CONFORMED COPY
REVOLVING CREDIT FACILITY
DATED 15th December 1995
$300,000,000
BETWEEN
GAMBRO AB
as the Parent,
ARRANGED BY
BNP CAPITAL MARKETS LIMITED
as Arranger
and
THE BANKS
and
BANQUE NATIONALE DE PARIS
as Agent
XXXXX & XXXXX
London
INDEX
Clause Page No.
1. Interpretation....................................................... 1
2. Commitments and nature of obligations................................ 10
3. Purpose.............................................................. 12
4. Conditions precedent................................................. 12
5. Drawdown............................................................. 12
6. Repayment............................................................ 13
7. Prepayment and cancellation.......................................... 13
8. Interest periods..................................................... 14
9. Interest............................................................. 16
10. Selection of optional currencies..................................... 17
11. Amount of optional currencies........................................ 18
12. Payments............................................................. 20
13. Taxes................................................................ 22
14. Market disruption.................................................... 24
15. increased costs...................................................... 25
16. Illegality........................................................... 27
17. Mitigation........................................................... 27
18. Guarantee............................................................ 27
19. Representations and warranties....................................... 30
20. Undertakings......................................................... 32
21. Default.............................................................. 37
22. The agent and the arranger........................................... 43
23. Fees................................................................. 45
24. Expenses............................................................. 46
25. Stamp duties......................................................... 46
26. Indemnities.......................................................... 46
27. Evidence and calculations............................................ 48
28. Amendments and waivers............................................... 48
29. Changes to the parties............................................... 49
30. Disclosure of information............................................ 51
31. Set-off.............................................................. 52
32. Pro rata sharing..................................................... 52
33. Severability......................................................... 53
34. Counterparts......................................................... 53
35. Notices.............................................................. 53
36. Language............................................................. 55
37. Jurisdiction......................................................... 55
38. Governing law........................................................ 56
SCHEDULES
1 - Banks and Commitments................................................. 57
2 - Conditions Precedent Documents........................................ 58
3 - Calculation of the MLA Cost........................................... 60
4 - Form of Request....................................................... 62
5 - Form of Novation Certificate.......................................... 63
6 - Form of Deed of Accession............................................. 65
7 - Approved Additional Borrowers......................................... 67
THIS FACILITY AGREEMENT is dated 15th December 1995 between:
(1) GAMBRO AB (the "Parent");
(2) BNP CAPITAL MARKETS LIMITED as Arranger (in this capacity the
"Arranger");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the
"Banks"); and
(4) BANQUE NATIONALE DE PARIS as agent (in this capacity the
"Agent").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
"Additional Borrower" means any entity that becomes an additional
borrower by virtue of Clauses 2.4 and 2.5.
"Affiliate" means a subsidiary or a holding company (in each case,
as defined in Section 736 of the Companies Xxx 0000 of England and Wales)
of a Bank or any other subsidiary of that holding company.
"Agent's Spot Rate of Exchange" means the Agent's spot rate of
exchange for the purchase of the relevant Optional Currency in the London
foreign exchange market with U.S. Dollars at or about 11.00 a.m. on a
particular day.
"Agreed Optional Currencies" means Deutschmarks, Dutch Guilders,
French Francs, Swiss Francs, Sterling and Yen.
"Applicable Margin" means 0.20 per cent. per annum from the date
hereof to the fifth anniversary of the date hereof and 0.225 per cent. per
annum thereafter.
"Borrowers" means the Parent and/or any Additional Borrower and, in
relation to any Loan, means the Borrower to whom that Loan is, or is to
be, made (each a "Borrower").
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"Borrower's Agent" means the Parent or such other person from time
to time nominated by the Borrowers to act on behalf of the Borrowers in
relation hereto and approved for such purpose by the Agent (whose approval
shall not be unreasonably withheld).
"Business Day" means a day (other than a Saturday or a Sunday) on
which banks are open for business in:
(a) London and Paris;
(b) (in relation to a transaction involving any payments in
Dollars) New York; and
(c) (in relation to a transaction involving any payment in an
Optional Currency) the principal financial center of the
country of that Optional Currency.
"COBE" means COBE Laboratories, Inc.
"Commitment Period" means, theamount in Dollars set opposite the
name of a Bank in Schedule 1 to the extent not cancelled or reduced under
this Agreement
"Commitment Period" means the period from the date of this Agreement
until the Final Repayment Date (inclusive).
"Consolidated Total Assets" means the total tangible assets of the
Group (excluding recorded goodwill but including all intellectual property
rights) as shown in its latest audited consolidated accounts.
"Deed of Accession" means a Deed of Accession in relation to an
Additional Borrower entered into pursuant to Clause 2.4.
"Default" means an Event of Default or an event which, with the
giving of notice under this Agreement, lapse of time specified in this
Agreement (or in the case of a grace period contained in any other
document which is referred to herein, specified in that document),
determination of materiality or fulfillment of any other applicable
condition (or any combination of the foregoing), would constitute an Event
of Default.
3
"Deutschmarks" means the lawful currency for the time being of the
Federal Republic of Germany.
"Disclosure Letter" means a letter delivered by the Parent to the
Agent prior to the date hereof relating to Clause 19 (Representations and
Warranties).
"Dollars" or "$" means the lawful currency for the time being of the
United States of America.
"Drawdown Date" means the date of the advance of a Loan.
"Dutch Guilders" means the lawful currency for the time being of The
Netherlands.
"EIBOR" means, in relation to a Loan denominated in Sterling:
(a) the rate per annum of the offered quotation for deposits in
Sterling for a period comparable to the relevant Interest Period which
appears on Telerate Page 3750 at or about 11:00 a.m. on the Rate Fixing
Day; or
(b) if no such offered quotation appears on Telerate Page 3750
at or about such time, the arithmetic mean (rounded upwards, if
necessary, to four decimal places) of the offered quotations for
deposits in Sterling for a period comparable to the relevant
Interest Period which appears on the Reuters Screen LIBP at or about
11:00 a.m. on the Rate Fixing Day; or
(c) if no such offered quotation appears on the Telerate Page
3750 and one only or no such offered quotation appears on the LIBP
Page of the Reuters Screen at or about 11:00 a.m. on the Rate Fixing
Day (or if there is no LIBP Page on the Reuters Screen) or the Agent
determines, on the instruction of a Bank, that the rate determined
in accordance with paragraphs (a) and (b) above is not available for
deposits in Sterling domiciled outside the United Kingdom, the
arithmetic mean (rounded upwards, if necessary, to four decimal
places) of the per annum rates, as supplied to the Agent at its
request, quoted by each Reference Bank to leading banks at or about
11:00 a.m. on the Rate Fixing Day for the offering of deposits in
Sterling domiciled outside the United Kingdom in an amount
comparable to its participation in that Loan and for a period equal
to the relevant Interest Period.
For the purposes of this definition, "Telerate Page 3750"
means the display designated as "Page 3750", on the Telerate Service (or
such other page as may replace Page 3750 on that service or such other
service as may be nominated by the British Bankers' Association as the
4
information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for Sterling
deposits).
"Event of Default" means an event specified as such in Clause 21.1
(Events of Default).
"Facility" means the revolving credit facility referred to in Clause
2.1 (Statement of Commitments).
"Facility Office" means the office(s) notified by a Bank to the
Agent
(a) on or before the date it becomes a Bank; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"Fee Letters" means the two letters both dated the date of this
Agreement between the Agent or the Arranger and the Parent setting out the
amount of various fees referred to in Clause 23 (Fees).
"Final Repayment Date" means the seventh anniversary of the date of
this Agreement.
"Finance Document" means this Agreement, the Fee Letters, any Deed
of Accession or any other document designated as such by the Agent and the
Borrowers' Agent.
"Finance Party" means the Arranger, a Bank or the Agent.
"Financial Indebtedness" means (without double counting) any
indebtedness in respect of:
(a) moneys borrowed and debit balances at banks and other
financial institutions;
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance credit;
5
(d) receivables sold or discounted to the extent that there is
recourse to the seller for non-payment by the relevant debtor;
(e) the acquisition cost of any asset to the extent payable
after the time of acquisition or possession by the party liable
where the deferred payment is arranged primarily as a method of
raising finance and the deferral is for a period in excess of 180
days (and, for the avoidance of doubt, this paragraph (e) shall not
include trade debt);
(f) leases (in relation to real estate, plant and machinery or
equipment), if and to the extent that the lessee is required under
standard accounting practices or principles applicable to it to
account for the value of the lease as an asset and the lease
payments as liability;
(g) currency swap or interest swap, cap or collar arrangements
or any derivative instruments relating to such arrangements so far
as it constitutes the aggregate net debt position in relation
thereto; and
(h) any guarantee, indemnity or similar legally binding
assurance against financial loss of any person in each case in
respect of any of the types of obligation referred to in paragraphs
(a) - (g) above.
"French Francs" means the lawful currency for the time being of
France.
"Group" means the Parent and its Subsidiaries.
"Interest Period" means each period determined in accordance with
Clause 8 (Interest Periods).
"LIBOR" means, in relation to a Loan denominated in a currency other
than Sterling:
(a) the rate per annum of the offered quotation for deposits
in the currency of that Loan for a period comparable to the relevant
Interest Period which appears on Telerate Page 3750 or Telerate Page
3740, as the case may be, at or about 11.00 a.m. on the Rate Fixing
Day; or
(b) if no such offered quotation appears on Telerate Page 3750
or Telerate Page 3740, as the case may be, at or about such time,
the arithmetic mean (rounded upwards, if necessary, to four decimal
places) of the offered quotations for deposits in the currency of
that Loan for a period comparable to the relevant Interest Period
which appears on the Reuters Screen LIBO (in the case of Dollars) or
the relevant page (if any) for any other currency at or about 11.00
a.m. on the Rate Fixing Day; or
6
(c) if no such offered quotation appears on the Telerate Page
3750 or Telerate Page 3740, as the case may be, or one only or no
such offered quotation appears on the relevant Page of the Reuters
Screen at or about 11:00 a.m. on the Rate Fixing Day (or if there is
no relevant Page on the Reuters Screen), the arithmetic mean
(rounded upwards, if necessary, to four decimal places) of the per
annum rates, as supplied to the Agent at its request, quoted by each
Reference Bank to leading banks in the London interbank market at or
about 11.00 a.m. on the Rate Fixing Day for the offering of deposits
in the currency of that Loan in an amount comparable to its or its
Affiliate's participation in that Loan and for a period equal to the
relevant Interest Period.
For the purposes of this definition, "Telerate Page 3750"
means the display designated as "Page 3750", and "Telerate Page
3740" means the display designated as "Page 3740", on the Telerate
Service (or such other page as may replace Page 3750 or Page 3740,
as the case may be, on that service or such other service as may be
nominated by the British Bankers' Association as the information
vendor for the purpose of displaying British Bankers' Association
Interest Settlement Rates for deposits in the relevant currency).
"Loan" means, subject to Clauses 8 (Interest Periods) and 11 (Amount
of Optional Currencies), the principal amount of each borrowing by the
Borrowers under this Agreement or the principal amount outstanding of that
borrowing.
"Majority Banks" means, at any time, Banks:-
(a) whose participations in the Loans then outstanding
aggregate over 50 per cent. of all the Loans then outstanding; or
(b) if there are no Loans then outstanding, whose Commitments
then aggregate over 50 per cent. of the Total Commitments; or
(c) if there are no Loans then outstanding and the Total
Commitments have been reduced to nil, whose Commitments aggregated
over 50 per cent. of the Total Commitments immediately before the
reduction.
"Material Subsidiary" means, at any time:
(a) a member of the Group (i) whose total assets as shown in
its latest audited accounts (consolidated if it itself has
Subsidiaries) exceed ten percent of Consolidated Total Assets at
that time; and/or (ii) whose turnover as shown in its latest audited
accounts (consolidated if it itself has Subsidiaries) exceeds ten
percent of the turnover of the Group as shown in the Parent's latest
audited consolidated accounts adjusted to reflect the turnover of
any company which has since become or ceased to be a member of the
Group; and/or
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(b) any other Subsidiary designated as a Material Subsidiary
by the Parent (until such time as the Parent notifies the Agent in
writing that such Subsidiary shall no longer be a Material
Subsidiary).
PROVIDED THAT if, at any time, either
(i) the aggregate of the total assets of all the Material
Subsidiaries at that time is not at least 75 per cent. of Consolidated
Total Assets; or
(ii) the aggregate turnover of all the Material Subsidiaries
as shown in their latest audited accounts is not at least 75 per cent. of
the turnover of the Group as shown in the Parent's latest audited
consolidated accounts adjusted as aforesaid, then every member of the
Group shall be a Material Subsidiary.
"MLA Cost" means the cost imputed to a Bank whose Facility Office is
in the United Kingdom of the compliance with the Mandatory Liquid Assets
requirements of the Bank of England during an Interest Period for a Loan
maintained in Sterling, expressed as a rate per annum and determined in
accordance with Schedule 3.
"Novation Certificate" has the meaning given to it in Clause 29.3
(Procedure for novations).
"Obligor" means the Parent or any Borrower.
"Optional Currency" means the Agreed Optional Currencies and any
other currency with the exception of Dollars.
"Original Dollar Amount" in relation to a Loan, means:-
(a) if that Loan is denominated in Dollars, the amount of that
Loan; or
(b) if that Loan is denominated in an Optional Currency, the
equivalent in Dollars of the amount of that Loan if it had first
been drawn down and had remained denominated in Dollars.
"Original Group Accounts" means the audited consolidated accounts of
the Group for the year ended December, 1994 and the unaudited consolidated
income statements of the Group for the six months ended 30th June, 1995.
8
"Party" means a party to this Agreement.
"Rate Fixing Day" means the second Business Day before the first day
of an Interest Period for a Loan.
"Reference Banks" means, subject to Clause 29.4 (Reference Banks),
the principal London offices of Banque Nationale de Paris, Enskilda,
Skandinaviska Enskilda Xxxxxx XX (publ), Commerzbank Aktiengesellschaft
and Union Bank of Switzerland.
"REN" means REN Corporation - USA.
"Request" means a request made by the Borrower for a Loan,
substantially in the form of Schedule 4.
"Security Interest" means any mortgage, pledge, lien, charge,
assignment by way of security, hypothecation or security interest or any
other agreement or arrangement having the effect of conferring security.
"Sterling" means the lawful currency for the time being of the
United Kingdom.
"Subsidiary" means a subsidiary within the meaning of the Swedish
Companies Act (1975:1385).
"Swiss Francs" means the lawful currency for the time being of
Switzerland.
"Tax on Overall Net Income" of a Bank shall be construed as a
reference to tax (other than tax deducted or withheld from any amounts
paid or payable hereunder)imposed on that Bank by the jurisdiction under
the laws of which it has been incorporated or in which its Facility Office
is located on (1) the net income, profits or gains of the Bank worldwide
or (2) such of the net income, profits or gains of that Bank as are
considered to arise in or to relate to or are taxable in that
jurisdiction.
9
"Total Commitments" means, the aggregate for the time being of the
Commitments, being $300,000,000 at the date of the Agreement.
"Yen" means the lawful currency for the time being of Japan.
"1993 Agreement" means the Revolving Credit Facility Agreement dated
11th May 1993 between the Parent, and the Finance Parties (as defined
therein).
"1994 Agreement" means the Revolving Credit and Term Loan Facility
Agreement dated 30th November 1994 between the Parent and the Finance
Parties (as defined therein).
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a
reference to:
(i) "assets" includes properties, revenues and rights of every
description;
an "authorisation" includes an authorisation, consent,
approval, resolution, license, exemption, filing and
registration;
a "month" or a period of "months" is a reference to a period
starting on one day in a calendar month and ending on the
numerically corresponding day in the relevant later calendar
month, except that if there is no numerically corresponding
day in that later month, that period shall end on the last
Business Day in that calendar month;
a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law but, if not, being of a kind with which it is
customary for companies within the relevant industry to
comply) of any governmental body, agency, department or
regulatory, self-regulatory or other authority or
organisation;
(ii) a provision of law is a reference to that provision as amended
or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a
schedule to this Agreement;
(iv) a person includes its successors and permitted transferees and
assigns;
(v) a Finance Document or another document is a reference to that
Finance Document or other document as amended, novated or supplemented;
and
10
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any other
Finance Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.
(c) The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this Agreement.
(d) Words importing the singular shall include the plural and vice
versa.
2. COMMITMENTS AND NATURE OF OBLIGATIONS
2.1 Statement of Commitments
Subject to the terms of this Agreement, the Xxxxx xxxxx to the
Borrowers a committed multicurrency revolving advance facility under which the
Banks shall, when requested, make to Borrowers during the Commitment Period
Loans in Dollars or an Optional Currency up to an aggregate Original Dollar
Amount not exceeding, at any time, the Total Commitments at that time. No Bank
is obliged to lend more than its Commitment (save as provided in Clause 11.3(c)
(Same Optional Currency).)
2.2 Obligations several
The obligations of each Bank under this Agreement are several.
Failure of a Bank to carry out its obligations hereunder shall not relieve any
other party hereto of any of its obligations hereunder. No Bank shall be
responsible for the obligations of any other Bank hereunder.
2.3 Rights several
The obligations of the Borrower towards the Agent and the Banks
hereunder are given to each of them as separate and independent rights. Each
Bank may, except as otherwise stated in this Agreement, separately enforce its
rights hereunder.
2.4 Additional Borrowers
The Borrowers' Agent may, with the prior written consent of the
Majority Banks, at any time during the term of this Agreement, notify the Agent
that one of the Parent's Subsidiaries incorporated in Sweden, the United States
of America or Germany (or elsewhere, with the consent of all the Banks) is to be
designated as an Additional Borrower guaranteed by the Parent. Such notice shall
be in writing and signed on behalf of the Borrowers' Agent and on behalf of the
Subsidiary concerned and shall take effect in accordance with its terms provided
that:
(a) the Additional Borrower enters into a Deed of Accession with the
Agent on behalf of the Banks in the form of Schedule 6 together with such
amendments as the Agent, acting in accordance with the directions of the
Majority Banks, may reasonably require; and
11
(b) the Additional Borrower, before entering into such a deed of
Accession, has fulfilled all appropriate conditions precedent as notified
to the Borrowers' Agent in the Banks' written consent to the satisfaction
of the Agent or as otherwise agreed by the Banks.
2.5 Approved Additional Borrowers
The Subsidiaries listed in Schedule 7 shall (subject to
subparagraphs (a) and (b) of Clause 2.4 (Additional Borrowers)) be deemed to be
approved by all the Banks as Additional Borrowers.
2.6 Borrowers' Agent
Each Borrower by its execution of this Agreement or, as the case may
be, of a Deed of Accession irrevocably authorises the Borrowers' Agent to give
all notices and instructions and make such agreements expressed to be capable of
being given or made by the Borrowers herein notwithstanding that they may affect
such Borrower without further reference to or the consent of such Borrower and
such Borrower shall, as regards the Agent and each Bank, be bound thereby as
though such Borrower itself had agreed such change or given such notice or made
such agreement.
2.7 Choice of Facility Office
Each Bank agrees (but without accepting any legal liability) that,
when selecting the Facility Office(s) through which it will perform all or any
of its obligations under this Agreement relating to an Additional Borrower, it
shall use reasonable efforts to minimise the taxation and other costs for the
Additional Borrower arising from such selection PROVIDED THAT such Bank shall
not be required to select a particular Facility Office or to take any other
steps if, in its bona fide opinion, such selection or such steps would or might
have an adverse effect upon its business, operations or financial condition.
2.8 Commitment of Union Bank of Switzerland and The Sanwa Bank,
Limited.
Notwithstanding any other provision of this Agreement the following
shall be considered to be one Bank with a single Commitment for the purpose of
this Agreement:
(i) Union Bank of Switzerland, London Branch and Union de Banques
Suisses (Luxembourg) S.A.; and
(ii) The Sanwa Bank Limited, London Branch and The Sanwa Bank,
Limited, Los Angeles Branch.
but Union Bank of Switzerland, London Branch and The Sanwa Bank, Limited, London
Branch shall be obliged to make Loans to any Borrower (other than any Additional
Borrower incorporated in the United States of America) and Union de Banques
Suisses (Luxembourg) S.A. and The Sanwa Bank, Limited, Los Angeles Branch shall
be obliged to make Loans to any Additional Borrower incorporated in the United
States of America, in all cases subject to the terms of this Agreement.
3. PURPOSE
The Borrower shall apply each Loan towards the refinancing of the
1993 Agreement and the 1994 Agreement and thereafter for general corporate
purposes. Without affecting the
12
obligations of the Borrower in any way, no Finance Party is bound to monitor or
verify the application of any Loan.
4. CONDITIONS PRECEDENT
4.1 Documentary conditions precedent
The obligations of each Finance Party to any Obligor under this
Agreement are subject to the condition precedent that the Agent has notified the
parent and the Banks that it has received all of the documents set out in
Schedule 2 in form and substance satisfactory to the Agent. The Agent will give
the parent such notification promptly upon receipt of such documents.
4.2 Further conditions precedent
The obligations of each Bank to advance any amount under Clause 5.3
(Participations) or 11 (Amount of Optional Currencies) are (unless all of the
Banks otherwise agree in any particular case) subject to the further conditions
precedent that on both the date of the Request (if applicable) and the date on
which the relevant amount is to be advanced:
(a) the representations and warranties in Clause 19 (Representations
and warranties) to be repeated on those dates are correct and will be
correct immediately after the advance; and
(b) no Default is outstanding or would result from the advance or,
in the case where outstanding indebtedness of the Borrower under the 1993
Agreement and/or the 1994 Agreement is being refinanced by any Loan to be
made hereunder to that Borrower, no Event of Default has occurred and is
continuing.
5. DRAWDOWN
5.1 Commitment
Subject to the terms of this Agreement, Loans will be made to each
Borrower at any time during the Commitment Period when requested by the
Borrower. The Commitment of each Bank shall automatically be cancelled at close
of business in London on the last day of the Commitment Period.
5.2 Requests
Whenever a Borrower desires a Loan to be made available to it, it
shall give a Request in writing to the Agent, appropriately completed, to be
received not later than 10.00 a.m. (London time) on the third (in the case of a
Loan to be denominated in Dollars or an Agreed Optional Currency) or the fifth
(in the case of a Loan to be denominated in a currency other than Dollars or an
Agreed Option Currency) Business Day prior to the proposed Drawdown Date of such
Loan (or such other time as the Borrower may agree with the Banks), specifying
in respect of such Loan:
(a) the proposed Drawdown Date (being a Business Day falling within
the Commitment Period);
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(b) the Original Dollar Amount of such Loan which shall be in a
minimum amount of $5,000,000 and integral multiples of $1,000,000;
(c) the currency in which a Loan is to be denominated for the first
Interest Period determined in accordance with Clause 10 (Selection of
Optional Currencies);
(d) the first Interest Period for such Loan determined in accordance
with Clause 8 (Interest Periods);
(e) the payment instructions in compliance with Clause 12
(Payments).
Subject to the terms of this Agreement, each Request shall be irrevocable and
the Borrower shall be bound to accept the Loan in accordance with the Request.
The Agent shall promptly notify each Bank of each Request and, if the Loan is to
be denominated in an Agreed Optional Currency, the Optional Currency amounts
(and the applicable Agent's Spot Rate of Exchange) in accordance with Clause
11.1 (Amount of Optional Currencies - Drawdowns). No Borrower may serve a
Request until the Agent has confirmed to the Borrower and the Banks that the
conditions precedent set out in Clause 4.1 (Documentary conditions precedent)
have been satisfied. Loans may not be in more than six currencies at any one
time. Each Request must specify one Loan only, but the Borrower may, subject to
the other terms of this Agreement, deliver more than one Request on any one day.
5.3 Participations
Subject to the terms of this Agreement, each Bank shall on the
proposed Drawdown Date make available to the Agent the amount of its
participation in the Loan concerned in the proportion its Commitment bears to
the Total Commitments.
6. REPAYMENT
Subject to Clause 7 (Prepayment and Cancellation), the Borrower
shall repay each Loan in the currency in which it is denominated in full on the
Final Repayment Date.
7. PREPAYMENT AND CANCELLATION
7.1 Voluntary Prepayment
The Borrower may at any time, by giving not less than five Business
Days' prior written notice to the Agent, prepay any Loan in whole or in part
(but, if in part, in an integral multiple of an Original Dollar Amount of
$5,000,000), such prepayment to be without premium or penalty if made on the
last day of an Interest Period relative thereto but if made on a day other than
the last day of an Interest Period relative thereto the Parent shall indemnify
each Bank pursuant to Clause 26.2(c).
7.2 Voluntary Cancellation
The Borrower may, by giving not less than thirty days' prior written
notice to the Agent, cancel without premium or penalty in whole or in part the
undrawn amount of the Total Commitments (but, if in part, in an integral
multiple of an Original Dollar Amount of $5,000,000). Any cancellation in part
shall be applied against the Commitment of each Bank pro rata.
14
7.3 Additional right of prepayment and cancellation
If:-
(a) the Borrower is required to pay to a Bank any additional amounts
under Clause 13 (Taxes); or
(b) the Borrower is required to pay to a Bank any amount under
Clause 15 (Increased costs); or
(c) interest on a Bank's participation in a Loan is being calculated
in accordance with Clause 14.4(c) (Alternative basis for outstanding
Loans),
then, without prejudice to the obligations of the Borrower under those Clauses,
the Borrower may, whilst the circumstances continue or within thirty days after
receipt of notice from that Bank or the Agent of the relevant event within
paragraph (a), (b) or (c) above (whichever is the later), serve a notice of
prepayment and cancellation on that Bank through the Agent. On the date falling
five Business Days after the date of service of the notice:
(i) the Borrower shall prepay that Bank's participation in all the
Loans to that Borrower; and
(ii) that Bank's undrawn Commitment in respect of that Borrower
shall be cancelled.
7.4 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this
Agreement is irrevocable. The Agent shall notify the Banks promptly of receipt
of any such notice.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid and all other amounts due and payable
under this Agreement (including without limitation under Clause 26.2(c)).
(c) No prepayment or cancellation is permitted except in accordance
with the express terms of this Agreement.
(d) Any amount of any Loan prepaid under this Agreement may
subsequently be reborrowed. No amount of the Total Commitments cancelled under
this Agreement may subsequently be reinstated.
8. INTEREST PERIODS
8.1 Selection
(a) The Borrower may select an Interest Period for a Loan in either
the relevant Request or, if the Loan has been borrowed, a notice received by the
Agent not later than 10.00 a.m. on the third (in the case of a Loan to be
denominated in Dollars or an Agreed Optional Currency during that Interest
Period) or the fifth (in the case of a Loan to be denominated in a currency
other than Dollars or an Agreed Optional Currency during that Interest Period)
Business Day before the commencement of that Interest Period.
15
Each Interest Period for a Loan will commence on its Drawdown Date or the expiry
of its preceding Interest Period.
(b) Subject to the following provisions of this Clause 8 (Interest
Periods), each Interest Period will be either an approved duration or an
optional duration as so selected under paragraph (a) above.
In this Clause 8 (Interest Periods):
"approved duration" means one, three or six months; and
"optional duration" means any period other than one, three or six
months agreed by the Banks.
(c) If the Borrower fails to select an Interest Period for an
outstanding Loan in accordance with paragraph (a) above, that Interest Period
will, subject to the other provisions of this Clause 8 (Interest Periods), be
three months.
(d) No more than six Interest Periods of one month's duration may be
selected in any calendar year.
8.2 Selection of an optional duration
(a) If the Borrower selects an Interest Period of an optional
duration, it may also select an Interest Period of an approved duration to apply
if the selection of an optional duration becomes ineffective in accordance with
paragraph (b) below.
(b) If:-
(i) the Borrower requests an Interest Period of an optional
duration; and
(ii) the Agent receives notice from a Bank not later than 3:00 p.m.
three Business Days prior to the commencement of the Interest Period that
matching deposits are not available to it in the ordinary course of
business in the relevant interbank market to fund its participation in the
Loan for that Interest Period,
the Interest Period for that Loan shall be the alternative period so specified
or, in the absence of any alternative selection and subject to the following
provisions of this Clause 8, three months. In this event, the Agent shall
promptly notify the Borrower and the Banks of the new Interest Period for the
Loan.
8.3 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if there is
not).
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8.4 Consolidation and splitting
(a) The number of Interest Periods current hereunder at any time
with different expiry dates shall not exceed 10.
(b) If the number of Interest Periods current hereunder with
different expiry dates reaches 10, the first Interest Period for any additional
Loan must end on the same day as an existing Interest Period for another Loan
for the same Borrower and both such Loan shall thereafter (if in the same
currency and subject to paragraph (c) below) be consolidated.
(c) Subject to paragraph (a) above, the Borrower may, in any Request
or any notice given pursuant to Clause 8.1(a) above, split any Loan (including
any consolidated Loan) into two or more Loans (provided that the Original Dollar
Amount of each resulting Loan is a minimum of $5,000,000).
8.5 No overrunning
If an Interest Period in respect of a Loan would otherwise overrun
the Final Repayment Date, it shall be shortened so that it ends on the Final
Repayment Date.
8.6 Other adjustments
The Agent and the Borrowers' Agent may, with the consent of the
Banks, enter into such other arrangements as they may agree for the adjustment
of Interest Periods and the consolidation and/or splitting of Loans.
8.7 Notification
The Agent shall notify the Borrower, the Borrowers' Agent and the
Banks of the duration of each Interest Period promptly after ascertaining its
duration.
9. INTEREST
9.1 Interest Rate
The rate of interest on each Loan for each of its Interest Periods
is the rate per annum determined by the Agent to be the aggregate of:-
(a) Applicable Margin;
(b) (i) in the case of all Loans other than a Sterling Loan,
LIBOR; or
(ii) in the case of a Sterling Loan, EIBOR; and
(c) MLA Costs when applicable to such Loan.
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9.2 Due dates
Except as otherwise provided in this Agreement, accrued interest on
each Loan is payable by the Borrower on the last day of each Interest Period for
that Loan and also, if the Interest Period is longer than six months, at six
monthly intervals during that Interest Period.
9.3 Default interest
(a) If an Obligor fails to pay any amount payable by it under this
Agreement, it shall forthwith on demand by the Agent pay interest on the overdue
amount from the due date up to the date of actual payment, as well after as
before judgment, at a rate (the "default rate") determined by the Agent to be
one per cent. per annum above:
(i) if the overdue amount is of principal and an Interest Period
relative thereto is still current, the rate applicable to such overdue
amount under Clause 9.1 (Interest rate) during such Interest Period; and
(ii) in any other case, the rate which would have been payable if
the overdue amount had, during the period of non-payment constituted a
Loan in the currency of the overdue amount for such successive Interest
Periods not exceeding three months of such duration as the Agent may
determine (each a "Designated Interest Period").
(b) The default rate will be determined by the Agent on each
Business Day or the first day of, or two Business Days before the first day of,
the relevant Designated Interest Period, as appropriate.
(c) If the Agent determines that deposits in the currency of the
overdue amount are not at the relevant time being made available by the
Reference Banks to leading banks in the London interbank market, the default
rate will be determined by reference to the weighted average of the cost of
funds to the Banks from whatever sources they may select.
(d) Default interest will be compounded at the end of each
Designated Interest Period.
9.4 Notification
The Agent shall promptly notify the Borrower, the Borrower's Agent
and each Bank of the determination of a rate of interest under this Agreement.
10. SELECTION OF OPTIONAL CURRENCIES
10.1 Availability
A Borrower may not request that a Loan be denominated in an Optional
Currency (other than an Agreed Optional Currency) unless the Agent has confirmed
to that Borrower that the Optional Currency is readily available and freely
transferable in the London foreign exchange market.
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10.2 Selection
(a) The Borrower may select the currency of a Loan for an Interest
Period in either the relevant Request, or, if such Loan is outstanding, a notice
received by the Agent not later than 10.00 a.m. on the third (in the case of a
Loan to be denominated in Dollars or an Agreed Optional Currency during that
Interest Period) or the fifth (in the cases of a Loan to be denominated in a
currency other than Dollars or an Agreed Optional Currency during that Interest
Period) Business Day before the commencement of that Interest Period. The
Borrower may specify in any such notice whether that Loan is to be denominated
in more than one currency, and, if so, the amount in Dollars of each such
currency (being an integral multiple of an Original Dollar Amount of $5,000,000
or the balance of the Loan, if more).
(b) If the Borrower fails to give a notice in respect of an
outstanding Loan in accordance with paragraph (a) above, that Loan shall remain
denominated for its next Interest Period in the same currency in which it is
then denominated.
(c) Each part of a Loan which is to be denominated in a different
currency from any other part of that Loan shall be treated as a separate Loan.
(d) The Borrower may not choose a currency if as a result the Loans
would be denominated at any one time in more than six currencies.
(e) The Agent shall notify each Bank of the currency of each Loan
promptly after it is ascertained.
10.3 Revocation of currency
Notwithstanding Clause 10.1 (Availability), if before 10:00 a.m. on
the fourth Business Day before the commencement of an Interest Period, the Agent
receives notice from a Bank that:-
(a) it is impracticable for the Bank to fund or make its
participation in the Loan in the relevant Optional Currency (other than an
Agreed Optional Currency) during that Interest Period; or
(b) the use of the proposed Optional Currency (other than an Agreed
Optional Currency) might contravene any law or regulation,
the Agent shall give notice to the Borrower, the Borrowers' Agent and to the
Banks to that effect before 11:00 a.m. on that day and, unless the Borrower, the
Borrowers' Agent and the Banks agree otherwise, the Loan shall be denominated in
Dollars during that Interest Period.
11. AMOUNT OF OPTIONAL CURRENCIES
11.1 Drawdowns
If a Loan is to be drawn down in an Optional Currency, the amount of
each Bank's participation in that Loan will be determined by converting into
that Optional Currency the Bank's participation in the Original Dollar Amount of
that Loan on the basis of the Agent's Spot Rate of Exchange three Business Days
before its Drawdown Date.
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11.2 Change of currency
(a) If a Loan is to be continued during its next Interest Period in
a different currency (the "new currency") from that in which it is then
denominated, such Loan shall be repaid by the Borrower in full at the end of its
current Interest Period in the currency in which it is then denominated and,
subject to the terms of this Agreement, shall be re-advanced by the Banks
forthwith in the new currency.
(b) If the new currency is Dollars, the amount of each Bank's
participation in that Loan will be its participation in the Original Dollar
Amount of that Loan for that Interest Period.
(c) If the new currency is an Optional Currency, the amount of each
Bank's participation in that Loan will be determined by converting into the new
currency its participation in the Original Dollar Amount of that Loan on the
basis of the Agent's Spot Rate of Exchange three Business Days before the
commencement of that Interest Period.
11.3 Same Optional Currency
(a) If a Loan is to be continued during its next Interest Period in
the same Optional Currency as that in which it is denominated during its current
Interest Period, there shall be calculated the difference between the amount of
such Loan (in that Optional Currency) for the current Interest Period and for
the next Interest Period. The amount of such Loan for the next Interest Period
will be determined by notionally converting into that Optional Currency the
Original Dollar Amount of such Loan on the basis of the Agent's Spot Rate of
Exchange three Business Days before the commencement of that Interest Period.
(b) At the end of the current Interest Period (but subject always to
paragraph (c) below):-
(i) if the amount of such Loan for the next Interest Period is less
than for the preceding Interest Period, the Borrower shall repay the
difference; or
(ii) if the amount of such Loan for the next Interest Period is
greater, each Bank shall forthwith make available to the Agent for the
Borrower its participation in the difference.
(c) If the Agent's Spot Rate of Exchange for the next Interest
Period shows an appreciation or depreciation of the Optional Currency against
Dollars of less than five percent when compared with the Original Exchange Rate,
no amounts are payable in respect of the difference. In this Clause 11 (Amount
of Optional Currencies) "Original Exchange Rate" means the Agent's Spot Rate of
Exchange used for determining the amount of the Optional Currency for the
Interest Period which is the later of the following:-
(i) the Interest Period during which such Loan was first denominated
in that Optional Currency if such Loan has since then remained denominated
in that Optional Currency; and
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(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this Clause 11.3.
11.4 Prepayments and Repayments
If a Loan is to be repaid or prepaid by reference to an Original
Dollar Amount, the amount actually to be repaid or prepaid in the relevant
Optional Currency shall be determined by applying to the relevant part of the
Original Dollar Amount to be repaid or prepaid the Agent's Spot Rate of Exchange
last used for determining the Optional Currency amount of that Loan under Clause
11 (amount of Optional Currencies) or, if applicable, the Original Exchange
Rate.
11.5 Notification
Except for Optional Currency amounts for a Loan to be drawn down in
an Agreed Optional Currency of which the Agent shall notify the Banks in
accordance with Clause 5.2 (Requests) the Agent shall notify the Banks, the
Borrower and the Borrowers' Agent of Optional Currency amounts (and the
applicable Agent's Spot Rate of Exchange) promptly after they are ascertained.
12. PAYMENTS
12.1 Place
All payments by an Obligor or a Bank under this Agreement shall be
made to the Agent to its account at such office or bank as it may, at least
three Business Days prior to the due date of such payment, notify to that
Obligor or Bank for this purpose.
12.2 Funds
Payments under this Agreement to the Agent shall be made for value
on the due date at such times and in such funds as are customary at the time for
the settlement of transactions in the relevant currency in the place for
payment.
12.3 Distribution
(a) Each payment received by the Agent under this Agreement for
another Party shall, subject to paragraphs (b) and (c) below, be made available
by the Agent to that Party by payment (on the date and in the currency and funds
of receipt) to its account with such office or bank in the principal financial
center of the country of the relevant currency as it may notify to the Agent for
this purpose by not less than five Business Days' prior notice.
(b) The Agent may apply any amount received by it for the Borrower
in or towards payment (on the date and in the currency and funds of receipt) of
any amount due from the Borrower under this Agreement or in or towards the
purchase of any amount of any currency to be so applied.
(c) Where a sum is to paid to the Agent under this Agreement for
another Party, the Agent is not obliged to pay that sum to that Party until it
has established that it has actually received that sum. The Agent may, however,
assume that the sum has been
21
paid to it in accordance with this Agreement, and, in reliance on that
assumption, make available to that Party a corresponding amount. If the sum has
not been made available but the Agent has paid a corresponding amount to another
Part, that Party shall forthwith on demand by the Agent refund the corresponding
amount together with interest on that amount from the date of payment to the
date of receipt, calculated at a rate determined by the Agent to reflect its
cost of funds.
12.4 Currency
(a) A repayment of a Loan or any part of a Loan is payable in the
currency in which the Loan is denominated on its due date.
(b) Interest is payable in the currency in which the relevant amount
in respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses and taxes and the
like are payable in the currency in which they are incurred.
(d) Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Dollars.
12.5 Set-off and counterclaim
All payments made by an Obligor under this Agreement shall be made
without set-off or counterclaim.
12.6 Non-Business Days
(a) If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall instead be the next Business
Day in the same 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 under this Agreement interest is payable on that principal at the rate
payable on the original due date.
12.7 Partial payments
(a) If the Agent receives a payment insufficient to discharge all
the amounts then due and payable by the Obligors under this Agreement, the Agent
shall apply that payment towards the obligations of the Obligors under this
Agreement in the following order:
(i) first, in or towards payment pro rata of any unpaid costs and
expenses of the Agent under this Agreement;
(ii) secondly, in or towards payment pro rata of any accrued
interest due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
22
(iv) fourthly, in or towards payment pro rata of any other sum due
but unpaid under this Agreement.
(b) The Agent shall, if so directed by all the Banks, vary the order
set out in sub-paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above shall override any appropriation
made by an Obligor.
13. TAXES
13.1 Gross-up
All payments by an Obligor under the Finance Documents shall be made
without any deduction and free and clear of and without deduction for or on
account of any taxes (other than Taxes on Overall Net Income), except to the
extent that the Obligor is required by law to make payment subject to any taxes.
If any tax or amounts in respect of tax must be deducted, or any other
deductions for or on account of any taxes must be made, from any amounts payable
or paid by an Obligor, or paid or payable by the Agent to a Bank under the
Finance Documents (other than Taxes on Overall Net Income), the Obligor shall
(subject to clause 13.2 (c)) pay such additional amounts as may be necessary to
ensure that the relevant Bank receives a net amount equal to the full amount
which it would have received had payment not been made subject to tax.
13.2 Forms
(a) To the extent that at that time any Bank is entitled to complete
or partial, as the case may be, exemption from deduction or withholding for or
on account of any taxes with respect to all payments to be made by any Obligor
under the Finance Documents merely by completing certain forms, that Bank
agrees, upon request by such Obligor, to execute and deliver to such Obligor,
such forms, if they are required by law or are such as the Obligor may
reasonably request. Further, if COBE and/or REN becomes an Additional Borrower,
each Bank which is organised under the laws of a jurisdiction outside the US
hereby agrees (insofar as it can lawfully do so):
(i) within 10 days after the date on which COBE and/or REN becomes
an Additional Borrower to deliver to COBE and/or REN (as the case may be)
and the Agent:-
(aa) for the office, if any, identified with such Bank's
signature which is located in the United States of America, two
accurate and complete, original signed copies of Internal Revenue
Service Form 4224 or any successor thereto ("Form 4224"); or
(bb) for the office, if any, identified with such Bank's
signature below which is located outside the United States of
America, two accurate and complete, original signed copies of
Internal Revenue Service Form 1001 or any successor thereto ("Form
1001"),
23
in each case indicating that such Bank is on the date hereof
entitled to receive all payments under this Agreement through such office
free from withholding of US federal income tax; and
(ii) before or promptly after the occurrence of any event (including
the passage of time or designation of an Additional Borrower) requiring
the delivery of an additional or replacement Form 4224 or 1001 to deliver
to COBE and/or REN (as the case may be) and the Parent, upon the request
of COBE, and/or REN), the Parent or the Agent, (if delivery of the same be
lawful under then applicable law), two accurate and original signed copies
of Form 4224 or 1001 in addition to or replacement for the forms
previously delivered by such Bank claiming an exemption from withholding
tax or the greatest reduction of withholding tax available under then
applicable law.
(b) Each Bank agrees that, to the extent any form claiming or
otherwise establishing complete or partial exemption from withholding and
deduction of taxes delivered under this Agreement is incomplete or incorrect in
any material respect when delivered or thereafter, such Bank shall execute and
deliver complete and correct replacement forms.
(c) If a Bank fails to comply with paragraph (a) above, such Obligor
shall not be obliged to pay additional amounts under Clause 13.1 (Gross-up) in
respect of any deduction for or on account of taxes that would not have been
made had such Bank complied.
13.3 Tax receipts
All taxes required by law to be deducted or withheld by an Obligor
from any amounts paid or payable under the Finance Documents shall be paid by
the relevant Obligor when due and the Obligor shall, as soon as reasonably
practicable after the payment is made, deliver to the Agent for the relevant
Bank evidence satisfactory to that Bank (including all relevant tax receipts (or
similar evidence) or copies thereof) that the payment has been duly remitted to
the appropriate authority.
13.4 Tax credits
(a) If, following the payment by any Obligor of any additional
amounts under clause 13.1 (Gross-up), the Agent or any Bank shall determine that
it has received or been granted a credit against or remission for any taxes
payable by it, the Agent or such Bank shall reimburse such Obligor with such
amount as the Agent or such Bank shall in its absolute discretion certify to be
the proportion of such credit or remission (if any) as will leave the Agent or
such Bank (after such reimbursement) in no worse position than it would have
been in had the relevant deduction or withholding not been made. Such
reimbursement shall be made promptly upon the Agent or such Bank making any such
determination.
(b) Nothing in paragraph (a) above shall:
(i) require the Agent or any Bank to disclose to any Obligor any
details of its tax affairs;
24
(ii) interfere with the right of the Agent or any Bank to arrange
its tax affairs in whatever manner it thinks fit; and
(iii) neither the Agent nor any Bank shall be under any obligation
to claim relief in respect of any payment under Clause 13.1 (Gross-up) in
priority to any other reliefs, claims or credits available to it.
14. MARKET DISRUPTION
14.1 Absence of quotations
If the Agent requests a quotation from the Reference Banks and a
Reference Bank does not supply an offered rate by 1.00 p.m. on a Rate Fixing
Day, the applicable LIBOR or EIBOR (as the case may be) shall, subject to Clause
14.2 (Market disruption), be determined on the basis of the quotation of the
other Reference Banks.
14.2 Market disruption
If, on or prior to a Rate Fixing Day:
(a) the Agent requests a quotation from the Reference Banks and two
Reference Banks do not supply an offered rate by 1.00 p.m. on a Rate
Fixing Day; or
(b) the Agent determines that adequate and fair means do not exist
for ascertaining LIBOR or EIBOR (as the case may be); or
(c) the Agent receives notification from Banks whose participations
in a Loan exceed 50 per cent of that Loan that, in their opinion:-
(i) matching deposits are not available to them in the
relevant interbank market in the ordinary course of business to fund
their participations in that Loan for the relevant Interest Period;
or
(ii) the cost to them of obtaining matching deposits in the
relevant interbank market would be in excess of LIBOR or EIBOR (as
the case may be) for the relevant Interest Period,
the Agent shall promptly notify the Borrower and the Banks of the fact and
that this Clause 14 (Market Disruption) is in operation.
For the purposes of this Clause, "relevant interbank market" means:
(1) in the case of all Loans other than a Sterling Loan,
London; and
(2) in the case of a Sterling Loan, such interbank market
outside the United Kingdom as a Bank may reasonably select for the
purpose of funding its participation.
14.3 Suspension of drawdowns
If a notification under Clause 14.2 (Market disruption) applies to a
Loan which has not been made, the Borrower's Agent may (by notice to the Agent)
elect that the Loan shall not be made.
25
If the Borrowers' Agent does not so elect and such Loan is made,
Clause 14.4 (Alternative basis for outstanding Loans) shall apply thereto. If
the Borrowers' Agent does so elect, the Borrowers' Agent and the Agent shall,
within five Business Days of the relevant Rate Fixing Day, enter into
negotiations for a period of not more than 30 days with a view to agreeing an
alternative basis for the borrowing of that and any future Loan made while such
circumstances continue. Any alternative basis agreed shall be, with the prior
consent of all the Banks, binding on all the Parties.
14.4 Alternative basis for outstanding Loans
If a notification under Clause 14.2 (Market disruption) applies to a
Loan which is (or, by virtue of the Borrowers' Agent not making an election
under Clause 14.3 (Suspension of drawdowns), which has become) outstanding,
then, notwithstanding any other provision of this Agreement:-
(a) within five Business Days of receipt of the notification, the
Borrowers' Agent and the Agent shall enter into negotiations for a period
of not more than 30 days with a view to agreeing an alternative basis for
determining the rate of interest and/or funding applicable to that Loan
and/or any other Loans denominated or to be denominated in the currency of
that Loan;
(b) any alternative basis agreed under paragraph (a) above shall be,
with the prior consent of all the Banks, binding on all the Parties;
(c) if no alternative basis is agreed, each Bank shall (through the
Agent) certify on or before the last day of the Interest Period to which
the notification relates an alternative basis for maintaining its
participation in that Loan;
(d) any such alternative basis may include an alternative method of
fixing the interest rate, alternative Interest Periods or alternative
currencies but it must reflect the cost to the Bank of funding its
participation in the Loan from whatever sources it may reasonably select
plus the Applicable Margin plus any applicable MLA Costs; and
(e) each alternative basis so certified shall be binding on the
Borrower, the Borrowers' Agent and the certifying Bank and treated as part
of this Agreement.
(f) Any alternative basis for the borrowing of any Loan shall cease
as soon as reasonably practicable (as determined by the Agent) after the
relevant circumstances have ceased to apply and the normal provisions of
this Agreement shall apply thereafter.
15. INCREASED COSTS
15.1 Increased costs
(a) Subject to Clause 15.2 (Exceptions), the relevant Borrower or,
where the increased cost cannot be attributed to a particular Loan, the
Borrowers' Agent, shall within 5 Business Days of demand by a Finance Party to
the Borrowers' Agent pay to that Finance Party the amount of any increased cost
incurred by it as a result of:-
(i) any change after the date of this Agreement in, or in the
official interpretation or application of, any law or regulation; or
26
(ii) compliance with any regulation made after the date of this
Agreement.
(including any law or regulation relating to reserve asset, special deposit,
cash ratio, liquidity or capital adequacy requirements or any other form of
banking or monetary control).
(b) In this Agreement "increased cost" means:-
(i) an additional cost incurred by a Finance Party as a result of it
having entered into, or performing, maintaining or funding its obligations
under, this Agreement; or
(ii) that portion of an additional cost incurred by a Finance Party
in making, funding or maintaining all or any advances comprised in a class
of advances formed by or including its participations in the Loans made or
to be made under this Agreement as is attributable to it making, funding
or maintaining those participations; or
(iii) a reduction in any amount payable to a Finance Party or in the
effective return to a Finance Party under this Agreement on its capital;
or
(iv) the amount of any payment made by a Finance Party, or the
amount of any interest or other return foregone by a Finance Party, on or
in relation to any amount received or receivable by that Finance Party
from the Agent or an Obligor under this Agreement.
(c) a Finance Party intending to make a claim under paragraph (a)
above shall, promptly upon its Facility Office becoming aware of an event by
reason of which it is entitled to do so and the possible results thereof, notify
the Agent, and the Agent shall promptly notify the Borrower and the Borrowers'
Agent of such event. For the purpose of this Clause 15.1 each Bank may in good
faith allocate or spread costs and/or losses among its assets and liabilities
(or any class thereof) on such basis as it considers appropriate.
15.2 Exceptions
Clause 15.1 (Increased costs) does not apply to any increased cost:-
(a) compensated for by the payment of any MLA Costs;
(b) provided for by the operation of Clause 13 (Taxes); or
(c) attributable to any change in the rate or basis of calculation
of Tax on Overall Net Income of a Bank (or tax on the overall net income
of a division or branch of the Bank); or
(d) incurred or suffered by a Bank as a consequence of the
implementation of the matters set out in the report of the Basle Committee
on Banking Regulations and Supervisory Practices dated July 1988 and
entitled "International Convergence of Capital Measurement and Capital
Standards" (as that report is in effect on the date of this Agreement).
27
16. ILLEGALITY
If it becomes unlawful in any jurisdiction for a Bank to give effect
to any of its obligations as contemplated by this Agreement or to fund or
maintain its participation in any Loan, then:-
(a) that Bank may notify the Borrowers' Agent through the Agent
accordingly; and
(b) (i) if so requested by that Bank through the Agent, the Borrower
shall forthwith prepay that Bank's participation in all Loans made to it
together with all other amounts payable by it to that Bank under this
Agreement; and
(ii) the Bank's undrawn Commitment shall forthwith be cancelled.
17. MITIGATION
If, in respect of any Finance Party, circumstances arise which would
or would upon the giving of notice result in:
(i) the prepayment of its share of any outstanding Loans and the
cancellation of its Commitment pursuant to Clause 16 (Illegality); or
(ii) the payment of additional amounts for its account pursuant to
Clause 13.1 (Gross-up); or
(iii) a claim for payment pursuant to Clause 15.1 (Increased Costs),
or if payments are being made to a finance Party pursuant to Clauses 13.1
(Gross-up) and 15.1 (Increased Costs), then, without in any way limiting,
reducing or otherwise qualifying the Obligors' obligations hereunder (and, in
particular, the Borrowers' obligations under any of the Clauses referred to in
sub-paragraphs (i), (ii), and (iii) above), such Finance Party shall take such
steps as such Finance Party in its bona fide opinion considers appropriate to
mitigate the effects of such circumstances including (if such Bank considers it
so appropriate) the transfer of its Facility Office to another jurisdiction or
the transfer of its rights and obligations hereunder to another financial
institution willing to participate herein PROVIDED THAT such Finance Party shall
be under no obligation to take any such steps if, in its bona fide opinion, such
steps would have an adverse effect upon its business, operations or financial
condition.
18. GUARANTEE
18.1 Guarantee
The Parent irrevocably and unconditionally:-
(a) as principal obligor guarantees to each Finance Party prompt
payment by each Borrower (other than the Parent) of all amounts payable by
that Borrower under the Finance Documents;
(b) undertakes with each Finance Party that whenever a Borrower
(other than the Parent) does not pay any amount when due under or in
connection with any Finance Document, the Parent shall forthwith on demand
by the Agent pay that amount as if
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the Parent instead of the relevant Borrower were expressed to be the
principal obligor; and
(c) agrees to indemnify each Finance Party on demand against any
loss or liability suffered by it if any obligation guaranteed by the
Parent is or becomes unenforceable, invalid or illegal.
18.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Borrowers (other than the Parent)
under the Finance Documents, regardless of any intermediate payment or discharge
in whole or in part.
18.3 Reinstatement
(a) Where any discharge (whether in respect of the obligations of
any Borrower or any security for those obligations or otherwise) is made in
whole or in part or any arrangement is made on the faith of any payment,
security or other disposition which is avoided or must be restored on
insolvency, liquidation or otherwise without limitation, the liability of the
Parent under this Clause 18 (Guarantee) shall continue as if the discharge or
arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other dispositions liable to avoidance or restoration.
18.4 Waiver of defences
The obligations of the Parent under this Clause 18 (Guarantee) will
not be affected by any act, omission, matter or thing which, but for this
provision, would reduce release or prejudice any of its obligations under this
Clause 18 (Guarantee) or prejudice or diminish those obligations in whole or in
part, including (whether or not known to it or any Finance Party):-
(a) any time or waiver granted to, or composition with, any Borrower
(other than the Parent) or other person;
(b) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, any Borrower (other than the Parent)
or other person or any non-presentation or non-observance of any formality
or other requirement in respect of any instrument or any failure to
realise the full value of any security;
(c) any incapacity or lack of powers, authority or legal personality
of or dissolution or change in the members or status of a Borrower or any
other person;
(d) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to that
Finance Document in this Clause 18 (Guarantee) shall include each
variation or replacement;
(e) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security, to the intent that the Parent's obligations under this Clause 18
(Guarantee) shall remain in full force and its
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guarantee be construed accordingly, as if there were no unenforceability,
illegality or invalidity; or
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Borrower (other than
the Parent) under a Finance Document resulting from any insolvency,
liquidation or dissolution proceedings or from any law, regulation or
order so that each such obligation shall for the purposes of the Parent's
obligations under this Clause 18 (Guarantee) be construed as if there were
no such circumstance.
18.5 Immediate recourse
The Parent 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 the Parent under this Clause 18 (Guarantee).
18.6 Appropriations
Until all amounts which may be or become payable by the Borrowers
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, after an
Event of Default which is continuing:-
(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 neither the Parent nor any Borrower shall be entitled to
the benefit of the same; and
(b) hold in a suspense account any moneys received from the Parent
or on account of the Parent's liability under this Clause 18 (Guarantee),
which shall bear interest at such Finance Party's best rate for comparable
commercial deposits.
18.7 Non-competition
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been irrevocably paid in
full, the Parent shall not, by virtue of any payment or performance by it under
this Clause 18 (Guarantee):-
(a) exercise any right to be subrogated to any rights, security or
moneys held, received or receivable by any Finance Party (or any trustee
or agent on its behalf) or exercise any right of contribution or indemnity
in respect of any payment made or moneys received on account of the
Parent's liability under this Clause 18 (Guarantee);
(b) claim, rank, prove or vote as a creditor of any Borrower (other
than the Parent) or its estate in compensation with any Finance Party (or
any trustee or agent on its behalf); or
(c) receive or exercise the right to claim any payment, distribution
or security from or on account of any Borrower (other than the Parent), or
exercise any right of set-off as against any such Borrower.
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The Parent shall hold in trust for and forthwith pay or transfer to
the Agent for the Finance Parties any payment or distribution or benefit of
security received by it contrary to this Clause 18.7.
18.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by
any other security now or subsequently held by any Finance Party.
19. REPRESENTATIONS AND WARRANTIES
19.1 Representations and warranties
Each Obligor makes the representations and warranties set out in
this Clause 19 (Representations and warranties) to each Finance Party (subject
in each case however, to any qualifications as to matters of law set out in any
legal opinion delivered pursuant to this Agreement).
19.2 Status
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation; and
(b) It has (as a matter of corporate capacity) the power to own its
assets and carry on its business as it is being conducted.
19.3 Powers and authority
It has the power to enter into and perform, and has taken all
necessary action to authorise the entry into, performance and delivery of, the
Financial Documents to which it is or will be a party and the transactions
contemplated by those Finance Documents.
19.4 Legal validity
Each Finance Document to which it is or will be a party constitutes,
or when executed in accordance with its terms will constitute, its legal, valid
and binding obligation enforceable in accordance with its terms subject,
however, to any limitations due to bankruptcy, insolvency, liquidation,
re-organisation, limitation and other laws of general application regarding or
affecting the rights of creditors and to general equitable principles.
19.5 Non-conflict
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not:-
(a) conflict with any law or regulation or judicial or official
order; or
(b) conflict with its Articles or Association; or
(c) conflict with any document which is, to a material extent,
binding upon it or any of its assets.
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19.6 No default
(a) No Default is outstanding or would result from the making of any
Loan; and
(b) no other event is outstanding which constitutes (or with the
giving of notice, lapse of time, determination of materiality or the fulfillment
of any other applicable condition or any combination of the foregoing, might
constitute) a default under any document which is binding on it or any of its
assets to an extent or in a manner which would be likely to have material
adverse effect on its ability to perform its obligations which (in the sole
opinion of the Majority Banks) are material under this Agreement or on the
business or financial condition of the Group as a whole.
19.7 Authorisations
All authorisations required in connection with the entry into,
performance validity and enforceability of, and the transactions contemplated
by, the Finance Documents have been obtained or effected (as appropriate) and
are in full force and effect.
19.8 Accounts
In the case of the Parent, the audited consolidated accounts of the
Group and the unaudited consolidated income statement of the Group most recently
delivered to the Agent (which, at the date of this Agreement, are the Original
Group Accounts):-
(i) have been prepared in accordance with accounting principles and
practices generally accepted in Sweden consistently applied and, in the
case of the audited consolidated accounts, audited by an internationally
recognised firm of accountants or by Swedish public authorised
accountants; and
(ii) fairly represent the consolidated financial condition of the
Group as at the date to which they were drawn up,
and there has been no material adverse change in the consolidated financial
condition of the Group, taken as a whole, since the date to which those accounts
were drawn up.
19.9 Litigation
Except as set out in the Disclosure Letter, no litigation,
arbitration or administrative proceedings (other than any frivolous or vexatious
claims which are being contested by appropriate proceedings) are current or to
its knowledge, pending or threatened, which would, if adversely determined, have
a material adverse effect on the ability of an Obligor to perform its
obligations under this Agreement or the business or financial condition of the
Group as a whole.
19.10 Times for making representations and warranties
The representations and warranties set out in this Clause 19
(Representations and warranties) are made by each Obligor or the Parent, as the
case may be, on the date of this Agreement and (with the exception of Clauses
19.6 (No default), 19.8 (Accounts) and 19.9 (Litigation)) are deemed to be
repeated by each Obligor on the date of each Request, each Drawdown Date and
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on the first day of each Interest Period and by each Additional Borrower, on the
date on which it enters into a Deed of Accession, with reference to the facts
and circumstances then existing.
20. UNDERTAKINGS
20.1 Duration
The undertakings in this Clause 20 (Undertakings) remain in force
from the date of this Agreement for so long as any amount is or may be
outstanding under this Agreement or any commitment is in force.
20.2 Financial Information
The Parent shall supply to the Agent in sufficient copies for all
the Banks:-
(a) as soon as the same are available (and in any event within 180
days of the end of each of its financial years), the audited consolidated
accounts of the Group for that financial year;
(b) as soon as the same are available (and in any event within 120
days of the end of the first half-year of each of its financial years),
the unaudited consolidated income statement of the group for that
half-year;
(c) together with the accounts specified in paragraphs (a) and (b)
above, a certificate signed by two of its senior officers on its behalf
setting out in reasonable detail computations establishing compliance with
Clause 20.12 (Financial covenants) as at the date to which those accounts
were drawn-up; and
(d) such a certificate stating which members of the Group are
Material Subsidiaries whenever there is a change in such Material
Subsidiaries and in any event at least once in each financial year
together with the accounts specified in paragraph (a) above.
20.3 Information - Miscellaneous
The Parent shall (save to the extent that it considers that to do so
would be in violation of the applicable rules or requirements of the Stockholm
Stock Exchange or any other exchange on which its equity or debt securities are
listed) supply to the Agent:-
(a) all documents despatched by it to its shareholders or creditors
generally at the same time as they are despatched;
(b) promptly upon becoming aware of them, reasonable details of any
litigation, arbitration or administrative proceedings (other than any
frivolous or vexatious claims, which are being contested by appropriate
proceedings) which are current, threatened or pending, and which would if
adversely determined, have a material adverse effect on the ability of any
Obligor to perform its obligations which (in the sole opinion of the
Majority Banks) are material under this Agreement or in the business or
financial condition of the Group as a whole; and
(c) promptly, such further information in the possession or control
of the Parent regarding its financial condition and operations (or the
financial condition and operations of any
33
member of the Group) as the Agent, or any Bank through the Agent, may
reasonably request,
in sufficient copies for all of the Banks, if the Agent so requests.
20.4 Notification of Default
The Parent shall notify the Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon any Obligor becoming aware of the
same.
20.5 Compliance certificates
The Parent shall supply to the Agent:-
(a) together with the accounts specified in Clause 20.2 (a)
(Financial information); and
(b) promptly at any other time, if the Agent so reasonably requests,
a certificate signed by two of its senior officers on its behalf certifying that
no Default is outstanding or, if a Default is outstanding, specifying the
Default and the steps, if any, being taken to remedy it.
20.6 Authorisations
Each Obligor shall promptly obtain, maintain and comply with the
terms of any authorisation required under the law or regulation to enable it to
perform its obligations under, or for the validity or enforceability of, any
Finance Document.
20.7 Pari passu ranking
Each Obligor shall procure that its obligations under the Finance
Documents do and will rank at least pari passu with all its other present and
future unsecured and unsubordinated obligations, except for obligations which
are mandatorily preferred by law.
20.8 Negative pledge
(a) No Obligor shall, and the Parent shall procure that no other
member of the Group will, create or permit to subsist any Security Interest on
any of its assets.
(b) Paragraph (a) does not apply to:-
(i) any lien arising by operation of law in the ordinary course of
business and securing amounts not more than 60 days overdue or being
contested in good faith by appropriate proceedings;
(ii) any Security Interest created in connection with any loan or
credit granted, or guaranteed wholly or partially, by the Swedish Export
Credit Corporation or the Swedish Export Credit Board or any other export
credit or similar public institution;
34
(iii) any Security Interest created in connection with any loan,
debt or other obligation (including an obligation under a guarantee) of a
member or the Group in respect of borrowed money where the borrowed money
is by its terms repayable not more than 12 months after the date on which
the member of the Group assumes liability in respect thereof and the
purpose of the borrowed money is to meet the funding requirements of that
company in the ordinary course of business;
(iv) any Security Interest over an asset acquired after the date
hereof which as not created in contemplation of such acquisition and so
long as the outstanding principal amount secured thereby is not increased
on or after the date of that acquisition;
(v) any Security Interest created prior to the date of its
acquisition by a company which becomes a member of the Group after the
date hereof provided that such Security Interest only secures Financial
Indebtedness up to a stated maximum principal amount and was not created
in contemplation of such acquisition and so long as the principal
committed amount (whether drawn or not) is not increased on or after the
date of that acquisition;
(vi) any Security Interest created in favour of persons providing
tender, performance, bid or similar bonds or guarantees relating to or
arising out of contracts undertaken in the normal course of business by
any members of the Group to secure amounts which may become payable by
those persons pursuant to those bonds or guarantees (but not where those
bonds or guarantees are issued to facilitate the incurrence of any
Financial Indebtedness);
(vii) any Security Interest created (a) in connection with any loan,
debt or other obligation (including an obligation under a guarantee but in
each case not having a maturity of longer than twelve months from the date
of its creation) of a member of the Group in order to take advantage of
interest arbitrage and hedging opportunities where the assets secured
comprise cash or debt securities or (b) in the ordinary course of business
over cash or debt securities provided as collateral to any bank, financial
institution, stock exchange or clearing house for back to back, foreign
exchange, swaps or other derivatives transactions;
(viii) an Security Interest created on any asset acquired or
developed by it after the date of this Agreement for the sole purpose of
financing that acquisition or development and securing principal monies
not exceeding the cost of that acquisition or development;
(ix) any Security Interest created pursuant to mandatory provisions
of Swedish law securing the payment of the purchase price by any member of
the Group in favour of minority shareholders of a company or corporation
the shares of which are subject to a compulsory sale ("tvangsinlosen") to
a member of the Group;
35
(x) any Security Interest created in favour of a bank over any
clearing or current account in connection with a cash management agreement
entered into between that bank and a member of the Group;
(xi) any Security Interest created by any member of the Group
incorporated in Sweden in favour of the Swedish pension fund to which such
member of the Group makes contributions (the "Pension Fund") as security
in accordance with the Pension Fund's requirement for loans made according
to Swedish law by the Pension Fund to that member of the Group;
(xii) any Security Interest created in connection with any
refinancing and in substitution for any Security Interest otherwise
permitted under the terms of this Clause 20.8(b) to the extent that such
Security Interest relates to the same asset and the principal amount
secured by such Security Interest is not more than the principal amount of
the indebtedness being refinanced;
(xiii) any Security Interest disclosed to the Agent prior to the
date hereof so long as the maximum principal amount that could be secured
thereby was approved by the Agent and is not increased after the date
hereof;
(xiv) any Security Interest consented to by the Majority Banks;
(xv) any Security Interest created by a member of the Group in
favour of the Parent; and
(xvi) any Security Interest over an asset which does not fall within
sub-paragraphs (i) - (xv) above up to but not exceeding an aggregate
principal amount secured thereby of an amount equal to ten per cent of
Consolidated Total Assets at that time;
PROVIDED THAT the aggregate amount of all claims in respect of
indebtedness for a principal sum which are, at any time, outstanding and secured
by any Security Interest (other than a Security Interest created or existing in
reliance on sub- paragraphs (i), (vii), (x) or (xv) above) shall not exceed
twenty-five per cent of the Consolidated Total Assets at that time.
For the avoidance of doubt, any transaction which is permitted under
this Clause 20.8 shall be deemed not to be prohibited under Clause 20.9
(Transactions similar to security) or 20.10 (Disposals).
20.9 Transactions similar to security
(a) No Obligor shall, and the Parent shall procure that no other
member of the Group will, except with the prior written consent of the Majority
Banks, sell, transfer or otherwise dispose of any of its fixed assets on terms
whereby any such assets are or may be leased to or re-acquired or acquired by a
member of the Group or any of its related entities (other than in circumstances
where such transaction is not entered into primarily as a method of raising
finance).
(b) Paragraph (a) does not apply to any sales, transfers or
disposals:
36
(i) by a member of the Group to another member of the Group, or
(ii) of fixed assets with a value not exceeding in aggregate three
per cent of the Consolidated Total Assets (calculated at the book value
net of depreciation and other similar allowances).
For the avoidance of doubt, any equipment produced and sold or
distributed as commercial agents in the ordinary course of business shall not be
regarded as fixed assets (notwithstanding that it is so classified in the
Group's financial statements) and any transaction which is permitted under this
Clause 20.9 shall be deemed not to be prohibited under Clause 20.8 (Negative
pledge) or 20.10 (Disposals).
20.10 Disposals
(a) No Obligor shall, and the Parent shall procure that no other
member of the Group will, except with the prior written consent of the Majority
Banks, either in a single transaction or in a series of transactions, whether
related or not and whether voluntarily or involuntarily, sell, transfer, grant
or lease or otherwise dispose of all or any substantial part of its assets.
(b) Paragraph (a) does not apply to:-
(i) any disposal made in the ordinary course of business (including
the sale with recourse of accounts receivable arising out of the sale of
such assets);
(ii) any disposal of obsolete plant or equipment;
(iii) any disposal by one member of the Group to another member of
the Group;
(iv) any disposal made on arm's length terms representing fair
market value (which shall if so requested by the Agent be confirmed by a
valuation carried out by a valuer agreed to by both the Parent and the
Agent) (or in default of such agreement appointed by the Agent; and
(v) any other disposal not within sub-paragraphs (i)-(iv) above
where the value of the asset disposed of (when aggregated with the value
of all other assets disposed of after the date hereof and for so long as
any Commitment or Loan is outstanding hereunder (not within sub-paragraphs
(i)-(iv) above)) does not exceed 40 per cent. of Consolidated Total Assets
(as measured in the latest published financial statements of the Group for
the period immediately preceding the disposal).
For the avoidance of doubt, for the purposes of paragraph (v), the
value of an asset shall be equal to its book value net of depreciation and other
similar allowances and any transaction which is permitted under this Clause
20.10 shall be deemed not to be prohibited under Clause 20.8 (Negative pledge)
or 20.9 (Transactions similar to security).
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20.11 Change of business
The Parent shall procure that no substantial change is made to the
general nature of the business of the Parent or the Group taken as a whole from
that carried on at the date of this Agreement.
20.12 Financial covenants
(a) In this Clause 20.12:-
"Net Interest Expense" means, in relation to any twelve month
period, consolidated interest expense less consolidated interest income
during that period.
"Operating Income" means, in relation to any twelve month period,
consolidated income before taxes, plus any extraordinary or exceptional
losses, less any extraordinary or exceptional gains, plus minority expense
less minority income, plus interest expense less interest income, plus
foreign exchange losses less foreign exchange gains, plus any other
financial costs less any other financial income during that period.
(b) (i) All the terms used in paragraph (a) above are to be
calculated in accordance with the accounting principles applied in
connection with the Original Group Accounts.
(ii) If there is a dispute as to any interpretation of or
computation for paragraph (a) above, the interpretation or computation of
the Parent's auditors prevails.
(c) The Parent shall procure that the ratio of Operating Income to
Net Interest Expense is not at the end of each half-year of each financial
year of the Group, less than 2.2 to 1.
20.13 Insurance
Provided that such insurance is available in the market and can be
purchased on reasonable terms and conditions, each Obligor shall maintain with
reputable insurance companies, funds or underwriters (reasonably believed by
each Obligor to be financially sound) adequate insurance of the kinds, covering
such risks and in such amounts and with such deductibles (including captive or
similar self-insuring arrangements) and exclusions as are consistent with
prudent business practice for an entity engaged in businesses similar to those
of the Obligors.
21. DEFAULT
21.1 Events of Default
Each of the events set out in Clauses 21.2 (Non-payment) to 21.15
(Material adverse change) (inclusive) is an Event of Default (whether or not
caused by any reason whatsoever outside the control of any Obligor or any other
person).
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21.2 Non-payment
Any Obligor does not pay any amount of principal payable by it under
the Finance Documents on the due date or any other amount payable by it under
the Finance Documents within three (or, if the reason therefor is technical or
administrative error, five) Business Days after the due date, in each case at
the place at and in the currency in which it is expressed to be payable.
21.3 Breach of other obligations
Any Obligor does not comply with any of its obligations under the
Finance Documents (other than those referred to in Clause 21.2 (Non-Payment) and
such non-compliance, if capable of remedy, continues unremedied for 30 days
after such Obligor received notice thereof from the Agent or, if not capable of
remedy, such non-compliance is materially prejudicial (in the sole opinion of
the Majority Banks), to the interests of the Banks.
21.4 Misrepresentation
A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by or on
behalf of any Obligor under or in connection with any Finance Document is
incorrect in any material respect when made or deemed to be made or repeated.
21.5 Cross-default
(a) Any Financial Indebtedness of any Obligor or a Material
Subsidiary is not paid when due or after the expiry of any applicable grace
period (but this paragraph (a) shall not apply to non-payment by a member of the
Group under any performance or bid bond (or similar instrument) issued by it
where there is a bona fide dispute as to its liability); or
(b) an event of default howsoever described occurs under any
document relating to Financial Indebtedness of a member of the Group and
discussions with the relevant creditors are arranged with a view to rescheduling
or otherwise varying the terms of the Financial Indebtedness in question or
considering other remedial action; or
(c) any Financial Indebtedness of a member of the Group becomes
prematurely due and payable or is placed on demand as a result of an event of
default (howsoever described) under the document relating to that Financial
Indebtedness; or
(d) any commitment for, or underwriting of, any Financial
Indebtedness of a member of the Group is cancelled or suspended as a result of
an event of default (howsoever described) under the document relating to that
Financial Indebtedness; or
(e) steps are taken to enforce any Security Interest securing
Financial Indebtedness over any asset of a member of the Group following the
occurrence of an enforcement event howsoever described in any relevant document.
PROVIDED THAT there shall not be an Event of Default under this
clause 21.5 unless the aggregate of all amounts at any one time unpaid or in
default as a result of events referred to above exceed $15,000,000 (or its
equivalent).
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21.6 Insolvency
(a) Any Obligator or Material Subsidiary is, or is deemed for the
purposes of any law to be, unable to pay its debts as they fall due or to be
insolvent, or admits inability to pay its debts as they fall due (unless, in the
case of a Material Subsidiary, the Parent gives a support letter satisfactory to
the auditors so that no qualification is required to be made in relation to the
accounts of the Material Subsidiary concerned); or
(b) any Obligor or Material Subsidiary suspends making payments on
all or any class of its debts or announces an intention to do so, or a
moratorium is declared in respect of any of its indebtedness; or
(c) any Obligor or Material Subsidiary, by reason of financial
difficulties, begins negotiations with its creditors generally with a view to
the readjustment or rescheduling of any of its indebtedness.
21.7 Insolvency proceedings
(a) Any step (including petition, proposal or convening a meeting)
is taken by any Obligor or Material Subsidiary with a view to a composition,
assignment or arrangement with any of its creditors; or
(b) a meeting of any Obligor or Material Subsidiary is convened for
the purpose of considering any resolution for (or to petition for) its
winding-up or its administration or any such resolution is passed (save where
such meeting is called on frivolous or vexatious grounds by a person other than
an Obligor or a Material Subsidiary); or
(c) any person presents a petition (other than a frivolous or
vexatious petition) for the bankruptcy, winding-up or for the administration of
any Obligor or Material Subsidiary unless the same is discharged within 45 days;
or
(d) any order for the bankruptcy, winding-up or administration of
any Obligor or Material Subsidiary is made; or
(e) any other step (including petition, proposal or convening a
meeting but excluding steps taken on frivolous or vexatious grounds or any step
taken by a person other than an Obligor or a Material Subsidiary which is
discharged within 45 days) is taken with a view to the rehabilitation,
administration, custodianship, bankruptcy, liquidation, winding-up or
dissolution of any Obligor or Material Subsidiary or any other insolvency
proceedings involving any Obligor or Material Subsidiary.
PROVIDED THAT the solvent winding-up of a Material Subsidiary on
terms approved by the Majority Banks (whose approval shall not be unreasonably
withheld) shall not be an Event of Default under this or any other Clause.
21.8 Appointment of receivers and managers
(a) Any liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator or the like
is appointed in respect of any Obligor or Material Subsidiary or any substantial
part of its assets; or
40
(b) the directors of any Obligor or Material Subsidiary request the
appointment of a liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator or the
like; or
(c) any other steps are taken to enforce any Security Interest over
any part of the assets of any Obligor or Material Subsidiary and are followed by
legal proceedings which are initiated and not discharged within 45 days.
21.9 Creditors process
Any attachment, sequestration, distress or execution affects any
asset of any Obligor or Material Subsidiary and its not discharged within 45
days.
21.10 Analogous proceedings
There occurs, in relation to any Obligor or Material Subsidiary, any
event in any relevant jurisdiction which in analogous to any of those mentioned
in Clauses 21.6 (Insolvency) to 21.9 (Creditors' process) (inclusive).
21.11 Cessation of business
Any Obligor or Material Subsidiary ceases, or threatens to cease, to
carry on all or a substantial part of its business where this would have a
material adverse effect on the business of financial condition of the Group as a
whole or on the ability of any Obligor to perform its obligations which (in the
sole opinion of the Majority Banks) are material under this Agreement.
21.12 Unlawness
It is or becomes unlawful for any Obligor to perform any of its
material obligations under the Finance Documents.
21.13 Guarantee
The guarantee of the Parent is not effective or is alleged by it to
be ineffective for any reason.
21.14 Ownership of the Borrowers
Any Borrowers (other than the Parent) is not or ceases to be a
Subsidiary of the Parent, unless the Majority Banks consent to the sale of such
Borrower.
21.15 Material adverse change
Any event or series of events occurs which would be likely to have a
material and adverse effect on the business or financial condition of the Group
taken as a whole or on the ability of any Obligor to comply with its obligations
which (in the sole opinion of the Majority Banks) are material under the Finance
Documents.
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21.16 Acceleration
On and at any time after the occurrence of an Event of Default (for
so long as such Event of Default is continuing) the Agent may, and shall if so
directed by the Majority Banks, by notice to the Parent:-
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loans, together with accrued
interest, and all other amounts accrued under this Agreement be
immediately due and payable, whereupon they shall become immediately due
and payable; and/or
(c) demand that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand.
22. THE AGENT AND THE ARRANGER
22.1 Appointment and duties of the Agent
Each Finance Party (other than the Agent) irrevocably appoints the
Agent to act as its agent under and in connection with the Finance Documents,
and irrevocably authorises the Agent on its behalf to perform the duties and to
exercise the rights, powers and discretions that are specifically delegated to
it under or in connection with the Finance Documents, together with any other
incidental rights, powers and discretions. The Agent has only those duties which
are expressly specified in this Agreement, and those duties are solely of a
mechanical and administrative nature.
22.2 Role of the Arranger
Except as specifically provided in this Agreement, the Arranger has
no obligations of any kind to any other Party under or in connection with any
Finance Document.
22.3 Relationship
The Relationship between the Agent and the other Finance Parties is
that of agent and principal only. Nothing in this Agreement constitutes the
Agent as trustee or fiduciary for any other Party or any other person and the
Agent need not hold in trust any moneys paid to it for a Party or be liable to
account for interest on those moneys.
22.4 Majority Banks' directions
The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of any right,
power or discretion or any matter not expressly provided for in this Agreement.
Any such instructions given by the Majority Banks will be binding on all the
Banks. In the absence of such instructions, the Agent may act as it considers to
be in the best interests of all the Banks.
22.5 Delegation
The Agent may act under the Finance Documents through its personnel
and agents whose acts shall be binding upon it.
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22.6 Responsibility for documentation
Neither the Agent nor the Arranger is responsible to any other Party
for:-
(a) the execution genuineness, validity, enforceability or
sufficiency of any Fiance Document or any other documents;
(b) the collectability of amounts payable under any Finance
Document; or
(c) the accuracy of any statements (whether written or oral) made in
or in connection with any Finance Document.
22.7 Default
(a) The Agent is not obliged to monitor or enquire as to whether or
not a Default has occurred. The Agent will not be deemed to have knowledge of
the occurrence of a Default. However, if the Agent receives notice from a Party
referring to this Agreement, describing the Default and stating that the event
is a Default, or if the officers of the Agent actually engaged in carrying out
the agency function under this Agreement acquire actual knowledge of a Default,
it shall promptly notify the Banks.
(b) The Agency may require the receipt of security satisfactory to
it from any other Finance party, whether by way of payment in advance or
otherwise, against any liability or loss which it will or may incur in taking
any proceedings or action arising out of or in connection with any Finance
Document before it commences those proceedings or takes that action.
22.8 Exoneration
(a) Without limiting paragraph (b) below, the Agent will not be
liable to any other Party for any action taken or not taken by it under or in
connection with any Finance Document, unless directly caused by its gross
negligence or willful misconduct.
(b) No Party may take any proceedings against any officer, employee
or agent of the Agent in respect of any claim it might have against the Agent or
in respect of any act or omission of any kind (including gross negligence or
willful misconduct) by that officer, employee or agent in relation to any
Finance Document.
22.9 Reliance
The Agent may:-
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the proper
person:
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed to be within
his knowledge or within his power to verify; and
43
(c) engage, pay for and rely on legal or other professional advisors
selected by it (including those in the Agent's employment and those
representing a Party other than the Agent).
22.10 Credit approval and appraisal
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document, each
Bank confirms that it:-
(a) has made its own independent investigation and assessment of the
financial condition and affairs of 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 Agent or the Arranger
in connection with any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while any amount
is or may be outstanding under the Finance Documents or any Commitment is
in force.
22.11 Information
(a) The Agent shall promptly forward to the person concerned the
original or a copy of any document which is delivered to the Agent by a Party
for that person.
(b) The Agent shall promptly supply a Bank with a copy of each
document received by the Agent under Clause 4 (Conditions Precedent) upon the
request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the
Agent is not obliged to review or check the accuracy or completeness of any
document it forwards to another Party.
(d) Except as provided above, the Agent has no duty:-
(i) either initially or on a continuing basis to provide any Bank
with any credit or other information concerning the financial condition or
affairs of any Obligor or any related entity of any Obligor whether coming
into its possession before, on or after the date of this Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance
with this Agreement, to request any certificates or other documents from
any Obligor.
22.12 The Agent and the Arranger
(a) If it is also a Bank, each of the Agent and the Arranger has the
same rights and powers under this Agreement as any other Bank and may exercise
those rights and powers as though it were not the Agent or the Arranger.
(b) Each of the Agent and the Arranger may:-
(i) carry on any business with an Obligor or its related entities;
44
(ii) act as agent or trustee for, or in relation to any financing
involving, an Obligor or its related entities; and
(iii) retain any profits or remuneration in connection with its
activities under this Agreement or in relation to any of the foregoing.
22.13 Indemnities
(a) Without limiting the liability of any Obligor under the Finance
Documents, each Bank shall forthwith on demand indemnify the Agent for its
proportion of any liability or loss incurred by the Agent in any way relating to
or arising out of its acting as the Agent, except to the extent that the
liability or loss arises directly from the Agent's gross negligence or willful
misconduct.
(b) A Bank's proportion of the liability set out in paragraph (a)
above will be the proportion which its participation in the Loans (if any) bears
to all the Loans on the date of the demand. If, however, there are no Loans
outstanding on the date of demand, then the proportion will be the proportion
which its Commitment bears to the Total Commitments at the date of demand or, if
the Total Commitments have then been cancelled, bore to the Total Commitments
immediately before being cancelled.
22.14 Compliance
(a) The Agent may refrain from doing anything which might, in its
opinion, constitute a breach of any law or regulation or be otherwise actionable
at the suit of any person, and may do anything which, in its opinion, is
necessary or desirable to comply with any law or regulation of any jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not
disclose any information relating to any Obligor or any of its related entities
if the disclosure might, in the opinion of the Agent, constitute a breach of any
law or regulation or any duty of secrecy or confidentiality or be otherwise
actionable at the suit of any person.
22.15 Resignation of the Agent
(a) Notwithstanding its irrevocable appointment, the Agent may
resign by giving notice to the Banks and the Obligors, in which case the Agent
may forthwith appoint one of its Affiliates as successor Agent or, failing that,
the Majority Banks may appoint a successor Agent.
(b) If the appointment of a successor Agent is to be made by the
Majority Banks but they have not, within 30 days after notice of resignation,
appointed a successor Agent which accepts the appointment, the Agent may appoint
a successor Agent.
(c) The resignation of the Agent and the appointment of any
successor Agent will both become effective only upon the successor Agent
notifying all the Parties that it accepts its appointment. On giving the
notification, the successor Agent will succeed to the position or the Agent and
the term "Agent" will mean the successor Agent.
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(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as the Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 22 (The
Agent and the Arranger) shall continue to benefit the retiring Agent in respect
of any action taken or not taken by it under or in connection with the Finance
Documents while it was the Agent, and, subject to paragraph (d) above, it shall
have no further obligations under any Finance Document.
(f) Any successor Agent must be acceptable to the Borrower but the
Borrower may not unreasonably withhold his acceptance.
(g) If the Majority Banks so direct, the Agent shall resign and the
Majority Banks shall appoint a successor Agent.
22.16 Banks
The Agent may treat each Bank as a Bank, entitled to payments under
this Agreement and as acting through its Facility Office(s).
23. FEES
23.1 Management fee
The Parent shall pay to the Agent on the earlier of the first
Drawdown Date and the date 10 days after the date hereof a management fee in the
amount agreed in the relevant Fee Letter. The management fee shall be
distributed by the Agent among the Banks in its sole discretion.
23.2 Commitment fee
(a) The Parent shall pay to the Agent for each Bank a commitment fee
computed at the rate of 0.10 percent per annum during the period from the date
hereof until the fifth anniversary of the date hereof and thereafter 0.1125
percent per annum on the undrawn, uncancelled amount of the Total Commitments.
For this purpose, Loans are taken at their Original Dollar Amount.
(b) Accrued commitment fee is payable quarterly in arrear. Accrued
commitment fee is also payable to the Agent for the relevant Bank(s) on the
cancelled amount of its Commitment.
23.3 Agent's fee
The Parent shall pay to the Agent for its own account an agency fee
in the amount agreed in the relevant Fee Letter. The agency fee is payable
annually in advance. The first payment of this fee is payable on the date of
this Agreement and each subsequent payment is payable on each anniversary of the
date of this Agreement for so long as any amount is or may be outstanding under
this Agreement or any Commitment in is force.
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23.4 VAT
Any fee referred to in this Clause 23 (Fees) is exclusive of any
value added tax or any other tax which might be chargeable in connection with
that fee. If any value added tax or other tax is so chargeable, it shall be paid
by the Parent at the same time as it pays the relevant fee.
24. EXPENSES
24.1 Initial and special costs
The parent shall within 5 Business Days of demand pay the Agent and
the Arranger the amount of all reasonable out-of-pocket costs and expenses
(including legal fees) incurred by either of them in connection with:-
(a) the negotiation, preparation, printing and execution of:-
(i) this Agreement and any other documents (not being a
document referred to in Clause 29.2 (Transfer by Bank) or 29.3
(Procedure for novations) other than in circumstances where Clause
17 (Mitigation) applies) referred to in this Agreement; and
(ii) any other Finance Document executed after the date of
this Agreement; and
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of an Obligor
and relating to a Finance document or a document referred to in any
Finance Document.
24.2 Enforcement costs
Following a Default, the Parent shall forthwith on demand (or within
5 Business Days of demand in the case of preservation costs) pay to each Finance
Party the amount of all costs and expenses (including legal fees) properly
incurred by it in connection with the enforcement of, or the preservation of any
rights under, any Finance Document.
25. STAMP DUTIES
The Parent shall pay and forthwith on demand (in the case of
enforcement) (or otherwise within 5 Business days of demand) indemnify each
Finance Party against any liability it incurs in respect of any stamp,
registration and similar tax which is or becomes payable in connection with the
entry into, performance or enforcement of any Finance Document.
26. INDEMNITIES
26.1 Currency indemnity
(a) If a Finance Party receives an amount in respect of an Obligor's
liability under the Finance Document or if that liability is converted into a
claim, proof, judgment or order in a currency other than the currency (the
"contractual currency") in which the amount is expressed to be payable under the
relevant Finance Document:-
47
(i) that Obligor shall indemnify that Finance Party as an
independent obligation against any loss or liability arising out of or as
a result of the conversion;
(ii) if the amount received by that Finance Party, when converted
into the contractual currency at a market rate in the usual course of its
business is less than the amount owed in the contractual currency, the
Obligor concerned shall forthwith on demand pay to that Finance Party an
amount in the contractual currency equal to the deficit; and
(iii) the Obligor shall pay to the Finance Party concerned forthwith
on demand any exchange costs and taxes payable in connection with any such
conversion.
(b) Each Obligor waives any right it may have in any jurisdiction to
pay any amount under Finance Document in a currency other than that in which it
is expressed to be payable.
26.2 Other indemnities
The Parent shall forthwith on receipt of a demand following a
default (or otherwise within 5 Business Days of demand) setting out reasonable
details of the relevant loss or liability indemnify each Finance Party against
any loss or liability which that Finance Party incurs as a consequence of:-
(a) the occurrence of any Default;
(b) the operation of Clause 21.16 (Acceleration);
(c) any payment of principal or an overdue amount being received
from any source otherwise than on the last day of a relevant Interest
Period or Designated Interest period (as defined in Clause 9.3 (Default
interest)) relative to the amount so received; or
(d) (other than by reason of negligence or default by a Finance
Party) a Loan not being made after the Borrower has delivered a Request or
a Loan (or part of a Loan) not being prepaid in accordance with a notice
of prepayment.
The Parent's liability in each case includes any loss of margin (in
the case of paragraph (a) or (b) above applying) or other loss or expense on
account of funds borrowed, contracted for or utilised to fund any amount payable
under any Finance Document, any amount repaid or prepaid or any Loan.
26.3 No restrictions on Obligors
Nothing in this Agreement shall prevent any Obligor from enforcing
any rights it may have against any Finance Party which fails to fulfill its
obligations hereunder.
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27. EVIDENCE AND CALCULATIONS
27.1 Accounts
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate.
27.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or
amount under this Agreement is, in the absence of manifest error, conclusive
evidence of the matters to which it relates.
27.3 Calculations
Interest (including any applicable MLA Costs) and the fee payable
under Clause 23.3 (Commitment fee) accrue from day to day and are calculated on
the basis of the actual number of days elapsed and a year of 360 days, or, in
the case of interest payable on an amount denominated in Sterling only, 365
days.
28. AMENDMENTS AND WAIVERS
28.1 PROCEDURE
(a) Subject to Clause 28.3 (Exceptions), any term of the Finance
Documents may be amended or waived with the agreement of the Parent, the
Majority Banks and the Agent. The Agent may effect on behalf of the Majority
Banks, an amendment or waiver to which they have agreed.
(b) The Agent shall promptly notify the other Parties of any
amendment or waiver effected under paragraph (a) above, and any such amendment
or waiver shall be binding on all the Parties.
28.2 Exceptions
An amendment or waiver which relates to:-
(a) the definition of "Majority Banks" in Clause 1.1
(Interpretation);
(b) an extension of the date for, or a decrease in an amount or a
change in the currency of any payment under the Finance Documents;
(c) an increase in a Bank's Commitment;
(d) a term of a Finance Document which expressly requires the
consent of each Bank; or
(e) Clause 18 (Guarantee), Clause 29 (Changes to the Parties),
Clause 32 (Pro rata sharing) or this Clause 28 (Amendments and waivers),
may not be effected without the consent of each Bank.
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28.3 Waivers and Remedies Cumulative
The rights of each Finance Party under the Finance Documents:-
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a
waiver of that right.
29. CHANGES TO THE PARTIES
29.1 Transfers by Obligors
No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under this Agreement.
29.2 Transfers by Banks
(a) A Bank (the "Existing Bank") may, with the prior written consent
of the Borrowers' Agent (such consent not to be unreasonably withheld), at any
time assign, transfer or novate any of its rights and/or obligations under this
Agreement to another bank or financial institution (the "New Bank").
Provided that each Bank (so long as it remains a Bank hereunder)
shall, subject to the other terms of this Agreement, continue to maintain a
Commitment and/or participation in the Facility in an aggregate amount at least
equal to US$10,000,000 (or its equivalent) hereunder.
(b) A transfer of obligations will be effective only if either:-
(i) the obligations are novated in accordance with Clause 29.3
(Procedure for novations); or
(ii) the New Bank confirms to the Agent and the Obligors that it
undertakes to be bound by the terms of this Agreement as a Bank in form
and substance satisfactory to the Agent. On the transfer becoming
effective in this manner the Existing Bank shall be relieved of its
obligations under this Agreement to the extent that they are transferred
to the New Bank.
(c) Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation if that Bank remains liable under this
Agreement for that obligation.
(d) On each occasion an Existing Bank assigns, transfer or novates
any of its rights and/or obligations under this Agreement, the New Bank
shall, on the date the assignment, transfer and/or novation takes effect,
pay to the Agent for its own account a fee of $500.
(e) An Existing Bank is not responsible to a New Bank for:-
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(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance
Document; or
(iii) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document.
(f) Each New Bank confirms to the Existing Bank and the other
Finance parties that it:-
(i) has made its own independent investigation and assessment
of the financial condition and affairs of 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 Bank 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 while
any amount is or may be outstanding under this Agreement or any
Commitment is in force.
(g) Nothing in any Finance Document obliges an Existing Bank to:-
(i) accept a re-transfer from a New Bank of any of the rights
and/or obligations assigned, transferred or novated under this
Clause; or
(ii) support any losses incurred by the New Bank by reason of
the non-performance by the Borrower of its obligations under this
Agreement or otherwise.
(h) Any reference in this Agreement to a Bank includes a New Bank
but excludes a Bank if no amount is or may be owed to or by it under this
Agreement and its Commitment has been cancelled or reduced to nil.
29.3 Procedure for novations
(a) A novation is effected if:-
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate substantially in the form of Part I of Schedule 5
(a "Novation Certificate"); and
(ii) the Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank)
irrevocably authorises the Agent to execute any duly completed Novation
Certificate on its behalf.
(c) To the extent that they are expressed to be the subject of the
novation in the Novation Certificate:-
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(i) the Existing Bank and the other Parties (the "existing
Parties") will be released from their obligations to each other (the
"discharged obligations");
(ii) the New Bank and the existing Parties will assume
obligations towards each other which (subject to Clause 39.5 (No
extra cost) differ from the discharged obligations only insofar as
they are owed to or assumed by the New Bank instead of the Existing
Bank;
(iii) the rights of the Existing Bank against the existing
Parties and vice versa (the "discharged rights") will be cancelled;
and
(iv) the New Bank and the existing Parties will acquire rights
against each other which (subject to Clause 29.5 (No extra cost))
differ from the discharged rights only insofar as they are
exercisable by or against the New Bank instead of the Existing Bank,
all on the date of execution of the Novation Certificate by the Agent or, if
later, the date specified in the Novation Certificate.
29.4 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank
of which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the parent) appoint another Bank or an Affiliate of a Bank to
replace the Reference Bank.
29.5 No extra cost
If:-
(a) any assignment or transfer of all or any part of the rights or
obligations of a Bank pursuant to Clause 29; or
(b) any change in a Bank's Facility Office,
results, as a result of laws or regulations in force or the subject of a formal
government proposal at that time, in amounts becoming due at that time under
Clauses 13.1 (Gross-up) or 15 (Increased Costs), then the assignee, transferee,
New Bank or Bank, as the case may be, shall be entitled to receive those amounts
only to the extent that the assignor, transferor, Existing Bank or Bank, as the
case may be, would have been so entitled had there been no such assignment,
transfer, or change in Facility Office.
30. DISCLOSURE OF INFORMATION
(a) A Bank may disclose to one of its Affiliates or (subject to
prior notification to the Borrower of the identity of such person) any person
with whom it is proposing to enter, or has entered into, any kind of transfer,
participation or other agreement in relation to this Agreement:-
(i) a copy of any Finance Document; and
52
(ii) any information which that Bank has acquired under or in
connection with any Finance Document.
(b) A Finance Party shall keep confidential any and all information
(except information which is publicly available or in respect of which
disclosure is required by law or regulation) relating to the Group or a member
of the Group which is disclosed to the Finance Paty for the purpose of or in
connection with any Finance Document.
31. SET-OFF
A Finance Party may set off any amount due and owed by an Obligor
under this Agreement (to the extent beneficially owned by that Finance Party)
against any obligation (whether or not matured) 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.
32. PRO RATA SHARING
32.1 Redistribution
If any amount owing by an Obligor under this Agreement to a Finance
Party (the "recovering Finance Party") is discharged by payment, set-off or any
other manner other than through the Agent in accordance with Clause 12
(Payments) ("recovery"), then:-
(a) the recovering Finance Party shall, within three Business Days,
notify details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of
the amount which the recovering Finance Party would have received had the
recovery been received by the Agent and distributed in accordance with
Clause 12 (Payments);
(c) subject to Clause 32.3 (Exception), the recovering Finance Party
shall within three Business Days of demand by the Agent pay to the Agent
an amount (the "redistribution") equal to the excess;
(d) the Agent shall treat the redistribution as if it were a payment
by the Obligor concerned under Clause 12 (Payments) and shall pay the
redistribution to the Finance Parties (other than the recovering Finance
Party) in accordance with Clause 12.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering Finance
Party will be subrogated to the portion of the claims paid under paragraph
(d) above and that Obligor will owe the recovering Finance Party a debt
which is equal to the redistribution, immediately payable and of the type
originally discharged.
32.2 Reversal of redistribution
If under Clause 32.1 (Redistribution):-
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(a) a recovering Finance Party must subsequently return a recovery,
or an amount measured by reference to a recovery, to an Obligor; and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within three Business Days of demand by the recovering
Finance Party through the Agent, reimburse the recovering Finance Party all or
the appropriate portion of the redistribution paid to that Finance Party.
Thereupon, the subrogation in Clause 32.1(e) (Redistribution) will operate in
reverse to the extent of the reimbursement.
32.3 Exception
(a) A recovering Finance Party need not pay a redistribution to the
extent that it would not, after the payment, have a valid claim against the
Obligor concerned in the amount of the redistribution pursuant to Clause 32.1(e)
(Redistribution).
(b) A Finance Party is not entitled to participate in a
redistribution if the redistribution results from the proceeds of a judicial
enforcement order obtained by the recovering Finance Party and the other Finance
Party had adequate notice of and opportunity to participate in the proceedings
concerned but did not do so.
33. SEVERABILITY
If a provision of any Finance Document is or becomes illegal,
invalid or unenforceable in any jurisdiction that shall not affect:-
(a) the validity or enforceability in that jurisdiction of any other
provision of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or
any other provision of the Finance Documents.
34. COUNTERPARTS
This Agreement my 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.
35. NOTICES
35.1 Giving of notices
All notices or other communications under or in connection with this
Agreement shall be given in writing or by telex (as between the Finance Parties
only) or facsimile. Any such notice will be deemed to be given as follows:-
(a) if in writing, when delivered;
(b) if by telex when dispatched, but only if, at the time of
transmission, the correct answerback appears at the start and at the end
of the sender's copy of the notice; and
(c) if by facsimile, when received.
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However, a notice given in accordance with the above but received on
a non-working day or after business hours in the place of receipt will only be
deemed to be given on the next working day in that place.
35.2 Addresses for notices
(a) The address, telex number and facsimile number of each Party
(other than the Agent and the Parent) for all notices under or in connection
with this Agreement are:-
(i) those notified by that Party for this purpose to the Agent on or
before the date it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent
by not less than five Business Days' notice.
(b) The address, telex number and facsimile number of the Agent
are:-
Banque Nationale de Paris
00-00 Xxx xx Xxxxxxx
00000 Xxxxx
Xxxxxx
Attention: XXX Gestion Des Credits Financiers
Telex: 290 181
Facsimile: (00-0)00 00 00 00
or such other as the Agent may notify to the other Parties by not less than five
Business Days' notice.
(c) The address and facsimile number of the Parent are:
Gambro AB
X.X. Xxx 00000
X-000 00 Xxxx
Xxxxxx
Attention: Messrs. Xxxxx Xxxxxxxxx/Xxxxxxxx Xxxxxxxxxx
Facsimile: 46 46 16 96 99
or such other as the Parent may notify to the other Parties by not less than
five Business Days' notice.
(d) All notices from or to an Obligor shall be sent through the
Agent.
(e) The Agent shall promptly upon request from any Party, give to
that Party the address, telex number or fax number of any other Party applicable
at the time for the purposes of this Clause.
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36. LANGUAGE
(a) Any notice given under or in connection with any Financial
Document shall be in English.
(b) All other documents (other than the accounts and the
constitutional documents of each Obligor) provided under or in connection with
any Financial Document shall be:-
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation and, in this case, the English translation shall prevail
unless the document is a statutory or other official document.
37. JURISDICTION
37.1 Submission to English Courts
For the benefit of each Finance Party, each Obligor irrevocably
agrees that the courts of England are to have jurisdiction to settle any
disputes which may arise out of or in connection with any Finance Document and
that, accordingly, any legal action or proceedings arising out of or in
connection with any Finance Document ("Proceedings") may be brought in those
courts and each Obligor irrevocably submits to the jurisdiction of those courts.
37.2 Submission to Swedish Courts
Without prejudice to Clause 37.1 (Submission to English Courts) each
Obligor further irrevocably agrees that any Proceedings may be brought in the
courts of Sweden and submits to the non-exclusive jurisdiction of such courts.
37.3 Service of process
Without prejudice to any other mode of service, each Obligor:-
(a) irrevocably appoints:
(i) Gambro Limited of 000 Xxxxxxx Xxxx, Xxxxxx, Xxxx XX00 0XX
as its agent for service of process relating to any proceedings
before the English courts in connection with any Finance Document;
(ii) the Parent of Xxxxxxxxxxxxxxx 00, Xxx 00000, S-22010 Lund
as its agent for service of process relating to any proceedings
before the courts of the Kingdom of Sweden in connection with any
Finance Document;
except where an Obligor is incorporated in the relevant jurisdiction;
(b) agrees that failure by a process agent to notify the Obligors of
the process will not invalidate the proceedings concerned; and
56
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its address for
the time being applying under Clause 35.2 (Addresses for notices).
37.4 Forum convenience and enforcement abroad
Each Obligor:-
(a) waives objection to the English and Swedish courts on grounds of
inconvenient forum or otherwise as regards proceedings in connection with
a Finance Document; and
(b) agrees that as a judgment or order, other than an interim
judgment or order, of an English or Swedish Court in connection with a
Finance Document is conclusive and binding on it and may be enforced
against it in the courts of any other jurisdiction in accordance with the
laws and procedures of that jurisdiction.
37.5 Non-exclusivity
Nothing in this Clause 37 (Jurisdiction) limits the right of a
Finance Party to bring proceedings against an Obligor in connection with any
Finance Document in any other court of competent jurisdiction.
38. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the
beginning of this Agreement.
57
SCHEDULE 1
BANKS AND COMMITMENTS
Banks Commitments
$
Banque Nationale de Paris, London Branch 37,500,000
Commerzbank International S.A. 37,500,000
Enskilda, Skandinaviska Enskilda Xxxxxx XX (publ) 37,500,000
Nordbanken AB (publ) 37,500,000
The Sanwa Bank, Limited, London Branch/
The Sanwa Bank, Limited, Los Angeles Branch 37,500,000
Societe Generale 37,500,000
Svenska Handelsbanken 37,500,000
Union Bank of Switzerland/
Union de Banques Suisses (Luxembourg) S.A. 37,500,000
=================
Total Commitments U.S.$300,000,000
58
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
1. ALL OBLIGORS
A copy of the constitutional documents of each Obligor.
2. PARENT
(a) A copy of a resolution of the board of directors of the Parent:-
(i) approving the transactions contemplated by this Agreement and
resolving that it execute this Agreement;
(ii) authorising a specified person or persons to execute this
Agreement and the Fee Letter on its behalf; and
(iii) 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 this Agreement;
(b) a power of attorney executed on behalf of the Parent by a person
or persons authorised by the resolution referred to in paragraph (a) above;
(c) a specimen of the signature of each person authorised by the
resolution referred to in paragraph (a) above;
(d) a registration certificate not older than four months issued by
the Swedish Patent and Registration Office and certified by an offer of the
Parent to be a true copy; and
(e) a certificate of an authorised signatory of the Parent
certifying that each copy document 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.
3. BORROWER (OTHER THAN THE PARENT)
(a) A copy of a resolution of the board of directors of each
Borrower:-
(i) approving the transactions contemplated by this Agreement and
resolving that it accedes to this Agreement;
(ii) authorising a specified person or persons to execute a Deed of
Accession on its behalf; and
(iii) 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 this Agreement;
59
(b) a power of attorney executed on behalf of the Borrower by a
person or persons authorised by the resolution referred to in paragraph (a)
above;
(c) a specimen of the signature of each person authorised by the
resolution referred to in paragraph (a) above; and
(d) a legal opinion from a law firm in the jurisdiction of the
Borrower addressed to the Finance Parties.
4. PROCESS AGENTS
Evidence of acceptance by the process agents referred to in Clause
37.3 of their appointments of that Clause.
5. OTHER DOCUMENTS
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, and the transactions contemplated by,
any Finance Document or for the validity and enforceability of any Finance
Document.
6. LEGAL OPINION
(a) A legal opinion of Xxxxx, legal advisers in Sweden to the
Parent, addressed to the Finance Parties.
(b) A legal opinion of Xxxxx & Overy, legal advisers to the Agent,
addressed to the Finance Parties.
7. PREPAYMENT/CANCELLATION, 1993 AGREEMENT AND 1994 AGREEMENT
Evidence in writing that a notice of the prepayment of the principal
amount of each borrowing outstanding and cancellation of the commitments under
the 1993 Agreement and the 1994 Agreement has been served on the appropriate
person in accordance with that Agreement that any such prepayment and
cancellation will take place contemporaneously with the drawdown of Loans under
this Agreement (so long as such amounts or commitment remain outstanding).
60
SCHEDULE 3
CALCULATION OF THE MLA COST
(a) The MLA Cost for a Loan maintained in Sterling for each of its Interest
Periods is calculated in accordance with the following formula:-
[BY + L(Y-X) + S(Y-Z)]/[100 - (B + S)] % per annum = MLA Cost
where on the day of application of the formula:
B is the percentage of the Agent's eligible liabilities which the Bank of
England requires the Agent to hold on a non-interest-bearing deposit
account in accordance with its cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the Agent to leading
banks in the London interbank market at or about 11.00 a.m. on that day
for the relevant period;
L is the percentage of eligible liabilities which the Bank of England
requires the Agent to maintain as secured money with members of the London
Discount Market Association and/or as secured call money with certain
money brokers and gilt-edged primary market makers;
X is the rate at which secured Sterling deposits may be placed by the Agent
with members of the London Discount Market Association and/or as secured
call money with certain money brokers and gilt-edged primary market makers
at or about 11.00 a.m. on that day for the relevant period;
S is the percentage of the Agent's eligible liabilities which the Bank of
England requires the Agent to place as a special deposit; and
Z is the interest rate per annum allowed by the Bank of England on special
deposits.
(b) For the purposes of this Schedule 3:-
(i) "eligible liabilities" and "special deposits" have the meanings
given to them at the time of application of the formula by the Bank of
England; and
(ii) "relevant period" in relation to each Interest Period, means:-
(A) if it is 3 months or less, that Interest Period; or
(B) if it is more than 3 months, each successive period of 3
months and any necessary shorter period comprised in that Interest
Period.
61
(c) In the application of the formula, B, Y, L, X, S and Z are included in the
formula as figures and not as percentages, e.g., if B = 0.5% and Y = 15%, BY is
calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of each relevant period
comprised in the relevant Interest Period.
(ii) Each rate calculated in accordance with the formula is, if necessary,
rounded upward to four decimal places.
(e) If the Agent determines that a change in circumstances has rendered, or will
render, the formula inappropriate, the Agent (after consultation with the Banks
and the Borrower's Agent) shall notify the Banks and the Borrowers' Agent of the
manner in which the MLA Cost will subsequently be calculated. The manner of
calculation so notified by the Agent shall, in the absence of manifest error, be
binding on all the Parties.
62
SCHEDULE 4
FORM OF REQUEST
To: BANQUE NATIONALE DE PARIS as Agent
From: [BORROWER]
Date: [ ]
GAMBRO AB
U.S.$300,000,000 Facility Agreement dated [DATE]
1. We wish to borrow a Loan as follows:
(a) Drawdown Date: [ ]
(b) Facility: [ ]
(c) Original Dollar Amount: [ ]
(d) Currency: [ ]
(e) First Interest Period(s): [ ]/
alternative Interest Period: [ ]*
(f) Payment Instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request.
By:
[BORROWER]
Authorised Signatory
* Complete only if the requested Interest Period is of an optional duration.
The splitting of Loans is dealt with in Clause 8.4.
63
SCHEDULE 5
FORM OF NOVATION CERTIFICATE
To: BANQUE NATIONALE DE PARIS AS AGENT
From: [THE EXISTING BANK] and [THE NEW BANK]
Date: [ ]
GAMBRO AB
U.S.$300,000,000 Facility Agreement dated [DATE]
We refer to Clause 29.3 (Procedure for novations).
1. We [ ] (the "Existing Bank") and [ ] (the "New Bank") agree to the Existing
Bank and the New Bank novating all the Existing Bank's rights and obligations
referred to in the Schedule in accordance with Clause 29.3 (Procedure for
novations).
2. The specified date for the purposes of Clause 29.3(c) is [date of novation].
3. The Facility Office and the address for notices of the New Bank for the
purposes of Clause 35.2 (Addresses for notices) are set out in the Schedule.
4. This Novation Certificate is governed by English law.
64
THE SCHEDULE
Rights and obligations to be novated
[Details of the rights and obligations of the Existing Bank to be novated].
[Existing Bank] [New Bank]
By: By:
Date: Date:
[New Bank]
[Facility Office Address for notices]
BANQUE NATIONALE DE PARIS
By:
Date:
65
SCHEDULE 6
FORM OF DEED OF ACCESSION
THIS DEED OF ACCESSION dated [ ] and made between:-
(1) [ ] (the "Additional Borrower");
(2) BANQUE NATIONALE DE PARIS as agent (the "Agent") on behalf of
itself and the Banks (as defined in the Facility Agreement referred to
below);
is supplemental to the revolving credit facility agreement dated [ ], 1995 and
made between Gambro AB, BNP Capital Markets Limited as Arranger, the Banks
defined therein and the Agent (the "Facility Agreement").
NOW THIS DEED WITNESSETH:-
1. ACCESSION
In consideration of the Banks through the Agent agreeing to the
Additional Borrower becoming an additional borrower pursuant to Clause 2.4 of
the Facility Agreement, the Additional Borrower hereby affirms and ratifies the
Facility Agreement and by the execution of this Deed agrees to observe and be
bound by the terms and provisions of the Facility Agreement insofar as they
apply to Borrowers as if it were an original party to the Facility Agreement.
2. INTEGRATION
This Deed of Accession shall be read as one with the Facility
Agreement so that any reference therein to "this Agreement", "hereunder" and
similar shall include and be deed to include this Deed of Accession.
3. CONDITIONS PRECEDENT
The obligations of the Agent and each Bank hereunder are subject to
the condition that the Agent is satisfied that all appropriate conditions
precedent have been fulfilled by the Additional Borrower including, without
limitation, the delivery of documents equivalent to those referred to in
Schedule 2 to the Facility Agreement but relating to the Additional Borrower and
this Deed of Accession.
4. NOTICES
The Additional Borrower's address for notices and demands under the
Facility Agreement is [ ] (marked for the attention of [ ]) (Telex No. [ ])
(Facsimile No.: [ ]).
5. LAW
This Deed of Accession is governed by English law.
66
IN WITNESS WHEREOF the parties hereto have caused this Deed of
Accession to be duly executed on the date first written above.
(SIGNED as a deed on behalf of [the )
Additional Borrower] a company )
incorporated in [overseas territory,] by [ ] )
and [ ], being persons who, in accordance )
with the laws of that territory are acting )
under the authority of the company. )
............ ............
BANQUE NATIONALE DE PARIS
for itself and as Agent for the Banks
By:.....................
67
SCHEDULE 7
APPROVED ADDITIONAL BORROWERS
COBE Laboratories, Inc. (USA)
Gambro GmbH (Germany
Gambro SpA (Italy)
Gambro K.K. (Japan)
Gambro S.A. (France)
Hogamed S.A. (France)
Hospal Industrie S.A. (France)
Hospal Dasco SpA (Italy)
REN Corporation - USA
Sopamed AG (Switzerland)
68
SIGNATORIES
The Parent
GAMBRO AB
By: J. Gustavsson Xxxxx Xxxxxxxxx
Arranger
BNP CAPITAL MARKETS LIMITED
By: X. Xxxxxx
Agent
BANQUE NATIONALE DE PARIS
By: X. Xxxxxx
Banks
BANQUE NATIONALE DE PARIS, LONDON BRANCH
By: X. Xxxxxx
COMMERZBANK INTERNATIONAL S.A.
By: X. Xxxxxx
ENSKILDA, SKANDINAVISKA ENSKILDA XXXXXX XX (publ)
By: X. Xxxxxx
69
NORDBANKEN AB (publ)
By: X.X. Xxxxxxx-Xxxx
THE SANWA BANK, LIMITED, LONDON BRANCH
By: X.X. Xxxxxxx-Xxxx
THE SANWA BANK, LIMITED, LOS ANGELES BRANCH
By: Xxxxx Xxxxx-Lissac
SOCIETE GENERALE
By: Xxxxx Xxxxx-Lissac
SVENSKA HANDELSBANKEN
By: Xxxxx Xxxxx-Lissac
UNION BANK OF SWITZERLAND
By: Xxxxx Xxxxx-Lissac
UNION DE BANQUES SUISSES (LUXEMBOURG) S.A.
By: Xxxxx Xxxxx-Lissac
