdings or fees of any kind
whatsoever, or any amount payable on account of or as security for any
of the foregoing, by whomsoever on whomsoever and wherever imposed,
levied, collected, withheld or assessed, together with any penalties,
additions, fines, surcharges or interest relating thereto; and "TAX"
and "TAXATION" shall be construed accordingly.
"TERM A ADVANCE" means each advance made or to be made to a Borrower
under the Term A Loan Facility or, as the case may be, the outstanding
principal amount of that advance, and each advance into which a Term A
Advance is split pursuant to sub-clause 6.3.4 of Clause 6.3 (Interest
Periods).
"TERM A INSTALMENT" has the meaning given to that term in Clause 7.1
(Repayment of Term A Loan).
"TERM A INSTALMENT REPAYMENT DATE" has the meaning given to that term
in Clause 7.1 (Repayment of Term A Loan).
"TERM A LOAN" means, at any time, the aggregate of all Term A Advances
outstanding at that time.
"TERM A LOAN COMMITMENT" means, in relation to a Bank, the principal
amount described as such set opposite its name in Schedule 1 (The
Banks) or set out under the heading "Amount of Commitment Transferred"
in the Schedule to any relevant Transfer Certificate, in each case, as
reduced or cancelled in accordance with this Agreement.
"TERM A LOAN FACILITY" means the term loan facility referred to in
sub-clause 2.1.1(a) of Clause 2.1 (Facilities).
"TERM ADVANCES" means all and each of the Term A Advances, the Term B
Advances, the Term C Advances and the Term D Advances and "TERM
ADVANCE" shall be construed accordingly.
"TERM B ADVANCE" means the advance made or to be made to a Borrower
under the Term B Loan Facility or, as the case may be, the outstanding
principal amount of that advance and each advance into which a Term B
Advance is split pursuant to sub-clause 6.3.4 of Clause 6.3 (Interest
Periods).
-27-
"TERM B INSTALMENT" has the meaning given to that term in Clause 7.2
(Repayment of Term B Loan).
"TERM B INSTALMENT REPAYMENT DATE" has the meaning given to that term
in Clause 7.2 (Repayment of Term B Loan).
"TERM B LOAN" means, at any time, the aggregate of all Term B Advances
outstanding at that time.
"TERM B LOAN COMMITMENT" means, in relation to a Bank, the principal
amount described as such set opposite its name in Schedule 1 (The
Banks) or set out under the heading "Amount of Commitment Transferred"
in the Schedule to any relevant Transfer Certificate, in each case, as
reduced or cancelled in accordance with this Agreement.
"TERM B LOAN FACILITY" means the term loan facility referred to in
sub-clause 2.1.1(b) of Clause 2.1 (Facilities).
"TERM C ADVANCE" means the advance made or to be made to a Borrower
under the Term C Loan Facility or, as the case may be, the outstanding
principal amount of that advance and each advance into which a Term C
Advance is split to pursuant to sub-clause 6.3.4 of Clause 6.3
(Interest Periods).
"TERM C LOAN" means, at any time, the aggregate of all Term C Advances
outstanding at that time.
"TERM C LOAN COMMITMENT" means, in relation to a Bank, the principal
amount described as such set opposite its name in Schedule 1 (The
Banks) or set out under the heading "Amount of Commitment Transferred"
in the Schedule to any relevant Transfer Certificate, in each case, as
reduced or cancelled in accordance with this Agreement.
"TERM C LOAN FACILITY" means the term loan facility referred to in
sub-clause 2.1.1(c) of Clause 2.1 (Facilities).
"TERM COMMITMENT PERIOD" means the period from and including the date
of this Agreement to and including 31 August 2000.
"TERM D ADVANCE" means each advance made or to be made to Dynco under
the Term D Loan Facility or, as the case may be, the outstanding
principal amount of that advance and each advance into which a Term D
Advance is split to pursuant to sub-clause 6.3.4 of Clause 6.3
(Interest Periods).
"TERM D LENDER" means (a) Dynea Oy, (b) any bank or financial
institution to which Dynea Oy assigns any of its rights and benefits
under the Financing Documents or transfers any of its rights and
obligations under the Financing Documents in accordance with Clause 21
(Assignments and Transfers) and (c) any further assignee or transferee
of such rights, benefits and obligations.
"TERM D LOAN" means, at any time, the aggregate of all Term D Advances
outstanding at that time.
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"TERM D LOAN COMMITMENT" means, in relation to a Bank, the principal
amount described as such set opposite its name in Schedule 1 (The
Banks).
"TERM D LOAN FACILITY" means the term loan facility referred to in
sub-clause 2.1.1(d) of Clause 2.1 (Facilities).
"TERM LOAN BORROWER" means Dynea, Nordkem or Dynco and "TERM LOAN
BORROWERS" shall be construed accordingly.
"TERM LOAN FACILITIES" means all and each of the Term A Loan Facility,
the Term B Loan Facility, the Term C Loan Facility and the Term D Loan
Facility.
"TERM LOANS" means all and each of the Term A Loan, the Term B Loan,
the Term C Loan and the Term D Loan; and "TERM LOAN" shall be construed
accordingly.
"TOTAL COMMITMENTS" means the aggregate of the Term A Loan Commitments,
the Term B Loan Commitments, the Term C Loan Commitments and the
Revolving Credit Commitments of the Banks.
"TOTAL FUNDING COSTS" means, in relation to any period, the aggregate
of:
(a) Total Net Interest Costs for that period;
(b) all scheduled repayments of the Term Loans falling due during
that period; and
(c) the capital element of all rentals or, as the case may be,
other payments payable in that period, in each case, under any
Finance Lease entered into by any Group Company.
"TOTAL NET DEBT" means the aggregate of:
(a) that part of the Indebtedness of Group Companies (excluding
the Issueco Loans) which relates to obligations for the
payment or repayment of money in respect of principal incurred
in respect of (i) moneys borrowed or raised, (ii) any bond,
note, loan stock, debenture or similar instrument, or (iii)
any acceptance credit, ▇▇▇▇ discounting, note purchase,
factoring (to the extent that there is recourse to a Group
Company) or documentary credit facility (including, for the
avoidance of doubt, any indebtedness under this Agreement);
(b) the principal amount of the Senior Subordinated Notes; and
(c) the capital element of all rentals or, as the case may be,
other payments payable, in each case, under any Finance Lease
entered into by any Group Company,
less the aggregate of:
(i) cash at hand and at bank of the Group;
(ii) Cash Equivalents owned by the Group.
"TOTAL NET INTEREST COSTS" means, in relation to any period, the
aggregate of (a) all interest, commissions, periodic fees and other
financing charges payable in cash by the
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Group Companies (other than to another Group Company) during that
period (including the interest element payable under any Finance Lease)
and (b) all interest payable in cash on the Senior Subordinated Notes
during that period less any interest receivable in respect of cash
balances, less any sums receivable or plus any sums payable by the
Borrowers under any interest rate protection agreement of whatever
description during that period, and for the avoidance of doubt
excluding (a) any fees and commission payable in relation to the Dynea
Acquisition or the Dyno Acquisition, (b) any amounts amortised on
finance costs and issue costs arising from the Dynea Acquisition or the
Dyno Acquisition, (c) any interest payable on the Issueco Loans, (d)
any interest payable on the Captive Bridging Loan and (e) any PIK
Margin.
"TOTAL NET SENIOR INTEREST COSTS" means, in relation to any period, the
aggregate of Total Net Interest Costs for that period less all interest
and fees payable in cash on the Senior Subordinated Notes and the Term
D Loan Facility during that period.
"TOTAL REVOLVING CREDIT AMOUNT" means the aggregate of all Revolving
Advances denominated in Euros, the Guaranteed Amount of all Bank
Guarantees issued by the Issuing Bank denominated in Euros, the Euro
Equivalent at the date of computation of all Advances denominated in
Alternative Currencies, and the Euro Equivalent at the date of
computation of the Guaranteed Amount of all Bank Guarantees denominated
in an Alternative Currency.
"TOTAL REVOLVING CREDIT COMMITMENTS" means the aggregate of the Banks'
Revolving Credit Commitments.
"TOTAL TERM A LOAN COMMITMENTS" means the aggregate of the Banks' Term
A Loan Commitments.
"TOTAL TERM B LOAN COMMITMENTS" means the aggregate of the Banks' Term
B Loan Commitments.
"TOTAL TERM C LOAN COMMITMENTS" means the aggregate of the Banks' Term
C Loan Commitments.
"TOTAL TERM D LOAN COMMITMENTS" means the aggregate of the Banks' Term
D Loan Commitments.
"TRANCHE A1", "TRANCHE A2" and "TRANCHE A3" have the meanings given to
them respectively in sub-clause 2.1.1(a) of Clause 2.1 (Facilities),
"TRANCHE B1", "TRANCHE B2", "TRANCHE B3" and "TRANCHE B4" have the
meanings given to them respectively in sub-clause 2.1.1(b) of Clause
2.1 (Facilities), and "TRANCHES" means any one of them.
"TRANSACTION DOCUMENTS" means, in relation to a Group Company, each of
the following documents to which it is a party: the Financing
Documents, the Dynea Acquisition Agreement and the Investment
Agreement.
"TRANSFER CERTIFICATE" means a document substantially in the form set
out in Schedule 6 (Form of Transfer Certificate).
"UNCONDITIONAL DATE" means the date the Offer becomes unconditional in
all respects.
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"US DOLLARS" and "US $" means the lawful currency for the time being of
the United States of America.
"US HOLDCO" means Marmorandum Holding Company Inc., a company
incorporated in the United States of America whose registered office is
at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"US NESTE" means Dynea Chemicals Holding Inc., a company incorporated
in the United States of America whose registered office is at ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
"VAT" means value added tax as provided for in the Value Added Tax ▇▇▇
▇▇▇▇ and legislation (or purported legislation and whether delegated or
otherwise) supplemental to that Act or in any primary or secondary
legislation promulgated by the European Community or any official body
or agency of the European Community, and any tax similar or equivalent
to value added tax imposed by any country other than the United Kingdom
and any similar or turnover Tax replacing or introduced in addition to
any of the same.
1.2 HEADINGS
The headings in this Agreement are for convenience only and shall be
ignored in construing this Agreement.
1.3 INTERPRETATION
In this Agreement (unless otherwise provided):
1.3.1 words importing the singular shall include the plural and vice
versa;
1.3.2 references to Clauses and Schedules are to be construed as
references to the Clauses of, and schedules to, this
Agreement;
1.3.3 references to any Financing Document or any other document
shall be construed as references to that Financing Document or
that other document, as amended, varied, novated or
supplemented, as the case may be;
1.3.4 references to any statute or statutory provision include any
statute or statutory provision which amends, extends,
consolidates or replaces the same, or which has been amended,
extended, consolidated or replaced by the same, and shall
include any orders, regulations, instruments or other
subordinate legislation made under the relevant statute;
1.3.5 references to a document being "IN THE AGREED FORM" means that
document the form and content of which has been approved by
the Facility Agent and which has endorsed on it the words "in
the agreed form" and which is initialled by or on behalf of
the Facility Agent and Dynea;
1.3.6 references to "ASSETS" shall include revenues and property and
the right to revenues and property and rights of every kind,
present, future and contingent and whether tangible or
intangible (including uncalled share capital);
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1.3.7 the words "INCLUDING" and "IN PARTICULAR" shall be construed
as being by way of illustration or emphasis only and shall not
be construed as, nor shall they take effect as, limiting the
generality of any preceding words;
1.3.8 the words "OTHER" and "OTHERWISE" shall not be construed
ejusdem generis with any foregoing words where a wider
construction is possible;
1.3.9 references to a "PERSON" shall be construed so as to include
that person's assigns, transferees or successors in title and
shall be construed as including references to an individual,
firm, partnership, joint venture, company, corporation, body
corporate, unincorporated body of persons or any state or any
agency of a state;
1.3.10 where there is a reference in this Agreement to any amount,
limit or threshold specified in Euro, in ascertaining whether
or not that amount, limit or threshold has been attained,
broken or achieved, as the case may be, a non Euro amount
shall be counted on the basis of the Euro Equivalent of that
amount;
1.3.11 accounting terms shall be construed so as to be consistent
with IAS; and
1.3.12 references to time are to London time.
1.4 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of
this Agreement.
2. FACILITIES
2.1 FACILITIES
2.1.1 Subject to the terms of this Agreement:
(a) the Banks (other than the Term D Lender) agree to
make available a term A loan facility in an Original
Euro Amount of Euro 189,841,693 in three tranches as
follows:
(i) to Nordkem, a tranche ("TRANCHE A1") of up
to NOK 843,333,333 to be drawn down in
Norwegian Kroner;
(ii) to Dynea, a tranche ("TRANCHE A2") of US$
44,666,667 to be drawn down in US Dollars;
(iii) to Dynea, a tranche ("TRANCHE A3") of Can$
50,666,667 to be drawn down in Can Dollars;
(b) the Banks (other than the Term D Lender) agree to
make available a term B loan facility in an Original
Euro Amount of Euro 94,920,847 in four tranches as
follows:
(i) to Nordkem, a tranche ("TRANCHE B1") of NOK
167,533,089 to be drawn down in Norwegian
Kroner;
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(ii) to Dynea, a tranche ("TRANCHE B2") of NOK
254,133,577 to be drawn down in Norwegian
Kroner;
(iii) to Dynea, a tranche ("TRANCHE B3") of US$
22,333,333 to be drawn down in US Dollars;
and
(iv) to Dynea, a tranche ("TRANCHE B4") of Can$
25,333,333 to be drawn down in Can Dollars;
(c) the Banks (other than the Term D Lender) agree to
make available to Dynea a term C loan facility in the
Original Euro Amount of Euro 94,786,533 to be drawn
down in US Dollars in the amount of US$86,000,000;
(d) the Term D Lender agrees to make available to Dynco a
term D loan facility in the maximum principal amount
of Euro 31,700,000 in three tranches as follows:
(i) a tranche ("TRANCHE D1") of Euro 15,300,000;
(ii) a tranche ("TRANCHE D2") of Euro 10,000,000;
and
(iii) a tranche ("TRANCHE D3") of Euro 6,400,000;
(e) the Banks (other than the Term D Lender) agree to
make available to the Borrowers, a multicurrency
revolving loan and guarantee facility in the maximum
principal amount of Euro 100,000,000.
2.1.2 To the extent that Dynea receives any amount from Issueco by
way of Subscription Proceeds or under any Issueco Loan (but
excluding any Subscription Proceeds and the proceeds of any
Issueco Loan which are taken into account in calculating
EBITDA) then the Term D Commitments shall be correspondingly
reduced, and any such reduction shall be applied against
undrawn amounts under Tranche D2 and Tranche D3 in inverse
chronological order.
2.1.3 Notwithstanding any other term of this Agreement, the
aggregate of the Original Euro Amount of all Revolving
Advances and Bank Guarantees issued by the Issuing Bank shall
not, at any time, exceed the Total Revolving Credit
Commitments.
2.2 OBLIGATIONS SEVERAL
2.2.1 The obligations of each of the Finance Parties under this
Agreement are several.
2.2.2 The failure of a Finance Party to carry out its obligations
under this Agreement shall not relieve any other Party of any
of its obligations under this Agreement.
2.2.3 None of the Finance Parties shall be responsible for the
obligations of any other Party under this Agreement.
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2.3 RIGHTS SEVERAL
2.3.1 The rights of each Finance Party under this Agreement are
several. All amounts due, and obligations owed, to each of
them are separate and independent debts or, as the case may
be, obligations.
2.3.2 Each Finance Party may, except as otherwise stated in this
Agreement, separately enforce its rights under this Agreement.
2.3.3 Dynea shall, and it shall procure that each Charging Group
Company will, with the agreement of each of the Finance
Parties, pay sums equal to any sums owing to any Finance Party
under any of the Financing Documents to the Security Trustee
as joint and several creditor thereof when and to the extent
due from it under the terms of such Financing Documents to
such bank account as the Security Trustee may direct.
2.3.4 For the purposes of taking security as contemplated by the
Security Documents governed by the laws of Austria, Belgium,
Finland, France, Norway and The Netherlands the Security
Trustee shall be the joint and several creditor (together with
each other Finance Party) of each and every obligation of any
Charging Group Company towards such Finance Party under any
Financing Documents, so that accordingly the Security Trustee
will have its own independent right to demand performance by
the relevant Charging Group Company of those obligations, and
such obligations will be discharged by and to the extent of
any discharge thereof either to the Security Trustee or to the
relevant Finance Party.
2.4 ADDITIONAL BORROWERS
2.4.1 Dynea may, on giving notice to the Facility Agent, nominate a
Charging Group Company incorporated in Norway, Canada, the USA
or any country within the European Union as an additional
Borrower.
2.4.2 Dynea may, on giving notice to the Facility Agent and subject
to the consent of each Bank, nominate a Charging Group Company
incorporated outside the jurisdictions specified in sub-clause
2.4.1 as an additional Borrower.
2.4.3 A Charging Group Company wishing to become an additional
Borrower shall execute and deliver a Deed of Accession to the
Facility Agent together with all the documents referred to in
the Schedule to that Deed of Accession, each in form and
substance satisfactory to the Facility Agent acting
reasonably.
2.4.4 A Charging Group Company shall accede to this Agreement as a
Borrower on the Facility Agent counter signing the relevant
Deed of Accession.
2.4.5 Each Party authorises the Facility Agent to execute on its
behalf a Deed of Accession delivered to the Facility Agent in
accordance with the terms of this Clause 2.4 (Additional
Borrowers).
2.5 THE TERM D LOAN FACILITY
The terms relating to the repayment and prepayment in respect of the
Term D Loan Facility are set out in Schedule 9 (Provisions relating to
the Term D Loan Facility).
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2.6 OBLIGATIONS OF THE TERM D LENDER
The Term D Lender shall have no obligations hereunder save under
sub-clause 2.2.1 of Clause 2.2 (Obligations several), sub-clause 2.4.5
of Clause 2.4 (Additional Borrowers), Clause 10.4 (Release of security
on Disposals), Clause 10.5 (Release of security at end of Security
Period) and Clause 16 (The Finance Parties) notwithstanding any other
provision hereof.
2.7 ON-LENDING AGREEMENT
2.7.1 Dynco and Dynea hereby agree that the terms of the On-Lending
Agreement shall be subject to the provisions of Schedule 10
(Subordination).
2.7.2 Dynco and Dynea hereby agree that:
(a) the On-Lending Agreement shall not be amended,
varied, supplemented or novated; and
(b) neither Dynco nor Dynea shall assign or transfer its
rights under the On-Lending Agreement,
in each case without the prior written consent of the Facility
Agent.
2.8 PURPOSE OF THE TERM LOAN FACILITIES
2.8.1 The proceeds of the Term A Advances (other than under Tranche
A1), the Term B Advances (other than under Tranche B1 and
Tranche B2) and the Term C Loan Facility shall only be used to
refinance, directly or indirectly, the Neste Group Facilities.
2.8.2 The proceeds of Tranche A1, Tranche B1 and Tranche B2 shall
only be used to:
(a) pay the consideration payable by Nordkem for the Dyno
Shares purchased by it pursuant to the Offer or
pursuant to the mandatory offer which Nordkem will
issue pursuant to the Norwegian Securities Trading
Act chapter 4 and the procedure as to compulsory
transfer of shares in a subsidiary pursuant to the
Norwegian Act relating to Public Limited Liability
Companies (ASA) section 4-26, which Nordkem will
undertake after completion of the mandatory offer;
(b) pay the Acquisition Costs relating to the Dyno
Acquisition; and
(c) refinance the existing Indebtedness of Dyno and its
Subsidiaries.
2.8.3 The proceeds of the Term D Advances shall only be used by
Dynco for working capital purposes.
2.9 PURPOSE OF THE REVOLVING CREDIT FACILITY
2.9.1 The proceeds of Revolving Advances shall only be used by each
Borrower:
(a) for the general corporate purposes of that Borrower
(but not to make prepayments of the Term Loans or any
payments in respect of the Issueco Loan and not to
acquire any business or shares or securities of any
company);
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(b) to repay maturing Revolving Advances; and
(c) for the purposes set out in sub-clause 2.8.2(a) of
Clause 2.8 (Purpose of the Term Loan Facilities) but
only up to the maximum aggregate amount of Euro
20,000,000.
2.9.2 Bank Guarantees shall be issued by the Issuing Bank for the
general corporate purposes of the relevant Borrower.
2.10 UNDERTAKING BY THE BORROWERS
Each Borrower undertakes that it will only utilise the Facilities as
permitted by Clauses 2.8 (Purpose of the Term Loan Facilities) and 2.9
(Purpose of the Revolving Credit Facility).
2.11 NO LIABILITY
None of the Finance Parties shall be concerned as to the use or
application of the proceeds of the Advances or the use or applications
of amounts made available under any Facility.
3. CONDITIONS PRECEDENT
3.1 CONDITIONS PRECEDENT
All the conditions set out in Part I of Schedule 2 (Conditions
Precedent) have been satisfied or waived.
3.2 CONFIRMATION OF SATISFACTION
The Facility Agent shall, at the request of Dynea, certify whether or
not any one or more of the conditions set out in Part I of Schedule 2
(Conditions Precedent) have been satisfied or, as the case may be,
waived.
4. UTILISATION OF THE FACILITIES
4.1 DRAWDOWN OF TERM A LOAN FACILITY
4.1.1 Subject to the other terms of this Agreement, the Term A Loan
Facility shall be drawn down:
(a) by Dynea in one Term A Advance under each of Tranches
A2 and A3 simultaneously with the making of the first
Term Advance under any of Tranches A1, B1 or B2 or
under the Term C Loan Facility when requested by
Dynea by means of a Drawdown Notice in accordance
with Clause 4.8 (Drawdown Notice);
(b) by Nordkem in one or more Term A Advances under
Tranche A1 at any time during the Term Commitment
Period in each case when requested by Dynea by means
of a Drawdown Notice in accordance with Clause 4.8
(Drawdown Notice).
4.1.2 No drawdown of the Term A Loan Facility may be made unless a
Term B Advance and a Term C Advance has been, or
simultaneously with the drawdown of the first Term A Advance,
is made.
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4.2 DRAWDOWN OF TERM LOAN FACILITY
4.2.1 Subject to the other terms of this Agreement, the Term B Loan
Facility shall be drawn down:
(a) by Dynea in one Term B Advance under each of Tranches
B2, B3 and B4 simultaneously with the making of the
first Term Advance under any of Tranches A1 or B1 or
under the Term C Loan Facility when requested by
Dynea by means of a Drawdown Notice in accordance
with Clause 4.8 (Drawdown Notice); and
(b) by Nordkem in one or more Term B Advances under
Tranche B1 at any time during the Term Commitment
Period, in each case when requested by Dynea by means
of a Drawdown Notice in accordance with Clause 4.8
(Drawdown Notice).
4.2.2 No drawdown of the Term B Loan Facility may be made unless a
Term C Advance has been or, simultaneously with the drawdown
of the first Term B Advance, is made.
4.3 DRAWDOWN OF TERM C LOAN FACILITY
Subject to the other terms of this Agreement, the Term C Loan Facility
shall be drawn down in one Term C Advance at any time during the Term
Commitment Period when requested by Dynea by means of a Drawdown Notice
in accordance with Clause 4.8 (Drawdown Notice).
4.4 DRAWDOWN OF TERM D LOAN FACILITY
Subject to the other terms of this Agreement, the Term D Loan Facility
shall be drawn down by Dynco:
4.4.1 in one Term D Advance under Tranche D1, if requested by Dynco
by means of a Drawdown Notice in accordance with Clause 4.8
(Drawdown Notice), on or prior to 13 February 2004;
4.4.2 in one Term D Advance under Tranche D2, if requested by Dynco
by means of a Drawdown Notice in accordance with Clause 4.8
(Drawdown Notice), on or prior to 13 August 2004; and
4.4.3 in one Term D Advance under Tranche D3, if requested by Dynco
by means of a Drawdown Notice in accordance with Clause 4.8
(Drawdown Notice), on or prior to 20 August 2004.
4.5 LIMITATIONS APPLICABLE TO TERM ADVANCES
The following limitations apply to Term Advances:
4.5.1 the Drawdown Date of a Term A Advance, a Term B Advance or a
Term C Advance shall be a Business Day during the Term
Commitment Period;
4.5.2 the principal amount of a Term Advance under Tranches A1 and
B1 shall be a minimum amount of Euro 3,000,000 and an integral
multiple of Euro 1,000,000;
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4.5.3 no Term Advance under Tranche A1 shall be made unless Tranche
B1 and the Term C Loan Facility have been drawn down in full;
4.5.4 no Term Advance under Tranche B1 shall be made unless the Term
C Loan Facility has been drawn down in full; and
4.5.5 no more than 8 Term Advances under Tranches A1 and B1 may be
outstanding at any one time.
4.6 UTILISATION OF REVOLVING CREDIT FACILITY
4.6.1 Subject to the other terms of this Agreement, Revolving
Advances shall be made to any Borrower and Bank Guarantees
shall be issued by the Issuing Bank for the account of any
Borrower at any time during the Revolving Credit Commitment
Period when requested by that Borrower by means of a Drawdown
Notice in accordance with Clause 4.8 (Drawdown Notice) or, as
the case may be, a Bank Guarantee Request in accordance with
Clause 4.13 (Bank Guarantee Request). At close of business on
the last day of the Revolving Credit Commitment Period the
Revolving Credit Facility shall cease to be available for
utilisation.
4.6.2 No utilisation of the Revolving Credit Facility may be made
unless a Term Advance has been or, simultaneously with the
making of such utilisation is, made.
4.6.3 Dynea will procure that after 31 July 2003 either for 2
periods of 5 successive days or, one period of 10 successive
days, in each of its Financial Years the aggregate of all
Revolving Advances shall not exceed Euro 10,000,000. The
Facility Agent confirms that, pursuant to the terms of the
letter dated 11 February 2003 from the Facility Agent to
Dynea, compliance with this sub-clause 4.6.3 has been waived
for the Financial Years of Dynea ending 31 December 2003 and
31 December 2004.
4.6.4 The following limitations apply to Revolving Advances:
(a) the Drawdown Date of a Revolving Advance shall be a
Business Day during the Revolving Credit Commitment
Period;
(b) the principal amount of a Revolving Advance
denominated in Euro shall be:
(i) a minimum amount of Euro 2,000,000 and an
integral multiple of Euro 1,000,000; or
(ii) the amount of the Available Revolving Credit
Facility;
(c) the principal amount of a Revolving Advance
denominated in an Alternative Currency shall be in an
Original Euro Amount of at least Euro 2,000,000 and a
round amount in that currency as the Facility Agent
and Dynea may agree (acting reasonably); or
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(d) no Revolving Advance shall be made if the making of
that Revolving Advance would result in the aggregate
of the Original Euro Amount of all Revolving Advances
and Bank Guarantees issued by the Issuing Bank
exceeding the Revolving Credit Facility Limit;
(e) no more than 10 Revolving Advances may be outstanding
at any one time; and
(f) in the case of a Revolving Advance denominated in an
Alternative Currency, the requirements of Clause 5
(Alternative Currencies) are met.
4.7 CONDITIONS TO EACH ADVANCE
4.7.1 Subject to sub-clause 4.7.2, the obligation of each Bank to
make available its Participation in an Advance is subject to
the conditions that on the date on which the relevant Drawdown
Notice is given and on the relevant Drawdown Date:
(a) (save in respect of a Term D Advance) the
representations and warranties in Clause 11
(Representations and Warranties) to be repeated on
those dates are correct and will be correct
immediately after the Advance is made; and
(b) no Default or (in relation to a Term A Advance, Term
B Advance, Term C Advance or Revolving Advance)
Potential Default has occurred and is continuing
unwaived or would occur on the making of the Advance.
4.7.2 In respect of a Revolving Advance to be made for the sole
purpose of either:
(a) repaying an outstanding Revolving Advance in a
matching amount; or
(b) if demand is made under a Bank Guarantee issued by
the Issuing Bank, paying the amount guaranteed or
otherwise assured under that Bank Guarantee or
reimbursing the Issuing Bank in respect of the amount
paid by the Issuing Bank under that Bank Guarantee,
the Revolving Advance shall be made, notwithstanding the
occurrence and continuation of a Default or a Potential
Default or any of the representations and warranties to be
repeated not being correct, unless the Facility Agent shall
have served a Default Notice.
4.8 DRAWDOWN NOTICE
4.8.1 Whenever a Borrower wishes to draw down an Advance, it shall
give a duly completed Drawdown Notice to the Facility Agent to
be received not later than 11.00 a.m. on the third Business
Day before the relevant Drawdown Date (or in the case of an
Advance to be denominated in Sterling, not later than 11.00
a.m. on the first Business Day before that Drawdown Date) or,
in either case, such later time as the Facility Agent may
agree.
4.8.2 A Drawdown Notice shall be irrevocable and the relevant
Borrower shall be obliged to borrow in accordance with its
terms.
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4.9 NOTIFICATION TO BANKS
The Facility Agent shall promptly notify each Bank of the details of
each Drawdown Notice received by it.
4.10 PARTICIPATIONS
4.10.1 Subject to the terms of this Agreement, each Bank acting
through its Lending Office shall make available to the
Facility Agent on the Drawdown Date for an Advance an amount
equal to its Participation in the amount and currency
specified in the Drawdown Notice for that Advance.
4.10.2 For the purposes of sub-clause 4.10.1:
(a) the Participation of a Bank in a Term A Advance, a
Term B Advance, a Term C Advance or a Term D Advance
shall be the proportion of that Term A Advance, Term
B Advance, Term C Advance or, as the case may be,
Term D Advance equal to the proportion borne by that
Bank's Term A Loan Commitment to the Total Term A
Commitments, that Bank's Term B Loan Commitment to
the Total Term B Loan Commitments, that Bank's Term C
Loan Commitment to the Total Term C Loan Commitments
or, as the case may be, that Bank's Term D Loan
Commitment to the Total Term D Loan Commitments on
the Drawdown Date of that Advance; and
(b) the Participation of a Bank in a Revolving Advance
shall be the proportion of that Revolving Advance
equal to the proportion borne by that Bank's
Available Revolving Credit Commitment to the
Available Revolving Credit Facility on the Drawdown
Date of that Advance.
4.11 LIMITATIONS ON BANK GUARANTEES
The following limitations apply to Bank Guarantees issued by the
Issuing Bank:
4.11.1 the relevant Issue Date of each Bank Guarantee shall be a
Business Day during the Revolving Credit Commitment Period;
4.11.2 each Bank Guarantee shall be issued by the Issuing Bank in a
form approved by the Issuing Bank;
4.11.3 without prejudice to sub-clause 4.11.2, each Bank Guarantee
shall, unless the Issuing Bank otherwise agrees:
(a) be denominated in Euro or an Alternative Currency;
and
(b) state on its face the maximum amount payable under it
and its expiry date;
4.11.4 no Bank Guarantee shall be issued under which a claim could be
made at any time after the Final Repayment Date in relation to
the Revolving Credit Facility unless the Issuing Bank
otherwise agrees on condition that on the Final Repayment Date
in relation to the Revolving Credit Facility the Borrower on
whose behalf the Bank Guarantee is to be issued shall provide
full cash collateral on terms reasonably satisfactory to the
Issuing Bank in the currency of the Bank Guarantee equal to
the Guaranteed Amount of the Bank Guarantee;
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4.11.5 no Bank Guarantee shall be issued if the issuing of that Bank
Guarantee would result in the aggregate of the Original Euro
Amount of all Revolving Advances and Bank Guarantees issued by
the Issuing Bank exceeding the Revolving Credit Facility
Limit; and
4.11.6 no more than 25 Bank Guarantees may be outstanding at any one
time.
4.12 CONDITIONS TO EACH BANK GUARANTEE
The obligation of the Issuing Bank to issue a Bank Guarantee is subject
to the conditions that on the date on which the relevant Bank Guarantee
Request is given and on the relevant Issue Date:
4.12.1 the representations and warranties in Clause 11
(Representations and Warranties) to be repeated on those dates
are correct and will be correct immediately after the Bank
Guarantee is issued; and
4.12.2 no Default or Potential Default has occurred and is continuing
or would occur on the issue of the Bank Guarantee.
4.13 BANK GUARANTEE REQUEST
4.13.1 Whenever a Borrower wishes a Bank Guarantee to be issued by
the Issuing Bank, it shall give the Facility Agent a duly
completed Bank Guarantee Request together with a draft of the
proposed Bank Guarantee to be received not later than 5
Business Days prior to the relevant Issue Date. The Issuing
Bank shall provide the Facility Agent with a copy of the form
of the Bank Guarantee to be issued by the Issuing Bank at
least 2 Business Days prior to the relevant Issue Date.
4.13.2 The Facility Agent shall promptly provide the Issuing Bank and
each Bank (other than the Term D Lender) with a copy of each
Bank Guarantee Request and proposed Bank Guarantee received by
it.
4.14 COUNTER INDEMNITY FROM THE BORROWERS
4.14.1 Each Borrower shall:
(a) indemnify and keep indemnified the Issuing Bank and
each Bank (other than the Term D Lender) (each an
"INDEMNIFIED PERSON") from and against all actions,
suits, proceedings, claims or demands (in each case,
brought or made by third parties), liabilities,
damages, costs, expenses, losses and charges in
relation to or arising out of any Bank Guarantee
issued by the Issuing Bank for the account of such
Borrower and each Bank Indemnity insofar as it
relates thereto save where the same arise as a result
of the Indemnified Person's negligence or wilful
default; and
(b) pay to the Issuing Bank for its own account or to the
Facility Agent for the account of the Banks (other
than the Term D Lender), as the case may be, on
demand the amount of all payments made (whether
directly or by way of set off, counterclaim or
otherwise) and all losses, costs and expenses
suffered or incurred by the Issuing Bank and the
Banks (other than the
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Term D Lender) under or by reason of each such Bank
Guarantee and each Bank Indemnity insofar as it
relates thereto.
4.14.2 The Issuing Bank is irrevocably authorised by each Borrower to
comply with the terms of any demand served or purporting to be
served on the Issuing Bank pursuant to any Bank Guarantee
issued by the Issuing Bank without any reference to, or
further authority from, any Borrower and without any enquiry
into the justification for that demand or its validity (save
for verification of any documents delivered under the terms of
the Bank Guarantee in question for apparent good order in
accordance with the Uniform Customs and Practice for
Documentary Credits). Any payment which the Issuing Bank shall
make in accordance or purporting to be in accordance with such
a demand shall be binding on each Borrower and be accepted by
each Borrower as conclusive and binding evidence that the
Issuing Bank was liable to comply with the terms of such
demand and was liable to do so in the manner and for the
amount in which the Issuing Bank effected such compliance.
4.14.3 The liability of any Borrower under this Clause 4.14 shall not
be discharged, lessened or impaired by any time being given or
by any thing being done or other circumstance whatsoever
which, but for this provision, would or might operate to
exonerate or discharge that Borrower.
4.14.4 The Borrower Indemnities shall constitute and be a continuing
security to the Issuing Bank and the Banks (other than the
Term D Lender) and shall extend to each Bank Guarantee issued
by the Issuing Bank and each Bank Indemnity as they may be
varied, modified, amended or extended.
4.14.5 The Issuing Bank may claim under any Borrower Indemnity or
under any Bank Indemnity in such order as the Issuing Bank
shall think fit.
4.15 COUNTER INDEMNITY FROM THE BANKS
4.15.1 Each Bank (other than the Term D Lender) shall:
(a) indemnify the Issuing Bank and keep the Issuing Bank
indemnified (in the proportion which its Revolving
Credit Commitment bears to the Total Revolving Credit
Commitments) from and against all actions, suits,
proceedings, claims, demands (in each case, brought
or made by third parties), liabilities, damages,
costs, expenses, losses and charges in relation to or
arising out of any Bank Guarantee issued by the
Issuing Bank save where the same arise as a result of
the Issuing Bank's negligence or wilful default; and
(b) pay to the Issuing Bank on demand its relevant
proportion of the amount of all payments made
(whether directly or by way of set off, counterclaim
or otherwise) and all losses, costs and expenses
suffered or incurred by the Issuing Bank under or by
reason of each such Bank Guarantee.
4.15.2 The Issuing Bank is irrevocably authorised by each Bank to
comply with the terms of any demand served or purporting to be
served on the Issuing Bank
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pursuant to any Bank Guarantee issued by the Issuing Bank
without any reference to, or further authority from, any Bank
and without any enquiry into the justification for that demand
or its validity (save for verification of any documents
delivered under the terms of the Bank Guarantee in question
for apparent good order in accordance with the Uniform Customs
and Practice for Documentary Credits). Any payment which the
Issuing Bank shall make in accordance or purporting to be in
accordance with such a demand shall be binding on each Bank
and be accepted by each Bank as conclusive and binding
evidence that the Issuing Bank was liable to comply with the
terms of such demand and was liable to do so in the manner and
for the amount in which the Issuing Bank effected such
compliance.
4.15.3 The liability of any Bank under this Clause 4.15 shall not be
discharged, lessened or impaired by any time being given or by
any thing being done or other circumstance whatsoever which,
but for this provision, would or might operate to exonerate or
discharge that Bank.
4.15.4 The Bank Indemnities shall constitute and be a continuing
security to the Issuing Bank and shall extend to each Bank
Guarantee issued by the Issuing Bank as it may be varied,
modified, amended or extended.
4.15.5 The Issuing Bank may claim under any Bank Indemnity or under
any Borrower Indemnity in such order as the Issuing Bank shall
think fit.
4.15.6 For the avoidance of doubt, each Bank Indemnity shall extend
to any interest expressed to be due from a Borrower pursuant
to Clause 4.16 (Interest on Payments) in respect of any
payment, loss, cost or expense made, suffered or incurred by
the Issuing Bank under or by reason of any Bank Guarantee
issued by the Issuing Bank.
4.16 INTEREST ON PAYMENTS
Each Borrower shall pay to the Facility Agent for the account of the
Issuing Bank or the account of the Banks (other than the Term D
Lender), as the case may be, interest on the amount of each payment,
loss, cost and expense made, suffered or incurred by the Issuing Bank
or any Bank (other than the Term D Lender) under or by reason of any
Bank Guarantee issued by the Issuing Bank and any Bank Indemnity from
and including the date upon which such payment, loss, cost or expense
is made, suffered or incurred up to and including the date upon which
payment or reimbursement of such amount is demanded from that Borrower.
The amount of such interest shall be calculated in accordance with
Clause 6.4 (Default Interest). For the avoidance of doubt, interest on
sums demanded under Clause 4.15 (Counter Indemnity from the Banks)
shall also accrue in accordance with Clause 6.4 (Default Interest).
5. ALTERNATIVE CURRENCIES
5.1 REQUESTS FOR ALTERNATIVE CURRENCY
Subject to Clause 5.2 (Availability), a Borrower may request in a
Drawdown Notice that a Revolving Advance be denominated in an
Alternative Currency.
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5.2 AVAILABILITY
A Borrower may not request that a Revolving Advance be denominated in
an Alternative Currency unless the Facility Agent has confirmed
promptly to that Borrower that the Alternative Currency is available
for drawing under the Revolving Credit Facility.
5.3 NOTIFICATION TO BANKS
The Facility Agent shall promptly notify each Bank (other than the Term
D Lender) of the currency and the Original Euro Amount of each
Revolving Advance.
5.4 NO ALTERNATIVE CURRENCY
If, no later than 10.00 a.m. on the second Business Day before the
first day of an Interest Period in relation to a Revolving Advance
which is proposed to be denominated in an Alternative Currency, a Bank
(other than the Term D Lender) notifies the Facility Agent that:
5.4.1 for whatever reason it is impracticable for that Bank to fund
its Participation in that Revolving Advance in the proposed
Alternative Currency in the ordinary course of business in the
London interbank market; or
5.4.2 central bank or other governmental authorisation in the
country of the proposed Alternative Currency is required to
permit its use by that Bank for the making of that Revolving
Advance and the authorisation has not been obtained or is not
in full force and effect or is subject to unacceptable
conditions; or
5.4.3 the use of the proposed Alternative Currency is restricted or
prohibited by any request, directive, regulation or guideline
of any governmental body, agency, department or regulatory or
other authority (whether or not having the force of law) in
accordance with which that Bank is accustomed to act,
the Facility Agent shall notify Dynea and the Banks (other than the
Term D Lender) by 11.00 a.m. on the same day. In this event, Dynea and
such Banks may agree that the Revolving Advance shall not be made,
PROVIDED THAT, in the absence of such agreement by 12.00 noon on the
same day, the Revolving Advance shall be denominated in Euro during
that Interest Period.
5.5 EXCHANGE RATE MOVEMENTS
5.5.1 If on any Quarter Date:
(a) the Total Revolving Credit Amount exceeds the
Revolving Credit Facility Limit; and
(b) the Facility Agent determines that the Euro
Equivalent (calculated on that Quarter Date) of the
Guaranteed Amount of all Bank Guarantees denominated
in an Alternative Currency shall be greater than the
Original Euro Amount of those Bank Guarantees by 5
per cent. or more,
the relevant Borrowers shall, within 2 Business Days of
receiving the Facility Agent's demand so to do, pay to the
credit of their respective Collateral Accounts (as defined in
sub-clause 5.5.3) such amounts in the relevant Alternative
Currencies to ensure that the aggregate of (i) the Original
Euro
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Amount of those Bank Guarantees and (ii) the Euro Equivalent
(calculated on that Quarter Date) of all sums standing to the
credit of the Collateral Accounts on that Quarter Date shall,
after the crediting of such amounts, equal the Euro Equivalent
(calculated on that Quarter Date) of the Guaranteed Amount of
those Bank Guarantees.
5.5.2 On each Quarter Date, PROVIDED THAT no Default has occurred
and is continuing, the Borrowers may withdraw such amounts
standing to the credit of the Collateral Accounts (as
determined by the Facility Agent and comprised of such
Alternative Currencies as the Facility Agent may select) to
ensure that, after payment of such amounts, the aggregate of
(a) the Original Euro Amount of all Bank Guarantees
denominated in an Alternative Currency and (b) the Euro
Equivalent (calculated on that Quarter Date) of all sums, if
any, standing to the credit of the Collateral Accounts on that
Quarter Date is equal to the Euro Equivalent (calculated on
that Quarter Date) of the Guaranteed Amount of those Bank
Guarantees.
5.5.3 In this Clause 5.5, a "COLLATERAL ACCOUNT" means, in relation
to a Borrower and an Alternative Currency, an account of that
Borrower in that currency held with such bank as the Facility
Agent may nominate and designated as being in respect of Bank
Guarantees issued by the Issuing Bank at the request of that
Borrower.
5.5.4 On the first occasion a Borrower is obliged to make a payment
to a Collateral Account, it shall open that Collateral Account
and charge the same to the Facility Agent (as agent and
trustee for itself, the Issuing Bank and the Banks (other than
the Term D Lender)) on terms satisfactory to the Facility
Agent acting reasonably.
5.5.5 Except as expressly permitted in this Clause 5.5, no Borrower
may withdraw any amount from a Collateral Account.
6. INTEREST
6.1 INTEREST RATE
Interest shall accrue on each Advance from and including the relevant
Drawdown Date to but excluding the date the Advance is repaid at the
rate determined by the Facility Agent to be the aggregate of:
6.1.1 the Cash Margin;
6.1.2 LIBOR; and
6.1.3 the Additional Cost Rate.
6.2 MARGIN RATCHET
6.2.1 In respect of each Financial Year of Dynea beginning after 31
December 2001, the Margin in relation to the Term A Loan
Facility and the Revolving Credit Facility shall reduce or
increase in accordance with the other provisions of this
Clause 6.2, PROVIDED THAT the Margin in relation to the Term A
Loan Facility
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and the Revolving Credit Facility shall at no time be greater
than 2.00 per cent. per annum or less than 1.25 per cent. per
annum.
6.2.2 In this Clause 6.2, "RELEVANT FINANCIAL YEAR" means, in
relation to a Financial Year of Dynea, the immediately
preceding Financial Year of Dynea.
6.2.3 Subject to the other provisions of this Clause 6.2, in respect
of a Financial Year of Dynea beginning after 31 December 2001,
the Margin in relation to the Term A Loan Facility and the
Revolving Credit Facility shall be 1.75 per cent. per annum if
the ratio of Total Net Debt to EBITDA for the Relevant
Financial Year is less than or equal to 4.00:1 but, after 31
December 2002, is greater than or equal to 3.50:1.
6.2.4 Subject to the other provisions of this Clause 6.2, in respect
of a Financial Year of Dynea beginning after 31 December 2002,
the Margin in relation to the Term A Loan Facility and the
Revolving Credit Facility shall be in relation to the Term A
Loan Facility and the Revolving Credit Facility shall be 1.50
per cent. per annum if the ratio of Total Net Debt to EBITDA
for the Relevant Financial Year is less than or equal to
3.50:1 but, after 31 December 2003, is greater than or equal
to 3.00:1.
6.2.5 Subject to the other provisions of this Clause 6.2, in respect
of a Financial Year of Dynea beginning after 31 December 2003,
the Margin in relation to the Term A Loan Facility and the
Revolving Credit Facility shall be 1.25 per cent. per annum if
the ratio of Total Net Debt to EBITDA for the Relevant
Financial Year is less than or equal to 3.00:1.
6.2.6 In relation to a Financial Year of Dynea, for the purpose of
this Clause 6.2, any reduction or increase in the Margin in
relation to the Term A Loan Facility and the Revolving Credit
Facility shall be determined on the day immediately following
receipt by the Facility Agent of the Management Accounts for
December in the Relevant Financial Year. Any reduction or
increase shall, subject to sub-clause 6.2.7, take effect on
the fifth day following receipt by the Facility Agent of those
Management Accounts. If Dynea does not deliver the relevant
Management Accounts to the Facility Agent in accordance with
the terms of sub-clause 12.2.2 of Clause 12.2 (Information
Undertakings), the Margin in relation to the Term A Loan
Facility and the Revolving Credit Facility shall, as from the
date immediately following the last date on which such
Management Accounts should have been delivered to the Facility
Agent pursuant to sub-clause 12.2.2 of Clause 12.2
(Information Undertakings) (other than where such non delivery
is beyond the control of Dynea) until the date once such
Management Accounts have been so delivered, be reinstated to
2.00 per cent.
6.2.7 Where in respect of a Financial Year of Dynea, the Margin in
relation to the Term A Loan Facility and the Revolving Credit
Facility has been adjusted on the basis of Management Accounts
and the Accounts for the Relevant Financial Year show that
such adjustment should not have been made, the said adjustment
shall be cancelled on the next Interest Date to occur after
delivery of those
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Accounts to the Facility Agent and the Borrowers and the Banks
shall promptly make such payments as may be necessary to put
themselves in the position they would have been had no such
adjustment been made.
6.2.8 Notwithstanding any other term of this Clause 6.2, if at the
time a decrease in the Margin in relation to the Term A Loan
Facility and the Revolving Credit Facility is to take effect a
Default or Potential Default is continuing, such decrease
shall not take effect unless and until such Default or
Potential Default ceases to be continuing or is waived.
6.2.9 For the avoidance of doubt, if in respect of a Financial Year
of Dynea, none of the conditions set out in sub-clauses 6.2.3,
6.2.4 or 6.2.5 are satisfied in relation to the Relevant
Financial Year, the Margin for that Financial Year of Dynea in
relation to the Term A Loan Facility and the Revolving Credit
Facility shall be 2.00 per cent. per annum.
6.3 INTEREST PERIODS
6.3.1 Interest payable on each Advance shall be calculated by
reference to Interest Periods of 1, 3 or 6 months duration (or
such other Interest Period as the Facility Agent, acting on
the instructions of all the Banks (other than the Term D
Lender), may allow) as selected by the relevant Borrower in
accordance with this Clause 6.3 PROVIDED THAT until 15
November 2000, or, if earlier, the close of the primary
syndication of the Facilities, Interest Periods shall not be
longer than 1 month and the first Interest Period for any
Advance shall be 1 week.
6.3.2 The relevant Borrower shall select an Interest Period for a
Revolving Advance in the relevant Drawdown Notice. The
relevant Borrower may select an Interest Period for a Term
Advance in either the Drawdown Notice (in the case of the
first Interest Period for that Advance) or (in the case of any
subsequent Interest Period for that Advance) by notice
received by the Facility Agent no later than 3 Business Days
before the commencement of that Interest Period.
6.3.3 In respect of Term Advances, interest shall be calculated by
reference to successive Interest Periods. The first Interest
Period for a Term Advance shall begin on the Drawdown Date of
that Advance. Each succeeding Interest Period for that Advance
shall begin on the Interest Date of the previous Interest
Period.
6.3.4 Dynea may, by notice to the Facility Agent at least 3 Business
Days before an Interest Date relating to a Term Advance, elect
that that Term Advance be split into two or more Term Advances
of at least NOK 15,000,000, Euro 2,000,000, US$ 2,000,000 or,
as the case may be, Can$ 3,000,000 each (and being multiples
of NOK 8,100,000, Euro 1,000,000, US$ 1,000,000 or, as the
case may be, Can$ 1,500,000) or in the case of a Term A
Advance or a Term B Advance such lesser amount equal to the
amount of the Instalment falling due on the next Term A
Instalment Repayment Date or, as the case may be, Term B
Instalment Repayment Date. Any such notice shall specify the
Interest Periods applicable to those Term Advances and shall
take effect in accordance with its terms from that Interest
Date, PROVIDED THAT there shall not be more than 8 Term
Advances outstanding at any one time.
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6.3.5 Subject to the other terms of this Agreement, if the Interest
Periods for two or more Term Advances in the same currency
made under the same Facility end on the same day those Term
Advances shall be deemed to be a single Term Advance from that
day.
6.3.6 If a Borrower fails to select an Interest Period for an
Advance in accordance with sub-clause 6.3.2, that Interest
Period shall, subject to the other provisions of this Clause
6, be 3 months.
6.3.7 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 the same calendar month (if there is
one) or the preceding Business Day (if there is not).
6.3.8 If an Interest Period begins on the last Business Day in a
calendar month or on a Business Day for which there is no
numerically corresponding day in the calendar month in which
that Interest Period is to end, it shall end on the last
Business Day in that later calendar month.
6.3.9 In respect of Term A Advances and Term B Advances, Dynea shall
select such Interest Periods to ensure that, on each Term A
Instalment Repayment Date or, as the case may be, Term B
Instalment Repayment Date, there are Term A Advances or, as
the case may be, Term B Advances with an Interest Period
ending on that Term A Instalment Repayment Date or, as the
case may be, Term B Instalment Repayment Date which are, in
aggregate, at least equal to, in the relevant currencies, the
Instalment due on that Term A Instalment Repayment Date or, as
the case may be, Term B Instalment Repayment Date.
6.3.10 If an Interest Period for an Advance would otherwise extend
beyond the Final Repayment Date for the Facility under which
such Advance is made, it shall be shortened so that it ends on
that Final Repayment Date.
6.4 DEFAULT INTEREST
6.4.1 If a Borrower fails to pay any amount payable under any
Financing Document on the due date, it shall pay default
interest on the overdue amount from the due date to the date
of actual payment calculated by reference to successive
Interest Periods (each of such duration as the Facility Agent
may select and the first beginning on the relevant due date)
at the rate per annum being the aggregate of (a) 1 per cent.
per annum, (b) the Cash Margin, (c) LIBOR and (d) the
Additional Cost Rate.
6.4.2 So long as the overdue amount remains unpaid, the default
interest rate shall be recalculated in accordance with the
provisions of this Clause 6.4 on the last day of each such
Interest Period and any unpaid interest shall be compounded at
the end of each Interest Period.
6.5 BANK GUARANTEE COMMISSION AND FRONTING FEES
6.5.1 Commission in respect of all Bank Indemnities shall:
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(a) accrue from day to day on an amount equal to the
aggregate Original Euro Amount of all Bank Guarantees
at a rate per annum equal to the Margin in respect of
the Revolving Credit Facility;
(b) be calculated on the basis of actual days elapsed and
a 360 day year (or such number of days as is market
practice for the relevant currency); and
(c) be paid by the relevant Borrower to the Facility
Agent for the account of the Banks (pro rata to their
Revolving Credit Commitments) in arrear at the end of
each successive period of 3 months, beginning on the
Issue Date of the first Bank Guarantee issued by the
Issuing Bank.
6.5.2 Dynea shall pay a fronting fee to the Issuing Bank in
accordance with the Fees Letter.
6.6 CALCULATION AND PAYMENT OF INTEREST
6.6.1 At the beginning of each Interest Period, the Facility Agent
shall notify the Banks and the relevant Borrower of the
duration of the Interest Period and the rate and amount of
interest payable for the Interest Period (but in the case of
any default interest calculated under Clause 6.4 (Default
Interest), any such notification need not be made more
frequently than weekly). Each notification shall set out in
reasonable detail the basis of computation of the amount of
interest payable.
6.6.2 Interest due from a Borrower under this Agreement shall:
(a) accrue from day to day at the rate calculated under
this Clause 6 (Interest);
(b) except as otherwise provided in this Agreement, be
paid by the relevant Borrower to the Facility Agent
(for the account of the relevant Banks or the
Facility Agent, as the case may be) in arrear on the
last day of each Interest Period, PROVIDED THAT for
any Interest Period which is for longer than 6
months, the relevant Borrower shall also pay interest
6 monthly in arrear during that Interest Period;
(c) be calculated on the basis of the actual number of
days elapsed and a 360 day year or, if different,
such number of days as is market practice for the
relevant currency; and
(d) be payable both before and after judgment.
6.7 FACILITY AGENT'S DETERMINATION
The determination by the Facility Agent of any interest payable under
this Clause 6 (Interest) shall be conclusive and binding on the
Borrowers except for any manifest error.
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7. REPAYMENT, PREPAYMENT AND CANCELLATION
7.1 REPAYMENT OF TERM A LOAN
The Term Loan Borrowers shall repay the Term A Loan by payment to the
Facility Agent (for the account of the Banks) on each date set out in
Column 1 below (each date being a "TERM A INSTALMENT REPAYMENT DATE")
of an amount of each of Tranches A1 to A3 inclusive equal to the
percentage of the Original Tranche A Amount (as defined below) set out
in Column 2 below opposite the relevant Term A Instalment Repayment
Date (so that the Term A Loan is repaid in full on or before the Final
Repayment Date in relation to the Term A Loan Facility and with the
aggregate amount payable on a Term A Instalment Repayment Date under
this Clause 7.1 being herein referred to as a "TERM A INSTALMENT"):
COLUMN 1 COLUMN 2
TERM A INSTALMENT REPAYMENT DATE %
30 June 2001 3.95
31 December 2001 3.95
30 June 2002 5.26
31 December 2002 5.26
30 June 2003 6.58
31 December 2003 6.58
30 June 2004 7.89
31 December 2004 7.89
30 June 2005 9.21
31 December 2005 9.21
30 June 2006 10.53
31 December 2006 10.53
30 June 2007 13.16
For the purposes of the above, in relation to a Tranche, the "ORIGINAL
TRANCHE A AMOUNT" means the amount outstanding under such Tranche as at
the end of the Term Commitment Period.
7.2 REPAYMENT OF TERM B LOAN
The Term Loan Borrowers shall repay the Term B Loan by payment to the
Facility Agent (for the account of the Banks) on each date set out in
Column 1 below (each date being a "TERM B INSTALMENT REPAYMENT DATE")
of an amount of each of Tranches B1 to B4 inclusive equal to the
percentage of the Original Tranche B Amount (as defined below) set out
in Column 2 below opposite the relevant Term B Instalment Repayment
Date (so that the Term B Loan is repaid in full on or before the Final
Repayment Date in relation to the Term B Loan Facility and with the
aggregate amount payable on a Term B Instalment Repayment Date under
this Clause 7.2 being herein referred to as a "TERM B INSTALMENT"):
COLUMN 1 COLUMN 2
TERM B INSTALMENT REPAYMENT DATE %
31 December 2007 50
30 June 2008 50
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For the purposes of the above, in relation to a Tranche, the "ORIGINAL
TRANCHE B AMOUNT" means the amount outstanding under such Tranche as at
the end of the Term Commitment Period.
7.3 REPAYMENT OF TERM C LOAN
Dynea shall repay the Term C Loan to the Facility Agent (for the
account of the Banks) in full on the Final Repayment Date in relation
to the Term C Loan Facility.
7.4 REPAYMENT OF REVOLVING ADVANCES
7.4.1 Subject to sub-clause 7.4.3, each Revolving Advance shall be
repaid in full on the Interest Date of the Interest Period
relating to that Revolving Advance.
7.4.2 Subject to the terms of this Agreement, any amounts repaid
under sub-clause 7.4.1 may be re borrowed.
7.4.3 If all or part of an existing Revolving Advance made to a
Borrower is to be repaid from the proceeds of all or part of a
new Revolving Advance to be made to that Borrower and
denominated in the same currency as that existing Revolving
Advance, then, as between each Bank and that Borrower, the
amount to be repaid by that Borrower shall be set off against
the amount to be advanced by that Bank in relation to the new
Revolving Advance and the party to whom the smaller amount is
to be paid shall pay to the other party a sum equal to the
difference between the two amounts.
7.5 NO RE-BORROWING OF TERM A LOAN, TERM B LOAN OR TERM C LOAN
Any amount repaid or prepaid in relation to the Term A Loan, the Term B
Loan or the Term C Loan as the case may be, may not be re borrowed and
shall reduce rateably each Bank's Term A Loan Commitment, Term B Loan
Commitment or, as the case may be, the Term C Loan Commitment.
7.6 MANDATORY PREPAYMENT OF NET AVAILABLE PROCEEDS
7.6.1 Dynea shall procure that the Net Available Proceeds of any
Disposal (other than those set out in sub-clauses 12.4.2(a) to
12.4.2(j) (inclusive), 12.4.2(n) and 12.4.2(o) of Clause 12.4
(Negative Undertakings) made by a Group Company is applied in
prepayment of the Facilities in accordance with Clause 7.10
(Application of Prepayments) PROVIDED THAT, while no Default
or Potential Default is continuing, the Net Available Proceeds
from Disposals falling within sub-clauses 12.4.2(h),
12.4.2(k), 12.4.2(m) and 12.4.2(p) of the said Clause 12.4
(Negative Undertakings) may be applied as follows:
(a) the first Euro 15,000,000, in aggregate, of such Net
Available Proceeds may be paid to Issueco to be
applied in prepayment of the Issueco Bridging Loan;
(b) the second Euro 15,000,000, in aggregate, of such Net
Available Proceeds shall be applied, to the extent
required, in accordance with the other terms of this
Agreement; and
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(c) to the extent they exceed Euro 30,000,000, in
aggregate, such Net Available Proceeds may be paid to
Issueco to be applied in prepayment of the Issueco
Bridging Loan,
where the aggregate amount paid under (i) and (iii) above does
not exceed the Issueco Bridging Loan Amount.
7.6.2 Dynea undertakes to procure that in relation to a Disposal by
a Group Company outside the United Kingdom to which sub-clause
7.6.1 applies such Group Company takes all steps that are
reasonably open to it (and which may be taken without
incurring costs which in the reasonable opinion of the
Majority Banks are excessive) to obtain any exchange control
clearance or other consents, permits, authorisations or
licences which are required to enable the Net Cash Proceeds of
such Disposal to be repatriated to Dynea or such other steps
to make the Net Cash Proceeds available to Dynea as the
Majority Banks may reasonably require.
7.7 MANDATORY PREPAYMENT OF SURPLUS CASH
Dynea shall procure that, on or before the first Interest Date relating
to a Term Advance that immediately follows the expiry of the period of
120 days after the end of each Financial Year of Dynea, an amount equal
to 70 per cent. of the Surplus Cash for that Financial Year shall be
applied in prepayment of the Facilities in accordance with Clause 7.10
(Application of Prepayments).
7.8 MANDATORY PREPAYMENT OF INSURANCE PROCEEDS
Dynea shall procure that an amount equal to any Insurance Proceeds
which are in aggregate in excess of Euro 200,000 received by any Group
Company (other than any such proceeds received in respect of any of the
Explosives Subsidiaries which are required to be paid by the relevant
Group Companies to such Explosives Subsidiaries pursuant to the Dyno
Explosives Sale Agreement) shall, to the extent (a) the same are not
applied in reinstatement of the asset or payment of a third party
liability in respect of which they were received within 6 months of
being received, be applied in prepayment of the Facilities in
accordance with Clause 7.10 (Application of Prepayments) and (b)
pending any such reinstatement or payment, such Insurance Proceeds are
credited to a bank account held with the Facility Agent (which at the
request of the Facility Agent shall be charged to the Security Trustee
on terms reasonably satisfactory to the Security Trustee).
7.9 MANDATORY PREPAYMENT OF VENDOR PAYMENTS
7.9.1 Subject to sub-clause 7.9.2, Dynea shall procure that an
amount equal to each amount (each a "VENDOR PAYMENT") received
by a Group Company from any of the vendors under the Dynea
Acquisition Agreement net of any reasonable costs and expenses
of recovery and any Tax payable by a Group Company in respect
of such Vendor Payment in excess of, in any Financial Year of
Dynea, Euro 100,000 shall be applied in prepayment of the
Facilities in accordance with Clause 7.10 (Application of
Prepayments).
7.9.2 In respect of a Vendor Payment, Dynea shall not be required to
make the prepayment under sub-clause 7.9.1 where the Vendor
Payment is applied within
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6 months of its receipt by a Group Company to make good or
purchase an asset to replace directly the asset or to pay the
liabilities, in respect of which the Vendor Payment was
received or to compensate the relevant Group Company for a
cash loss and where pending such application, such Vendor
Payment is credited to a bank account held with the Facility
Agent (which at the request of the Facility Agent shall be
charged to the Security Trustee on terms reasonably
satisfactory to the Security Trustee).
7.10 APPLICATION OF PREPAYMENTS
7.10.1 Any amount to be applied in prepayment pursuant to Clause 7.6
(Mandatory Prepayment of Net Available Proceeds), 7.7
(Mandatory Prepayment of Surplus Cash), 7.8 (Mandatory
Prepayment of Insurance Proceeds), 7.9 (Mandatory Prepayment
of Vendor Payments) or sub-clause 7.11.2 of Clause 7.11 (Net
Cash Proceeds of the Polyester Business) shall be applied
against all unpaid Term A Instalments, Term B Instalments, the
Term C Loan and as against the Tranches, pro rata.
7.10.2 Any amount to be applied in prepayment in accordance with this
Clause 7.10 shall, unless Dynea requests the same to be so
applied at an earlier date, be so applied on the immediately
succeeding Interest Dates relating to the Facility which is to
be prepaid. Pending any such prepayment, the relevant amount
shall be credited to a bank account (a "PROCEEDS ACCOUNT")
held with the Facility Agent (which at the request of the
Facility Agent shall be charged to the Security Trustee on
terms satisfactory to the Security Trustee acting reasonably).
The Facility Agent is hereby authorised to apply amounts
standing to the credit of a Proceeds Account in making the
relevant prepayments on the relevant Interest Dates.
7.11 NET CASH PROCEEDS OF THE POLYESTER BUSINESS
7.11.1 As at 30 April 2001 the Net Cash Proceeds from the Disposal of
the Polyester Business have been paid to the credit of a bank
account (the "POLYESTER BUSINESS PROCEEDS ACCOUNT") in the
name of Dynea Asset Disposal account held with the Facility
Agent.
7.11.2 Notwithstanding any other term of this Agreement, amounts from
the Polyester Business Proceeds Account shall only be
withdrawn for the purposes of prepayment of the Facilities in
accordance with Clause 7.10 (Application of Prepayments).
7.11.3 The Facility Agent is hereby authorised to withdraw amounts
standing to the credit of the Polyester Business Proceeds
Account for the purposes of making the payments referred to
above.
7.12 MANDATORY PREPAYMENT ON SALE, LISTING OR CHANGE OF CONTROL
7.12.1 Notwithstanding the other provisions of this Clause 7, on any
date on which a Sale, a Listing or a Change of Control occurs
(each a "PREPAYMENT DATE"):
(a) all Advances shall be repaid in full; and
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(b) the Banks' obligations under this Agreement shall be
terminated and each Bank's Commitments shall be
cancelled.
7.12.2 On a Prepayment Date, each Borrower shall in respect of each
Bank Guarantee issued on its behalf:
(a) use its reasonable endeavours to procure the release
of the Issuing Bank from each such Bank Guarantee;
and
(b) without prejudice to sub-clause 7.12.2(a), either (i)
pay to the credit of such account as the Issuing Bank
shall stipulate an amount equal to the Guaranteed
Amount of each Bank Guarantee which is not released
on or before the Prepayment Date and charge such
account in favour of the Issuing Bank in such manner
and on such terms as the Issuing Bank may stipulate
or (ii) provide to the Issuing Bank a
counter-indemnity in respect of such Bank Guarantee
from a bank acceptable to the Issuing Bank.
7.12.3 Dynea shall use all reasonable endeavours to give the Facility
Agent at least 30 days' prior notice of the date upon which a
Sale, Listing or a Change of Control is proposed to occur.
7.13 VOLUNTARY PREPAYMENT OF ADVANCES
7.13.1 A Borrower may, by giving the Facility Agent not less than 10
Business Days' prior notice, prepay the whole or part (but if
in part, in a minimum amount of Euro 3,000,000 and an integral
multiple of Euro 1,000,000 of the Term Loan Facilities or a
Revolving Advance.
7.13.2 Any notice of prepayment shall be irrevocable, shall specify
the date on which the prepayment is to be made and the amount
of the prepayment, and shall oblige the relevant Borrower to
make that prepayment. The Facility Agent shall promptly notify
the Banks (other than, prior to the Senior Discharge Date, the
Term D Lender) of receipt of any such notice.
7.13.3 Each prepayment of the Term Loans under this Clause 7.13 shall
be applied against all unpaid Term A Instalments, Term B
Instalments, the Term C Loan pro rata and as against the
Tranches, pro rata.
7.14 INTEREST AND BROKEN FUNDING
Any prepayment shall be made together with accrued interest on the
amount prepaid and any amounts payable under Clause 22.1 (Breakage
Costs Indemnity).
7.15 CANCELLATION OF FACILITIES
7.15.1 Dynea may, by giving the Facility Agent not less than 5
Business Days' prior notice, cancel all or part of any undrawn
Term Loan Facility or the Available Revolving Credit Facility
(but if, in each case, in part, in a minimum amount of Euro
3,000,000 and an integral multiple of Euro 1,000,000).
7.15.2 Any notice of cancellation shall be irrevocable and shall
specify the date on which the cancellation shall take effect
and the amount of the cancellation. The
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Facility Agent shall promptly notify the Banks (other than,
prior to the Senior Discharge Date, the Term D Lender) of
receipt of any such notice.
7.15.3 The Borrowers may not utilise any part of the Term Loan
Facility or the Revolving Credit Facility which has been
cancelled. Any cancellation of the Term Loan Facility or the
Revolving Credit Facility shall reduce each Bank's Term A Loan
Commitment, Term B Loan Commitment, Term C Loan Commitment, or
as the case may be, the Revolving Credit Commitment rateably,
and shall reduce the aggregate maximum amount of the relevant
Term Loan Facility or, as the case may be, Revolving Credit
Facility Limit by the aggregate amount so cancelled.
7.15.4 Dynea may not cancel all or part of the Term Loan Facilities
or the Revolving Credit Facility except as expressly provided
in this Agreement.
7.16 OILFIELD CHEMICALS TAX PREPAYMENTS
It is hereby agreed that until such date (the "RELEVANT DATE") the
Group has paid all Taxes payable in respect of the Disposal of the
Oilfield Chemicals Business, Dynea shall procure that in each 3 month
period ending on a Quarter Date, the Original Euro Amount of all
Revolving Advances and Bank Guarantees shall not exceed an amount equal
to the aggregate of Euro 100,000,000 less the unpaid amount of such
Taxes (up to a maximum amount of Euro 15,000,000 in respect of such
unpaid Taxes) for a period of at least 10 successive Business Days. It
is also agreed that in the event that if on the Relevant Date the
aggregate amount of the said Taxes which has been paid by the Group is
less than Euro 14,000,000 and the Net Cash Proceeds of the said
Disposal (computed on the basis of the actual amount of the said Taxes
which is paid) exceeds EUR 60,000,000, then an amount equal to the
amount by which such Net Cash Proceeds (as so computed) exceeds the
aggregate of (i) EUR 60,000,000 and (ii) the amount of any prepayment
of the Term A Loan Facility, the Term B Loan Facility and the Term C
Loan Facility made in connection with the Auditors' certification of
the said Taxes pursuant to the letter dated on or about 11 February
2003 addressed by the Facility Agent to Dynea shall, on the Relevant
Date, be applied to prepayment of the Term A Loan Facility, the Term B
Loan Facility and the Term C Loan Facility in accordance with the order
of application set out in Clause 7.10 (Application of prepayments).
8. CHANGES IN CIRCUMSTANCES
8.1 ILLEGALITY
8.1.1 If it is or becomes illegal for a Bank to maintain all or part
of its Commitment or to continue to make available or fund or
maintain its Participation in all or any part of the
Facilities, then:
(a) that Bank shall notify the Facility Agent and Dynea;
and
(b)
(i) the Commitment of that Bank shall be
cancelled immediately; and
(ii) the Borrowers shall:
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(1) prepay to the Facility Agent (for the
account of that Bank) that Bank's
Participation in all Advances (together with
accrued interest on the amount prepaid and
all other amounts owing to that Bank under
this Agreement) within 5 Business Days of
demand by that Bank (or, if longer and if
permitted by the relevant law, on the last
day prior to such illegality taking effect);
and
(2) within 5 Business Days of demand by that
Bank or the Facility Agent (or, if longer
and if permitted by the relevant law, on the
last day prior to such illegality taking
effect), pay to one or more accounts
nominated by the Facility Agent amounts in
the relevant currencies equal, in aggregate,
to that Bank's actual and contingent
liabilities under its Bank Indemnity and
shall charge such accounts to the Facility
Agent on terms satisfactory to the Facility
Agent and the Issuing Bank in each case
acting reasonably.
8.1.2 If it is or becomes illegal for the Issuing Bank to issue or
leave outstanding any Bank Guarantee, the Revolving Credit
Facility shall cease to be available for the issue of Bank
Guarantees and the Borrowers shall use their best endeavours
to procure the release of each Bank Guarantee outstanding at
such time.
8.2 INCREASED COSTS
8.2.1 If, after the date of this Agreement, a Change occurs which
causes an Increased Cost (as defined in sub-clause 8.2.3) to a
Bank (or any company of which that Bank is a Subsidiary) then
each Borrower shall pay (as additional interest) to the
Facility Agent (for the account of that Bank) within 5
Business Days of demand all amounts which that Bank certifies
to be necessary to compensate that Bank (or any company of
which that Bank is a Subsidiary) for the Increased Cost.
8.2.2 Any demand made under sub-clause 8.2.1 shall be made by the
relevant Bank through the Facility Agent and shall set out in
reasonable detail so far as is practicable the basis of
computation of the Increased Cost.
8.2.3 In this Clause 8.2:
"INCREASED COST" means any cost to, or reduction in the amount
payable to, or reduction in the return on capital or
regulatory capital achieved by, a Bank (or any company of
which that Bank is a Subsidiary) to the extent that it arises,
directly or indirectly, as a result of the Change and is
attributable to the Commitment of that Bank or its
Participation in the Facilities or the funding of that Bank's
Participation in any Advance including:
(a) any Tax Liability (other than Tax on Overall Net
Income) incurred by that Bank;
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(b) any changes in the basis or timing of Taxation of
that Bank in relation to its Commitment or
Participation in the Facilities or to the funding of
that Bank's Participation in any Advance;
(c) the cost to that Bank (or any company of which that
Bank is a Subsidiary) of complying with, or the
reduction in the amount payable to or reduction in
the return on capital or regulatory capital achieved
by that Bank (or any company of which that Bank is a
Subsidiary) as a result of complying with, any
capital adequacy or similar requirements howsoever
arising, including as a result of an increase in the
amount of capital to be allocated to any Facility or
of a change to the weighting of that Bank's
Commitment or Participation in any Facility;
(d) the cost to that Bank of complying with any reserve,
cash ratio, special deposit or liquidity requirements
(or any other similar requirements); and
(e) the amount of any fees payable by that Bank to any
supervisory or regulatory authority.
"TAX LIABILITY" means, in respect of any person:
(i) any liability or any increase in the liability of
that person to make any payment of or in respect of
Tax;
(ii) the loss of any relief, allowance, deduction or
credit in respect of Tax which would otherwise have
been available to that person;
(iii) the setting off against income, profits or gains or
against any Tax liability of any relief, allowance,
deduction or credit in respect of Tax which would
otherwise have been available to that person; and
(iv) the loss or setting off against any Tax liability of
a right to repayment of Tax which would otherwise
have been available to that person.
For the purposes of this definition of "Tax Liability", any
question of whether or not any relief, allowance, deduction,
credit or right to repayment of Tax has been lost or set off,
and if so, the date on which that loss or set off took place,
shall be conclusively determined by the relevant person.
"TAX ON OVERALL NET INCOME" means, in relation to a Bank, Tax
(other than Tax deducted or withheld from any payment) imposed
on the net profits of that Bank by the jurisdiction in which
its Lending Office or its head office is situated.
8.2.4 The Borrowers shall not be obliged to make a payment in
respect of an Increased Cost under this Clause 8.2:
(a) if and to the extent that the Increased Cost has been
compensated for by the payment of the Additional Cost
Rate or the operation of Clause 9.9 (Grossing-Up);
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(b) if and to the extent that the Increased Cost is the
result of the negligence or wilful default of the
relevant Bank in complying with any law or
regulation;
(c) if and to the extent that the Increased Cost arises
as a direct result of a failure by the relevant Bank
to file any relevant tax form or to provide any
statements which have been reasonably requested by
the relevant authorities within a reasonable time
following a Change and which is within the control of
such Bank to file or provide, as the case may be; or
(d) if and to the extent that the Increased Cost is
compensated for under any other provision of this
Agreement.
8.2.5 If the Borrowers are required to pay any amount to a Bank
under this Clause 8.2, then, without prejudice to that
obligation and so long as the circumstances giving rise to the
relevant Increased Cost are continuing and subject to Dynea
giving the Facility Agent and that Bank not less than 5 days'
prior notice (which shall be irrevocable), the Borrowers may
(a) prepay all, but not part, of that Bank's Participation in
the Advances together with accrued interest on the amount
prepaid and (b) pay to one or more accounts nominated by the
Facility Agent amounts in the relevant currencies equal, in
aggregate, to that Bank's actual and contingent liabilities
under its Bank Indemnity and shall charge such accounts in
favour of the Facility Agent on terms satisfactory to the
Facility Agent and the Issuing Bank. Any such prepayment shall
be subject to Clause 22.1 (Breakage Costs Indemnity). On any
such prepayment the Commitment of the relevant Bank shall be
automatically cancelled.
8.3 MARKET DISRUPTION
8.3.1 If, in relation to an Advance and a particular Interest
Period:
(a) the Facility Agent determines that, because of
circumstances affecting the London interbank market
generally, reasonable and adequate means do not exist
for ascertaining LIBOR for that Advance for that
Interest Period; or
(b) the Facility Agent has been notified by a group of
Banks whose Term A Loan Commitments, Term B Loan
Commitments, Term C Loan Commitments, Term D Loan
Commitments or, as the case may be, Revolving Credit
Commitments together exceed 33 per cent. of the Total
Term A Loan Commitments, Total Term B Loan
Commitments, Total Term C Loan Commitments, Total
Term D Loan Commitments or, as the case may be, Total
Revolving Credit Commitments that in their opinion:
(i) matching deposits may not be available to
them in the London interbank market in the
ordinary course of business to fund their
Participations in that Advance for that
Interest Period; or
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(ii) the cost to them of obtaining matching
deposits in the London interbank market
would be in excess of LIBOR for that
Interest Period,
the Facility Agent shall promptly notify Dynea and the Banks
of that event but in any event by no later than 9.00 a.m. on
the first Business Day before the commencement of the relevant
Interest Period (such notice being a "MARKET DISRUPTION
NOTICE").
8.3.2 If a Market Disruption Notice applies to a proposed Advance,
that Advance shall not be made. Instead, the Facility Agent
and Dynea shall immediately enter into negotiations for a
period of not more than 30 days with a view to agreeing a
substitute basis for calculating the interest rate for the
Advance or for funding the Advance (whether in Euros or
another currency). Any substitute basis agreed by the Facility
Agent (with the consent of all the Banks) and Dynea shall take
effect in accordance with its terms and be binding on all the
Parties.
8.3.3 If a Market Disruption Notice applies to an outstanding Term
Advance, then:
(a) the Facility Agent and Dynea shall immediately enter
into negotiations for a period of not more that 30
days with a view to agreeing a substitute basis for
calculating the rate of interest for the Advance or
for funding the Advance;
(b) any substitute basis agreed under sub-clause 8.3.3(a)
by the Facility Agent (with the consent of all the
Banks) and Dynea shall take effect in accordance with
its terms and be binding on all the Parties;
(c) if no substitute basis is agreed under sub-clause
8.3.3(a), then, subject to sub-clause 8.3.4, each
Bank shall (through the Facility Agent) certify
before the last day of the Interest Period to which
the Market Disruption Notice relates a substitute
basis for maintaining its Participation in the
Advance which shall reflect the cost to the Bank of
funding its Participation in the Advance from
whatever sources it reasonably selects plus the Cash
Margin and (if applicable) Additional Cost Rate; and
(d) each substitute basis so certified shall be binding
on the relevant Borrower and the certifying Bank and
treated as part of this Agreement.
8.3.4 If no substitute basis is agreed under sub-clause 8.3.3(a),
then, so long as the circumstances giving rise to the Market
Disruption Notice continue and subject to Dynea giving the
Facility Agent and the Banks not less than 5 days' prior
notice (which shall be irrevocable), the relevant Borrower may
prepay the Advance to which the Market Disruption Notice
applies together with accrued interest on the amount prepaid.
Any such prepayment shall be subject to Clause 22.1 (Breakage
Costs Indemnity).
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8.4 MITIGATION
If any circumstances arise in respect of any Bank which would, or upon
the giving of notice would, result in the operation of Clause 8.1
(Illegality), 8.2 (Increased Costs), 8.3 (Market Disruption) or 9.9
(Grossing-Up) to the detriment of any Borrower, then that Bank shall:
8.4.1 promptly upon becoming aware of those circumstances and their
results, notify the Facility Agent and Dynea; and
8.4.2 in consultation with the Facility Agent and Dynea, take all
such steps as it determines are reasonably open to it to
mitigate the effects of those circumstances (including
changing its Lending Office or consulting with Dynea with a
view to transferring some or all of its rights and obligations
under this Agreement to another bank or other financial
institution acceptable to Dynea) in a manner which will avoid
the circumstances in question and on terms acceptable to the
Facility Agent, Dynea and that Bank,
PROVIDED THAT no Bank shall be obliged to take any steps which
in its reasonable opinion would or might have an adverse
effect on its business or financial condition or the
management of its Tax affairs or cause it to incur any
material costs or expenses except to the extent that such Bank
is indemnified and secured for such costs and expenses to its
reasonable satisfaction.
8.4.3 Nothing in this Clause 8.4 shall limit, reduce, affect or
otherwise qualify the rights of any Bank or the obligations of
the Borrowers under Clause 8.1 (Illegality), 8.2 (Increased
Costs), 8.3 (Market Disruption) or 9.9 (Grossing-Up).
8.5 CERTIFICATES
The certificate or notification of the Facility Agent or, as the case
may be, the relevant Bank as to any of the matters referred to in this
Clause 8 shall be in reasonable detail and shall be conclusive and
binding on the Borrowers except for any manifest error.
9. PAYMENTS
9.1 PLACE AND TIME
All payments by a Borrower or a Bank under this Agreement shall be made
to the Facility Agent to its account at such office or bank at such
time as the Facility Agent may notify the Borrowers or the Banks for
this purpose.
9.2 FUNDS
All payments to the Facility Agent under this Agreement shall be made
for value on the due date in freely transferable and readily available
funds.
9.3 DISTRIBUTION
9.3.1 Each payment received by the Facility Agent under this
Agreement for another Party shall, subject to sub-clauses
9.3.2 and 9.3.3, be made available by the Facility Agent to
that Party by payment (on the date (being, in the case of
Euros, a TARGET Day) 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
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relevant currency as it may notify to the Facility Agent for
this purpose by not less than 5 Business Days' prior notice.
9.3.2 The Facility Agent may apply any amount received by it for a
Borrower in or towards payment (on the date and in the
currency and funds of receipt) of any amount due from that
Borrower under this Agreement or in or towards the purchase of
any amount of any currency to be so applied.
9.3.3 Where a sum is to be paid to the Facility Agent under this
Agreement for another Party, the Facility Agent is not obliged
to pay that sum to that Party until it has established that it
has actually received that sum. The Facility 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 Party a corresponding amount. If the sum has
not been made available but the Facility Agent has paid a
corresponding amount to another Party, that Party shall
immediately on demand by the Facility 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 Facility Agent to reflect its cost of
funds.
9.3.4 Notwithstanding the provisions of this Clause 9.3, the
Facility Agent shall not be liable to any Borrower or any Bank
for the failure, or the consequences of any failure, of any
Euro cross-border payment system to effect same-day settlement
to an account of any Borrower or any Bank.
9.4 BUSINESS DAYS
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 calendar month (if there is one) or the
preceding Business Day (if there is not).
9.5 CURRENCY
In this Agreement, subject to any EMU Legislation:
9.5.1 all payments by a Borrower in respect of an Advance, whether
of interest or principal, shall be made in the currency (or
the denomination of the currency) in which that Advance is
denominated;
9.5.2 all payments relating to costs, losses, expenses or Taxes
shall be made in the currency in which the relevant costs,
losses, expenses or Taxes were incurred; and
9.5.3 any other amount payable under this Agreement shall, except as
otherwise provided, be made in Euros.
9.6 ACCOUNTS AS EVIDENCE
Each Bank shall maintain in accordance with its usual practice an
account which shall, as between the Borrowers and that Bank, be prima
facie evidence of the amounts from time to time advanced by, owing to,
paid and repaid to that Bank under this Agreement.
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9.7 PARTIAL PAYMENTS
9.7.1 If the Facility Agent receives a payment insufficient to
discharge all the amounts then due and payable by a Borrower
under this Agreement, the Facility Agent shall apply that
payment towards the obligations of that Borrower in the
following order:
(a) first, in or towards payment of any unpaid costs and
expenses of the Agents under this Agreement;
(b) second, in or towards payment pro rata of any accrued
interest due by that Borrower but unpaid under this
Agreement;
(c) third, in or towards payment pro rata of any
principal due by that Borrower but unpaid under this
Agreement; and
(d) fourth, in or towards payment pro rata of any other
sum due by that Borrower but unpaid under the
Financing Documents.
9.7.2 The Facility Agent shall, if so directed by all the Banks,
vary the order set out in sub-clauses 9.7.1(b) to 9.7.1(d).
9.7.3 Sub-clauses 9.7.1 and 9.7.2 shall override any appropriation
made by any Borrower.
9.8 SET-OFF AND COUNTERCLAIM
All payments by any Borrower under this Agreement shall be made without
set off or counterclaim.
9.9 GROSSING-UP
9.9.1 Subject to sub-clause 9.9.2, all sums payable to either Agent,
the Issuing Bank or any Bank pursuant to or in connection with
any Financing Document shall be paid in full free and clear of
all deductions or withholdings whatsoever except only as may
be required by law.
9.9.2 If any deduction or withholding is required by law in respect
of any payment due from a Borrower to either Agent, the
Issuing Bank or any Bank pursuant to or in connection with any
Financing Document, that Borrower shall:
(a) ensure or procure that the deduction or withholding
is made and that it does not exceed the minimum legal
requirement therefor;
(b) pay, or procure the payment of, the full amount
deducted or withheld to the relevant Taxation or
other authority in accordance with the applicable
law;
(c) (unless and to the extent the deduction or
withholding arises as a direct result of the gross
negligence or wilful default of the relevant Agent,
the Issuing Bank or, as the case may be, such a Bank
(the "PAYEE") or the failure of the Payee to comply
with the relevant law or as a direct result of a
failure of the Payee to file any relevant tax form or
to provide any statements which have been reasonably
requested by the relevant tax
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authorities within a reasonable time following a
Change and which is within the control of the Payee
to file or provide, as the case may be) increase the
payment in respect of which the deduction or
withholding is required so that the net amount
received by the Payee after the deduction or
withholding (and after taking account of any further
deduction or withholding which is required to be made
as a consequence of the increase) shall be equal to
the amount which the payee would have been entitled
to receive in the absence of any requirement to make
any deduction or withholding; and
(d) promptly deliver or procure the delivery to the Payee
of receipts evidencing each deduction or withholding
which has been made.
9.9.3 If either Agent is obliged to make any deduction or
withholding from any payment to any Bank (an "AGENCY PAYMENT")
which represents an amount or amounts received by that Agent
from a Borrower under any Financing Document, that Borrower
shall pay directly to that Bank such sum (an "AGENCY
COMPENSATING SUM") as shall, after taking into account any
deduction or withholding which that Borrower is obliged to
make from the Agency Compensating Sum, enable that Bank to
receive, on the due date for payment of the Agency Payment, an
amount equal to the Agency Payment which that Bank would have
received in the absence of any obligation to make any
deduction or withholding.
9.9.4 If any Bank determines, in its absolute discretion, that it
has received, realised, utilised and retained a Tax benefit by
reason of any deduction or withholding in respect of which a
Borrower has made an increased payment or paid an Agency
Compensating Sum under this Clause 9.9, that Bank shall,
PROVIDED THAT the Agents, the Issuing Bank and each Bank have
received all amounts which are then due and payable by the
obligors under any Financing Document, pay to that Borrower
(to the extent that that Bank can do so without prejudicing
the amount of the benefit or repayment and the right of that
Bank to obtain any other benefit, relief or allowance which
may be available to it) such amount, if any, as that Bank, in
its absolute discretion acting in good faith shall determine,
will leave that Bank in no worse position than it would have
been in if the deduction or withholding had not been required,
PROVIDED THAT:
(a) each Bank shall have an absolute discretion as to the
time at which and the order and manner in which it
realises or utilises any Tax benefit and shall not be
obliged to arrange its business or its Tax affairs in
any particular way in order to be eligible for any
credit or refund or similar benefit;
(b) no Bank shall be obliged to disclose any information
regarding its business, Tax affairs or Tax
computations;
(c) if a Bank has made a payment to a Borrower pursuant
to this sub-clause 9.9.4 on account of any Tax
benefit and it subsequently transpires that that Bank
did not receive that Tax benefit, or received a
lesser Tax benefit, that Borrower shall, on demand,
pay to that Bank such sum as that Bank
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may determine as being necessary to restore its
after-tax position to that which it would have been
had no adjustment under this sub-clause 9.9.4 been
made. Any sums payable by a Borrower to a Bank under
this sub-clause 9.9.4 shall be subject to Clause 17.6
(Indemnity Payments).
9.9.5 No Bank shall be obliged to make any payment under sub-clause
9.9.4 if, by doing so, it would contravene the terms of any
applicable law or any notice, direction or requirement of any
governmental or regulatory authority (whether or not having
the force of law).
9.9.6 If a Borrower is required to make an increased payment for the
account of a Bank under sub-clause 9.9.2, then, without
prejudice to that obligation and so long as such requirement
exists and subject to Dynea giving the Facility Agent and that
Bank not less than 5 days' prior notice (which shall be
irrevocable), the Borrowers may (a) prepay all, but not part,
of that Bank's Participation in the Advances together with
accrued interest on the amount prepaid and (b) pay to one or
more accounts nominated by the Facility Agent amounts in the
relevant currencies equal, in aggregate, to that Bank's actual
and contingent liabilities under its Bank Indemnity and shall
charge such accounts in favour of the Facility Agent on terms
satisfactory to the Facility Agent acting reasonably. Any such
prepayment shall be subject to Clause 22.1 (Breakage Costs
Indemnity). On any such prepayment the Commitment of the
relevant Bank shall be automatically cancelled.
10. SECURITY
10.1 SECURITY DOCUMENTS
The obligations and liabilities of the Borrowers to the Agents, the
Issuing Bank and each Bank under the Financing Documents shall be
secured by the interests and rights granted in favour of the Security
Trustee in its capacity as trustee and, for the purposes of the laws of
Austria, Belgium, Finland, France, The Netherlands, Norway, as agent
for itself, the Facility Agent, the Issuing Bank, the Lead Arranger and
the Banks under the Security Documents.
10.2 EXECUTION OF SECURITY DOCUMENTS BY DYNO AND ITS SUBSIDIARIES
Dynea undertakes to the Finance Parties that prior to the date which
falls 45 days after the date of this Agreement, the Facility Agent and
the Security Trustee shall have received all of the documents specified
in Part II of Schedule 2 (Conditions Subsequent) unless the Facility
Agent has waived the receipt of any such documents.
10.3 INTEREST RATE PROTECTION AGREEMENTS
10.3.1 All obligations and liabilities of a Borrower to any Bank
under or in connection with any Interest Rate Protection
Agreement shall be treated, for all purposes (other than
Clauses 9.7 (Partial Payments) and 15.1 (Redistribution), as
obligations and liabilities incurred under this Agreement and,
for the avoidance of doubt, a Borrower's obligations and
liabilities under any Interest Rate Protection Agreement shall
be secured obligations and liabilities under the Security
Documents and for such purposes any reference in any Security
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Document to a Bank shall be deemed to include that Bank as a
party to the relevant Interest Rate Protection Agreements.
10.3.2 In respect of an Interest Rate Protection Agreement, the Bank
that is a party thereto may only exercise its rights to
terminate that Interest Rate Protection Agreement by reason of
an event of default (howsoever described) if:
(a) such event of default relates to non-payment of any
amount under such Interest Rate Protection Agreement
by the Group Company that is party thereto; or
(b) a resolution is passed, or a court order is made,
which would result in the bankruptcy, liquidation or
dissolution of such Group Company; or
(c) a Default Notice has been served pursuant to Clause
13.2 (Acceleration, etc.).
10.4 RELEASE OF SECURITY ON DISPOSALS
In respect of any Disposal made by a Group Company which falls within
sub-clauses 12.4.2(a) to 12.4.2(o) of Clause 12.4 (Negative
Undertakings), the Security Trustee shall (and is authorised by the
Finance Parties so to do) on the completion of that Disposal release,
at the cost and expense of Dynea, from the Security Documents, the
assets which are the subject of that Disposal but, in relation to a
Disposal which falls within sub-clause 12.4.2(b), only if the Security
Trustee is reasonably satisfied that it will receive security over the
asset purchased with the Net Cash Proceeds of the released asset
equivalent to that which attached to the released asset immediately
prior to its release from the Security Documents.
10.5 RELEASE OF SECURITY AT END OF SECURITY PERIOD
Upon the termination of the Security Period the Security Trustee shall
(and is authorised by the Finance Parties so to do) release at the cost
and expense of the relevant Borrowers the Security Documents.
10.6 SALE OF DYNEA
In the event that there is a sale or other disposal of the entire
issued share capital of Dynea pursuant to enforcement action commenced
by the Security Trustee under the terms of the Share Charge over the
entire issued share capital of Dynea, on application of the proceeds of
such disposal against amounts due hereunder, any amounts which are then
due and unpaid hereunder shall be automatically discharged in full.
11. REPRESENTATIONS AND WARRANTIES
11.1 REPRESENTATIONS AND WARRANTIES
Dynea represents and warrants to each Finance Party (other than the
Term D Lender) that:
11.1.1 Status: each Group Company is a limited company duly
incorporated under the laws of the jurisdiction of its
incorporation, and it possesses the capacity to ▇▇▇ and be
sued in its own name and has the power to carry on its
business and to own its property and other assets;
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11.1.2 Powers and authority: each Group Company has power to execute,
deliver and perform its obligations under the Transaction
Documents and to carry out the transactions contemplated by
those documents and all necessary corporate, shareholder and
other action has been or will be taken to authorise the
execution, delivery and performance of the same;
11.1.3 Binding obligations: subject to the Reservations, the
obligations of each Group Company under the Transaction
Documents constitute its legal, valid, binding and enforceable
obligations;
11.1.4 Contraventions: the execution, delivery and performance by
each Group Company of the Transaction Documents does not:
(a) contravene any applicable law or regulation or any
order of any governmental or other official
authority, body or agency or any judgment, order or
decree of any court having jurisdiction over it;
(b) conflict with, or result in any breach of any of the
terms of, or constitute a default under, any
agreement or other instrument to which it is a party
or any licence or other authorisation to which it is
subject or by which it or any of its property is
bound; or
(c) contravene or conflict with the provisions of its
constitutional documents;
11.1.5 Insolvency: except as disclosed to the Facility Agent before
the date of this Agreement no Group Company has taken any
action nor have any steps been taken or legal proceedings been
started or, to the best of its information, knowledge and
belief, threatened against it for winding up, dissolution or
re organisation, the enforcement of any Encumbrance over its
assets or for the appointment of a receiver, administrative
receiver, or administrator, trustee or similar officer of it
or of any of its assets;
11.1.6 No default: no Group Company is (nor would be with any of the
giving of notice, the lapse of time, the determination of
materiality, or the satisfaction of any other condition) in
breach of or in default under any agreement to which it is a
party or which is binding on it or any of its assets in a
manner or to an extent which could reasonably be expected to
have a Material Adverse Effect;
11.1.7 Litigation: save as disclosed to the Facility Agent before the
date of this Agreement no action, litigation, arbitration or
administrative proceeding has been commenced, or, to the best
of Dynea's information, knowledge and belief, is pending or
threatened, against any Group Company which, if decided
adversely, could reasonably be expected to have a Material
Adverse Effect nor is there subsisting any unsatisfied
judgment or award given against any of them by any court,
arbitrator or other body;
11.1.8 Accounts:
(a) each of the latest Accounts of each Material Company
required to be delivered under sub-clause 12.2.1 of
Clause 12.2 (Information
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Undertakings) is prepared in accordance with IAS and
gives a true and fair view of the financial position
of the relevant company as at the date to which they
were prepared and for the Financial Year of that
company then ended; and
(b) each of the latest set of Management Accounts
required to be delivered under sub-clause 12.2.2 of
Clause 12.2 (Information Undertakings) shows with
reasonable accuracy the financial position of the
Group during the period to which it relates;
11.1.9 Encumbrances: no Encumbrance other than a Permitted
Encumbrance exists over all or any part of the assets of any
Group Company;
11.1.10 No Encumbrances created: the execution of the Financing
Documents by the Charging Group Companies and the exercise of
each of their respective rights and the performance of each of
their respective obligations under the Financing Documents
will not result in the creation of, or any obligation to
create, any Encumbrance over or in respect of any of their
assets (other than under the Financing Documents);
11.1.11 Authorisations: other than the giving of notice in respect of
contracts to be assigned), all authorisations, approvals,
licences, consents, filings, registrations, payment of duties
or taxes and notarisations required:
(a) for the conduct of the business, trade and ordinary
activities of each Group Company except to the extent
that failure to make, pay or obtain the same would
not have a Material Adverse Effect;
(b) for the performance and discharge of the obligations
of each Group Company under the Financing Documents
to which it is a party; and
(c) in connection with the execution, delivery, validity,
enforceability or admissibility in evidence of the
Financing Documents,
are in full force and effect;
11.1.12 Taxes: to the best of Dynea's information, knowledge and
belief, each Group Company has complied in all material
respects with all Taxation laws in all jurisdictions in which
it is subject to Taxation and has paid all Taxes due and
payable by it and no claims are being asserted against it in
respect of Taxes except for assessments in relation to the
ordinary course of its business or claims contested in good
faith and in respect of which adequate provision has been made
and disclosed in the latest Accounts or other information
delivered to the Facility Agent under this Agreement;
11.1.13 Information Package: to the best of Dynea's information,
knowledge and belief to so far as it relates to Dynea and its
Subsidiaries and the chemicals business of Dyno and its
Subsidiaries:
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(a) the factual information contained in the Information
Package was, at the date of the relevant report or
document, true and accurate in all material respects
and not misleading in any material respect, there are
no other facts the omission of which would make any
fact or statement in the Information Package
misleading in any material respect and nothing has
occurred which would render any fact or statement in
the Information Package untrue or misleading in any
material respect; and
(b) all estimates, forecasts and projections contained or
referred to in the Information Package, and all
assumptions and presumptions upon the basis of which
the same were made, were fair and reasonable at the
time they were made, and nothing has occurred since
the date the same were made which would necessitate a
material revision to any of those estimates,
forecasts or projections in order for them to be fair
and reasonable;
11.1.14 Accounting reference date: the accounting reference date of
each Group Company is 31st December;
11.1.15 Corporate structure: on the Unconditional Date:
(a) the details of the Group set out in Part I of
Schedule 4 (Charging Group Companies) are accurate
and complete in all respects; and
(b) Dynea has no Subsidiaries other than those companies,
relevant details of which are set out in Schedule 4
(The Group);
11.1.16 Disclosures: there is no disclosure made in the Disclosure
Letter or any other disclosure to the Dynea Acquisition
Agreement, the Investment Agreement which makes or could
reasonably be expected to make any of the information,
prospects, estimates, forecasts and projections contained in
the Information Package inaccurate in any material respect;
11.1.17 Nordkem: prior to the date of this Agreement, Nordkem has not
traded or undertaken any commercial activities of any kind nor
(except as contemplated by, or otherwise in connection with,
this Agreement and the other Transaction Documents and the
transactions contemplated by this Agreement or by the other
Transaction Documents) has any liabilities (other than
liabilities for professional fees in connection with the Offer
or other administrative liabilities in the ordinary course of
its day to day business) or obligations, actual or contingent;
11.1.18 Intellectual Property Rights: save as disclosed to the
Facility Agent prior to the date of this Agreement:
(a) each Group Company owns or has the legal right to use
all of the Intellectual Property Rights which are
material to the conduct of its business or are
required by it in order for it to carry on its
business in all material respects;
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(b) so far as it is aware, the operations of each Group
Company do not infringe any Intellectual Property
Rights held by any third party which infringement has
or could reasonably be expected to have a Material
Adverse Effect;
(c) all Intellectual Property Rights owned by it and
which are material to the conduct of the business of
the Group are subsisting and no written claim by any
third party alleging any infringement of, act or
process relating to registered Intellectual Property
Rights which would be likely to render such
Intellectual Property Rights subject to revocation,
compulsory licence, cancellation or amendment remains
outstanding which has or could reasonably be expected
to have a Material Adverse Effect; and
11.1.19 Environmental: save as disclosed in the Environmental Reports,
to the best of Dynea's knowledge, information and belief, each
Group Company has and has at all times complied with all
applicable Environmental Law, non compliance with which could
reasonably be expected to have a Material Adverse Effect,
every consent, authorisation, licence or approval required
under or pursuant to any Environmental Law by each Group
Company in connection with the conduct of its business and the
ownership, use, exploitation or occupation of its assets the
absence or lack of which could reasonably be expected to have
a Material Adverse Effect, has been obtained and is in full
force and effect, there has been no default in the observance
of the conditions and restrictions (if any) imposed in, or in
connection with, any of the same which default could
reasonably be expected to have a Material Adverse Effect, and,
to the best of Dynea's information, knowledge and belief, no
circumstances have arisen (a) which would entitle any person
to revoke, suspend, amend, vary, withdraw or refuse to amend
any of the same or (b) which might give rise to a claim
against any Group Company which could reasonably be expected
to have a Material Adverse Effect having regard to the cost to
that Group Company of meeting such a claim;
11.1.20 Offer: the making of the Offer and the acquisition by Nordkem
of Dyno Shares pursuant to the Offer will not result in any
breach of the terms of, or constitute a default under, or give
any other person a right to terminate any agreement or
instrument to which any Group Company is a party or any
licence or other authorisation to which it is subject or by
which it or any of its property is bound which could
reasonably be expected to have a Material Adverse Effect; and
11.1.21 No material adverse change: since 6 December 1999 no event has
occurred in relation to the Group which has had or could be
reasonably expected to have a Material Adverse Effect.
11.2 REPETITION
The representations and warranties set out in Clause 11.1
(Representations and Warranties) shall survive the execution of this
Agreement and shall be deemed to be repeated as follows:
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11.2.1 each of the said representations and warranties shall be
deemed to be repeated on the first Drawdown Date; and
11.2.2 each of the said representations and warranties (other than
those made under sub-clauses 11.1.5, 11.1.6, 11.1.7 and 11.1.9
to 11.1.21 (inclusive) of Clause 11.1 (Representations and
Warranties)) shall be repeated on each Drawdown Date (other
than the first Drawdown Date) and each Issue Date,
in each case, as if made with reference to the facts existing at the
time of repetition.
12. UNDERTAKINGS
The Term D Lender shall not have the benefit of any undertaking given
in this Clause 12.
12.1 OFFER RELATED UNDERTAKINGS
Dynea undertakes to procure that it and Nordkem shall unless the
Facility Agent (acting on the instructions of the Majority Banks)
otherwise agrees:
12.1.1 Compliance with laws, etc: in relation to the Offer, comply in
all material respects with all relevant laws and the
requirements, rules and regulations of all applicable
regulatory authorities;
12.1.2 Disclosure: make full disclosure to the Facility Agent as soon
as reasonably practicable upon becoming aware of the same, of
any material information which is relevant to the Offer or
which indicates that any condition to the Offer will not be
satisfied;
12.1.3 Information: promptly keep the Facility Agent informed upon
the Facility Agent's reasonable request as to the progress of
the Offer and at the request of the Facility Agent provide the
Facility Agent with such information in respect of the Offer
that the Facility Agent may reasonably request; and
12.1.4 No waiver or amendment: not:
(a) waive, revise, vary or amend any material terms of,
or conditions to, the Offer, including any condition
relating to the level of acceptances; nor
(b) exercise any discretion under the material terms and
conditions of the Offer, including any condition
relating to the level of acceptances.
12.2 INFORMATION UNDERTAKINGS
Dynea undertakes that during the Security Period it shall, unless the
Facility Agent (acting on the instructions of the Majority Banks)
otherwise agrees:
12.2.1 Accounts: as soon as the same become available (and in any
event within 120 days (or, in the case of the first such
Financial Year, 150 days) after the end of each of its
Financial Years), deliver to the Facility Agent in sufficient
copies for all the Banks the Accounts for each such Financial
Year of Dynea and each Material Company;
12.2.2 Management accounts: commencing with September 2000 as soon as
the same become available (and in any event within 30 days (or
in the case of the first
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such accounting period, 90 days and in respect of 5 such
accounting periods thereafter, 45 days) after the end of each
successive accounting period (none of which shall be more than
5 weeks in duration) (each an "ACCOUNTING PERIOD") during each
of its Financial Years), deliver to the Facility Agent in
sufficient copies for all the Banks the consolidated
management accounts (the "MANAGEMENT ACCOUNTS") of Dynea for
each such Accounting Period and in such a form as to disclose
with reasonable accuracy the financial position of the Group
and which shall include the following information in respect
of each such Accounting Period on both a consolidated and a
segment business unit by segment business unit basis:
(a) a statement of profit and loss;
(b) a balance sheet; and
(c) a cashflow statement;
together with a comparison, where appropriate, of all such
information with the estimates, forecasts and projections in
the relevant Operating Budget (or any replacement or
substitution made therefor) in relation to each such
Accounting Period including an analysis justifying any
variations therefrom and, if necessary, revised estimates,
forecasts and projections;
12.2.3 Operating Budgets:
(a) provide to the Facility Agent (in a format acceptable
to the Facility Agent, acting on the instructions of
the Majority Banks acting reasonably) an Operating
Budget for each of its Financial Years during the
Security Period beginning on or after 1 January 2001,
not less than 15 days prior to the start of each such
Financial Year, together with a comparison of the
information, estimates, forecasts and projections
contained therein with any relevant information,
estimates, forecasts and projections contained in the
Financial Plan including an analysis justifying any
variations therefrom; and
(b) if any Group Company shall determine that any of the
estimates, forecasts or projections made in relation
to any of its Financial Years should be materially
different from those set out in the then current
Operating Budget (or any substitution therefor
subsequently made and agreed by the Facility Agent),
provide to the Facility Agent revised estimates,
forecasts or projections in respect of any part of
each such Financial Year and such revised estimates,
forecasts or projections shall apply immediately
following their approval by the boards of directors
of the relevant company and Dynea;
12.2.4 Information on request: promptly following the Facility
Agent's request, provide to the Facility Agent such other
information, estimates, forecasts or projections in relation
to any Group Company and any of their respective
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businesses, assets, financial condition, ownership or
prospects as the Facility Agent may reasonably require;
12.2.5 Compliance certificates: provide to the Facility Agent within
30 days of each Quarter Date a certificate (a "COMPLIANCE
CERTIFICATE") executed under the authority of the board of
directors of Dynea certifying that in relation to the 3 month
period ending on each such Quarter Date all the undertakings
on the part of Dynea under this Agreement are for the time
being complied with and including calculations relating to the
financial undertakings set out in sub-clause 12.6.1 of Clause
12.6 (Financial Undertakings). (For the purpose of this
sub-clause 12.2.5, the calculations shall be made by reference
to the Management Accounts prepared for the period in relation
to which the relevant Compliance Certificate is to be given
and, in relation to a Compliance Certificate given in relation
to the last 3 months in any Financial Year of Dynea, Dynea
shall procure that the Auditors shall, if they are so
satisfied, confirm when the relevant Accounts are delivered,
in a confirmation addressed to the Agents, the Issuing Bank
and the Banks, that the calculations contained in the relevant
certificate have been made correctly, based on the Accounts
PROVIDED THAT if there have been any breaches of those
undertakings at any time during the period to which that
certificate relates then Dynea shall include in that
certificate relevant details of all those breaches);
12.2.6 IAS: ensure that all Accounts and other financial information
submitted to the Facility Agent have been prepared in
accordance with IAS; and
12.2.7 Default, litigation, etc: promptly, upon becoming aware of the
same, notify the Facility Agent of:
(a) any Default or Potential Default;
(b) any litigation, arbitration or administrative
proceeding commenced against any Group Company
involving a potential liability of any Group Company
exceeding Euro 1,000,000;
(c) any Encumbrance (other than a Permitted Encumbrance)
attaching to any of the assets of any Group Company;
and
(d) any other occurrence relating to a Group Company
(including any third party claim or liability) which
could reasonably be expected to have a Material
Adverse Effect.
12.3 POSITIVE UNDERTAKINGS
Dynea undertakes that during the Security Period it shall, and it shall
procure that each Group Company, shall, unless the Facility Agent
(acting on the instructions of the Majority Banks) otherwise agrees:
12.3.1 Pay Taxes: pay and discharge all Taxes and governmental
charges payable by or assessed upon it prior to the date on
which the same become overdue unless, and only to the extent
that, such Taxes and charges shall be contested in good faith
by appropriate proceedings, pending determination of which
payment may
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lawfully be withheld, and there shall (if the Auditors so
advise) be set aside adequate reserves with respect to any
such Taxes or charges so contested in accordance with IAS;
12.3.2 Insurance: cause its assets to be and kept insured with
reputable insurers in such amounts and against such risks as
is customary for prudent companies carrying on business
comparable to that of the relevant Group Company;
12.3.3 Authorisations: comply with all laws and obtain, maintain and
comply with the terms of any authorisation, approval, licence,
consent, exemption, clearance, filing or registration
required:
(a) for the conduct of its business, trade and ordinary
activities, save to the extent that failure to
comply, obtain, maintain or comply with the same
could reasonably be expected not to have a Material
Adverse Effect; and
(b) to enable it to perform its obligations under, or for
the validity, enforceability or admissibility in
evidence of, any Financing Document;
12.3.4 Access: if a Default or Potential Default is continuing (or if
any Agent has reasonable grounds for believing that a Default
or Potential Default has occurred), upon reasonable notice
being given to Dynea by the Facility Agent, permit the
Facility Agent and any person (being an accountant, auditor,
solicitor, valuer or other professional adviser of the
Facility Agent) authorised by the Facility Agent to have, at
all reasonable times during normal business hours, access to
the property, premises and accounting books and records of any
Group Company and to the senior management of the Group;
12.3.5 Ranking of obligations: ensure that its obligations under the
Financing Documents to which it is a party shall at all times
rank at least pari passu with all its other present and future
unsecured and unsubordinated Indebtedness except for any
obligations which are mandatorily preferred by law and not by
contract;
12.3.6 Further documents: at the request of the Facility Agent, do or
procure the doing of all such things and execute or procure
the execution of all such documents as are, in the opinion of
the Facility Agent acting reasonably, necessary to ensure that
the Facility Agent and the Banks obtain all their rights and
benefits under the Financing Documents;
12.3.7 Delivery of declarations, etc: within any relevant period laid
down in any statute, law or regulation make all necessary
declarations and deliver all necessary forms and documents
required to be delivered to, filed with or registered with any
governmental, statutory or other body or agency by it in
connection with the Transaction Documents and any of the
transactions contemplated under the Transaction Documents;
12.3.8 Hedging: within 60 days of the date of the Agreement, procure
that Dynea enters into such interest rate protection
agreements with one or more Banks in
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respect of a principal amount of at least 50 per cent. of the
aggregate amount of the Term Loans for a period of at least 3
years;
12.3.9 Additional security: procure that, in respect of each Material
Company from time to time but subject to any legal prohibition
or limitation on the giving of such Guarantee or Share Charge
and the Group not incurring costs which are materially more
extensive than those incurred in executing the Security
Documents pursuant to Clause 3.1 (Conditions Precedent):
(a) that Material Company has executed a Guarantee;
(b) a Group Company has executed a Share Charge in
respect of the entire issued share capital of that
Material Company; and
(c) such Group Guarantee and Share Charge have been
delivered to the Security Trustee within 30 days of
the relevant company becoming a Material Company
together with such documentation in support thereof
as the Security Trustee may reasonably require,
including legal opinions (in form and content
satisfactory to the Security Trustee acting
reasonably) from lawyers reasonably acceptable to the
Security Trustee;
12.3.10 Compliance with Environmental Law: without prejudice to
sub-clause 12.3.3, comply in all respects with Environmental
Law save to the extent that non-compliance could reasonably be
expected not to have a Material Adverse Effect and, in any
event, implement any recommendations and proposals contained
in the Environmental Reports substantially within the time
periods specified in that report, or if no such time periods
are specified, as soon as reasonably practicable;
12.3.11 Dangerous materials: ensure that all Dangerous Materials
treated, kept and stored, produced, manufactured, generated,
refined or used from, in, upon, or under any of the real
property owned by a Group Company are held and kept upon such
real property in such a manner and up to such standards as
they would be kept by a prudent company carrying on the same
trade as that Group Company;
12.3.12 Intellectual Property Rights: take all reasonable action to
protect, maintain and keep in full force and effect all the
rights and benefits of each Group Company in relation to
Intellectual Property Rights which are material in the context
of the business of such Group Company;
12.3.13 Nordkem, Dynea and Holdcos: procure that none of Nordkem,
Dynea or the Holdcos have creditors or assets and undertakes
any activity (other than as contemplated by the Transaction
Documents);
12.3.14 Protection of rights under the Dynea Acquisition Agreement:
take all reasonable and practical steps to preserve and
enforce its rights arising under the Dynea Acquisition
Agreement;
12.3.15 Disposals to be made: in respect of Dynea only, procure that:
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(a) within 6 months of the date of this Agreement, the
three companies through which Dyno's speciality
polymers operations are sold or liquidated; and
(b) within 1 month of the date of this Agreement, the
interest of the Group in Polimoon is sold,
in each case in accordance with the PWC Dyno Structuring
Memorandum;
12.3.16 Dynea B.V.: use its reasonable endeavours to promptly obtain
an approval from the works council of Dynea B.V. for the
execution by Dynea B.V. of a Guarantee, an Asset Security
Document and a Property Charge, each in an agreed form, and
procure that immediately following the receipt of such
approval Dynea B.V. deliver the same, together with a
Certified Copy of the company's board minutes approving and
authorising the execution and delivery of the said documents
in accordance with paragraph (c) of Part I of Schedule 2
(Conditions Precedent) of this Agreement, to the Security
Trustee, and procure that the Security Trustee receives a
legal opinion from ▇▇▇▇▇ Dutilh in form and substance
satisfactory to it;
12.3.17 Property Charges: within 14 days after the date of this
Agreement, procure:
(a) the delivery by the US counsel of Dynea USA Inc.
(formerly Neste Resins Corporation) and Dynea Fort
▇▇▇▇▇ Inc. (formerly Neste Polyester Inc.) to the US
counsel of the Banks all title reports, copies of any
existing land surveys and results of all
environmental searches in respect of the properties
described in paragraphs 2(e)(i) and (ii) of Part II
of Schedule 2 (Conditions Precedent) together with
any such further information or searches in respect
of those properties as the Facility Agent may
reasonably require; and
(b) that the Facility Agent be provided full information
about any real properties owned by Dyno and its
Subsidiaries and within 45 days after the date of
this Agreement procure that such of Dyno or its
Subsidiaries execute and deliver to the Security
Trustee (in each case in the form and substance
reasonably satisfactory to the Facility Agent)
Property Charges over such real properties as the
Facility Agent may reasonably require, together in
each case with a legal opinion from ▇▇▇▇▇▇, Halter &
▇▇▇▇▇▇▇▇ LLP (and any legal opinions from local
counsel, if such opinions are reasonably requested by
the Facility Agent) together with Certified Copies of
the relevant Group Companies' board minutes approving
and authorising the execution and delivery of the
said documents in accordance with paragraph 1 of Part
II of Schedule 2 (Conditions Precedent). The relevant
Group Companies shall procure the issuance in favour
of the Finance Parties policies of mortgage title
insurance (written on ALTA form and in amounts and
form reasonably acceptable to the Facility Agent) in
respect of all Property Charges deliverable by such
Group Companies pursuant to this sub-clause 12.3.17
and shall pay all costs, fees and premiums therefor
and deliver to the Facility Agent such
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additional documentation (including without
limitation, UCC-1 financing statements and
environmental indemnity agreements) as may be
required by the Facility Agent (acting reasonably);
and
12.3.18 Additional Security Documents: on or before 31 March 2004,
deliver to the Facility Agent in form and substance
satisfactory to the Facility Agent the documentation set out
in Part III of Schedule 2.
12.4 NEGATIVE UNDERTAKINGS
Dynea undertakes that during the Security Period it shall not, and it
shall procure that none of the Group Companies shall, unless the
Facility Agent (acting on the instructions of the Majority Banks)
otherwise agrees:
12.4.1 Negative Pledge: create or permit to subsist any Encumbrance
over any of its assets other than Permitted Encumbrances;
12.4.2 Disposal of assets: make a Disposal other than:
(a) in the ordinary course of its trading activities; or
(b) where the Net Cash Proceeds of the Disposal of a
fixed asset are used within 6 months of that Disposal
for the purchase of a fixed asset to replace directly
the fixed asset the subject of that Disposal and
pending such purchase, the said Net Cash Proceeds are
paid to the credit of such bank account (bearing at
least a market rate of interest) as the Facility
Agent may stipulate (and, which at the request of the
Facility Agent shall be charged to the Security
Trustee); or
(c) a Disposal of an asset which is obsolete for the
purpose for which such an asset is normally utilised;
or
(d) a Disposal to a Charging Group Company; or
(e) a Disposal by a Group Company which is not a Charging
Group Company to another Group Company; or
(f) a Disposal of cash or Cash Equivalents on arm's
length terms and, in each case, on terms not
otherwise prohibited by this Agreement; or
(g) a Disposal by a Group Company on arm's length terms
of fixed assets in return for other fixed assets of
comparable or greater value and where if such first
mentioned fixed assets were charged or pledged under
the Security Documents, the second mentioned fixed
assets are so charged or pledged; or
(h) a Disposal of the Oilfield Chemicals Business or the
Polyester Business where the Net Cash Proceeds of
such Disposal are either applied in prepayment of the
Facilities in accordance with Clause 7.10
(Application of Prepayments) or, are paid to Issueco
to be applied in prepayment of the Issueco Bridging
Loan in accordance with the proviso to sub-clause
7.6.1 of Clause 7.6 (Mandatory Prepayment of Net
Available Proceeds) or are
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used within 270 days (or, in the event that there is
reasonable evidence within the 360 days period that
such Disposal will be completed within such period,
360 days) of that Disposal for the purchase of a
business which (1) is complimentary to the Group's
existing business, (2) which has annual earnings
before interest, Tax, Depreciation and amortisation
comparable on a pro forma basis with the annual
earnings before interest, Tax, Depreciation and
amortisation of the Oilfield Chemical Business or, as
the case may be, the Polyester Business and (3) in
respect of which Dynea has provided a cashflow
forecast for the period of 3 years following such
purchase which shows that on the basis of the
projected cashflows of the Group for such 3-year
period the Group can service its payment obligations
under this Agreement and, in any event, pending such
purchase, the Net Cash Proceeds are paid to the
credit of such bank account (bearing at least a
market rate of interest) as the Facility Agent may
stipulate (and, which shall be charged to the
Security Trustee); or
(i) any Disposal which constitutes a Permitted
Encumbrance; or
(j) a Disposal of the PVC Rovin plant at Porvoo, Finland
owned by Dynea (as referred to in the Dynea
Acquisition Agreement); or
(k) a Disposal of the formaldehyde and resin plant at
Kitee, Finland owned by Dynoresins Oy; or
(l) a Disposal pursuant to the Dyno Explosives Sale
Agreement, the US Explosives Sale Agreement or the
Oxo Sale Agreement; or
(m) a Disposal of the Paper Chemicals Business pursuant
to the Paper Chemicals Business Sale Agreement; or
(n) a Disposal of the Captive Insurance Company where the
Captive Bridging Loan is discharged in full; or
(o) a Disposal of the Investcos or the Groups interest in
Polimoon in accordance with the PWC Dyno Structuring
Memorandum; or
(p) a Disposal on arm's length terms where the aggregate
value of the assets the subject of a Disposal by
Group Companies other than in accordance with
paragraphs (a) to (o) of this sub-clause 12.4.2 in
any Financial Year of Dynea does not exceed Euro
7,500,000 (for the purposes of this paragraph, the
value of any asset shall be the greater of its book
value and the consideration received for it);
12.4.3 Change of business: other than as set out in the PWC Dyno
Structuring Memorandum, make any substantial change to the
general nature or scope of the business of the Group as a
whole from that carried on at the date of this Agreement;
12.4.4 Mergers: in relation to the Material Companies only, enter
into any amalgamation, demerger, merger or reconstruction
(other than (a) a
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reconstruction which is effected by means of capitalisation of
any intra-Group loan permitted under this Agreement or (b) as
set out in the PWC Dyno Structuring Memorandum;
12.4.5 Fees: pay any fees or commissions to any person other than (a)
on open market terms and for the purpose of and in the
ordinary course of its day to day business, (b) fees incurred
under any Transaction Document and/or as set out in the PWC
Dyno Structuring Memorandum;
12.4.6 Loans: make any loans or grant any credit to or for the
benefit of any person, other than:
(a) amounts of credit allowed by the relevant company in
the normal course of its trading activities; or
(b) loans made by a Group Company to a Charging Group
Company; or
(c) loans made by a Group Company which is not a Charging
Group Company to another such Group Company; or
(d) loans made by Charging Group Companies to Group
Companies which are not Charging Group Companies
which do not exceed in aggregate Euro 1,000,000 at
any time; or
(e) loans made to Parentco where the proceeds of the same
are used by Parentco to pay Acquisition Costs; or
(f) loans made by a Group Company to its employees where
such loans do not, when aggregated with the amount of
all guarantees referred to in paragraph (v) of
Permitted Indebtedness with all such loans made by
all Group Companies, exceed Euro 1,000,000 at any
time;
12.4.7 Indebtedness: incur or permit to subsist any Indebtedness
other than Permitted Indebtedness;
12.4.8 Acquisitions: acquire any business of, or shares or securities
of, any company other than:
(a)
(i) the shares of a Group Company; or
(ii) of a business by a Group Company which is
not a Charging Group Company from another
such Group Company;
(b)
(i) (1) where the aggregate of the consideration
payable for, and Indebtedness assumed or
repaid by Group Companies in connection
with, all such acquisitions made by Group
Companies in any Financial Year of Dynea
does not exceed Euro 2,000,000 or (2) is an
acquisition to which sub-clause 12.4.2(h)
refers and is funded from
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the Net Cash Proceeds of the Oilfield
Chemicals Business or, as the case may be,
the Polyester Business; and
(ii) where the acquisition is of a business, or
of shares in a company whose business is,
complementary to the Group's existing
businesses and which, on a pro forma basis,
has positive annual earnings before
interest, Tax, Depreciation and
amortisation; and
(iii) in the case of an acquisition to which
paragraph (b)(i)(2) above refers, if the
Security Trustee reasonably requires,
promptly on such acquisition if the
acquisition is of shares comprising more
than 50 per cent. of the issued share
capital of a company which upon such
acquisition becomes a Material Company or if
the acquisition is of a business the
acquiring Group Company becomes a Material
Company, subject to any legal prohibition or
limitation on the giving of a Guarantee and
Debenture (or a Group Guarantee and Asset
Security Document), that company executes a
Guarantee and Debenture or a Group Guarantee
and Asset Security Document (in a form
approved by the Security Trustee acting
reasonably and on terms no more onerous and
which would not impede or affect the
business of any member of the Group to a
greater extent than the security delivered
on the date of Completion under the laws of
the jurisdiction of that company's
incorporation) and delivers the same to the
Security Trustee together with, in the
latter case, a legal opinion (in a form and
content satisfactory to the Security Trustee
(acting reasonably)) from lawyers appointed
by the Security Trustee.
12.4.9 Payments and dealings with Parentco and Issueco: without
prejudice to the other provisions of this Clause 12.4:
(a) in respect of Dynea only, make, pay or declare any
dividend or other distribution in relation to any
shares forming part of its issued share capital;
(b) make, repay or redeem an Issueco Loan or any other
loan or grant any credit to or for the benefit of
Parentco, Issueco or any Investco or pay any interest
to or for the benefit of Parentco, Issueco or any
Investco whether in respect of an Issueco Loan or
otherwise;
(c) enter into or give any guarantee or other instrument
of suretyship in respect of any obligation or
liability of Parentco or Issueco (other than
Permitted Indebtedness falling within paragraphs (t)
and (u) of that definition);
(d) incur or permit to subsist any Indebtedness (other
than an Issueco Loan or as permitted pursuant to
paragraph (c) above) owed to Parentco, Issueco or any
Investco;
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(e) pay any fees or commissions to, or for the benefit
of, Parentco, Issueco or any Investco;
(f) make any Disposal of an asset to or for the benefit
of Parentco, Issueco or any Investco; nor
(g) enter into any transaction with Parentco, Issueco or
any Investcos other than on arm's length terms,
PROVIDED THAT:
(i) Group Companies may pay amounts to Parentco
and Issueco by way of dividends made by
Dynea, make loans, repay an Issueco Loan,
pay interest on an Issueco Loan, pay fees
and, in each case, whether or not on arms
length terms, where such amounts are
forthwith used to pay:
(1) fees (including, for the avoidance
of doubt, directors' fees) and
expenses of an administrative
nature incurred by Parentco or
Issueco;
(2) a Permitted Senior Subordinated
Notes Payment; or
(3) interest, fees, costs and expenses,
grossing up amounts and indemnity
payments payable by Issueco under
the Issueco Bridging Loan
Agreement,
so long as, in each case, on the date
falling 2 days prior to the making of the
relevant payment, there is no outstanding
Default or Potential Default;
(ii) a Group Company may, at a time there is no
outstanding Default or Potential Default,
repay an Issueco Loan made to it where
Issueco simultaneously makes a new loan to a
Group Company that has executed a Guarantee
in an amount at least equal to the amount
that is to be repaid or novate to such a
Group Company an Issueco Loan;
(iii) the Group may, so long as there is no
outstanding Default or Potential Default,
pay, in accordance with the proviso to
sub-clause 7.6.1 of Clause 7.6 (Mandatory
Prepayment of Net Available Proceeds), up to
an aggregate amount equal to the Issueco
Bridging Loan Amount, the Net Available
Proceeds from Disposals referred to in any
of sub-clauses 12.4.2(h), 12.4.2(j),
12.4.2(l) and 12.4.2(o) to Issueco where the
same are applied in prepayment of the
Issueco Bridging Loan; nor
12.4.10 Variation of Transaction Documents: permit or effect any
variations, novations or amendments to the Dynea Acquisition
Agreement (other than where the effect of the same is not
material), the Intra-Group Loan Agreements, the On-
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Lending Agreement, the Put and Call Agreement or the
Performance Guarantees.
12.5 UNDERTAKINGS RELATING TO DYNCO
12.5.1 Dynea undertakes that during the Security Period it shall
procure that, other than as contemplated by the other
Transaction Documents or as the Facility Agent (acting on the
instructions of the Majority Banks and the Term D Lender)
otherwise agrees, Dynco does not trade or undertake any
commercial activities of any kind, that Dynco does not acquire
any assets and does not make any loans (other than under the
terms of the On-Lending Agreement) and that Dynco does not
have any employees.
12.5.2 Dynea undertakes that prior to the Senior Discharge Date (and
notwithstanding any other term of this Agreement) it shall
not, and it shall procure that none of the Group Companies
shall, unless the Facility Agent (acting on the instructions
of the Majority Banks) otherwise agrees:
(a) make, repay or redeem any loan or grant any credit to
or for the benefit of Dynco or pay any interest to or
for the benefit of Dynco PROVIDED THAT Dynea may pay
interest under the terms of the On-Lending Agreement
where the same is immediately applied in paying
interest which is then due and payable by Dynco under
the Term D Loan Facility;
(b) enter into or give any guarantee or other instrument
of suretyship in respect of any obligation or
liability of Dynco (other than the Confirmation
Documents);
(c) incur or permit to subsist any Indebtedness owed to
Dynco (other than under the On-Lending Agreement);
(d) pay any fees or commission to, or for the benefit of,
Dynco;
(e) make any Disposal of an asset to or for the benefit
of Dynco; or
(f) other than the On-Lending Agreement, enter into any
transaction with Dynco.
12.6 FINANCIAL UNDERTAKINGS
12.6.1 Dynea undertakes to ensure that during the Security Period,
unless the Facility Agent (acting on the instructions of the
Majority Banks) otherwise agrees:
(a) EBITDA to Total Net Interest Costs
the ratio of EBITDA to Total Net Interest Costs for
each period referred to in Column A below shall not
be less than the ratio set out in Column B below
opposite that period:
COLUMN A COLUMN B
PERIOD RATIO
12 months to 31 March 2004 1.33:1
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COLUMN A COLUMN B
PERIOD RATIO
12 months to 30 June 2004 1.16:1
12 months to 30 September 2004 1.22:1
12 months to 31 December 2004 1.60:1
12 months to 31 March 2005 2.40:1
12 months to 30 June 2005 2.50:1
12 months to 30 September 2005 2.60:1
Each period of 12 months falling on a Quarter Date 2.60:1
occurring after 30 September 2005;
(b) Total Net Debt to EBITDA
the ratio of Total Net Debt on each Quarter Date set
out in Column A below to EBITDA for the period of 12
months ending on such Quarter Date shall not be
greater than the ratio set out in Column B below
opposite such Quarter Date:
COLUMN A COLUMN B
QUARTER DATE RATIO
31 March 2004 8.42:1
30 June 2004 9.57:1
30 September 2004 9.20:1
31 December 2004 6.72:1
31 March 2005 3.90:1
30 June 2005 3.80:1
30 September 2005 3.70:1
31 December 2005 3.50:1
31 March 2006 3.40:1
30 June 2006 3.30:1
30 September 2006 3.20:1
31 December 2006 3.10:1
Each Quarter Date occurring after 31 3.10:1
December 2006;
(c) EBITDA to Total Net Senior Interest Costs
the ratio of EBITDA to Total Net Senior Interest
Costs for each period referred to in Column A below
shall not be less than the ratio set out in Column B
below opposite that period:
COLUMN A COLUMN B
PERIOD RATIO
12 months to 31 March 2004 3.91:1
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COLUMN A COLUMN B
PERIOD RATIO
12 months to 30 June 2004 3.56:1
12 months to 30 September 2004 3.70:1
12 months to 31 December 2004 4.94:1
12 months to 31 March 2005 4.40:1
12 months to 30 June 2005 4.60:1
12 months to 30 September 2005 4.70:1
12 months to 31 December 2005 4.90:1
12 months to 31 March 2006 5.00:1
12 months to 30 June 2006 5.10:1
12 months to 30 September 2006 5.20:1
12 months to 31 December 2006 5.40:1
Each period of 12 months falling on a Quarter 5.40:1
Date occurring after 31 December 2006;
(d) Cashflow to Total Funding Costs
the ratio of Cashflow to Total Funding Costs for each
period of 12 months ending on each Quarter Date set
out in Column A below shall not be less than the
ratio set out opposite such Quarter Date in Column B
below:
COLUMN A COLUMN B
PERIOD RATIO
31 March 2004 0.95:1
30 June 2004 0.78:1
30 September 2004 0.76:1
31 December 2004 1.10:1
31 March 2005 1.05:1
30 June 2005 1.05:1
30 September 2005 1.10:1
Each Quarter Date falling after 30 September 1.10:1
2005;
(e) Capital Expenditure and Finance Lease Expenditure
no Group Company shall incur any Capital Expenditure
or Finance Lease Expenditure if it would result in
the aggregate Capital Expenditure and Finance Lease
Expenditure incurred by the Group Companies in any
period set out in Column A below exceeding the amount
set out opposite such period in Column B below (or
such other amount as the Majority Banks may, acting
in good faith, agree from time to time):
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COLUMN A COLUMN B
PERIOD AMOUNT (EURO)
Completion to 31 December 2000 55,000,000
12 months to 31 December 2001 47,000,000
12 months to 31 December 2002 48,000,000
12 months to 31 December 2003 50,000,000
12 months to 31 December 2004 51,000,000
12 months to 31 December 2005 51,000,000
12 months to 31 December 2006 51,000,000
12 months to 31 December 2007 51,000,000
12 months to 31 December 2008 51,000,000
PROVIDED THAT in respect of a period listed in Column
A above, if the Group incurs Capital Expenditure and
Finance Lease Expenditure, in an aggregate amount
which is less than the amount set out opposite such
period in Column B above (the difference being
hereafter referred to as the "ADDITIONAL AVAILABLE
EXPENDITURE") the amount set out in Column B above
opposite the next succeeding period shall be deemed
to be increased by the Additional Available
Expenditure.
12.6.2
(a) If the directors of any Group Company determine at
any time during the Security Period that the
accounting reference date of that Group Company has
or should be changed or any of the accounting
principles applied in the preparation of any of the
Accounts and the Management Accounts shall be
different from the Accounting Principles (including
any change to IAS), or if as a result of the
introduction or implementation of any applicable
accounting standard or any change in any of them or
in any applicable law such accounting principles are
required to be changed, Dynea shall promptly give
notice to the Facility Agent of that change,
determination or requirement.
(b) If the Facility Agent believes that the financial
undertakings set out in this Clause 12.6 need to be
amended as a result of any such change, determination
or requirement, Dynea shall negotiate with the
Facility Agent in good faith to amend the existing
financial undertakings so as to provide the Banks
with substantially the same protections as the
financial undertakings set out in this Clause 12.6
(but which are not materially more onerous).
(c) If Dynea and the Facility Agent cannot agree such
amended financial undertakings within 30 days of that
notice, Dynea and the Facility Agent shall jointly
nominate a firm of chartered accountants to settle
the amended financial undertakings, or in default of
such nomination the Facility Agent shall request the
President for the time being of the Institute of
Chartered Accountants in England and Wales to
nominate a firm of chartered accountants for that
purpose. Such accountants shall act
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as experts and not arbitrators and their decision
shall be final and binding on the Parties. The costs
of such accountants shall be paid by Dynea.
12.6.3 The calculation of ratios and other amounts under this Clause
12.6 shall be made by reference to the latest Accounts,
Management Accounts and other financial information of the
Group Companies for the Financial Year of Dynea, or other
period in relation to which the calculation falls to be made.
12.6.4
(a) Dynea may deliver to the Facility Agent on or before
3 December 2004 the New Business Plan where the New
Business Plan:
(i) is based upon assumptions and projections
which by the date of such New Business Plan
being so delivered shall have been verified
by Deloitte (or any other firm of
accountants subsequently appointed as
advisors to the Banks, in each case in the
opinion of the Banks acting reasonably in
making such verification) as being
reasonable; and
(ii) demonstrates that the ratio of Cashflow to
Total Funding Costs in respect of each
period of 12 months ending on a Quarter Date
in any of the years 2005 to 2007 inclusive
is not less than 1.00:1 (and in doing so may
utilise the excess (if any) of Cashflow over
Total Funding Costs in respect of the
immediately previous Financial Year of Dynea
which is not required to be applied in
prepayment of the Facilities in accordance
with Clause 7.7 (Mandatory Prepayment of
Surplus Cash)).
(b) The Parties agree that, on receipt of the New
Business Plan pursuant to, and complying with,
paragraph (a) above, the financial undertakings set
out in sub-clauses 12.6.1(a), (b) and (c) of Clause
12.6 (Financial undertakings) shall be amended for
the 12 month period ending on 31 December 2004 so as
to provide the Banks (other than the Term D Lender)
with protections based on a 15 per cent. tolerance
and for the years 2005, 2006 and 2007 so as to
provide the Banks (other than the Term D Lender) with
protections based on a 10 per cent. tolerance.
13. DEFAULT
For the purposes of this Clause 13, any reference to a Bank or Banks or
Party or Parties shall not include the Term D Lender.
13.1 DEFAULT
Each of the following shall be a Default:
13.1.1 Non-payment: a Borrower does not pay on the due date any
amount payable by it under this Agreement at the place at and
in the currency and funds in which it is expressed to be
payable unless the failure to pay such amount is due solely to
administrative or technical delays in the transmission of
funds which are not the
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fault of that Borrower and such amount is paid within 3
Business Days after its due date for payment; or
13.1.2 Other defaults: any Charging Group Company breaches any of its
obligations under any Financing Document (other than the
obligations referred to in sub-clause 13.1.1) and, if that
breach is capable of remedy, it is not remedied within 15
Business Days after notice of that breach has been given by
the Facility Agent to Dynea; or
13.1.3 Breach of representation or warranty: any representation,
warranty or statement made or deemed to be repeated by any
Charging Group Company under any Financing Document or in any
document delivered by or on behalf of any Borrower under or in
connection with any Financing Document is incorrect when made
or deemed to have been repeated; or
13.1.4 Unlawfulness or repudiation: it is unlawful for any Charging
Group Company to perform or comply with, or any Charging Group
Company repudiates, any of its obligations under any Financing
Document; or
13.1.5 Cross-default: any Indebtedness (other than Defeased Dyno
Bonds Indebtedness) of all or any of the Group Companies in
excess of, in aggregate, Euro 2,000,000:
(a) is not paid when due or within any originally
applicable grace period; or
(b) is declared to be or otherwise becomes due and
payable prior to its specified maturity by reason of
default (howsoever described),
or any creditor of all or any of the Group Companies becomes
entitled to declare any such Indebtedness (other than Defeased
Dyno Bonds Indebtedness) due and payable prior to its
specified maturity; or
13.1.6 Cross-default into Senior Subordinated Notes: the occurrence
of an Event of Default as defined in the Senior Subordinated
Notes Instrument which is continuing or the giving of notice
(if required) or any other event or omission referred to in
Section 6.01 of the Senior Subordinated Notes Instrument which
with the lapse of time would be an Event of Default as so
defined and such event or omission is continuing; or
13.1.7 Attachment or distress: a creditor or encumbrancer attaches or
takes possession of, or a distress, execution, sequestration
or other process is levied or enforced upon or sued out
against, any of the assets of any Group Company (having a
value of at least Euro 1,000,000) and such process is not
discharged within 21 days; or
13.1.8 Inability to pay debts: any Material Company:
(a) suspends generally payment of its debts or is unable
or admits its inability to pay its debts as they fall
due; or
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(b) begins negotiations with any creditor with a view to
the readjustment or rescheduling of any of its
Indebtedness which it would otherwise not be able to
pay as it falls due; or
(c) proposes or enters into any restructuring
(yrityssaneeraus), composition or other arrangement
for the benefit of its creditors generally or any
class of creditors; or
13.1.9 Insolvency proceedings: any person takes any action or any
legal proceedings are started or other steps taken (including
the presentation of a petition) for:
(a) any Material Company to be adjudicated or found
insolvent; or
(b) the bankruptcy (konkurssi), winding up or dissolution
of any Material Company other than (i) in connection
with a solvent reconstruction, the terms of which
have been previously approved in writing by the
Majority Banks, (ii) a liquidation sent out in the
PWC Dyno Structuring Memorandum, or (iii) a winding
up petition which is proved to the satisfaction of
the Majority Banks to be frivolous or vexatious and
which is, in any event, discharged within 21 days of
its presentation and before it is advertised; or
(c) the appointment of a trustee, receiver,
administrative receiver or similar insolvency officer
in respect of any Group Company or any of its assets;
or
13.1.10 Adjudication or appointment: any adjudication, order or
appointment is made under or in relation to any of the
proceedings referred to in sub-clause 13.1.1; or
13.1.11 Administration order: an application is made to the court for
an administration order under the Insolvency ▇▇▇ ▇▇▇▇ with
respect to any Material Company; or
13.1.12 Analogous proceedings: any event occurs or proceeding is taken
with respect to any Material Company in any jurisdiction to
which it is subject which has an effect equivalent or similar
to any of the events mentioned in sub-clauses 13.1.7, 13.1.8,
13.1.9, 13.1.10 or 13.1.11; or
13.1.13 Cessation of business: any Material Company suspends or ceases
or threatens to suspend or cease to carry on all or a
substantial part of its business; or
13.1.14 Material adverse change: any event or series of events occur
which has or could reasonably be expected to have a Material
Adverse Effect; or
13.1.15 Redemption of shares by Dynea: without the prior written
consent of the Facility Agent (acting on the instructions of
the Majority Banks), Dynea makes any redemption of any of its
shares, purchases any of its shares or otherwise reduces its
issued share capital; or
13.1.16 Qualification of Accounts: the Auditors issue any
qualification in respect of the Accounts of Dynea or Dyno for
any of its Financial Years where the
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circumstances to which such qualification relates have, or
could reasonably be expected to have, a Material Adverse
Effect; or
13.1.17 Dynea Oy funding: Dynea does not receive, whether from Dynco
under the terms of the On-Lending Agreement or from Issueco by
way of Subscription Proceeds or under any Issueco Loan
excluding any Subscription Proceeds and any proceeds of any
Issueco Loan which are taken into account in calculating
EBITDA), the sum of at least Euro 10,000,000 on or before 13
August 2004 and the sum of at least Euro 6,400,000 on or
before 20 August 2004, otherwise than by reason of a Default
being continuing and unwaived as at the relevant said date.
13.2 ACCELERATION, ETC.
13.2.1 If a Default occurs and remains unremedied the Facility Agent
may, and shall if so instructed by the Majority Banks, by
notice (a "DEFAULT NOTICE") to Dynea cancel the Facilities and
require the Borrowers immediately to repay each Loan together
with accrued interest and all other sums payable under this
Agreement, whereupon they shall become immediately due and
payable. Upon the service of any Default Notice the Banks'
obligations to each Borrower under this Agreement shall be
terminated and the Commitment of each Bank shall be cancelled.
13.2.2 Immediately upon the Facility Agent serving a Default Notice,
each Borrower shall in respect of each Bank Guarantee issued
on its behalf:
(a) use its reasonable endeavours to procure the release
of the Issuing Bank from that Bank Guarantee; and
(b) without prejudice to sub-clause 13.2.2(a), pay to the
credit of such account as the Issuing Bank shall
stipulate an amount equal to the Guaranteed Amount of
that Bank Guarantee and charge such account in favour
of the Issuing Bank, in such manner and on such terms
as the Issuing Bank may stipulate.
14. SET-OFF
Without prejudice to its rights at law, following a Default which is
continuing each Finance Party (other than the Term D Lender) may set
off any matured obligation owed by a Borrower under any Financing
Document against any obligation (whether or not matured) owed by the
relevant Finance Party to that Borrower, regardless of the place of
payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the relevant Finance Party may
convert either obligation at the relevant spot rate of exchange of the
relevant Finance Party for the purpose of the set off.
15. PRO RATA SHARING
15.1 REDISTRIBUTION
If any amount owing by a Borrower under this Agreement to a Bank (the
"SHARING BANK") is discharged by voluntary or involuntary payment,
set-off or any other manner other than through the Facility Agent in
accordance with Clause 9 (Payments), then:
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15.1.1 the Sharing Bank shall immediately notify the Facility Agent
of the amount discharged and the manner of its receipt or
recovery;
15.1.2 the Facility Agent shall determine whether the amount
discharged is in excess of the amount which the Sharing Bank
would have received had the amount discharged been received by
the Facility Agent and distributed in accordance with Clause 9
(Payments);
15.1.3 the Sharing Bank shall pay the Facility Agent an amount equal
to that excess (the "EXCESS AMOUNT") within 5 Business Days of
demand by the Facility Agent;
15.1.4 the Facility Agent shall treat the excess amount as if it were
a payment by a Borrower under Clause 9 (Payments) and shall
pay the excess amount to the Banks (other than the Sharing
Bank) in accordance with Clause 9.7 (Partial Payments); and
15.1.5 as between the relevant Borrower and the Sharing Bank the
excess amount shall be treated as not having been received or
recovered, and that Borrower shall owe the Sharing Bank an
immediately payable debt equal to the excess amount.
15.2 LEGAL PROCEEDINGS
Notwithstanding Clause 15.1 (Redistribution), no Sharing Bank shall be
obliged to share any excess amount which it receives or recovers
pursuant to legal proceedings taken by it to recover any sums owing to
it under this Agreement with any other Bank which has a legal right to,
but does not, either join in such proceedings or commence and
diligently pursue separate proceedings to enforce its rights, unless
the proceedings instituted by the Sharing Bank are instituted by it
without prior notice having been given to such Bank through the
Facility Agent and an opportunity to such Bank to join in such
proceedings.
15.3 REVERSAL OF REDISTRIBUTION
If any excess amount subsequently has to be wholly or partly refunded
to a Borrower by a Sharing Bank which has paid an amount equal to that
excess amount to the Facility Agent under Clause 15.1 (Redistribution),
each Bank to which any part of that amount was distributed shall on
request from the Sharing Bank repay to the Sharing Bank that Bank's
proportionate share of the amount which has to be so refunded by the
Sharing Bank.
15.4 INFORMATION
Each Bank shall on request supply to the Facility Agent such
information as the Facility Agent may from time to time request for the
purpose of this Clause 15 (Pro Rata Sharing).
16. THE FINANCE PARTIES
16.1 APPOINTMENT AND DUTIES
16.1.1 Each Bank irrevocably appoints the Facility Agent to act as
its agent in connection with the Facilities and this Agreement
and irrevocably authorises the Facility Agent on its behalf to
perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in
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connection with the Financing Documents together with any
other incidental rights, powers and discretions PROVIDED THAT
each of Dynea Oy and the Facility Agent acknowledge and agree
that for so long as Dynea Oy or any other member of the Group
is the Term D Lender, the Facility Agent shall not owe any
duties or obligations to the Term D Lender.
16.1.2 The Facility Agent, the Issuing Bank and each Bank (other than
the Term D Lender) irrevocably appoints the Security Trustee
to act as its agent and trustee in connection with the
Security Documents (other than the Shared Security Documents)
and each Bank (other than the Term D Lender) irrevocably
authorises the Security Trustee on its behalf to perform the
duties and to exercise the rights, powers and discretions
specifically delegated to it under or in connection with the
Financing Documents (other than the Shared Security Documents)
together with any incidental rights, powers and discretions.
16.1.3 The Facility Agent, the Issuing Bank and each Bank (including
the Term D Lender) irrevocably appoints the Security Trustee
to act as its agent and trustee in connection with the Shared
Security Documents and each Bank (including the Term D Lender)
irrevocably authorises the Security Trustee on its behalf to
perform the duties and to exercise the rights, powers and
discretions specifically delegated to it under or in
connection with the Shared Security Documents together with
any incidental rights, powers and discretions.
16.1.4 Neither Agent shall have any duties or responsibilities except
those expressly set out in the Financing Documents. As to any
matters not expressly provided for, each Agent shall act in
accordance with the instructions of the Majority Banks (but in
the absence of any such instructions shall not be obliged to
act). Any such instructions, and any action taken by an Agent
in accordance with those instructions, shall be binding upon
all the Banks.
16.1.5 Each Agent may:
(a) act in an agency, trustee, fiduciary or other
capacity on behalf of any other banks or financial
institutions providing facilities to any Group
Company or any associated company of a Group Company,
as freely in all respects as if it had not been
appointed to act as agent and/or trustee for the
Banks under this Agreement and without regard to the
effect on the Banks of acting in such capacity; and
(b) subscribe for, hold, be beneficially entitled to or
dispose of shares or securities, or options or other
rights to and interests in shares or securities in
any Group Company or any associated company of a
Group Company (in each case, without liability to
account).
16.1.6 Each division or department of an Agent (including, for so
long as Citibank International plc is an Agent, the European
Loans Agency department of Citibank International plc) shall
be treated as a separate entity from any other division or
department of that Agent. If any of an Agent's divisions or
departments (including, in the case of Citibank International
plc, its European
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Loans Agency department) should act for any Group Company in
any capacity (whether as bankers or otherwise) in relation to
any other matter, any information given by any Group Company
to any such division or department may be treated as
confidential and each Agent shall, as between itself and the
Banks, not be obliged to disclose the same to any Bank or any
other person.
16.1.7 The Issuing Bank acts solely as issuer of Bank Guarantees
under the Revolving Credit Facility and owes no fiduciary
duties to any other Party in respect of the Financing
Documents and the Bank Guarantees.
16.2 PAYMENTS
16.2.1 The Facility Agent shall promptly account to the Lending
Office of each Bank for such Bank's due proportion of all sums
received by the Facility Agent for such Bank's account,
whether by way of repayment or prepayment of principal or
payment of interest, fees or otherwise.
16.2.2 The Facility Agent shall maintain a memorandum account showing
the principal amount of each Advance outstanding under this
Agreement and the amount of each Bank's Participation in each
Advance.
16.2.3 Each Bank confirms in favour of the Facility Agent that,
unless it notifies the Facility Agent to the contrary, it will
be the beneficial owner of any interest paid to it under this
Agreement, and it will be within the charge to United Kingdom
corporation tax as respects that interest.
16.3 DEFAULT
Neither Agent shall be obliged to monitor or enquire as to whether or
not a Default or Potential Default has occurred. An Agent shall be
entitled to assume that no Default or Potential Default has occurred
unless it receives notice to the contrary from a Borrower or any Bank
describing the Default or Potential Default and stating that such
notice is a "Default Notice" or unless it is aware of a payment default
under this Agreement, in which case it shall promptly notify each Bank
and the Issuing Bank.
16.4 RELIANCE
Each Agent may:
16.4.1 rely on any communication or document believed by it to be
genuine and correct and to have been communicated or signed by
the person by whom it purports to be communicated or signed;
and
16.4.2 engage, pay for and rely on the advice of any professional
advisers selected by it given in connection with the Financing
Documents or any of the matters contemplated by the Financing
Documents,
and shall not be liable to any Party for any of the consequences of
such reliance.
16.5 LEGAL PROCEEDINGS
16.5.1 Neither Agent shall be obliged to take or commence any legal
action or proceeding against a Borrower or any other person
arising out of or in connection with the Financing Documents
until it shall have been indemnified
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or secured to its satisfaction against all costs, claims and
expenses (including any costs award which may be made against
it as a result of any such legal action or proceeding not
being successful) which it may expend or incur in such legal
action or proceeding.
16.5.2 An Agent may refrain from doing anything which might in its
opinion constitute a breach of any law or any duty of secrecy
or confidentiality or be otherwise actionable at the suit of
any person.
16.6 NO LIABILITY
16.6.1 None of the Agents, the Lead Arranger or any of their
respective officers, employees or agents shall be liable for
any action taken or not taken by it or any of them under or in
connection with the Financing Documents unless directly caused
by its or their gross negligence or wilful misconduct.
16.6.2 None of the Agents or the Lead Arranger shall be responsible
for any statements, representations or warranties in the
Financing Documents or for any information supplied or
provided to any Bank or the Issuing Bank by an Agent or the
Lead Arranger in respect of a Borrower or any other person or
for any other matter relating to the Financing Documents or
for the execution, genuineness, validity, legality,
enforceability or sufficiency of such documents or any other
document referred to in the Financing Documents or for the
recoverability of any Advance or any other sum to become due
and payable under the Financing Documents.
16.7 CREDIT DECISIONS
16.7.1 Each Bank and the Issuing Bank:
(a) acknowledges that it has, independently and without
reliance on the Agents or the Lead Arranger, made its
own analysis of the transaction contemplated by, and
reached its own decision to enter into, this
Agreement and made its own investigation of the
financial condition and affairs and its own appraisal
of the creditworthiness of the Borrowers and any
surety for the Borrowers' obligations; and
(b) shall continue to make its own independent appraisal
of the creditworthiness of the Borrowers and any
surety for the Borrowers' obligations.
16.7.2 Each Bank and the Issuing Bank shall, independently and
without reliance on the Agents or the Lead Arranger, make its
own decision to take or not take action under the Financing
Documents.
16.7.3 The Term D Lender confirms to the Agents and the Lead Arranger
that save to the extent that it relies on legal opinions
addressed to it and issued by counsel for either of them, it
has not relied upon any statement or representation made by
either of them in entering into this Agreement.
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16.8 INFORMATION
16.8.1 Each Agent shall provide to the relevant Banks and the Issuing
Bank all information and copies of all notices which are given
to it and which by the terms of this Agreement are to be
provided or given to such Banks and the Issuing Bank, as the
case may be.
16.8.2 Except as provided in this Agreement, none of the Agents or
the Lead Arranger shall be under any duty or obligation:
(a) either initially or on a continuing basis, to provide
any Bank or the Issuing Bank with any credit
information or other information with respect to the
financial condition of a Borrower or which is
otherwise relevant to the Facilities; or
(b) to request or obtain any certificate, document or
information from a Borrower unless specifically
requested to do so by a Bank (other than the Term D
Lender) or the Issuing Bank in accordance with this
Agreement.
16.9 RELATIONSHIP WITH BANKS
16.9.1 In performing its functions and duties under this Agreement,
the Facility Agent shall act solely as the agent for the Banks
(save to the extent set out in sub-clause 16.1.1 of Clause
16.1 (Appointment and duties)) and except as provided in the
Financing Documents shall not be deemed to be acting as
trustee for any Bank. Neither Agent shall assume or be deemed
to have assumed any obligation as agent or trustee for, or any
relationship of agency or trust with, any Borrower.
16.9.2 No Finance Party shall be under any liability or
responsibility of any kind to a Borrower or any other Finance
Party arising out of or in relation to any failure or delay in
performance or breach by a Borrower or any other Finance Party
of any of its or their respective obligations under the
Financing Documents.
16.10 AGENTS' POSITION
16.10.1 With respect to its own Participation in the Facilities, each
Agent shall have the same rights and powers under and in
respect of the Financing Documents as any other Bank and may
exercise those rights and powers as though it were not also
acting as agent and/or trustee under this Agreement. An Agent
may, without liability to account, accept deposits from, lend
money to and generally engage in any kind of banking, finance,
advisory, trust or other business with or for a Borrower as if
it were not the agent or the trustee for other persons under
any Financing Documents.
16.10.2 An Agent may retain for its own use and benefit (and shall not
be liable to account to any Bank or the Issuing Bank for all
or any part of) any sums received by it by way of agency or
management or arrangement fees or by way of reimbursement of
expenses incurred by it.
16.11 INDEMNITY
Each Bank shall immediately on demand indemnify each Agent (to the
extent not reimbursed by the Borrowers) rateably according to that
Bank's Participation in the
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Facilities (or, if no Term Advance shall then be outstanding, its
Commitment) from and against all liabilities, losses and expenses of
any kind or nature whatsoever (except in respect of any agency,
management or other fee due to that Agent) which may be incurred by
that Agent in its capacity as agent or trustee under this Agreement or
in any way relating to or arising out of the Financing Documents or any
action taken or omitted by the Facility Agent in enforcing or
preserving the rights of the Finance Parties under the Financing
Documents, PROVIDED THAT no Bank shall be liable for any portion of
such liabilities, losses or expenses resulting from an Agent's gross
negligence or wilful misconduct.
16.12 RESIGNATION
16.12.1 An Agent may resign by giving at least 60 days' notice to
Dynea and each Bank. Upon receipt of a notice of resignation
Dynea and the Majority Banks may select any bank or other
financial institution as successor Facility Agent or Security
Trustee, as the case may be.
16.12.2 If no bank or other financial institution selected by Dynea
and the Majority Banks shall have accepted such appointment
within 20 days after the resigning Agent has given a notice of
resignation then the Majority Banks may, after consultation
with Dynea, appoint any bank or other financial institution as
successor Facility Agent or Security Trustee, as the case may
be.
16.12.3 If no bank or other financial institution selected by the
Majority Banks shall have accepted such appointment within 40
days after the resigning Facility Agent has given a notice of
resignation then the resigning Facility Agent may, after
consultation with Dynea, appoint any bank or other financial
institution with an office in London as successor Facility
Agent or Security Trustee, as the case may be.
16.12.4 The resignation of an Agent and the appointment of any
successor Agent shall both become effective only upon the
successor Agent notifying the resigning Facility Agent, Dynea
and each Bank that it accepts its appointment. On such
notification:
(a) the resigning Agent shall be discharged from its
obligations and duties as Facility Agent or Security
Trustee, as the case may be, under the Financing
Documents but it shall continue to be able to rely on
the provisions of this Clause 16 (The Finance
Parties) in respect of all matters relating to the
period of its appointment; and
(b) the successor Agent shall assume the role of Facility
Agent or Security Trustee, as the case may be, and
shall have all the rights, powers, discretions and
duties which the Facility Agent or Security Trustee,
as the case may be, has under the Financing
Documents.
16.12.5 The resigning Agent shall make available to the successor
Agent all records and documents held by it as Facility Agent
or Security Trustee, as the case may be, and shall co operate
with the successor Agent to ensure an orderly transition.
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16.13 CHANGE OF OFFICE
An Agent may at any time in its sole discretion by notice to the other
Agent, Dynea and each Bank designate a different office in the United
Kingdom from which its duties as an Agent will be performed.
16.14 SECURITY DOCUMENTS
16.14.1 The Security Trustee shall accept without investigation,
requisition or objection such title as any person may have to
the assets which are subject to the Security Documents and
shall not:
(a) be bound or concerned to examine or enquire into the
title of any person; nor
(b) be liable for any defect or failure in the title of
any person, whether such defect or failure was known
to the Security Trustee or might have been discovered
upon examination or enquiry and whether capable of
remedy or not; nor
(c) be liable for any failure on its part to give notice
of the Security Documents to any third party or
otherwise perfect or register the security created by
the Security Documents.
16.14.2 The Security Trustee shall hold the benefit of the Security
Documents (other than the Shared Security Documents) upon
trust for and, in respect of those Security Documents governed
by Austrian law, Belgian law, Finnish law, French law, Dutch
law and Norwegian law, as agent for itself, the Facility
Agent, the Issuing Bank and the Banks (other than the Term D
Lender). The Security Trustee shall hold the benefit of the
Shared Security Documents upon trust for and, in respect of
those Security Documents governed by Austrian law, Belgian
law, Finnish law, French law, Dutch law and Norwegian law, as
agent for itself, the Facility Agent, the Issuing Bank and the
Banks. Upon the appointment of any successor Security Trustee
under Clause 16.2 (Payments), the resigning Security Trustee
shall execute and deliver such documents and do such other
acts and things as may be necessary to vest in the successor
Security Trustee all the rights, title and interests vested in
the resigning Security Trustee under the Security Documents.
16.14.3 The Security Trustee is hereby appointed and hereby accepts
its appointment as fonde de pouvoir (holder of a power of
attorney) of the Facility Agent, the Issuing Bank and the
Banks (in this sub-clause 16.14.3 collectively referred to as
the "Creditors" and individually as a "Creditor") as
contemplated by Article 2692 of the Civil Code of Quebec to
enter into, to take and to hold, on behalf of and for the
benefit of the Creditors, the Security Documents governed by
the laws of the Province of Quebec, Canada, and to exercise
such powers and duties which are conferred on it by such
Security Documents. Anyone who hereafter becomes a Creditor
shall be deemed to have consented to and confirmed the
Security Trustee as fonde de pouvoir and to have ratified as
of the date he becomes a Creditor all actions taken by the
fonde de pouvoir. As fonde de pouvoir the Security Trustee
shall be entitled to delegate from time to time any
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of its powers or duties to such persons, and on such terms and
conditions, as the Security Trustee may determine from time to
time.
16.14.4 Each of the Finance Parties hereby authorises the Security
Trustee to represent each of them in executing the Security
Documents in Indonesia in the required form and for this
purpose to appear before notaries, PPAT (Land Deed Officials)
and other competent officials in Indonesia without exception
including, without limitation, before the Fiduciary Registry
Office to effectuate the Asset Security Document to be
executed by PT MUGI Dyno Indonesia and to carry out all acts
required or incidental for the purpose stated in this
sub-clause 16.14.4.
16.15 DISTRIBUTION OF PROCEEDS OF ENFORCEMENT
16.15.1 In this Clause 16.15:
"BANK OUTSTANDINGS" means, in respect of a Bank (other than
the Term D Lender) the aggregate of:
(a) all amounts actually and contingently due to it under
any of the Financing Documents; and
(b) all amounts actually and contingently due to it in
respect of the Interest Rate Protection Agreements.
"NON SHARED SECURITY DOCUMENTS" means the Security Documents
which are not Shared Security Documents.
"SHARED SECURITY DOCUMENTS" means each of:
(a) the Share Charge dated 7 August 2000 entered into by
Issueco in favour of the Security Trustee in respect
of the shares of Dynea;
(b) the Share Charge dated 7 August 2000 entered into by
Dynea in favour of the Security Trustee in respect of
the shares of Dynea Finland Oy;
(c) the Share Charge dated 7 August 2000 entered into by
Dynea in favour of the Security Trustee in respect of
the shares of French Holdco;
(d) the Share Charge dated 7 August 2000 entered into by
Dynea in favour of the Security Trustee in respect of
the shares of Nordkem AS;
(e) the Share Charge dated 7 August 2000 entered into by
Dynea in favour of the Security Trustee in respect of
the shares of US Holdco;
(f) the Share Charge dated 7 August 2000 entered into by
Dynea in favour of the Security Trustee in respect of
the shares of Dynea Holding GmbH;
(g) the Share Charge dated 30 May 2003 entered into by
Dynea in favour of the Security Trustee in respect of
the shares of Dynea Holding B.V.;
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(h) the Share Charge dated 7 August 2000 entered into by
Dynea in favour of the Security Trustee in respect of
the shares of Dynea Canada Limited; and
(i) the Share Charge dated 13 February 2004 entered into
by Dynea in favour of the Security Trustee in respect
of the shares of Dynco.
"TERM D LENDER LIABILITIES" means all amounts actually and
contingently due to the Term D Lender under any of the
Financing Documents.
"TOTAL OUTSTANDINGS" means the aggregate amount of all Bank
Outstandings.
16.15.2 Following:
(a) the enforcement of all or any of the Shared Security
Documents or the receipt of any monies by the
Security Trustee pursuant to the provisions of
Schedule 10 (Subordination), the Security Trustee
shall be entitled to deduct from the proceeds thereof
any costs, charges and expenses incurred by it in
connection with any such enforcement together with an
amount equal to all sums due to the Agents under this
Agreement before distributing such proceeds:
(i) first to each Bank (other than the Term D
Lender) an amount equal to the lesser of (x)
the Bank Outstandings of such Bank and (y)
the remaining proceeds multiplied by:
Bank Outstandings of such Bank
---------------------------------------
Total Outstandings; and
(ii) second, after the discharge in full of the
Total Outstandings and up to an aggregate
amount not exceeding the Term D Lender
Liabilities, to the Term D Lender to be
applied in discharge, to the extent of such
payment, of the Term D Lender Liabilities;
and
(b) the enforcement of all or any of the Non Shared
Security Documents, the Security Trustee shall be
entitled to deduct from the proceeds of such
enforcement its costs, charges and expenses incurred
in connection with such enforcement together with an
amount equal to all sums due to the Agents under this
Agreement before distributing to each Bank (other
than the Term D Lender) an amount equal to the lesser
of (x) the Bank Outstandings of such Bank and (y) the
remaining proceeds multiplied by:
Bank Outstandings of such Bank
---------------------------------------
Total Outstandings
where, in each case, Bank Outstandings and the Total
Outstandings are all calculated as at the date of
distribution, PROVIDED THAT if a Bank owes moneys under this
Agreement to the Issuing Bank, all distributions which would
otherwise be made to that Bank shall be made to the Issuing
Bank to be applied in discharge of such moneys until the same
have been discharged in full.
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16.15.3 Where any part of any Bank Outstandings is denominated in a
currency other than Euros, any calculation for the purposes of
this Clause 16.15, shall be made on the basis of the Euro
Equivalent of that part calculated at the date of
distribution. However, an actual distribution may, in the
Security Trustee's discretion, be made in the currencies of
the Bank Outstandings and for this purpose the Security
Trustee is authorised to convert any proceeds of enforcement
(including the proceeds of any previous conversion under this
Clause) from their existing currency into any other currency
at such rate of exchange and at such time as the Security
Trustee thinks fit.
16.15.4 The Security Trustee shall notify the Facility Agent and each
Bank of any proposed distribution and the proposed date of
distribution and each Bank shall provide to the Security
Trustee a calculation of what is due to it in respect of the
sums referred to in sub-clause 16.14.1 of Clause 16.14
(Security Documents). The Security Trustee shall send copies
of all such calculations to each Bank and shall make the
distributions on the basis of such calculations.
16.15.5 If any future or contingent liability included in the
calculation of Bank Outstandings finally matures, or is
settled, for less than the future or contingent amount
provided for in that calculation, the relevant Bank shall
notify the Security Trustee of that fact and such adjustment
shall be made by payment by that Bank to the Security Trustee
for distribution amongst the Banks as may be necessary to put
the Banks into the position they would have been in (but
taking no account of the time cost of money) had the original
distribution been made on the basis of the actual as opposed
to the future or contingent liability.
16.15.6 The Security Trustee may, prior to payment in full of all Bank
Outstandings, at its discretion, accumulate proceeds of
enforcement in an interest bearing account in its own name
until there is a minimum of Euro 1,000,000 to distribute under
sub-clause 16.14.2 of Clause 16.14 (Security Documents).
16.16 RELEASES
If the Majority Banks direct the Security Trustee that any Shared
Security Document (other than the Share Charge granted by Issueco over
the shares in Dynea) is to be released in whole or in part (other than
on a discharge in full of the Facilities) such Shared Security Document
shall be released.
16.17 ISSUING BANK
16.17.1 The Issuing Bank may, with the prior consent of Dynea and the
Facility Agent be replaced as Issuing Bank by another Bank
(other than the Term D Lender).
16.17.2 Any replacement of the Issuing Bank shall take effect only on
the beneficiaries under all outstanding Bank Guarantees, if
any, agreeing that the Bank that is to replace the existing
Issuing Bank may be substituted in place of the existing
Issuing Bank as the obligor under all such Bank Guarantees.
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16.18 LEAD ARRANGER
Except as specifically provided in this Agreement, the Lead Arranger
has no obligations of any kind to any other Party and shall not have
any liability whatsoever to any other Party under or in connection with
any Financing Documents.
16.19 TERM D LENDER
The Term D Lender shall not:
16.19.1 enforce in any manner or be entitled to require the Facility
Agent or the Security Trustee to enforce in any manner, any
Shared Security Document prior to the date on which no amounts
are actually or contingently due to the Finance Parties (other
than the Term D Lender) under this Agreement and all the
Facilities (other than the Term D Loan Facility) have been
discharged; and
16.19.2 be bound by the provisions of Clause 15 (Pro Rata Sharing)
notwithstanding that it is a Bank for the purposes of this
Agreement.
17. FEES AND EXPENSES
17.1 EXPENSES
Dynea shall on demand pay all expenses incurred (including legal,
valuation and accounting fees but, in relation to sub-clauses 17.1.1
and 17.1.2, only to the extent the same are reasonable in amount), and
any VAT on those expenses:
17.1.1 by an Agent or the Lead Arranger in connection with the
negotiation, preparation and execution of the Financing
Documents and the other documents contemplated by the
Financing Documents;
17.1.2 by the Facility Agent or the Lead Arranger in respect of the
syndication of the Facilities;
17.1.3 by an Agent or the Banks in connection with the granting of
any release, waiver or consent or in connection with any
amendment or variation of any Financing Document, in each
case, requested by a Group Company; and
17.1.4 by an Agent or the Banks in enforcing, perfecting, protecting
or preserving (or attempting so to do) any of their rights, or
in suing for or recovering any sum due from a Borrower or any
other person under any Financing Document, or any reasonable
action taken in investigating any possible Default or
Potential Default.
17.2 ARRANGEMENT AND AGENCY FEES
Dynea shall pay arrangement and agency fees in accordance with the
terms of the Fees Letter. For the avoidance of doubt, all liabilities
and obligations of Dynea under the Fees Letter shall be deemed to be
incurred under this Agreement and shall be secured by the Security
Documents.
17.3 COMMITMENT FEE
Dynea shall pay a commitment fee in Euro to the Facility Agent for the
account of the Banks having Revolving Credit Commitments at the rate of
0.50 per cent. per annum on the Available Revolving Credit Facility.
The commitment fee shall be calculated on a
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day-to-day basis and a 360 day year in respect of the Revolving Credit
Commitment Period and shall be payable in arrear at the end of each
successive period of 3 months commencing on the date of this Agreement
and also on the last day of the Revolving Credit Commitment Period or
on any earlier date on which the Total Revolving Credit Commitments
equal zero.
17.4 DOCUMENTARY TAXES INDEMNITY
All stamp, documentary, registration or other like duties or Taxes,
including any penalties, additions, fines, surcharges or interest
relating to those duties and Taxes, which are imposed or chargeable on
or in connection with any Financing Document shall be paid by Dynea.
The Facility Agent shall be entitled but not obliged to pay any such
duties or Taxes (whether or not they are its primary responsibility).
If the Facility Agent does so Dynea shall on demand indemnify the
Facility Agent against those duties and Taxes and against any costs and
expenses incurred by the Facility Agent in discharging them.
17.5 VAT
17.5.1 All payments made by a Borrower under the Financing Documents
are calculated without regard to VAT. If any such payment
constitutes the whole or any part of the consideration for a
taxable or deemed taxable supply (whether that supply is
taxable pursuant to the exercise of an option or otherwise) by
a Finance Party, the amount of that payment shall be increased
by an amount equal to the amount of VAT which is chargeable in
respect of the taxable supply in question.
17.5.2 No payment or other consideration to be made or furnished to a
Borrower by Finance Party pursuant to or in connection with
any Financing Document or any transaction or document
contemplated in any Financing Document may be increased or
added to by reference to (or as a result of any increase in
the rate of) any VAT which shall be or may become chargeable
in respect of any taxable supply.
17.6 INDEMNITY PAYMENTS
Where in any Financing Document a Borrower has an obligation to
indemnify or reimburse a Finance Party in respect of any loss or
payment, the calculation of the amount payable by way of indemnity or
reimbursement shall take account of the likely Tax treatment in the
hands of the relevant Finance Party (as conclusively determined by the
relevant party) of the amount payable by way of indemnity or
reimbursement and of the loss or payment in respect of which that
amount is payable.
18. AMENDMENTS AND WAIVERS
18.1 MAJORITY BANKS
18.1.1 Subject to Clause 18.2 (All Banks), Clause 18.3 (Issuing Bank)
and Clause 18.6 (Amendments to Shared Security Documents), any
term of any Financing Document (other than any right affecting
the Term D Lender only) may be amended or waived with the
written agreement of Dynea and the Majority Banks. The
Facility Agent may effect, on behalf of the Majority Banks, an
amendment or waiver to which the Majority Banks have agreed.
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18.1.2 The Facility Agent shall promptly notify Dynea and each Bank
of any amendment or waiver effected under sub-clause 18.1.1
and any such amendment or waiver shall be binding on Dynea and
each Bank.
18.2 ALL BANKS
An amendment or waiver which relates to:
18.2.1 the definition of "Majority Banks" in Clause 1.1
(Definitions);
18.2.2 an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment under any Financing
Document;
18.2.3 an increase in a Bank's Commitment;
18.2.4 a release of any Charging Group Company from its obligations
under any Security Document (other than those to which Clause
10.4 (Release of Security on Disposals) applies);
18.2.5 a term of any Financing Document which expressly requires the
consent of each Bank; or
18.2.6 Clause 6 (Interest) (other than an increase in the Margin
which may be effected with the prior consent of the Majority
Banks), Clause 7 (Repayment, Prepayment and Cancellation),
Clause 15 (Pro Rata Sharing) or Clause 17.3 (Commitment Fee)
or this Clause 18 (other than where the Facility Agent
certifies that the relevant amendment or waiver is not
material),
may not be effected without the prior written consent of each Bank
(other than the Term D Lender).
18.3 ISSUING BANK
An amendment or waiver which affects the rights and obligations of the
Issuing Bank in that capacity may not be effected without the prior
written consent of the Issuing Bank.
18.4 NO IMPLIED WAIVERS; REMEDIES CUMULATIVE
The rights of each Finance Party under the Financing Documents:
18.4.1 may be exercised as often as necessary;
18.4.2 are cumulative and not exclusive of its rights under the
general law; and
18.4.3 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.
18.5 EURO CONVENTIONS
The Facility Agent may (after consultation with the Banks (other than
the Term D Lender)) notify Dynea that any references in this Agreement
to a Business Day, day-count fraction or other convention (whether for
the calculation of interest, determination of payment dates or
otherwise) shall, if different, be amended to comply with any generally
accepted conventions and market practice from time to time applicable
to Euro denominated obligations in the London interbank market. Upon
such notification and
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notwithstanding Clause 18.1 (Majority Banks), Clause 18.2 (All Banks)
or Clause 18.3 (Issuing Bank), this Agreement shall be deemed to be
amended accordingly.
18.6 AMENDMENTS TO THIS AGREEMENT AND SHARED SECURITY DOCUMENTS
18.6.1 No amendment that could reasonably be considered to be
materially prejudicial to the rights of the Term D Lender
shall be made to this Agreement without the prior consent of
the Term D Lender. For the avoidance of doubt, any amendments
to Clause 7 (Repayment, Prepayment and Cancellation), Clause
11 (Representations and Warranties), Clause 12 (Undertakings)
and Clause 13 (Default) (but not, for the avoidance of doubt,
Schedule 9 (Provisions relating to the Term D Loan Facility))
will be considered not to be materially prejudicial to the
rights of the Term D Lender.
18.6.2 A waiver of the terms of a Financing Document that is a waiver
of a right affecting only the Term D Lender shall not be given
without the consent of the Term D Lender.
19. MISCELLANEOUS
19.1 SEVERANCE
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
19.1.1 the legality, validity or enforceability in that jurisdiction
of any other provision of this Agreement; or
19.1.2 the legality, validity or enforceability in any other
jurisdiction of that or any other provision of this Agreement.
19.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts and this
shall have the same effect as if the signatures on the counterparts
were on a single copy of this Agreement.
20. NOTICES
20.1 METHOD
20.1.1 Each notice or other communication to be given under this
Agreement shall be given in writing in English and, unless
otherwise provided, shall be made by fax or letter.
20.1.2 With the consent of the relevant Bank, the Facility Agent may
serve notices and other information on a Bank by way of
electronic mail.
20.2 DELIVERY
Any notice or other communication to be given by one Party to another
under this Agreement shall (unless one Party has by 15 days' notice to
the other Party specified another address) be given to that other
Party, in the case of Dynea, Nordkem, the Facility Agent, the Security
Trustee and the Issuing Bank, at the respective addresses given in
Clause 20.3 (Addresses), in the case of the Banks, at the respective
addresses given in Schedule 1 (The Banks) or, as the case may be, the
Schedule to its relevant Transfer
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Certificate and in the case of any Borrower (other than those becoming
Borrowers as at the date of this Agreement) as set out in the Schedule
to its relevant Deed of Accession.
20.3 ADDRESSES
The address and fax number of Dynea, Nordkem, the Facility Agent, the
Security Trustee and the Issuing Bank are:
20.3.1 Dynea:
Dynea Chemicals Oy
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
20.3.2 Nordkem:
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Finland
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
20.3.3 the Facility Agent:
Citibank International plc
Citigroup Centre
Canada Square
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
20.3.4 the Security Trustee:
Citibank International plc
Citigroup Centre
Canada Square
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
20.3.5 the Issuing Bank:
Citibank, N.A.
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Citigroup Centre
Canada Square
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
20.4 DEEMED RECEIPT
20.4.1 Any notice or other communication given by an Agent shall be
deemed to have been received:
(a) if sent by fax, with a confirmed receipt of
transmission from the receiving machine, on the day
on which transmitted;
(b) in the case of a notice given by hand, on the day of
actual delivery;
(c) if posted, on the second Business Day or, in the case
of airmail, the fifth Business Day following the day
on which it was despatched by first class mail
postage prepaid or, as the case may be, airmail
postage prepaid; or
(d) if sent by way of electronic mail, when received
PROVIDED THAT a notice given in accordance with the above but
received on a day which is not a Business Day or after normal
business hours in the place of receipt shall be deemed to have
been received on the next Business Day.
20.4.2 Any notice or other communication given to an Agent shall be
deemed to have been given only on actual receipt.
20.5 NOTICES THROUGH FACILITY AGENT
Any notice or other communication from or to a Borrower under this
Agreement shall be sent through the Facility Agent.
21. ASSIGNMENTS AND TRANSFERS
21.1 BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
Party and its successors and assigns.
21.2 ASSIGNMENTS AND TRANSFERS BY BORROWERS
No Borrower shall be entitled to assign or transfer any of its rights
or obligations under this Agreement.
21.3 ASSIGNMENTS BY BANKS
Any Bank may, subject to Clause 21.5 (Minimum Amounts), assign any of
its rights and benefits under the Financing Documents to another bank
or other financial institution (including, for the avoidance of doubt,
a fund) PROVIDED THAT, until the assignee has confirmed to the Finance
Parties that it shall be under the same obligations towards each of
them as it would have been under if it had been a party to this
Agreement as a Bank, the Finance Parties shall not be obliged to
recognise the assignee as having the rights
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against each of them which it would have had if it had been such a
party to this Agreement.
21.4 TRANSFERS BY BANKS
21.4.1 Any Bank may, subject to Clause 21.5 (Minimum Amounts),
transfer, in accordance with this Clause 21.4, any of its
rights and obligations under the Financing Documents.
21.4.2 If any Bank (the "EXISTING BANK") wishes to transfer all or
any part of its Commitment or Participation in the Facilities
to another bank or other financial institution (including, for
the avoidance of doubt, a fund) (the "BANK TRANSFEREE"), such
transfer may be effected by way of a novation by the delivery
to, and the execution by, the Facility Agent of a duly
completed Transfer Certificate, PROVIDED THAT if a Bank wishes
to transfer all or a part of its Revolving Credit Commitment
it shall obtain the prior written consent of the Issuing Bank.
21.4.3 On the date specified in the Transfer Certificate:
(a) to the extent that in the Transfer Certificate the
Existing Bank seeks to transfer its Commitment or
Participation in the Facilities, the Borrowers and
the Existing Bank shall each be released from further
obligations to each other under this Agreement and
their respective rights against each other shall be
cancelled (such rights and obligations being referred
to in this sub-clause 21.4.3 as "DISCHARGED RIGHTS
AND OBLIGATIONS");
(b) the Borrowers and the Bank Transferee shall each
assume obligations towards each other and/or acquire
rights against each other which differ from the
Discharged Rights and Obligations only insofar as the
Borrowers and the Bank Transferee have assumed and/or
acquired the same in place of the Borrowers and the
Existing Bank;
(c) each of the Parties and the Bank Transferee shall
acquire the same rights and assume the same
obligations among themselves as they would have
acquired and assumed had the Bank Transferee been a
party under this Agreement as a Bank with the rights
and/or the obligations acquired or assumed by it as a
result of the transfer; and
(d) a proportion of the Existing Bank's rights under the
Security Documents, equal to the proportion of the
Existing Bank's rights under this Agreement being
transferred, shall automatically be transferred to
the Bank Transferee.
21.4.4 The Facility Agent shall promptly complete a Transfer
Certificate on request by an Existing Bank and upon payment by
the Bank Transferee of a fee of Euro 1,500 to the Facility
Agent. Each Party irrevocably authorises the Facility Agent to
execute any duly completed Transfer Certificate on its behalf
PROVIDED THAT such authorisation does not extend to the
execution of a Transfer
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Certificate on behalf of either the Existing Bank or the Bank
Transferee named in the Transfer Certificate.
21.4.5 The Facility Agent shall promptly notify the Security Trustee,
the Lead Arranger and Dynea of the receipt and execution on
its behalf by the Facility Agent of any Transfer Certificate.
21.5 MINIMUM AMOUNTS
Any transfer or assignment shall:
21.5.1 be in respect of a minimum Commitment of Euro 5,000,000 or, if
less the whole Commitment of the transferor or assignor as the
case may be; and
21.5.2 be made with the prior consent of Dynea (such consent not to
be unreasonably withheld or delayed) PROVIDED THAT this shall
not apply to a transfer or assignment (a) made as part of the
primary syndication of the Facilities, (b) to another Bank and
(c) to an affiliate of the transferor or assignor. For these
purposes, an "affiliate" of a Bank is a company which is a
holding company or a Subsidiary of such Bank or a subsidiary
of that holding company.
21.6 GLOBAL TRANSFER AGREEMENT
21.6.1 It is agreed that, notwithstanding any other provision of the
Agreement, a Bank may transfer its rights and obligations
under this Agreement by the execution of a Global Transfer
Agreement.
21.6.2 At the request of the Facility Agent, each of the Parties will
execute a Global Transfer Agreement.
21.7 CONSEQUENCES OF TRANSFER
The Borrowers shall be under no obligation to pay any greater amount
under this Agreement following an assignment or transfer by a Bank of
any of its rights or obligations pursuant to this Clause 21 if, in the
circumstances existing at the time of such assignment or transfer, such
greater amount would not have been payable but for the assignment or
transfer.
21.8 DISCLOSURE OF INFORMATION
Each Finance Party may not disclose except to each other, to their
professional advisers and, subject to any such person entering into a
confidentiality undertaking in favour of Dynea, to any person with whom
they are proposing to enter, or have entered into, any kind of
assignment, transfer, novation, participation or other agreement in
relation to this Agreement, any information which that Finance Party
has acquired under or in connection with any Financing Document,
PROVIDED THAT each Finance Party may disclose to any person any
information that such Finance Party has acquired under or in connection
with any Financing Document which is already in the public domain or
which it is required by law or any regulatory authority to disclose.
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22. INDEMNITIES
22.1 BREAKAGE COSTS INDEMNITY
Dynea shall indemnify each Bank on demand against any loss or expense
(including 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 under this Agreement or any Advance) which
that Bank has sustained or incurred as a consequence of:
22.1.1 an Advance not being made following the service of a Drawdown
Notice (except as a result of the failure of that Bank to
comply with its obligations under this Agreement);
22.1.2 the operation of Clause 5.4 (No Alternative Currency);
22.1.3 the failure of a Borrower to make payment on the due date of
any sum due under this Agreement;
22.1.4 the occurrence of any Default or the operation of Clause 13.2
(Acceleration, etc.); or
22.1.5 (other than pursuant to Clause 8.1 (Illegality)) any
prepayment or repayment of an Advance otherwise than on an
Interest Date relative to that Advance.
22.2 CURRENCY INDEMNITY
22.2.1 Any payment made to or for the account of or received by an
Agent, the Issuing Bank or any Bank in respect of any moneys
or liabilities due, arising or incurred by a Borrower to an
Agent, the Issuing Bank or any Bank in a currency (the
"CURRENCY OF PAYMENT") other than the currency in which the
payment should have been made under this Agreement (the
"CURRENCY OF OBLIGATION") in whatever circumstances (including
as a result of a judgment against a Borrower) and for whatever
reason shall constitute a discharge to that Borrower only to
the extent of the Currency of Obligation amount which that
Agent, the Issuing Bank or that Bank, as the case may be, is
able on the date of receipt of such payment (or if such date
of receipt is not a Business Day, on the next succeeding
Business Day) to purchase with the Currency of Payment amount
at its spot rate of exchange (as conclusively determined by
that Agent, the Issuing Bank or that Bank) in the London
foreign exchange market.
22.2.2 If the amount of the Currency of Obligation which that Agent,
the Issuing Bank or that Bank is so able to purchase falls
short of the amount originally due to that Agent, the Issuing
Bank or that Bank, as the case may be, under this Agreement,
then the relevant Borrower shall immediately on demand
indemnify that Agent, the Issuing Bank or that Bank, as the
case may be, against any loss or damage arising as a result of
that shortfall by paying to that Agent, the Issuing Bank or
that Bank, as the case may be, that amount in the Currency of
Obligation certified by that Agent, the Issuing Bank or that
Bank, as the case may be, as necessary so to indemnify it.
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22.3 GENERAL
22.3.1 Each indemnity in this Clause 22 shall constitute a separate
and independent obligation from the other obligations
contained in this Agreement, shall give rise to a separate and
independent cause of action, shall apply irrespective of any
indulgence granted from time to time and shall continue in
full force and effect notwithstanding any judgment or order
for a liquidated sum or sums in respect of amounts due under
this Agreement or under any such judgment or order.
22.3.2 The certificate of the relevant Agent, the Issuing Bank or the
relevant Bank as to the amount of any loss or damage sustained
or incurred by it shall be conclusive and binding on the
Borrowers except for any manifest error.
23. LAW AND JURISDICTION
23.1 LAW
This Agreement is governed by and shall be construed in accordance with
English law.
23.2 JURISDICTION
23.2.1 The Parties agree that the courts of England shall have
jurisdiction to settle any disputes which may arise in
connection with any Financing Document and that any judgment
or order of an English court in connection with any Financing
Document is conclusive and binding on them and may be enforced
against them in the courts of any other jurisdiction. This
sub-clause 23.2.1 is for the benefit of each Agent, the
Issuing Bank and each Bank only and shall not limit the right
of each Agent, the Issuing Bank and each Bank to bring
proceedings against any Borrower in connection with any
Financing Document in any other court of competent
jurisdiction or concurrently in more than one jurisdiction.
23.2.2 Each Borrower:
(a) waives any objections which it may have to the
English courts on the grounds of venue or forum non
conveniens or any similar grounds as regards
proceedings in connection with any Financing
Document; and
(b) consents to service of process by mail or in any
other manner permitted by the relevant law.
23.3 AGENT FOR SERVICE
Each Borrower shall at all times maintain an agent for service of
process in England. That agent shall be Neste Chemicals UK Limited of
Cambridge House, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇. Any claim form, writ, summons, judgment or other notice of
legal process shall be sufficiently served on each Borrower if
delivered to that agent at its address for the time being. No Borrower
shall revoke the authority of that agent. If for any reason that agent
no longer serves as agent of each Borrower to receive service of
process, each Borrower shall promptly appoint another such agent and
immediately advise the Facility Agent of that appointment.
IN WITNESS whereof the Parties have caused this Agreement to be duly executed on
the date set out above.
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SCHEDULE 1
THE BANKS
REVOLVING
TERM A LOAN TERM B LOAN TERM C LOAN TERM D LOAN CREDIT
BANK AND LENDING OFFICE ADDRESS FOR NOTICES COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
------------------------------ ---------------------------------- ------------- ------------- ------------ ----------- -------------
Banca Nazionale Del Lavoro SpA Fitzwilliam House 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
London Branch 10 St. ▇▇▇▇ Axe.
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇ ▇▇. ▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Attn: ▇▇▇ ▇▇▇▇▇▇▇▇ (Credit)/
▇▇▇▇ ▇▇▇▇▇▇ (Operational)
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇/ ▇▇▇ ▇▇▇▇
7983
The Governor and Company of Orchard Brae House 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
The Bank of Scotland ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ (Credit)/
▇▇▇▇▇▇ ▇▇▇▇ (Operational)
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
ING Bank ▇.▇., ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇ 10,199,571.41 7,514,426.00 3,120,760.92 -10,352,941.18
▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Credit)/
▇▇▇ ▇▇▇▇▇▇▇▇
(Operational)
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
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REVOLVING
TERM A LOAN TERM B LOAN TERM C LOAN TERM D LOAN CREDIT
BANK AND LENDING OFFICE ADDRESS FOR NOTICES COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
------------------------------ ---------------------------------- ------------- ------------- ------------ ----------- -------------
Citibank, N.A., Citigroup Centre 3,303,270.30 8,069,468.79 4,486,251.91 - 3,878,963.64
Citigroup Centre Canada Square
Canada Square Canary Wharf
Canary Wharf London E14 5LB
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇ ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇ ▇▇
Danske Bank A/S 2-12 Holmens Kanal 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
DK 1092 - Copenhagen _ Denmark
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Credit)/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Operational)
Fax: ▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
Den Norske Bank ASA ▇▇ ▇▇▇ ▇▇▇▇ Sentrum 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇-▇▇▇▇ ▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Norway
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Credit)/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(Operational )
Fax: ▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇/
00 47 22 48 10 46
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REVOLVING
TERM A LOAN TERM B LOAN TERM C LOAN TERM D LOAN CREDIT
BANK AND LENDING OFFICE ADDRESS FOR NOTICES COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
------------------------------ ---------------------------------- ------------- ------------- ------------ ----------- -------------
Fortis Bank S.A./N.V. Camomile Court 7,649,678.58 - - - 7,238,683.38
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Credit)/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(Operational)
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇/
0207 444 8810
Mizuho Corporate Bank Ltd River Plate House 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇ (Credit)/ ▇▇▇▇▇
▇▇▇▇ (Operational)
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇/
020 7012 4606
-111-
REVOLVING
TERM A LOAN TERM B LOAN TERM C LOAN TERM D LOAN CREDIT
BANK AND LENDING OFFICE ADDRESS FOR NOTICES COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
------------------------------ ---------------------------------- ------------- ------------- ------------ ----------- -------------
KBC Bank N.V. 7th Floor 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ House Primrose Street
Primrose Street London EC2A 2HQ
London EC2A 2HQ
Attn: ▇▇▇▇▇▇ ▇▇▇▇ (Credit)/
▇▇▇▇▇▇ ▇▇▇▇▇▇ (Operational)
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇/
020 7256 2141
Sampo Bank Plc Unioninkatu 22 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
▇▇▇▇▇▇▇▇
▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Attn: Juha-▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Credit)/ Anni Villa
(Operational)
Fax: ▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇/
00358 105 13 4387
-112-
REVOLVING
TERM A LOAN TERM B LOAN TERM C LOAN TERM D LOAN CREDIT
BANK AND LENDING OFFICE ADDRESS FOR NOTICES COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
------------------------------ ---------------------------------- ------------- ------------- ------------ ----------- -------------
Lloyds TSB Bank Plc, Brussels ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
Branch ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇
(Credit)/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Operational)
Fax: ▇▇▇ ▇▇▇▇▇▇▇▇/
00 32 2733 0464
Nordea Bank Finland Plc Aleksis Kivenkatu 3-5 10,489,331.97 7,727,904.01 4,344,399.10 - 10,647,058.83
Vallila, ▇▇▇▇▇▇▇▇
▇▇▇ - ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇ (Credit)/ Panu
Hentila (Operational)
Fax: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇/ 00358
97536816
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REVOLVING
TERM A LOAN TERM B LOAN TERM C LOAN TERM D LOAN CREDIT
BANK AND LENDING OFFICE ADDRESS FOR NOTICES COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
----------------------------- ---------------------------------- ------------- ------------- ------------ ----------- -------------
Metropolitan Life Insurance MetLife Investments Limited - - 14,358,645.32 - -
Company ▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇ (Credit)/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ (Operational)
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇/
00 1 813 801 2515
The Prudential Assurance ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Hill - - 22,678,279.32 - -
Company Limited London
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ (Credit)/ ▇▇▇▇
▇▇▇▇▇ (Operational)
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇/ 3682
Scotiabank Europe Plc Scotia House 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
(Credit)/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
(Operational)
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇/5857
-114-
REVOLVING
TERM A LOAN TERM B LOAN TERM C LOAN TERM D LOAN CREDIT
BANK AND LENDING OFFICE ADDRESS FOR NOTICES COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
------------------------------ ---------------------------------- ------------- ------------- ------------ ----------- -------------
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
AB (publ)
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Credit)/
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (Operational)
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇/
004686110834
Svenska Handelsbanken AB(publ) Svenska Handelsbanken 5,099,785.71 3,757,213.00 1,560,380.46 - 5,176,470.59
Branch Operation in Finland Medium and Long Term Finance
▇.▇. ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇▇ ▇▇▇▇ ▇▇-▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ (Credit)/
Ingegard Ulfsward
(Operational)
Fax: ▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇/468
7011 669
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REVOLVING
TERM A LOAN TERM B LOAN TERM C LOAN TERM D LOAN CREDIT
BANK AND LENDING OFFICE ADDRESS FOR NOTICES COMMITMENT COMMITMENT COMMITMENT COMMITMENT COMMITMENT
------------------------------ ---------------------------------- ------------- ------------- ------------ ----------- -------------
The Royal Bank of Scotland plc The Royal Bank of Scotland plc 5,389,546.26 3,970,691.01 2,784,018.64 - 5,470,588.24
▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ Loans Administration
Edinburgh Corporate Banking Office
▇▇▇ ▇▇▇ 1st Floor ▇-▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: Iain Black (Credit)/ ▇▇▇▇▇
▇▇▇▇▇ (Operational)
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇/ ▇▇▇ ▇▇▇▇ ▇▇▇▇
WestLB AG 51 Moorgate 5,389,546.26 3,970,691.01 2,784,018.64 - 5,470,588.24
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Credit)/
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇
▇▇▇▇▇▇ (Operational)
Fax: ▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇/ 020
70207620
Term D Lender - - - 31,700,000 -
-116-
SCHEDULE 2
PART I
CONDITIONS PRECEDENT
The conditions referred to in Clause 3.1 (Conditions Precedent) are as follows
(and for the purposes of Clause 3.1 (Conditions Precedent) any document which is
in the agreed form shall be in form and substance satisfactory to the Lead
Arranger acting reasonably):
1. DELIVERY OF CERTIFIED COPIES
The Facility Agent shall have received a Certified Copy of each of the
following in form and substance satisfactory to it:
(a) the certificate of incorporation and any relative certificate
of incorporation on change of name (or any foreign equivalent)
of Parentco, Issueco and the companies listed in Part I of
Schedule 4 (Charging Group Companies);
(b) the constitutional documents of Parentco, Issueco and the
companies listed in Part I of Schedule 4 (Charging Group
Companies);
(c) the minutes of a meeting of the board of directors or, where
relevant, a shareholders' meeting or formal approval of
shareholders (as the case may be) of Parentco, Issueco and of
each company listed in paragraph 3 of Part I of this Schedule
2 (including the resolutions passed at those meetings):
(i) approving and authorising the execution, delivery and
performance of each Transaction Document to which it
is to be a party on the terms and conditions of those
documents (other than in respect of the Guarantee to
be executed by Neste Polyester S.A. in accordance
with Clause 10.2 (Execution of Security Documents by
Dyno and its Subsidiaries));
(ii) approving any transfer of the shares of any other
Material Company to the Security Trustee or any other
Finance Party, in the event that the Security Trustee
or any other Finance Party becomes entitled to such
shares pursuant to the Share Charges or any other
Security Document;
(iii) showing that the relevant board meeting was quorate,
that due consideration was given by all the relevant
directors present of the relevant company's
obligations and liabilities arising under those
documents and that all declarations of interests
required in connection with any Transaction Document
to which it is to be a party were made; and
(iv) authorising any director or other person whose name
and specimen signature is set out in those minutes to
sign or otherwise attest the execution of those
documents and any other documents to be executed or
delivered pursuant to those documents;
(d) each of the following documents duly executed by the parties
thereto:
-117-
(i) the Investment Agreement;
(ii) the Oxo Sale Agreement;
(iii) the Intra-Group Loan Agreement;
(iv) the Issueco Bridging Loan Agreement;
(v) the terms of appointment of the Receiving Agent;
(vi) the Offer Document;
(vii) the Senior Subordinated Notes Instrument; and
(e) the Dyno Explosives Sale Agreement and the Captive Bridging
Loan Agreement, each in the agreed form.
2. DELIVERY OF ORIGINAL NON-SECURITY DOCUMENTATION, ETC.
The Facility Agent shall have received each of the following in form
and substance satisfactory to it:
(a) the Fees Letter duly countersigned by Dynea together with all
fees then payable under the terms thereof;
(b) all items forming the Information Package (in each case
addressed to the Finance parties or accompanied by a reliance
letter in form and substance satisfactory to the Facility
Agent acting reasonably);
(c) a certificate from a director of Dynea that the Investors have
pursuant to the Investment Agreement (i) subscribed in cash
for issued share capital in Parentco of at least NOK
200,000,000 and (ii) invested in cash in the convertible
debentures in Parentco of at least Euro 85,500,000, that
Parentco has subscribed in cash for issued share capital in
Issueco of at least Euro 91,500,000, that Issueco has
subscribed in cash for issued share capital in Dynea of the
same amount and that Dynea shall apply such sum,
simultaneously with the first drawdown under this Agreement
for the same purpose as the proceeds of the Term Loan
Facilities;
(d) a letter from the insurance broker to the Group confirming
that all insurances are in effect;
(e) a certificate from Salomon Brothers International Limited
certifying that (i) the Senior Subordinated Notes have been
issued and have been subscribed for in cash in an aggregate
amount of Euro 240,000,000 and (ii) that the Issueco Bridging
Loan has been made in an amount of Euro 30,000,000;
(f) Neste Chemicals UK Limited's written acceptance as agent for
service of process;
(g) the PWC Dyno Structuring Memorandum in the agreed form;
-118-
(h) a certificate from Christiana Bank og Kreditkasse certifying
that the Christiana Facilities are unconditionally available
for drawing;
(i) a written undertaking from Industri Kapital that it will, by
31 December 2000, subscribe in cash for issued share capital
in Parentco of at least Euro 4,500,000 if the Management fails
to invest in cash for at least the same amount by such date
pursuant to the management share incentive scheme set up by
Parentco;
(j) an ISDA master agreement duly executed by Citibank, N.A. and
Dynea;
(k) legal opinions from each of:
(i) ▇▇▇▇▇▇▇▇ Chance as to matters of English law;
(ii) Luostarinen Mettala & Raikkonen as to matters of
Finnish law;
(iii) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Co. ANS as to matters of
Norwegian law;
(iv) ▇▇▇▇▇▇▇▇ Chance as to matters of French law;
(v) ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP as to matters of US
law;
(vi) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as to matters of Canadian law;
(vii) ▇▇▇▇▇ ▇▇▇▇▇▇ & Partners as to matters of Austrian
law; and
(viii) ▇▇▇▇▇ Dutilh as to matters of Dutch law;
(l) a certificate from a director of Dynea certifying that:
(i) the Offer is unconditional in all respects;
(ii) Nordkem has received valid acceptances for at least
90 per cent. of the Dyno Shares;
(iii) the Oxo Sale Agreement is unconditional in all
respects;
(iv) the loan to be made pursuant to the Intra-Group Loan
Agreement has been made;
(v) all required governmental, judicial, regulatory and
other clearances which are necessary from the
European Commission and any other relevant
authorities in all relevant jurisdictions for
completion of the Offer have been obtained; and
(vi) there are no Encumbrances (other than Permitted
Encumbrances) over all or any part of the assets of
Dynea, Dyno and their respective Subsidiaries.
3. DELIVERY OF SECURITY DOCUMENTS
The Security Trustee shall have received each of the following in form
and substance satisfactory to it:
(a) a Guarantee duly executed by each of:
-119-
(i) Dynea;
(ii) Nordkem;
(iii) US Holdco;
(iv) US Neste;
(v) Austrian Holdco;
(vi) Austrian Neste;
(vii) Dynea Fort ▇▇▇▇▇ Inc. (formerly Neste Polyester
Inc.);
(viii) Dynea USA Inc. (formerly Neste Resins Corporation);
(ix) Canadian Neste;
(x) French Holdco;
(xi) French Neste; and
(xii) Neste Resins Oy;
(b) an Asset Security Document duly executed by each of:
(i) Dynea;
(ii) US Holdco
(iii) US Neste;
(iv) Dynea USA Inc. (formerly Neste Resins Corporation);
(v) Dynea Fort ▇▇▇▇▇ Inc. (formerly Neste Polyester
Inc.);
(vi) Neste Resins Oy;
(vii) Austrian Holdco;
(viii) Austrian Neste; and
(ix) Canadian Neste;
(c) a Share Charge duly executed by:
(i) Issueco over the entire issued share capital of
Dynea;
(ii) Nordkem over the entire issued share capital of Dyno;
(iii) Dynea over the entire issued share capital of each of
Neste Resins Oy, Dynea B.V. (formerly Neste Resins
B.V.), French Holdco, US Holdco, Canadian Neste,
Austrian Holdco and Nordkem;
(iv) Austrian Holdco over the entire issued share capital
of Austrian Neste;
-120-
(v) French Holdco over the entire issued share capital of
the French Neste;
(vi) French Neste over the entire issued share capital of
Neste Polyester S.A.;
(vii) US Holdco over the entire issued share capital of the
US Neste; and
(viii) US Neste over the entire issued share capital of each
of Dynea USA Inc. (formerly Neste Resins Corporation)
and Dynea Fort ▇▇▇▇▇ Inc. (formerly Neste Polyester
Inc.);
(d) a Property Charge duly executed by each of:
(i) Neste Resins Oy in respect of its sites at Hamina
(registration number of the land lease mortgage
75-402-1-58-L1, 75-402-1-165-L1, 75-402-1-165-L2,
75-402-1-165-L3 and 75-402-1-172-L1) and Joroinen
(registration number of the land lease mortgage
171-403-1-167-L1 and 171-403-1-112-L1);
(ii) Canadian Neste in respect of its sites at City of
North Bay, City of Thunder Bay and Town of Lindsay;
and
(iii) Austrian Neste in respect of its sites registered at
the Land Register (Grundbuch) ▇▇▇▇▇▇▇▇ bei Krems
012138 under EZ 530, EZ 309 and property share no. 25
of EZ 17; and
(e) the Intercreditor Agreement duly executed by the parties to
it,
together with, in each case, all documents deliverable with them
(including, but not limited to, the guarantee fee letters in respect of
the guarantees to be granted by each of French Holdco, French Neste and
Neste Polyester S.A.).
-121-
PART II
CONDITIONS SUBSEQUENT
The conditions subsequent referred to in Part II of this Schedule 2 are as
follows (and for the purposes of Part II of this Schedule 2 any document which
is in the agreed form shall be in form and substance satisfactory to the Lead
Arranger acting reasonably):
1. DELIVERY OF CERTIFIED COPIES
The Facility Agent shall have received a Certified Copy of each of the
following in form and substance satisfactory to it:
(a) the minutes of a meeting of the board of directors or, where
relevant, a shareholders' meeting or formal approval of
shareholders (as the case may be) of each company listed in
paragraph 2, Part II of this Schedule 2 (including the
resolutions passed at those meetings):
(i) approving and authorising the execution, delivery and
performance of each Transaction Document to which it
is to be a party on the terms and conditions of those
documents, including, for the avoidance of doubt, the
authorisation by a shareholders' meeting of Neste
Polyester S.A. of the Share Charge over its shares by
Neste Chimie France S.A. pursuant to article 13 of
the by-laws of Neste Polyester S.A.;
(ii) approving any transfer of the shares of any other
Material Company to the Security Trustee or any other
Finance Party, in the event that the Security Trustee
or any other Finance Party becomes entitled to such
shares pursuant to the Share Charges or any other
Security Document;
(iii) showing that the relevant board meeting was quorate,
that due consideration was given by all the relevant
directors present of the relevant company's
obligations and liabilities arising under those
documents and that all declarations of interests
required in connection with any Transaction Document
to which it is to be a party were made; and
(iv) authorising any director or other person whose name
and specimen signature is set out in those minutes to
sign or otherwise attest the execution of those
documents and any other documents to be executed or
delivered pursuant to those documents.
2. DELIVERY OF SECURITY DOCUMENTS AND LEGAL OPINIONS
The Security Trustee shall have received each of the following in form
and substance satisfactory to it:
(a) a Guarantee duly executed by each of:
(i) Dyno;
(ii) Dynoresins Oy
-122-
(iii) Neste Polyester S.A.;
(iv) Dyno Overlays Inc.;
(v) Dynea Nederland BV (formerly Dyno Nederland BV);
(vi) Dyno Chemie NV (Belgium);
(vii) Dyno Industries USA Inc.; and
(viii) Dyno Industries Pte. Ltd (Singapore);
(b) an Asset Security Document duly executed by each of:
(i) Dyno;
(ii) Dynea Nederland BV (formerly Dyno Nederland BV);
(iii) Dyno Industries Pte. Ltd (Singapore);
(iv) Dyno Chemie NV (Belgium);
(v) Dyno Overlays Inc.;
(vi) Dynoresins Oy; and
(vii) Dyno Industries USA Inc.;
(c) a Guarantee and Debenture duly executed by each of:
(i) Dynea Ireland Ltd (formerly Dynochem Ireland Ltd);
and
(ii) Dynochem UK Ltd;
(d) a Share Charge duly executed by:
(i) Dynoresins Oy and Dyno Industries USA Inc. over the
entire issued share capital of Dyno Overlays Inc.;
(ii) Dyno over the entire issued share capital of Dyno
Industries USA Inc;
(iii) Dyno over the entire issued share capital of Dynea
Ireland Ltd (formerly Dynochem Ireland Ltd.);
(iv) Dyno Industries UK Limited over the entire issued
share capital of Dynochem UK Ltd.;
(v) Dyno and Dynea Nederland BV (formerly Dyno Nederland
BV) over the entire issued share capital of Dyno
Chemie NV (Belgium);
(vi) Dyno over the entire issued capital of Dynea
Nederland BV (formerly Dyno Nederland BV);
(vii) Dyno over the entire issued share capital of
Dynoresins Oy; and
-123-
(viii) Dyno over the entire issued share capital of Dyno
Industries Pte. Ltd (Singapore).
(e) a Property Charge duly executed by each of:
(i) Dynea USA Inc. (formerly Neste Resins Corporation) in
respect of its sites at (1) ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, (2) ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇, (3) ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (4) ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ and (5) ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇; and
(ii) Dynea Fort ▇▇▇▇▇ Inc. (formerly Neste Polyester Inc.)
in respect of its site at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇;
together with, in each case, all documents deliverable with them.
(f) legal opinions from each of:
(i) ▇▇▇▇▇▇▇▇ Chance as to matters of English law;
(ii) Luostarinen Mettala & Raikkonen as to matters of
Finnish law;
(iii) ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Co. ANS as to matters of
Norwegian law;
(iv) ▇▇▇▇▇▇, Halter & ▇▇▇▇▇▇▇▇ LLP as to matters of US
law;
(v) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ as to matters of Irish law;
(vi) ▇▇▇▇▇ Dutilh as to matters of Dutch law;
(vii) ▇▇▇▇▇▇▇▇ Chance as to matters of Singapore law; and
(viii) Loeff ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as to matters of Belgian law.
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PART III
ADDITIONAL SECURITY
1. DELIVERY OF CERTIFIED COPIES
The Facility Agent shall have received a Certified Copy of each of the
following in form and substance satisfactory to it:
(a) to the extent not previously provided to the Facility Agent, a
certificate of incorporation and any relative certificate of
incorporation on change of name (or any foreign equivalent) of
each of Issueco, Dynea and Dynea NZ Limited;
(b) a certificate from two directors of Dynea confirming that,
save as set out therein, the constitutional documents of each
of Issueco, Dynea and Dynea NZ Limited have not been amended
since such documents were provided to the Facility Agent in
August 2000 or, in the case of Dynea NZ Limited, February
2004; and
(c) the minutes of a meeting of the board of directors or, where
relevant, a shareholders' meeting of each of Issueco, Dynea
and Dynea NZ Limited (including the resolutions passed at
those meetings):
(i) approving and authorising the execution, delivery and
performance of each document listed in paragraph 2
below to which it is a party on the terms and
conditions of those documents;
(ii) showing that the relevant board (or shareholders)
meeting was quorate and that all declarations of
interests required in connection with any document
listed in paragraph 2 below to which it is a party
were made; and
(iii) authorising any director whose name and specimen
signature is set out in those minutes to sign or
otherwise attest the execution of those documents and
any other documents to be executed or delivered
pursuant to those documents.
2. The Security Trustee shall have received each of the following in form
and substance satisfactory to it:
(a) a Guarantee and an Asset Security Document entered into by
Dynea NZ Ltd;
(b) a Certified Copy of the letter from Dynea to Nordkem (i)
stating that Dynea and the Security Trustee (acting on behalf
of the Finance Parties) have agreed that the Share Charge
granted by Dynea in favour of the Security Trustee over the
entire issued share capital of Nordkem will secure all of the
Facilities (including the Term D Loan Facility), (ii)
requesting Nordkem to note such security in its shareholders'
book, (iii) stating that the Term D Lender shall be a Finance
Party under and as such term is defined in the Credit
Agreement and (iv) acknowledging the provisions of Clause
16.15 (Distribution of proceeds of enforcement), together with
a Certified Copy of Nordkem's written acceptance of the same;
and
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(c) an amendment agreement between Dynea and the Security Trustee
in relation to the Share Charge granted by Dynea over the
entire issued share capital of US Holdco.
3. Legal opinions from each of:
(a) ▇▇▇▇▇▇▇▇ Chance Limited Liability Partnership as to matters of
New York law;
(b) Luostarinen Mettala & Raikonnen as to matters of Finnish law;
(c) Chapmann Tripp as to matters of New Zealand law; and
(d) ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ as to matters of Norwegian law.
-126-
SCHEDULE 3
PART I
DRAWDOWN NOTICE
To: CITIBANK INTERNATIONAL plc
From: *[BORROWER]
*[date]
Dear Sirs,
CREDIT AGREEMENT DATED * (THE "CREDIT AGREEMENT")
Terms defined in the Credit Agreement have the same meaning in this notice.
We request an Advance to be drawn down under the Credit Agreement as follows:
1. Facility:
2. Amount [and currency](1) of Advance:
3. Drawdown Date:
4. Duration of Interest Period:
5. Payment instructions:
(if applicable)
We confirm that today and on the Drawdown Date:
(a) the representations and warranties in Clause 11.1 (Representations and
Warranties) by Dynea to be repeated are and will be correct; and
(b) no Default or Potential Default has occurred and is continuing or will
occur on the making of the Advance.
SIGNED
For and on behalf of
*[BORROWER]
(a company incorporated in * under number *)
----------------
(1) Revolving Advance only.
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PART II
BANK GUARANTEE REQUEST
To: CITIBANK INTERNATIONAL plc
From: *[BORROWER]
*[date]
Dear Sirs,
CREDIT AGREEMENT DATED * (THE "CREDIT AGREEMENT")
Terms defined in the Credit Agreement have the same meaning in this request.
We request a Bank Guarantee to be issued under the Revolving Credit Facility in
the form attached:
1. Issue Date:
2. Amount and currency of Bank Guarantee:
3. Purpose of Bank Guarantee:
4. Expiry date of Bank Guarantee:
We confirm that today and on the Issue Date:
(a) the representations and warranties in Clause 11 (Representations and
Warranties) by Dynea to be repeated are and will be correct; and
(b) no Default or Potential Default has occurred and is continuing or will
occur on the issue of the Bank Guarantee.
SIGNED
For and on behalf of
*[BORROWER]
(a company incorporated in * under number *)
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SCHEDULE 4
THE GROUP
PART I
CHARGING GROUP COMPANIES
NAME JURISDICTION OF INCORPORATION
-------------------------- -----------------------------
Dynea Finland
Nordkem Norway
Dynea NZ Ltd New Zealand
Austrian Holdco Austria
French Holdco France
US Holdco USA
Austrian Neste Austria
Dynea Canada Inc. Canada
US Neste USA
Dynea USA Inc. USA
Dynea Fort ▇▇▇▇▇ Inc. USA
Dynea Finland Oy Finland
Dynea B.V. The Netherlands
Dynea Ireland Ltd. Ireland
Dynea Overlays Inc. USA
Dyno Industries USA Inc. USA
Dynea Overlays Oy Finland
Dynea Nederland BV The Netherlands
Dynea UK Ltd. England and Wales
Dynea Singapore Pte. Ltd. Singapore
Dynea NV Belgium
Dynea Nederland Holding BV The Netherlands
Dynea Erkner GmbH Germany
Dynea France SA France
Dynea Resins France SAS France
Dynea A/S Denmark
Dynea Aycliffe Ltd England and Wales
Chemitec do Brasil LTDA Brasil
SCP Dynea do Brasil Brasil
Dynea Holding BV The Netherlands
-129-
PART II
OTHER GROUP COMPANIES
NAME JURISDICTION OF INCORPORATION
----------------------------------------------- -----------------------------
German Neste Germany
Neste Chemicals Iberica S.L. Spain
Neste Chemicals Scandinavia AB Sweden
PT Dynea MUGI Indonesia Indonesia
Krems Knapsack Phosporprodukte GmbH Austria
Neste Kemi Danmark A/S Denmark
▇▇▇▇▇ ▇▇▇▇▇ Oy Finland
Dynea Hungary KFT. Hungary
KVS Kunststoff Verbund Systeme Germany
Dynea Mexico S.A. de C.V. Mexico
Nordalim AS Norway
Nordcoll AS Norway
Dynea Polska SP Z.O.O. Poland
PT Dynea Indria (Indonesia) Indonesia
ABB Krems Service GmbH Austria
A/S ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Dyno Invest Norway
Beijing Dynea Chemicals Industry Co Ltd China
Dynea Chemicals and Plastics Co. Ltd (Shanghai) China
Dyno Chemie BV (Netherlands) The Netherlands
Dyno Industries UK England and Wales
Dyno Pakistan Ltd Pakistan
Dynea Polska Ltd Poland
Dynea (Thailand) Co. Ltd. Thailand
Dynochem Sdn. Bhd. (Malaysia) Malaysia
Dynea Vietnam Co. Ltd. Vietnam
Gluestick AB Sweden
Industries Quimicas Dyno Do Brasil Brazil
▇▇▇▇▇▇▇ Norsk ▇▇▇ AS Norway
KVS Kunstsoff Verbund Systeme Germany
Deutschland GmbH
Dynco Finland
Dynea HongKong PTE Ltd. Hong Kong
Dynea Guangdong Co. Ltd. China
Dynea Krabi Co. Ltd. Thailand
Dynea Operadora SA de CV Mexico
Dynea Holzleime GmbH Germany
SCHEDULE 5
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SCHEDULE 5
MANDATORY COST RATE
The Mandatory Cost Rate is an addition to the interest rate on an Advance to
compensate the Banks for the cost attributable to an Advance resulting from the
imposition from time to time under or pursuant to the Bank of England Act 1998
(the "BANK OF ENGLAND ACT") and/or by the Bank of England and/or the Financial
Services Authority (the "FSA") (or other United Kingdom governmental authorities
or agencies) of a requirement to place non-interest-bearing or Special Deposits
(whether interest bearing or not) with the Bank of England and/or pay fees to
the FSA calculated by reference to liabilities used to fund the Advance.
The Mandatory Cost Rate shall be the rate determined by the Facility Agent to be
equal to the arithmetic mean (rounded upward, if necessary, to 4 decimal places)
of the respective rates notified by each Reference Bank to the Facility Agent as
the rate resulting from the application (as appropriate) of the following
formulae:
in relation to an Advance denominated in Sterling: XL + S(L - D) + F 0.01
-----------------------
100 - (X + S)
in relation to an Advance denominated in
a currency other than Sterling: F 0.01
-------
300
where on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess of any stated
minimum) by reference to which that Reference Bank is required under or
pursuant to the Bank of England Act to maintain cash ratio deposits
with the Bank of England;
L is LIBOR for the relevant Advance for the relevant period;
F is the rate of charge payable by that Reference Bank to the FSA
pursuant to paragraph 2.02 or 2.03, as the case may be, of the Fees
Regulations (but where, for this purpose, the figures at paragraphs
2.02b and 2.03b of the Fees Regulations shall be deemed to be zero) and
expressed in pounds per (pound)1 million of the Fee Base of that
Reference Bank;
S is the level of interest bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which that Reference Bank is
required to maintain by the Bank of England (or other United Kingdom
governmental authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England to that
Reference Bank on Special Deposits.
(X, L, S and D shall be expressed in the formula as numbers and not as
percentages, e.g. if X = 0.15% and L = 7%, XL will be calculated as 0.15 7 and
not as 0.15% 7%. A negative result obtained from subtracting D from L shall be
counted as zero.)
If any Reference Bank fails to notify any such rate to the Facility Agent, the
Mandatory Cost Rate shall be determined on the basis of the rate(s) notified to
the Facility Agent by the remaining Reference Bank(s).
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The Mandatory Cost Rate attributable to an Advance or other sum for any period
shall be calculated at or about 11.00 a.m. on the first day of that period for
the duration of that period.
The determination of the Mandatory Cost Rate in relation to any period shall, in
the absence of manifest error, be conclusive and binding on the Parties.
If there is any change in circumstance (including the imposition of alternative
or additional requirements) which in the reasonable opinion of the Facility
Agent renders or will render either of the above formulae (or any element of the
formulae, or any defined term used in the formulae) inappropriate or
inapplicable, the Facility Agent (following consultation with the Borrowers and
the Majority Banks) shall be entitled to vary the same by giving notice to the
Parties. Any such variation shall, in the absence of manifest error, be
conclusive and binding on the Parties and shall apply from the date specified in
such notice.
For the purposes of this Schedule:
"ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings given
to those terms under or pursuant to the Bank of England Act or by the
Bank of England (as may be appropriate), on the day of the application
of the formula.
"FEE BASE" has the meaning given to that term for the purposes of, and
shall be calculated in accordance with, the Fees Regulations.
"FEES REGULATIONS" means, as appropriate, either:
(a) the Banking Supervision (Fees) Regulations 2000; or
(b) such regulations as from time to time may be in force,
relating to the payment of fees for banking supervision in
respect of periods subsequent to 31st March 2000.
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SCHEDULE 6
FORM OF TRANSFER CERTIFICATE
TRANSFER CERTIFICATE
To: Citibank International plc
and the other parties to the Credit Agreement (as defined below)
This transfer certificate ("TRANSFER CERTIFICATE") relates to a credit agreement
dated * 2000 and made, among others, between (1) Dynea Chemicals Oy (formerly
known as Neste Chemicals Oy), (2) Nordkem AS, (3) certain banks, (4) Citibank
International plc as facility agent, (5) Citibank International plc as security
trustee, (6) Citibank, N.A. as issuing bank and (7) Citigroup Global Markets
Limited as lead arranger in respect of a term A loan facility, a term B loan
facility, a term C loan facility, a term D loan facility and a multicurrency
revolving loan and guarantee facility (the "CREDIT AGREEMENT", which term shall
include any amendments or supplements to it).
Terms defined and references construed in the Credit Agreement shall have the
same meanings and construction in this Transfer Certificate.
1. *[insert full name of Existing Bank] (the "EXISTING BANK"):
(a) confirms that to the extent that details appear in the
Schedule to this Transfer Certificate under the headings
"Existing Bank's Commitment" and "Existing Bank's
Participation in the Facilities", those details accurately
summarise its Commitment and its Participation in the
Facilities all or part of which is to be transferred; and
(b) requests *[insert full name of Bank Transferee] (the "BANK
TRANSFEREE") to accept and procure, in accordance with Clause
y21.4 (Transfers by Banks) of the Credit Agreement, the
substitution of the Existing Bank by the Bank Transferee in
respect of the amount of its Commitment and its Participation
in the Facilities to be transferred as specified in the
Schedule to this Transfer Certificate by signing this Transfer
Certificate.
2. The Bank Transferee requests each of the Parties to accept this
executed Transfer Certificate as being delivered under and for the
purposes of Clause y21.4 (Transfers by Banks) of the Credit Agreement
so as to take effect in accordance with the provisions of that Clause
on *[insert date of transfer].
3. The Bank Transferee:
(a) confirms that it has received a copy of the Credit Agreement
together with such other documents and information as it has
requested in connection with this transaction;
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(b) confirms that it has not relied and will not rely on the
Existing Bank to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or
completeness of any such documents or information; and
(c) agrees that it has not relied and will not rely on the Agents,
the Issuing Bank, the Existing Bank or any other Bank to
assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of the Borrowers or any other party to the Security
Documents.
4. The Bank Transferee undertakes with the Existing Bank and each of the
other parties to the Credit Agreement that it will perform, in
accordance with its terms, all those obligations which, by the terms of
the Credit Agreement, will be assumed by it upon delivery of the
executed copy of this Transfer Certificate to the Facility Agent.
5. On execution of this Transfer Certificate by the Facility Agent on
their behalf, the Parties accept the Bank Transferee as a party to the
Credit Agreement in substitution for the Existing Bank with respect to
all those rights and/or obligations which, by the terms of the Credit
Agreement, will be assumed by the Bank Transferee after delivery of the
executed copy of this Transfer Certificate to the Facility Agent.
6. None of the Existing Bank, the other Banks, the Agents, the Issuing
Bank or the Lead Arranger:
(a) makes any representation or warranty or assumes any
responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the Credit
Agreement or any of the other Financing Documents; or
(b) assumes any responsibility for the financial condition of the
Borrowers or any other party to the Credit Agreement or any of
the other Financing Documents or any other document or for the
performance and observance by the Borrowers or any other party
to the Credit Agreement or any of the other Financing
Documents or any other document of its or their obligations
and any and all conditions and warranties, whether express or
implied by law or otherwise, are excluded.
7. The Bank Transferee confirms that its Lending Office and address for
notices for the purposes of the Credit Agreement are as set out in the
Schedule to this Transfer Certificate.
8. The Existing Bank gives notice to the Bank Transferee (and the Bank
Transferee acknowledges and agrees with the Existing Bank) that the
Existing Bank is under no obligation to re purchase (or in any other
manner to assume, undertake or discharge any obligation or liability in
relation to) the transferred Commitment and Participation at any time
after this Transfer Certificate shall have taken effect.
9. Following the date upon which this Transfer Certificate shall have
taken effect, without limiting the terms of this Transfer Certificate,
each of the Bank Transferee and the Existing Bank acknowledges and
confirms to the other that, in relation to the transferred Commitment
and Participation, variations, amendments or alterations to any term of
any Financing Document arising in connection with any renegotiation or
rescheduling of the
-134-
obligations under the Credit Agreement shall apply to and be binding on
the Bank Transferee alone.
10. This Transfer Certificate is governed by and shall be construed in
accordance with English law.
-135-
THE SCHEDULE
EXISTING BANK'S COMMITMENT AMOUNT OF COMMITMENT TRANSFERRED
EXISTING BANK'S PARTICIPATION IN THE AMOUNT OF PARTICIPATION TRANSFERRED
FACILITIES
*[insert full name of Bank Transferee]
Lending Office Address for notices
* *[address]
Attention:
Telex:
Answerback:
Fax:
*[Bank Transferee]
By:
..................................
(Duly authorised)
*[Existing Bank]
-136-
By:
.................................
(Duly authorised)
The Facility Agent on behalf of itself and all other parties to the Credit
Agreement
By:
.................................
(Duly authorised)
Dated:
-137-
SCHEDULE 7
FORM OF DEED OF ACCESSION
THIS DEED is made this [ ] day of [ ] 19[ ] by [ ] (the "NEW PARTY") in favour
of the other parties to the Credit Agreement (as defined below).
RECITALS:
This Deed is supplemental to a credit agreement (the "CREDIT AGREEMENT")
dated [ ] 2000 made, among others, between (1) Dynea Chemicals Oy
(formerly known as Neste Chemicals Oy), (2) Nordkem AS, (3) certain
banks, (4) Citibank International plc as facility agent, (5) Citibank
International plc as security trustee, (6) Citibank, N.A. as issuing
bank and (7) Citigroup Global Markets Limited as lead arranger.
The New Party wishes to accede to the Credit Agreement as a Borrower.
It is a term of the Credit Agreement that, in order to accede as a
Borrower, the New Party must enter into this Deed.
NOW THIS DEED WITNESSES AS FOLLOWS
1. Terms defined and references construed in the Credit Agreement shall
have the same meanings and construction in this Deed.
2. The New Party:
(a) agrees to be bound by all the terms and conditions of the
Credit Agreement insofar as they relate to a Borrower as if
the New Party was a party to the Credit Agreement in such
capacity; and
(b) represents and warrants to the Agents, the Issuing Bank and
the Banks (other than the Term D Lender) in the terms of
sub-clauses y11.1.1 to y11.1.7 of Clause y11.1
(Representations and Warranties) but such representations and
warranties shall be given so as to apply, mutatis mutandis, to
the New Party only.
3. The New Party confirms that it has delivered to the Facility Agent the
documents specified in the Schedule to this Deed.
4. The New Party agrees that it shall accede to the Credit Agreement
immediately upon the Facility Agent countersigning this Deed.
IN WITNESS whereof the New Party has caused this Deed to be executed on the day
set out above.
-138-
THE COMMON SEAL of )
[ ] )
was hereunto affixed in )
the presence of: )
Director
Director/Secretary
We agree, on behalf of all the parties to the Credit Agreement, that the New
Party shall, from the date of our signature, accede to the Credit Agreement as
if it were a Borrower named therein and a party to the Credit Agreement.
SIGNED
...........................
for and on behalf of
[ ]
as Facility Agent
Date:[ ]
SCHEDULE
(a) A Certified Copy of our memorandum and articles of association or
equivalent constitutional documents.
(b) A Certified Copy of the resolution of our Board of Directors approving
the transactions contemplated by this Deed and authorising the
execution of this Deed and any other documents contemplated by the
Credit Agreement.
(c) Certified Copies of all other resolutions, authorisations, approvals,
consents and licences, corporate, official or otherwise, necessary or
desirable, to enable us to give effect to the transactions contemplated
by this Deed and for the validity and enforceability of this Deed.
(d) [The relevant Security Documents duly executed by each Charging Group
Company in respect of the obligations of the New Party, together with
(i) Certified Copies of the equivalent documents referred to in
paragraphs (a), (b) and (c) above in respect of each Charging Group
Company and (ii) a legal opinion supporting such Security Documents
executed by any non-English Charging Group Company.]
(e) A legal opinion from counsel approved by the Facility Agent.
-139-
SCHEDULE 8
ORIGINAL EURO AMOUNT
TRANCHE ORIGINAL EURO AMOUNT
Tranche A2 (US$) Euro 49,230,215
Tranche A3 (Can$) Euro 36,328,000
Tranche B2 (NOK) Euro 31,425,217
Tranche B3 (US$) Euro 24,615,107
Tranche B4 (Can$) Euro 18,164,000
Term C Loan Facility Euro, 94,786,533
-140-
SCHEDULE 9
PROVISIONS RELATING TO THE TERM D LOAN FACILITY
1. INTEREST
1.1 In addition to interest accrued under sub-clause y6.1.1 of Clause y6.1
(Interest Rate), interest shall accrue on each Term D Advance, from and
including the Drawdown Date in relation to such Term D Advance to but
excluding the date such Term D Advance is repaid in full, at the PIK
Margin.
1.2 On each relevant Interest Date, all interest accrued on each Term D
Advance under paragraph 1.1 will be added to the principal amount of
the relevant Term D Advance.
1.3 Notwithstanding the provisions of sub-clause y6.3.1 of Clause y6.3
(Interest Periods), interest payable on each Term D Advance shall only
be calculated by reference to Interest Periods of 6 months' duration.
For the avoidance of doubt no other Interest Period (whether allowed by
the Facility Agent acting on the instructions of all the Banks (other
than the Term D Lender) or otherwise) shall apply.
1.4 Notwithstanding the provisions of paragraph (b) of sub-clause y6.6.2 of
Clause y6.6 (Calculation and payment of interest), no interest in
respect of a Term D Advance shall be payable at any time if a Default
or Potential Default is continuing. Any interest not so payable shall
be capitalised and added to the relevant Term D Advance.
2. REPAYMENT OF TERM D LOAN
Dynco shall repay the Term D Loan on the Final Repayment Date in
relation to the Term D Facility.
3. NO RE-BORROWING OF TERM D LOAN
Any amount repaid or prepaid in relation to the Term D Loan may not be
re-borrowed and shall reduce rateably the Term D Lender's Term D
Commitment.
4. CANCELLATION
Dynco may not cancel all or any part of the Term D Loan Facility, save
to the extent contemplated by sub-clause 2.1.2 of Clause 2.1
(Facilities) or at any time after the Senior Discharge Date.
5. PREPAYMENT
Prior to the Senior Discharge Date and notwithstanding any other
provision of this Agreement, Dynco may not prepay all or any part of
the Term D Loan Facility. After the Senior Discharge Date, any amount
to be applied in prepayment pursuant to Clause y7.6 (Mandatory
Prepayment of Net Available Proceeds), y7.7 (Mandatory Prepayment of
Surplus Cash), y7.8 (Mandatory Prepayment of Insurance Proceeds), y7.9
(Mandatory Prepayment of Vendor Payments) or sub-clause y7.11.2 of
Clause y7.11 (Net Cash Proceeds of the Polyester Business) shall be
applied against the Term D Loan and as against ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇ pro rata.
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-142-
SCHEDULE 10
SUBORDINATION
1. Subordination
1.1 Subordination
If:
1.1.1 there occurs any payment, distribution, division or
application, partial or complete, voluntary or involuntary, by
operation of law or otherwise, of all or any part of the
assets of any kind or character of Dynea or the proceeds
thereof, to creditors of Dynea, by reason of the liquidation,
dissolution or other winding-up of Dynea or its businesses or
any bankruptcy, reorganisation, receivership or insolvency or
similar proceeding or any assignment for the benefit of
creditors or there is a marshalling of the assets and
liabilities of Dynea; or
1.1.2 Dynea becomes subject to any Insolvency Proceedings or
voluntary arrangement,
then and in any such event:
(a) the Dynco Liabilities shall be subordinated to the
Senior Liabilities owed by Dynea;
(b) any payment or distribution of any kind or character
and all and any rights in respect thereof, whether in
cash, securities or other property which is payable
or deliverable upon or with respect to the Dynco
Liabilities or any part thereof by a liquidator,
administrator or receiver (or the equivalent thereof)
of Dynea or its estate ("RIGHTS") made to or paid to,
or received by Dynco or to which Dynco is entitled
shall be held in trust by Dynco for the other Finance
Parties and shall forthwith be paid or, as the case
may be, transferred or assigned to the Security
Trustee to be applied against the Senior Liabilities
(after taking into account any concurrent payment or
distribution being made to the other Finance
Parties); and
(c) if the trust referred to in paragraph y1.1.2y(b)
fails or cannot be given effect to, if Dynco (so as
also to bind any agent or trustee on its behalf)
receives and retains any such payment or
distribution, Dynco will pay over such rights in the
form received to the Security Trustee to be applied
against the Senior Liabilities (after taking into
account any concurrent payment or distribution being
made to the other Finance Parties).
1.2 Further Assurance
1.2.1 Dynco acknowledges the Security Trustee's rights to demand,
▇▇▇ and prove for, collect and receive every payment or
distribution referred to in sub-clause y1.1.2y(b) of Clause
y1.1 (Subordination) and give acquittance therefor and to file
claims and take such other proceedings, in the Security
Trustee's own name or
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otherwise as the Security Trustee may deem necessary or
advisable for the enforcement of this Agreement.
1.2.2 Dynco will execute and deliver to the Security Trustee such
powers of attorney, assignments or other instruments as may be
necessary or appropriate and as may be reasonably requested by
the Security Trustee in order to enable the Security Trustee
to enforce any and all claims upon or with respect to the
Dynco Liabilities or any part thereof, and to collect and
receive any and all payments or distributions referred to in
sub-clause y1.1.2y(b) of Clause y1.1 (Subordination).
1.3 Insolvency Authorisation
The liquidator or other insolvency representative or trustee of any
Group Company or its estate is authorised to apply any assets or moneys
received by him in accordance with the terms of this Agreement.
2. ENFORCEMENT ACTION
Dynco undertakes that it shall not, prior to the Senior Discharge Date,
take any action (whether itself or by an agent or trustee on its
behalf) to:
(a) demand payment, declare prematurely due and payable or
otherwise seek to accelerate payment of all or any part of the
Indebtedness under the On-Lending Agreement; or
(b) recover all or any part of the Indebtedness under the
On-Lending Agreement (including, by exercising any rights of
set-off or combination of accounts); or
(c) exercise or enforce any rights under any security interest
whatsoever which secures the Indebtedness under the On-Lending
Agreement; or
(d) commence legal proceedings against Dynea; or
(e) commence, or take any other steps which could lead to the
commencement of, any Insolvency Proceedings in respect of
Dynea,
save where the Security Trustee acts on its behalf as specifically
permitted under the terms of this Agreement.
3. For the purpose of this Schedule 10:
"DYNCO LIABILITIES" means all present and future sums, liabilities and
obligations (whether actual, contingent, present and/or future) payable
or owing by the Group Companies to Dynco in respect of Dynea's
obligations under the On-Lending Agreement.
"INSOLVENCY PROCEEDINGS" means any proceedings or steps for:
(i) the insolvency, liquidation, dissolution, winding-up,
administration, receivership, compulsory merger or judicial
reorganisation of any company or judicial liquidation; or
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(ii) the appointment of a trustee in bankruptcy, or insolvency
conciliator, ad hoc official, judicial administrator, a
liquidator or other similar officer of any company; or
(iii) any other similar process or appointment.
"SENIOR LIABILITIES" means all present and future sums, liabilities and
obligations (whether actual, contingent, present and/or future) payable
or owing by the Group Companies to the Finance Parties in respect of
any Borrower's obligations under the Term A Loan Facility the Term B
Loan Facility, the Term C Loan Facility, the Term D Loan Facility and
the Revolving Credit Facility.
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DYNEA
SIGNED by ▇. ▇▇▇▇▇▇▇▇ )
for and on behalf of ) ▇. ▇▇▇▇▇▇▇▇
NESTE CHEMICALS OY )
NORDKEM
SIGNED by ▇. ▇▇▇▇▇▇▇▇ )
for and on behalf of ) ▇. ▇▇▇▇▇▇▇▇
NORDKEM AS )
THE FACILITY AGENT
SIGNED by Y. PERREVE )
for and on behalf of ) Y. PERREVE
CITIBANK INTERNATIONAL PLC )
THE SECURITY TRUSTEE
SIGNED by Y. PERREVE )
for and on behalf of ) Y. PERREVE
CITIBANK INTERNATIONAL PLC )
THE ISSUING BANK
SIGNED by Y. PERREVE )
for and on behalf of ) Y. PERREVE
CITIBANK, N.A. )
THE LEAD ARRANGER
SIGNED by Y. PERREVE )
for and on behalf of ) Y. PERREVE
SALOMON BROTHERS )
INTERNATIONAL LIMITED )
THE BANKS
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SIGNED by Y. PERREVE )
for and on behalf of ) Y. PERREVE
CITIBANK, N.A. )
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DYNEA
SIGNED by )
for and on behalf of )
DYNEA CHEMICALS OY )
NORDKEM
SIGNED by )
for and on behalf of )
NORDKEM AS )
THE FACILITY AGENT
SIGNED by )
for and on behalf of )
CITIBANK INTERNATIONAL PLC )
THE SECURITY TRUSTEE
SIGNED by )
for and on behalf of )
CITIBANK INTERNATIONAL PLC )
THE ISSUING BANK
SIGNED by )
for and on behalf of )
CITIBANK, N.A. )
THE LEAD ARRANGER
SIGNED by )
for and on behalf of )
CITIGROUP GLOBAL MARKETS )
LIMITED )
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THE TERM D LENDER
SIGNED by )
for and on behalf of )
DYNEA OY )
-10-