Exhibit 4.5
▇▇▇▇▇▇▇▇ LIMITED LIABILITY PARTNERSHIP
CHANCE
Execution Copy
DATED 2001
DYNEA CHEMICALS Oy
and
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 -
SALOMON BROTHERS INTERNATIONAL LIMITED
as Lead Arranger
------------------------------------------------------
AMENDMENT AND RESTATEMENT AGREEMENT
relating to a Credit Agreement dated 7 August 2000
------------------------------------------------------
CONTENTS
Clause Page
1. Interpretation.............................................................1
2. Effective Date.............................................................2
3. Amendment And Restatement..................................................2
4. Waivers....................................................................2
5. Confirmation...............................................................3
6. Fees And Expenses..........................................................3
7. Miscellaneous..............................................................3
8. Law........................................................................3
THIS AGREEMENT is made on day of 2001
BY:
(1) DYNEA CHEMICALS Oy (formerly known as Neste Chemicals Oy), a company
incorporated in Finland with registered number 769.380 ("Neste");
(2) NORDKEM AS, a company incorporated in Norway with registered number
981313054 ("Bidco");
(3) CITIBANK INTERNATIONAL plc of ▇.▇. ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as
the Facility Agent (as that term is more particularly defined in the
Credit Agreement referred to below);
(4) CITIBANK INTERNATIONAL plc of ▇.▇. ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as
the Security Trustee (as that term is more particularly defined in the
Credit Agreement referred to below);
(5) CITIBANK, N.A. of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as the Issuing Bank (as that
term is more particularly defined in the Credit Agreement referred to
below); and
(6) SALOMON BROTHERS INTERNATIONAL LIMITED of Victoria Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ lead arranger of the facilities made available
under this Agreement (in such capacity, the "Lead Arranger").
WHEREAS:
(A) By a credit agreement dated 7 August 2000 made between the same parties as
set out above (the "Credit Agreement"), certain facilities were made
available on the terms set out therein.
(B) The parties to this Agreement have agreed to amend and restate the Credit
Agreement on the terms set out herein.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement (including the recitals) words and expressions defined
in the Credit Agreement (as amended and restated by this Agreement) shall
have the same meanings when used in this Agreement and "Effective Date"
means the date upon which all of the conditions in Clause 2.1 have been
satisfied (or, on the instructions of the Majority Banks, waived by the
Facility Agent).
1.2 The provisions of clauses 1.2 and 1.3 of the Credit Agreement shall be
included in this Agreement, subject to necessary changes.
1.3 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. EFFECTIVE DATE
2.1 Notwithstanding any other provisions of this Agreement, this Agreement
shall have no effect unless the Facility Agent shall have received (or, on
the instructions of the Majority Banks, waived the receipt of) in form and
substance satisfactory to it on or before 15 November 2001:
(a) a Certified Copy of the minutes of a meeting of the board of
directors of Neste and Bidco approving and authorising the execution,
delivery and performance of this Agreement on the terms and
conditions hereof and showing that the board meeting was quorate;
(b) a legal opinion from each of:
(i) ▇▇▇▇▇▇▇▇ Chance as to English law;
(ii) Luostarinen, Mettala Raikkonen as to matters of Finnish law;
and
(iii) ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ as to matters of Norwegian law;
(c) payment of the fee referred to in Clause 6 (Fees and Expenses); and
(d) a certificate from a director of Neste, in the agreed form, that the
Initial Equity Injection has been made and the proceeds have been
received by a member of the Group.
2.2 Upon the provisions of Clause 2.1 being satisfied the Facility Agent shall
notify Neste.
3. AMENDMENT AND RESTATEMENT
With effect from the Effective Date the Credit Agreement shall be
amended and restated so as to take effect in the form set out in Schedule 1.
4. Waivers
Each of the Banks, the Facility Agent, the Security Trustee, the Issuing
Bank and the Lead Arranger shall on the Effective Date waive each of the
Defaults arising from a breach of each of the following financial
undertakings for the period ending on 30 September 2001:
(a) EBITDA to Total Net Interest Costs as set out in Clause 12.5.1(a) of
the Credit Agreement;
(b) EBITDA to Total Net Senior Interest Costs as set out in Clause
12.5.1(c) of the Credit Agreement;
(c) Total Net Debt to EBITDA as set out in Clause 12.5.1(b) of the Credit
Agreement; and
(d) Cashflow to Total Funding Costs as set out in Clause 12.5.1(d) of the
Credit Agreement.
5. CONFIRMATION
5.1 The Parties confirm that the Credit Agreement remains in full force and
effect save as amended by this Agreement.
5.2 Neste and Bidco confirms on behalf of each Group Company that the Security
Documents to which it is a party remain in full force and effect
notwithstanding the amendments effected by this Agreement.
5.3 The Facility Agent confirms that it has received the consent of the
Majority Banks for the amendments and waivers to be made to the Credit
Agreement pursuant to this Agreement.
6. Fees and Expenses
6.1 Neste shall pay an amendment fee in Euro to the Facility Agent for the
account of each of the Banks at the rate of 0.125 per cent. on the Total
Commitments.
6.2 Neste shall, on demand, pay all expenses (including, but not limited to,
legal fees) and any VAT thereon incurred by the Facility Agent and any
Bank in connection with the negotiation, preparation and execution of this
Agreement and any document contemplated thereby.
7. MISCELLANEOUS
The provisions of clauses 19 (Miscellaneous), 20 (Notices) and 23.2
(Jurisdiction) of the Credit Agreement shall be included in this Agreement
subject to any necessary changes.
8. LAW
This Agreement shall be governed by and construed in accordance with
English law.
IN WITNESS WHEREOF the Parties have caused this Agreement to be duly executed on
the date set out above.
Neste
SIGNED by )
)
for and on behalf of )
DYNEA CHEMICALS OY )
Bidco
SIGNED by )
)
for and on behalf of )
NORDKEM AS )
The Facility Agent and Security Trustee
signing on its behalf and on behalf of the Banks
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 )
SALOMON BROTHERS )
INTERNATIONAL LIMITED )
▇▇▇▇▇▇▇▇ LIMITED LIABILITY PARTNERSHIP
CHANCE
Execution Copy
SCHEDULE 1
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
SALOMON BROTHERS INTERNATIONAL LIMITED
as Lead Arranger
-------------------------------------------------------
CREDIT AGREEMENT
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;
and (iv) a multicurrency revolving loan and guarantee
facility of Euro 100,000,000
-------------------------------------------------------
CONTENTS
Clause Page
1. Definitions And Interpretation............................................1
2. Facilities...............................................................31
3. Conditions Precedent.....................................................34
4. Utilisation Of The Facilities............................................34
5. Alternative Currencies...................................................42
6. Interest.................................................................43
7. Repayment, Prepayment And Cancellation...................................48
8. Changes In Circumstances.................................................53
9. Payments.................................................................59
10. Security.................................................................63
11. Representations And Warranties...........................................64
12. Undertakings.............................................................69
13. Default..................................................................85
14. Set-Off..................................................................88
15. Pro Rata Sharing.........................................................88
16. The Finance Parties......................................................89
17. Fees And Expenses........................................................97
18. Amendments And Waivers...................................................99
19. Miscellaneous...........................................................100
20. Notices.................................................................100
21. Assignments And Transfers...............................................102
22. Indemnities.............................................................105
23. Law And Jurisdiction....................................................106
Schedule 1 THE BANKS.........................................................108
Schedule 2...................................................................109
Part I Conditions Precedent.............................................109
Part II Conditions Subsequent...........................................114
Schedule 3...................................................................117
Part I Drawdown Notice..................................................117
Part II Bank Guarantee Request..........................................118
SCHEDULE 4 THE GROUP.........................................................119
Part I Charging Group Companies.........................................119
Part II Other Group Companies...........................................119
SCHEDULE 5 MANDATORY COST RATE...............................................121
SCHEDULE 6 FORM OF TRANSFER CERTIFICATE......................................123
SCHEDULE 7 FORM OF DEED OF ACCESSION.........................................128
Schedule 8...................................................................130
EXECUTION COPY
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 ("Neste");
(2) NORDKEM AS, a company incorporated in Norway with registered number
981313054 ("Bidco");
(3) THE BANKS listed in Schedule 1 (The Banks);
(4) CITIBANK INTERNATIONAL plc of ▇.▇. ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as
the Facility Agent (as that term is more particularly defined below);
(5) CITIBANK INTERNATIONAL plc of ▇.▇. ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as
the Security Trustee (as that term is more particularly defined below);
(6) CITIBANK, N.A. of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as the Issuing Bank (as that
term is more particularly defined below); and
(7) SALOMON BROTHERS INTERNATIONAL LIMITED of Victoria Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ 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
Neste 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.
"Accounts" means:
(a) in relation to Neste, 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, Neste or Bidco in relation to the Neste
Acquisition or the Dyno Acquisition (including the financing thereof).
"Acquisition Goodwill" means the net goodwill arising on the Neste
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 Marmorandum Holding GmbH, a company incorporated
in Austria with registered number FN 189161d.
"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 B 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 4.13 (Counter indemnity from the
Borrowers); and "Bank Indemnities" shall be construed accordingly.
"Banks" means 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".
"Bank Transferee" has the meaning given to that term in Clause 21.4.2 of
Clause 21.4 (Transfer 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 4.12 (Bank
Guarantee Request); and "Borrower Indemnities" shall be construed
accordingly.
"Borrowers" means Neste, Bidco 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 Neste Chemicals Canada Inc., 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;
(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) minus the aggregate of all corporation or other similar Taxes paid
during that period;
(m) plus the proceeds of any part of the Initial Equity Injection
received by Neste in cash during that period; and
(n) 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-clause 12.4(b)(ii) and (viii) 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).
"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 Neste.
"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.
"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
and its Revolving Credit Commitment.
"Compliance Certificate" has the meaning given to that term in sub-clause
(e) of Clause 12.2 (Information Undertaking).
"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 Neste Acquisition Agreement.
"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
A of Schedule 3 (Drawdown Notice).
"Dutch Holdco" means Nordkem B.V., a company incorporated in the
Netherlands with registered number 27174375.
"Dyno" means Dyno ASA, a company incorporated under the laws of Norway
with registered number 820 051 122.
"Dyno Acquisition" means the acquisition by Bidco 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.
"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 Vof 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.
For the purposes of paragraph (b) of Clause 12.5 (Financial undertakings)
in relation to any period (the "Relevant Period") of 12 months ending on
or before the date 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.
"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 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 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 Neste relating to certain fees payable to the Lead
Arranger, the Agents and the Issuing Bank by Neste in relation to this
Agreement, being described on its face as the "Fees Letter".
"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; and
(c) in relation to the Term C Loan Facility, 30 June 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 Neste, Bidco, 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.
"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.
"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.
"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.
"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, Neste, the Banks, 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 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 Neste.
"Investcos" means the Neste Investcos and the Dyno Investcos.
"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 Neste Chemicals 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, Neste, 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 Neste 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 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.
"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 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 Clause (b) of
Clause 12.2 (Information Undertaking).
"Mandatory Cost Rate" means the rate determined in accordance with
Schedule 5 (Mandatory Cost Rate).
"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;
(b) in respect of the Term B Loan Facility, 2.50 per cent. per annum;
and
(c) in respect of the Term C Loan Facility, 3.00 per cent. per annum.
"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) Neste to comply with its obligations under
Clause 12.4 (Negative undertakings).
"Material Company" means each Borrower, each Guarantor, Neste Polyester
Inc., Dyno Chemicals Ireland Ltd. and Dyno Overlays Inc. and each other
Subsidiary of Neste:
(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
Neste Acquisition Agreement.
"Neste Acquisition" means the acquisition by Neste of the Neste Shares and
the Neste Assets pursuant to the Neste Acquisition Agreement.
"Neste Acquisition Agreement" means the sale and purchase agreement dated
8th October 1999 relating to the sale and purchase of the Neste Shares and
the Neste Assets and made between (a) Neste Chemicals Oy and Neste
Chemicals Benelux Holdings, (b) Neste, (c) Fortum Oil and Gas Oy and (d)
Industri Kapital (but, for the avoidance of doubt, shall not include the
Disclosure Letter).
"Neste Assets" means the Assets as such term is defined in the Neste
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 to Neste 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 Neste pursuant to a mezzanine loan agreement dated 30 November
1999.
"Neste Investcos" means Austrian Investco I, Austrian Investco II and
German Investco.
"Neste 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 Neste Shares.
"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 Neste, 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 Neste to enable Neste 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 Neste without breaching any relevant
exchange control or similar restrictions in the country where the
Net Cash Proceeds are received by such Group Company.
"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 Neste such provision as
Neste 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 Neste;
(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.
"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 Bidco 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.
"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 9, or a
Participation in any such Advance the amount in Euros set out in
Column 2 of Schedule 9 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,
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 Neste 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.
"Permitted Encumbrance" means:
(a) any Encumbrance created under the Financing Documents;
(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 Neste (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 Neste, (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 Neste;
(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; or
(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
12.5.1(e) of Clause 12.5 (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 Neste
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;
(p) Indebtedness of Dyno under the Captive Bridging Loan Agreement;
(q) Indebtedness of Neste under its guarantee of the Issueco Bridging
Loan contained in the Issueco Bridging Loan Agreement;
(r) Indebtedness of Neste 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 Clause 12.4(f)(vi)
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; and
(w) 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. "Polyester Business" means the
business carried on by certain Group Companies specialising in the
production of unsaturated polyesters and polyester gel coats.
"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.
"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 Neste.
"Remaining Neste Shares" means that part of the issued share capital of
each of the NCO Target Companies acquired pursuant to the Neste
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).
"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(d) of Clause 2.1
(Facilities).
"Revolving Credit Facility Limit" means, subject to Clause 7.15
(Cancellation of Revolving Credit Facility), 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 Intercreditor Agreement; and
(g) 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.
"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 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, Neste 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.
"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 Neste, 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
Business) and 7.13 (Voluntary Prepayment of Term A Loan, Term B Loan and
Term C Loan) inclusive and (c) Euro 10,000,000 provided that for the
purpose of this definition Cashflow shall be calculated excluding
paragraph (m) of that definition and any amounts applied by way of Further
Equity Injection.
"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 7.3 (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 and the Term C 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 Clause 6.3.4.
"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 Loan Borrower" means Neste or Bidco 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 and the Term C Loan Facility.
"Term Loans" means all and each of the Term A Loan, the Term B Loan and
the Term C Loan; and "Term Loan" shall be construed accordingly;
"Total Commitments" means the aggregate of the 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 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 Neste
Acquisition or the Dyno Acquisition, (b) any amounts amortised on finance
costs and issue costs arising from the Neste Acquisition or the Dyno
Acquisition, (c) any interest payable on the Issueco Loans and (d) any
interest payable on the Captive Bridging Loan.
"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 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.
"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
Neste 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.
"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 Neste 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):
(a) words importing the singular shall include the plural and vice
versa;
(b) references to Clauses and Schedules are to be construed as
references to the Clauses of, and schedules to, this Agreement;
(c) 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;
(d) 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;
(e) 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 Neste;
(f) 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);
(g) 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;
(h) the words "other" and "otherwise" shall not be construed ejusdem
generis with any foregoing words where a wider construction is
possible;
(i) 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;
(j) 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;
(k) accounting terms shall be construed so as to be consistent with IAS;
and
(l) 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 the Banks agree to make
available:
(a) a term A loan facility in an Original Euro Amount of Euro
189,841,693 in three tranches as follows:
(i) to Bidco, a tranche ("Tranche A1") of up to NOK
843,333,333 to be drawn down in Norwegian Kroner;
(ii) to Neste, a tranche ("Tranche A2") of US$ 44,666,667 to
be drawn down in US Dollars;
(iii) to Neste, a tranche ("Tranche A3") of Can$ 50,666,667 to
be drawn down in Can Dollars;
(b) a term B loan facility in an Original Euro Amount of Euro
94,920,847 in four tranches as follows:
(i) to Bidco, a tranche ("Tranche B1" of NOK 167,533,089 to
be drawn down in Norwegian Kroner;
(ii) to Neste, a tranche ("Tranche B2") of NOK 254,133,577 to
be drawn down in Norwegian Kroner;
(iii) to Neste, a tranche ("Tranche B3") of US$ 22,333,333 to
be drawn down in US Dollars; and
(iv) to Neste, a tranche ("Tranche B4") of Can$ 25,333,333 to
be drawn down in Can Dollars;
(c) to Neste 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; and
(d) to the Borrowers, a multicurrency revolving loan and guarantee
facility in the maximum principal amount of Euro 100,000,000.
2.1.2 Notwithstanding any other term of this Agreement:
(a) the Original Euro Amount of all the Term A Advances shall not,
at any time, exceed the Total Term A Loan Commitments;
(b) the Original Euro Amount of all the Term B Advances shall not,
at any time, exceed the Total Term B Commitments;
(c) the Original Euro Amount of all the Term C Advances shall not,
at any time, exceed the Total Term C Commitments; and
(d) 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.
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 Neste 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 Neste 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 Neste 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 Restructuring of Term Loan Facilities
Each of the Parties agrees that it is its intention that by 31 December
2000 this Agreement be amended (and, if necessary, restated) to enable so
much of the Term Loans as is possible to be borrowed by Subsidiaries of
Neste and that it will negotiate in good faith and enter into such
documentation as may be necessary to achieve the same. Neste hereby
confirms that it is its intention to enable at least 50 per cent. of the
Term Loans to be borrowed by such Subsidiaries.
2.6 Purpose of the Term Loan Facilities
2.6.1 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.
2.6.2 The proceeds of Tranche A1, Tranche B1 and Tranche B2 shall only be
used to:
(a) pay the consideration payable by Bidco for the Dyno Shares
purchased by it pursuant to the Offer or pursuant to the
mandatory offer which Bidco 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 Bidco 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.
2.7 Purpose of the Revolving Credit Facility
2.7.1 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);
(b) to repay maturing Revolving Advances; and
(c) for the purposes set out in Clause 2.6.2(a) but only up to the
maximum aggregate amount of Euro 20,000,000.
2.7.2 Bank Guarantees shall be issued by the Issuing Bank for the general
corporate purposes of the relevant Borrower.
2.8 Undertaking by the Borrowers
Each Borrower undertakes that it will only utilise the Facilities as
permitted by Clauses 2.6 and 2.7 (Purpose).
2.9 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
Notwithstanding any other term of this Agreement, none of the Finance
Parties shall be under any obligation to make the Facilities available to
the Borrowers unless the Facility Agent has notified Neste that all the
conditions set out in Part I of Schedule 2 have been satisfied or waived
on or prior to 8 August 2000.
3.2 Confirmation of satisfaction
The Facility Agent shall, at the request of Neste, 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 Neste 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 Neste by means of a Drawdown Notice
in accordance with Clause 4.7 (Drawdown Notice);
(b) by Bidco in one or more Term A Advances under Tranche A1 at
any time during the Term Commitment Period in each case when
requested by Neste by means of a Drawdown Notice in accordance
with Clause 4.7 (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.
4.2 Drawdown of Term B Loan Facility
4.2.1 Subject to the other terms of this Agreement, the Term B Loan
Facility shall be drawn down:
(a) by Neste 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 Neste by means of a Drawdown
Notice in accordance with Clause 4.7 (Drawdown Notice); and
(b) by Bidco in one or more Term B Advances under Tranche B1 at
any time during the Term Commitment Period, in each case when
requested by Neste by means of a Drawdown Notice in accordance
with Clause 4.7 (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 Bidco by means of a Drawdown Notice in
accordance with Clause 4.7 (Drawdown Notice).
4.4 Limitations applicable to Term Advances
The following limitations apply to Term Advances:
(a) the Drawdown Date of a Term Advance shall be a Business Day during
the Term Commitment Period;
(b) 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;
(c) no Term Advance under Tranche A1 shall be made unless Tranche B1 and
the Term C Loan Facility have been drawn down in full;
(d) no Term Advance under Tranche B1 shall be made unless the Term C
Loan Facility has been drawn down in full; and
(e) no more than 8 Term Advances under Tranches A1 and B1 may be
outstanding at any one time.
4.5 Utilisation of Revolving Credit Facility
4.5.1 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 4.7
(Drawdown Notice) or, as the case may be, a Bank Guarantee Request
in accordance with Clause 4.12 (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.
4.5.2 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.
4.5.3 Neste 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.
4.5.4 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 Neste may agree (acting reasonably); or
(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.
4.6 Conditions to each Advance
4.6.1 Subject to sub-clause 4.6.2 of this Clause 4.6 (Conditions to each
Advance), 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) 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 Potential Default has occurred and is continuing
or would occur on the making of the Advance.
4.6.2 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.
4.7 Drawdown Notice
4.7.1 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.
4.7.2 A Drawdown Notice shall be irrevocable and the relevant Borrower
shall be obliged to borrow in accordance with its terms.
4.8 Notification to Banks
The Facility Agent shall promptly notify each Bank of the details of each
Drawdown Notice received by it.
4.9 Participations
4.9.1 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.
4.9.2 For the purposes of sub-clause 4.9.1:
(a) the Participation of a Bank in a Term A Advance, a Term B
Advance or a Term C Advance shall be the proportion of that
Term A Advance, Term B Advance or, as the case may be, Term C
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
or, as the case may be, that Bank's Term C Loan Commitment to
the Total Term C 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.
4.10 Limitations on Bank Guarantees
The following limitations apply to Bank Guarantees issued by the Issuing
Bank:
(a) the relevant Issue Date of each Bank Guarantee shall be a Business
Day during the Revolving Credit Commitment Period;
(b) each Bank Guarantee shall be issued by the Issuing Bank in a form
approved by the Issuing Bank;
(c) without prejudice to sub-clause 4.10(b), each Bank Guarantee shall,
unless the Issuing Bank otherwise agrees:
(i) be denominated in Euro or an Alternative Currency; and
(ii) state on its face the maximum amount payable under it and its
expiry date;
(d) 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;
(e) 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
(f) no more than 25 Bank Guarantees may be outstanding at any one time.
4.11 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:
(a) 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
(b) no Default or Potential Default has occurred and is continuing or
would occur on the issue of the Bank Guarantee.
4.12 Bank Guarantee Request
4.12.1 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.
4.12.2 The Facility Agent shall promptly provide the Issuing Bank and each
Bank with a copy of each Bank Guarantee Request and proposed Bank
Guarantee received by it.
4.13 Counter indemnity from the Borrowers
4.13.1 Each Borrower shall:
(a) indemnify and keep indemnified the Issuing Bank and each Bank
(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, 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 under or by reason of each such Bank Guarantee
and each Bank Indemnity insofar as it relates thereto.
4.13.2 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.
4.13.3 The liability of any Borrower under this Clause 4.13 (Counter
indemnity from the Borrowers) 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.
4.13.4 The Borrower Indemnities shall constitute and be a continuing
security to the Issuing Bank and the Banks 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.
4.13.5 The Issuing Bank may claim under any Borrower Indemnity or under
any Bank Indemnity in such order as the Issuing Bank shall think
fit.
4.14 Counter indemnity from the Banks
4.14.1 Each Bank 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.
4.14.2 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 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.
4.14.3 The liability of any Bank under this Clause 4.14 (Counter indemnity
from the Banks) 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.
4.14.4 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.
4.14.5 The Issuing Bank may claim under any Bank Indemnity or under any
Borrower Indemnity in such order as the Issuing Bank shall think
fit.
4.14.6 For the avoidance of doubt, each Bank Indemnity shall extend to any
interest expressed to be due from a Borrower pursuant to Clause
4.15 (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.
4.15 Interest on payments
Each Borrower shall pay to the Facility Agent for the account of the
Issuing Bank or the account of the Banks, 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 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 4.14 (Counter indemnity for 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.
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 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 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 Neste and the Banks by 11.00 a.m. on the
same day. In this event, Neste and the 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 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 (Exchange Rate Movements), 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) on terms satisfactory to the Facility
Agent acting reasonably.
5.5.5 Except as expressly permitted in this Clause 5.5 (Exchange Rate
Movements), 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:
(a) the Margin;
(b) LIBOR; and
(c) the Additional Cost Rate.
6.2 Margin ratchet
6.2.1 In respect of each Financial Year of Neste 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 (Margin
Ratchet), provided that the Margin 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 (Margin Ratchet), "Relevant Financial Year"
means, in relation to a Financial Year of Neste, the immediately
preceding Financial Year of Neste.
6.2.3 Subject to the other provisions of this Clause 6.2, in respect of a
Financial Year of Neste 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 (Margin
Ratchet), in respect of a Financial Year of Neste 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 (Margin
Ratchet), in respect of a Financial Year of Neste 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 Neste, for the purpose of this
Clause 6.2 (Margin Ratchet), 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 Neste does not deliver the relevant
Management Accounts to the Facility Agent in accordance with the
terms of sub-clause (a)(b) 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 (a)(b) of Clause 12.2 (Information undertakings)
(other than where such non-delivery is beyond the control of Neste)
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 Neste, 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 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 (Margin Ratchet),
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
Neste, 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 Neste 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, may allow) as selected by the relevant Borrower
in accordance with this Clause 6.3 (Interest Periods) 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 Neste 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.
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 (Interest), 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, Neste 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 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 (Default Interest) 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:
(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 Neste 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
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.
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 (Repayment of
Term A Loan) 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 (Repayment of
Term B Loan) 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
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
Bidco 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 Neste shall procure that the Net Available Proceeds of any Disposal
(other than those set out in sub-clauses (i) to (x) (inclusive),
(xiv) and (xv) of Clause 12.4(b) (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 (viii),
(xi), (xiii) and (xvi) of the said Clause 12.4(b) may be applied as
follows:
(i) 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;
(ii) 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
(iii) 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 Neste 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 Neste or such other
steps to make the Net Cash Proceeds available to Neste as the
Majority Banks may reasonably require.
7.7 Mandatory prepayment of Surplus Cash
Neste 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 Neste, 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
Neste 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, Neste 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 Neste 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 Neste, 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, Neste shall not be required to make
the prepayment under sub-clause 7.9.1 where the Vendor Payment is
applied within 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 Neste 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 (Repayment,
Prepayment and Cancellation), 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
(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 Neste 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 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 Neste 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 Facility Agent shall promptly notify the
Banks 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 Neste may not cancel all or part of the Term Loan Facilities or the
Revolving Credit Facility except as expressly provided in this
Agreement.
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 Neste; and
(b) (i) the Commitment of that Bank shall be cancelled
immediately; and
(ii) the Borrowers shall:
(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 Costs):
"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;
(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 (Increased Costs):
(i) 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);
(ii) 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;
(iii) 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
(iv) 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 (Increased Costs), then, without prejudice to that
obligation and so long as the circumstances giving rise to the
relevant Increased Cost are continuing and subject to Neste 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 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 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
(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 Neste 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 Neste
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 Neste 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 Neste 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 Neste
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 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 Neste 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).
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:
(a) promptly upon becoming aware of those circumstances and their
results, notify the Facility Agent and Neste; and
(b) in consultation with the Facility Agent and Neste, 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 Neste 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 Neste) in a
manner which will avoid the circumstances in question and on terms
acceptable to the Facility Agent, Neste 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.
(c) Nothing in this Clause 8.4 (Mitigation) 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 (Changes in Circumstances) 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
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 (Distribution),
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:
(a) 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;
(b) 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
(c) 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.
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 Clauses 9.7.1(b) to (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 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 (Grossing-up), 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 may
determine as being necessary to restore its after-tax position
to that which it would have been had no adjustment under this
Clause 9.9.4 been made. Any sums payable by a Borrower to a
Bank under this 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 Neste 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
Neste 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 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 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 14.2.
10.4 Release of security on Disposals
In respect of any Disposal made by a Group Company which falls within
paragraphs (i) to (xvi) inclusive of sub-clause 12.4(b), 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 Neste,
from the Security Documents, the assets which are the subject of that
Disposal but, in relation to a Disposal which falls within (ii), 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.
11. REPRESENTATIONS AND WARRANTIES
11.1 Representations and warranties
Neste represents and warrants to each Finance Party that:
(a) 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;
(b) 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;
(c) Binding obligations: subject to the Reservations, the obligations
of each Group Company under the Transaction Documents constitute
its legal, valid, binding and enforceable obligations;
(d) Contraventions: the execution, delivery and performance by each
Group Company of the Transaction Documents does not:
(i) 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;
(ii) 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
(iii) contravene or conflict with the provisions of its
constitutional documents;
(e) 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;
(f) 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;
(g) 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
Neste'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;
(h) Accounts:
(i) each of the latest Accounts of each Material Company required
to be delivered under sub-clause 12.2(a) of Clause 12.2
(Information Undertaking) 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
(ii) each of the latest set of Management Accounts required to be
delivered under sub-clause 12.2(b) of Clause 12.2
(Information Undertaking) shows with reasonable accuracy the
financial position of the Group during the period to which it
relates;
(i) Encumbrances: no Encumbrance other than a Permitted Encumbrance
exists over all or any part of the assets of any Group Company;
(j) 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);
(k) 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:
(i) 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;
(ii) for the performance and discharge of the obligations of each
Group Company under the Financing Documents to which it is a
party; and
(iii) in connection with the execution, delivery, validity,
enforceability or admissibility in evidence of the Financing
Documents,
are in full force and effect;
(l) Taxes: to the best of Neste'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;
(m) Information Package: to the best of Neste's information, knowledge
and belief to so far as it relates to Neste and its Subsidiaries
and the chemicals business of Dyno and its Subsidiaries:
(i) 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
(ii) 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;
(n) Accounting reference date: the accounting reference date of each
Group Company is 31st December;
(o) Corporate structure: on the Unconditional Date:
(i) the details of the Group set out in Part I of Schedule 4
(Charging Group Companies) are accurate and complete in all
respects; and
(ii) Neste has no Subsidiaries other than those companies,
relevant details of which are set out in Schedule 4 (The
Group);
(p) Disclosures: there is no disclosure made in the Disclosure Letter
or any other disclosure to the Neste Acquisition Agreement, the
Investment Agreement or the Neste 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;
(q) Bidco: prior to the date of this Agreement, Bidco 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;
(r) Intellectual Property Rights: save as disclosed to the Facility
Agent prior to the date of this Agreement:
(i) 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;
(ii) 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;
(iii) 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
(s) Environmental: save as disclosed in the Environmental Reports, to
the best of Neste'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 Neste'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;
(t) Offer: the making of the Offer and the acquisition by Bidco 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
(u) 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:
(a) each of the said representations and warranties shall be deemed to
be repeated on the first Drawdown Date; and
(b) each of the said representations and warranties (other than those
made under Clauses (e), (f), (g), and (i) to (u) 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
12.1 Offer Related Undertakings
Neste undertakes to procure that it and Bidco shall unless the Facility
Agent (acting on the instructions of the Majority Banks) otherwise agrees:
(a) 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;
(b) 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;
(c) 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
(d) No waiver or amendment: not:
(i) waive, revise, vary or amend any material terms of, or
conditions to, the Offer, including any condition relating to
the level of acceptances; nor
(ii) 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
Neste undertakes that during the Security Period it shall, unless the
Facility Agent (acting on the instructions of the Majority Banks)
otherwise agrees:
(a) 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 Neste and each Material
Company;
(b) 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 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 Neste 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:
(i) a statement of profit and loss;
(ii) a balance sheet; and
(iii) 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;
(c) Operating Budgets:
(i) 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
(ii) 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 Neste;
(d) 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 businesses, assets, financial
condition, ownership or prospects as the Facility Agent may
reasonably require;
(e) 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 Neste certifying that in relation to the 3 month
period ending on each such Quarter Date all the undertakings on the
part of Neste under this Agreement are for the time being complied
with and including calculations relating to the financial
undertakings set out in Clause 12.5.1 of Clause 12.5 (Financial
Undertakings). (For the purpose of this sub-clause 12.2(e), 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 Neste, Neste 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 Neste shall include in that certificate
relevant details of all those breaches);
(f) IAS: ensure that all Accounts and other financial information
submitted to the Facility Agent have been prepared in accordance
with IAS; and
(g) Default, litigation, etc: promptly, upon becoming aware of the
same, notify the Facility Agent of:
(i) any Default or Potential Default;
(ii) any litigation, arbitration or administrative proceeding
commenced against any Group Company involving a potential
liability of any Group Company exceeding Euro 1,000,000;
(iii) any Encumbrance (other than a Permitted Encumbrance)
attaching to any of the assets of any Group Company; and
(iv) 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
Neste 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:
(a) 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 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;
(b) 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;
(c) 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:
(i) 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
(ii) to enable it to perform its obligations under, or for the
validity, enforceability or admissibility in evidence of, any
Financing Document;
(d) 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 Neste 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;
(e) 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;
(f) 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;
(g) 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;
(h) Hedging: within 60 days of the date of the Agreement, procure that
Neste enters into such interest rate protection agreements with one
or more Banks in 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;
(i) 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):
(i) that Material Company has executed a Guarantee;
(ii) a Group Company has executed a Share Charge in respect of the
entire issued share capital of that Material Company; and
(iii) 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;
(j) Compliance with Environmental Law: without prejudice to sub-clause
(c), 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;
(k) 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;
(l) 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;
(m) Bidco, Neste and Neste Holdcos: procure that none of Bidco, Neste
or the Neste Holdcos have creditors or assets and undertakes any
activity (other than as contemplated by the Transaction Documents);
(n) Protection of rights under the Neste Acquisition Agreement: take
all reasonable and practical steps to preserve and enforce its
rights arising under the Neste Acquisition Agreement;
(o) Disposals to be made: in respect of Neste only, procure that:
(i) within 6 months of the date of this Agreement, the three
companies through which Dyno's speciality polymers operations
are sold or liquidated; and
(ii) 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;
(p) Neste Resins B.V.: use its reasonable endeavours to promptly obtain
an approval from the works council of Neste Resins B.V. for the
execution by Neste Resins 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 Neste
Resins 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 Schedule 2, Part
1, paragraph (c) 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; and
(q) Property Charges: within 14 days after the date of this Agreement,
procure
(i) the delivery by the US counsel of Neste Resins Corporation
and 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 Schedule 2, Part 2, paragraphs
2(e)(i) and (i) together with any such further information or
searches in respect of those properties as the Facility Agent
may reasonably require; and
(ii) 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 Schedule 2, Part 2,
paragraph 1. 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 Clause 12.3(q) and shall pay all
costs, fees and premiums therefor and deliver to the Facility
Agent such additional documentation (including without
limitation, UCC-1 financing statements and environmental
indemnity agreements) as may be required by the Facility
Agent (acting reasonably).
12.4 Negative undertakings
Neste 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:
(a) Negative Pledge: create or permit to subsist any Encumbrance over
any of its assets other than Permitted Encumbrances;
(b) Disposal of assets: make a Disposal other than:
(i) in the ordinary course of its trading activities; or
(ii) 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
(iii) a Disposal of an asset which is obsolete for the purpose for
which such an asset is normally utilised; or
(iv) a Disposal to a Charging Group Company; or
(v) a Disposal by a Group Company which is not a Charging Group
Company to another Group Company; or
(vi) 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
(vii) 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
(viii) 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 or, are paid to Issueco to be
applied in prepayment of the Issueco Bridging Loan in
accordance with the proviso to Clause 7.6.1, or are 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 Neste 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
(ix) any Disposal which constitutes a Permitted Encumbrance; or
(x) a Disposal of the PVC Rovin plant at Porvoo, Finland owned
by Neste (as referred to in the Neste Acquisition
Agreement); or
(xi) a Disposal of the formaldehyde and resin plant at Kitee,
Finland owned by Dynoresins Oy; or
(xii) a Disposal pursuant to the Dyno Explosives Sale Agreement,
the US Explosives Sale Agreement or the Oxo Sale Agreement;
or
(xiii) a Disposal of the Paper Chemicals Business pursuant to the
Paper Chemicals Business Sale Agreement; or
(xiv) a Disposal of the Captive Insurance Company where the
Captive Bridging Loan is discharged in full; or
(xv) a Disposal of the Investcos or the Groups interest in
Polimoon in accordance with the PWC Dyno Structuring
Memorandum; or
(xvi) 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 (i) to (xv) of this
sub-clause (b) in any Financial Year of Neste 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);
(c) 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;
(d) Mergers: in relation to the Material Companies only, enter into any
amalgamation, demerger, merger or reconstruction (other than (a) a
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;
(e) 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;
(f) Loans: make any loans or grant any credit to or for the benefit of
any person, other than:
(i) amounts of credit allowed by the relevant company in the
normal course of its trading activities; or
(ii) loans made by a Group Company to a Charging Group Company; or
(iii) loans made by a Group Company which is not a Charging Group
Company to another such Group Company; or
(iv) 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
(v) loans made to Parentco where the proceeds of the same are
used by Parentco to pay Acquisition Costs; or
(vi) 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;
(g) Indebtedness: incur or permit to subsist any Indebtedness other
than Permitted Indebtedness;
(h) 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 Neste does not exceed Euro
2,000,000 or (2) is an acquisition to which Clause
12.4(b)(viii) refers and is funded from 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.
(i) Payments and dealings with Parentco and Issueco: without prejudice
to the other provisions of this Clause 12.4:
(i) in respect of Neste only, make, pay or declare any dividend
or other distribution in relation to any shares forming part
of its issued share capital;
(ii) 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;
(iii) 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);
(iv) incur or permit to subsist any Indebtedness (other than an
Issueco Loan or as permitted pursuant to paragraph (iii)
above) owed to Parentco, Issueco or any Investco;
(v) pay any fees or commissions to, or for the benefit of,
Parentco, Issueco or any Investco;
(vi) make any Disposal of an asset to or for the benefit of
Parentco, Issueco or any Investco; nor
(vii) enter into any transaction with Parentco, Issueco or any
Investcos other than on arm's length terms,
provided that:
(1) Group Companies may pay amounts to Parentco and Issueco by
way of dividends made by Neste, 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:
(i) fees (including, for the avoidance of doubt, directors'
fees) and expenses of an administrative nature incurred
by Parentco or Issueco;
(ii) a Permitted Senior Subordinated Notes Payment; or
(iii) 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;
(2) 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;
(3) 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 (viii), (xi),
(xiii) and (xvi) of Clause 12.4(b) to Issueco where the same
are applied in prepayment of the Issueco Bridging Loan; nor
(j) Variation of Transaction Documents: permit or effect any
variations, novations or amendments to the Neste Acquisition
Agreement (other than where the effect of the same is not material)
or the Intra-Group Loan Agreements.
12.5 Financial undertakings
12.5.1 Neste 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 December 2000 1.50:1
12 months to 31 March 2001 1.55:1
12 months to 30 June 2001 1.60:1
12 months to 30 September 2001 1.65:1
12 months to 31 December 2001 1.25:1
12 months to 31 March 2002 1.35:1
12 months to 30 June 2002 1.50:1
12 months to 30 September 2002 1.55:1
12 months to 31 December 2002 1.70:1
12 months to 31 March 2003 1.85:1
12 months to 30 June 2003 2.00:1
12 months to 30 September 2003 2.05:1
12 months to 31 December 2003 2.10:1
12 months to 31 March 2004 2.15:1
12 months to 30 June 2004 2.20:1
12 months to 30 September 2004 2.25:1
12 months to 31 December 2004 2.30:1
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 2.60:1
Date 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 December 2000 5.90:1
31 March 2001 6.10:1
30 June 2001 5.90:1
30 September 2001 5.70:1
31 December 2001 6.90:1
31 March 2002 6.90:1
30 June 2002 6.70:1
30 September 2002 6.20:1
31 December 2002 5.45:1
31 March 2003 5.10:1
30 June 2003 4.75:1
30 September 2003 4.55:1
31 December 2003 4.50:1
31 March 2004 4.40:1
30 June 2004 4.30:1
30 September 2004 4.15:1
31 December 2004 4.00:1
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 December 2000 2.60:1
12 months to 31 March 2001 2.70:1
12 months to 30 June 2001 2.80:1
12 months to 30 September 2001 2.90:1
12 months to 31 December 2001 2.20:1
12 months to 31 March 2002 2.45:1
12 months to 30 June 2002 2.85:1
12 months to 30 September 2002 2.90:1
12 months to 31 December 2002 3.15:1
12 months to 31 March 2003 3.50:1
12 months to 30 June 2003 3.60:1
12 months to 30 September 2003 3.70:1
12 months to 31 December 2003 3.80:1
12 months to 31 March 2004 3.90:1
12 months to 30 June 2004 4.00:1
12 months to 30 September 2004 4.10:1
12 months to 31 December 2004 4.20:1
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 5.40:1
Quarter Date occurring after 31 December 2006;
(d) Cashflow to Total Funding Costs
the ratio of Cashflow to Total Funding 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 December 2000 1.00:1
12 months to 31 March 2001 1.00:1
12 months to 30 June 2001 1.00:1
12 months to 30 September 2001 1.00:1
12 months to 31 December 2001 0.75:1
12 months to 31 March 2002 0.90:1
12 months to 30 June 2002 0.95:1
12 months to 30 September 2002 1.00:1
12 months to 31 December 2002 0.70:1
12 months to 31 March 2003 0.80:1
12 months to 30 June 2003 0.90:1
12 months to 30 September 2003 1.05:1
12 months to 31 December 2003 1.05:1
12 months to 31 March 2004 1.05:1
12 months to 30 June 2004 1.05:1
12 months to 30 September 2004 1.05:1
12 months to 31 December 2004 1.05:1
12 months to 31 March 2005 1.05:1
12 months to 30 June 2005 1.05:1
12 months to 30 September 2005 1.10:1
Each period of 12 months ending on a 1.10:1
Quarter Date occurring after 30 September 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):
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.
12.5.2
(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, Neste 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 12.5 (Financial
Undertakings) need to be amended as a result of any such
change, determination or requirement, Neste 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 12.5 (Financial
Undertakings) (but which are not materially more onerous).
(c) If Neste and the Facility Agent cannot agree such amended
financial undertakings within 30 days of that notice, Neste
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 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 Neste.
12.5.3 The calculation of ratios and other amounts under this Clause 12.5
(Financial Undertakings) shall be made by reference to the latest
Accounts, Management Accounts and other financial information of
the Group Companies for the Financial Year of Neste, or other
period in relation to which the calculation falls to be made.
12.6 Applicability of Undertakings and Defaults to Dyno and its Subsidiaries
12.6.1 Subject to, and without prejudice to, Clause 12.6.2, until the
Unconditional date, Bidco shall be under no obligation to procure
that Dyno and its Subsidiaries comply or have complied with the
undertakings set out in Clauses 12.3 and 12.4.
12.6.2 Until the date falling 60 days after the Unconditional Date:
(a) Neste shall be under no obligation under Clauses 12.3(a),
(j), (k) and (l) in respect of Dyno and its Subsidiaries;
(b) the representations at Clauses 11.1(e), (f), (g), (l) and (s)
will not apply to Dyno and its Subsidiaries; and
(c) a Default or a Potential Default shall not occur under any of
Clauses 13.1(h) - (l) inclusive in relation to Dyno and its
Subsidiaries.
12.6.3 Until the date falling 30 days after the Unconditional Date, a
Default or a Potential Default shall not occur under either of
Clauses 13.1(e) and (f) inclusive in relation to Dyno and its
Subsidiaries and, until the date falling 60 days after the
Unconditional Date a Default or a Potential Default shall not occur
under Clause 13.1(e) in relation to the Existing Dyno Bonds.
13. DEFAULT
13.1 Default
Each of the following shall be a Default:
(a) 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
fault of that Borrower and such amount is paid within 3 Business
Days after its due date for payment; or
(b) Other defaults: any Charging Group Company breaches any of its
obligations under any Financing Document (other than the
obligations referred to in sub-clause (a)) 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
Neste; or
(c) 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
(d) 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
(e) 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:
(i) is not paid when due or within any originally applicable
grace period; or
(ii) 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
(f) 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
(g) 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
(h) Inability to pay debts: any Material Company:
(i) suspends generally payment of its debts or is unable or
admits its inability to pay its debts as they fall due; or
(ii) 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
(iii) proposes or enters into any restructuring (yrityssaneeraus),
composition or other arrangement for the benefit of its
creditors generally or any class of creditors; or
(i) Insolvency proceedings: any person takes any action or any legal
proceedings are started or other steps taken (including the
presentation of a petition) for:
(i) any Material Company to be adjudicated or found insolvent; or
(ii) 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
(iii) the appointment of a trustee, receiver, administrative
receiver or similar insolvency officer in respect of any
Group Company or any of its assets; or
(j) Adjudication or appointment: any adjudication, order or appointment
is made under or in relation to any of the proceedings referred to
in sub-clause (i); or
(k) Administration order: an application is made to the court for an
administration order under the Insolvency ▇▇▇ ▇▇▇▇ with respect to
any Material Company; or
(l) 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 (g), (h), (i), (j) or (k); or
(m) 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
(n) Material adverse change: any event or series of events occur which
has or could reasonably be expected to have a Material Adverse
Effect; or
(o) Redemption of shares by Neste: without the prior written consent of
the Facility Agent (acting on the instructions of the Majority
Banks), Neste makes any redemption of any of its shares, purchases
any of its shares or otherwise reduces its issued share capital; or
(p) Qualification of Accounts: the Auditors issue any qualification in
respect of the Accounts of Neste or Dyno for any of its Financial
Years where the circumstances to which such qualification relates
have, or could reasonably be expected to have, a Material Adverse
Effect.
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 Neste 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 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:
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 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 each 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 connection with the
Financing Documents together with any other incidental rights,
powers and discretions. The Facility Agent, the Issuing Bank and
each Bank irrevocably appoints the Security Trustee to act as its
agent and trustee in connection with the Security Documents.
16.1.2 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.
16.1.3 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).
16.1.4 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 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.
16.1.5 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:
(a) 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
(b) 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 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.
16.8 Information
16.8.1 Each Agent shall provide the Banks and the Issuing Bank with 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 the 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 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 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 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 Neste
and each Bank. Upon receipt of a notice of resignation Neste 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 Neste 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 Neste,
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
Neste, 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, Neste 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.
16.13 Change of office
An Agent may at any time in its sole discretion by notice to the other
Agent, Neste 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:
(i) be bound or concerned to examine or enquire into the title
of any person; nor
(ii) 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
(iii) 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 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 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 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 Clause 16.14.4.
16.15 Distribution of proceeds of enforcement
16.15.1 In this Clause 16.15 (Distribution of proceeds of enforcement):
"Bank Outstandings" means, in respect of a Bank the aggregate of:
(a) all amounts actually and contingently due to it under this
Agreement; and
(b) all amounts actually and contingently due to it in respect
of the Interest Rate Protection Agreements.
"Total Outstandings" means the aggregate amount of all Bank
Outstandings.
16.15.2 Following the enforcement of all or any of the Security Documents,
any proceeds of enforcement received by the Security Trustee under
the Intercreditor Agreement shall be applied as follows. The
Security Trustee shall be entitled to deduct from the proceeds of
such enforcement any costs, charges and expenses incurred by it 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 an amount equal to the remaining
proceeds multiplied by:
Bank Outstandings of such Bank
Total Outstandings
where 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.
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 (Distribution of proceeds of enforcement), 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, 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
Clause 17.14.2.
16.16 Issuing Bank
16.16.1 The Issuing Bank may, with the prior consent of Neste and the
Facility Agent be replaced as Issuing Bank by another Bank.
16.16.2 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.
16.17 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.
17. FEES AND EXPENSES
17.1 Expenses
Neste shall on demand pay all expenses incurred (including legal,
valuation and accounting fees but, in relation to sub-clauses 17.1 Part
I(a) and (b), only to the extent the same are reasonable in amount), and
any VAT on those expenses:
(a) 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;
(b) by the Facility Agent or the Lead Arranger in respect of the
syndication of the Facilities;
(c) 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
(d) 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
Neste 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 Neste 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
17.3.1 Neste shall pay a commitment fee in Euro to the Facility Agent for
the account of the Banks at the rate of 0.50 per cent. per annum on
the unutilised amount of each of the Term Loan Facilities. The
commitment fee shall be calculated on a day-to-day basis and a 360
day year in respect of the Term Commitment Period and shall be
payable on the first Drawdown Date of the Term Loan Facilities, 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 Term
Commitment Period or on any earlier date on which each of the Total
Term A Loan Commitments, the Total Term B Loan Commitments and the
Total Term C Loan Commitments equal zero.
17.3.2 Neste shall pay a commitment fee in Euro to the Facility Agent for
the account of the Banks at the rate of 0.50 per cent. per annum on
the Available Revolving Credit Facility. The commitment fee shall
be calculated on a 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 Neste. 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 Neste 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 sub-clause 18.2 (All Banks), any term of any Financing
Document may be amended or waived with the written agreement of
Neste 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.
18.1.2 The Facility Agent shall promptly notify Neste 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 Neste and each Bank.
18.2 All Banks
An amendment or waiver which relates to:
(a) the definition of "Majority Banks" in Clause 1.1 (Definitions);
(b) 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;
(c) an increase in a Bank's Commitment;
(d) 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);
(e) a term of any Financing Document which expressly requires the
consent of each Bank; or
(f) Clause 6 (Interest) (other than an increase in the Margin which may
be effected with the prior consent of the Majority Banks) 7
(Repayment, Prepayment and Cancellation), 15 (Pro Rata Sharing) or
17.3 (Commitment Fee) or this Clause 18 (Amendments and Waivers)
(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.
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:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
18.5 Euro conventions
The Facility Agent may (after consultation with the Banks) notify Neste
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 notwithstanding
Clause 18.1 (Majority Banks), 18.2 (All Banks) or 18.3 (Issuing Bank),
this Agreement shall be deemed to be amended accordingly.
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:
(a) the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
(b) 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 Neste, Bidco, 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 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 Neste, Bidco, the Facility Agent, the
Security Trustee and the Issuing Bank are:
(a) Neste:
Dynea Chemicals Oy
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Attention: Kirsi-▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: 00 358 10 585 2094
(b) Bidco:
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Finland
Attention: Kirsi-▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: 00 358 10 585 2094
(c) the Facility Agent:
Citibank International plc
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: 0207 500 4482
(d) the Security Trustee:
Citibank International plc
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: 0207 500 4482
(e) the Issuing Bank:
Citibank, N.A.
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: 020 7500 4482
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 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 (Transfers by Banks), 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
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 Neste 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:
(a) 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
(b) be made with the prior consent of Neste (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 (Assignments and
Transfers) 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 Neste, 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.
22. INDEMNITIES
22.1 Breakage costs indemnity
Neste 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:
(a) 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);
(b) the operation of Clause 5.4 (No Alternative Currency);
(c) the failure of a Borrower to make payment on the due date of any
sum due under this Agreement;
(d) the occurrence of any Default or the operation of Clause 13.2
(Acceleration, etc) ); or
(e) (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.
22.3 General
22.3.1 Each indemnity in this Clause 22 (Indemnities) 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.
SCHEDULE 1
THE BANKS
THE BANKS
Bank and Lending Address for Notices Term A Loan Term B Loan Term C Loan Revolving Credit
Office Commitment Commitment Commitment Commitment
Citibank, N.A. Citibank, N.A. Euro 189,841,693 Euro 94,920,847 Euro 94,786,533 Euro 100,000,000
336 Strand UK Loans Processing ▇▇▇▇
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Attn: UK Loans Processing Unit
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
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 (Charging Group
Companies) (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);
(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:
(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 Neste 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 Neste 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 Neste of
the same amount and that Neste 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;
(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 Neste;
(k) legal opinions from each of:
(i) ▇▇▇▇▇▇▇▇ Chance as to matters of English law;
(ii) Luostarinen, Mettala & Sorri as to matters of Finnish law;
(iii) ▇▇▇▇▇▇▇, Underland & 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 Neste certifying that:
(i) the Offer is unconditional in all respects;
(ii) Bidco 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 Neste, 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:
(i) Neste;
(ii) Bidco;
(iii) US Holdco;
(iv) US Neste;
(v) Austrian Holdco;
(vi) Austrian Neste;
(vii) Neste Polyester Inc.;
(viii) 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) Neste;
(ii) US Holdco
(iii) US Neste;
(iv) Neste Resins Corporation;
(v) 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 Neste;
(ii) Bidco over the entire issued share capital of Dyno;
(iii) Neste over the entire issued share capital of each of Neste
Resins Oy, Neste Resins B.V., French Holdco, US Holdco,
Canadian Neste, Austrian Holdco and Bidco;
(iv) Austrian Holdco over the entire issued share capital of
Austrian Neste;
(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
Neste Resins Corporation and 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.).
Part II
Conditions Subsequent
The conditions subsequent referred to in Clause 10.2 (Conditions Subsequent) are
as follows (and for the purposes of Clause 10.2 (Conditions Subsequent) 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 (Conditions Subsequent) (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
(iii) Neste Polyester S.A.;
(iv) Dyno Overlays Inc.;
(v) 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) 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) 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 Dynochem Ireland
Ltd.;
(iv) Dyno Industries UK Limited over the entire issued share
capital of Dynochem UK Ltd.;
(v) Dyno and Dyno Nederland BV over the entire issued share
capital of Dyno Chemie NV (Belgium);
(vi) Dyno over the entire issued capital of Dyno Nederland BV;
(vii) Dyno over the entire issued share capital of Dynoresins Oy;
and
(viii) Dyno over the entire issued share capital of Dyno Industries
Pte. Ltd (Singapore).
(e) a Property Charge duly executed by each of:
(i) Neste Resins Corporation in respect of its sites at (1) ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, (2) ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇, (3) ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (4) ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ and (5) ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇; and
(ii) 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 & Sorri as to matters of Finnish law;
(iii) ▇▇▇▇▇▇▇, Underland & 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.
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 Neste 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
SCHEDULE 3
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 Neste 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 *)
SCHEDULE 4
THE GROUP
Part I
CHARGING GROUP COMPANIES
Name Jurisdiction of incorporation
Neste Finland
Bidco Norway
Dynea ASA Norway
Austrian Holdco Austria
French Holdco France
US Holdco USA
Austrian Neste Austria
Dynea Canada Inc. Canada
US Neste USA
Dynea USA Inc. USA
Neste Polyester Inc. USA
Dynea Finland Oy Finland
Dynea B.V. The Netherlands
Dynochem Ireland Ltd. Ireland
Dynea Overlays Inc. USA
Dyno Industries USA Inc. USA
Dynea Overlays Oy Finland
Dyno Nederland BV The Netherlands
Dynea UK Ltd. England and Wales
Dynea Singapore Pte. Ltd. Singapore
Dynea NV Belgium
Part II
OTHER GROUP COMPANIES
Name Jurisdiction of incorporation
German Neste Germany
Neste Chemicals Iberica S.L. Spain
Neste Chemicals Scandinavia AB Sweden
PT Dyno MUGI Indonesia Indonesia
Dyno Oilfield Chemicals Australia Pty Ltd. Australia
Krems Knapsack Phosporprodukte GmbH Austria
Neste Kemi Danmark A/S Denmark
Neste Chemicals Italia S.R.L. Italy
Neste Polyester Oy Finland
Krems Chemie Magyar Gyanta KFT. Hungary
KVS Kunststoff Verbund Systeme Germany
Dynea Mexico S.A. de C.V. Mexico
Nordalim AS Norway
Nordcoll AS Norway
Neste Kjemi Norge A/S Norway
Dynea Polska SP Z.O.O. Poland
Neste Chemicals Eesti Ou Estonia
Nordkem B.V. The Netherlands
PT Dyno Indria (Indonesia) Indonesia
ABB Krems Service GmbH Austria
A/S ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Dyno Invest Norway
ABB Krems Service GmbH & Co KG Austria
Beijing Dynea Chemicals Industry Co Ltd China
DOFC Asia Pacific Pte. Ltd (Singapore) Singapore
DOFC Australia Pty. Ltd Australia
DOFC Indonesia Indonesia
DOFC ME FZE (United Arab Emirates) UAE
DOFC UK Ltd England and Wales
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
Dyno TTI Chemical Co. Ltd (Thailand) Thailand
Dynea NZ Ltd New Zealand
Dynochem Sch. Bhd. (Malaysia) Malaysia
Dynochem Vietnam Vietnam
Gluestick AB Sweden
Industries Quimicas Dyno Do Brasil Brazil
Krems Chemie Magyar Gyanta KFT Hungary
▇▇▇▇▇▇▇ Norsk ▇▇▇ AS Norway
KVS Kunstsoff Verbund Systeme Germany
Duetschland GmbH
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).
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.
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) Salomon Brothers
International Limited as lead arranger in respect of a term A loan facility, a
term B loan facility, a term C 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 22.4
(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 22.4 (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;
(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 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.
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]
By: _________________________________________
(Duly authorised)
The Facility Agent on behalf of itself and all other parties to the Credit
Agreement
By: _________________________________________
(Duly authorised)
Dated:
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:
(A) 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) Salomon Brothers International Limited as lead arranger.
(B) The New Party wishes to accede to the Credit Agreement as a Borrower.
(C) 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
(c) represents and warrants to the Agents, the Issuing Bank and the Banks
in the terms of sub-clauses 12.1.1 to 12.1.7 of Clause 11.1
(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.
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.
SCHEDULE 8
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
Neste
SIGNED by ▇. ▇▇▇▇▇▇▇▇ )
for and on behalf of ) ▇. ▇▇▇▇▇▇▇▇
NESTE CHEMICALS OY )
Bidco
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
SIGNED by Y. PERREVE )
for and on behalf of ) Y. PERREVE
CITIBANK, N.A. )
