XXXXXXXX
CHANCE LIMITED LIABILITY PARTNERSHIP
Execution copy
AMENDMENT AGREEMENT
DATED 2 JULY 2004
SEA CONTAINERS BRITISH ISLES LIMITED
AS BORROWER
SEA CONTAINERS LTD.
AND OTHERS
AS GUARANTORS
WITH
CITIBANK INTERNATIONAL PLC
ACTING AS AGENT
---------------------------------------------------------------------------
RELATING TO A
REVOLVING FACILITY AGREEMENT
DATED 10 JUNE 2003
AS AMENDED AND RESTATED ON 22 DECEMBER 2003
---------------------------------------------------------------------------
THIS AGREEMENT is dated 2 July 2004 and made between:
(1) SEA CONTAINERS BRITISH ISLES LIMITED (the "Borrower");
(2) THE GUARANTORS (as defined in the Original Facility Agreement);
(3) CITIGROUP GLOBAL MARKETS LIMITED and THE GOVERNOR AND COMPANY OF THE
BANK OF SCOTLAND (the "Mandated Lead Arrangers");
(4) THE ORIGINAL LENDERS (as defined in the Original Facility Agreement);
(5) CITIBANK INTERNATIONAL PLC as agent of the other Finance Parties (the
"Agent"); and
(6) CITICORP TRUSTEE COMPANY LIMITED as security trustee for the Secured
Parties (the "Trustee").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Citigroup DTC Account" means the account that Citigroup holds with DTC.
"DTC" means Depository Trust Company.
"Dematerialisation Documents" means the OEH Share Certificates and the
Undertaking.
"Dematerialisation Process" means the procedure effecting the transfer
of Secured Shares from certificated form to electronic form in
accordance with Clause 5.2 (Dematerialisation Process).
"Effective Date" means (i) 23 July 2004 provided that on or prior to
that date the Agent confirms to the Lenders and the Borrower that it has
received each of the documents listed in Schedule 1 (Conditions
Precedent) in a form and substance satisfactory to the Agent or (ii) any
later date on which the Agent confirms to the Lenders and the Borrower
that it has received each of the documents listed in Schedule 1
(Conditions Precedent) in a form and substance satisfactory to the
Agent.
"Existing Facility" means the revolving loan facility made available
under the Original Facility Agreement.
"Existing Loan" means the principal amount outstanding under the
Existing Facility.
"OEH Share Certificates" means the share certificates evidencing the
Secured Shares.
"OEH Transfer Agent" means Equiserve Inc., Mail Stop 45-02-62, 000 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, c/o Xxxxx Xxxxxxxxxxx.
"Original Facility Agreement" means the Facility Agreement dated 10 June
2003 as amended and restated on 22 December 2003 entered into by Sea
Containers British Isles Limited, Citigroup Global Markets Limited,
Fortis Bank SA/NV and the Governor and Company of the Bank of Scotland
as arrangers and with Citibank International PLC as agent and Citicorp
Trustee Company Limited as trustee, as amended from time to time prior
to the date of this Agreement.
"Restated Agreement" means the Original Facility Agreement, as amended
by this Agreement, the terms of which are set out in Schedule 2
(Restated Agreement).
"SETG" means the Special Equity Transaction Group, an internal
department of Citigroup.
"SETG Account" means the account with SETG (with such number as notified
by the Agent to the Borrower) to which the Secured Shares are credited.
"Undertaking" means irrevocable written instructions addressed from the
Parent to the OEH Transfer Agent, in form and substance satisfactory to
the Agent, to deliver Secured Shares into Citigroup's general account at
DTC.
1.2 Incorporation of Defined Terms
1.2.1 Unless otherwise defined herein, a term defined in the Restated
Agreement shall have the same meaning in this Agreement.
1.2.2 The principles of construction set out in Clauses 1.2 and 1.3 of
the Restated Agreement shall have effect as if set out in this
Agreement.
1.3 Clauses
1.3.1 In this Agreement any reference to a "Clause" or "Schedule" is,
unless the context otherwise requires, a reference to a Clause
or Schedule of this Agreement.
1.3.2 Clause and Schedule headings are for ease of reference only.
1.4 Third party rights
1.4.1 Unless expressly provided to the contrary in a Finance Document,
a person who is not a Party has no right under the Contracts
(Rights of Third Parties) Act 1999 (the "Third Parties Act") to
enforce or to enjoy the benefit of any term of this Agreement.
1.4.2 Notwithstanding any term of any Finance Document, the consent of
any person who is not a Party is not required to rescind or vary
this Agreement at any time.
2. RESTATEMENT
With effect from the Effective Date, the Original Facility Agreement
shall be amended and restated so that it shall be read and construed for
all purposes as set out in Schedule 2 (Restated Agreement).
3. release of security and guarantee
On the Effective Date, the Trustee shall (and is authorised by the
Finance Parties to) release the pledge over shares granted by Sea
Containers America Inc. in respect of all of its shares in Charleston
Marine Containers Limited and shall to this effect execute a deed of
release substantially in the form of the deed of release attached as
Schedule 3 to this Agreement.
4. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in Clause
19 of the Restated Agreement as if each reference in those
representations to "this Agreement" or "the Finance Documents" includes
a reference to (a) this Agreement and (b) the Restated Agreement.
5. Dematerialisation
5.1 Dematerialisation Commencement
At any time after the Effective Date, the Parent may commence a
Dematerialisation Process by delivering an executed Undertaking to the
Agent.
5.2 Dematerialisation Process
(a) The Agent shall, as soon as reasonably practicable after
receiving an executed Undertaking from the Parent, take all
reasonable steps to deliver the Dematerialisation Documents to
the OEH Transfer Agent with instructions that the OEH Transfer
Agent should:
(i) transfer the Secured Shares from certificated form into
electronic form; and then
(ii) credit the Secured Shares to the Citigroup DTC Account.
(b) The Agent shall, as soon as reasonably practicable after the
Secured Shares have been credited to the Citigroup DTC Account,
take all reasonable steps to transfer the Secured Shares from
the Citigroup DTC Account to the SETG Account.
6. CONTINUITY AND FURTHER ASSURANCE
6.1 Continuing obligations
The provisions of the Finance Documents shall continue in full force and
effect, save as provided in this Agreement.
6.2 Further assurance
Each of the Obligors shall, at the request of the Agent and at its own
expense, do all such acts and things necessary or desirable to give
effect to the amendments effected or to be effected pursuant to this
Agreement.
7. FEES, COSTS AND EXPENSES
7.1 Transaction expenses
The Parent shall promptly on demand pay the Agent the amount of all
costs and expenses (including legal fees) reasonably incurred by any of
them in connection with the negotiation, preparation, printing and
execution of this Agreement and any other documents referred to in this
Agreement.
7.2 Enforcement costs
The Parent shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement
of, or the preservation of any rights under this Agreement.
7.3 Stamp taxes
The Parent shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of this Agreement.
8. MISCELLANEOUS
8.1 Incorporation of terms
The provisions of clause 33 (Partial Invalidity), clause 34 (Remedies
and waivers), clause 37 (Governing Law) and clause 38 (Enforcement) of
the Original Facility Agreement shall be incorporated into this
Agreement as if set out in full in this Agreement and as if references
in those clauses to "this Agreement" or "the Finance Documents" are
references to this Agreement.
8.2
Designation as Finance Document
The Parent and the Agent designate this Agreement as a Finance Document
by execution of this Agreement for the purposes of the definition of
Finance Document in the Original Facility Agreement.
8.3 Counterparts
This Agreement may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
CONDITIONS PRECEDENT
1. Obligors: Corporate Documents
(a) A copy of the constitutional documents of each Obligor.
(b) A copy of a good standing certificate (including verification of
tax status) with respect to each US Obligor, issued as of a
recent date by the Secretary of State or other appropriate
official of each US Obligor's jurisdiction of incorporation or
organisation.
(c) A copy of a resolution of the board of directors of each
Obligor:
(i) approving the terms of, and the transactions
contemplated by, the Finance Documents to which it is a
party and resolving that it execute the Finance
Documents to which it is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf;
and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents, powers of
attorneys, deeds and notices (including, if relevant,
any Utilisation Request) to be signed and/or despatched
by it under or in connection with the Finance Documents
to which it is a party.
(d) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (c) above.
(e) A copy of a resolution signed by all the holders of the issued
shares in each Obligor, approving the terms of, and the
transactions contemplated by, the Finance Documents to which the
Obligor is a party and where such Obligor is a corporate, a
resolution from the directors of that company approving such
shareholder resolution and duly appointing a director or other
authorised signatory to sign it.
(f) A certificate of the Parent (signed by a director) confirming
that borrowing or guaranteeing, as appropriate, the Total
Commitments would not cause any borrowing, guaranteeing or
similar limit binding on any Obligor to be exceeded and would
not cause any Obligor to breach any provision of any contract or
agreement entered into by it prior to the date of this
Agreement.
(g) A certificate of an authorised signatory of the relevant
Obligor, certifying that each copy document relating to it
specified in this Schedule 1 is correct, complete and in full
force and effect as at a date no earlier than the date of this
Agreement.
(h) The Group Structure Chart certified by the Parent as being true
at the date of this Agreement.
2. Security Documents
(a) The following Security Documents duly executed by the relevant
Obligors and, if required, the Trustee:
(i) UNITED KINGDOM
(1) Chargor incorporated in Bermuda
(A) Silja Pledge.
(B) Charge over GE Seaco Dividends Account,
Dividends Account and Mandatory
Prepayment Account granted by Sea
Containers Ltd.
(2) Chargor incorporated in UK
(A) Charge over shares granted by Sea
Containers UK Limited in respect of its
shareholding in Sea Containers British
Isles Limited.
(B) Charge over shares granted by Sea
Containers British Isles Limited in
respect of its shareholding in GNER
Holdings Limited.
(C) Charge over shares granted by Sea
Containers British Isles Limited in
respect of its shareholding in Sea
Containers Property Services Limited.
(D) Charge over shares granted by Sea
Containers British Isles Limited in
respect of its shareholding in Sea
Containers Railway Services Limited.
(E) Assignment relating to GNER Limited
dividends by GNER Holdings Limited.
(F) Charge over shares granted by Ferry &
Port Holdings Limited in respect of its
shareholding in Sea Containers Ports
Limited.
(G) Floating Charge granted by Sea
Containers British Isles Limited.
(ii) US
Chargor incorporated in Bermuda
Amendment agreement to the OEH Security Agreement.
(iii) BERMUDA
Chargor incorporated in Bermuda
A Power of Attorney, in form and substance satisfactory
to the Agent, of the Parent in favour of the Agent
permitting the sale of Secured Shares by the Agent on
behalf of the Parent.
(b) All documentation, and/or evidence of all other steps required
to perfect the Security Documents, as set out in the Transaction
Closing Agenda.
3. Legal Opinions
(a) A legal opinion of Xxxxxxxx Chance LLP legal advisors to the
Arranger and Agent in England, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(b) A legal opinion of Xxxxx, Xxxxx & Xxxxxx legal advisers to the
Arranger and the Agent in Bermuda, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(c) A legal opinion of Xxxxxx Xxxxxx Xxxxx & Co legal advisors to
the Arranger and the Agent in Barbados, substantially in the
form distributed to the Original Lenders prior to the signing of
this Agreement.
(d) A legal opinion of Xxxxxxxx Chance US legal advisers to the
Arranger and the Agent in the United States (in relation to New
York law), substantially in the form distributed to the Original
Lenders prior to signing this Agreement.
(e) A legal opinion of Luostarinen Mettala Raikkonen, Finnish
counsel to the Arranger and the Agent in Finland, substantially
in the form distributed to the Original Lenders prior to signing
this Agreement.
4. Other documents and evidence
(a) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable
(if it has notified the Borrower accordingly) in connection with
the entry into and performance of the transactions contemplated
by any Finance Document or for the validity or enforceability of
any Finance Document or of the Transaction Security.
(b) The Original Financial Statements.
(c) Evidence that the fees, costs and expenses then due from the
Borrower pursuant to Clauses 11 (Fees), 16 (Costs and Expenses)
and Clause 12.5 (Stamp Taxes) of the Restated Agreement have
been paid or will be paid by the first Utilisation Date.
(d) The executed Fee Letters.
(e) A subordination agreement replacing the Subordination Agreement.
(f) Evidence that the Market Value of the Secured Shares is at least
US$100,000,000.
(g) Actuarial valuation evidencing pension fund decifit/surplus in
GNER Limited and evidence showing limitation of liability for
any shortfall expiry at the date of the Franchise Expiry Date.
(h) Evidence that the SETG Account has been established.
(i) A duly executed Undertaking in respect of all of the Secured
Shares existing as of the Effective Date.
(j) Evidence that, upon a sale of Secured Shares, the Parent
instructs SETG (i) to direct payment of the OEH Share Proceeds
into the Mandatory Prepayment Account and (ii) that all trades
are to be settled delivery versus payment.
(k) Budget of GNER Holdings Limited evidencing a net cash flow of
US$50,000,000 per annum.
(l) A copy of the Franchise Agreement and Track Access Agreement and
any amendment supplemental or other ancillary document
pertaining to it.
(m) The audited financial statements for GNER Limited for the
financial year ended 31 December 2003 (evidencing the treatment
of/showing the pensions liabilities of GNER Limited).
(n) The Memoranda Update Certificate.
(o) A certificate of a finance officer of each US Obligor stating
that the respective company is Solvent after giving effect to
the initial Loans, the application of the proceeds thereof in
accordance with Clause 3 (Purpose) of the Facility Agreement and
the payment of all estimated legal, accounting and other fees
related to this Agreement and the consummation of the other
transactions contemplated hereby. For purposes of this
certificate, "Solvent" means with respect to such US Obligor on
any date of determination that (a) the fair value of the
property of such person is greater than the total amount of
liabilities (including contingent and unliquidated liabilities)
of such person; (b) the present fair saleable value of the
assets of such person is not less than the amount which will be
required to pay the probable liability of such person on its
debts as they become absolute and mature; (c) such person does
not intend to, and does not believe that it will, incur debts or
liabilities beyond such person's ability to pay as such debts
and liabilities mature; and (d) such person is not engaged in a
business or transaction, and is not about to engage in a
business or transaction, for which such person's property would
constitute unreasonably small capital. In computing the amount
of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in lights of
all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become
an actual and matured liability.
(p) The Transaction Closing Agenda and, to the extent that they are
not otherwise delivered in accordance with Schedule 1 hereof,
the delivery of all items set out therein.
(q) A copy of a term sheet evidencing among others a best efforts
undertaking by Bank of Nova Scotia for the syndication in
connection with an extension of the term of the Container
Facility until 30 September 2006 or later and for an amount of
at least USD100,000,000.
(r) Evidence that the disposal of all of the shares in Folkestone
Properties Limited has occurred.
(s) A copy of the Silja Bank Agreement and related Guarantee granted
by Sea Containers Limited.
SCHEDULE 2
RESTATED AGREEMENT
XXXXXXXX
CHANCE LIMITED LIABILITY PARTNERSHIP
Execution version
US$100,000,000
AMENDED AND RESTATED REVOLVING FACILITY AGREEMENT
dated 10 June 2003
for
SEA CONTAINERS BRITISH ISLES LIMITED
arranged by
CITIGROUP GLOBAL MARKETS LIMITED
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
with
CITIBANK INTERNATIONAL PLC
acting as Agent
and
CITICORP TRUSTEE COMPANY LIMITED
acting as Trustee
---------------------------------------------------------------------------
RELATING TO A
REVOLVING FACILITY AGREEMENT
DATED 10 JUNE 2003
AS AMENDED AND RESTATED ON 22 DECEMBER 2003
---------------------------------------------------------------------------
CONTENTS
Clause Page
1. Definitions And Interpretation..........................................1
2. The Facility...........................................................24
3. Purpose................................................................24
4. Conditions Of Utilisation..............................................25
5. Utilisation............................................................26
6. Repayment Of Loans.....................................................27
7. Extension Of Final Repayment Date......................................27
8. Prepayment And Cancellation............................................27
9. Interest...............................................................33
10. Interest Periods.......................................................34
11. Changes To The Calculation Of Interest.................................34
12. Fees...................................................................35
13. Tax Gross Up And Indemnities...........................................37
14. Increased Costs........................................................42
15. Other Indemnities......................................................43
16. Mitigation By The Lenders..............................................44
17. Costs And Expenses.....................................................44
18. Guarantee And Indemnity................................................46
19. Representations........................................................49
20. Information Undertakings...............................................59
21. Security Cover And Financial Covenants.................................65
22. General Undertakings...................................................68
23. Events Of Default......................................................81
24. Changes To The Parties.................................................87
25. Role Of The Agent And The Mandated Lead Arrangers......................91
26. Role Of Trustee........................................................96
27. Conduct Of Business By The Finance Parties............................102
28. Sharing Among The Finance Parties.....................................102
29. Payment Mechanics.....................................................104
30. Set-Off...............................................................106
31. Application Of Proceeds...............................................106
32. Notices...............................................................108
33. Calculations And Certificates.........................................110
34. Partial Invalidity....................................................110
35. Remedies And Waivers..................................................110
36. Amendments And Waivers................................................110
37. Counterparts..........................................................111
38. Governing Law.........................................................112
39. Enforcement...........................................................112
SCHEDULE 1 THE ORIGINAL PARTIES..............................................113
Part I The Obligors............................................113
Part II The Original Lenders - Other Than UK Non-Bank Lenders...114
Part III The Original Lenders - UK Non-Bank Lenders..............115
SCHEDULE 2 CONDITIONS PRECEDENT.............................................116
SCHEDULE 3 UTILISATION REQUEST..............................................121
SCHEDULE 4 MANDATORY COST FORMULAE..........................................122
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE.....................................125
SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE...................................127
SCHEDULE 7 GROUP STRUCTURE CHART............................................129
SCHEDULE 8 TIMETABLES.......................................................130
SCHEDULE 9 FORM OF ACCESSION LETTER.........................................131
SCHEDULE 10 CONDITIONS PRECEDENT DOCUMENTS TO BE PROVIDED BY ADDITIONAL
GUARANTORS.......................................................132
THIS AGREEMENT is dated 10 June 2003 and is amended and restated on 2 July 2004
and made between:
(1) SEA CONTAINERS BRITISH ISLES LIMITED (the "Borrower");
(2) THE SUBSIDIARIES and other companies of the Group (as defined below)
listed in Part I (The Obligors) of Schedule 1 (The Original Parties) as
guarantors (the "Original Guarantors");
(3) CITIGROUP GLOBAL MARKETS LIMITED and THE GOVERNOR AND COMPANY OF THE
BANK OF SCOTLAND (together, the "Mandated Lead Arrangers" and each, a
"Mandated Lead Arranger");
(4) THE FINANCIAL INSTITUTIONS listed in Part II (The Original Lenders -
other than UK Non-Bank Lenders) and Part III (The Original Lenders - UK
Non-Bank Lenders) of Schedule 1 (The Original Parties) as lenders (the
"Original Lenders");
(5) CITIBANK INTERNATIONAL PLC as agent for and on behalf of the Finance
Parties (the "Agent"); and
(6) CITICORP TRUSTEE COMPANY LIMITED as security trustee for the Secured
Parties (the "Trustee").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. Definitions and Interpretation
1.1 Definitions
In this Agreement:
"Accession Letter" means a document substantially in the form set out in
Schedule 10 (Form of Accession Letter).
"Account Bank" means Citibank, N.A.
"Account Agreement" means the account agreement dated 22 December 2003
between the Account Bank, the Parent and the Trustee in relation to the
Mandatory Prepayment Account, the GE Seaco Dividends Account and the
Dividends Account.
"Additional Cost Rate" has the meaning given to it in Schedule 4
(Mandatory Cost Formulae).
"Additional Guarantor" means a company which becomes an Additional
Guarantor in accordance with Clause 24 (Changes to the Parties).
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
1
"Amendment Agreement" means the amendment agreement dated 2 July 2004 by
which this Agreement is amended.
"Authorisation" means:
(a) a permit, licence, consent, approval, certificate,
qualification, specification, resolution, exemption, filing,
notarisation, registration or other authorisation; or
(b) a filing of a notification, report or assessment; or
(c) any item of Port Legislation,
in each case necessary for the effective operation of the Group's
business, its ownership, possession, occupation or use of an asset or
the execution or performance of this Agreement.
"Authorised Signatory" means any person authorised in accordance with a
board resolution, a certified copy of which has been delivered to the
Agent together with such signatory's specimen signature as referred to
in paragraph 1(c) of Schedule 2 (Conditions Precedent).
"Availability Period" means the period from and including the date of
the Amendment Agreement to and including the date which is one month
prior to the Final Repayment Date but if any such date is not a Business
Day, then the Availability Period shall be deemed to end on the
immediately preceding Business Day.
"Available Commitment" means, at any time in relation to the Facility, a
Lender's Commitment under the Facility minus:
(a) the amount of its participation in any outstanding Loans under
the Facility; and
(b) in relation to any proposed Utilisation, the amount of its
participation in any Loans that are due to be made under the
Facility on or before the proposed Utilisation Date,
other than that Lender's participation in any Loans that are due to be
repaid or prepaid on or before the proposed Utilisation Date.
"Available Facility" means, in relation to the Facility, the aggregate
for the time being of each Lender's Available Commitment in respect of
the Facility.
"Bermuda Obligor" means any company who is a Guarantor and is formed or
incorporated under the laws of Bermuda.
"Break Costs" means the amount (if any) by which:
(a) the interest which a Lender should have received for the period
from the date of receipt of all or any part of its participation
in a Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that
Interest Period;
2
exceeds:
(b) the amount which that Lender would be able to obtain by placing
an amount equal to the principal amount or Unpaid Sum received
by it on deposit with a leading bank in the Relevant Interbank
Market for a period starting on the Business Day following
receipt or recovery and ending on the last day of the current
Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London, and (in relation to any
date for payment or purchase of a currency other than euro) the
principal financial centre of the country of that currency.
"Capital Expenditure" shall be construed as meaning any expenditure
which should be treated as capital expenditure in the accounts of any
member of the Group in accordance with Relevant GAAP.
"Cash" has the meaning ascribed to it in Clause 21 (Security Cover and
Financial Covenants).
"Charged Property" means all the assets of the Obligors which from time
to time are, or are expressed to be, the subject of the Transaction
Security.
"Citigroup DTC Account" means the account that Citigroup holds with the
DTC.
"Class A Shares" means the class A common shares of OEH, par value
US$0.1 each.
"Class B Shares" means the class B common shares of OEH, par value
US$0.1 each.
"Closing Date" means, in respect of any Disposal, the date such Disposal
is closed and all conditions in respect of the making of all payments
thereunder have been satisfied or waived.
"Code" means, at any date, the U.S. Internal Revenue Code of 1986 (or
any successor legislation thereto) as amended from time to time, and the
regulations promulgated and rulings issued thereunder, all as the same
may be in effect at such date.
"Commitment" means:
(a) in relation to an Original Lender, the amount set opposite its
name in Column 1 under the heading "Commitment" in Part II (The
Original Lenders - other than UK Non-Bank Lenders) or Part III
(The Original Lenders - UK Non-Bank Lenders) of Schedule 1 (The
Original Parties) and the amount of any other Commitment
transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Commitment
transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Commitment Fee" means, on any date, the percentage per annum equal to
40% of the Margin on such date.
3
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 6 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in any recommended form of the LMA or in any other form
agreed between the Borrower and the Agent.
"Container Facility" means the credit facility extended to Sea
Containers UK Limited as evidenced by the Container Facility Agreement.
"Container Facility Agreement" means the loan agreement dated 24 July
1998 (as amended from time to time thereafter) between the Parent and
certain of its Subsidiaries as borrowers, Bank of Nova Scotia and
others.
"Default" means an Event of Default or any event or circumstance
specified in Clause 23 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing)
be an Event of Default.
"Delegate" means any delegate, agent, attorney or co-trustee appointed
by the Trustee.
"Disposal" has the meaning given to that term in Clause 8.5 (Mandatory
Prepayment and Cancellation - Disposals).
"Disposal Proceeds" has the meaning given to that term in Clause 8.5
(Mandatory Prepayment and Cancellation - Disposals).
"Dividend" means any declaration, making or payment, directly or
indirectly, of any dividend, any interest or other payment, or any other
distribution of assets all in respect of its share capital (or any class
thereof) or the setting apart of any such assets for any such purpose.
"Dividends Account" means the account numbered 00000000 in relation to
sterling deposits and the account numbered 00000000 in relation to
dollar deposits being maintained with the Account Bank (in accordance
with the Account Agreement) by the Parent and subject to Transaction
Security.
"DTC" means Depository Trust Company.
"Early Franchise Termination Date" means, in respect of the Franchise
Agreement, the date occurring prior to the Franchise Expiry Date, if
any, on which the Franchise Agreement is terminated and in respect of
any Renewed Franchise Arrangement, the date occurring prior to the
Franchise Expiry Date, if any, on which the Renewed Franchise
Arrangement is terminated.
"Employee Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
a US Obligor or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
4
"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) and any other meaning given to the term "Environment" under any
Environmental Law.
"Environmental Claim" means any written notice from any regulatory
authority or government agency or other person responsible for the
enforcement of any Environmental Law, alleging any breach, contravention
or violation of any Environmental Law by any member of the Group or the
existence of any liability or potential liability arising from any such
breach, contravention or violation including, without limitation,
liability to conduct, pay for or for damages in respect of any
investigation or audit, clean-up, remediation, administrative cost or
charge or expense, damage to the Environment or any natural resource,
property loss or damage, personal injury or any penalty attaching or
relating to the presence, emission, release or leak of any Hazardous
Material in or to the Environment.
"Environmental Law" means all statutes, treaties and conventions,
directives, regulations and all codes of practice or conduct, circulars
and guidance notes having legal or judicial import or effect whether of
a criminal, civil or administrative nature, and the rules of common law,
relating to or 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 Hazardous Materials; and
(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 Hazardous Material and any matter or thing
capable of constituting a nuisance or an actionable tort of any
kind in respect of such matters.
"Environmental Permits" means any Authorisation and the filing of any
notification, report or assessment required, in each case, under any
Environmental Law for the operation of the business of any member of the
Group conducted on or from the properties owned or used by the relevant
member of the Group.
"ERISA" means, at any date, the United States Employee Retirement Income
Security Act of 1974 (or any successor legislation thereto) as amended
from time to time, and the regulations promulgated and rulings issued
thereunder, all as the same may be in effect at such date.
"ERISA Affiliate" means any person that for purposes of Title I and
Title IV of ERISA and Section 412 of the Code would be deemed at any
relevant time to be a single employer with a US Obligor, pursuant to
Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.
5
"ERISA Event" means
(a) any reportable event, as defined in Section 4043 of ERISA, with
respect to an Employee Plan, as to which PBGC has not by
regulation waived the requirement of Section 4043(a) of ERISA
that it be notified of such event;
(b) the filing of a notice of intent to terminate any Employee Plan,
if such termination would require material additional
contributions in order to be considered a standard termination
within the meaning of Section 4041(b) of ERISA, the filing under
Section 4041(c) of ERISA of a notice of intent to terminate any
Employee Plan or the termination of any Employee Plan under
Section 4041(c) of ERISA;
(c) the institution of proceedings under Section 4042 of ERISA by
the PBGC for the termination of, or the appointment of a trustee
to administer, any Employee Plan;
(d) the failure to make a required contribution to any Employee Plan
that would result in the imposition of an encumbrance under
Section 412 of the Code or Section 302 of ERISA or the filing of
any request for a minimum funding waiver under Section 412 of
the Code with respect to any Employee Plan or Multiemployer
Plan;
(e) an engagement in a non-exempt prohibited transaction within the
meaning of Section 4975 of the Code or Section 406 of ERISA;
(f) the complete or partial withdrawal of any US Obligor or any
ERISA Affiliate from a Multiemployer Plan; and
(g) an Obligor or an ERISA Affiliate incurring any liability under
Title IV of ERISA with respect to any Employee Plan (other than
premiums due and not delinquent under Section 4007 of ERISA).
"Escrow Agreement" means the escrow agreement dated 22 December 2003
relating to the Secured Shares made between the Parent, the Trustee, the
Agent and Citibank, N.A. as custodian.
"Event of Default" means any event or circumstance specified as such in
Clause 23 (Events of Default).
"Excluded Disposal Proceeds" has the meaning ascribed to that term in
Clause 8.6 (Mandatory Prepayment and Cancellation - Disposals).
"Excluded OEH Proceeds " has the meaning ascribed to that term in Clause
8.7 (Mandatory Prepayment and Cancellation - Secured Shares).
"Existing Financial Indebtedness" means any Financial Indebtedness
(whether secured or unsecured), and any facilities available for
utilisation by a member of the Group and not drawn, in each case as at
the date of this Agreement and in aggregate as listed in the Group
Structure Chart.
6
"Existing Security" means:
(a) any Security for Existing Financial Indebtedness noted as
secured in the Group Structure Chart;
(b) the Season Ticket Charge;
(c) any Security existing as at the date of the Amendment Agreement
granted by an Obligor pursuant to a EUR54,000,000 secured term
loan dated 5 November 2003 between the Parent as borrower,
Nordea Bank Danmark A/S as lead arranger, HSH Nordbank AG,
Fortis Bank SA/NV, The Governor and Company of the Bank of
Scotland as co-arrangers and Nordea Bank Finland Plc as security
agent and others; and
(d) any Security existing as at the date of the Amendment Agreement
granted by an Obligor pursuant to a EUR 215,000,000 secured term
loan and EUR 126,000,000 revolving credit facility dated 5
November 2003 between Silja Oy Ab as borrower, Nordea Bank
Danmark A/S as lead arranger, HSH Nordbank AG, Fortis Bank
SA/NV, The Governor and Company of the Bank of Scotland as
co-arrangers and Nordea Bank Finland Plc as security agent and
others.
"Extension" means a valid extension of the Facility pursuant to the
terms and conditions of Clause 7 (Extension of Final Repayment Date).
"Facility" means the revolving loan facility made available under this
Agreement as described in Clause 2 (The Facility).
"Facility Office" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"Fee Letter" means any letter or letters dated 3 June 2004 between the
Mandated Lead Arrangers and the Parent (and/or, as the case may be, the
Agent, the Trustee and/or the Lenders) setting out any of the fees
referred to in Clause 12 (Fees) or any other letter dated on or about
the date of this Agreement.
"Ferry" means each of the ocean going vessels owned or operated by any
member of the Group.
"Ferry Capital Expenditure" means Capital Expenditure for the sole
purpose of:
(a) the acquisition of a new Ferry; or
(b) the improvement of an existing Ferry.
7
"Final Repayment Date" means the date falling 24 Months after the date
of the Amendment Agreement or, following an Extension, the date falling
36 Months after the date of the Amendment Agreement.
"Final Settlement Date" means the date on which the Xxxxxxxx Litigation
is irrevocably settled or determined in proceedings which are incapable
of further appeal or review.
"Finance Document" means the Amendment Agreement, this Agreement, the
Security Documents, any Fee Letter, any Resignation Letter and any other
document designated as such by the Agent and the Borrower.
"Finance Party" means the Agent, the Mandated Lead Arrangers, the
Trustee or a Lender.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with Relevant GAAP,
be treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to
the extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial effect
of a borrowing for the avoidance of doubt, not including
operating leases;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution;
(i) any amount raised by the issue of redeemable shares;
(j) any amount of any liability under an advance or deferred
purchase agreement if one of the primary reasons behind the
entry into this agreement is to raise finance; and
(k) (without double counting) the amount of any liability in respect
of any guarantee or indemnity for any of the items referred to
in paragraphs (a) to (j) above.
8
"Finnish Guarantor" means Silja Oy Ab.
"Folkestone Facility" means the (pound)3,675,000 term loan facility
provided pursuant to an agreement between Folkestone Properties Limited,
the Parent and the Governor and Company of the Bank of Scotland and
dated 30 November 2001.
"FPHL" means Ferry and Port Holdings Limited a company incorporated
under the laws of England and Wales with registered number 2413534
having its registered office at Sea Xxxxxxxxxx Xxxxx, 00 Xxxxx Xxxxxx,
Xxxxxx, XX0 0XX.
"Franchise Agreement" means the franchise agreement between the
Strategic Rail Authority, GNER Holdings Limited and Great North Eastern
Railway Limited dated 28 March 1996, as subsequently amended and
restated on 6 March 2002 by agreement between the parties.
"Franchise Expiry Date" means, in respect of the Franchise Agreement, 30
April 2005 or following a Temporary Extension, the expiry date of the
extended Franchise Agreement and, in respect of any Renewed Franchise
Arrangement, the date of expiry of the franchise term in the Renewed
Franchise Arrangement.
"Franchise Services" shall have the meaning attributed thereto in the
Franchise Agreement.
"Franchise Termination Assessment Memorandum" means the updated
memorandum prepared by the Parent and addressed to the Lenders relating
to the financial consequences of termination of the Franchise Agreement.
"GE Seaco" means GE Seaco SRL.
"GE Seaco Dividend" means any loan, Share Redemption or Dividend made by
GE Seaco in favour of the Parent on any date after the date of this
Agreement.
"GE Seaco Dividends Account" means the account numbered 00000000 in
relation to dollar deposits being maintained with the Account Bank (in
accordance with the Account Agreement) by the Parent subject to the
Transaction Security and into which all GE Seaco Dividends are paid.
"GE Seaco Interest" means the shares that the Parent owns in GE Seaco.
"GNER Cash" means the Cash in the Rail Group.
"GNER Group Company" means GNER Holdings Limited and its Subsidiaries
from time to time.
"GNER Limited" means Great North Eastern Railway Limited, registered
number 02938984.
"GNER Liquidity Maintenance Cash" means any amount which GNER Limited
must retain pursuant to its liquidity maintenance obligations under the
Franchise Agreement or the Renewed Franchise Arrangement, as the case
may be, and is so retained.
9
"GNER Station Refurbishment" means the expenditure (approved in advance
by the Agent) to be incurred in relation to the refurbishment of certain
railway stations belonging to GNER Limited.
"Group" means the Parent and its Subsidiaries that are identified in the
Group Structure Chart (excluding for the avoidance of doubt OEH and GE
Seaco).
"Group Structure Chart" means the group structure chart delivered in
accordance with Clause 4 (Conditions of Utilisation) and set out at
Schedule 7 (Group Structure Chart) showing the Obligors, their holding
companies to the Parent and certain other companies, including current
name, jurisdiction of incorporation and, for each member of the Group
(other than the Parent), any Existing Financial Indebtedness in each
case, as at the date of this Agreement.
"Guarantor" means an Original Guarantor or an Additional Guarantor.
"Xxxxxxxx Litigation" means all claims against Network Rail and/or any
successor in title thereto arising out of or in connection with the
derailment of a train operated by GNER Limited near Xxxxxxxx on 17
October 2000.
"Hazardous Materials" means any element or substance, whether natural or
artificial, and whether consisting of gas, liquid, solid or vapour,
whether on its own or in any combination with any other element or
substance, which is listed, identified, defined or determined 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.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Hoverspeed" means Hoverspeed Limited, an Obligor.
"Information Package" means the Franchise Termination Assessment
Memorandum and the Litigation Settlement Memoranda.
"Intellectual Property" means any patents, trade marks, service marks,
designs, business names, copyrights, design rights, moral rights,
inventions, confidential information, knowhow and other intellectual
property rights and interests, whether registered or unregistered, and
the benefit of all applications and rights to use such assets of each
Obligor.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 10 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 9.3
(Default interest).
"Interim Recovery" means, in respect of the Xxxxxxxx Litigation, the
aggregate of monies (a) paid to the Group by Railtrack plc and/or
Network Rail; and (b) recovered by the Group by way of set-off against
amounts payable by GNER Limited under the Track Access Agreement and
which the Group is entitled to retain.
"Intra-Group Disposal" means a disposal of assets by an Obligor to
another Obligor.
10
"Investments" means:
(a) any stocks, shares, debentures, securities and certificates of
deposit;
(b) all interests in collective investment schemes; and
(c) all warrants, options and other rights to subscribe or acquire
any of the investments described in (a) and (b),
in each case whether held directly by or to the order of an Obligor or
by any trustee, nominee, fiduciary or clearance system on its behalf.
"IRS" means the United States Internal Revenue Service or any successor
thereto.
"ISM Code" means the International Safety Management Code adopted by the
International Maritime Organisation in November 1993 and made mandatory
under Chapter IX of the International Convention for the Safety of Life
at Sea.
"Joint Venture" means any joint venture entity which is not a member of
the Group, whether a company, unincorporated firm, undertaking,
association, joint venture or partnership or whether any other entity
and in which a member of the Group has a share.
"Xxxxx Joint Venture" means The London & Western Railway Company
Limited, a Joint Venture entered into between the Parent and Xxxxx Rail
Limited.
"Legal Opinions" means the legal opinions delivered to the Agent
pursuant to Clause 4 (Conditions of Utilisation).
"Lender" means:
(a) any Original Lender; and
(b) any bank, financial institution, trust, fund or other entity
which has become a Party in accordance with Clause 24 (Changes
to the Parties),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the
London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to the
Interest Period for that Loan.
"Listed OEH Shares" means, at any time, the Class A Shares listed on the
NYSE (including the Class A Shares issuable on conversion of the Class B
Shares) and such other listed shares in OEH designated as such by the
Agent and the Parent.
11
"Litigation Settlement Memoranda" means the two memoranda prepared by
the Parent and addressed to the Lenders relating to certain litigation
matters involving GNER Limited, covering both the claims made by GNER
Limited against Railtrack Plc (now Network Rail) for damages relating to
GNER lost revenue arising from the Xxxxxxxx rail crash and subsequent
rail closure and also the potential costs implications of all other GNER
litigation matters.
"LMA" means the Loan Market Association.
"Loan" means a loan made or to be made under the Facility or the
principal amount outstanding for the time being of that loan.
"Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders
whose Commitments aggregate 662/3% or more of the Total
Commitments (or, if the Total Commitments have been reduced to
zero, aggregated 662/3% or more of the Total Commitments
immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in
the Loans then outstanding aggregate 662/3% or more of all the
Loans then outstanding.
"Mandate Documents" means the letters dated 2 April 2004 entered into by
the Borrower, the Parent and the Mandated Lead Arrangers relating to the
entry by them, and others, into the Finance Documents.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost Formulae).
"Mandatory Prepayment Account" means (i) the interest-bearing account
numbered 00000000 in relation to sterling deposits, (ii) the account
numbered 00000000 in relation to dollar deposits and (iii) any other
account designated as such by the Agent, in each case:
(a) held in a jurisdiction of the Borrower with the Account Bank in
accordance with the Account Agreement (as the same may be
redesignated, substituted or replaced from time to time); and
(b) subject to Transaction Security.
"Margin" means 2.50 per cent. per annum, but if: (a) no Event of Default
has occurred and is continuing; and (b) the corporate credit rating of
Sea Containers Limited is "BB+" or better and "Bal" or better with S&P
and Moody's respectively, 2.00% per cent. per annum. Any increase or
decrease in the Margin shall take effect as soon as the test set out in
paragraph (b) respectively fails to be satisfied or is satisfied.
"Margin Stock" means margin stock or "margin security" within the
meaning of Regulations T, U and X.
"Memoranda Update Certificate" means the certificate prepared by the
Parent and addressed to the Lender in relation to the Litigation
Settlement Memorandum and the Franchise Termination Assessment
Memorandum and delivered as a condition precedent pursuant to the
Amendment Agreement.
12
"Market Value" means, on any determination date in relation to the
Secured Shares, the publicly available closing price of such shares for
the immediately preceding New York Business Day on which such price was
publicly available.
"Material Adverse Effect" means a material adverse effect on:
(a) the business, operations, property, condition (financial or
otherwise) operations or prospects of the Group taken as a
whole;
(b) the ability of an Obligor to comply with any of its obligations
under the Finance Documents; or
(c) the legality, validity or enforceability of the Finance
Documents or the rights or remedies of any Finance Party under
the Finance Documents.
"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (c) below) if the numerically
corresponding day is not a Business Day, that period shall end
on the next Business Day in that calendar month in which that
period is to end if there is one, or if there is not, on the
immediately preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest Period
is to end.
The above rules will only apply to the last Month of any period.
"Moody's" means Xxxxx'x Investor Services Limited.
"Multiemployer Plan" means a "multiemployer plan" (as defined in Section
(3)(37) of ERISA) contributed to for any employees of a US Obligor or
any ERISA Affiliate.
"Net Disposal Proceeds" has the meaning given to that term in Clause 8.5
(Mandatory Prepayment and Cancellation - Disposals).
"Net GNER Cash" means the GNER Cash less any deductions payable pursuant
to the terms of the Franchise Agreement or the Renewed Franchise
Arrangement, as the case may be.
"Net OEH Proceeds" has the meaning given to that term in Clause 8.7
(Mandatory Prepayment and Cancellation - Secured Shares).
"New Lender" has the meaning ascribed to it in Clause 24 (Changes to
Parties).
13
"Newhaven Marina Facility" means a syndicated loan facility up to
(pound)5,750,000 to be provided pursuant to an agreement with recourse
to Newhaven Marina Limited but without recourse to any other member of
the Group (other than the Parent).
"New York Business Day" means a day (other than a Saturday or Sunday) on
which the NYSE is open for trading.
"NYSE" means the New York Stock Exchange.
"Obligors" means the Borrower and each Guarantor.
"Occupational Lease" means any lease or licence or other right of
occupation to which any property leased, occupied or otherwise in the
possession of any member of the Group may be subject from time to time.
"OEH" means Orient-Express Hotels Ltd., a Bermuda corporation.
"OEH Offering" means the public offering of Class A Shares dated
November 20 2003.
"OEH Security Agreement" means the security agreement by which the
Secured Shares, with a Market Value of at least US$100,000,000 as of the
Closing Date, are secured in favour of the Trustee.
"OEH Share Disposal" has the meaning given to that term in Clause 8.7
(Mandatory Prepayment and Cancellation - Secured Shares).
"OEH Share Proceeds" has the meaning given to that term in Clause 8.7
(Mandatory Prepayment and Cancellation - Secured Shares).
"OEH Share Certificates" means the share certificates evidencing the
Secured Shares.
"OEH Transfer Agent" means Equiserve Inc., Mail Stop 45-02-62, 000 Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, c/o Xxxxx Xxxxxxxxxxx.
"Original Facility Agreement" means the Amended and Restated Revolving
Facility Agreement dated 22 December 2003 relating to a US$100,000,000
Facility Agreement dated 10 June 2003 for Sea Containers British Isles
Limited, arranged by Citigroup Global Markets Limited, Fortis Bank SA/NV
and the Governor and Company of the Bank of Scotland and with Citibank
International PLC as Agent and Citicorp Trustee Company Limited as
Trustee.
"Original Financial Statements" means:
(a) in relation to the Parent (and any other member of the Group
where such are available), the audited consolidated financial
statements of the Group for the financial year ended 31 December
2003; and
(b) in relation to each member of the Group (to the extent it has
not delivered anything under (a) above), its audited financial
statements for its financial year ended 31 December 2003.
"Parent" means Sea Containers Ltd., a Bermuda corporation.
14
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Community relating to
Economic and Monetary Union.
"Party" means a party to this Agreement.
"PBGC" means the U.S. Pension Benefit Guaranty Corporation, or any
entity succeeding to all or any of its functions under ERISA.
"Permitted Group Transactions" means an Intra-Group Disposal.
"Permitted Joint Ventures" means:
(a) the Xxxxx Joint Venture;
(b) the South Eastern Joint Venture; and
(c) a Joint Venture in relation to any such matters conducted in
accordance with normal commercial arrangements entered into on
arm's length terms consistent with the normal course of the
Group's business.
"Permitted Lease" means any Occupational Lease where:
(a) no premium is paid in consideration of its grant; and
(b) the initial annual open market rent or open market consideration
payable upon its grant is less than (pound)20,000 (or is less
than (pound)20,000 after any rent review or review of the
consideration payable under the same) disregarding amounts
payable by way of service charge, insurance and VAT).
"Permitted Share Disposal" has the meaning given to that term in Clause
8.7 (Mandatory Prepayment and Cancellation - Secured Shares).
"Port Legislation" means the Folkestone Harbour Acts 1807, 1818 and
1992, the Folkestone Pier and Harbours Order Confirmation Acts 1878 and
1881, the South Eastern Railway Acts 1843, 1844, 1887 and 1990, the
South Eastern Railway (Various Powers) Xxx 0000, the Southern Railway
(Dock Charges) Xxx 0000 and the Sealink (Transfer of Folkestone Harbour)
Harbour Revision Order 1991 and all other statutes, treaties and
conventions, statutory instruments, directives, regulations and all
codes of practice or conduct, circulars and guidance notes having legal
or judicial import or effect whether of a criminal, civil or
administrative nature and the rules of common law relating to or
concerning the operation of a port as the same may be amended or
supplemented from time to time.
"Qualifying Lender" has the meaning given to it in Clause 13 (Tax Gross
Up and Indemnities).
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is domestic sterling) the first day of that
period; or
15
(b) (for any other currency) two Business Days before the first day
of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day, the
Quotation Day will be the last of those days).
"Rail Group" means Sea Containers Railway Services Limited, GNER
Holdings Limited and GNER Limited.
"Receiver" means a receiver or receiver and manager or administrative
receiver of the whole or any part of the Charged Property.
"Reference Banks" means, in relation to LIBOR the principal offices of
Citibank, N.A. and The Governor and Company of the Bank of Scotland or
such other banks as may be appointed by the Agent in consultation with
the Borrower.
"Regulations T, U and X" means, respectively, Regulations T, U and X of
the Board of Governors of the Federal Reserve System of the United
States (or any successor) as now and from time to time hereafter in
effect.
"Relevant GAAP" means generally accepted accounting principles (i) in
the United States of America in relation to the Parent and GE Seaco ,
and (ii) in the United Kingdom in relation to each other Obligor.
"Relevant Interbank Market" means the London interbank market.
"Relevant Jurisdiction" means:
(a) the jurisdiction of incorporation of each member of the Group;
(b) the jurisdiction where any asset subject to or intended to be
subject to the Transaction Security is situated;
(c) the jurisdiction whose laws govern the perfection of any of the
Security Documents; and
(d) the jurisdiction where any member of the Group is conducting its
business.
"Remedy Period" means, at any time, the period commencing on a Shortfall
Date and ending on a Sales Date.
"Renewed Franchise Arrangement" means an amendment, supplement,
novation, renewal, extension or replacement of the Franchise Agreement
in respect of all or substantially all of the Franchise Services entered
into with the SRA and members of the Group on terms acceptable to the
Lenders (which shall include but not be limited to the identity of the
franchisee and franchise operator) and for a term ending no earlier than
the date falling 60 Months after the date of the Amendment Agreement.
"Repeating Representations" means each of the representations set out in
Clauses 19.1 (Status) to 19.7 (Governing law and enforcement), Clause
19.10 (No default) to Clause 19.16 (No proceedings pending or
threatened), Clause 19.19 (Taxation), Clause 19.20 (Security), Clause
19.21 (Ranking) to Clause 19.25 (Shares), Clause 19.27 (Business
Assets), 19.28 (Pensions), Clause 19.29 (Insurances) to Clause 19.31
(Health and safety regulation) and Clause 19.33 (Financial Year End) to
Clause 19.36 (Investment Companies).
16
"Required Security Coverage Amount" means, at any time, the greater of:
(a) US$100,000,000; and
(b) an amount equal to 200 per cent. of:
(i) the aggregate of the Loans outstanding at such time, or,
at any time on and following the entry into the Renewed
Franchise Arrangement, an amount equal to 150 per cent.
of the aggregate of the Loans outstanding at such time;
and
(ii) the aggregate of the amount of any loan made pursuant to
paragraph (e) of Clause 22.29 (Loans and Guarantees) to
the extent such loan is not otherwise permitted
hereunder.
"Restricted Indebtedness Companies" means the Borrower, Sea Containers
Railway Services Limited, GNER Holdings Limited and GNER Limited.
"Rollover Loan" means one or more Loans:
(a) made or to be made on the same day that a maturing Loan is due
to be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Loan; and
(c) made or to be made for the purpose of refinancing a maturing
Loan.
"S&P" means Standard & Poor's Rating Services.
"Sales Date" means the date falling seven consecutive days after a
Shortfall Date provided that there exists, on each of those days, a
Shortfall Amount.
"Sale of Security" has the meaning ascribed to it in Clause 8.5
(Mandatory Prepayment and Cancellation - Disposals).
"SCL Bonds" means the 10.75% and 13% senior notes due 2006 issued by the
Parent.
"Screen Rate" means in relation to LIBOR, the British Bankers'
Association Interest Settlement Rate for the relevant currency and
period displayed on page 3750 or 3740 (as appropriate) of the Telerate
screen. If any such agreed page is replaced or service ceases to be
available, the Agent may specify another page or service displaying the
appropriate rate after consultation with the Borrower and the Lenders.
"Season Ticket Charge" means the Security granted by GNER in favour of
the Governor and Company of the Bank of Scotland in relation to the SRA
requirement for GNER to provide a bond to cover potential exposure to
season ticket holders.
17
"SEC" means the US Securities and Exchange Commission or any successor
thereto.
"Secured Obligations" means all obligations at any time due, owing or
incurred by any Obligor to any Secured Party under the Finance
Documents, whether present or future, actual or contingent (and whether
incurred solely or jointly and whether as principal or surety or in some
other capacity).
"Secured Parties" means, from time to time, each Finance Party and any
Receiver or Delegate.
"Secured Shares" means, at any time, all the Listed OEH Shares secured
pursuant to a Security Document.
"Secured A Shares" means the Class A Shares which are Secured Shares.
"Secured B Shares" means the Class B Shares which are Secured Shares.
"Securities Act" means the US Securities Act of 1933, as amended.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"Security Documents" means each of the security documents listed as
being a Security Document in paragraph 2(a) of Schedule 2 (Conditions
Precedent) together with any other document entered into by any Obligor
creating or expressed to create any Security over all or any part of its
assets in respect of the obligations of any of the Obligors under any of
the Finance Documents.
"SETG" means the Special Equity Transaction Group, a department within
Citigroup Global Markets, Inc.
"SETG Account" means the account with SETG (with such number as notified
by the Agent to the Borrower) to which the Secured Shares are credited.
"Share Redemption or Dividend", made by a person, means (a) any
redemption, purchase, retirement or other acquisition for consideration
of shares issued by it, or the setting apart of any such consideration
for such purpose, or other reduction in share capital; (b) any
declaration, making or payment, directly or indirectly, of any dividend,
any interest or other payment, or any other distribution of assets in
respect of its share capital (or any class thereof) or the setting apart
of any such assets for any such purpose; or (c) the payment of any
management, advisory or other fee to or to the order of the direct or
indirect holders of any of its share capital other than in the case of
this paragraph (c), on arm's length terms.
"Shortfall Amount" means, while there are Loans outstanding, the amount
by which the Market Value of the Secured Shares is less than the
Required Secured Coverage Amount.
"Shortfall Date" means the date on which the Agent provides notice to
the Parent in accordance with Clause 21.2 (Market Value).
18
"Silja Bank Agreement" means the EUR 215,000,000 Secured Term Loan and
EUR 126,000,000 Revolving Credit Facility Agreement dated 5 November
2003 made between among others Silja Oy Ab (formerly Silja Oyj Abp) as
borrower and Nordea Bank Danmark A/S as paying agent, security agent and
lead arranger.
"Silja Pledge" means the charges dated 10 June 2003 and 22 December 2003
and the charge dated on or about the date hereof over shares in Silja
Holdings Limited granted by the Parent in favour of the Trustee
constituting Transaction Security.
"Specified Time" means a time determined in accordance with Schedule 8
(Timetables).
"South Eastern Joint Venture" means a Joint Venture to be entered into
by the Parent pursuant to a bid for the South Eastern Rail Franchise.
"South Eastern Rail Franchise" means the integrated Kent franchise
(being all or any part of (i) the South Eastern rail franchise presently
operated by South Eastern Trains, a wholly owned subsidiary of the SRA,
and / or (ii) the Channel Tunnel rail link), as such franchise may be
restructured or renamed by the SRA from time to time.
"SRA" means the Strategic Rail Authority.
"SRA Performance Bond" means the performance bond provided by a member
of the Rail Group to the SRA pursuant to the terms of the Franchise
Agreement.
"Subordination Agreement" means the subordination agreement dated 22
December 2003 between, among others, the Parent and the Trustee.
"Subsidiary" means in relation to any company or corporation, a company
or corporation:
(a) which is controlled, directly or indirectly, by the first
mentioned company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly by the first mentioned company or
corporation; or
(c) which is a Subsidiary of another Subsidiary of the first
mentioned company or corporation,
and for this purpose, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
direct its affairs and/or to control the composition of its board of
directors or equivalent body.
"Tax" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"Taxes Act" means the Income and Corporation Taxes Xxx 0000.
"Temporary Extension" means any temporary extension of the term of the
Franchise Agreement on terms acceptable to the Lenders pending the
completion of the franchise bidding process.
19
"Total Commitments" means at any time the aggregate of the Commitments.
"Track Access Agreement" means the agreement referred to in paragraph
4(g) of Schedule 2 of this agreement.
"Transaction Closing Agenda" means the transaction closing agenda
prepared by Xxxxxxxx Chance LLP, initialled by or on behalf of the
Parent and the Agent on or before the signing of this Agreement for the
purposes of identification.
"Transaction Security" means the Security created or expressed to be
created in favour of the Trustee pursuant to the Security Documents.
"Transfer Certificate" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificates) or any other
form agreed between the Agent and the Borrower.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer
Certificate; and
(b) the date on which the Agent executes the Transfer Certificate.
"Treasury Transaction" means any derivative transaction entered into in
connection with protection against or benefit from fluctuation in any
rate or price (including any currency or interest purchase, cap or
collar agreement, forward rate agreements, interest rate or currency
future or option contract, foreign exchange or currency purchase or sale
agreement, interest rate swap, currency swap or combined interest rate
and currency swap agreement and any other similar agreement) (and, when
calculating the value of any derivative transaction, only the marked to
market value shall be taken into account).
"UK Obligor" means any company that is an Obligor and is established in
the United Kingdom.
"Unfunded Pension Liability" means the excess of an Employee Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of that plan's assets, determined in accordance with the
assumptions used for funding the Employee Plan pursuant to Section 412
of the Code for the applicable plan year.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"Undertaking" means irrevocable written instructions addressed from the
Parent to the OEH Transfer Agent, in form and substance satisfactory to
the Agent, to deliver the Secured Shares into Citigroup's general
account at DTC.
"US Obligor" means any company who is a Guarantor and is formed or
incorporated under the laws of the United States of America, any state
thereof or the District of Columbia.
"US Tax" means any federal, state, local or foreign income, gross
receipts, license, premium, windfall profits, customs duties, capital
stock, franchise, profits, withholding, social security (or similar),
real property, personal property, sales, use, registration, value added,
alternative or add-on minimum, estimated or other tax of any kind
whatsoever, including any interest, penalty or addition thereto, whether
disputed or not.
20
"Utilisation" means a utilisation of the Facility.
"Utilisation Date" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out
in Schedule 3 (Utilisation Request).
"VAT" means value added tax as provided for in the Value Added Tax Xxx
0000 and any other tax of a similar nature.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
person, even if the right so to vote has been suspended by the happening
of such a contingency.
1.2 Construction
(a) Unless a contrary indication appears any reference in this
Agreement to:
(i) the "Agent", the "Mandated Lead Arrangers", the
"Trustee", any "Finance Party", any "Secured Party", any
"Lender", any "Obligor" or any "Party" shall be
construed so as to include its successors in title,
permitted assigns and permitted transferees and, in the
case of the Trustee, any person for the time being
appointed as trustee or trustees in accordance with this
Agreement;
(ii) "assets" includes present and future properties,
revenues and rights of every description;
(iii) "control" means the power (whether by way of ownership
of shares, proxy, contract, agency or otherwise) to:
(1) cast, or control the casting of, more than
one-half of the maximum number of votes that
might be cast at a general meeting of the
Parent; or
(2) appoint or remove all, or the majority, of the
directors or other equivalent officers of the
Parent; or
(3) give directions with respect to the operating
and financial policies of the Parent which the
directors or other equivalent officers of the
Parent are obliged to comply with; or the
holding of more than one-half of the issued
share capital of the Parent (excluding any part
of that issued share capital that carries no
right to participate beyond a specified amount
in a distribution of either profits or capital).
21
(iv) In addition to "control" as set forth in paragraphs
(iii)(iii)(1) to (2) above, "ceases to control" means
with respect to the Parent, any entity, person (within
the meaning of Section 14(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")) or group
of persons (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) that theretofore was
beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of 20 per cent. or more of the Parent
Voting Stock ceasing to be beneficial owner (within the
meaning of Rule 13d-3 of the SEC under the Exchange
Act), directly or indirectly, of Voting Stock of the
Parent (or other securities convertible into such Voting
Stock) representing less than 20 per cent. of the
combined voting power of all Voting Stock of the Parent.
(v) a "Finance Document" (or any other agreement or
instrument) is a reference to that Finance Document (or
other agreement or instrument) as amended or novated;
(vi) "indebtedness" includes any obligation (whether incurred
as principal or as surety) for the payment or repayment
of money, whether present or future, actual or
contingent;
(vii) a "person" includes any person, firm, company,
corporation, government, state or agency of a state or
any association, trust or partnership (whether or not
having separate legal personality) of two or more of the
foregoing;
(viii) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having
the force of law) of any governmental, intergovernmental
or supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(ix) a provision of law is a reference to that provision as
amended or re-enacted; and
(x) a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of reference
only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default (other than an Event of Default) is "continuing" if it
has not been remedied or waived and an Event of Default is
"continuing" if it has not been waived.
1.3 Currency Symbols and Definitions
"(pound)" and "sterling" denotes the lawful currency of the United
Kingdom, "EUR" and "euro" means the single currency unit of
Participating Member States and "$", "US$" and "dollars" denotes the
lawful currency of the United States of America.
22
1.4 Third party rights
A person who is not a Party has no right under the Contracts (Rights of
Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any term
of this Agreement.
(a) Unless expressly provided to the contrary in a Finance Document
a person who is not a Party has no right under the Contracts
(Rights of Third Parties) Act 1999 (the "Third Parties Act") to
enforce or to enjoy the benefit of any term of this Agreement.
(b) Notwithstanding any term of any Finance Document, the consent of
any person who is not a Party is not required to rescind or vary
this Agreement at any time.
23
SECTION 2
THE FACILITY
2. The Facility
2.1 The Facility
Subject to the terms of this Agreement, the Lenders make available to
the Borrower a revolving loan facility in an aggregate amount equal to
the Total Commitments.
2.2 Finance Parties' rights and obligations
(a) The obligations of each Finance Party under the Finance
Documents are several. Failure by a Finance Party to perform its
obligations under the Finance Documents does not affect the
obligations of any other Party under the Finance Documents. No
Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents.
(b) The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Finance Party from
an Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
2.3 Parent as Obligors' agent
Each Obligor irrevocably appoints the Parent as its agent for the
purpose of:
(a) executing and delivering on its behalf any agreement or document
capable of being entered into by that Obligor under or in
connection with the Finance Documents;
(b) giving and receiving any notice or instruction under or in
connection with any Finance Document (including any Utilisation
Request); and
(c) agreeing and executing all consents, agreements and amendments
(however fundamental and notwithstanding any increase in
obligations of or other effect on an Obligor) entered into in
connection with the Finance Documents (including confirmation of
continuation of guarantee obligations in connection with any
amendment or consent in relation to the Facility).
3. Purpose
3.1 Purpose
The Borrower shall apply all amounts borrowed by it under the Facility,
towards the working capital purposes of the Group.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
24
4. Conditions Of Utilisation
4.1 Initial conditions precedent
The Borrower may not deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Schedule 2
(Conditions Precedent) in form and substance satisfactory to the Agent.
The Agent shall notify the Borrower and the Lenders promptly upon being
so satisfied.
4.2 Further conditions precedent
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(a) in the case of a Rollover Loan, no Event of Default is
continuing or would result from the proposed Loan and, in the
case of any other Loan, no Default is continuing or would result
from the proposed Loan;
(b) the Repeating Representations to be made by each Obligor are
true in all material respects; and
(c) the aggregate of the Market Value of the Secured Shares is equal
to or greater than the Required Security Coverage Amount taking
into account the proposed Loan.
4.3 Maximum number of Loans
The Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation, six or more Loans would be outstanding.
25
SECTION 3
UTILISATION
5. Utilisation
5.1 Delivery of a Utilisation Request
The Borrower may utilise the Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not be regarded
as having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within
the Availability Period;
(ii) the currency and amount of the Utilisation comply with
Clause 5.3 (Currency and amount);
(iii) the proposed Interest Period complies with Clause 10
(Interest Periods); and
(iv) it is signed by an Authorised Signatory of the Parent.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be dollars.
(b) The amount of the proposed Loan must be a minimum of US$
5,000,000 and an integral multiple of US$1,000,000 or, if less,
the Available Facility.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met, each
Lender shall make its participation in each Loan available by
the Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan on any
date will be equal to the proportion borne by its Available
Commitment to the Available Facility immediately prior to making
the Loan.
(c) The Agent shall by the Specified Time notify the Lenders of the
amount of each Loan and the amount of its participation in that
Loan.
26
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. Repayment of loans
The Borrower shall repay each Loan made to it on the last day of its
Interest Period.
7. Extension of Final Repayment Date
If, by 1 May 2006:
(a) a Renewed Franchise Arrangement has been entered into by all
parties thereto; and
(b) the SCL Bonds have been repaid in full or refinanced on terms
and for a maturity acceptable to the Lenders,
then, the Final Repayment Date of the Facility shall be extended to the
date falling 36 Months from the date of the Amendment Agreement.
8. Prepayment And Cancellation
8.1 Illegality
If it becomes unlawful in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware
of that event;
(b) upon the Agent notifying the Borrower, the Commitment of that
Lender will be immediately cancelled; and
(c) the Borrower shall repay that Lender's participation in the
Loans made to the Borrower on the last day of the Interest
Period for each Loan occurring after the Agent has notified the
Borrower or, if earlier, the date specified by the Lender in the
notice delivered to the Agent.
8.2 Change of control
If any person or group of persons acting in concert who controls the
Parent, as at the date of the Amendment Agreement, ceases to control the
Parent:
(a) the Parent shall promptly notify the Agent upon becoming aware
of that event; and
(b) if the Majority Lenders so require, the Agent shall, by not less
than five days notice to the Parent, cancel the Facility and
declare all outstanding Loans, together with accrued interest,
and all other amounts accrued under the Finance Documents
immediately due and payable, whereupon the Facility will be
cancelled and all such outstanding amounts will become
immediately due and payable.
27
8.3 Voluntary prepayment and cancellation of Loans
The Borrower may, if it gives the Agent not less than fifteen days' (or
such shorter period as the Majority Lenders may agree) prior notice:
(a) prepay the whole or any part of any Loan (but, if in part, being
an amount that reduces the Loan by a minimum amount of
US$5,000,000); and/or
(b) cancel the whole or any part (being a minimum amount of
US$5,000,000) of the Available Facility. Any cancellation under
this Clause 7.4 shall reduce the Commitment of the Lenders
rateably under the Facility.
8.4 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender by an Obligor is required
to be increased under paragraph (c) of Clause 13.2 (Tax
gross-up); or
(ii) any Lender claims indemnification from the Borrower
under Clause 13.3 (Tax indemnity) or Clause 14.1
(Increased costs); or
(iii) any Lender notifies the Agent of its Additional Cost
Rate under paragraph 3 of Schedule 4 (Mandatory Cost
Formulae),
the Borrower may whilst (in the case of paragraphs (a) and (b)
above) the circumstance giving rise to the requirement or
indemnification continues or (in the case of paragraph (c)
above) that Additional Cost Rate is greater than zero, give the
Agent notice of cancellation of the Commitment of that Lender
and its intention to procure the repayment of that Lender's
participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if
earlier, the date specified by the Borrower in that notice), the
Borrower shall repay that Lender's participation in that Loan.
8.5 GNER
If:
(a) in the circumstances where a Temporary Extension is not granted,
a Renewed Franchise Arrangement has not been entered into by all
parties thereto by 30 April 2005, then on 30 April 2005; or
(b) following a Temporary Extension, a Renewed Franchise Arrangement
has not been entered into by all parties thereto by the expiry
date of the extended Franchise Agreement, then on that expiry
date:
(i) the Total Commitments shall be reduced by US$50,000,000;
28
(ii) the Parent shall ensure that sufficient Loans are repaid
to the extent necessary to ensure that the aggregate of
the outstanding Loans (after that repayment) is equal to
or less than the reduced amount of the Total
Commitments; and
(iii) any reduction in the Total Commitments shall reduce
rateably the Commitment of each Lender.
8.6 Mandatory Prepayment and Cancellation - Disposals
(a) For the purposes of this Clause 8.6:
"Disposal" means a sale, lease, transfer, loan or other disposal
by a member of the Group or any subsidiary of Silja Holdings
Limited, not made in the ordinary course of such member of the
Group's business on arm's length terms, of any asset,
undertaking or business (whether voluntary or involuntary and
whether as a single transaction or a series of transactions)
excluding:
(i) a disposal of the Secured Shares provided that
immediately following such disposal there is no
Shortfall Amount; and
(ii) a disposal of up to 20 per cent. of the GE Seaco
Interest as part of an IPO provided that at such time a
Renewed Franchise Arrangement has been entered into by
all parties thereto.
"Disposal Proceeds" means the consideration receivable by any
member of the Group or any Subsidiary of Silja Holdings Limited
(including any amount receivable in repayment of intercompany
debt) for any Disposal including any Sale of Security made by
any member of the Group.
"Excluded Disposal Proceeds" means, in respect of a Disposal (i)
all reasonable expenses (as agreed with the Agent) incurred by
any member of the Group and (ii) any amount applied in mandatory
prepayment of Existing Financial Indebtedness of any member of
the Group provided that the terms thereof are the same as those
originally entered into on or prior to the date of such
agreement, payable in each case to person(s) who are not members
of the Group.
"IPO" means a successful application for the admission of any
part of the share capital of any member of the Group to trading
on the London Stock Exchange or on any recognised investment
exchange.
"Net Disposal Proceeds" means any Disposal Proceeds less any
Excluded Disposal Proceeds.
(b) Promptly upon the occurrence of a Disposal, the Parent shall
notify the Agent in writing setting out the amount and
calculation of any such Disposal Proceeds.
(c) The aggregate of the Commitments of each Lender shall be
automatically cancelled by an amount equal to the Net Disposal
Proceeds promptly upon the Closing Date of any relevant Disposal
pro rata to their Commitments at such time and the Borrower
shall promptly prepay such Loans as to ensure that following
such prepayment, the aggregate of all Loans is equal to or less
than the Available Facility at such time after having taken into
account such cancellation.
29
(d) The Parent shall ensure that any Disposal Proceeds are paid
directly by the purchaser into the Mandatory Prepayment Account.
(e) Promptly after the Disposal Proceeds have been credited to the
Mandatory Prepayment Account, the Parent shall instruct the
Account Bank (pursuant to the Account Agreement) to transfer
such deposits to the Agent to effect prepayment of the Loans so
as to ensure that following such prepayment, the aggregate of
all Loans is equal to or less than the Available Facility at
such time after having taken into account such cancellation in
sub-clause (c) above, provided that:
(i) if the Disposal Proceeds are received by a member of the
Group in a currency other than dollars, the Parent shall
(or shall procure that the relevant Obligor shall) enter
into such FX Agreements as it deems necessary or
desirable to ensure that the Loans can be prepaid in
dollars; and
(ii) the dollar proceeds of any FX Agreement are paid
immediately (but, for the avoidance of doubt, prior to
the release of any Transaction Security) into the dollar
denominated Mandatory Prepayment Account.
(f) The Parent may utilise such deposits in satisfaction of purposes
covered by Excluded Disposal Proceeds provided that an Event of
Default has not occurred and is continuing.
8.7 Mandatory Prepayment and Cancellation - Secured Shares
(a) For the purpose of this Clause 8.7:
"Excluded OEH Proceeds" means all reasonable expenses (as agreed
with the Agent) incurred by any member of the Group relating to
an OEH Share Disposal.
"Net OEH Proceeds" means the OEH Share Proceeds less any
Excluded OEH Proceeds.
"OEH Share Disposal" means a sale of Secured Shares other than a
Permitted Share Disposal.
"OEH Share Proceeds" means the consideration receivable by any
member of the Group pursuant to an OEH Share Disposal.
"Permitted Share Disposal" means a sale of Secured Shares where,
at the time of such sale and immediately following such sale:
(i) no Default has occurred; and
(ii) the Parent is in compliance with Clause 21.1 (Coverage
Ratio).
30
(b) Promptly upon the occurrence of an OEH Share Disposal, the
Parent shall notify the Agent in writing setting out the amount
and calculation of any such OEH Share Proceeds.
(c) The aggregate of the Commitments of each Lender shall be
automatically cancelled by an amount equal to the Net OEH
Proceeds promptly upon the occurrence of any OEH Share Disposal
pro rata to their Commitments at such time and the Borrower
shall promptly prepay such Loans as to ensure that following
such prepayment, the aggregate of all Loans is equal to or less
than the Available Facility at such time after having taken into
account such cancellation. (d) The Parent shall ensure that any
OEH Share Proceeds are paid directly by the relevant creditor
into the Mandatory Prepayment Account on a delivery versus
payment basis.
(e) Promptly after the Disposal Proceeds have been credited to the
Mandatory Prepayment Account, the Parent shall instruct the
Account Bank (pursuant to the Account Agreement) to transfer
such deposits to the Agent to effect prepayment of the Loans so
as to ensure that following such prepayment, the aggregate of
all Loans is equal to or less than the Available Facility at
such time after having taken into account such cancellation in
sub-clause (c) above.
(f) The Parent may utilise such deposits in satisfaction of purposes
covered by Excluded OEH Proceeds provided that an Event of
Default has not occurred that is continuing.
8.8 Mandatory Cancellation
The Available Facility shall automatically be cancelled to zero on the
last day of the Availability Period.
8.9 Restrictions
(a) Any notice of cancellation or prepayment given by any Party
under this Clause 8 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or
dates upon which the relevant cancellation or prepayment is to
be made and the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
(c) Unless a contrary indication appears in this Agreement, any part
of the Facility which is prepaid may be reborrowed in accordance
with the terms of this Agreement.
(d) The Borrower shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at the
times and in the manner expressly provided for in this
Agreement.
31
(e) No amount of any Commitment cancelled under this Agreement may
be subsequently reinstated.
(f) If the Agent receives a notice under this Clause 8, it shall
promptly forward a copy of that notice to either the Borrower or
the affected Lender, as appropriate.
8.10 Mandatory Prepayment Account
A Lender or the Agent with which a Mandatory Prepayment Account is held
acknowledges and agrees that interest shall accrue at normal commercial
rates on amounts credited to those accounts and that the account holder
shall be entitled to receive such interest (which shall be paid in
accordance with mandates relating to such account).
32
SECTION 5
COSTS OF UTILISATION
9. Interest
9.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR; and
(c) Mandatory Cost, if any.
9.2 Payment of interest
The Borrower shall pay accrued interest on that Loan on the last day of
each Interest Period (and, if the Interest Period is longer than six
Months, on the dates falling at six Monthly intervals after the first
day of the Interest Period).
9.3 Default interest
(a) If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual
payment (both before and after judgment) at a rate which,
subject to paragraph (b) below, is one per cent higher than the
rate which would have been payable if the overdue amount had,
during the period of non-payment, constituted a Loan in the
currency of the overdue amount for successive Interest Periods,
each of a duration selected by the Agent (acting reasonably).
Any interest accruing under this Clause 9.3 shall be immediately
payable by the Obligor on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which
became due on a day which was not the last day of an Interest
Period relating to that Loan:
(i) the first Interest Period for that overdue amount shall
have a duration equal to the unexpired portion of the
current Interest Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount
during that first Interest Period shall be one per cent.
higher than the rate which would have applied if the
overdue amount had not become due.
(c) Default interest (if unpaid) arising on an overdue amount will
be compounded with the overdue amount at the end of each
Interest Period applicable to that overdue amount but will
remain immediately due and payable.
9.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
33
10. Interest Periods
10.1 Selection of Interest Periods
(a) The Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan.
(b) Each Utilisation Request for a Loan is irrevocable and must be
delivered to the Agent by the Borrower not later than the
Specified Time.
(c) If the Borrower, fails to deliver a Utilisation Request to the
Agent the relevant Interest Period will, subject to Clause 10.2
(Changes to Interest Periods), be one Month.
(d) Subject to this Clause 10, the Borrower, may select an Interest
Period of one or three Months or any other period agreed between
the Borrower and the Agent (acting on the instructions of all
the Lenders).
(e) An Interest Period for a Loan shall not extend beyond the Final
Repayment Date.
(f) Each Interest Period for a Loan shall start on the Utilisation
Date.
(g) A Loan has one Interest Period only.
10.2 Changes to Interest Periods
If the Agent makes any of the changes to an Interest Period referred to
in this Clause 10.2, it shall promptly notify the Borrower and the
Lenders.
10.3 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next Business
Day in that calendar month (if there is one) or the preceding Business
Day (if there is not).
11. Changes To The Calculation Of Interest
11.1 Absence of quotations
Subject to Clause 11.2 (Market disruption), if LIBOR is to be determined
by reference to the Reference Banks but a Reference Bank does not supply
a quotation by noon on the Quotation Day, the applicable LIBOR shall be
determined on the basis of the quotations of the remaining Reference
Banks.
11.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for
any Interest Period, then the rate of interest on each Lender's
share of that Loan for the Interest Period shall be the rate per
annum which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to
be paid in respect of that Interest Period, to be that
which expresses as a percentage rate per annum the cost
to that Lender of funding its participation in that Loan
from whatever source it may reasonably select; and
34
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement, "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and
none or only one of the Reference Banks supplies a rate
to the Agent to determine LIBOR for the relevant
currency and Interest Period; or
(ii) before close of business in London on the Quotation Day
for the relevant Interest Period, the Agent receives
notifications from a Lender or Lenders (whose
participations in a Loan exceed 35 per cent. of that
Loan) that the cost to it of obtaining matching deposits
in the Relevant Interbank Market would be in excess of
LIBOR.
11.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the
Borrower` so requires, the Agent and the Borrower shall enter
into negotiations (for a period of not more than thirty days)
with a view to agreeing a substitute basis for determining the
rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the
Borrower, be binding on all Parties.
11.4 Break Costs
(a) The Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by the Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the amount
of its Break Costs for any Interest Period in which they accrue.
12. Fees
12.1 Commitment fee
The Borrower shall pay to the Agent (for the account of each Lender) a
fee in dollars computed at the rate of the Commitment Fee on that
Lender's Available Commitment for the Availability Period.
The accrued commitment fee is payable on the last day of each successive
period of three Months which ends during the Availability Period, on the
last day of the Availability Period and, if cancelled in full, on the
cancelled amount of the relevant Lender's Commitment at the time the
cancellation is effective.
35
12.2 Arrangement fee
The Borrower shall pay to the Mandated Lead Arrangers an arrangement fee
in the amount and at the times agreed in a Fee Letter.
12.3 Agency and Trustee fee
The Borrower shall pay to the Agent (for its own account) an agency fee
and to the Trustee (for its own account) a security trustee fee in each
case in the amount and at the times agreed in a Fee Letter.
36
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13. Tax Gross Up And Indemnities
13.1 Definitions
(a) In this Agreement:
"Protected Party" means a Finance Party which is or will be
subject to any liability, or required to make any payment, for
or on account of Tax in relation to a sum received or receivable
(or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
"Qualifying Lender" means a Lender which is beneficially
entitled to interest payable to that Lender in respect of an
advance under a Finance Document and is:
(i) a Lender:
(A) which is a bank (as defined for the purpose of
section 349 of the Taxes Act) making an advance
under a Finance Document; or
(B) in respect of an advance made under a Finance
Document by a person that was a bank (as defined
for the purpose of section 349 of the Taxes Act)
at the time that that advance was made,
and which is within the charge to United Kingdom corporation tax
as respects any payments of interest made in respect of that
advance; or
(ii) a Lender which is:
(A) a company resident in the United Kingdom for
United Kingdom tax purposes;
(B) a partnership each member of which is a company
resident in the United Kingdom for United
Kingdom tax purposes; or
(C) a company not so resident in the United Kingdom
which carries on a trade in the United Kingdom
through a branch or agency and which brings into
account interest payable in respect of that
advance in computing its chargeable profits
(within the meaning given by section 11(2) of
the Taxes Act); or
(iii) a Treaty Lender.
37
"Tax Confirmation" means a confirmation by a Lender that the
person beneficially entitled to interest payable to that Lender
in respect of an advance under a Finance Document is either:
(i) a company resident in the United Kingdom, or a
partnership each member of which is a company resident
in the United Kingdom, for United Kingdom tax purposes;
or
(ii) a company not so resident in the United Kingdom which
carries on a trade in the United Kingdom through a
branch or agency and that interest payable in respect of
that advance falls to be brought into account in
computing the chargeable profits of that company for the
purposes of section 11(2) of the Taxes Act.
"Tax Credit" means a credit against, relief or remission for, or
repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
"Tax Payment" means either the increase in a payment made by an
Obligor to a Finance Party under Clause 13.2 (Tax gross-up) or a
payment under Clause 13.3 (Tax indemnity).
"Treaty Lender" means a Lender which:
(i) is treated as a resident of a Treaty State for the
purposes of a Treaty;
(ii) does not carry on a business in the United Kingdom
through a permanent establishment with which that
Lender's participation in the Loan is effectively
connected; and
(iii) if the relevant treaty contains additional conditions
(over and above those set out in paragraphs (i) and
(ii)) which must be satisfied by the relevant non-UK
lender in order to enable the Lender to receive interest
gross, the Lender has satisfied such additional
conditions.
"Treaty State" means a jurisdiction having a double taxation
agreement (a "Treaty") with the United Kingdom which makes
provision for full exemption from tax imposed by the United
Kingdom on interest.
"UK Non-Bank Lender" means:
(i) where a Lender becomes a Party on the day on which this
Agreement is entered into, a Lender listed in Part III
(The Original Lenders - UK Non-Bank Lenders) of Schedule
1 (The Original Parties); and
(ii) where a Lender becomes a Party to this Agreement after
the day on which this Agreement is entered into, a
Lender which gives a Tax Confirmation in the Transfer
Certificate which it executes on becoming a Party to
this Agreement.
38
(b) Unless a contrary indication appears, in this Clause 13 a
reference to "determines" or "determined" means a determination
made in the absolute discretion of the person making the
determination.
13.2 Tax gross-up
(a) Each Obligor shall make all payments to be made by it without
any Tax Deduction, unless a Tax Deduction is required by law.
(b) The Borrower shall promptly upon becoming aware that an Obligor
must make a Tax Deduction (or that there is any change in the
rate or the basis of a Tax Deduction) notify the Agent
accordingly. Similarly, a Lender shall notify the Agent on
becoming so aware in respect of a payment payable to that
Lender. If the Agent receives such notification from a Lender it
shall notify the Borrower and that Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor,
the amount of the payment due from that Obligor shall be
increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due
if no Tax Deduction had been required.
(d) An Obligor is not required to make an increased payment to a
Lender under paragraph (c) above for a Tax Deduction in respect
of tax imposed by the United Kingdom from a payment of interest
on a Loan, if on the date on which the payment falls due:
(i) the payment could have been made to the relevant Lender
without a Tax Deduction if it was a Qualifying Lender,
but on that date that Lender is not or has ceased to be
a Qualifying Lender other than as a result of any change
after the date it became a Lender under this Agreement
in (or in the interpretation, administration, or
application of) any law or Treaty, or any published
practice or concession of any relevant taxing authority;
or
(ii)
(1) the relevant Lender is a UK Non-Bank Lender, or
would have been a UK Non-Bank Lender were it not
for any change after the date it became a Lender
under this Agreement in (or in the
interpretation, administration, or application
of) any law or Treaty, or any published practice
or concession of any relevant taxing authority;
and
(2) the Board of the Inland Revenue has given (and
not revoked) a direction under section 349C of
the Taxes Act (as that provision has effect on
the date on which the relevant Lender became a
party to this Agreement) which relates to that
payment and that Obligor has notified that UK
Non-Bank Lender of the precise terms of that
notice; or
39
(iii) the relevant Lender is a Treaty Lender and the Obligor
making the payment is able to demonstrate that the
payment could have been made to the Lender without the
Tax Deduction had that Lender complied with its
obligations under paragraph (g) below.
(e) If an Obligor is required to make a Tax Deduction, that Obligor
shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and
in the minimum amount required by law.
(f) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Obligor making that Tax Deduction shall deliver to the Agent for
the Finance Party entitled to the payment an original receipt
(or certified copy thereof) evidencing to that Finance Party
that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
(g) A Treaty Lender and each Obligor which makes a payment to which
that Treaty Lender is entitled shall co-operate in completing
any procedural formalities necessary for that Obligor to obtain
authorisation to make that payment without a Tax Deduction.
(h) A UK Non-Bank Lender which becomes a Party on the day on which
this Agreement is entered into gives a Tax Confirmation to the
Borrower by entering into this Agreement.
(i) A UK Non-Bank Lender shall promptly notify the Borrower and the
Agent if there is any change in the position from that set out
in the Tax Confirmation.
13.3 Tax indemnity
(a) The Borrower shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be
or has been (directly or indirectly) suffered for or on account
of Tax by that Protected Party in respect of a Finance Document.
(b) Paragraph (a) above shall not apply:
(i) with respect to any Tax assessed on a Finance Party:
(1) under the law of the jurisdiction in which that
Finance Party is incorporated or, if different,
the jurisdiction (or jurisdictions) in which
that Finance Party is treated as resident for
tax purposes; or
(2) under the law of the jurisdiction in which that
Finance Party's Facility Office is located in
respect of amounts received or receivable in
that jurisdiction,
40
if that Tax is imposed on or calculated by
reference to the net income received or
receivable (but not any sum deemed to be
received or receivable) by that Finance Party;
or
(ii) to the extent a loss, liability or cost:
(1) is compensated for by an increased payment under
Clause 13.2 (Tax gross-up); or
(2) would have been compensated for by an increased
payment under Clause 13.2 (Tax gross-up) but was
not so compensated solely because one of the
exclusions in paragraph (d) of Clause 13.2 (Tax
gross-up) applied.
(c) A Protected Party making, or intending to make a claim under
paragraph (a) above shall promptly notify the Agent of the event
which will give, or has given, rise to the claim, following
which the Agent shall notify the Borrower.
(d) A Protected Party shall, on receiving a payment from an Obligor
under this Clause 13.3, notify the Agent.
13.4 Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable either to an increased payment of
which that Tax Payment forms part, or to that Tax Payment; and
(b) that Finance Party has obtained, utilised and fully retained
that Tax Credit on an affiliated group basis,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not been
required to be made by the Obligor.
13.5 Stamp taxes
The Borrower shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
13.6 Value added tax
(a) All consideration expressed to be payable under a Finance
Document by any Party to a Finance Party shall be deemed to be
exclusive of any VAT. If VAT is chargeable on any supply made by
any Finance Party to any Party in connection with a Finance
Document, that Party shall pay to the Finance Party (in addition
to and at the same time as paying the consideration) an amount
equal to the amount of the VAT.
(b) Where a Finance Document requires any Party to reimburse a
Finance Party for any costs or expenses, that Party shall also
at the same time pay and indemnify the Finance Party against all
VAT incurred by the Finance Party in respect of the costs or
expenses to the extent that the Finance Party reasonably
determines that it is not entitled to credit or repayment of the
VAT.
41
14. Increased Costs
14.1 Increased costs
(a) Subject to Clause 14.3 (Exceptions) the Borrower shall, within
three Business Days of a demand by the Agent, pay for the
account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a
result of (i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or
regulation or (ii) compliance with any law or regulation made
after the date of the Amendment Agreement.
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility or
on a Finance Party's (or its Affiliate's) overall
capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or
performing its obligations under any Finance Document.
14.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause
14.1 (Increased costs) shall notify the Agent of the event
giving rise to the claim, following which the Agent shall
promptly notify the Borrower.
(b) Each Finance Party shall, as soon as practicable after a demand
by the Agent, provide a certificate confirming the amount of its
Increased Costs.
14.3 Exceptions
(a) Clause 14.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be
made by an Obligor;
(ii) compensated for by Clause 13.3 (Tax indemnity) (or would
have been compensated for under Clause 13.3 (Tax
indemnity) but was not so compensated solely because any
of the exclusions in paragraph (b) of Clause 13.3 (Tax
indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant
Finance Party or its Affiliates of any law or
regulation.
42
(b) In this Clause 14.3, a reference to a "Tax Deduction" has the
same meaning given to the term in Clause 13.1 (Definitions).
15. Other Indemnities
15.1 Currency indemnity
(a) If any sum due from an Obligor under the Finance Documents (a
"Sum"), or any order, judgment or award given or made in
relation to a Sum, has to be converted from the currency (the
"First Currency") in which that Sum is payable into another
currency (the "Second Currency") for the purpose of:
(i) making or filing a claim or proof against that Obligor;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three
Business Days of demand, indemnify each Finance Party to whom
that Sum is due against any cost, loss or liability arising out
of or as a result of the conversion including any discrepancy
between (A) the rate of exchange used to convert that Sum from
the First Currency into the Second Currency and (B) the rate or
rates of exchange available to that person at the time of its
receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
15.2 Other indemnities
The Borrower shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify each Finance Party against any cost,
loss or liability incurred by that Finance Party as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 28
(Sharing among the Finance Parties);
(c) funding, or making arrangements to fund, its participation in a
Loan requested by a Borrower in a Utilisation Request but not
made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default or
negligence by that Finance Party alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with
a notice of prepayment given by the Borrower.
15.3 Indemnity to the Agent
The Borrower shall promptly indemnify the Agent against any cost, loss
or liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a
Default; or
43
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
16. Mitigation By The Lenders
16.1 Mitigation
(a) Each Finance Party shall, in consultation with the Borrower,
take all reasonable steps to mitigate any circumstances which
arise and which would result in any amount becoming payable
under or pursuant to, or cancelled pursuant to, any of Clause
8.1 (Illegality), Clause 13 (Tax gross up and indemnities),
Clause 14 (Increased costs) or paragraph 3 of Schedule 4
(Mandatory Cost Formulae) including (but not limited to)
transferring its rights and obligations under the Finance
Documents to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of
any Obligor under the Finance Documents.
16.2 Limitation of liability
(a) The Borrower shall indemnify each Finance Party for all costs
and expenses reasonably incurred by that Finance Party as a
result of steps taken by it under Clause 16.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause
16.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
17. Costs And Expenses
17.1 Transaction expenses
The Borrower shall promptly on demand pay the Agent and the Mandated
Lead Arrangers the amount of all reasonable documented valuation
expenses, travelling expenses, professional fees and reports, and
"out-of-pocket" expenses including legal expenses reasonably incurred by
any of them in connection with due diligence, drafting, negotiation,
preparation, printing, execution, closing, syndication and maintenance
of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of the
Amendment Agreement.
17.2 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 29.9 (Change of currency), the
Borrower shall, within three Business Days of demand, reimburse the
Agent for the amount of all costs and expenses (including legal fees)
reasonably incurred by the Agent in responding to, evaluating,
negotiating or complying with that request or requirement.
17.3 Enforcement costs
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement
of, or the preservation of any rights under, any Finance Document.
44
17.4 Collateral costs
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the perfection
or enforcement of the collateral constituted by any Security Document or
the exercise of any rights thereunder.
45
SECTION 7
GUARANTEE
18. Guarantee And Indemnity
18.1 Guarantee and indemnity
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by the
Borrower of all of its obligations under the Finance Documents;
(b) undertakes with each Finance Party that whenever the Borrower
does not pay any amount when due under or in connection with any
Finance Document, that Guarantor shall immediately on demand pay
that amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party (a) if
any obligation guaranteed by it is or becomes unenforceable,
invalid or illegal or (b) by operation of law. The amount of the
cost, loss or liability shall be equal to the amount which that
Finance Party would otherwise have been entitled to recover.
18.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
18.3 Reinstatement
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security
for those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from each Obligor, as if the
payment, discharge, avoidance or reduction had not occurred.
18.4 Waiver of defences
The obligations of each Guarantor under this Clause 18 will not be
affected by an act, omission, matter or thing which, but for this
Clause, would reduce, release or prejudice any of its obligations under
this Clause 18 (without limitation and whether or not known to it or any
Finance Party) including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of any
member of the Group;
46
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Obligor or other
person or any non-presentation or non-observance of any
formality or other requirement in respect of any instrument or
any failure to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality
of or dissolution or change in the members or status of an
Obligor or any other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document
or security; or
(g) any insolvency or similar proceedings.
18.5 Immediate recourse
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed against
or enforce any other rights or security or claim payment from any person
before claiming from that Guarantor under this Clause 18. This waiver
applies irrespective of any law or any provision of a Finance Document
to the contrary.
18.6 Appropriations
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit
(whether against those amounts or otherwise) and no Guarantor
shall be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of any Guarantor's liability
under this Clause 18.
18.7 Deferral of Guarantors' rights
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or
security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party.
47
18.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance
Party.
18.9 Limitation on U.S. Guarantors
Any term or provision of this Clause 17 or any other term in this
Agreement or any Finance Document notwithstanding, the maximum aggregate
amount of the obligations for which any U.S. Obligor shall be liable
hereunder shall in no event exceed an amount equal to the largest amount
that would not render such U.S. Obligor's obligations hereunder, subject
to avoidance under applicable United States federal or state fraudulent
conveyance laws.
18.10 Limitation on Bermuda Guarantors
Any term or provision of this Clause 17 or any other term in this
Agreement or any Finance Document shall not extend to any liability or
sum which, after giving effect to any rights of contribution of any
Bermuda Obligor among themselves, would cause the undertaking or
discharge of such obligation by such Bermuda Obligor to be unlawful or
prohibited by any applicable Bermudan law.
18.11 Limitation on Finnish Guarantor
The obligations and liabilities of the Finnish Guarantor shall be
limited to guarantees and indemnities pursuant to this Clause 18
(Guarantee and Indemnity) on behalf of, or in respect of the obligations
or liabilities of, any Obligor that meets the following requirements:
(a) the amount secured is covered by the unrestricted distributable
equity of the Finnish Guarantor and adequate and sufficient duly
perfected counter security has been provided to the Finnish
Guarantor and is in full force and effect; or
(b) such Obligor qualifies as a group company of the Finnish
Guarantor under the Finnish Companies Act, Chapter 12, Section
7, Paragraph 2, Subparagraph 2, (osakeyhtiolaki, 29.9.1978/734,
as amended); or
(c) the guarantee and indemnity hereunder is provided for business
reasons and is intended solely for the Obligors' business
activities and the period for which the guarantee and indemnity
hereunder is provided is no longer than is customary for such
guarantees, as defined in the Finnish Companies Act Chapter 12,
Section 7, Paragraph 2, Subparagraph 3; and
(d) the guarantee and indemnity hereunder is not given contrary to
the provisions of financial assistance within the meaning of
Chapter 12, Section 7, Paragraph 3 of the Finnish Companies Act.
48
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19. Representations
Each Obligor in relation to itself and the Parent, on behalf of each
other member of the Group which is not an Obligor, makes the
representations and warranties set out in this Clause 19 to each Finance
Party on the date of this Agreement (other than in relation to the
Information Package which shall be made in accordance with Clause 19.39
(Repetition)).
19.1 Status
(a) It is a corporation, duly incorporated and validly existing
under the law of its jurisdiction of incorporation.
(b) It and each of its Subsidiaries has the power to own its assets
and carry on its business as it is being conducted.
19.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law as at the date of this
Agreement limiting its obligations which are specifically referred to in
any legal opinion delivered pursuant to Clause 4 (Conditions of
Utilisation) legal, valid, binding and enforceable obligations.
19.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not conflict
with:
(a) any law or regulation applicable to it;
(b) its or any of its Subsidiaries' constitutional documents; or
(c) any agreement or instrument binding upon it or any of its
Subsidiaries or any of its or any of its Subsidiaries' assets.
19.4 Power and authority
(a) It has the power to enter into, perform and deliver, and has
taken all necessary action to authorise its entry into,
performance and delivery of, the Finance Documents to which it
is a party and the transactions contemplated by those Finance
Documents.
(b) It and each of its Subsidiaries has the power and has taken all
necessary corporate action to authorise it to own its property
and assets and to carry on its business as currently conducted.
(c) No limit on its powers will be exceeded as a result of the
borrowing, grant of security or giving of guarantees or
indemnities contemplated by the Finance Documents to which it is
a party.
49
19.5 Authorisations
(a) All Authorisations required or reasonably desirable:
(i) to enable it lawfully to enter into, exercise its rights
and comply with its obligations in the Finance Documents
to which it is a party;
(ii) to make the Finance Documents to which it is a party
admissible in evidence in each Relevant Jurisdiction;
(iii) subject to the Legal Reservations, to make the Finance
Documents to which it is a party admissible in evidence
in its Relevant Jurisdictions,
have been obtained or effected and are in full force and effect
except any such requirement in connection with the Transaction
Security Documents which will be made promptly after the
execution of the relevant Transaction Security Document and in
any event within the applicable time limits in accordance with
the terms hereof.
(b) All contracts, licences, consents and Authorisations necessary
or desirable for carrying on the conduct of the business, trade
and ordinary activities of it and any member of the Group have
been obtained or effected, are in full force and effect and are
not likely to be revoked, amended or unavailable to it or any
member of the Group and no notice of an intention to terminate
any such contract, licence, consent or Authorisation has been
received by it or any member of the Group.
(c) To the extent that it is under any obligation to comply, it has
at all times complied with the Port Legislation.
(d) All Authorisations necessary for the conduct of the business,
trade and ordinary activities of members of the Group including
under, or in connection with, the ISM Code have been obtained or
effected and are in full force and effect.
19.6 Solvency
(a) Neither it nor any member of the Group is unable or has admitted
inability to pay its debts as they fall due or has suspended
making payments on any of its debts or, by reason of actual or
anticipated financial difficulties, commenced negotiations with
one or more of its creditors with a view to rescheduling any of
its indebtedness.
(b) The value of the assets of it or any member of the Group is not
less than the liabilities of it or that member of the group
(taking into account contingent and prospective liabilities).
(c) A moratorium has not been declared in respect of any of the
indebtedness of it or any member of the Group.
(d) No event or circumstance described in Clause 23.6 (Insolvency)
or Clause (Creditors' process) has been taken or, to the
knowledge of the Borrower, threatened in relation to it or any
member of the Group.
50
19.7 Governing law and enforcement
(a) The choice of governing law of each of the Finance Documents
will be recognised and enforced in each Relevant Jurisdiction.
(b) Any judgment obtained in England in relation to a Finance
Document will be recognised and enforced in each Relevant
Jurisdiction.
19.8 Deduction of Tax
It is not required under the law of each Relevant Jurisdiction to make
any deduction for or on account of Tax from any payment it may make
under any Finance Document.
19.9 No filing or stamp taxes
Under the law of each Relevant Jurisdiction it is not necessary that the
Finance Documents be filed, recorded or enrolled with any court or other
authority in that jurisdiction or that any stamp, registration, notarial
or similar Taxes or fees be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance Documents
except any filing, recording or enrolling or any tax or fee payable in
connection with the Transaction Security or notified to the Agent prior
to the date of the Amendment Agreement.
19.10 No default
(a) No Default is continuing or might reasonably be expected to
result from the making of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes
a default under any other agreement or instrument which is
binding on it or any of its Subsidiaries or to which its (or its
Subsidiaries') assets are subject which might reasonably be
expected to have a Material Adverse Effect.
(c) The Franchise Agreement, Temporary Extension or the Renewed
Franchise Arrangement, as the case may be, is in full force and
effect and no Event of Default (as defined therein) has occurred
and no other event or circumstance has occurred or is subsisting
which might reasonably be expected to lead to the termination of
the Franchise Agreement, Temporary Extension or the Renewed
Franchise Arrangement.
19.11 No misleading information
(a) Any factual information including, for the avoidance of doubt
and without limitation, the Franchise Termination Assessment
Memorandum, the Litigation Settlement Memoranda, the Memoranda
Update Certificate and any information provided to potential
bidders in relation to the acquisition of any of (or any member
of) the Disposal Group, provided by it or any member of the
Group was true and accurate in all material respects as at the
date it was provided or as at the date (if any) at which it is
stated and is not misleading in any respect.
(b) The financial projections provided by it or any member of the
Group have been prepared on the basis of recent historical
information and on the basis of reasonable assumptions.
51
(c) Nothing has occurred or been omitted from any information
provided by it or any member of the Group and no information has
been given or withheld that results in such information being
untrue or misleading in any material respect.
(d) Network Rail has the obligation to pay CP2 Payments (as defined
in paragraph 6 of the Litigation Settlement Memorandum relating
to the Xxxxxxxx Litigation) by way of recompense for poor
performance from April 2001 to members of the Group and without
set-off, deduction or counterclaim.
(e) As at the date of the Amendment Agreement, the Interim Recovery
is at least (pound)166,000,000.
19.12 Non-disclosure
All information (as supplemented from time to time) that has been or
will hereafter be made available to the Finance Parties by the Obligors,
the Parent or any of their representatives in connection with the
transactions contemplated by the Finance Documents is and will at all
times be complete and correct in all material respects and does not and
will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
contained therein not misleading in light of the circumstances under
which such statements were or are made.
19.13 Financial statements
(a) Its latest Financial Statements (being those most recently
delivered to the Agent) were prepared in accordance with
Relevant GAAP consistently applied.
(b) Its latest Financial Statements (being those most recently
delivered to the Agent) fairly represent its financial condition
and operations (consolidated in the case of the Parent) during
the relevant financial year.
19.14 Material Adverse Change
There has been no change in its business, condition (financial or
otherwise), prospects or operations of the Group (taken as a whole), any
Disposal Group (taken as a whole) or the Borrower, since 31 December
2003 which might reasonably be expected to have a Material Adverse
Effect.
19.15 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
19.16 No proceedings pending or threatened
(a) No investigation, litigation, arbitration or administrative
proceedings of or before any court, arbitral body or agency
(including, but not limited to, investigative proceedings) which
if adversely determined might reasonably be expected to have a
Material Adverse Effect have (to the best of its knowledge and
belief and other than as disclosed) been started or threatened
against it or any of its Subsidiaries.
(b) No labour disputes, which would reasonably be expected to have a
Material Adverse Effect, have been started or (to the best of
its knowledge and belief after making reasonable enquiries of
the relevant members of the management of the Group) threatened
against it or any of its Subsidiaries.
52
(c) No unsatisfied judgement or award given against it or any member
of the Group by any court, arbitral body or agency exists which
might reasonably be expected to have a Material Adverse Effect
(other than in relation to any judgement or award other than a
final judgement or award, which is being contested in good
faith).
19.17 Environmental compliance and environmental claims
(a) Each member of the Group has:
(i) complied in all material respects with all laws to which
it may be subject, if failure so to comply would
materially impair its ability to perform its obligations
under the Finance Documents; and
(ii) has performed and observed in all material respects all
Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or
agreements directly or indirectly concerned with any
contamination, pollution or waste or the release or
discharge of any toxic or hazardous substance in
connection with any real property which is or was at any
time owned, leased or occupied by it or any member of
the Group or on which it or any member of the Group has
conducted any activity;
(iii) has performed all material covenants, conditions,
restrictions, agreements, statutory requirements,
planning consents, bye-laws, orders and regulations
affecting any property which it or any member of the
Group is or has occupied or conducted any activity in,
including relating to the Environment, no notice of any
breach of any such matter has been received and as far
as the Parent is aware, there are no grounds for any
such notice being issued;
(iv) has no Environmental Claim or potential liability
relating to the Environment (which has not been
disclosed to the Agent in writing prior to the date of
this Agreement) commenced against it (or to the best of
its knowledge and belief) threatened against it in
connection with its acts or omissions (whether in
respect of any properties or the ships owned or operated
by it or otherwise) nor in connection with the acts or
omissions of any predecessor in title to any properties
or the ships owned or operated by it where such claim or
potential liability would be reasonably likely, if
determined against it or that member of the Group to
have a Material Adverse Effect;
(v) has at all times been, and is in compliance with
Environmental Laws, has not caused or permitted any
liability to arise under them and no circumstances exist
which are or ought reasonably to be known which might be
expected to prevent it or any member of the Group being
in compliance with any Environmental Laws or result in
any liability under them;
53
(vi) has no knowledge of any circumstances existing which may
reasonably be expected to prevent or interfere with
compliance with Environmental Permits in the future
which have not been disclosed in writing to the Agent
prior to the date of this Agreement; and
(b) The future cost of compliance with Environmental Laws by it and
any member of the Group is adequately provided for in the annual
budget of the Parent.
19.18 Joint ventures
No member of the Group (other than the Parent) has entered into any
partnership, joint venture or other agreement with any person outside
the Group for the joint development of any business or the sharing of
any assets or revenues derived from any business other than normal
commercial arrangements entered into on arm's length terms consistent
with the normal course of the Group's business other than Permitted
Joint Ventures.
19.19 Taxation
(a) It has duly and punctually paid and discharged all Taxes imposed
upon it or its assets within the time period allowed without
incurring penalties (save to the extent that (i) payment is
being contested in good faith, (ii) it has maintained adequate
reserves for those Taxes and (iii) payment can be lawfully
withheld).
(b) It is not materially overdue in the filing of any Tax returns
where such late filing would reasonably be expected to have a
Material Adverse Effect.
(c) No claims are being or are reasonably likely to be asserted
against it with respect to Taxes which would reasonably be
expected to have a Material Adverse Effect.
(d) Save as disclosed in the Original Financial Statements no member
of the Group has any material unindemnified tax liabilities.
19.20 Security
No third party consents or regulatory approvals are required for the
purposes of a sale of all or part of the Charged Property.
19.21 Ranking
The Transaction Security (other than the Silja Pledge) has or will have
first ranking priority and it is not subject to any prior ranking or
pari passu ranking Security (other than Transaction Security).
19.22 Transaction Security
Each Security Document to which it is a party validly creates the
Security which is expressed to be created by that Security Document and
evidences the Security it is expressed to evidence and is enforceable in
accordance with its terms.
54
19.23 Good Title to Assets
It has good, valid and marketable title to, or valid leases or licences
of, and all appropriate Authorisations to use, the assets necessary to
carry on its business as presently conducted.
19.24 Legal and Beneficial Owner
It is the absolute legal owner and beneficial owner of the assets
subject to the Transaction Security free from any Security, claims or
competing interests whatsoever other than the Existing Security.
19.25 Shares
(a) The constitutional documents of companies whose shares are
subject to the Transaction Security do not and will not restrict
or inhibit any transfer of those shares on creation or on
enforcement of the Transaction Security or, in the case of
Secured Shares, upon sale thereof pursuant to Clause 8.7
(Mandatory Prepayment and Cancellation - Secured Shares) hereof.
(b) The applicable shares which are subject to the Transaction
Security are fully paid and not subject to any option to
purchase or similar rights.
(c) There are no agreements in force which provide for the issue or
allotment of, or grant any person the right to call for the
issue or allotment of, any share or loan capital (including any
option or right of pre-emption or conversion) of any member of
the Group.
19.26 Intellectual Property
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its Intellectual Property which would
reasonably be expected to have a Material Adverse Effect.
19.27 Business Assets
It and each of its Subsidiaries has a good, valid and marketable title
to or valid leases or licences of and all appropriate Authorisations to
use all assets to carry on its business as presently conducted.
19.28 Pensions
It and each member of the Group is in material compliance with all
applicable laws and contracts relating to the pension schemes (if any)
operated by it or in which it participates (other than those pension
schemes subject to ERISA) and each such pension scheme is fully funded
to the extent required by law by provision in the relevant balance sheet
or otherwise) based on reasonable actuarial assumptions and administered
and funded in accordance with applicable law.
19.29 Insurances
To the best of its knowledge, information and belief:
(a) each of the insurance policies by which it is covered is in full
force and effect;
(b) there has been no material breach of any term of any insurance
policy which would entitle the relevant insurer to avoid the
same;
55
(c) in respect of each insurance policy, all premiums due have been
paid in full (save in respect of normal credit terms for payment
of premiums) and there are no material outstanding claims under
it;
(d) where a member of the Group operates, owns or bare boat charters
(as the case may be) Ferries, it is covered under group and
other insurance policies in respect of such risks and amounts as
would be usually covered by a reasonably prudent owner and
operator of ferry services and tourism-related activities in any
area where it operates such services or activities;
(e) where a member of the Group operates, owns or bare boat charters
(as the case may be) Ferries, in respect of each Ferry owned or
operated by it, hull and machinery insurance is maintained on
its behalf for a total loss representing an amount at least
equal to its full replacement value with a vessel of similar
size, nature, purpose and capacity and for partial loss in an
amount at least equal to the repair value, as determined in
accordance with market practice generally; and
(f) where a member of the Group operates, owns or bare boat charters
(as the case may be) Ferries, in respect of an vessel which it
owns or which it bare boat charters, protection and indemnity
insurance is maintained by it or on its behalf.
19.30 Ferries
(a) Each Ferry is:
(i) in the absolute legal and beneficial ownership of a
member of the Group, subject to any Existing Security;
and
(ii) operated under legal, valid, enforceable and binding
charters from their owners and are registered in the
names of their operators at the appropriate national
registry.
(b) Each Ferry has been issued with all necessary governmental
documentation necessary to permit it to carry on its business in
the usual course and all such documentation is valid and
current.
19.31 Health and safety regulation
Each member of the Group is compliant in all material respects with all
the applicable provisions of law and regulation covering health and
safety at work.
19.32 Group Structure Chart
The Group Structure Chart delivered to the Agent pursuant to Clause 4
(Conditions of Utilisation) shows each member of the Group and
accurately and completely represents the corporate ownership structure
of the Group.
19.33 Financial Year End
Its financial year end, and the financial year end of the Group, is 31
December.
19.34 ERISA and Multiemployer Plans
(a) Neither any US Obligor nor any ERISA Affiliate is making or
accruing an obligation to make contributions or has within any
of the five calendar years immediately preceding the date of
this Agreement made or accrued an obligation to make
contributions to any Multiemployer Plan.
56
(b) Each Employee Plan is in compliance in form and operation with
ERISA and the Code and all other applicable laws and
regulations.
(c) Each Employee Plan which is intended to be qualified under
Section 401(a) of the Code has been determined by the IRS to be
so qualified or is in the process of being submitted to the IRS
for approval or will be so submitted during the applicable
remedial amendment period, and, to the knowledge of the
Borrower, nothing has occurred since the date of such
determination that would adversely affect such determination
(or, in the case of an Employee Plan with no determination,
nothing has occurred that would materially adversely affect such
qualification).
(d) There has been no increase in the amount of Unfunded Pension
Liability with respect to any Employee Plan as it existed on the
date of this Agreement.
(e) There are no actions, suits or claims pending against or
involving an Employee Plan (other than routine claims for
benefits) or, to the knowledge of the Borrower, any US Obligor
or any ERISA Affiliate, threatened, which would reasonably be
expected to be asserted successfully against any Employee Plan.
(f) Each US Obligor and any ERISA Affiliate has made all
material contributions to or under each such Employee Plan
required by law within the applicable time limits prescribed
thereby, the terms of such Employee Plan, or any contract or
agreement requiring contributions to an Employee Plan.
(g) Neither any US Obligor nor any ERISA Affiliate has ceased
operations at a facility so as to become subject to the
provisions of Section 4068(a) of ERISA, withdrawn as a
substantial employer so as to become subject to the provisions
of Section 4063 of ERISA or ceased making contributions to any
Employee Plan subject to Section 4064(a) of ERISA to which it
made contributions.
(h) Neither any US Obligor nor any ERISA Affiliate has incurred or
reasonably expects to incur any liability to PBGC save for any
liability for premiums due in the ordinary course or other
liability which would not reasonably be expected to have a
Material Adverse Effect.
19.35 Margin Stock
(a) No US Obligor is engaged nor will it engage principally, or as
one of its important activities, in the business of owning or
extending credit for the purpose of "buying" or "carrying" any
Margin Stock.
(b) None of the proceeds of the Loans or other extensions of credit
under this Agreement will be used, directly or indirectly, for
the purpose of buying or carrying any Margin Stock, for the
purpose of reducing or retiring any Indebtedness that was
originally incurred to buy or carry any Margin Stock or for any
other purpose which might cause all or any Loans or other
extensions of credit under this Agreement to be considered a
"purpose credit" within the meaning of Regulation U or
Regulation X.
57
(c) No US Obligor or any agent acting on its behalf has taken or
will take any action which might cause the Finance Documents to
violate any regulation of the Board of Governors of the Federal
Reserve System of the United States.
19.36 Investment Companies
No US Obligor is an "investment company" or an "affiliated person" of an
"investment company" as such terms are defined in the Investment Company
Act of 1940 of the United States (the "1940 Act") or otherwise subject
to regulation under the 1940 Act or subject to regulation under the
Public Utility Holding Company Act of 1935 of the United States, the
Federal Power Act of 1935 of the United States or any United States
federal or state statute or regulation restricting or limiting its
ability to incur indebtedness.
19.37 Anti-Terrorism Laws
(a) None of the Obligors or, to the knowledge of any of the
Obligors, any of their Affiliates, is in violation of any laws
relating to terrorism or money laundering ("Anti-Terrorism
Laws"), including Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001 (the "Executive Order"),
and the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism
Act of 2001, Public Law 107-56.
(b) No Obligor or, to the knowledge of any of the Obligors, any of
their Affiliates, or their respective brokers or other agents
acting or benefiting in any capacity in connection with the
Facility, is any of the following:
(i) a person or entity that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive
Order;
(ii) a person or entity owned or controlled by, or acting for
or on behalf of, any person or entity that is listed in
the annex to, or is otherwise subject to the provisions
of, the Executive Order;
(iii) a person or entity with which any Lender is prohibited
from dealing or otherwise engaging in any transaction by
any Anti-Terrorism law;
(iv) a person or entity that commits, threatens or conspires
to commit or supports "terrorism" as defined in the
Executive Order; or
(v) a person or entity that is named as a "specially
designated national and blocked Person" on the most
current list published by the US Treasury Department
Office of Foreign Asset Control at its official website
or any replacement website or other replacement official
publication of such list.
(c) No Obligor, or to the knowledge of any Obligor, any of its
brokers or other agents acting in any capacity in connection
with the Facility (i) conducts any business or engages in making
or receiving any contribution of funds, goods or services to or
for the benefit of any person described in paragraph above, (ii)
deals in, or otherwise engages in any transaction relating to,
any property or interests in property blocked pursuant to the
Executive Order, or (iii) engages in or conspires to engage in
any transaction that evades or avoids, or has the purpose of
evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.
58
19.38 Registration Statement
The SEC has declared the Existing Shelf Registration Statement (as
defined in Clause 21.43 (Registration Rights and Indemnity Agreement))
as amended, effective. The Existing Shelf Registration Statement allows
for the sale of the Listed OEH Shares as contemplated by Clause 7.8
(Mandatory Prepayment and Cancellation - Secured Shares). The SEC has
issued no order preventing or suspending the use of the Existing Shelf
Registration Statement or any amendment thereto.
19.39 Repetition
On the date of each Utilisation Request and the first day of each
Interest Period the Repeating Representations shall be deemed to be made
by each Obligor (by reference to the facts and circumstances then
existing).
19.40 Obligors' acknowledgement
Each Obligor and the Parent acknowledges that the Finance Parties have
provided the Facility in reliance on the representations and warranties
expressly set out in this Clause 19 and not on any other information
contradictory to or varying them of which any Finance Party or its
agents or advisers may have actual or constructive knowledge.
20. Information Undertakings
The undertakings in this Clause remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
20.1 Financial statements
The Parent shall, and, as applicable, shall procure that each Obligor
referred to below will, supply to the Agent in sufficient copies for all
the Lenders:
(a) as soon as the same become available, but in any event within
180 days after the end of each of its financial years, in
relation to each of, the:
(i) Parent and the Borrower, its audited consolidated
financial statements for that financial year; and
(ii) Parent, the Borrower, GNER Holdings Limited, GNER
Limited and Sea Containers Railway Services Limited, its
audited financial statements for that financial year;
(b) as soon as the same become available, but in any event within 90
days after the end of each half of each of its financial years,
in relation to each of, the:
(i) Parent and the Borrower, its consolidated financial
statements for that financial half year; and
59
(ii) Parent, the Borrower, GNER Holdings Limited, GNER
Limited and Sea Containers Railway Services Limited, its
financial statements for that financial half year;
(c) as soon as the same become available, but in any event within 60
days after the end of each quarter of each of its financial
years, in relation to each of the:
(i) Parent and the Borrower, its consolidated financial
statements for that period; and
(ii) Parent, the Borrower, GNER Holdings Limited, GNER
Limited and Sea Containers Railway Services Limited, its
financial statements of that period;
(d) as soon as it becomes available and not later than 30 days
before the start of its financial year, an itemised consolidated
budget for the Group as a whole for the next financial year in
the format approved by the Agent for the financial year 2003,
such budget to have been approved by the directors of the
Parent, to include for each quarter of each of its financial
years consolidated statements and statements for each member of
the Group which is trading, of forecast profit and loss,
turnover and cash flow and a balance sheet; together with a
commentary on the above and to contain such other information as
is necessary in the reasonable opinion of the Agent;
(e) subject to a request from the Agent, acting reasonably, as soon
as the same become available, but in any event:
(i) within 6 weeks after the end of each quarter of each of
its financial years its quarterly unaudited management
accounts and which shall include in respect of such
period a statement of its profit and loss;
(ii) within 120 days after the end of each of its financial
years copies of all registration statements (other than
the exhibits thereto) and reports on Form 10-K (or its
equivalent) which it shall or should have filed with the
SEC;
(iii) within 90 days after the end of each quarter of each of
its financial years all registration statements (other
than the exhibits thereto) and reports on Form 10-Q (or
its equivalent) which it shall or should have filed with
the SEC;
(f) upon the request of the Agent acting reasonably:
(i) such information, documents and records about the
property, business, financial condition, operations and
prospects of the Parent and any member of the Group as
the Agent may from time to time reasonably require;
(ii) in relation to any member of the Group, as soon as they
become available, but in any event within 30 days after
the end of each quarter of the relevant member of the
Group's financial years, its consolidated financial
statements (where relevant) and/or its financial
statements for that period; and
60
(iii) in relation to any member of the Group, as soon as they
become available, but in any event within 6 weeks after
the end of each quarter of the relevant member of the
Group's financial years, its quarterly unaudited
management accounts and which shall include in respect
of such period a statement of its profit and loss.
20.2 Compliance Certificate
(a) The Borrower shall supply to the Agent with each set of its
financial statements delivered pursuant to paragraph (b)(i) or
(c)(i) of Clause 20.1 (Financial Statements), a Compliance
Certificate setting out (in reasonable detail) computations as
to compliance with Clause 21 (Security Cover and Financial
Covenants) as at the date as at which those financial statements
were drawn up.
(b) Each Compliance Certificate shall be signed by an Authorised
Signatory of the Parent who is a finance officer and, if
required to be delivered with the financial statements delivered
pursuant to paragraph (a)(i) of Clause 20.1 (Financial
statements), shall be in the form agreed by the Borrower and all
the Lenders before the date of the Amendment Agreement.
20.3 Requirements as to financial statements
(a) Each set of financial statements delivered by the Parent and the
Borrower and any other Obligor pursuant to Clause 20.1
(Financial statements) shall be certified by a director of the
relevant company and by an Authorised Signatory of the Parent,
in each case, as fairly representing its financial condition as
at the date as at which those financial statements were drawn
up.
(b) The Parent shall procure that each set of financial statements
delivered pursuant to Clause 20.1 (Financial statements) is
prepared using Relevant GAAP.
20.4 Information: miscellaneous
The Borrower shall, and procure that each Obligor shall supply to the
Agent (in sufficient copies for all the Lenders, if the Agent so
requests):
(a) all documents dispatched by any member of the Group to its
shareholders (or any class of them) or its creditors generally
at the same time as they are dispatched and all documents
dispatched by OEH to the Parent;
(b) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which are
current, threatened or pending against any member of the Group
or OEH, and which might, if adversely determined, be reasonably
expected to have a Material Adverse Effect;
(c) promptly, such further information regarding the financial
condition, business and operations of any member of the Group or
OEH as any Finance Party (through the Agent) may reasonably
request; and
61
(d) promptly from time to time, any information relating to any
matter the subject of any Litigation Settlement Memoranda,
including without limitation, any amount to be paid to the SRA
by any member of the Group or any recovery agreed or determined
to be made from Network Rail by any member of the Group in
relation thereto.
20.5 Notification of default
(a) Each Obligor shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming
aware of its occurrence (unless that Obligor is aware that a
notification has already been provided by another Obligor).
(b) Promptly upon a request by the Agent, the Borrower shall supply
to the Agent a certificate signed by two of its directors or
senior officers on its behalf certifying that no Default is
continuing (or if a Default is continuing, specifying the
Default and the steps, if any, being taken to remedy it).
20.6 Use of websites
(a) The Borrower or any member of the Group may satisfy its
obligation under this Agreement to deliver any information in
relation to those Lenders ( the "Website Lenders") who accept
this method of communication by posting this information onto an
electronic website designated by the Borrower and the Agent (the
"Designated Website") if:
(i) the Agent expressly agrees (after consultation with each
of the Lenders) that it will accept communication of the
information by this method;
(ii) both the Borrower and the Agent are aware of the address
of and any relevant password specifications for the
Designated Website; and
(iii) the information is in a format previously agreed between
the Borrower and the Agent.
If any Lender (a "Paper Form Lender") does not agree to the
delivery of information electronically then the Agent shall
notify the Borrower accordingly and the Borrower shall supply
the information to the Agent (in sufficient copies for each
Paper Form Lender) in paper form. In any event the Borrower
shall supply the Agent with at least one copy in paper form of
any information required to be provided by it.
(b) The Agent shall supply each Website Lender with the address of
and any relevant password specifications for the Designated
Website following designation of that website by the Borrower
and the Agent.
(c) The Borrower shall promptly upon becoming aware of its
occurrence notify the Agent if:
(i) the Designated Website cannot be accessed due to
technical failure;
(ii) the password specifications for the Designated Website
change;
62
(iii) any new information which is required to be provided
under this Agreement is posted onto the Designated
Website;
(iv) any existing information which has been provided under
this Agreement and posted onto the Designated Website is
amended; or
(v) the Borrower becomes aware that the Designated Website
or any information posted onto the Designated Website is
or has been infected by any electronic virus or similar
software.
If the Borrower notifies the Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information to be provided by the
Borrower under this Agreement after the date of that notice
shall be supplied in paper form unless and until the Agent and
each Website Lender is satisfied that the circumstances giving
rise to the notification are no longer continuing.
(d) Any Website Lender may request, through the Agent, one paper
copy of any information required to be provided under this
Agreement which is posted onto the Designated Website. The
Borrower shall comply with any such request within ten Business
Days.
20.7 ERISA-Related Information
The Borrower shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) promptly and in any event within thirty days after any US
Obligor and each ERISA Affiliate (each, a "Relevant Company")
knows or has reason to know that any ERISA Event which,
individually or when aggregated with any other ERISA Event,
would reasonably be expected to have a Material Adverse Effect,
the written statement of a finance officer of such Relevant
Company describing such ERISA Event and the action, if any,
which it proposes to take with respect thereto and a copy of any
notice filed with the PBGC or the IRS pertaining thereto;
providing that, in the case of ERISA Events under paragraph (d)
of the definition thereof, the 15-day period set forth above
shall be a 10-day period, and, in the case of ERISA Events under
paragraph (b) of the definition thereof, in no event shall
notice be given later than the occurrence of the ERISA Event;
(b) promptly and in any event within 15 days after any Relevant
Company files a Schedule B (or such other schedule as contains
actuarial information) to IRS Form 5500 in respect of an
Employee Plan with Unfunded Pension Liabilities, a copy of such
IRS Form 5500 (including the Schedule B); and
(c) promptly, and in any event within 30 days, after becoming aware
that there has been (A) a material increase in Unfunded Pension
Liabilities, taking into account only Employee Plans with
positive Unfunded Pension Liabilities; (B) a material increase
in potential withdrawal liability under Section 4201 of ERISA,
if the Relevant Company were to completely or partially withdraw
from all Multiemployer Plans; (C) the adoption of, or the
commencement of contributions to, any Employee Plan subject to
Section 412 of the Code by any Obligor or any Relevant Company;
or (D) the adoption of any amendment to an Employee Plan subject
to Section 412 of the Code which results in a material increase
in contribution obligations of any Obligor, the detailed written
description thereof from a finance officer of each affected
Relevant Company, as applicable.
63
20.8 Inspection of Books and Records
Upon the request of the Agent (on the instructions of any Finance Party)
the Borrower or relevant member of the Group shall provide the Agent and
any of its or their representatives, professional advisers and
contractors with access to and permit inspection of the books and
records of any member of the Group, in each case at reasonable times and
upon reasonable notice.
20.9 "Know your customer" checks
(a) Each Obligor shall promptly upon the request of the Agent or any
Lender supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Agent (for
itself or on behalf of any Lender) or any Lender (for itself or
on behalf of any prospective New Lender) in order for the Agent,
such Lender or any prospective New Lender to carry out and be
satisfied with the results of all necessary "know your customer"
or other checks in relation to any person that it is required to
carry out pursuant to the transactions contemplated in the
Finance Documents.
(b) Each Lender shall promptly upon the request of the Agent supply,
or procure the supply of, such documentation and other evidence
as is reasonably requested by the Agent (for itself) in order
for the Agent to carry out and be satisfied with the results of
all necessary "know your customer" or other checks in relation
to any person that it is required to carry out pursuant to the
transactions contemplated in the Finance Documents.
(c) The Parent shall, by not less than 10 Business Days' written
notice to the Agent, notify the Agent (which shall promptly
notify the Lenders) of its intention to request that one of its
Subsidiaries becomes an Additional Guarantor pursuant to Clause
24 (Changes to the Parties).
(d) Following the giving of any notice pursuant to paragraph (c)
above, the Parent shall promptly upon the request of the Agent
or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by
the Agent (for itself or on behalf of any Lender) or any Lender
(for itself or on behalf of any prospective New Lender) in order
for the Agent, such Lender or any prospective New Lender to
carry out and be satisfied with the results of all necessary
"know your customer" or other checks in relation to any person
that it is required to carry out pursuant to the accession of
such Subsidiary to this Agreement as an Additional Guarantor.
64
21. Security Cover and Financial Covenants
21.1 Coverage Ratio
(a) The Parent shall ensure that the aggregate of the Market Value
of the Secured Shares shall at all times be an amount which
exceeds the Required Security Coverage Amount.
(b) The Parent shall ensure that the Market Value of the Secured A
Shares at all times exceeds the Market Value of the Secured B
Shares provided that the Agent (on instruction from the Majority
Lenders) may, at any time, give notice to the Parent that
Secured B Shares be substituted for Secured A Shares and,
immediately upon receiving such notice, the Parent shall take
all steps necessary to ensure that such substitution takes place
in a manner satisfactory to the Agent.
21.2 Market Value
(a) If, at any time, the aggregate of the Market Value of the
Secured Shares is less than the Required Security Coverage
Amount, the Agent shall promptly notify the Parent and the
Parent shall remedy such breach within seven days by:
(i) prepaying the Loans pursuant to Clause 8.3 (Voluntary
Prepayment and Cancellation of Loans);
(ii) the sale of Secured Shares in accordance with Clause 8.7
(Mandatory Prepayment and Cancellation - Secured
Shares); or
(iii) if permitted by the terms of Clause 21.3 (Additional
Secured Shares), pledging additional Listed OEH Shares
to the Trustee in accordance with Clause 21.1 (Coverage
Ratio); and
(b) Immediately upon taking any step referred to in Clause (a)(i) to
(a)(iii) above (inclusive), the Parent shall notify the Agent
and provide the Agent with all details in relation to such step
as the Agent may reasonably require.
21.3 Additional Secured Shares
The Parent may, at any time, pledge additional Listed OEH Shares that it
may own provided that:
(a) such shares are listed on the New York Stock Exchange and, at
the time that the Parent proposes the pledge, they have an
aggregate Market Value of an amount not less than US$10,000,000;
(b) the Parent shall take all steps that the Agent may require to
ensure that such shares are secured pursuant to the OEH Security
Agreement; and
(c) the Parent may only pledge Additional Secured Shares in
accordance with this Clause 21.3 five times.
65
21.4 Security re-evaluation
If a Renewed Franchise Arrangement is entered into by all the parties
thereto, the Lenders shall consult with Sea Containers Limited to
re-evaluate the scope of the Transaction Security.
21.5 Financial definitions
In this Clause 21, unless otherwise defined in this Clause:
"Cash" of a member of the Group means:
(i) GNER Liquidity Maintenance Cash; and
(ii) at any time, cash at bank credited to an account in the
name thereof and to which such member of the Group is
alone beneficially entitled, and for so long as (a) that
cash is repayable on demand and (b) repayment of that
cash is not contingent on the prior discharge of any
other indebtedness of any Group member or of any other
person whatsoever or on the satisfaction of any other
condition and (c) there is no Security or netting or
set-off arrangements over that cash other than in
respect of the Dividends Account.
"Consolidated Tangible Net Worth" means at any time the
aggregate of the amounts paid up or credited as paid up on the
issued ordinary share capital of the Parent and the aggregate
amount of the reserves of the Group,
including:
(i) any amount credited to the share premium account;
(ii) any capital redemption reserve fund; and
(iii) any balance standing to the credit of the consolidated
profit and loss account of the Group,
but deducting:
(1) any debit balance on the consolidated profit and
loss account of the Group;
(2) (to the extent included) any amount shown in
respect of goodwill (including goodwill arising
only on consolidation) or other intangible
assets of the Group;
(3) any amount in respect of interests of non-Group
members in Group subsidiaries;
(4) (to the extent included) any amount set aside
for taxation, deferred taxation or bad debts;
(5) (to the extent included) any amounts arising
from an upward revaluation of assets made at any
time after 31 December 2002; and
66
(6) any amount in respect of any dividend or
distribution declared, recommended or made by
any member of the Disposal Group to the extent
payable to a person who is not a member of the
Disposal Group or to any other member of the
Disposal Group and to the extent such
distribution is not provided for in the most
recent financial statements,
and so that no amount shall be included or excluded more than
once.
21.6 Financial condition
(a) Tangible Net Worth
The Parent shall have, as of the close of each quarter,
Consolidated Tangible Net Worth of not less than US$250,000,000
(or its equivalent in other currencies).
(b) Maintenance of Cash by the Parent
The Parent shall maintain, in aggregate on a consolidated basis,
at least US$50,000,000 (or its equivalent in other currencies)
in Cash at all times.
(c) Maintenance of Cash by the Borrower
Until such time as a Renewed Franchise Arrangement is entered
into by all the parties thereto, the Borrower shall at all times
maintain at least US$5,000,000 in Cash (or its equivalent in
other currencies).
(d) Leverage
The Parent shall maintain a Consolidated Tangible Net Worth
Ratio of no more than 3.5:1.
In this Clause 21.6(d):
"Borrowed Money" has the meaning ascribed to such term in the
Silja Bank Agreement.
"Consolidated Tangible Net Worth" means at any relevant time the
aggregate of:
(i) the amounts paid up or credited as paid up on the share
capital account of the Parent and each of its
Subsidiaries;
(ii) any credit balance on the Parent's consolidated profit
and loss account;
(iii) any amount standing to the credit of any other
consolidated capital and revenue reserves of the Parent
(including any share premium account); and
(iv) bonds, notes, loan stock, debentures or other similar
instruments (other than those falling due for repayment
within twelve months);
less the aggregate of:
67
(i) any debit balance on the Parent's consolidated profit
and loss account;
(ii) any reserves attributable to the interest of minority
shareholders in any Subsidiary of the Parent;
(iii) any amount shown in the Parent's consolidated balance
sheet in respect of goodwill or other intangible assets;
and
(iv) deferred taxation of the Parent and any of its
Subsidiaries.
"Consolidated Tangible Net Worth Ratio" means the ratio of
Borrowed Money to Consolidated Tangible Net Worth.
"Subsidiaries" has the meaning ascribed to that term in the
Silja Bank Agreement except that a reference to "the Borrower"
shall be construed to be a reference to "the Parent".
21.7 Financial testing
The financial covenants set out in Clause 21.5 (Financial Condition)
shall be taken by reference to each of the financial statements
delivered pursuant to Clause 20.1 (Financial statements).
22. GENERAL UNDERTAKINGS
The undertakings in this Clause 22 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
POSITIVE COVENANTS
22.1 Authorisations
Each Obligor shall (and the Parent shall procure that every member of
the Group will) promptly:
(a) obtain, comply with and do all that is necessary to maintain in
full force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation (including under, or in connection with, the
ISM Code) required under any law or regulation of the Relevant
Jurisdictions (and in the case of the ISM Code, wherever the
same is applicable) to:
(i) enable it to perform its obligations under the Finance
Documents;
(ii) to ensure the legality, validity, enforceability or
admissibility in evidence in each Relevant Jurisdiction
of any Finance Document; and
(iii) enable it to own its property and assets and to carry on
its business, trade and ordinary activities as currently
conducted.
68
22.2 Compliance with laws
Each Obligor shall (and the Parent shall procure that every member of
the Group will) comply in all respects with all laws (including, for the
avoidance of doubt, Environmental Law) to which it may be subject, if
failure so to comply would materially impair its ability to perform its
obligations under the Finance Documents.
22.3 Additional Security
If by 25 October 2004, (i) the term of the Container Facility has not
been extended until 30 September 2006 or later or the Container Facility
has not been refinanced by a new facility maturing 30 September 2006 or
later and (ii) in each case, for an amount of no less than
US$100,000,000, Sea Containers America Inc. shall promptly grant, at the
request of the Agent, Security in respect of its shares in Charleston
Marine Containers Inc. to secure the Secured Obligations on terms
acceptable to the Agent and the Parent shall procure that Charleston
Marine Containers Inc. shall accede as an Additional Guarantor to this
Agreement.
22.4 Sale of Security - Conduct of Business
The Parent shall and shall procure that every member of the Disposal
Group will:
(a) conduct and carry on its business in a proper and efficient
manner substantially in the same manner, to the same standard
and within the same areas of business as it has done prior to
its entering into this Agreement and shall not take any step, or
omit to take any step, the taking or omission of which might
reasonably be expected to have a material adverse effect on the
value of its goodwill;
(b) operate its business in the usual way so as to maintain that
business as a going concern;
(c) not enter into a long-term, onerous, unusual or material
agreement, arrangement or obligation other than in the ordinary
course of business or in relation to the Sale of Security; and
(d) not amend or terminate a material agreement, arrangement or
obligation to which it is a party other than in the ordinary
course of business.
22.5 Waiver of Consequential Loss
In no event shall any Finance Party be liable on any theory of liability
for any special, indirect, consequential or punitive damages and each
Obligor hereby waives, releases and agrees (for itself and on behalf of
its Subsidiaries) not to xxx upon any such claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in
its favour.
22.6 Maintenance of Contracts
Each Obligor shall (and the Parent shall procure that every member of
the Group will) do all things necessary to maintain in full force and
effect when necessary, all contracts or rights necessary or desirable
for the conduct of its business.
22.7 Insurance
Each Obligor shall (and the Parent shall ensure that each member of the
Group will) procure and maintain customary and adequate insurances on
terms acceptable to the Agent relevant in each case to the conduct by
each Obligor (or each member of the Group, as the case may be,) of its
business in relation to property and marine assets; business
interruption; hull and machinery; and protection and indemnity
insurances, as well as in respect of liabilities for loss of or damage
to cargo and customers' equipment and ships, loss and/or damage due to
strikes, riots or terrorist acts, errors and omissions including delay
and unauthorised delivery, third party liabilities including impact and
accidental pollution, regulatory breach, wreck removal, investigation,
defence and mitigation costs, disposal costs and quarantine/disinfection
costs.
69
22.8 Environmental Compliance
Each Obligor shall (and the Parent shall procure that each member of the
Group will) comply in all material respects with all Environmental Law
and obtain and maintain any Environmental Permits and take all
reasonable steps in anticipation of known or expected future changes to
or obligations under the same.
22.9 Environmental Claims
The Parent shall inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same:
(a) if any Environmental Claim has been commenced or (to the best of
the Parent's knowledge and belief) is threatened against any
member of the Group; or
(b) of any facts or circumstances which will or are reasonably
likely to result in any Environmental Claim being commenced or
threatened against any member of the Group.
22.10 Hazardous materials
Each Obligor shall (and the Parent shall procure that each member of the
Group will) comply in all respects with all governmental and other
regulatory requirements in relation to the storing, producing,
manufacturing, using, generating and refining of Hazardous Materials.
22.11 Rent Reviews
Each Obligor shall promptly notify the Agent in writing of the outcome
of any rent review undertaken pursuant to the terms of any Occupation
Lease (other than a Permitted Lease, provided that following rent
review, the rent payable pursuant to the relevant Occupational Lease
still makes it a Permitted Lease).
22.12 Taxation
Each Obligor shall (and the Parent shall ensure that each member of the
Group will) duly and punctually pay and discharge all Taxes imposed upon
it or its assets within the time period allowed without incurring
penalties (except to the extent that (a) such payment is being contested
in good faith, (b) adequate reserves are being maintained for those
Taxes and (c) where such payment can be lawfully withheld).
22.13 Pari passu ranking
Each Obligor shall ensure that at all times any unsecured and
unsubordinated claims of a Finance Party against it under the Finance
Documents rank at least pari passu with the claims of all its other
unsecured and unsubordinated creditors except those creditors whose
claims are preferred solely by any bankruptcy, insolvency, liquidation
or other similar laws of general application.
70
22.14 Pensions
(a) The Parent shall ensure that all pension schemes operated by or
maintained for the benefit of members of the Group and/or any of
its employees (other than those pension schemes subject to
ERISA) are fully funded to the extent required by law based on
reasonable actuarial assumptions and recommendations and are
operated or maintained as required by law.
(b) The Parent shall deliver to the Agent at intervals of no more
than three calendar years, and in any event promptly upon those
reports being prepared in order to comply with the then current
statutory or auditing requirements, actuarial reports in
relation to those pension schemes if requested by the Agent.
22.15 Intellectual property
Each Obligor shall (and the Parent shall procure that each member of the
Group will):
(a) preserve and maintain the subsistence and validity of the
material Intellectual Property necessary for the business of the
Group;
(b) use reasonable endeavours to prevent any infringement in any
material respect of that Intellectual Property;
(c) make registrations and pay all registration fees and taxes
necessary to maintain that Intellectual Property in full force
and effect and record its interest in that Intellectual
Property;
(d) not use or permit that Intellectual Property to be used in a way
or take any step or omit to take any step in respect of that
Intellectual Property which may materially and adversely affect
the existence or value of that Intellectual Property or imperil
the right of relevant members of the Group to use such property;
and
(e) not discontinue the use of that Intellectual Property.
22.16 Dividends
(a) Any amounts paid to the Parent by way of loan or Share
Redemption or Dividend from a member of the Group (other than
the Rail Group) shall be paid into the Dividends Account other
than the GE Seaco Dividend.
(b) Any amount payable by way of Dividend or Share Redemption by any
member of the Rail Group shall be paid to the Borrower or, in
the case of GNER Limited, to GNER Holdings Limited.
(c) The Parent shall ensure that GE Seaco pays all GE Seaco
Dividends into the GE Seaco Dividends Account.
(d) GNER Holdings Limited shall procure that:
71
(i) promptly upon the earlier of the latest date for the
delivery of any financial statements in relation to GNER
Limited pursuant to paragraph (c)(ii) of Clause 20.1
(Financial Statements) and the date of delivery of such
statements, GNER Limited pays to the Parent into the
GNER Dividend Account whether by way of loan or Dividend
(but only to the extent permitted by the Franchise
Agreement or the Renewed Franchise Arrangement) an
amount equal to all excess cash at GNER Limited less,
prior to the termination of the Franchise Agreement, the
amount representing GNER Liquidity Maintenance Cash; and
(ii) an amount equal to any proceeds received by GNER Limited
from any litigation is, to the extent permitted by the
Franchise Agreement or the Renewed Franchise
Arrangement, as the case may be, promptly lent by GNER
Limited to the Parent.
22.17 Running of Railway
The Parent shall notify the Agent promptly and in any event within 24
hours of it becoming aware, and/or notifying the SRA, of the occurrence
of an "Event of Default" or an event which is likely to result in the
occurrence of an "Event of Default", in each case, pursuant to clause
22.1 of the Franchise Agreement or upon receipt by GNER Holdings Limited
or GNER Limited of notice from the SRA of a "default" under the
Franchise Agreement pursuant to clause 22.2 of the Franchise Agreement.
22.18 Xxxxxxxx
The Parent shall notify the Agent promptly of any arbitration decision
or other judgment delivered concerning the Xxxxxxxx Litigation.
22.19 Further assurance
Each Obligor shall (and the Parent shall procure that each member of the
Group will) promptly do all such acts or execute all such documents
(including assignments, transfers, mortgages, charges, notices and
instructions) as the Trustee may reasonably specify (and in such form as
the Trustee may reasonably require in favour of the Trustee or its
nominee(s)):
(a) to effect, register or perfect the Security created or intended
to be created under or evidenced by the Transaction Security
Documents or for the exercise of any rights powers and remedies
of the Trustee or the Secured Parties provided by or pursuant to
the Finance Documents or by law;
(b) to confer on the Trustee or confer on the Secured Parties
Transaction Security, Security over the Policies and any other
material insurance policies of the Group (taken as a whole);
and/or
(c) to facilitate the realisation of the assets which are, or are
intended to be, the subject of the Transaction Security.
Each Obligor shall (and the Parent shall procure that each member of the
Group will) take all such action as is available to it (including making
all filings and registrations) as may be necessary for the purpose of
the creation, perfection, protection, registration, admissibility in
evidence or maintenance of any Security conferred or intended to be
conferred on the Trustee or the Secured Parties by or pursuant to the
Finance Documents.
72
22.20 Preservation of Assets
Each Obligor shall, (and the Parent shall ensure that each member of the
Group will), maintain and preserve all of its assets that are necessary
or desirable, in the opinion of the Agent, for the conduct of its
business, as conducted at the date of the Amendment Agreement, in good
working order and condition, ordinary wear and tear excepted.
22.21 Access
Each Obligor shall, and the Parent shall:
(a) on request of the Agent, provide the Agent and Trustee with any
information the Agent or Trustee may reasonably require about
that company's business and affairs, the Charged Property and
its compliance with the terms of the Security Documents; and
(b) permit the Trustee, its representatives, delegates, professional
advisers and contractors, free access at all reasonable times
and on reasonable notice at the cost of the Obligors, (a) to
inspect and take copies and extracts from the books, accounts
and records of that company and (b) to view the Charged Property
(without becoming liable as mortgagee in possession).
22.22 Federal Reserve Regulations
Each US Obligor will use the Facility without violating Regulations T, U
and X.
NEGATIVE COVENANTS
22.23 Negative pledge
(a) No Obligor (other than the Parent) shall (and the Parent shall
ensure that no other member of the Group will) create or permit
to subsist any Security over any of its assets.
(b) No Obligor (other than the Parent) shall (and the Parent shall
ensure that no other member of the Group will):
(i) sell, transfer or otherwise dispose of any of its assets
on terms whereby they are or may be leased to or
re-acquired by an Obligor (other than the Parent) or any
other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its
receivables on recourse terms;
(iii) enter into any arrangement under which money or the
benefit of a bank or other account may be applied,
set-off or made subject to a combination of accounts;
(iv) purchase any assets on retention of title terms; or
(v) enter into any other preferential arrangement having a
similar effect.
73
(c) Paragraphs (a) and (b) above do not apply to:
(i) any Existing Security: (A) over Existing Financial
Indebtedness as at the of the Amendment Agreement or (B)
which continues in place for the refinancing of that
Existing Financial Indebtedness;
(ii) any Security to be provided by GNER Limited or Sea
Containers Railway Services Limited pursuant to
paragraphs (b)(ii) and (b)(iii) of Clause 22.30
(Indebtedness) provided that the total amount of
indebtedness secured thereby and the aggregate market
value of such Security in each case does not exceed
(pound)14,000,000 and (pound)4,740,000 respectively (or,
in each case, its equivalent);
(iii) any Security to be provided by Hoverspeed and the
Finnish Guarantor in connection with any Financial
Indebtedness permitted pursuant to paragraph (vi) of
Clause 22.30 (Indebtedness) provided that the total
amount of indebtedness secured thereby and the aggregate
market value of such Security is equal to or less than
US$30,000,000;
(iv) any Security to be provided by any member of the Rail
Group pursuant to the provision of the SRA Performance
Bond in the form of cash collateral provided that the
total indebtedness secured thereby does not exceed
(pound)17,000,000;
(v) any netting or set-off arrangement entered into by any
member of the Group in the ordinary course of its
banking arrangements for the purpose of netting debit
and credit balances (excluding the Restricted
Indebtedness Companies);
(vi) any lien arising by operation of law and in the ordinary
course of trading;
(vii) any Security to be provided by Sea Containers America
Inc. in respect of its shares in Charleston Marine
Containers Inc. to secure the obligations in connection
with the extension of the term of the Container Facility
Agreement, or the refinancing of the Container Facility
with a term, until 30 September 2006 or later and for an
amount of no less than US$100,000,000 provided that the
total indebtedness secured thereby does not exceed
US$150,000,000;
(viii) the Transaction Security; and
(ix) any retention of title, hire purchase or conditional
sale arrangement or arrangements having similar effect
in respect of goods supplied to a member of the Group in
the ordinary course of trading and on the counterparty's
standard or usual terms (other than the Restricted
Indebtedness Companies),
provided that, nothing in this paragraph (c) shall permit the
granting or subsistence of Security over any asset of the Group
which is the subject of Transaction Security.
74
22.24 Disposals
(a) No Obligor (other than the Parent) shall (and the Parent shall
ensure that no other member of the Group will), enter into a
single transaction or a series of transactions (whether related
or not) and whether voluntary or involuntary to sell, lease,
transfer or otherwise dispose of any asset.
(b) Paragraph (a) above does not apply to any disposal:
(i) made in the ordinary course of trading and on arm's
length terms of the disposing entity;
(ii) of cash to the extent specifically permitted by the
terms of this Agreement;
(iii) for cash on arm's length terms of any obsolete assets
not required for the efficient operation of the business
of the Group by any member of the Group;
(iv) of assets to the extent permitted by Clause 22.23
(Negative Pledge);
(v) pursuant to a Permitted Group Transaction;
(vi) subject to compliance with Clause 8.5 (Mandatory
Prepayment and Cancellation - Disposals) of an asset
(other than cash or cash equivalents) by a member of the
Group to any person to the extent not permitted by
paragraphs (i) to (iv) above,
provided that,
(A) no disposals in the preceding paragraphs material
adversely affect the marketability or value of any of
the Disposal Group in each case as a whole;
(B) all disposals in the preceding paragraphs shall be on
arms' length terms and be made for cash consideration
payable in full at the time of the disposal;
(C) nothing in this clause 22.24 shall permit the disposal
of any assets (other than cash) which is the subject of
Transaction Security other than the disposal of Secured
Shares in accordance with Clause 8.7 (Mandatory
Prepayment and Cancellation - Secured Shares).
22.25 Merger
No Obligor shall (and the Parent shall ensure that no other member of
the Group will) enter into any amalgamation, demerger, merger or
corporate reconstruction.
22.26 Change of Business
The Parent shall procure that no substantial change is made to the
general nature of the business of the Group from that carried on at the
date of this Agreement.
75
22.27 Acquisitions
No Obligor (other than the Parent) shall (and the Parent shall ensure
that no other member of the Group will) incorporate or acquire a company
or acquire (or acquire an interest in) shares or securities or a
business or undertaking by making an investment or otherwise or
incorporate any person, other than pursuant to a Permitted Group
Transaction or a Permitted Joint Venture.
22.28 Joint Ventures
(a) No Obligor (other than the Parent) shall (and the Parent shall
ensure that no other member of the Group will) form, enter into
or acquire or subscribe (or agree to enter into or acquire or
subscribe) for any shares in a Joint Venture other than a
Permitted Joint Venture.
(b) No Obligor (other than the Parent) shall (and the Parent shall
ensure that no other member of the Group will) transfer any
assets to or lend to or guarantee or give an indemnity for or
give Security for the obligations of any Joint Ventures (or
agree to transfer, lend, guarantee, indemnify or give Security
for the obligations of a Joint Venture).
22.29 Loans and Guarantees
No Obligor (other than the Parent) shall (and the Parent shall ensure
that no other member of the Group will) be a creditor in respect of
Financial Indebtedness or give any guarantee or indemnity to or for the
benefit of any person or otherwise voluntarily assume any liability,
whether actual or contingent, in respect of any obligation of any person
(save, other than in relation to the Restricted Indebtedness Companies,
in each case in the ordinary course of business or as required under any
of the Finance Documents) except:
(a) GNER Limited may be a creditor of a loan pursuant to Clause
22.16(d)(i);
(b) pursuant to a Permitted Group Transaction;
(c) Sea Containers Railway Services Limited may, in the ordinary
course of its business, be a creditor in respect of Financial
Indebtedness or give any guarantee or indemnity to or for the
benefit (or otherwise assume any liability whether actual or
contingent) of another member of the Group up to an aggregate
amount at any time not exceeding (pound)500,000 (or its
equivalent);
(d) GNER may lend to the Parent excess operating cash, to the extent
such loan is permitted under the Franchise Agreement or the
Renewed Franchise Arrangement, as the case may be, and provided
that GNER maintains at all times any required liquidity reserve
under the Franchise Agreement or the Renewed Franchise
Arrangement;
(e) any loan from a Material Subsidiary to the Company or any
Subsidiary (and for the purposes of this paragraph (e), the
terms "Material Subsidiary", "Company" and "Subsidiary" shall
have the meaning ascribed to them in the SCL Bonds); and
(f) any loan from a UK Obligor to a UK Obligor.
76
22.30 Indebtedness
(a) No Obligor (other than the Parent) shall (and the Parent shall
ensure that no other member of the Group will) incur, create or
permit to subsist or have outstanding any Financial Indebtedness
or enter into any agreement or arrangement whereby it is
entitled to incur, create or permit to subsist any Financial
Indebtedness.
(b) Paragraph (a) above does not apply to any of the following
Financial Indebtedness:
(i) Financial Indebtedness arising under the Finance
Documents;
(ii) up to (pound)14,000,000 (or its equivalent) in respect
of Financial Indebtedness incurred by GNER Limited for
the purposes of the GNER Station Refurbishment;
(iii) up to (pound)4,740,000 (or its equivalent) in respect of
Financial Indebtedness incurred by Sea Containers
Railway Services Limited for the purpose of Capital
Expenditure;
(iv) Existing Financial Indebtedness of any member of the
Group or any refinancing of that Existing Financial
Indebtedness by that member of the Group up to a maximum
of the original principal amount of such Existing
Financial Indebtedness of that member of the Group;
(v) in relation to each of Hoverspeed and the Finnish
Guarantor (in each case, in accordance with the terms of
this Agreement) Financial Indebtedness incurred for the
sole purpose of Ferry Capital Expenditure provided that
such Financial Indebtedness shall be an amount that is
less than or equal to 80% of the total amount of Ferry
Capital Expenditure for which such Financial
Indebtedness was raised;
(vi) any overdraft facility on arm's length terms in the
ordinary course of business (other than in relation to
the Restricted Indebtedness Companies);
(vii) any Financial Indebtedness (other than in relation to
the Restricted Indebtedness Companies) arising pursuant
to a Treasury Transaction entered into in the ordinary
course of business on arm's length terms for non
speculative purposes;
(viii) any Financial Indebtedness arising pursuant to a
Treasury Transaction entered into in the ordinary course
of business on arm's length terms for non speculative
purposes by a Restricted Indebtedness Company in
relation to hedging liabilities in relation to assets
subject to a Sale of Security;
(ix) any Financial Indebtedness owed by any member of the
Group (other than Restricted Indebtedness Companies) to
the Parent;
77
(x) any amount to be applied directly or indirectly in
mandatory prepayment pursuant to Clause 8.7 (Mandatory
Prepayment and Cancellation-Equity and Financings);
(xi) any Financial Indebtedness arising pursuant to a
Permitted Group Transaction (other than in relation to
Restricted Indebtedness Companies); and
(xii) any Financial Indebtedness arising pursuant to a
transaction described in paragraphs (e) and (f) of
Clause 22.29 (Loans and Guarantees).
22.31 Leases and other similar interests
The Parent shall ensure that no member of the Group shall:
(a) sell, transfer, lease, licence, part with possession or
occupation, lend or otherwise dispose of (whether by a single
transaction or a series of transactions, related or not) all or
any of its undertaking and assets other than obsolete or worn
out property or assets which are immaterial in the aggregate
from time to time owned by it;
(b) enter into any Occupational Lease after the date of this
Agreement or agree to enter into the same unless (i) it is a
Permitted Lease, or (ii) the Agent has given its prior written
consent to the terms of the proposed Occupational Lease and the
financial standing of the proposed new tenant under the relevant
Occupational Lease;
(c) accept or consent to a surrender, assignment, assignation or
sub-letting of or vary the terms of any Occupational Lease
(other than a Permitted Lease);
(d) waive any breach of nor reduce any sum payable under any
Occupational Lease (other than a Permitted Lease);
(e) not to vary or alter the terms of any Occupational Lease (other
than a Permitted Lease) in such a way whereby such alteration or
variation would have a Material Adverse Effect on the value to
the Finance Parties of the Security created by any of the
Transaction Security.
22.32 Silja Bank Agreement
(a) The Borrower shall procure that any changes to the financial
covenants applicable to the Finnish Guarantor in the Silja Bank
Agreement (in the form supplied to the Lenders on 29 June 2004
and initialled for identification purposes by the Borrower and
the Agent) shall only become effective (i) after the approval of
such changes by the Instructing Group (as defined in the Silja
Bank Agreement) and (ii) after notification of the changes by
the Borrower to the Agent including evidence satisfactory to the
Agent of the approval by the Instructing Group (as defined in
the Silja Bank Agreement) of the changes concerned.
(b) The Borrower shall ensure that any changes made to the financial
covenants applicable to the Parent in the Silja Bank Agreement
are notified to the Lenders.
78
22.33 Hazardous Materials
No Obligor (other than the Parent) shall (and the Parent shall ensure
that no other member of the Group will) other than in compliance with
all applicable Environmental Law, cause, permit or suffer any Hazardous
Materials to be brought upon, treated, kept, stored, disposed of,
discharged, released, emitted, leaked from, produced, manufactured,
generated, refined or used from, in, upon or under any of the real
property owned by any member of the Group where such action could
involve a potential liability in excess of (pound)100,000 for such
member of the Group;
22.34 Port Legislation
No Obligor (other than the Parent) shall (and the Parent shall ensure
that no other member of the Group will) breach any Port Legislation save
that this provision will not be breached in circumstances where the
relevant member of the Group can demonstrate to the Agent that the party
alleging the breach has mis-interpreted the relevant legislation and
that the relevant member of the Group is diligently pursuing this
argument with such party.
22.35 Federal Reserve Regulations
Each U.S. Borrower will use the Facility without violating Regulations
T, U and X.
22.36 Compliance with ERISA
No Obligor shall:
(a) allow, or permit any of its ERISA Affiliates to allow, (i) any
Employee Plan with respect to which any Relevant Company may
have any liability to terminate, (ii) any Relevant Company to
withdraw from any Employee Plan or Multiemployer Plan, (iii) any
ERISA Event to occur with respect to any Employee Plan, or (iv)
any Accumulated Funding Deficiency (as defined in Section 302 of
ERISA and Section 412 of the Code), whether or not waived, to
exist involving any of its Employee Plans; to the extent that
any of the events described in (i), (ii), (iii) or (iv), singly
or in the aggregate, could reasonably be expected to have a
Material Adverse Effect;
(b) allow, or permit any of its ERISA Affiliates to allow, (i) an
Unfunded Pension Liability (taking into account only Employee
Plans with positive Unfunded Pension Liability); or (ii) any
potential withdrawal liability under Section 4201 of ERISA, if
the Relevant Company were to completely or partially withdraw
from all Multiemployer Plans; or
(c) fail, or permit any of its ERISA Affiliates to fail, to comply
in any material respect with ERISA or the related provisions of
the Code, if any such non-compliance, singly or in the
aggregate, would be reasonably likely to have a Material Adverse
Effect.
22.37 Arm's length basis
No Obligor shall (and the Parent shall ensure that no other member of
the Group will) enter into any material arrangement, contract or
transaction (collectively a "Transaction") with any Affiliate except on
arm's length terms.
79
22.38 Compliance with U.S. Regulations
No Obligor shall (and the Borrower shall ensure that no other member of
the Group will) become an "investment company," or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the 1940 Act. Neither the making
of any Loan, or the application of the proceeds or repayment thereof by
any Obligor nor the consummation of the other transactions contemplated
hereby will violate any provision of such act or any rule, regulation or
order of the SEC thereunder.
22.39 Anti-Terrorism Law
The Obligors shall not (i) conduct any business or engage in making or
receiving any contribution of funds, goods or services to or for the
benefit of any Person described in Clause 19.37 (Anti-Terrorism Laws)
above, (ii) deal in, or otherwise engage in any transaction relating to,
any property or interests in property blocked pursuant to the Executive
Order or any other Anti-Terrorism Law, or (iii) engage in or conspire to
engage in any transaction that evades or avoids, or has the purposes of
evading or avoiding, or attempts to violate, any of the prohibitions set
forth in any Anti-Terrorism Law (and the Obligors shall deliver to the
Lenders any certificates or other evidence requested from time to time
by any Lender in its reasonable discretion, to confirm such Obligor's
compliance with this Clause 22.39).
22.40 Embargoed Person
At all times through the term of the Facility, (a) none of the funds or
assets of the Obligors that are used to repay the Facility shall
constitute property of, or shall be beneficially owned directly or, to
the knowledge of any Obligor, indirectly by, any Person subject to
sanctions or trade restrictions under United States law ("Embargoed
Person" or "Embargoed Persons") that is identified on (1) the "List of
Specially Designated Nationals and Blocked Persons" maintained by the
Office of Foreign Assets Control (OFAC) of the US Department of the
Treasury, and/or to the knowledge of any Obligor, as of the date of the
Amendment Agreement, based upon reasonable inquiry by such Obligor, on
any other similar list maintained by OFAC pursuant to any authorising
statute including, but not limited to, the International Emergency
Economic Powers Act, 50 USC ss.ss.1701 et seq., the Trading with the
Enemy Act, 50 USC App. 1 et seq., and any Executive Order or regulation
promulgated thereunder, with the result that the investment in the
Obligors (whether directly or indirectly), is prohibited by law, or the
Facility made by the Lenders would be in violation of law, or (2) the
Executive Order, any related enabling legislation or any other similar
Executive Orders, and (b) no Embargoed Person shall have any direct
interest and to the knowledge of any Obligor, as of the date of the
Amendment Agreement, based upon reasonable inquiry by any Obligor,
indirect interest of any nature whatsoever in the Obligors, with the
result that the investment in the Obligors (whether directly or
indirectly), is prohibited by law or the Facility is in violation of
law.
22.41 Anti-Money Laundering
At all times throughout the term of the Facility, to the knowledge of
any Obligor, as of the date of the Amendment Agreement, based upon
reasonable inquiry by such Obligor, none of the funds of such Obligor
that are used to pay the Facility shall be derived from any unlawful
activity, with the result that their investment in the Obligors (whether
directly or indirectly) is prohibited by law or the Facility would be in
violation of law.
80
22.42 GNER
(a) If the Early Franchise Termination Date occurs or if the Renewed
Franchise Arrangement is not entered into by 30 April 2005 (the
Early Franchise Termination Date and 30 April 2005 being for
these purposes, a "GNER Cash Date"), the Parent shall promptly
notify the Agent in writing of that event, setting out the
amount and details of the GNER Cash and, if applicable, the Net
GNER Cash at that time.
(b) On a GNER Cash Date (or, if the amount of the Net GNER Cash has
not been agreed with the SRA on that GNER Cash Date, as soon as
possible thereafter) the Parent shall procure that the Net GNER
Cash is paid into the Mandatory Prepayment Account and promptly
after the Net GNER Cash has been paid into the Mandatory
Prepayment Account, the Parent undertakes to promptly instruct
the Account Bank (pursuant to the Account Agreement) to transfer
such deposits to the Agent to effect any prepayment of the Loans
required by the provisions of Clause 8.5 (GNER) or following a
determination pursuant to Clauses 23.18 (Replacement Franchise
Agreement) or 23.19 (Existing Franchise Agreement).
23. Events of Default
Each of the events or circumstances set out in this Clause 23 is an
Event of Default.
23.1 Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical
error; and
(b) payment is made within 2 Business Days of its due date.
23.2 Financial covenants and Security Cover
Any requirement of Clause 21 (Security Cover and Financial Covenants) is
not satisfied or any Obligor does not comply with any provision of
Clause 22.30 (Indebtedness) provided that in respect of Clause 21.1
(Security Cover), no Event of Default will occur if the failure to
comply is remedied within the Remedy Period.
23.3 Other obligations
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 23.1
(Non-payment) and Clause 23.2 (Financial covenants and
indebtedness)).
(b) No Event of Default under paragraph (a) above in relation to
this Clause 23.3 will occur if the failure to comply is capable
of remedy and is remedied within 10 Business Days of the date of
the occurrence of such failure to comply.
81
23.4 Misrepresentation
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any other document delivered by or on behalf
of any Obligor under or in connection with any Finance Document is or
proves to have been incorrect or misleading in any material respect when
made or deemed to be made.
23.5 Cross default
(a) Any Financial Indebtedness of any member of the Group or GE
Seaco or any of its Subsidiaries is not paid when due nor within
any originally applicable grace period.
(b) Any Financial Indebtedness of any member of the Group or GE
Seaco or any of its Subsidiaries is declared to be or otherwise
becomes due and payable prior to its specified maturity as a
result of an event of default (however described).
(c) Any commitment for any Financial Indebtedness of any member of
the Group or GE Seaco or any of its Subsidiaries is cancelled or
suspended by a creditor of any member of the Group as a result
of an event of default (however described).
(d) Any creditor of any member of the Group or GE Seaco or any of
its Subsidiaries becomes entitled to declare any Financial
Indebtedness of any member of the Group or GE Seaco or any of
its Subsidiaries due and payable prior to its specified maturity
as a result of an event of default (however described).
(e) No Event of Default will occur under this Clause 23.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d)
above (i) in relation to any member of the Group other than GE
Seaco or any of its Subsidiaries) is less than US$ 5,000,000 (or
its equivalent in any other currency or currencies); or (ii) in
relation to GE Seaco or any of its Subsidiaries is less than US$
20,000,000 (or its equivalent in any other currency or
currencies).
23.6 Insolvency
(a) A member of the Group or GE Seaco or any of its Subsidiaries is
unable or admits inability to pay its debts as they fall due,
suspends making payments on any of its debts or, by reason of
actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to
rescheduling any of its indebtedness.
(b) A moratorium is declared in respect of any indebtedness of any
member of the Group or GE Seaco or any of its Subsidiaries.
(c) Any US Obligor:
(i) applies for, or consents to, the appointment of, or the
taking of possession by, a receiver, custodian, trustee,
examiner or liquidator of itself or of all or a
substantial part of its property;
(ii) makes a general assignment for the benefit of its
creditors;
82
(iii) commences a voluntary case under Title II of the United
States of America Code entitled Bankruptcy (or any
successor thereof), as amended;
(iv) files a petition with respect to itself seeking to take
advantage of any other law relating to bankruptcy,
insolvency, reorganisation, liquidation, dissolution,
arrangement or winding up, or composition or
readjustment of debts; or
(v) takes any corporate action for the purpose of effecting
any of the foregoing with respect to itself.
(d) Any corporate action, legal proceedings or other procedure or
step is taken in relation to:
(i) the suspension of payments, a moratorium of any
indebtedness, winding-up, dissolution, administration or
reorganisation (by way of voluntary arrangement, scheme
of arrangement or otherwise) of any member of the Group
or GE Seaco or any of its Subsidiaries other than a
solvent liquidation or reorganisation of any member of
the Group which is not an Obligor;
(ii) a composition, compromise, assignment or arrangement
with any creditor of any member of the Group or GE Seaco
or any of its Subsidiaries;
(iii) the appointment of a provisional liquidator, a
liquidator (other than in respect of a solvent
liquidation of a member of the Group which is not an
Obligor), receiver, receiver or manager, administrative
receiver, administrator, compulsory or interim manager
or other similar officer in respect of any member of the
Group or GE Seaco or any of its Subsidiaries or any of
its assets; or
(iv) enforcement of any Security over any assets of any
member of the Group or GE Seaco or any of its
Subsidiaries,
or any analogous procedure or step is taken in any jurisdiction.
23.7 Creditors' process
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of a member of the Group or GE Seaco or any
of its Subsidiaries which is not being contested in good faith or has
not been discharged within 45 days.
23.8 Failure to Comply with Final Judgment
Any Obligor fails to comply with or pay any sum due from it or them
under any final judgment or any final order made or given by any court
of competent jurisdiction.
23.9 Unlawfulness
It is or becomes unlawful for an Obligor to perform any of its
obligations under the Finance Documents or any Transaction Security
created or expressed to be created or evidenced by the Security
Documents ceases to be effective.
83
23.10 Repudiation
An Obligor repudiates a Finance Document or any of the Transaction
Security or evidences an intention to repudiate a Finance Document or
any of the Transaction Security.
23.11 Amending articles of association
The Articles of Association or equivalent constitutive documents of any
Obligor (or any other provision affecting their operation) are amended,
varied, supplemented, superseded, waived or terminated without the prior
written consent of the Majority Lenders.
23.12 Litigation
Any litigation, arbitration, administrative, governmental, regulatory or
other investigations, proceedings or disputes are commenced against any
member of the Group or GE Seaco or any of its Subsidiaries or its
assets, which, if adversely determined, might reasonably be expected to
have a Material Adverse Effect.
23.13 Employee Plans
Any ERISA Event shall have occurred, or Clause 22.36 (Compliance with
ERISA) shall be breached, and the liability of a US Obligor or its ERISA
Affiliates, either individually or in the aggregate, related to such
ERISA Event or breaches, individually or when aggregated with all other
ERISA Events and all such breaches, would have or would be reasonably
expected to have a Material Adverse Effect.
23.14 Transaction Security
(a) Any Obligor fails to perform or comply with any of the
obligations assumed by it in the Security Documents.
(b) At any time any of the Transaction Security is or becomes
unlawful or is not, or ceases to be legal, valid, binding or
enforceable or otherwise ceases to be effective.
(c) At any time, any of the Transaction Security fails to have first
ranking priority or is subject to any prior ranking or pari
passu ranking Security.
23.15 Group Structure Chart
There is any change to the Group Structure Chart (other than changes
pursuant to a Sale of Security or any other sale permitted in writing by
the Agent).
23.16 Material adverse change
Any event or circumstance occurs which the Majority Lenders reasonably
believe might have a Material Adverse Effect.
23.17 Listing of Shares
Either:
(a) the Listed OEH Shares; or
(b) the common shares of the Parent,
84
are delisted from the New York Stock Exchange, or trading in the shares
above on the New York Stock Exchange shall be suspended for a period of
an excess of 5 New York Business Days.
23.18 Replacement Franchise Agreement
GNER Holdings Limited ceases to be the franchisee and/or GNER Limited
ceases to be the franchise operator under the Franchise Agreement or the
Renewed Franchise Arrangement prior to the Franchise Expiry Date or an
Early Franchise Termination Date occurs in respect of the Franchise
Agreement or the Renewed Franchise Arrangement.
23.19 Existing Franchise Agreement
(a) Any event or circumstance occurs which is an Event of Default as
defined pursuant to clause 21 of the Franchise Agreement.
(b) Any event of default (however described) occurs under the
Renewed Franchise Arrangement.
(c) Any other event or circumstance which might reasonably be
expected to lead to the termination of the Franchise Agreement
or, as the case may be, the Renewed Franchise Arrangement occurs
or exists other than the termination of the Franchise Agreement
on the Franchise Expiry Date (provided the provisions of Clause
8.5 (GNER) of this Agreement are met).
23.20 Xxxxxxxx Litigation
(a) As at the Final Settlement Date the overall net recovery by the
Group in relation to the final settlement or other determination
of the Xxxxxxxx Litigation is less than (pound)150,000,000,
after taking account of any amounts agreed or determined to be
payable to Network Rail, the SRA or any other person.
(b) At any time prior to the Final Settlement Date the aggregate
value of the Interim Recovery is less than (pound)150,000,000.
23.21 Acceleration
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Borrower:
(a) cancel the Lender's Commitment (or part thereof) pro rata
whereupon they shall immediately be cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they
shall become immediately due and payable; and/or
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders; and/or
(d) exercise, or direct the Trustee to exercise, any or all of its
rights, remedies and powers under any of the Finance Documents,
85
but, notwithstanding the foregoing, upon the occurrence of an
Event of Default specified in Clause 23.6 (Insolvency), the
Facility shall be cancelled and all Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents shall become immediately due and payable, in
each case without declaration, notice or demand by or to any
persons.
86
SECTION 9
CHANGES TO PARTIES
24. Changes to the parties
24.1 Assignments and transfers by the Lenders
Subject to this Clause 24, a Lender (the "Existing Lender") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution or to a trust, fund or other
entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial
assets (the "New Lender").
24.2 Conditions of assignment or transfer
(a) The consent of the Borrower is required for an assignment or
transfer by a Lender, unless the assignment or transfer is to
another Lender or an Affiliate of a Lender or another branch of
a Lender.
(b) The consent of the Borrower to an assignment or transfer must
not be unreasonably withheld or delayed. The Borrower will be
deemed to have given its consent five Business Days after the
Lender has requested it unless consent is expressly refused by
the Borrower within that time.
(c) An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the
same obligations to the other Finance Parties and the other
Secured Parties as it would have been under if it was an
Original Lender.
(d) A transfer will only be effective if the procedure set out in
Clause 24.6 (Procedure for transfer) is complied with.
24.3 Assignment to Federal Reserve Bank
In addition to any other assignments or participation rights provided in
this Clause 23, each Lender may assign and pledge all or any portion of
its Loans and the other obligations owed to such Lender, without notice
to or consent of any Party, to any Federal Reserve Bank pursuant to
Regulation A of the Board of Governors of the Federal Reserve Bank and
any operating circular issued by such Federal Reserve Bank; provided,
however, that, (a) no Lender shall be relieved of any of its obligations
hereunder as a result of any such assignment and pledge and (b) in no
event shall such Federal Reserve Bank be considered to be a "Lender" or
be entitled to require the assigning Lender to take or omit to take any
action hereunder.
24.4 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of
(pound)1,000.
87
24.5 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender
makes no representation or warranty and assumes no
responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents, the Transaction
Security or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document or
any other document,
and any representations or warranties implied by law are
excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own
independent investigation and assessment of the
financial condition and affairs of each Obligor and its
related entities in connection with its participation in
this Agreement and has not relied exclusively on any
information provided to it by the Existing Lender in
connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of
the creditworthiness of each Obligor and its related
entities whilst any amount is or may be outstanding
under the Finance Documents or any Commitment is in
force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under
this Clause 24; or
(ii) support any losses directly or indirectly incurred by
the New Lender by reason of the non-performance by any
Obligor of its obligations under the Finance Documents
or otherwise.
24.6 Procedure for transfer
(a) Subject to the conditions set out in Clause 24.2 (Conditions of
assignment or transfer) a transfer is effected in accordance
with paragraph (b) below when the Agent executes an otherwise
duly completed Transfer Certificate delivered to it by the
Existing Lender and the New Lender. The Agent shall, as soon as
reasonably practicable after receipt by it of a duly completed
Transfer Certificate appearing on its face to comply with the
terms of this Agreement and delivered in accordance with the
terms of this Agreement, execute that Transfer Certificate.
88
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its rights
and obligations under the Finance Documents and in
respect of the Transaction Security each of the Obligors
and the Existing Lender shall be released from further
obligations towards one another under the Finance
Documents and in respect of the Transaction Security and
their respective rights against one another shall be
cancelled (being the "Discharged Rights and
Obligations");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and
the New Lender have assumed and/or acquired the same in
place of that Obligor and the Existing Lender;
(iii) the Agent, the Mandated Lead Arrangers, the Trustee, the
New Lender and other Lenders shall acquire the same
rights and assume the same obligations between
themselves and in respect of the Transaction Security as
they would have acquired and assumed had the New Lender
been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the
transfer and to that extent the Agent, the Mandated Lead
Arrangers, the Trustee and the Existing Lender shall
each be released from further obligations to each other
under the Finance Documents; and
(iv) the New Lender shall become a Party as a "Lender".
24.7 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to, or
any other transaction under which payments are to be made by
reference to, this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate if, in relation to paragraphs
(a) and (b) above, the person to whom the information is to be given has
entered into a Confidentiality Undertaking with the disclosing Lender.
24.8 Assignment and transfers by Obligors
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
89
24.9 Additional Guarantors
(a) Subject to compliance with the provisions of paragraphs (c) and
(d) of Clause 20.9 ("Know your customer" checks), the Parent may
request that any of its Subsidiaries become an Additional
Guarantor. In addition, the Parent shall procure that each
Subsidiary receiving the benefit of any loan made pursuant to
paragraph (e) of Clause 22.29 (Loans and Guarantees) that is not
an Obligor hereunder shall become an Additional Guarantor. Such
Subsidiary shall become an Additional Guarantor if:
(i) the Majority Lender so agree;
(ii) the Parent delivers to the Agent a duly completed and
executed Accession Letter; and
(iii) the Agent has received all of the documents and other
evidence listed in Schedule 11 (Condition Precedent
Documentation to be Provided by Additional Guarantors)
in relation to that Additional Guarantor, each in form
and substance satisfactory to the Agent.
(b) The Agent shall notify the Parent and the Lenders promptly upon
being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence listed
in Schedule 11 (Condition Precedent Documentation to be Provided
by Additional Guarantors).
90
SECTION 10
THE FINANCE PARTIES
25. ROLE OF THE AGENT AND THE MANDATED LEAD ARRANGERS
25.1 Appointment of the Agent
(a) Each other Finance Party (other than the Trustee) appoints the
Agent to act as its agent under and in connection with the
Finance Documents.
(b) Each other Finance Party authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given
to the Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities
and discretions.
25.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a
copy of any document which is delivered to the Agent for that
Party by any other Party.
(b) Except where a Finance Document specifically provides otherwise,
the Agent is not obliged to review or check the adequacy,
accuracy or completeness of any document it forwards to another
Party.
(c) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify
the other Finance Parties.
(d) If the Agent is aware of the non-payment of any principal,
interest, commitment fee or other fee payable to a Finance Party
(other than the Agent, the Mandated Lead Arrangers or the
Trustee) under this Agreement it shall promptly notify the other
Finance Parties.
(e) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
25.3 Role of the Mandated Lead Arrangers
Except as specifically provided in the Finance Documents, the Mandated
Lead Arrangers have no obligations of any kind to any other Party under
or in connection with any Finance Document.
25.4 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent or the Mandated
Lead Arrangers as a trustee or fiduciary of any other person.
(b) Neither the Agent nor the Mandated Lead Arrangers shall be bound
to account to any Lender for any sum or the profit element of
any sum received by it for its own account.
25.5 Business with the Group
The Agent and the Mandated Lead Arrangers may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Group.
91
25.6 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to
be genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory
or employee of any person regarding any matters which
may reasonably be assumed to be within his knowledge or
within his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge
of a Default arising under Clause 23.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any
Party or the Majority Lenders has not been exercised;
and
(iii) any notice or request made by the Borrower (other than a
Utilisation Request) is made on behalf of and with the
consent and knowledge of all the Obligors.
(c) The Agent may engage, pay for and rely on the advice or services
of any lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through
its personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this
Agreement.
(f) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent nor the Mandated Lead Arrangers
are obliged to do or omit to do anything if it would or might in
its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of
confidentiality.
25.7 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document, the
Agent shall (i) exercise any right, power, authority or
discretion vested in it as Agent in accordance with any
instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising any
right, power, authority or discretion vested in it as Agent) and
(ii) not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with an
instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on
all the Finance Parties other than the Trustee.
92
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or,
if appropriate, the Lenders) the Agent may act (or refrain from
taking action) as it considers to be in the best interest of the
Lenders.
(e) The Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal or
arbitration proceedings relating to any Finance Document.
25.8 Responsibility for documentation
None of the Agent, the Mandated Lead Arrangers and the Trustee:
(a) is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent,
the Mandated Lead Arrangers, the Trustee, an Obligor or any
other person given in or in connection with any Finance Document
or the Information Package or the transactions contemplated in
the Finance Documents; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or the
Transaction Security or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in
connection with any Finance Document or the Transaction
Security.
25.9 Exclusion of liability
(a) Without limiting paragraph (b) below, neither the Agent nor the
Trustee will be liable for any action taken by it under or in
connection with any Finance Document or the Transaction
Security, unless directly caused by its gross negligence or
wilful misconduct.
(b) No Party (other than the Agent or, as the case may be, the
Trustee) may take any proceedings against any officer, employee
or agent of the Agent or the Trustee in respect of any claim it
might have against the Agent or Trustee or in respect of any act
or omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or
agent of the Agent or of the Trustee may rely on this Clause
subject to Clause 1.4 (Third Party Rights) and the provisions of
the Third Parties Act.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the Agent
has taken all necessary steps as soon as reasonably practicable
to comply with the regulations or operating procedures of any
recognised clearing or settlement system used by the Agent for
that purpose.
(d) The Trustee will not be liable for any losses to any person or
any liability arising as a result of taking or refraining from
taking any action in relation to any of the Finance Documents or
the Transaction Security or otherwise, whether in accordance
with an instruction from the Agent or otherwise;
93
(e) The Trustee will not be liable for (i) the exercise of, or the
failure to exercise, any judgment, discretion or power given to
it by or in connection with any of the Finance Documents, the
Transaction Security or any other agreement, arrangement or
document entered into, made or executed in anticipation of, or
in connection with the Finance Documents or the Transaction
Security or (ii) any shortfall which arises on the enforcement
of the Transaction Security.
25.10 Lenders' indemnity to the Agent and Trustee
Each Lender shall indemnify each of the Agent and the Trustee, within
three Business Days of demand, against any cost, loss or liability
incurred by the Agent or the Trustee (otherwise than by reason of the
Agent's or the Trustee's gross negligence or wilful misconduct) in
acting as Agent or as Trustee under the Finance Documents (unless the
Agent or the Trustee has been reimbursed by an Obligor pursuant to a
Finance Document).
25.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in the United Kingdom as successor by giving
notice to the other Finance Parties and the Borrower.
(b) Alternatively the Agent may resign by giving notice to the other
Finance Parties and the Borrower, in which case the Majority
Lenders (after consultation with the Borrower) may appoint a
successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice
of resignation was given, the Agent (after consultation with the
Borrower) may appoint a successor Agent (acting through an
office in the United Kingdom).
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this
Clause 25. Its successor and each of the other Parties shall
have the same rights and obligations amongst themselves as they
would have had if such successor had been an original Party.
(g) After consultation with the Borrower, the Majority Lenders may,
by notice to the Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Agent shall resign in
accordance with paragraph (b) above.
94
25.12 Confidentiality
(a) In acting as agent for the Finance Parties or, as the case may
be, trustee for the Secured Parties, the Agent and the Trustee
shall be regarded as acting through its agency division, or as
appropriate, trustee division which shall be treated as a
separate entity from any other of its divisions or departments.
(b) If information is received by another division or department of
the Agent or the Trustee, it may be treated as confidential to
that division or department and neither the Agent nor the
Trustee shall not be deemed to have notice of it.
25.13 Relationship with the Lenders
(a) The Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility
Office unless it has received not less than five Business Days
prior notice from that Lender to the contrary in accordance with
the terms of this Agreement.
(b) Each Lender shall supply the Agent with any information required
by the Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formulae).
(c) Each Secured Party shall supply the Agent with any information
that the Trustee may reasonably specify (through the Agent) as
being necessary or desirable to enable the Trustee to perform
its functions as trustee. Each Lender shall deal with the
Trustee exclusively through the Agent and shall not deal
directly with the Trustee.
25.14 Credit appraisal by the Secured Parties
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Secured Party (other than the Trustee) confirms to the Agent, the
Mandated Lead Arrangers and the Trustee that it has been, and will
continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and the Transaction
Security and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document or the Transaction
Security;
(c) whether that Secured Party has recourse, and the nature and
extent of that recourse, against any Party or any of its
respective assets under or in connection with any Finance
Document, the Transaction Security, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document;
(d) the adequacy, accuracy and/or completeness of the Information
Package and any other information provided by the Agent, the
Trustee, any Party or by any other person under or in connection
with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
under or in connection with any Finance Document; and
95
(e) the right or title of any person in or to, or the value or
sufficiency of any part of the Charged Property, the priority of
any of the Transaction Security or the existence of any Security
affecting the Charged Property.
25.15 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Agent shall (in
consultation with the Borrower) appoint another Lender or an Affiliate
of a Lender to replace that Reference Bank.
25.16 Agent's Management Time
Any amount payable to the Agent under Clause 15.3 (Indemnity to the
Agent), Clause 17 (Costs and expenses) and Clause 25.10 (Lenders'
indemnity to the Agent and Trustee) shall include the cost of utilising
the Agent's management time or other resources and will be calculated on
the basis of such reasonable daily or hourly rates as the Agent may
notify to the Borrower and the Lenders, and is in addition to any fee
paid or payable to the Agent under Clause 12 (Fees).
25.17 Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents the
Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent
would otherwise be obliged to make under the Finance Documents and apply
the amount deducted in or towards satisfaction of the amount owed. For
the purposes of the Finance Documents that Party shall be regarded as
having received any amount so deducted.
26. ROLE OF TRUSTEE
26.1 Trust
The Trustee declares that it shall hold the Transaction Security on
trust for the Secured Parties on the terms contained in this Agreement.
Each of the parties to this Agreement agrees that the Trustee shall have
only those duties, obligations and responsibilities expressly specified
in this Agreement or in the Security Documents (and no others shall be
implied).
26.2 No Independent Power
The Secured Parties shall not have any independent power to enforce, or
have recourse to, any of the Transaction Security or to exercise any
rights or powers arising under the Security Documents except through the
Trustee.
26.3 Trustee's Instructions
The Trustee shall:
(a) act in accordance with any instructions given to it by the Agent
and shall be entitled to assume that (i) any instructions
received by it from the Agent are duly given by or on behalf of
the Majority Lenders or, as the case may be, the Lenders in
accordance with the terms of the Finance Documents and (ii)
unless it has received actual notice of revocation that any
instructions or directions given by the Agent have not been
revoked;
96
(b) be entitled to request instructions, or clarification of any
direction, from the Agent as to whether, and in what manner, it
should exercise or refrain from exercising any rights, powers
and discretions and the Trustee may refrain from acting unless
and until those instructions or clarification are received by
it; and
(c) be entitled to, carry out all dealings with the Lenders through
the Agent and may give to the Agent any notice or other
communication required to be given by the Trustee to the
Lenders.
26.4 Trustee's Actions
Subject to the provisions of this Clause 26:
(a) the Trustee may, in the absence of any instructions to the
contrary, take such action in the exercise of any of its powers
and duties under the Finance Documents which in its absolute
discretion it considers to be for the protection and benefit of
all the Secured Parties; and
(b) at any time after receipt by the Trustee of notice from the
Agent directing the Trustee to exercise all or any of its
rights, remedies, powers or discretions under any of the Finance
Documents, the Trustee may, and shall if so directed by the
Agent, take any action as in its sole discretion it thinks fit
to enforce the Transaction Security.
26.5 Trustee's Discretions
(a) The Trustee may assume (unless it has received actual notice to
the contrary in its capacity as trustee for the Secured Parties)
that:
(i) no Default has occurred and no Obligor is in breach of
or default under its obligations under any of the
Finance Documents; and
(ii) any right, power, authority or discretion vested in any
person has not been exercised.
(b) The Trustee may, if it receives any instructions or directions
from the Agent to take any action in relation to the Transaction
Security, assume that all applicable conditions under the
Finance Documents for taking that action have been satisfied.
(c) The Trustee may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other experts
(whether obtained by the Trustee or by any other Secured Party).
(d) The Trustee may rely upon any communication or document believed
by it to be genuine and, as to any matters of fact which might
reasonably be expected to be within the knowledge of a Secured
Party or an Obligor, upon a certificate signed by or on behalf
of that person.
97
(e) The Trustee may refrain from acting in accordance with the
instructions of the Agent or Lenders (including bringing any
legal action or proceeding arising out of or in connection with
the Finance Documents) until it has received any indemnification
and/or security that it may in its absolute discretion require
(whether by way of payment in advance or otherwise) for all
costs, losses and liabilities which it may incur in bringing
such action or proceedings.
26.6 Trustee's Obligations
The Trustee shall promptly inform the Agent of:
(a) the contents of any notice or document received by it in its
capacity as Trustee from any Obligor under any Finance Document;
and
(b) the occurrence of any Default of which the Trustee has received
written notice from any other party to this Agreement.
26.7 Excluded Obligations
The Trustee shall not:
(a) be bound to enquire as to the occurrence or otherwise of any
Default or the performance, default or any breach by an Obligor
of its obligations under any of the Finance Documents;
(b) be bound to account to any other Secured Party for any sum or
the profit element of any sum received by it for its own
account;
(c) be bound to disclose to any other person (including any Secured
Party) (i) any confidential information or (ii) any other
information if disclosure would, or might in its reasonable
opinion, constitute a breach of any law or be a breach of
fiduciary duty;
(d) be under any obligations other than those which are specifically
provided for in the Finance Documents; or
(e) have or be deemed to have any duty, obligation or responsibility
to, or relationship of trust or agency with, any Obligor.
26.8 No responsibility to perfect Transaction Security
The Trustee shall not be liable for any failure to:
(a) require the deposit with it of any deed or document certifying,
representing or constituting the title of any Obligor to any of
the Charged Property;
(b) obtain any licence, consent or other authority for the
execution, delivery, legality, validity, enforceability or
admissibility in evidence of any of the Finance Documents or the
Transaction Security;
(c) register, file or record or otherwise protect any of the
Transaction Security (or the priority of any of the Transaction
Security) under any applicable laws in any jurisdiction or to
give notice to any person of the execution of any of the Finance
Documents or of the Transaction Security;
98
(d) take, or to require any of the Obligors to take, any steps to
perfect its title to any of the Charged Property or to render
the Transaction Security effective or to secure the creation of
any ancillary Security under the laws of any jurisdiction; or
(e) require any further assurances in relation to any of the
Security Documents.
26.9 Insurance by Trustee
(a) The Trustee shall not be under any obligation to insure any of
the Charged Property, to require any other person to maintain
any insurance or to verify any obligation to arrange or maintain
insurance contained in the Finance Documents. The Trustee shall
not be responsible for any loss which may be suffered by any
person as a result of the lack of or inadequacy of any such
insurance.
(b) Where the Trustee is named on any insurance policy as an insured
party, it shall not be responsible for any loss which may be
suffered by reason of, directly or indirectly, its failure to
notify the insurers of any material fact relating to the risk
assumed by the insurers or any other information of any kind,
unless any Secured Party has requested it to do so in writing
and the Trustee has failed to do so within fourteen days after
receipt of that request.
26.10 Custodians and Nominees
The Trustee may appoint and pay any person to act as a custodian or
nominee on any terms in relation to any assets of the trust as the
Trustee may determine, including for the purpose of depositing with a
custodian this Agreement or any document relating to the trust created
under this Agreement and the Trustee shall not be responsible for any
loss, liability, expense, demand, cost, claim or proceedings incurred by
reason of the misconduct, omission or default on the part of any person
appointed by it under this Agreement or be bound to supervise the
proceedings or acts of any person.
26.11 Acceptance of Title
The Trustee shall be entitled to accept without enquiry, and shall not
be obliged to investigate, the right and title as each of the Obligors
may have to any of the Charged Property and shall not be liable for or
bound to require any Obligor to remedy any defect in its right or title.
26.12 Refrain from Illegality
The Trustee may refrain from doing anything which in its opinion will or
may be contrary to any relevant law, directive or regulation of any
jurisdiction which would or might otherwise render it liable to any
person, and the Trustee may do anything which is, in its opinion,
necessary to comply with any law, directive or regulation.
26.13 Business with the Obligors
The Trustee may accept deposits from, lend money to, and generally
engage in any kind of banking or other business with any of the
Obligors.
99
26.14 Releases
Upon a disposal of any of the Charged Property:
(a) pursuant to the enforcement of the Transaction Security by a
Receiver or the Trustee; or
(b) if that disposal is permitted under the Finance Documents,
the Trustee shall (at the cost of the Obligors) release that property
from the Transaction Security or the Transaction Security given by that
Obligor and is authorised to execute, without the need for any further
authority from the Secured Parties, any release of the Transaction
Security or other claim over that asset or Obligor and to issue any
certificates of non-crystallisation of floating charges that may be
required or desirable.
26.15 Winding up of Trust
If the Trustee, with the approval of the Majority Lenders, determines
that (a) all of the Secured Obligations and all other obligations
secured by any of the Security Documents have been fully and finally
discharged and (b) none of the Secured Parties is under any commitment,
obligation or liability (actual or contingent) to make advances or
provide other financial accommodation to any Obligor pursuant to the
Finance Documents, the trusts set out in this Agreement shall be wound
up and the Trustee shall release, without recourse or warranty, all of
the Transaction Security and the rights of the Trustee under each of the
Security Documents.
26.16 Perpetuity Period
The perpetuity period under the rule against perpetuities, if applicable
to this Agreement, shall be the period of eighty years from the date of
this Agreement.
26.17 Powers Supplemental
The rights, powers and discretions conferred upon the Trustee by this
Agreement shall be supplemental to the Trustee Acts 1925 and 2000 and in
addition to any which may be vested in the Trustee by general law or
otherwise.
26.18 Disapplication
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Trustee in relation to the trusts constituted by this Agreement. Where
there are any inconsistencies between the Trustee Acts 1925 and 2000 and
the provisions of this Agreement, the provisions of this Agreement
shall, to the extent allowed by law, prevail and, in the case of any
inconsistency with the Trustee Xxx 0000, the provisions of this
Agreement shall constitute a restriction or exclusion for the purposes
of that Act.
26.19 Resignation of Trustee
(a) The Trustee may resign and appoint one of its Affiliates as
successor by giving notice to the Borrower and to the Agent on
behalf of the Lenders.
(b) Alternatively the Trustee may resign by giving notice to the
other Parties (or to the Agent on behalf of the Lenders) in
which case the Majority Lenders may appoint a successor Trustee.
100
(c) If the Majority Lenders have not appointed a successor Trustee
in accordance with paragraph (b) above within 30 days after the
notice of resignation was given, the Trustee (after consultation
with the Agent) may appoint a successor Trustee.
(d) The retiring Trustee shall, at its own cost, make available to
the successor Trustee such documents and records and provide
such assistance as the successor Trustee may reasonably request
for the purposes of performing its functions as Trustee under
the Finance Documents.
(e) The Trustee's resignation notice shall only take effect upon (i)
the appointment of a successor and (ii) the transfer of all of
the Transaction Security to that successor.
(f) Upon the appointment of a successor, the retiring Trustee shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
Clauses 27 (Conduct of Business by the Finance Parties) and 26
(Role of Trustee). Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves as
they would have had if such successor had been an original
Party.
(g) The Majority Lenders may, by notice to the Trustee, require it
to resign in accordance with paragraph (b) above. In this event,
the Trustee shall resign in accordance with paragraph (b) above.
26.20 Delegation
(a) The Trustee may, at any time, delegate by power of attorney or
otherwise to any person for any period, all or any of the
rights, powers and discretions vested in it by any of the
Finance Documents.
(b) The delegation may be made upon any terms and conditions
(including the power to sub-delegate) and subject to any
restrictions as the Trustee may think fit in the interests of
the Secured Parties and it shall not be bound to supervise, or
be in any way responsible for any loss incurred by reason of any
misconduct or default on the part of any delegate or
sub-delegate.
26.21 Additional Trustees
(a) The Trustee may at any time appoint (and subsequently remove)
any person to act as a separate trustee or as a co-trustee
jointly with it (i) if it considers that appointment to be in
the interests of the Secured Parties or (ii) for the purposes of
conforming to any legal requirements, restrictions or conditions
which the Trustee deems to be relevant or (iii) for obtaining or
enforcing any judgment in any jurisdiction, and the Trustee
shall give prior notice to the Borrower and the Agent of that
appointment.
(b) Any person so appointed shall have the rights, powers and
discretions (not exceeding those conferred on the Trustee by
this Agreement) and the duties and obligations that are
conferred or imposed by the instrument of appointment.
101
(c) The remuneration that the Trustee may pay to any person, and any
costs and expenses incurred by that person in performing its
functions pursuant to that appointment shall, for the purposes
of this Agreement, be treated as costs and expenses incurred by
the Trustee.
27. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim;
(c) oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax; or
(d) notwithstanding any provision to the contrary, prevent any
person participating in any transaction relating to this
Agreement from being free to disclose to any persons,
information regarding the tax and structural aspects of matters
in connection with the Finance Documents.
28. SHARING AMONG THE FINANCE PARTIES
28.1 Payments to Finance Parties
If a Finance Party (a "Recovering Finance Party") receives or recovers
any amount from an Obligor other than in accordance with Clause 29
(Payment mechanics) or Clause 31 (Application of Proceeds) and applies
that amount to a payment due under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business Days,
notify details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have
been paid had the receipt or recovery been received or made by
the Agent and distributed in accordance with Clause 29 (Payment
mechanics), without taking account of any Tax which would be
imposed on the Agent in relation to the receipt, recovery or
distribution; and
(c) the Recovering Finance Party shall, within three Business Days
of demand by the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount
which the Agent determines may be retained by the Recovering
Finance Party as its share of any payment to be made, in
accordance with Clause 29.5 (Partial payments).
28.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Finance Party) in accordance with Clause 29.5
(Partial payments).
102
28.3 Recovering Finance Party's rights
(a) On a distribution by the Agent under Clause 28.2 (Redistribution
of payments), the Recovering Finance Party will be subrogated to
the rights of the Finance Parties which have shared in the
redistribution.
(b) If and to the extent that the Recovering Finance Party is not
able to rely on its rights under paragraph (a) above, the
relevant Obligor shall be liable to the Recovering Finance Party
for a debt equal to the Sharing Payment which is immediately due
and payable.
28.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 28.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together
with an amount as is necessary to reimburse that Recovering
Finance Party for its proportion of any interest on the Sharing
Payment which that Recovering Finance Party is required to pay);
and
(b) that Recovering Finance Party's rights of subrogation in respect
of any reimbursement shall be cancelled and the relevant Obligor
will be liable to the reimbursing Finance Party for the amount
so reimbursed.
28.5 Exceptions
(a) This Clause 28 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to
this Clause, have a valid and enforceable claim against the
relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any
other Finance Party any amount which the Recovering Finance
Party has received or recovered as a result of taking legal or
arbitration proceedings, if:
(i) it notified that other Finance Party of the legal or
arbitration proceedings; and
(ii) that other Finance Party had an opportunity to
participate in those legal or arbitration proceedings
but did not do so as soon as reasonably practicable
having received notice and did not take separate legal
or arbitration proceedings.
103
SECTION 11
ADMINISTRATION
29. PAYMENT MECHANICS
29.1 Payments to the Agent
(a) On each date on which an Obligor or a Lender is required to make
a payment under a Finance Document, that Obligor or Lender shall
make the same available to the Agent (unless a contrary
indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Agent as
being customary at the time for settlement of transactions in
the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro,
in a principal financial centre in a Participating Member State
or London) with such bank as the Agent specifies.
29.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 29.3 (Distributions to an
Obligor), Clause 29.4 (Clawback) and Clause 25.17 (Deduction from
amounts payable by the Agent) be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Agent by not less than five Business Days' notice with a bank in the
principal financial centre of the country of that currency (or, in
relation to euro, in the principal financial centre of a Participating
Member State or London).
29.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 30 (Set-off)) apply any amount received by it for that Obligor in
or towards payment (on the date and in the currency and funds of
receipt) of any amount due from that Obligor under the Finance Documents
or in or towards purchase of any amount of any currency to be so
applied.
29.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay
that sum to that other Party (or to enter into or perform any
related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be
the case that the Agent had not actually received that amount,
then the Party to whom that amount (or the proceeds of any
related exchange contract) was paid by the Agent shall on demand
refund the same to the Agent together with interest on that
amount from the date of payment to the date of receipt by the
Agent, calculated by the Agent to reflect its cost of funds.
104
29.5 Partial payments
(a) If the Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Agent shall apply that payment
towards the obligations of that Obligor under the Finance
Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid
fees, costs and expenses of the Agent and the Trustee
(including of any Receiver or Delegate) and the Mandated
Lead Arrangers under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this
Agreement;
(iii) thirdly, in or towards payment pro rata of any principal
due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other
sum due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary
the order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.
29.6 No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
29.7 Business Days
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day
(if there is not).
(b) During any extension of the due date for payment of any
principal or Unpaid Sum under this Agreement interest is payable
on the principal or Unpaid Sum at the rate payable on the
original due date.
29.8 Currency of account
(a) Subject to paragraphs (b) to (e) below, dollars is the currency
of account and payment for any sum due from an Obligor under any
Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or
Unpaid Sum shall be made in the currency in which that Loan or
Unpaid Sum is denominated on its due date.
(c) Each payment of interest shall be made in the currency in which
the sum in respect of which the interest is payable was
denominated when that interest accrued.
105
(d) Each payment in respect of costs, expenses or Taxes shall be
made in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than
dollars shall be paid in that other currency.
29.9 Change of currency
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central
bank of any country as the lawful currency of that country,
then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the
currency of that country shall be translated into, or
paid in, the currency or currency unit of that country
designated by the Agent (after consultation with the
Borrower); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other, rounded
up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Borrower) specifies to be necessary, be
amended to comply with any generally accepted conventions and
market practice in the Relevant Interbank Market and otherwise
to reflect the change in currency.
30. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
31. APPLICATION OF PROCEEDS
31.1 Order of Application
All moneys from time to time received or recovered by the Trustee in
connection with the realisation or enforcement of all or any part of the
Transaction Security shall be held by the Trustee on trust to apply them
at such times as the Trustee sees fit, to the extent permitted by
applicable law, in the following order of priority:
(a) in discharging any sums owing to the Trustee (in its capacity as
trustee), any Receiver or any Delegate;
(b) in payment to the Agent, on behalf of the Secured Parties, for
application towards the discharge of all sums due and payable by
any Obligor under any of the Finance Documents in accordance
with Clause 29.5 (Partial Payments);
106
(c) if none of the Obligors is under any further actual or
contingent liability under any Finance Document, in payment to
any person to whom the Trustee is obliged to pay in priority to
any Obligor; and
(d) the balance, if any, in payment to the relevant Obligor.
31.2 Investment of Proceeds
Prior to the application of the proceeds of the Transaction Security in
accordance with Clause 31.1 (Order of Application) the Trustee may, at
its discretion, hold all or part of those proceeds in an interest
bearing suspense or impersonal account(s) in the name of the Trustee or
Agent with any financial institution (including itself) and for so long
as the Trustee thinks fit (the interest being credited to the relevant
account) pending the application from time to time of those monies at
the Trustee's discretion in accordance with the provisions of this
Clause 31.
31.3 Currency Conversion
(a) For the purpose of or pending the discharge of any of the
Secured Obligations the Trustee may convert any moneys received
or recovered by the Trustee from one currency to another, at the
spot rate at which the Trustee is able to purchase the currency
in which the Secured Obligations are due with the amount
received.
(b) The obligations of any Obligor to pay in the due currency shall
only be satisfied to the extent of the amount of the due
currency purchased after deducting the costs of conversion.
31.4 Permitted Deductions
The Trustee shall be entitled (a) to set aside by way of reserve amounts
required to meet and (b) to make and pay, any deductions and
withholdings (on account of Tax or otherwise) which it is or may be
required by any applicable law to make from any distribution or payment
made by it under this Agreement, and to pay all Tax which may be
assessed against it in respect of any of the Charged Property, or as a
consequence of performing its duties, or by virtue of its capacity as
Trustee under any of the Finance Documents or otherwise (except in
connection with its remuneration for performing its duties under this
Agreement).
31.5 Discharge of Secured Obligations
(a) Any payment to be made in respect of the Secured Obligations by
the Trustee may be made to the Agent on behalf of the Lenders
and that payment shall be a good discharge to the extent of that
payment, to the Trustee.
(b) The Trustee is under no obligation to make payment to the Agent
in the same currency as that in which any Unpaid Sum is
denominated.
31.6 Sums received by Obligors
If any of the Obligors receives any sum which, pursuant to any of the
Finance Documents, should have been paid to the Trustee, that sum shall
promptly be paid to the Trustee for application in accordance with this
Clause.
107
32. NOTICES
32.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
32.2 Addresses
The address, fax number and telex number (and the department or officer,
if any, for whose attention the communication is to be made) of each
Party for any communication or document to be made or delivered under or
in connection with the Finance Documents is:
(a) in the case of the Borrower, that identified with its name
below;
(b) in the case of each Lender or any other Obligor, that notified
in writing to the Agent on or prior to the date on which it
becomes a Party; and
(c) in the case of the Agent and Trustee, that identified with its
name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify to
the other Parties, if a change is made by the Agent) by not less than
five Business Days' notice.
32.3 Delivery
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will
only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the
relevant address or five Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address; or
(iii) if by way of telex, when despatched, but only if, at the
time of transmission, the correct answerback appears at
the start and at the end of the sender's copy of the
notice;
and, if a particular department or officer is specified as part
of its address details provided under Clause 32.2 (Addresses),
if addressed to that department or officer.
(b) Any communication or document to be made or delivered to the
Agent or to the Trustee will be effective only when actually
received by the Agent or the Trustee and then only if it is
expressly marked for the attention of the department or officer
identified with the Agent's or the Trustee's signature below (or
any substitute department or officer as the Agent shall specify
for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent.
108
(d) Any communication or document made or delivered to the Borrower
in accordance with this Clause will be deemed to have been made
or delivered to each of the Obligors.
(e) All notices to a Lender from the Trustee shall be sent through
the Agent.
32.4 Notification of address, fax number and telex number
Promptly upon receipt of notification of an address, fax number and
telex number or change of address, fax number or telex number pursuant
to Clause 32.2 (Addresses) or changing its own address, fax number or
telex number, the Agent shall notify the other Parties.
32.5 Electronic communication
(a) Any communication to be made between the Agent or the Trustee
and a Lender under or in connection with the Finance Documents
may be made by electronic mail or other electronic means, if the
Agent, the Trustee and the relevant Lender:
(i) agree that, unless and until notified to the contrary,
this is to be an accepted form of communication;
(ii) notify each other in writing of their electronic mail
address and/or any other information required to enable
the sending and receipt of information by that means;
and
(iii) notify each other of any change to their address or any
other such information supplied by them.
(b) Any electronic communication made between the Agent and a Lender
or the Trustee will be effective only when actually received in
readable form and in the case of any electronic communication
made by a Lender to the Agent or the Trustee only if it is
addressed in such a manner as the Agent or Trustee shall specify
for this purpose.
32.6 English language
(a) Any notice given under or in connection with any Finance
Document must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent,
accompanied by a certified English translation and, in
this case, the English translation will prevail unless
the document is a constitutional, statutory or other
official document.
109
33. CALCULATIONS AND CERTIFICATES
33.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
33.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
33.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 365 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
34. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
35. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Secured Party or the Mandated Lead Arrangers, any right or remedy under
the Finance Documents shall operate as a waiver, nor shall any single or
partial exercise of any right or remedy prevent any further or other
exercise or the exercise of any other right or remedy. The rights and
remedies provided in this Agreement are cumulative and not exclusive of
any rights or remedies provided by law.
36. AMENDMENTS AND WAIVERS
36.1 Required consents
(a) Subject to Clause 36.2 (Exceptions) and Clause 26.14 (Releases)
any term of the Finance Documents may be amended or waived only
with the consent of the Majority Lenders and the Obligors and
any such amendment or waiver will be binding on all Parties.
(b) The Agent, or in respect of the Security Documents the Trustee,
may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.
36.2 Exceptions
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
110
(ii) an extension to the date of payment of any amount under
the Finance Documents;
(iii) a reduction in the Margin or a reduction in the amount
of any payment of principal, interest, fees or
commission payable;
(iv) an increase in or an extension of any Commitment;
(v) a change to the Borrower or Guarantors;
(vi) any provision which expressly requires the consent of
all the Lenders;
(vii) Clause 2.2 (Finance Parties' rights and obligations),
Clause 24 (Changes to the Parties) or this Clause 36; or
(viii) the nature or scope of the Charged Property or the
manner in which the proceeds of enforcement of the
Transaction Security are distributed;
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or
obligations of the Agent, the Trustee or the Mandated Lead
Arrangers may not be effected without the consent of the Agent,
the Trustee or the Mandated Lead Arrangers.
37. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were
on a single copy of the Finance Document.
111
SECTION 12
GOVERNING LAW AND ENFORCEMENT
38. GOVERNING LAW
This Agreement is governed by English law.
39. ENFORCEMENT
39.1 Jurisdiction of English courts
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 39.1 is for the benefit of the Finance Parties only.
As a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties
may take concurrent proceedings in any number of jurisdictions.
39.2 Service of process
Without prejudice to any other mode of service allowed under any
relevant law, each Obligor (other than an Obligor incorporated in
England and Wales):
(a) irrevocably appoints the Borrower as its agent for service of
process in relation to any proceedings before the English courts
in connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
39.3 Waiver of Jury Trial
Each of the Finance Parties irrevocably waives trial by jury in any
action or proceeding with respect to this Agreement or any other Finance
Document.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
112
SCHEDULE 1
THE ORIGINAL PARTIES
Part I
The Obligors
Name of Borrower Registration number Jurisdiction
(or equivalent, if any)
Sea Containers British Isles Limited 00994965 UK
Name of Guarantor Registration number Jurisdiction
(or equivalent, if any)
Sea Containers Ltd. 00-0000000 Bermuda
Sea Containers Ports & Ferries Limited EC21715 Bermuda
Sea Containers Properties Limited XX00000 Xxxxxxx
Xxxxx Xx Xx 0114296-7 Finland
Ferry and Port Holdings Limited 02413534 UK
GNER Holdings Limited 03101807 UK
Hoverspeed Limited 01537993 UK
Newhaven Marina Limited 03874576 UK
Sea Containers Ferries Limited 02404064 UK
Sea Containers Property Services Limited 02269195 UK
Sea Containers Railway Services Limited 03243875 UK
Sea Containers Ports Limited 02445259 UK
Sea Containers U.K. Limited 03048931 UK
Silja Holdings Limited 03736704 UK
Sea Containers America Inc. 00-0000000 US
113
Part II
The Original Lenders - other than UK Non-Bank Lenders
Name of Original Lender Commitment
Citibank, N.A. US$50,000,000
The Governor and Company of the Bank of Scotland US$50,000,000
114
Part III
The Original Lenders - UK Non-Bank Lenders
Name of Original Lender Commitment
None
115
SCHEDULE 2
CONDITIONS PRECEDENT
1. Obligors: Corporate Documents
(a) A copy of the constitutional documents of each Obligor.
(b) A copy of a good standing certificate (including verification of
tax status) with respect to each US Obligor, issued as of a
recent date by the Secretary of State or other appropriate
official of each US Obligor's jurisdiction of incorporation or
organisation.
(c) A copy of a resolution of the board of directors of each
Obligor:
(i) approving the terms of, and the transactions
contemplated by, the Finance Documents to which it is a
party and resolving that it execute the Finance
Documents to which it is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf;
and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents, powers of
attorneys, deeds and notices (including, if relevant,
any Utilisation Request) to be signed and/or despatched
by it under or in connection with the Finance Documents
to which it is a party.
(d) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (c) above.
(e) A copy of a resolution signed by all the holders of the issued
shares in each Obligor, approving the terms of, and the
transactions contemplated by, the Finance Documents to which the
Obligor is a party and where such Obligor is a corporate, a
resolution from the directors of that company approving such
shareholder resolution and duly appointing a director or other
authorised signatory to sign it.
(f) A certificate of the Parent (signed by a director) confirming
that borrowing or guaranteeing, as appropriate, the Total
Commitments would not cause any borrowing, guaranteeing or
similar limit binding on any Obligor to be exceeded and would
not cause any Obligor to breach any provision of any contract or
agreement entered into by it prior to the date of this
Agreement.
(g) A certificate of an authorised signatory of the relevant
Obligor, certifying that each copy document relating to it
specified in this Schedule 2 is correct, complete and in full
force and effect as at a date no earlier than the date of this
Agreement.
(h) The Group Structure Chart certified by the Parent as being true
at the date of this Agreement.
116
2. Security Documents
(a) The following Security Documents duly executed by the relevant
Obligors and, if required, the Trustee:
(i) UNITED KINGDOM
(1) Chargor incorporated in Bermuda
(A) Silja Pledge.
(B) Charge over GE Seaco Dividends Account,
Dividends Account and Mandatory
Prepayment Account granted by Sea
Containers Ltd.
(2) Chargor incorporated in UK
(B) Charge over shares granted by Sea
Containers UK Limited in respect of its
shareholding in Sea Containers British
Isles Limited.
(C) Charge over shares granted by Sea
Containers British Isles Limited in
respect of its shareholding in GNER
Holdings Limited.
(D) Charge over shares granted by Sea
Containers British Isles Limited in
respect of its shareholding in Sea
Containers Property Services Limited.
(E) Charge over shares granted by Sea
Containers British Isles Limited in
respect of its shareholding in Sea
Containers Railway Services Limited.
(F) Assignment relating to GNER Limited
dividends by GNER Holdings Limited.
(G) Floating Charge granted by Sea
Containers British Isles Limited.
(v) BERMUDA
Chargor incorporated in Bermuda
(1) Charge over shares dated 10 June 2003 granted by
Sea Containers Ltd. in respect of its
shareholding in Sea Containers Ports & Ferries
Limited.
(2) Charge over shares dated 10 June 2003 granted by
Sea Containers Ltd. in respect of its
shareholding in Sea Containers Properties
Limited.
117
(3) Charge over shares dated 22 December 2003
granted by Sea Containers Ltd. in respect of its
shareholding in Orient Express Hotels Limited
pursuant to the Custodian Accounts Charge
Agreement between Sea Containers Ltd., Citicorp
Trustee Company Limited and the Custodian (as
defined therein) and the Escrow Agreement
between Sea Containers Ltd., Citicorp Trustee
Company Limited and the Custodian (as defined
therein) relating thereto, and delivery of all
such shares to the account established with the
Custodian pursuant to such agreements.
(4) A Power of Attorney, in form and substance
satisfactory to the Agent, of the Parent in
favour of the Agent permitting the sale of
Secured Shares by the Agent on behalf of the
Parent.
(vi) US
(1) Charge over shares dated 10 June 2003 granted by
Sea Containers America Inc. in respect of its
shareholding in Charleston Marine Containers
Inc.
(2) OEH Security Agreement dated 22 December 2003.
(3) Amendment agreement relating to the OEH Security
Agreement dated 22 December 2003.
(vii) BARBADOS
Chargor incorporated in Bermuda
Charge over dividends dated 10 June 2003 granted by Sea
Containers Ltd. in respect of its shareholding in GE
Seaco.
(b) All documentation, and/or evidence of all other steps required
to perfect the Security Documents, as set out in the Transaction
Closing Agenda.
3. Legal Opinions
(a) A legal opinion of Xxxxxxxx Chance LLP legal advisors to the
Mandated Lead Arrangers and Agent in England, substantially in
the form distributed to the Original Lenders prior to signing
this Agreement.
(b) A legal opinion of Xxxxxx Xxxxxx Xxxxx & Co legal advisors to
the Mandated Lead Arrangers and the Agent in Barbados,
substantially in the form distributed to the Original Lenders
prior to the signing of this Agreement.
(c) A legal opinion of Xxxxx, Xxxxx & Xxxxxx legal advisers to the
Mandated Lead Arrangers and the Agent in Bermuda, substantially
in the form distributed to the Original Lenders prior to signing
this Agreement.
(d) A legal opinion of Xxxxxxxx Chance US legal advisers to the
Mandated Lead Arrangers and the Agent in the United States (in
relation to New York law), substantially in the form distributed
to the Original Lenders prior to signing this Agreement.
118
(e) A legal opinion of Luostarinen Mettala Raikkonen, Finnish
counsel to the Mandated Lead Arrangers and the Agent in Finland,
substantially in the form distributed to the Original Lenders
prior to signing this Agreement.
4. Other documents and evidence
(a) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable
(if it has notified the Borrower accordingly) in connection with
the entry into and performance of the transactions contemplated
by any Finance Document or for the validity or enforceability of
any Finance Document or of the Transaction Security.
(b) The Original Financial Statements.
(c) Evidence that the fees, costs and expenses then due from the
Borrower pursuant to Clause 12 (Fees), Clause 17 (Costs and
Expenses) and Clause 13.5 (Stamp Taxes) have been paid or will
be paid by the first Utilisation Date.
(d) The executed Subordination Agreement dated 22 December 2003.
(e) The executed subordination agreement replacing the Subordination
Agreement.
(f) Evidence that the Market Value of the Secured Shares is at least
US$100,000,000.
(g) The executed Fee Letters.
(h) Actuarial valuation evidencing pension fund deficit/surplus in
GNER Limited and evidence showing limitation of liability for
any shortfall expiry at the date of the Franchise Expiry Date.
(i) Evidence that the SETG Account has been established.
(j) Original of the executed Undertaking.
(k) Evidence that, upon a sale of Secured Shares, the Parent
irrevocably instructs SETG (i) to direct payment of the OEH
Share Proceeds into the Mandatory Prepayment Account and (ii)
that all trades are to be settled delivery versus payment.
(l) Budget of GNER Holdings Limited evidencing a net cash flow of
US$50,000,000 per annum.
(m) A copy of the Franchise Agreement and Track Access Agreement and
any amendment supplemental or other ancillary document
pertaining to it.
(n) The audited financial statements for GNER Limited for the
financial year ended 31 December 2003 (evidencing the treatment
of/showing the pensions liabilities of GNER Limited).
119
(o) The Memoranda Update Certificate.
(p) A letter dated on or about the date of this Agreement confirming
consent to the terms and conditions of the Finance Documents and
providing any relevant waivers required in relation thereto from
The Governor and Company of the Bank of Scotland in respect of
the Folkestone Facility.
(q) A duly executed Account Agreement and Escrow Agreement.
(r) A certificate of a finance officer of each US Obligor stating
that the respective company is Solvent after giving effect to
the initial Loans, the application of the proceeds thereof in
accordance with Clause 3 (Purpose) and the payment of all
estimated legal, accounting and other fees related to this
Agreement and the consummation of the other transactions
contemplated hereby. For purposes of this certificate, "Solvent"
means with respect to such US Obligor on any date of
determination that (a) the fair value of the property of such
person is greater than the total amount of liabilities
(including contingent and unliquidated liabilities) of such
person; (b) the present fair saleable value of the assets of
such person is not less than the amount which will be required
to pay the probable liability of such person on its debts as
they become absolute and mature; (c) such person does not intend
to, and does not believe that it will, incur debts or
liabilities beyond such person's ability to pay as such debts
and liabilities mature; and (d) such person is not engaged in a
business or transaction, and is not about to engage in a
business or transaction, for which such person's property would
constitute unreasonably small capital. In computing the amount
of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in lights of
all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become
an actual and matured liability.
(s) The Transaction Closing Agenda and, to the extent that they are
not otherwise delivered in accordance with Schedule 2 hereof,
the delivery of all items set out therein.
(t) A copy of a term sheet evidencing among others a best efforts
undertaking by Bank of Nova Scotia for the syndication in
connection with an extension of the term of the Container
Facility until 30 September 2006 or later and for an amount of
at least USD100,000,000.
(u) Evidence that the disposal of all of the shares in Folkestone
Properties Limited has occurred.
(v) A copy of the Silja Bank Agreement and related Guarantee granted
by Sea Containers Limited.
120
SCHEDULE 3
UTILISATION REQUEST
From: SEA CONTAINERS LTD
To: [Agent]
Dated:
Dear Sirs
SEA CONTAINERS BRITISH ISLES LIMITED - [ ] Facility Agreement dated [ ]
(the "Agreement")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined
in the Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation Request.
2. The Borrower wishes to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business Day,
the next Business Day)
Currency of Loan: Dollars
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
3. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Utilisation
Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
Authorised Signatory of
SEA CONTAINERS LTD.
* delete as appropriate
121
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case,
any other authority which replaces all or any of its functions) or (b)
the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per
annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Lender to the Agent. This percentage will be certified by that Lender in
its notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
Ex 0.01
-------- per cent. per annum.
100
Where:
E is designed to compensate Lenders for amounts payable under the
Fees Rules and is calculated by the Agent as being the average
of the most recent rates of charge supplied by the Reference
Banks to the Agent pursuant to paragraph 6 below and expressed
in pounds per (pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of
England;
(b) "Fees Rules" means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may be
in force from time to time in respect of the payment of fees for
the acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any
minimum fee or zero rated fee required pursuant to the Fees
Rules but taking into account any applicable discount rate); and
122
(d) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to the Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of the Financial Services
Authority (calculated for this purpose by that Reference Bank as being
the average of the Fee Tariffs applicable to that Reference Bank for
that financial year) and expressed in pounds per (pound)1,000,000 of the
Tariff Base of that Reference Bank.
7. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require for
such purpose.
Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
8. The rates of charge of each Reference Bank for the purpose of E above
shall be determined by the Agent based upon the information supplied to
it pursuant to paragraphs 6 and 7 above and on the assumption that,
unless a Lender notifies the Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits and Special Deposits are
the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 6 and 7 above is
true and correct in all respects.
10. The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for each Lender based on the information provided by each Lender
and each Reference Bank pursuant to paragraphs 3, 6 and 7 above.
11. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
12. The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all Parties any amendments which
are required to be made to this Schedule in order to comply with any
change in law, regulation or any requirements from time to time imposed
by the Bank of England, the Financial Services Authority or the European
Central Bank (or, in any case, any other authority which replaces all or
any of its functions) and any such determination shall, in the absence
of manifest error, be conclusive and binding on all Parties.
123
124
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: [ ] as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the
"New Lender")
Dated:
SEA CONTAINERS BRITISH ISLES LIMITED - [ ] Facility Agreement
dated [ ] (the "Agreement")
1. We refer to the Agreement. This is a Transfer Certificate. Terms defined
in the Agreement have the same meaning in this Transfer Certificate
unless given a different meaning in this Transfer Certificate.
2. We refer to Clause 24.6 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing
Lender transferring to the New Lender by novation all or part of
the Existing Lender's Commitment, rights and obligations
referred to in the Schedule in accordance with Clause 24.6
(Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of Clause
32.2 (Addresses) are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 24.5 (Limitation
of responsibility of Existing Lenders).
4. The New Lender confirms that the person beneficially entitled to
interest payable to that Lender in respect of an advance under a Finance
Document is either:
(a) a company resident in the United Kingdom, or a partnership each
member of which is a company resident in the United Kingdom, for
United Kingdom tax purposes; or
(b) a company not so resident in the United Kingdom which carries on
a trade in the United Kingdom through a branch or agency and
interest payable in respect of an advance under a Finance
Document falls to be brought into account in computing the
chargeable profits of that company for the purposes of section
11(2) of the Taxes Act.(1)
--------------------------------------------------------------------------------
(1) Include if New Lender comes within the definition of Qualifying Lender in
Clause 1.1 (Definitions).
125
[4/5]. This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts
were on a single copy of this Transfer Certificate.
[5/6]. This Transfer Certificate is governed by English law.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments,]
[Existing Lender] [New Lender]
By: By
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [ ].
[Agent]
By:
126
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: [ ] as Agent
From: SEA CONTAINERS LTD.
Dated:
Dear Sirs
SEA CONTAINERS BRITISH ISLES LIMITED - [ ] Facility Agreement
dated [ ] (the "Agreement")
1. We refer to the Agreement. This is a Compliance Certificate delivered with
the [audited] consolidated accounts of the Company dated [31 March, 30
June, 30 September, 31 December] (the "Reference Date"). Unless otherwise
defined herein, capitalised terms shall have the same meaning as in the
Agreement.
2. We confirm that on the Reference Date:
(a) Consolidated Tangible Net Worth was US$[ ] and therefore was not less
than US$250,000,000 (or equivalent in other currencies). Therefore the
covenant contained in paragraph 21.6(a) of Clause 21 (Security Cover
and Financial Covenants) [has/has not] been complied with;
(b) The Parent had Cash in an amount equal to US$[ ] and when combined
with the Cash of GNER Holdings Limited, GNER Limited and the Borrower
(each as referred to at paragraphs (c), (d) and (e) respectively
below) was at least US$50,000,000 (or equivalent in other currencies).
Therefore the covenant contained in paragraph 21.6(b) of Clause 21
(Security Cover and Financial Covenants) [has/has not] been complied
with;
(c) GNER Holdings Limited had Cash in an amount equal to US$[ ] and when
combined with the Cash of the Parent, GNER Limited and the Borrower
(each as referred to at paragraphs (b), (d) and (e) respectively) was
at least US$50,000,000 (or equivalent in other currencies). Therefore
the covenant contained in paragraph 21.6(b) of Clause 21 (Security
Cover and Financial Covenants) [has/has not] been complied with;
(d) GNER Limited had Cash in an amount equal to US$[ ] and when combined
with the Cash of the Parent, GNER Holdings Limited and the Borrower
(each as referred to at paragraphs (b), (c) and (e) respectively) was
at least US$50,000,000 (or equivalent in other currencies). Therefore
the covenant contained in paragraph 21.6(b) of Clause 21 (Security
Cover and Financial Covenants) [has/has not] been complied with;
(e) The Borrower had Cash in an amount equal to US$[ ] and when combined
with the Cash of the Parent, GNER Holdings Limited and GNER Limited
(each as referred to at paragraphs (b), (c) and (d) above
respectively) was at least US$50,000,000 (or equivalent in other
currencies). Therefore the covenant contained in paragraph 21.6(b) of
Clause 21 (Security Cover and Financial Covenants) [has/has not] been
complied with; and
127
(f) The Borrower had Cash in an amount equal to US$[ ] therefore was at
least [US$5,000,000] (or equivalent in other currencies). Therefore
the covenant contained in paragraph 20.5(c) of Clause 21 (Security
Cover and Financial Covenants) [has/has not] been complied with.
3. [We confirm that no Default is continuing]*
Signed: ..............................
Authorised Signatory and Finance Officer
of
SEA CONTAINERS LTD.
--------------------------------------------------------------------------------
* If this statement cannot be made, the certificate should identify any
Default that is continuing and the steps, if any, being taken to remedy it.
128
SCHEDULE 7
GROUP STRUCTURE CHART
[Chart Omitted]
129
SCHEDULE 8
TIMETABLES
Loans in dollars
Delivery of a duly completed Utilisation Request (Clause 5.1 U-5
(Delivery of a Utilisation Request)
9.30am
Agent notifies the Lenders of the Loan or of any payment to U-2
be made to another Lender in each case in accordance with
Clause 5.4 (Lenders' participation) noon
LIBOR is fixed U-2
as of 11.00 a.m.
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
130
SCHEDULE 9
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [Subsidiary] and [Parent]
Dated:
Dear Sirs
[Parent] - [ ] Facility Agreement
dated [ ] (the "Agreement")
1. We refer to the Agreement. This is an Accession Letter. Terms defined in
the Agreement have the same meaning in this Accession Letter unless given a
different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an Additional Guarantor and to be bound by
the terms of the Agreement as an Additional Guarantor pursuant to Clause
24.9 (Additional Guarantors) of the Agreement. [Subsidiary] is a company
duly incorporated under the laws of [name of relevant jurisdiction].
3. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
1. This Accession Letter is governed by English law.
[This Guarantor Accession Letter is entered into by a deed.]
[Parent] [Subsidiary]
131
SCHEDULE 10
CONDITIONS PRECEDENT DOCUMENTS
TO BE PROVIDED BY ADDITIONAL GUARANTORS
1. An Accession Letter, duly executed by the Additional Guarantor and the
Parent.
2. A copy of the constitutional documents of the Additional Guarantor.
3. A copy of a resolution of the board of directors of the Additional
Guarantor:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices to be signed and/or
despatched by it under or in connection with the Finance Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. A copy of a resolution signed by all the holders of the issued shares of
the Additional Guarantor, approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Additional Guarantor is
a party.
6. A certificate of the Additional Guarantor (signed by a director) confirming
that borrowing or guaranteeing, as appropriate, the Total Commitments would
not cause any borrowing, guaranteeing or similar limit binding on it to be
exceeded.
7. A certificate of an authorised signatory of the Additional Guarantor
certifying that each copy document listed in this Schedule is correct,
complete and in full force and effect as at a date no earlier than the date
of the Accession Letter.
8. A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of the transactions contemplated by the
Accession Letter or for the validity and enforceability of any Finance
Document.
9. If available, the latest audited financial statements of the Additional
Guarantor.
10. A legal opinion of Xxxxxxxx Chance, legal advisers to the Mandated Lead
Arrangers and the Agent in England.
11. If the Additional Guarantor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Mandated
Lead Arrangers and the Agent in the jurisdiction in which the Additional
Guarantor is incorporated.
132
12. If the proposed Additional Guarantor is incorporated in a jurisdiction
other than England and Wales, evidence that a process agent in the United
Kingdom has accepted its appointment in relation to the proposed Additional
Guarantor.
133
SIGNATURES
THE BORROWER
SIGNED for and on behalf of
SEA CONTAINERS BRITISH ISLES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
THE GUARANTORS
SIGNED for and on behalf of
FERRY & PORT HOLDINGS LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
134
SIGNED for and on behalf of
GNER HOLDINGS LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
HOVERSPEED LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
NEWHAVEN MARINA LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
135
SIGNED for and on behalf of
SEA CONTAINERS AMERICA INC.
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS FERRIES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
136
SIGNED for and on behalf of
SEA CONTAINERS PORTS LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS LTD.
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PORTS & FERRIES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
137
SIGNED for and on behalf of
SEA CONTAINERS PROPERTIES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PROPERTY SERVICES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
138
SIGNED for and on behalf of
SEA CONTAINERS RAILWAY SERVICES LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS UK LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SILJA HOLDINGS LIMITED
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
139
SIGNED for and on behalf of
SILJA OY AB
By:
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
140
THE MANDATED LEAD ARRANGERS
SIGNED for and on behalf of
CITIGROUP GLOBAL MARKETS LIMITED
By:
Address: Loan Capital Markets
Citigroup
00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Loan Capital Markets, Xxxxxxxx Xxxxxxx, Director
SIGNED for and on behalf of
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By:
Address: Bank of Scotland
Corporate Banking
0xx Xxxxx
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Corporate Banking, Xxx Feast, Director
141
THE AGENT
SIGNED for and on behalf of
CITIBANK INTERNATIONAL PLC
By:
Address: Citigroup Centre,
33 Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax: x00 000 000 0000/4484
Telephone: x00 000 000 0000
Attention: Loans Agency
THE TRUSTEE
SIGNED for and on behalf of
CITICORP TRUSTEE COMPANY LIMITED
By:
Address: Citicorp Trustee Company Limited
00xx Xxxxx
Xxxxxxxxx Xxxxxx
Xxxxxx Square
Xxxxxx Xxxxx
Xxxxxx
X00 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Agency and Trust
142
THE ORIGINAL LENDERS
SIGNED for and on behalf of
Citibank, n.a.
By:
Address: Loan Capital Markets
Citigroup
00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Loan Capital Markets, Xxxxxxxx Xxxxxxx, Director
SIGNED for and on behalf of
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: [__________]
Address: Bank of Scotland
Corporate Banking
0xx Xxxxx
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Corporate Banking, Xxx Feast, Director
143
SCHEDULE 3
DEED OF RELEASE
CHARLESTON MARINE CONTAINERS
PART A - RELEASE OF GUARANTEE
DEED OF RELEASE OF GUARANTEE
[On the letterhead of Citibank International plc]
THIS DEED OF RELEASE is made the [ ] day of 2004
BY:
(b) Citibank international plc (the "Agent")
in favour of
(7) Charleston Marine containers, Inc. (the "Company")
WHEREAS
(B) By a USD158,000,000 Facility Agreement dated 10 June 2003, as amended
and restated on 22 December 2003 and as further amended prior to the
date of this Deed, made between among others Sea Containers British
Isles Limited as borrower, the Company and others as guarantors and the
Agent (the "Facility Agreement"), the Company guaranteed to the Finance
Parties the punctual performance by the Borrower of its obligations
under the Finance Documents.
(C) The Company has requested the Agent to release the guarantee which the
Agent (acting on the instructions of the Majority Lenders) has agreed to
do upon the terms and conditions of this deed.
(D) This deed is supplemental to the Facility Agreement.
IT IS AGREED as follows:
2. Terms defined in the Facility Agreement shall have the same meaning in
this Deed.
3. The Agent (acting on the instructions of the Majority Lenders), without
recourse, representation or warranty of title releases the Company from
its obligations under the Facility Agreement.
4. The Agent agrees that it will (at the cost and expense of the Company)
do all things and execute all documents as may reasonably be necessary
to give effect to this release.
5. This deed is governed by English law.
IN WITNESS WHEREOF this deed has been executed by the Agent (acting on the
instructions of the Majority Lenders) and is intended to be and is hereby
delivered on the date specified above.
Execution by the Agent
PART B - RELEASE OF SHARE PLEDGE
[On the letterhead of Citicorp Trustee Company]
[date]
Sea Containers America, Inc.
Sea Containers Limited
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Attention: The Company Secretary
Pledge Agreement dated 10 June 2003 (the "Pledge Agreement") between Sea
Containers America, Inc. (the "Pledgor") and Citicorp Trustee Company Limited
(the "Secured Party")
Unless otherwise defined herein, capitalized terms used herein have the meanings
given to them in the Pledge Agreement.
Pursuant to the Pledge Agreement you, the Pledgor, have pledged 100% of the
capital stock of Charleston Marine Containers, Inc. (such stock more fully
described in Schedule 1 of the Pledge Agreement) (the "Pledged Collateral"), as
security for the Finance Documents. In connection therewith, you have
transferred to us, in our capacity as Secured Party, the original share
certificate evidencing the Pledgor's ownership of the Pledged Collateral
(Certificate No. ______ evidencing ____ shares) along with the relevant stock
power executed in blank.
We hereby release the security interest in the Pledged Collateral granted by the
Pledge Agreement and return herewith the original share certificate representing
the Pledged Collateral as well as the relevant stock power executed in blank.
All rights to the Pledged Collateral have now reverted to the Pledgor, who may
now sell, assign or otherwise dispose of the Pledged Collateral as the Pledgor
may see fit, without any notice to or consent from the Secured Party. The
Secured Party has no remaining interest in the Pledged Collateral whatsoever and
the Pledged Collateral is no longer subject to the Pledge Agreement.
Please acknowledge receipt thereof by countersigning below (in duplicate) and
returning one original to the Secured Party.
This letter is governed by the laws of the State of New York.
Signed by:
........................................
For and on behalf of CITICORP TRUSTEE COMPANY LIMITED
Receipt of the above-referenced share and stock power certificates is hereby
acknowledged.
Signed by:
........................................
For and on behalf of SEA CONTAINERS AMERICA INC.
SIGNATURES
THE BORROWER
SIGNED for and on behalf of
SEA CONTAINERS BRITISH ISLES LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
THE GUARANTORS
SIGNED for and on behalf of
CHARLESTON MARINE CONTAINERS INC.
By: XXXXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
FERRY & PORT HOLDINGS LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
FOLKESTONE PROPERTIES LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
GNER HOLDINGS LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
HOVERSPEED LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
NEWHAVEN MARINA LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS AMERICA INC.
By: XXXXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS FERRIES LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS LTD.
By: XXXXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PORTS & FERRIES LIMITED
By: XXXXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PORTS LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PROPERTIES LIMITED
By: XXXXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PROPERTY SERVICES LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS RAILWAY SERVICES LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS UK LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SILJA HOLDINGS LIMITED
By: XXX XXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SILJA OY AB
By: XXXXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
THE MANDATED LEAD ARRANGERS
SIGNED for and on behalf of
CITIGROUP GLOBAL MARKETS LIMITED
By: XXXXXXXX XXXXXXX
Address: Loan Capital Markets
Citigroup
00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Loan Capital Markets, Xxxxxxxx Xxxxxxx, Director
SIGNED for and on behalf of
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: XXX FEAST
Address: Bank of Scotland
Corporate Banking
0xx Xxxxx
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Corporate Banking, Xxx Feast, Director
THE AGENT
SIGNED for and on behalf of
CITIBANK INTERNATIONAL PLC
By: Xxxxxxxx Xxxxxxx
Address: Citigroup Centre
33 Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax: x00 000 000 0000/4484
Telephone: x00 000 000 0000
Attention: Loans Agency
THE TRUSTEE
SIGNED for and on behalf of
CITICORP TRUSTEE COMPANY LIMITED
By:
Address: Citicorp Trustee Company Limited
00xx Xxxxx
Xxxxxxxxx Xxxxxx
Xxxxxx Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Agency and Trust
THE ORIGINAL LENDERS
SIGNED for and on behalf of
CITIBANK, N.A.
By: Xxxxxxxx Xxxxxxx
Address: Loan Capital Markets
Citigroup
00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Loan Capital Markets, Xxxxxxxx Xxxxxxx, Director
SIGNED for and on behalf of
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: XXX FEAST
Address: Bank of Scotland
Corporate Banking
0xx Xxxxx
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Corporate Banking, Xxx Feast, Director
