EXHIBIT 10.3
FACILITY AGREEMENT
Dated __________________ 1997
By and Among
Pipeline Induction Heat Limited,
The Banks named herein,
The First National Bank of Boston, London Branch, as Issuing Bank,
The First National Bank of Boston, London Branch, as Overdraft Bank
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The First National Bank of Boston, London Branch, as Agent
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TABLE OF CONTENTS
Clause Page
1. INTERPRETATION
1.1 Terms Defined 1
1.2 Rules of Interpretation 9
2A. THE ADVANCES
2A.1 Obligation of the Banks to Make 10
Advances
2A.2 Voluntary Reduction or Termination 11
by the Borrower of the Maximum
Commitment Amount
2A.3 Termination of Commitment 11
2A.4 Commitment Fee 11
2A.5 Making the Advances 12
2A.6 Exceeding the Maximum Commitment Amount 13
2B. COLLATERAL INSTRUMENTS
2B.1 Issuance of Collateral Instruments 14
2B.2 Request for Collateral Instruments 14
2B.3 Fees 14
2B.4 Reimbursement Obligations of the Borrower 15
2B.5 Obligations Absolute 15
2B.6 Indemnities from the Borrower 16
2B.7 Letters of Credit 17
2B.8 Cash Collateral 17
3. INTEREST PAYABLE ON THE ADVANCES
3.1 Rate of Interest 17
3.2 Time for Payment 17
3.3 Default Interest 18
4. CERTAIN LENDING PROVISIONS
4.1 Determination of Interest Rate 19
4.2 Alternative Interest Rate 19
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4.3 Repayments and Prepayments of 19
the Advances, etc.
4.4 Indemnities from the Banks 20
4.5 Payments and Computations 21
4.6 Payments to be Free of 23
Deductions
4.7 Additional Costs, Changes in 25
Circumstances, etc.
4.8 Illegality 25
4.9 Indemnification 27
5. CONDITIONS PRECEDENT; SECURITY
5.1 Documentary Conditions Precedent 28
5.2 Further Conditions Precedent 28
5.3 Security; Parent Guarantee 28
6. REPRESENTATIONS AND WARRANTIES
6.1 Due Incorporation 29
6.2 Capacity 29
6.3 Authority and Enforceability 29
6.4 Compliance with Other Instruments 29
6.5 No Unmatured Events of Default 29
or Events of Default
6.6 Collateral 30
6.7 Disclosure 30
6.8 Bank Accounts 30
6.9 Representations and Warranties in the 30
Parent Loan Agreement
7. CERTAIN AFFIRMATIVE COVENANTS
7.1 Notice of Default, etc.
30
7.2 Expenses 31
7.3 Financial Records 32
7.4 Use of Proceeds 32
7.5 Delivery of Monthly Maximum Amount 32
Certificate
7.6 Further Assurances 32
7.7 Affirmative Covenants in the 32
Parent Loan Agreement
8. CERTAIN NEGATIVE COVENANTS
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8.1 Distributions 33
8.2 Bank Accounts 33
8.3 Negative Covenants in the 33
Parent Loan Agreement
9. EVENTS OF DEFAULT; ACCELERATION
9.1 Events of Default 33
9.2 Distribution of Collateral Proceeds 35
10. SET-OFF 36
11. AGENCY
11.1 Authorisation 37
11.2 Notification 41
11.3 No Obligation 42
11.4 Indemnity 42
11.5 No Liability 42
11.6 The Agent as a Bank 43
11.7 Resignation 43
11.8 No Representations 44
11.9 Compliance with Law 44
11.10 Investment by Agent 44
11.11 Divisions of Agent Treated as Separate 45
11.12 No Knowledge 45
12. MISCELLANEOUS
12.1 Consents, Amendments, Waivers, etc. 45
12.2 Assignment and Novation 46
12.3 Notices 50
12.4 Governing Law; Place of Jurisdiction 51
12.5 Severability 51
12.6 Counterparts 51
12.7 Entire Agreement 51
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LIST OF EXHIBITS AND SCHEDULES
THE FIRST SCHEDULE Calculation of Additional Cost
THE SECOND SCHEDULE Banks; Addresses; Commitment
Percentages
THE THIRD SCHEDULE Documentary Conditions Precedent
To First Advance
THE FOURTH SCHEDULE Bank Accounts
EXHIBIT A Form of Drawdown Request
EXHIBIT B Form of Novation Agreement
EXHIBIT C Form of Utilisation Request
THIS FACILITY AGREEMENT is made the ___ day of _________ 1997
BY AND AMONG
(1) PIPELINE INDUCTION HEAT LIMITED, a limited liability company incorporated
in England and Wales (registered number 1478556) and having its registered
office at The Pipeline Centre, Unit 12, Xxxxxxxxxx Road, Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxx, XX00 0XX (the "BORROWER");
(2) THE FIRST NATIONAL BANK OF BOSTON (to be registered in England from and
after 20 June 1997 under the name BankBoston, N.A.), a national banking
association organised under the laws of the United States of America under
the name BankBoston, N.A. acting through its London Branch at 00 Xxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX ("BANKBOSTON"), in its capacity as agent and
trustee for the Banks (in such capacity, the "AGENT");
(3) THE BANKS named in THE SECOND SCHEDULE hereto, each in its individual
capacity;
(4) BANKBOSTON, in its capacity as the Overdraft Bank (the "OVERDRAFT BANK");
and
(5) BANKBOSTON, in its capacity as the Issuing Bank (the "Issuing Bank").
NOW IT IS HEREBY AGREED:
Clause 1. INTERPRETATION.
1.1 TERMS DEFINED. In this Agreement, the following terms shall have the
respective meanings set forth below:
"ACQUISITION DOCUMENTS" shall mean the Agreement for the sale and purchase
of the entire issued share capital of the Borrower dated on or about 12 June
1997 by and between Holdings and Xxxxxxxxxxx Eurasia Limited and any other
documents executed and/or delivered in connection therewith.
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"ADDITIONAL COST" shall mean in relation to any period, a percentage
calculated for such period at an annual rate determined by the application of
the formula set out in THE FIRST SCHEDULE hereto.
"ADVANCES" shall mean, collectively, any utilisation of the Overdraft and
any LIBOR Advance made or to be made to the Borrower pursuant to Clause 2A
hereof.
"AFFILIATE" shall mean any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with any member of the
Affiliate Group (or other specified Person).
"AFFILIATE GROUP" shall mean, collectively, the Borrower, the Parent, and
each of their respective direct and indirect Subsidiaries.
"APPLICABLE MARGIN" shall mean the Eurodollar Applicable Margin under and
as defined in the Parent Loan Agreement, as such margin is adjusted from time to
time pursuant to Section 6.11 of the Parent Loan Agreement.
"BANKS" shall mean at any time The First National Bank of Boston, London
Branch, and the other financial institutions named in THE SECOND SCHEDULE, and
any New Bank, and their respective successors in title and assigns, and "BANK"
shall mean individually each of the Banks.
"BORROWING DATE" shall mean in relation to any Advance, the day on which
that Advance is made or to be made to the Borrower.
"BUSINESS DAY" shall mean a day (other than a Saturday or a Sunday) on
which banks are open for business in London, England.
"COLLATERAL INSTRUMENT" shall mean any Letter of Credit, Performance Bond
or Guarantee issued, extended or renewed by the Issuing Bank for the account of
the Borrower pursuant to Clause 2B hereof.
"COLLATERAL INSTRUMENT RATE" shall mean the percentage per annum equal to
the Applicable Margin in effect for the time being.
"COMMITMENT" shall mean with respect to each Bank, the amount equal to the
product of (A) such Bank's Commitment Percentage and (B) the Maximum Commitment
Amount, as the amount of such Bank's commitment to make available to the
Borrower or to indemnify the Overdraft Bank, as the case may be, with respect to
the Advances and to indemnify the Issuing Bank with respect to Collateral
Instruments on the terms and subject to the
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conditions contained in this Agreement, as the same is reduced from time to time
in accordance with the terms hereof.
"COMMITMENT AMOUNT" shall mean at any time an amount equal to the lesser
of (a) the Maximum Commitment Amount at such time and (b) the Monthly Maximum
Amount at such time.
"COMMITMENT EXPIRY DATE" shall mean that term as defined in Clause 2A.3
hereof.
"COMMITMENT FEE" shall mean that term as defined in Clause 2A.4 hereof.
"COMMITMENT FEE PERCENTAGE" shall mean the percentage per annum used in
determining the Commitment Fee under and as defined in the Parent Loan
Agreement, as such percentage is adjusted from time to time pursuant to Section
6.11 of the Parent Loan Agreement.
"COMMITMENT PERCENTAGE" shall mean with respect to each Bank, the
percentage set forth on THE SECOND SCHEDULE hereto opposite such Bank's name
(or, as the case may be, specified in the Novation Agreement pursuant to which
such Bank became a party hereto as the proportion of the aggregate Commitments
transferred to such Bank).
"DISCHARGED OBLIGATIONS" shall mean that term as defined in Clause 12.2
hereof.
"DISCHARGED RIGHTS" shall mean that term as defined in Clause 12.2 hereof.
"DISTRIBUTION" shall mean (A) the declaration or payment of any dividend
on or in respect of any Shares of any class of any Person, other than dividends
payable solely in Shares of such Person, or (B) the purchase, redemption or
other retirement of any Shares of any class of any Person, directly or
indirectly through a Subsidiary or otherwise, or (C) the return of capital by
any Person to its shareholders as such, or (D) any other distribution on or in
respect of any Shares of any class of any Person.
"DRAWDOWN REQUEST" shall mean a request by the Borrower for a LIBOR
Advance in the form set out in EXHIBIT A hereto.
"ELIGIBLE TRANSFEREE" shall mean (a) any Qualifying Bank that is a
commercial bank or finance company organised under the laws of the United
States, or any State thereof or the District of Columbia, and having total
assets in excess of $1,000,000,000; (b) any Qualifying Bank that is a savings
and loan association or savings bank organised under the laws of the United
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States, or any State thereof or the District of Columbia, and having a net worth
of at least $100,000,000; (c) any Qualifying Bank that is a commercial bank
organised under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having total assets in excess of
$1,000,000,000; provided that such bank is acting through a branch or agency
located in the country in which it is organised or another country which is also
a member of the OECD; (d) any Qualifying Bank that is the central bank of any
country which is a member of the OECD; and (e) if, but only if, any Event of
Default has occurred and is continuing, any other bank, insurance company,
commercial finance company or other financial institution or other Person
approved by the Agent, such approval not to be unreasonably withheld.
"EVENT OF DEFAULT" shall mean any of the events described in Clauses
9.1(A) through (L) (inclusive) hereof.
"EXISTING BANK" shall mean that term as defined in Clause 12.2.
"EXISTING PARTIES" shall mean that term as defined in Clause 12.2.
"GUARANTEE" shall mean a guarantee, indemnity or other assurance, in a
form and on terms acceptable to the Issuing Bank, issued, extended or renewed by
the Issuing Bank for the account of the Borrower pursuant to Clause 2B hereof.
"HOLDINGS" shall mean PIH Holdings Limited, a limited liability company
incorporated in England and Wales (registered number 3335609), having its
registered office at 0 Xxxxx Xxxx, Xxxxxxxx Xxxxx, Xxxxxxxxx, X0 0XX, and the
holder of 100% of the Borrower's issued share capital.
"HOLDINGS GUARANTEE" shall mean that term as defined in Clause 5.3 hereof.
"INDEBTEDNESS" shall mean, as to any Person, without duplication, (A) all
obligations of such Person for borrowed money, (B) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (C)
all obligations of such Person to pay the deferred purchase price of property or
services, (D) all obligations of such Person for reimbursement (whether
contingent or liquidated) of amounts drawn under letters of credit, performance
bonds or guarantees issued for the account of such Person, (E) all obligations
of such Person as lessee under finance leases, hire purchase or conditional sale
agreements or other agreements entered into primarily as a method of raising
finance, (F) all obligations secured by any mortgage, charge, lien, security
interest or other encumbrance, to which any property or asset owned or held by
such Person is subject, whether or not the
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obligation secured thereby shall have been assumed, and (G) all Indebtedness of
others guaranteed by such Person.
"INTEREST PAYMENT DATE" shall mean any date on which a payment of interest
is due on any of the Advances pursuant to the terms hereof.
"INTEREST PERIOD" shall mean with respect to the LIBOR Advances (i)
initially, as specified by the Borrower in its Drawdown Request, the period
commencing on the Borrowing Date of such Advance and expiring 1, 2, 3 or 6
months thereafter, and (ii) thereafter as specified by the Borrower in a written
notice furnished to the Agent no later than 11:00 a.m. (London time) one (1)
Business Day prior to the Rate-fixing Day with respect to such Advance, any
successive periods of 1, 2, 3 or 6 months (or such shorter period as will result
in the Interest Period not extending beyond the Commitment Expiry Date)
commencing on the same day on which the immediately preceding Interest Period
with respect to such Advance shall have expired. The number of days in each
Interest Period and the particular day on which each Interest Period ends and
the next begins shall be fixed by the Agent in accordance with generally
accepted practice and notified to the Borrower on the Rate-fixing Day therefor.
If any Interest Period would otherwise end on a day which is not a Business Day,
such Interest Period shall end and the next Interest Period shall commence on
the next succeeding day which is a Business Day. Any Interest Period which
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month.
"LETTER OF CREDIT" shall mean a letter of credit, in a form and on terms
acceptable to the Issuing Bank, issued, extended or renewed by the Issuing Bank
for the account of the Borrower pursuant to Clause 2B hereof.
"LIBOR" shall mean, at the time any determination thereof is to be made
for any Interest Period, the rate at which the Agent, in accordance with its
normal practice, is able to obtain like deposits in Sterling in the London
Interbank offered market for a period comparable in length to such Interest
Period.
"LIBOR ADVANCE" shall mean any Advance made hereunder, the interest rate
on which is calculated by reference to LIBOR.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, all Collateral
Instruments issued, extended or renewed hereunder, the Security Documents and
any other documents or instruments delivered or to be delivered by Holdings, the
Borrower or any of its Subsidiaries pursuant to or in connection with this
Agreement.
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"MAJORITY BANKS" shall mean, at any time, a Bank or Banks whose aggregate
Commitment Percentages are at least equal to sixty-six and two-thirds percent
(66 2/3%).
"MAXIMUM COLLATERAL INSTRUMENT DRAWINGS" shall mean, at any time, the
Sterling Equivalent of the maximum aggregate amount that may be demanded from
the Issuing Bank (assuming all conditions to any such demand have been met)
under all outstanding Collateral Instruments at such time.
"MAXIMUM COMMITMENT AMOUNT" shall mean an amount equal to
(pound)3,050,000, as such amount may be reduced from time to time in accordance
with the terms hereof.
"MONTHLY MAXIMUM AMOUNT" shall mean that term as defined in Clause 7.5
hereof.
"NEW BANK" shall mean that term as defined in Clause 12.2 hereof.
"NOVATION AGREEMENT" shall mean that term as defined in Clause 12.2
hereof.
"NOVATION DATE" shall mean that term as defined in Clause 12.2 hereof.
"OBLIGATIONS" shall mean all Indebtedness, obligations and liabilities to
the Agent, the Banks, the Issuing Bank or the Overdraft Bank existing on the
date of this Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise of the Borrower and its Subsidiaries arising or incurred under this
Agreement or the other Loan Documents or in respect of the Advances or the
Collateral Instruments hereunder or pursuant to any instruments at any time
evidencing any of the foregoing.
"OPTIONAL CURRENCY" shall mean, with respect to any Collateral Instrument,
such currency other than Sterling readily available to the Issuing Bank (as
determined by the Issuing Bank in its sole discretion) in which such Collateral
Instrument shall be denominated.
"OUTSTANDING AMOUNT" shall mean, at any time, (A) in relation to a LIBOR
Advance, the principal amount of such LIBOR Advance outstanding at such time and
(B) in relation to the Overdraft, the amount of the debit balance on the
Borrower's current account with the Overdraft Bank at such time.
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"OVERDRAFT" shall mean that term as defined in Clause 2A.5(F)
hereof.
"PARENT" shall mean CEPI Holdings, Inc., a Delaware corporation to be
named CRC-Xxxxx Pipeline International, Inc. on or about the date hereof, which
corporation is the owner of 100% of the issued share capital of Holdings.
"PARENT GUARANTEE" shall mean that term as defined in Clause 5.3 hereof.
"PARENT LOAN AGREEMENT" shall mean the Revolving Credit and Term Loan
Agreement dated as of June 12, 1997 by and among the Parent, CRC Holdings Corp.,
the financial institutions party thereto from time to time, BankBoston, N.A. as
agent for such financial institutions and Bankers Trust Company as documentation
agent, as the same may be amended, modified, supplemented or restated and in
effect from time to time.
"PARTICIPANT" shall mean that term as defined in Clause 12.2
hereof.
"PERFORMANCE BOND" shall mean a surety or performance bond, in a form and
on terms acceptable to the Issuing Bank, issued, extended or renewed by the
Issuing Bank for the account of the Borrower pursuant to the provisions of
Clause 2B hereof.
"PERSON" shall mean any natural person, corporation, limited liability
company, partnership, limited liability partnership, firm, association,
government, governmental agency or any other juridical entity, whether acting in
an individual, fiduciary or other capacity.
"QUALIFYING BANK" shall mean a bank for the purposes of section 349 of the
Income and Corporations Taxes Act 1988 (or any statutory re-enactment or
modification thereof) which is within the charge to United Kingdom corporation
tax as respects any interest payable or paid to it under this Agreement.
"RATE-FIXING DAY" shall mean in relation to any LIBOR Advance, the
Business Day on which the Interest Period relating to such LIBOR Advance begins.
"REGISTER" shall mean that term as defined in Clause 12.2.
"REIMBURSEMENT OBLIGATION" shall mean the obligation of the Borrower to
reimburse the Issuing Bank on account of any drawing under any Collateral
Instrument as provided in Clause 2B.5 hereof.
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"SECURITY DOCUMENTS" shall mean all documents executed or to be executed
for the purpose of giving to the Agent, the Banks, the Issuing Bank and/or the
Overdraft Bank security or any other form of support in connection with any of
the Obligations, including, without limitation, the Parent Guarantee, the
Holdings Guarantee, the Security Documents (as defined in the Parent Loan
Agreement) and those security documents listed in THE THIRD SCHEDULE hereto.
"SHARES" shall mean any type of shares or other units of equity capital of
any kind, whether or not such units are certificated.
"STERLING" and "(POUND)" shall mean the lawful currency for the time being
of the United Kingdom.
"STERLING BASE RATE" shall mean the rate of interest announced from time
to time by the London Branch of the Agent as its base lending rate for Sterling,
as in effect at the relevant time of reference thereto.
"STERLING EQUIVALENT" shall mean, on any particular date, with respect to
any amount denominated in Sterling, such amount of Sterling, and with respect to
any amount denominated in a currency other than Sterling (the "SECOND
CURRENCY"), the amount of Sterling which could be purchased by the Agent (in
accordance with its usual practice) with that amount of the Second Currency at
the spot rate of exchange in the London Foreign Exchange Market at or about
11:00 a.m. (London time) on such date for the purchase of Sterling with the
Second Currency.
"SUBSIDIARY" shall mean (A) when used to determine the relationship
between a company incorporated in England and another Person, that term as
defined by Clause 736 of the Companies Xxx 0000 (as amended by Clause 144 of the
Companies Act 1989), and (B) when used to determine the relationship between a
company not incorporated in England to another Person, that other Person of
which such company shall own directly or indirectly through a Subsidiary or
Subsidiaries at least a majority (by number of votes) of the Shares or similar
interests, of any class or classes (however designated), the holders of which
are entitled, as such holders, to vote for the election of a majority of the
directors (or persons performing similar functions) of such other Person,
whether or not the right so to vote exists by reason of the happening of a
contingency.
"TAXES" shall mean taxes, levies, imposts, duties or other charges of
whatsoever nature imposed by any government or any political subdivision or
taxing authority thereof on the Agent, any Bank, the Issuing Bank or the
Overdraft Bank, as the case may be, other than any such charges on or measured
by the overall net income, net worth or shareholders' capital of such Person.
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"TOTAL OUTSTANDINGS" shall mean at any time the aggregate Outstanding
Amount of all Advances at such time.
"TOTAL OUTSTANDING REIMBURSEMENT OBLIGATIONS" shall mean, at any time, the
Sterling Equivalent of the aggregate outstanding amount of all Reimbursement
Obligations for which the Borrower has not, at that time, reimbursed the Issuing
Bank in accordance with Clause 2B.5.
"UNIFORM CUSTOMS AND PRACTICE" shall mean the Uniform Customs and
Practice for Documentary Credits (1993 Revision), International Chamber
of Commerce Publication No. 500, and any subsequent revisions thereof
approved by the International Chamber of Commerce.
"UNMATURED EVENT OF DEFAULT" shall mean an event, act or occurrence which
with the giving of notice or the lapse of time, or with both thereof, would
become an Event of Default.
"UTILISATION DATE" shall mean, in relation to any Collateral Instrument,
the date on which that Collateral Instrument is to be made available to the
beneficiary or beneficiaries thereof.
"UTILISATION REQUEST" shall mean a request by the Borrower for the
issuance, extension or renewal of a Collateral Instrument in the form set out in
EXHIBIT C hereto.
1.2 RULES OF INTERPRETATION.
(A) A reference to any document or agreement shall include such document
or agreement as in force for the time being and as amended, varied, substituted,
supplemented, restated or novated in accordance with the terms thereof or, as
the case may be, with the agreement of the relevant parties and (where such
consent is, by the terms of this Agreement or the relevant document, required to
be obtained as a condition to such amendment being permitted) the prior written
consent of the Agent.
(B) The singular includes the plural and the plural includes the singular.
(C) A reference to any law includes any amendment or modification to such
law.
(D) A reference to any Person includes its permitted successors and
permitted assigns.
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(E) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles in the United
Kingdom, applied on a consistent basis by the accounting entity to which they
refer.
(F) The words "include", "includes" and "including" are not limiting.
(G) Reference to "this Agreement" and the "Agreement" refers to this
Facility Agreement and reference to a particular Clause or subclause refers to
that section or subclause of this Agreement unless otherwise indicated.
(H) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Agreement as a whole and not to any particular section or
subdivision of this Agreement.
(I) Clause headings are inserted for convenience only and have no legal
effect.
(J) References to clauses, schedules and exhibits are to be construed as
references to the clauses of, schedules to and exhibits to this Agreement, and
references to this Agreement include its schedules and exhibits.
1.3 PURPOSE. This Agreement sets out the terms and conditions upon and
subject to which the Banks, the Overdraft Bank and the Issuing Bank will make
available to the Borrower credit facilities of up to the Maximum Commitment
Amount to be used solely (a) to repay an intercompany loan from Holdings to the
Borrower in the amount of (pound)___________ the proceeds of which were used to
repay a loan from Xxxxxxxxxxx UK Limited to the Borrower and (b) to support
ongoing working capital requirements and other general corporate purposes of the
Borrower.
Clause 2A. THE ADVANCES.
2A.1 OBLIGATION OF THE BANKS TO MAKE ADVANCES.
(A) From the date hereof until the Commitment Expiry Date, each of the
Banks severally agrees, upon the terms and conditions contained in this
Agreement, to make its Commitment Percentage of LIBOR Advances in Sterling to
the Borrower, and the Overdraft Bank agrees, upon the terms and conditions
contained in this Agreement, to permit the Borrower to utilise the Overdraft, in
each case up to a maximum amount at any one time equal to the Commitment Amount
at such time LESS the sum of (I) the Total Outstandings at such time, (II) the
Maximum Collateral Instrument
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Drawings at such time and (III) the Total Outstanding Reimbursement Obligations
at such time; PROVIDED that at no time shall the sum of the Total Outstandings
(after giving effect to all amounts requested or utilised) PLUS the Maximum
Collateral Instrument Drawings PLUS the Total Outstanding Reimbursement
Obligations exceed the Commitment Amount at such time, and PROVIDED FURTHER that
the Overdraft shall be made available subject to provisions of Clause 2A.5(f).
(B) The Banks agree to indemnify the Agent and the Overdraft Bank in the
manner hereinafter appearing.
(C) The obligations of each Bank hereunder are several. The failure by a
Bank to perform its obligations hereunder shall not affect the obligations of
the Borrower or any other Bank towards any other party hereto nor shall any such
other party be liable for the failure by such Bank to perform its obligations
hereunder.
2A.2 VOLUNTARY REDUCTION OR TERMINATION BY THE BORROWER OF THE MAXIMUM
COMMITMENT AMOUNT. At any time after all loans or advances under the Parent Loan
Agreement shall have been repaid in full in cash and all commitments thereunder
shall have been irrevocably terminated, the Borrower may at its option at any
time prior to the Commitment Expiry Date reduce, in whole or in part, the
Maximum Commitment Amount in a minimum principal amount of (pound)250,000 or any
multiple thereof by giving at least thirty (30) Business Days' prior written
notice thereof to the Agent and, if necessary, making a payment to the Agent for
the account of the Banks and/or the Overdraft Bank, as the case may be, against
the Total Outstandings and providing cash collateral to the Agent for the
account of the Issuing Bank in respect of Reimbursement Obligations, in such
aggregate amount as will reduce the sum of the Total Outstandings, the Maximum
Collateral Instrument Drawings and the Total Outstanding Reimbursement
Obligations to an amount not in excess of the Commitment Amount for the time
being following such reduction, or, if the Maximum Commitment Amount is being
reduced to zero, repay all outstanding Obligations hereunder and provide to the
Agent for the account of the Issuing Bank cash collateral in an amount equal to
the Maximum Collateral Instrument Drawings.
2A.3 TERMINATION OF COMMITMENT. The Commitments will terminate in full on
the first to occur of (A) 12 June 2003 and (B) such earlier date on which the
Commitments may terminate as provided in this Agreement (the "Commitment Expiry
Date"). Following the Commitment Expiry Date, no additional Advances or
Collateral Instruments may be requested by the Borrower and the Total
Outstandings and any Total Outstanding Reimbursement Obligations as at the
Commitment Expiry Date shall be repaid in accordance with the provisions of
Clause 4.3 hereof and cash
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collateral shall be provided to the Agent for the account of the Issuing Bank in
an amount equal to the Maximum Collateral Instrument Drawings.
2A.4 COMMITMENT FEE. The Borrower agrees to pay to the Agent for the
account of the Banks in accordance with their respective Commitment Percentages
a commitment fee (the "COMMITMENT FEE") equal to the Commitment Fee Percentage
of the average daily difference by which the Maximum Commitment Amount exceeds
the sum of the Total Outstandings (other than the Outstanding Amount of the
Overdraft) and the Maximum Collateral Instrument Drawings during the preceding
calendar quarter or portion thereof. The Commitment Fee shall accrue beginning
on the date hereof and shall be payable quarterly in arrear on the first
Business Day of each calendar quarter hereafter, with a final payment on the
Commitment Expiry Date.
2A.5 MAKING THE ADVANCES.
(A) Subject to the terms and conditions of this Agreement, the Borrower
may request a LIBOR Advance hereunder from time to time on any Business Day
between the date hereof and the Commitment Expiry Date, upon notice given to the
Agent in accordance with subclause (b) below. Each such LIBOR Advance shall be
in the minimum principal amount of (pound)250,000 or a larger integral multiple
thereof.
(B) Unless otherwise agreed by the Agent, whenever the Borrower desires
and is entitled hereunder to request a LIBOR Advance, the Borrower shall furnish
to the Agent a Drawdown Request not later than 11:00 a.m. (London time) one (1)
Business Day prior to the Rate-fixing Day with respect to such LIBOR Advance.
One (1) Business Day immediately preceding the Rate-fixing Day for any
succeeding Interest Period for any outstanding LIBOR Advance, the Borrower shall
notify the Agent in writing of the Borrower's determination of the duration of
such succeeding Interest Period with respect to such Advance. In the absence of
such notice, the Borrower shall be deemed to have elected a succeeding Interest
Period of one (1) month (or such shorter period as will result in the Interest
Period not extending beyond the Commitment Expiry Date). Each Drawdown Request
furnished hereunder shall be irrevocable.
(C) The Agent shall, after receipt by it of a Drawdown Request or a notice
of duration for a succeeding Interest Period, promptly notify each Bank of its
receipt of such Drawdown Request or notice of duration, as the case may be.
(d) If, prior to 11:00 a.m. (London time) on the proposed Borrowing Date
of a LIBOR Advance, all the applicable conditions hereunder, including without
limitation the conditions of Clauses 2A and 5 hereof, are satisfied,
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the Agent, subject to subclause (e) below, will make such Advance available to
the Borrower, in each case by crediting the Borrower's specified account on the
specified Borrowing Date.
(E) The Agent may, unless notified to the contrary by any Bank prior to a
Borrowing Date, assume that each Bank has made available to the Agent on such
Borrowing Date the amount of such Bank's Commitment Percentage of the LIBOR
Advance to be made on such Borrowing Date, and the Agent may (but it shall not
be required to), in reliance upon such assumption, make available to the
Borrower a corresponding amount. If any Bank makes available to the Agent such
amount on a date after such Borrowing Date, such Bank shall pay to the Agent on
demand an amount equal to the sum of any and all losses, costs and expenses of
the Agent in respect of such Bank's failure to make the required amounts
available to the Agent on such Borrowing Date. A statement of the Agent
submitted to such Bank with respect to any amounts owing under this paragraph
shall be prima facie evidence of the amount due and owing to the Agent by such
Bank. If the amount of such Bank's Commitment Percentage of such Advances is not
made available to the Agent by such Bank within three (3) Business Days
following such Borrowing Date, the Agent shall be entitled to recover such
amount from the Borrower on demand, with interest thereon.
(f) Subject to the terms and conditions of this Agreement, including,
without limitation, the conditions of Clauses 2A and 5 hereof, the Borrower may
from time to time between the date hereof and the Commitment Expiry Date utilise
an overdraft on its Sterling-denominated current account with the Overdraft Bank
(the "OVERDRAFT") by causing cheques or other items denominated in Sterling to
be presented for payment against such current account in amounts greater than
the then available balance in such current account, PROVIDED THAT at no time
shall the sum of the Outstanding Amount of the Overdraft, the Outstanding Amount
of all LIBOR Advances, the Total Outstanding Reimbursement Obligations and the
Maximum Collateral Instrument Drawings at such time exceed the Commitment Amount
at such time. Each such presentation shall be deemed to be a request by the
Borrower for a utilisation of the Overdraft in an amount equal to the excess of
such cheque or other item over such available balance, and shall be irrevocable.
After the occurrence of an Event of Default, the Overdraft Bank may terminate
the Overdraft facility in its entirety with immediate effect at its sole
discretion by written notice to the Borrower.
2A.6 EXCEEDING THE COMMITMENT AMOUNT. If at any time for any reason
(including without limitation currency fluctuation or a reduction in the Monthly
Maximum Amount) the sum of the Total Outstandings, the Total Outstanding
Reimbursement Obligations and the Maximum Collateral Instrument Drawings shall
exceed the Commitment Amount, the Borrower
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hereby absolutely and unconditionally promises to repay on demand by the Agent
the amount of such excess: FIRSTLY to the Agent for the account of the Issuing
Bank, for application to any outstanding Reimbursement Obligations, SECONDLY to
the Agent for the account of the Overdraft Bank, for application against the
Overdraft, THIRDLY to the Agent for the account of the Banks for application
against the LIBOR Advances, subject, in any event, to Clause 4.9, and FOURTHLY
to the Agent for the account of the Issuing Bank to be held as cash collateral
for the Maximum Collateral Instrument Drawings.
Clause 2B. COLLATERAL INSTRUMENTS.
2B.1 ISSUANCE OF COLLATERAL INSTRUMENTS. At the request of the Borrower,
the Issuing Bank may, from time to time from the date hereof until the
Commitment Expiry Date, upon the terms, subject to the conditions and in
reliance upon the representations and warranties contained in this Agreement,
issue, extend or renew one or more Collateral Instruments denominated in
Sterling or in any Optional Currency, PROVIDED THAT, at such time and after
giving effect to such request the sum of (A) the Total Outstandings, (B) the
Maximum Collateral Instrument Drawings and (C) the Total Outstanding
Reimbursement Obligations shall not exceed the Commitment Amount then in effect.
2B.2 REQUEST FOR COLLATERAL INSTRUMENTS. Unless otherwise agreed by the
Issuing Bank, when the Borrower desires the Issuing Bank to issue, extend or
renew a Collateral Instrument for the account of the Borrower, the Borrower
shall furnish to the Agent a Utilisation Request relating thereto (together with
a counter-indemnity relating thereto on the Issuing Bank's customary form) not
later than 11:00 a.m., London time, one (1) Business Day prior to the
Utilisation Date of such Collateral Instrument, identifying (A) the Utilisation
Date (which must be a Business Day), (B) the name of the beneficiary, (C) the
expiry date of such Collateral Instrument (such expiry date only to extend
beyond the Commitment Expiry Date with consent of the Issuing Bank acting in its
sole discretion and subject to the Borrower's agreement to provide cash
collateral therefore in the terms of Clause 2B.4), (D) the proposed currency of
denomination and face amount of such Collateral Instrument, (E) special
conditions, if any, attaching to the negotiation of such Collateral Instrument,
and (F) the instruments, documents and other evidence necessary to be presented
to the Issuing Bank for negotiation of the Collateral Instrument. The Agent
shall, after receipt by it of a Utilisation Request, promptly notify the Issuing
Bank of its receipt of such Utilisation Request and the details thereof.
2B.3 FEES. The Borrower shall, on the date of issuance or any extension or
renewal of any Collateral Instrument and at such other time or times as such
charges are customarily made by the Issuing Bank, pay to the Agent a fee in an
amount equal to the Collateral Instrument Rate in effect
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on such date multiplied by the maximum amount that may be demanded from the
Issuing Bank (assuming all conditions to any such demand have been met) under
such Collateral Instrument. A portion of each such fee equal to one-eighth of
one percent (0.125%) of such maximum amount shall be solely for the account of
the Issuing Bank and the remainder of each such fee shall be for the account of
the Banks in accordance with their Commitment Percentages. In addition, the
Borrower shall pay to the Agent for the account of the Issuing Bank in all cases
on the date of issuance or any extension or renewal of any Collateral
Instrument, all reasonable customary costs, where applicable, associated with
the application, issuance, documentation, and amendment together with all
applicable fees, charges, administrative and out-of-pocket expenses.
2B.4 REIMBURSEMENT OBLIGATIONS OF THE BORROWER. In order to induce the
Issuing Bank to issue, extend and renew each Collateral Instrument, the Borrower
hereby absolutely and unconditionally promises and agrees to reimburse or pay to
the Issuing Bank, with respect to each Collateral Instrument, issued, extended
or renewed by the Issuing Bank hereunder:
(A) on each date that any Collateral Instrument is honoured by the
Issuing Bank or the Issuing Bank otherwise makes a payment with respect
thereto, (I) the amount paid by the Issuing Bank under or with respect to
such Collateral Instrument, (II) the amounts necessary to comply with
Clause 2B.3 hereof (to the extent not previously paid), and (III) the
amount of any taxes, fees, charges or other costs and expenses whatsoever
reasonably incurred by the Issuing Bank in connection with any payment
made by the Issuing Bank under or with respect to such Collateral
Instrument, PROVIDED THAT, if the Borrower fails to make such payments the
Issuing Bank may (but is not obligated to do so), and is hereby appointed
attorney of the Borrower for that purpose, draw down such amounts as are
necessary to discharge the unsatisfied Reimbursement Obligations which are
due and payable as a result of such non-payment, the proceeds of such
drawing being applied by the Agent to the payment of such unsatisfied
Reimbursement Obligations and constituting, for the purposes of Clause
2A.5, a utilisation of the Overdraft; and
(B) upon the Commitment Expiry Date (if for any reason any
Collateral Instrument remains outstanding), an amount equal to the Maximum
Collateral Instrument Drawings, which amount will be held by the Agent for
the account of the Issuing Bank as cash collateral for any and all
Reimbursement Obligations arising thereafter.
2B.5 OBLIGATIONS ABSOLUTE. The Borrower's obligations under this Clause 2B
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Event of Default or
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Unmatured Event of Default or any condition precedent whatsoever or any setoff,
counterclaim or defence to payment which the Borrower may have or has had
against the Agent, the Banks, the Issuing Bank or the Overdraft Bank or any
beneficiary of a Collateral Instrument. The Borrower further agrees with the
Agent and the Issuing Bank that the Issuing Bank shall not be responsible for,
and the Borrower's Reimbursement Obligations shall not be affected by, among
other things, the validity or genuineness of any documents or of any
endorsements thereon, notwithstanding that such documents should in fact prove
to be in any or all respects invalid, fraudulent or forged, or any dispute
between or among the Borrower, the beneficiary of any Collateral Instrument or
any financing institution or other party to which any Collateral Instrument may
be transferred and notwithstanding any claims or defences whatsoever that the
Borrower may have against the beneficiary of any Collateral Instrument or any
such transferee. The Issuing Bank shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Collateral Instrument. The
Borrower agrees that any action taken or omitted to be taken by the Issuing Bank
under or in connection with each Collateral Instrument and the related
instruments and documents, if done in good faith, shall be binding upon the
Borrower and shall not result in any liability on the part of the Issuing Bank
to the Borrower.
2B.6 INDEMNITIES FROM THE BORROWER. In consideration of the Issuing Bank's
issuing, extending or renewing any Collateral Instrument at the request of the
Borrower the Borrower hereby:
(A) irrevocably and unconditionally agrees to indemnify and hold the
Issuing Bank harmless against all actions, proceedings, liabilities,
claims, damages, costs and expenses in relation to or arising out of any
Collateral Instrument and to pay to the Issuing Bank on demand all
payments, losses, costs and expenses properly suffered or incurred by it
in consequence thereof or arising therefrom and the Issuing Bank shall be
entitled to rely upon, and shall be fully protected in relying upon, any
Collateral Instrument, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, or teletype
message, statement, order or other document believed by it to be genuine
and correct;
(B) irrevocably authorises the Issuing Bank to make any payment and
comply with any demands which may be claimed from or made upon it under
any Collateral Instrument without any reference to or further authority
from the Borrower and agrees that any payment which the Issuing Bank shall
make in accordance with any of the Collateral Instruments shall be binding
upon the Borrower and shall be accepted by the Borrower as conclusive
evidence that the Issuing Bank
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was liable to make such payment or comply with such demand and further
agrees that it shall not be incumbent upon the Issuing Bank to enquire
whether any such payment was in fact due, properly made or as to the
authority or identity of the person claiming or making the same; and
(C) irrevocably agrees that the Borrower's obligations hereunder
shall remain in full force and effect and shall not be discharged until
each Collateral Instrument shall have been negotiated or returned to the
Issuing Bank by the beneficiary thereof as cancelled.
2B.7 LETTERS OF CREDIT. Each Letter of Credit issued by the Issuing Bank
hereunder will be subject to, and the performance by the Issuing Bank and the
beneficiary thereunder will be governed by, the Uniform Customs and Practice,
except to the extent it is otherwise expressly agreed. In the event the Letter
of Credit is subject to laws other than the Uniform Customs and Practice, any
action, inaction, or omission on the part of the Issuing Bank or its agents in
connection with such Letter of Credit, and in good faith reliance on such laws,
will be deemed to be in compliance with such Letter of Credit and this Agreement
and the Borrower hereby indemnifies the Issuing Bank or its agents against and
holds them harmless from any and all loss, liability, damages or expense
incurred thereby.
2B.8 CASH COLLATERAL. All amounts provided to the Agent for the account of
the Issuing Bank as cash collateral for outstanding Collateral Instruments shall
be provided in the currencies in which the respective Collateral Instruments are
denominated, or in Sterling if so agreed by the Issuing Bank at the time such
cash collateral is to be provided.
Clause 3. INTEREST PAYABLE ON THE ADVANCES.
3.1 RATE OF INTEREST.
(A) With respect to any LIBOR Advance, the rate of interest which
shall be payable by the Borrower on the unpaid principal amount of such
Advance outstanding and not yet overdue shall be the annual percentage
rate of interest determined by the Agent to be the sum of (I) the LIBOR
applicable to such Advance, PLUS (II) the Applicable Margin, PLUS (III)
the Additional Cost.
(b) With respect to the Overdraft, the rate of interest which shall
be payable by the Borrower on the day to day debit balance in the
Borrower's current account maintained with the Overdraft Bank shall be the
annual percentage rate of interest determined by the Agent to be the sum
of (I) the Sterling Base Rate, PLUS (II) the Applicable Margin, PLUS (iii)
0.25%. The rate of interest on the Overdraft shall vary from
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time to time as the Sterling Base Rate varies, any change in the rate of
interest to become effective on the date of the change in the Sterling
Base Rate.
3.2 TIME FOR PAYMENT. The Borrower hereby absolutely and unconditionally
promises to pay interest:
(A) on the unpaid principal amount of each LIBOR Advance to the
Agent for the account of the Banks in arrear on (I) the last day of each
Interest Period, provided that if the duration of any such Interest Period
is longer than three (3) months the Borrower shall pay the accrued
interest on the last Business Day of each successive three (3) month
period within such Interest Period and on the last day of such Interest
Period and (II) the date such LIBOR Advance is repaid in full; and
(B) with respect to the Overdraft (I) monthly in arrear on the last
day of each calendar month commencing on the first such date following the
date hereof and (II) the date on which the Overdraft is repaid in full and
terminated irrevocably.
3.3 DEFAULT INTEREST.
(a) If the Borrower fails to pay any amount payable by it under this
Agreement when due it shall, upon demand by the Agent from time to time,
pay interest on the overdue amount from the due date up to the date of
actual payment, both before and after judgment, at a rate (the "DEFAULT
RATE") determined by the Agent to be 2.00% per annum above the higher of:
(i) the interest rate payable on the overdue amount
under Clause 3.1 immediately prior to the due date therefore;
and
(ii) the interest rate which would have been payable if the
overdue amount had, during the period of non-payment, constituted a
LIBOR Advance having relative thereto successive Interest Periods of
any duration up to three months as the Agent may determine from time
to time (each a "DESIGNATED INTEREST PERIOD").
(B) The default rate shall be determined on each Business Day or the
first day of the relevant Designated Interest Period, as appropriate.
(C) Default interest shall be compounded at the end of each
Designated Interest Period, if calculated in accordance with Clause
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3.3(A)(II) above, or on the last day of each calendar month, if calculated
in accordance with Clause 3.3(A)(I) above.
(D) If an event occurs which is an Event of Default other than a
payment default as described in Clause 3.3(A) hereof, (the date upon which
such event is notified by the Agent to the Borrower as being an Event of
Default being hereinafter referred to as the "RELEVANT DATE") then,
without prejudice to any other rights and remedies of the Agent, the
Banks, the Issuing Bank and the Overdraft Bank in respect of the
occurrence of that event, from and after the Relevant Date and until such
Event of Default and any other continuing Events of Default shall have
been waived in accordance with the provisions of this Agreement, the
Applicable Margin shall increase by 2.00% per annum. If following any such
increase in the Applicable Margin such Event of Default and any other
continuing Event of Default shall have been waived in accordance with the
provisions of this Agreement, such increase in the Applicable Margin shall
cease to have effect forthwith but without prejudice to any further or
future operation of the provisions of this subclause.
Clause 4. CERTAIN LENDING PROVISIONS.
4.1 DETERMINATION OF INTEREST RATE. Each determination of any interest
rate by the Agent pursuant to the terms hereof with respect to each Advance
shall be conclusive in the absence of manifest error.
4.2 ALTERNATIVE INTEREST RATE. Except as otherwise provided in this
Agreement, if the Agent shall determine that adequate and reasonable methods do
not exist for ascertaining LIBOR on any Rate-fixing Day, the Agent will so
notify the Borrower and the Banks as soon as practicable on such day, which
notice shall be conclusive and binding, and then (A) the Interest Period for the
applicable LIBOR Advance shall be one month (the "ALTERNATIVE INTEREST PERIOD")
and (B) the Agent shall calculate interest on the principal amount of such LIBOR
Advance by substituting for LIBOR the rate per annum determined by the Agent in
consultation with the Banks to be that which fairly expresses as a percentage
per annum the cost to the Banks of funding such principal amount, from whatever
source the Agent may select in good faith, during such Alternative Interest
Period, as certified by the Agent to the Borrower and the Banks.
4.3 REPAYMENTS AND PREPAYMENTS OF THE ADVANCES, ETC.
(A) The Borrower hereby absolutely and unconditionally promises to
pay to the Agent for the account of the Agent, the Banks, the Issuing Bank
and the Overdraft Bank, as the case may be, on the Commitment Expiry Date
(i) the Total Outstandings, the Total
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Outstanding Reimbursement Obligations and all other Obligations and (ii)
an amount equal to the Maximum Collateral Instrument drawings to be held
as cash collateral for any and all Reimbursement Obligations arising
thereafter.
(B) The Borrower may, pursuant to this subclause (B), by providing
one (1) Business Day's prior written notice to the Agent, elect to repay
the principal of any LIBOR Advance outstanding in full or in part without
premium or penalty, PROVIDED THAT (I) any such repayment may be made only
on the last day of the Interest Period relating to such LIBOR Advance, and
(II) the amount of any partial repayment of the unpaid principal of any
Advance pursuant to this subclause (B) shall be in a principal amount of
not less than (pound)250,000.
(C) The Borrower irrevocably agrees to permit the Overdraft Bank on
any Business Day to reduce all or a portion of the Overdraft in an amount
equal to the amount of any cleared funds credited on such Business Day to
the Borrower's current account with the Overdraft Bank. For the avoidance
of doubt, repayment pursuant to this subclause (C) shall not prohibit the
Borrower's continued utilisation of the Overdraft subject to the terms and
conditions of this Agreement.
(D) The obligation of the Borrower to repay all amounts borrowed by
it hereunder, all interest thereon and all other amounts payable by it in
respect thereof shall be evidenced by this Agreement, it being the
intention of the parties hereto that the Borrower's obligation with
respect to any amounts owed by the Borrower hereunder is evidenced only as
stated herein and in the other Loan Documents and not by separate
promissory notes or other instruments.
4.4 INDEMNITIES FROM THE BANKS.
(A) Each Bank irrevocably and unconditionally undertakes to pay to
the Agent for the account of the Issuing Bank on demand made by the
Issuing Bank through the Agent:
(I) its Commitment Percentage of each amount which is
expressed to be payable by the Borrower to the Agent under Clauses
2A and 2B hereof and its Commitment Percentage of any amount
otherwise demanded of or expressed to be payable by the Borrower for
the account of the Issuing Bank by way of provision of cash cover
for any Collateral Instrument and which in either case the Borrower
fails to pay; and
(II) such additional amount as shall be necessary to reimburse
the Issuing Bank for its cost of funding the amount
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payable by such Bank as mentioned in (I) above during the period beginning
on the date the amount was due from the Borrower and ending on the date
such Bank makes payment of the same,
and agrees that neither the Issuing Bank nor the Agent shall be obliged to
make any demand on or take any proceedings against the Borrower or any
other Person before making demand on such Bank hereunder.
(B) Each Bank irrevocably and unconditionally undertakes to pay to
the Agent for the account of the Overdraft Bank on demand made by the
Overdraft Bank through the Agent:
(I) its Commitment Percentage of the debit balance from time to
time in the Borrower's current account maintained with the Overdraft
Bank which the Borrower fails to pay together with interest which
has accrued with respect thereto; and
(II) such additional amount as shall be necessary to reimburse
the Overdraft Bank for its cost of funding the amount payable by
such Bank as mentioned in (I) above during the period beginning on
the date the amount was due from the Borrower and ending on the date
such Bank makes payment of the same,
and agrees that neither the Overdraft Bank nor the Agent shall be obliged
to make any demand on or take any proceedings against the Borrower or any
other person before making demand on such Bank hereunder.
(C) Each Bank irrevocably and unconditionally undertakes to pay to
the Agent for the account of the Overdraft Bank on demand made by the
Overdraft Bank through the Agent at any time after an Event of Default has
occurred and is continuing and has not been waived, its Commitment
Percentage of the debit balance from time to time in the Borrower's
current account maintained with the Overdraft Bank, and any such payment
shall be in satisfaction PRO TANTO of the undertakings of such Bank
contained in Clause 4.4(B) above.
(D) If a Bank (a "DEFAULTING BANK") fails to make payment on the due
date therefor of any amount due from it for the account of any Person
pursuant to Clauses 4.4(A), 4.4(B) and 4.4(C) hereof (a "RELEVANT AMOUNT")
then until such Person has received payment of that amount in full (and
without prejudice to any other rights or remedies of the Agent in respect
of such failure) such Person shall be entitled to receive any interest or
commission (as the case may be) which such Defaulting Bank would otherwise
have been entitled to receive in respect of the
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Advance or the Collateral Instrument in respect of which the relevant
amount is payable.
(E) The Borrower irrevocably and unconditionally undertakes to
reimburse to each Bank any amount paid by such Bank pursuant to Clauses
4.4(A), 4.4(B) and 4.4(C) hereof and such amount shall be immediately due
from the Borrower to such Bank on the day such amount is paid by such Bank
to the Agent and to indemnify and hold such Bank harmless against all
actions, proceedings, liabilities, claims, demands, reasonable costs and
expenses of whatsoever nature and howsoever occurring which such Bank may
properly incur, suffer or sustain by reason of its payment of such amount.
4.5 PAYMENTS AND COMPUTATIONS.
(A) Sterling is the currency of account and payment for each and
every sum at any time due from the Borrower hereunder; PROVIDED THAT:
(I) each payment in respect of costs and expenses shall
be made in the currency in which the same were incurred; and
(II) any amount expressed to be payable in a currency other
than Sterling (including without limitation Collateral Instruments
issued in an Optional Currency) shall be paid in that other
currency.
(B) Interest and fees payable by the Borrower shall be paid
to the Agent as follows:
(I) as to interest due with respect to the Overdraft, such
interest shall be for the account of the Overdraft Bank, PROVIDED
THAT to the extent that a Bank has paid to the Overdraft Bank any
amount in respect of the Overdraft pursuant to Clause 4.4 hereof,
interest to the extent as aforesaid on such amount shall thereafter
accrue for the account of such Bank;
(II) as to fees due with respect to Collateral Instruments
issued hereunder, such fees shall be for the account of the Issuing
Bank and the Banks, as the case may be, pursuant to the provisions
of Clause 2B.3 hereof; and
(III) as to all interest (other than that specifically
provided for in subclause (I) above), such interest shall be for the
account of the Banks in the proportions of their respective
Commitment
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Percentages from time to time in the Advance in respect of which such
interest is being paid.
(C) If any sum due from the Borrower under this Agreement or any
order or judgment given or made in relation hereto has to be converted
from the currency (the "FIRST CURRENCY") in which the same is payable
hereunder or under such order or judgment into another currency (the
"SECOND CURRENCY") for the purpose of (I) making or filing a claim or
proof against the Borrower, (II) obtaining an order or judgment in any
court or other tribunal or (III) enforcing any order or judgment given or
made in relation hereto, the Borrower shall indemnify and hold harmless
each of the Persons to whom such sum is due from and against any loss
suffered as a result of any discrepancy between (A) the rate of exchange
used for such purpose to convert the sum in question from the first
currency into the second currency and (B) the rate or rates of exchange at
which such Person may in the ordinary course of business purchase the
first currency with the second currency upon receipt of a sum paid to it
in satisfaction, in whole or in part, of any such order, judgment, claim
or proof.
(D) On each date on which this Agreement requires an amount to be
paid by the Borrower or any of the Banks hereunder, the Borrower or, as
the case may be, such Bank shall make the same available to the Agent to
such account of the Agent as the Agent shall have notified the Borrower or
such Bank, as the case may be. Each such payment which is made for the
account of a Person other than the Agent shall be made in time to enable
the Agent to make available such other Person's portion thereof for value
the same day and in any event no later than 12:00 noon (London time).
(E) Where a sum is to be paid hereunder to the Agent for account of
another Person, the Agent shall not be obliged to make the same available
to that other Person until it has been able to establish to its
satisfaction that it has actually received such sum, but if it does so and
it proves to be the case that it has not actually received the sum it paid
out, then the Person to whom such sum was so made available shall on
request refund the same to the Agent together with an amount sufficient to
reimburse the Agent for any amount it may have been required to pay out by
way of interest on moneys borrowed to fund the sum in question during the
period beginning on the due date for payment thereof and ending on the
date on which it receives the same.
(F) If any sum would, but for the provisions of this subclause (f),
become due and payable hereunder on a day which is not a Business Day,
then such sum shall become due and payable on the Business Day
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next succeeding the day on which such sum would otherwise have become due
and payable hereunder.
(G) All computations of interest payable hereunder shall be made by
the Agent on the basis of the actual number of days elapsed and on a
365-day year.
4.6 PAYMENTS TO BE FREE OF DEDUCTIONS.
(A) All payments by the Borrower under this Agreement shall be made
without set-off or counterclaim and free and clear of and without
deduction for any Taxes, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any country or any political subdivision
thereof or taxing or other authority therein unless the Borrower is
compelled by law to make such deduction or withholding. If any such
obligation is imposed upon the Borrower with respect to any amount payable
by it hereunder, the Borrower will pay to the Agent for the account of the
Agent, the Banks, the Issuing Bank or the Overdraft Bank, as the case may
be, on the date on which the said amount becomes due and payable
hereunder, such additional amount as shall be necessary to enable the
Agent, the Banks, the Issuing Bank or the Overdraft Bank to receive the
same net amount which they would have received on such due date had no
such obligation been imposed upon the Borrower.
(B) In the event that any of the Agent, the Banks, the Issuing Bank
or the Overdraft Bank actually receives from any such taxing or other
authority any credit, repayment, relief or rebate in respect of any such
deduction or withholding for which the Borrower has paid any of them an
additional amount pursuant to Clause 4.6(A) above, the Agent, such Bank,
the Issuing Bank or the Overdraft Bank, as the case may be, will promptly
after the date of such credit, repayment, relief or rebate pay to the
Borrower the amount of such credit, repayment, relief or rebate, less the
aggregate amount of any costs or expenses which the Agent, such Bank, the
Issuing Bank or the Overdraft Bank, as the case may be, shall have
sustained or incurred in connection with or as a result of the obtaining
of such credit, repayment, relief or rebate, but not including the normal
expenses incurred by the Agent, such Bank, the Issuing Bank or the
Overdraft Bank, as the case may be, in filing those tax forms it would
otherwise have been required to file without regard to such credit,
repayment, relief or rebate and provided that if any of the Agent, the
Banks, the Issuing Bank or the Overdraft Bank, as the case may be, has
made a payment to the Borrower pursuant to this Clause 4.6(B) on the basis
of any credit, repayment, relief or rebate which is subsequently
disallowed, then the Borrower shall repay,
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immediately upon demand, the amount of such payment. Nothing herein
contained shall interfere with the right of any of the Agent, the Banks,
the Issuing Bank or the Overdraft Bank, as the case may be, to arrange its
tax affairs in whatever manner it thinks fit and, in particular, none of
them shall be under any obligation to claim relief from tax on its
corporate profits or from any similar tax liability, or to claim such
relief in priority to any other claims of relief, credits or deductions
available to it or to disclose details of its tax affairs.
(C) Each of the Agent, the Banks, the Issuing Bank and the Overdraft
Bank hereby represents and warrants to the Borrower that it is on the date
hereof a Qualifying Bank and agrees to advise the Borrower promptly if at
any time it ceases to be a Qualifying Bank.
(D) If otherwise than as a result of the introduction of, amendment
to, or any change in the interpretation, administration or application of,
any law or regulation or any practice or concession of the United Kingdom
Inland Revenue occurring after the date of this Agreement, any of the
Agent, the Banks, the Issuing Bank or the Overdraft Bank is not or ceases
to be a Qualifying Bank, the Borrower shall not be liable to pay to such
Person under this Clause 4.6 any amount in respect of taxes levied or
imposed by any taxing authority of or in the United Kingdom in excess of
the amount the Borrower would have been obliged to pay if such Person had
been, or had not ceased to be, a Qualifying Bank.
4.7 ADDITIONAL COSTS, CHANGES IN CIRCUMSTANCES, ETC.
(a) Anything herein to the contrary notwithstanding, if any law
which becomes effective or is implemented on or after the date hereof
(which expression, as used in this Agreement, includes statutes and rules
and regulations thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or official charged
with the administration or the interpretation thereof and requests,
directives, instructions and notices at any time or from time to time
heretofore or hereafter made upon or otherwise issued to any Bank, whether
in its capacity as a Bank or as the Agent, the Overdraft Bank or the
Issuing Bank hereunder, by any central bank or other fiscal, monetary or
other authority, whether or not having the force of law) shall (I) subject
such Bank to any Tax, charge, fee, deduction or withholding of any nature
with respect to this Agreement, the amount of its Commitment, or the
payment to such Bank of any amounts due to it hereunder, or (II)
materially change the basis of taxation of payments to such Bank (as
determined by such Bank) of principal or interest or any other amount
payable to such Bank hereunder, or (III) impose or increase or render
applicable any special or
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supplemental deposit or reserve or similar requirements or assessment
against assets held by, or deposits in or for the account of, or any
eligible liabilities of, or advances by such Bank in respect of the
transaction or transactions contemplated herein, or (IV) impose on such
Bank any other condition or requirement with respect to this Agreement or
its Commitment, and the result of any of the foregoing is (A) to increase
the cost to such Bank of making, funding or maintaining all or any part of
the Advances or issuing, extending or renewing any Collateral Instrument,
or (B) to reduce the amount of principal, interest or other amount payable
to such Bank hereunder, or (C) to require such Bank to make any payment or
to forego any interest or other sum payable hereunder, the amount of which
payment or foregone interest or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Bank
from the Borrower hereunder, then, and in each such case not otherwise
provided for in Clause 4.6 or any other Clause hereunder, the Borrower
will pay to such Bank, within 30 days of the date of an invoice
(accompanied by calculations of such additional amounts in reasonable
detail) issued by such Bank to the Agent and the Borrower with respect
thereto, such additional amounts as will be sufficient to compensate such
Bank for such additional cost, reduction, payment or foregone interest or
other sum. Such calculations as to amounts owed by the Borrower referred
to in the preceding sentence shall be conclusive and binding upon the
Borrower, absent manifest error.
(B) If any law which becomes effective or is implemented on or after
the date hereof or any governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) or the interpretation
thereof by a court or governmental authority with appropriate jurisdiction
imposes or increases the amount of capital required or expected to be
maintained by any Bank, whether in its capacity as a Bank or as the Agent,
the Overdraft Bank or the Issuing Bank hereunder, or any corporation
controlling any Bank and any Bank determines that the amount of capital
required is increased by or based upon the existence of the credit
facilities established hereunder or any Advance made pursuant hereto then
such Bank shall notify the Agent and the Borrower of such fact showing the
calculation thereof in reasonable detail. To the extent that the costs of
such increased capital requirements are not reflected in the calculation
of LIBOR or the Sterling Base Rate, as the case may be, or in commissions
or fees payable by the Borrower hereunder (and are not otherwise adjusted
by the provisions of Clause 4.6 or any other Clause hereof), the Borrower
and such Bank shall thereafter attempt to negotiate in good faith an
adjustment within 30 days of the day on which the Borrower receives such
notice. If no such adjustment is agreed pursuant thereto within such time,
then commencing on the date of such notice (but not earlier
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than the effective date of any such change), the amounts payable by the
Borrower hereunder shall increase by an amount which will, in the
reasonable determination of such Bank in consultation with the Agent,
provide adequate compensation. Each Bank shall allocate such cost
increases among its customers in good faith and on an equitable basis.
4.8 ILLEGALITY. If, at any time, it is or becomes unlawful for a Bank to
maintain its Commitment hereunder or in its capacity as a Bank or as the Agent,
the Overdraft Bank or the Issuing Bank hereunder to make or perform any other
obligation hereunder in relation to any Advance made or to be made or any
Collateral Instrument issued, extended or renewed then such Bank shall, promptly
after becoming aware of the same, deliver to the Borrower through the Agent a
certificate to that effect and:
(A) such Bank shall not thereafter be obliged to maintain its
Commitment hereunder or to participate in any Advance or to issue or
participate in, as the case may be, any Collateral Instruments;
(B) if the Agent on behalf of such Bank so requires, the Borrower
shall within 30 days of demand by the Agent (or such earlier date as may
be required by applicable law affecting such Bank) repay or provide cash
collateral, as the case may be, to the Agent for the account of such Bank
an amount equal to such Bank's Commitment Percentage in any outstanding
Advances and any outstanding Collateral Instruments together with accrued
interest thereon and all other amounts owing to such Bank hereunder,
whereupon such Bank's Commitment Percentage shall be reduced to zero and
the Maximum Commitment Amount shall be reduced by the amount of such
Bank's terminated Commitment; and
(C) such Bank shall use reasonable efforts (consistent with
applicable law and regulatory restrictions) in consultation with the
Borrower to mitigate the consequences to the Borrower of such illegality,
including the transfer of its rights and obligations hereunder to an
Eligible Transferee in accordance with Clause 12.2 hereof, provided that
no such Bank shall have any obligation to take any steps that in its
opinion would or could have an adverse effect on such Bank.
4.9 INDEMNIFICATION. In the event that the Borrower shall at any time (A)
repay or prepay any principal of any LIBOR Advance on a date other than the last
day of the Interest Period with respect thereto, whether such repayment or
prepayment is pursuant to Clauses 2A or 4 hereof, as a result of acceleration or
otherwise, or (B) for any reason fail to borrow any LIBOR Advance as requested,
the Borrower shall, within five (5) days of demand by the Agent accompanied by
calculations in reasonable detail pay to the Agent for the account of the Banks
or the Agent, as the case may be, any amounts
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required to compensate the Banks or the Agent for any and all losses, costs and
expenses of the Banks or the Agent in respect of the Borrower's payment,
prepayment or failure to borrow, on the date of such payment or failure to
borrow, including, but not limited to, compensation relating to liquidation or
re-employment of deposits or other funds acquired by the Banks or the Agent to
fund or maintain such Advance. Such compensation may include, without
limitation, an amount equal to the excess, if any, of (I) the amount of interest
which would have accrued on the amount so paid or prepaid or not borrowed for
the period from the date of such payment or prepayment or failure to borrow to
the last day of the then current Interest Period for such Advance (or, in the
case of a failure to borrow, the Interest Period for such Advance which would
have commenced on the date of such failure to borrow) at the applicable rate of
interest for such Advance provided for herein, over (II) the amount of interest
(as reasonably determined by the Agent, or the Banks, as the case may be) which
would have been paid on deposits of comparable amounts having terms comparable
to such period placed with it by leading banks in the relevant market. Any
calculations made by the Agent pursuant to the terms of this Clause 4.9
regarding amounts owed by the Borrower shall be conclusive and binding on the
Borrower and the Banks absent manifest error.
Clause 5. CONDITIONS PRECEDENT; SECURITY.
5.1 DOCUMENTARY CONDITIONS PRECEDENT. The obligations of the Agent, the
Banks, the Issuing Bank and the Overdraft Bank to make the first Advance to the
Borrower or to issue the first Collateral Instrument, as the case may be, under
this Agreement are subject to the condition precedent that the Agent has
notified the Borrower, the Banks, the Issuing Bank and the Overdraft Bank that
it has received all of the documents set out in THE THIRD SCHEDULE hereto in
form and substance satisfactory to it.
5.2 FURTHER CONDITIONS PRECEDENT. The obligations of the Agent, each Bank,
the Issuing Bank and the Overdraft Bank, as the case may be, in respect of the
making of each Advance, and the commencement of each succeeding Interest Period
with respect to any outstanding Advance or the issuance, extension or renewal of
any Collateral Instrument under this Agreement are subject to the further
conditions precedent that:
(A) the representations and warranties in Clause 6 hereof and all
other representations in writing made by or on behalf of the Borrower or
any of its Subsidiaries to the Agent, the Banks, the Issuing Bank and/or
the Overdraft Bank in connection with this Agreement or any of the Loan
Documents shall be true as of the date on which they were made and shall
also be true at and as of such time of the making of the Advance or the
issuance, extension or renewal of the Collateral
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Instrument, as the case may be, with the same effect as if made at and as
of such time; and
(B) no event shall have occurred and be continuing, and no condition
shall exist, which constitutes an Event of Default or an Unmatured Event
of Default, or which following the making of the Advance or the issuance,
extension or renewal of the Collateral Instruments, as the case may be,
would constitute an Event of Default or an Unmatured Event of Default.
5.3 SECURITY; PARENT GUARANTEE. The Obligations shall be secured by the
Security Documents, and shall be unconditionally and irrevocably guaranteed in
full by the Parent pursuant to a guarantee of even date herewith in form and
substance satisfactory to the Banks and the Agent (the "PARENT GUARANTEE") and
by Holdings pursuant to a guarantee of even date herewith in form and substance
satisfactory to the Banks and the Agent (the "HOLDINGS GUARANTEE").
Clause 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Agent, the Banks, the Issuing
Bank and the Overdraft Bank (each such representation and warranty being deemed
repeated upon the making of each Advance, upon the issuance, extension or
renewal of any Collateral Instrument and upon the commencement of each
succeeding Interest Period with respect to any outstanding LIBOR Advance) that:
6.1 DUE INCORPORATION. The Borrower is a limited liability company duly
incorporated and registered under the laws of England. Each of the Borrower's
Subsidiaries is a corporation duly organised, validly existing and in good
standing under the laws of the jurisdiction of its incorporation.
6.2 CAPACITY. Each of the Borrower and its Subsidiaries has full power and
authority to execute and deliver and to perform and observe the provisions of
each of the Loan Documents to which it is a party and to carry out the
transactions contemplated thereby.
6.3 AUTHORITY AND ENFORCEABILITY. The execution, delivery and performance
by each of the Borrower and its Subsidiaries of each of the Loan Documents to
which it is a party have been duly authorised by all necessary corporate action,
and do not and will not require any registration with, consent or approval of,
notice to, or any action by, any Person, except for satisfaction of the
requirements of Section 395 of the Companies Xxx 0000, Section 2 of the Land
Charges Xxx 0000 and Section 26 of the Land Registration Xxx 0000, where
applicable, in relation to the Security Documents. Each of the Loan Documents to
which the Borrower or any of its
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Subsidiaries is a party constitutes the legal, valid and binding obligations of
the Borrower or such Subsidiary, as the case may be, enforceable against it in
accordance with its terms.
6.4 COMPLIANCE WITH OTHER INSTRUMENTS. The execution and delivery of each
of the Loan Documents to which the Borrower or any of its Subsidiaries is a
party and compliance with their terms will not (A) result in a breach of (I) any
of the terms or conditions of, or result in the imposition of any lien, charge
or encumbrance upon any properties of the Borrower or any of its Subsidiaries
pursuant to, or constitute a default (with due notice or lapse of time or both)
or result in an occurrence of an event for which any holder or holders of
Indebtedness may declare the same due and payable under, any indenture,
agreement, order, judgment or instrument under which the Borrower or any of its
Subsidiaries is a party or by which the Borrower or any of its Subsidiaries or
its or their property may be bound or affected, or (II) the Memorandum and
Articles of Association or other constitutive documents of the Borrower or any
of its Subsidiaries or any shareholder's resolution of the Borrower or any of
its Subsidiaries, or (B) violate any existing provision of law applicable to the
Borrower or any of its Subsidiaries.
6.5 NO UNMATURED EVENTS OF DEFAULT OR EVENTS OF DEFAULT. No Unmatured
Event of Default or Event of Default has occurred and is continuing.
6.6 COLLATERAL. All of the Obligations will at all times from and after
the execution and delivery of each of the Security Documents be entitled to all
of the benefits of and be secured by each of such Security Documents in
accordance with the terms thereof.
6.7 DISCLOSURE. None of the representations or warranties made by the
Borrower or any of its Subsidiaries in any of the Loan Documents as of the date
of such representations and warranties, and none of the statements contained in
each exhibit or report furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Agent or any of the Banks in connection with any of the Loan
Documents, contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements
made therein, in the light of the circumstances under which they are made, not
misleading. There is no fact known to the Borrower which materially adversely
affects, or which would be reasonably likely in the future to materially
adversely affect, the financial position, business, operations, or affairs of
the Borrower and its Subsidiaries taken as a whole.
6.8 BANK ACCOUNTS. All accounts maintained by the Borrower or any of its
Subsidiaries with any bank or similar institution are described in THE FOURTH
SCHEDULE, which such schedule shows the account holder, the address
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at which such account is maintained, the account number, the type of account and
the currency in which such account is maintained.
6.9 REPRESENTATIONS AND WARRANTIES IN THE PARENT LOAN AGREEMENT. The
Borrower is familiar with all representations and warranties made by the Parent
with respect to itself and its Subsidiaries in the Parent Loan Agreement, and
all such representations and warranties are true and correct insofar as they
apply to the Borrower as a Subsidiary of the Parent. All such representations
and warranties are hereby incorporated by reference and are hereby deemed to
made by the Borrower from time to time as if set forth herein in full.
Clause 7. CERTAIN AFFIRMATIVE COVENANTS.
The Borrower covenants and agrees that, until the later of (A) the
Commitment Expiry Date, or (B) the date upon which all of the Obligations shall
have been paid in full and the Commitments have been terminated, the Borrower
will (and to the extent applicable to any Subsidiary, will ensure like
compliance by each such Subsidiary):
7.1 NOTICE OF DEFAULT, ETC. Promptly give notice in writing to the Agent of
(A) the occurrence of any Event of Default or any continuing Unmatured Event of
Default under this Agreement, (B) any technical, legal or administrative event
(including without limitation, actual or threatened litigation) which has
occurred or it is aware will occur and which is reasonably likely to materially
prejudice the financial or economic situation of the Borrower or any of its
Subsidiaries, (C) the occurrence of any event in relation to it which is
reasonably likely to materially adversely affect the rights of the Agent or any
of the Banks under, or the ability of any member of the Affiliate Group to
perform its respective obligations under, the Loan Documents to which it is a
party, (d) any set off, withholding or other claim or dispute of which it is
aware affecting any of the collateral in any material respect, (E) any
litigation or proceedings threatened in writing or any pending litigation of
which it is aware or proceedings affecting, or involving as a party or potential
party thereto the Borrower or any of its Subsidiaries and that could reasonably
be expected to have a materially adverse effect on the Borrower or any of its
Subsidiaries and (F) any judgment not covered by insurance, final or otherwise,
against the Borrower or any of its Subsidiaries in an amount in excess of
(pound)15,000, which is not discharged within 10 days.
7.2 EXPENSES. Promptly pay (without duplication of any other
expenses to be paid by the Borrower hereunder):
(A) all reasonable out-of-pocket expenses of the Agent (including,
but not limited to, reasonable fees and disbursements of the Agent's
counsel as well as those fees and disbursements arising in connection
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with appraisals and environmental site assessments) together with any
applicable VAT, incident to the preparation, execution and delivery of the
Loan Documents, any amendments or waivers to any of the Loan Documents,
the protection of the rights of the Agent and the Banks under the Loan
Documents and the enforcement of the Obligations, whether by judicial
proceedings or otherwise;
(B) in addition to and without limitation of the foregoing, all
reasonable costs incurred by or on behalf of the Agent in connection with
the monitoring or examination of the assets of the Borrower or its
Subsidiaries, including all such costs incurred by the Agent's employees
or professional advisers engaged in such monitoring or examination; and
(C) all stamp, registration and other taxes and fees (including VAT)
to which this Agreement and/or any other Loan Document or any judgment
given in connection herewith or therewith is or at any time may be subject
and shall, from time to time on demand of the Agent, indemnify the Agent,
against any liabilities, costs, claims and expenses resulting from any
failure to pay or any delay in paying any such tax.
If the Borrower fails to perform any of its obligations under this Clause 7.2
each Bank shall, in accordance with its respective Commitment Percentage,
indemnify the Agent against any loss incurred by it as a result of such failure
and the Borrower shall forthwith reimburse each Bank for any payment made by it
pursuant hereto. The obligations of the Borrower under this Clause 7.2 shall
survive the repayment of the Advances.
7.3 FINANCIAL RECORDS. Keep, and cause each of the Subsidiaries at all
times to keep, books of record and accounts in which proper entries will be made
of its financial transactions in accordance with generally accepted accounting
principles in the United Kingdom, applied on a consistent basis.
7.4 USE OF PROCEEDS. Use the Advances made available hereunder and the
Collateral Instruments issued, extended or renewed hereunder solely for the
purposes specified in Clause 1.3. None of the Advances or the Collateral
Instruments shall be used in any way which infringes Section 151 of the
Companies Xxx 0000 or any law of any other relevant jurisdiction which restricts
the incurring of indebtedness and/or the creation of security by the Borrower or
its Subsidiaries in connection with the acquisition, directly or indirectly, of
ownership or control of the Borrower or its Subsidiaries. Without affecting the
obligations of the Borrower in any way, no Bank shall be bound to monitor or
verify the application of any Advance.
7.5 DELIVERY OF MONTHLY MAXIMUM AMOUNT CERTIFICATE. Deliver to the Agent
and each of the Banks within five (5) Business Days prior to the end of
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each calendar month a certificate in the form of EXHIBIT G to the Parent Loan
Agreement, duly signed on behalf of the Borrower and the Parent and setting
forth the maximum amount of the credit facilities available hereunder during the
next calendar month (the "MONTHLY MAXIMUM AMOUNT") in accordance with Section
9.4(i) of the Parent Loan Agreement.
7.6 FURTHER ASSURANCES. At any time or from time to time execute and
deliver and cause each of the Subsidiaries to execute and deliver such further
instruments and take such further action as may reasonably be requested by the
Agent, further and more perfectly to effect the purposes of the Loan Documents,
including without limitation, such further Security Documents and documents
evidencing good and marketable title with respect to the properties and assets
of the Borrower and its Subsidiaries now owned or acquired after the date
hereof.
7.7 AFFIRMATIVE COVENANTS IN THE PARENT LOAN AGREEMENT. Comply with all
affirmative covenants made by the Parent in the Parent Loan Agreement with
respect to itself and its Subsidiaries insofar as they apply to the Borrower as
a Subsidiary of the Parent. The Borrower is familiar with all such affirmative
covenants, which are hereby incorporated by reference and are hereby deemed to
be made by the Borrower as if set forth herein in full.
Clause 8. CERTAIN NEGATIVE COVENANTS.
The Borrower covenants and agrees that, until the later of (A) the
Commitment Expiry Date, or (B) the date upon which all of the Obligations shall
have been paid in full and the Commitments have been terminated, the Borrower
will not (and to the extent applicable to any Subsidiary, will ensure that each
such Subsidiary will not):
8.1 DISTRIBUTIONS. Make, or permit any of the Subsidiaries to
make, without the approval of all the Banks, any Distribution, except
Distributions by any Subsidiary to the Borrower.
8.2 BANK ACCOUNTs. Open or establish any bank accounts other than those
listed on THE FOURTH SCHEDULE without the prior written consent of the Agent.
8.3 NEGATIVE COVENANTS IN THE PARENT LOAN AGREEMENT. Fail to comply with
all negative covenants made by the Parent in the Parent Loan Agreement with
respect to itself and its Subsidiaries insofar as they apply to the Borrower as
a Subsidiary of the Parent. The Borrower is familiar with all such negative
covenants, which are hereby incorporated by reference and are hereby deemed to
be made by the Borrower as if set forth herein in full.
Clause 9. EVENTS OF DEFAULT; ACCELERATION.
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9.1 EVENTS OF DEFAULT. If any of the following events shall occur:
(A) the Borrower shall fail to pay when due any amount of principal
of, or interest on, any Advance, when the same becomes due (whether at
maturity, by reason of acceleration or otherwise); or
(B) the Borrower shall fail to pay any amount (other than those
specified in (a) above) payable hereunder or under any of the other Loan
Documents; or
(C) the Borrower or any of its Subsidiaries shall fail to
comply with any of its covenants contained in Clauses 7 and 8; or
(D) any member of the Affiliate Group shall fail to comply with any
term, covenant or agreement contained in this Agreement (other than those
specified in (A), (B) or (C) above) or in any of the other Loan Documents
to which it is a party and such failure continues for fifteen (15) days
after written notice of such failure has been given to such Person by the
Agent; or
(E) any representation or warranty made by any member of the
Affiliate Group herein, in any of the Loan Documents, or in any writing
delivered or furnished pursuant to this Agreement, or otherwise in
connection with the transactions contemplated hereby or any report,
certificate, or financial statement furnished in connection with this
Agreement, shall prove to have been false or incorrect in any material
respect when made, repeated, or deemed made; or
(F) any Event of Default under and as defined in the Parent
Loan Agreement shall have occurred and be continuing;
(G) any member of the Affiliate Group shall be unable to pay its
debts as they fall due or is deemed to be unable to pay its debts as they
fall due within the meaning of Section 123 of the Insolvency Xxx 0000 (as
that section may be amended by order under Section 416 of the Insolvency
Act 1986) or admits its inability to pay its debts as they fall due, or
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 it begins negotiations with one or more of its creditors
with a view to avoiding, or in the expectation of, insolvency; or
(H) any petition is presented or meeting is convened with a view to
a general composition, assignment or arrangement with all or any class of
creditors of any member of the Affiliate Group, or a meeting of
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any member of the Affiliate Group is convened for the purpose of
considering any resolution for its winding-up or for its administration or
any such resolution is passed, or any Person presents a petition for the
winding-up or for the administration of any member of the Affiliate Group,
or an order for the winding-up or administration of any member of the
Affiliate Group is made, or any other legal process is commenced with a
view to the rehabilitation, administration, liquidation, bankruptcy,
winding-up or dissolution of any member of the Affiliate Group or to any
other insolvency proceedings involving any member of the Affiliate Group
and, in the case of a petition or legal process (other than a petition for
the administration of any member of the Affiliate Group) instituted by a
Person who is not a member of the Affiliate Group (as the case may be),
such petition or legal process has not been dismissed within thirty (30)
consecutive calendar days; or
(I) any liquidator, receiver, administrative receiver,
administrator, trustee or the like is appointed in respect of any member
of the Affiliate Group or of the whole or a substantial part of its
assets, or one or more directors of any member of the Affiliate Group
requests the appointment of any such Persons, or any attachment,
sequestration, distress or execution affects all or substantially all of
the assets of any member of the Affiliate Group and is not discharged or
stayed within ten (10) consecutive calendar days; or
(J) any event or series of events occurs after the date hereof which
would be reasonably likely to materially adversely effect the ability of
any member of the Affiliate Group to pay or perform its obligations under
this Agreement or any of the other Loan Documents to which it is a party;
(K) the Parent shall at any time beneficially own less than 100% of
the issued share capital of Holdings or Holdings shall at any time
beneficially own less than 100% of the issued share capital of the
Borrower; or
(L) the Parent shall default in the payment or performance of any of
its obligations under the Parent Guarantee, or Holdings shall default in
the payment or performance of any of its obligations under the Holdings
Guarantee;
THEN, or at any time thereafter while such event shall be continuing:
(1) where the Borrower or any of its Subsidiaries is in default under the
provisions of Clauses 9.1(G), (H) or (I) the Commitments shall automatically
terminate, and the entire unpaid principal amount of all of the Advances, all
interest accrued and unpaid thereon, all unsatisfied
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Reimbursement Obligations and all fees and other amounts payable hereunder shall
automatically become and be forthwith due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived
by the Borrower and the Borrower shall be immediately obligated to provide cash
collateral to the Agent in an amount equal to the Maximum Collateral Instrument
Drawings; and
(2) in any case referred to in this Clause 9.1 other than in Clauses
9.1(G), (H) or (I) the Agent may, and upon the request of the Majority Banks
shall, by written notice to the Borrower, terminate all or part of the
Commitments and/or declare all or part of the unpaid principal amount of all of
the Advances, all interest accrued and unpaid thereon, all unsatisfied
Reimbursement Obligations and all fees and other Obligations to be forthwith due
and payable, whereupon the same shall become immediately due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower, and the Borrower shall on demand
provide cash collateral to the Agent in an amount equal to the Maximum
Collateral Instrument Drawings.
No remedy herein conferred upon the Agent, the Banks, the Issuing Bank or
the Overdraft Bank is intended to be exclusive of any other remedy and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute
or any other provision of law.
9.2 DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that, following the
occurrence or during the continuance of any Unmatured Event of Default or Event
of Default, the Agent, any Bank, the Issuing Bank or the Overdraft Bank, as the
case may be, receives any monies in connection with the enforcement of any of
the Security Documents, or otherwise with respect to the realisation upon any of
the collateral, such monies shall be distributed for application as follows:
(A) first, to the payment of, or (as the case may be) the
reimbursement of, the Agent, the Banks, the Issuing Bank and the Overdraft
Bank for or in respect of all reasonable costs, expenses, disbursements
and losses (excluding overhead or general payroll or administrative
expenses) which they shall have incurred or sustained in connection with
the collection of such monies, or the exercise, protection or enforcement
of all or any of their rights, remedies, powers and privileges under this
Agreement or any of the other Loan Documents or in respect of the
collateral, and to support the provision of adequate indemnity to the
Agent, the Banks, the Issuing Bank and the Overdraft Bank against all
taxes or liens which by law shall have, or may have, priority over their
rights to such monies;
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(B) second, to the satisfaction of all other Obligations in
the following order:
(I) to pay all commitment and other fees owing and
outstanding; then
(II) to pay accrued and outstanding interest pro rata
in accordance with Clause 4.5(b) hereof; then
(III) to pay the principal amount of all Advances and
unsatisfied Reimbursement Obligations pro rata amongst the Banks,
the Issuing Bank and the Overdraft Bank; then
(IV) at the Agent's discretion, to be held as cash collateral
for any Obligations not then due and payable (including without
limitation Obligations with respect to outstanding Collateral
Instruments); and
(C) third, the excess, if any, shall be returned to the Borrower or
to such other Persons as are entitled thereto.
Clause 10. SET-OFF.
Regardless of the adequacy of any collateral for the Obligations, during
the continuance of any Event of Default, any deposits or other sums credited by
or due from any of the Banks (including for purposes of this Clause 10, the
Agent, the Issuing Bank and the Overdraft Bank) to the Borrower or any of its
Subsidiaries and any securities or other property of the Borrower or any of its
Subsidiaries in the possession of such Bank may be applied to or set off against
the payment of the Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower or such Subsidiary, as the case may be, to
such Bank. Each of the Banks agrees with each other Bank that (A) if an amount
to be set off is to be applied to Indebtedness of the Borrower or such
Subsidiary as the case may be, to such Bank, other than in respect of the
Obligations, such amount shall be applied rateably to such other Indebtedness
and to such Bank's PRO RATA portion of the Obligations, and (B) if such Bank
shall receive from the Borrower or any of its Subsidiaries, whether by voluntary
payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim with respect to the Obligations by proceedings against
the Borrower or any of its Subsidiaries at law or in equity or by proof thereof
in bankruptcy, reorganisation, liquidation, receivership or similar proceedings,
or otherwise, and shall retain and apply to the payment of the Obligations any
amount in excess of its rateable portion of the payments received by all of the
Banks with respect to the Obligations, such Bank will make such disposition and
arrangements with the other
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Banks, with respect to such excess, either by way of distribution, PRO TANTO
assignment of claims, subrogation or otherwise as shall result in each Bank
receiving in respect of the Obligations, its proportionate payment as
contemplated by this Agreement.
Clause 11. AGENCY.
11.1 AUTHORISATION.
(A) Each of the Banks, the Issuing Bank and the Overdraft Bank
hereby appoints the Agent to act as its agent in connection herewith.
(B) Each of the Banks, the Issuing Bank and the Overdraft Bank
hereby appoints the Agent as, and agrees that the Agent shall act as,
trustee of the security constituted by the Security Documents and the
Agent hereby declares, irrevocably for itself and its successors in trust,
that it shall hold such security and such rights and benefits in trust for
the benefit of such Persons; SUBJECT ALWAYS to the terms and conditions
set forth herein and in the Loan Documents and for the benefit of the said
Persons and for the enforcement of the payment of all Obligations, and for
the performance of and compliance with the covenants and conditions of
this Agreement and each of the other Loan Documents.
(C) Subject to the terms hereof, each of the Banks, the Issuing Bank
and the Overdraft Bank irrevocably and expressly authorises the Agent to
take such action and to exercise such rights, powers and discretions as
are conferred upon it by the terms of this Agreement and the Loan
Documents and any documents referred to therein, together with all such
rights, powers and discretions as are reasonably incidental thereto.
Nothing herein or therein shall impose on the Agent any duties or
obligations other than those for which express provision is made herein or
therein. Without limiting the foregoing, the Agent may:
(I) perform any of its functions, powers or duties by or
through agents or employees;
(II) whenever it thinks necessary or desirable, delegate to
any Person or group of Persons all or any duties, trusts, powers,
authorities and discretions vested in the Agent under this Agreement
or the Loan Documents or any other document related hereto or
thereto and any such delegation may be made by power of attorney or
in such other manner as the Agent may think fit and may be made upon
such terms and conditions (including the power to sub-delegate) and
subject to such regulations as the Agent thinks fit, the Agent shall
not be responsible for any loss
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incurred by reason of any misconduct or default on the part of any
such delegate or sub-delegate or be bound to supervise the
proceedings or acts of any such Person;
(III) hold or place this Agreement and the Loan Documents and
any other document relating hereto and thereto with any banker, bank
or any other Person whose business includes the safe custody of
documents or with a lawyer or firm of lawyers in any part of the
world, and the Agent shall not be responsible for any loss incurred
in connection with any such deposit and may pay all sums required to
be paid on account or in respect of any such deposit;
(IV) assume that:
(A) any representation made by the Borrower or any
other Person in connection herewith or in
connection with any of the Loan Documents is true;
(B) no event which is or may become an Event of
Default has occurred; and
(C) the Borrower is not in breach of or in default
under its obligations hereunder
unless it has actual knowledge or actual notice to the contrary;
(V) assume that the office of each Person is that identified
with its signature below until it has received from such Person a
notice designating some other office of such Person to replace such
office and act upon any such notice until the same is superseded by
a further such notice;
(VI) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services may
to it seem necessary, expedient or desirable and rely upon any
advice so obtained;
(VII) rely as to any matters of fact which might reasonably be
expected to be within the knowledge of the Borrower or any other
Person upon a certificate signed by or on behalf of the Borrower or
such other Person;
(VIII) rely upon any communication or document believed by it
to be genuine and to have been sent or signed by the Person by whom
it purports to have been sent or signed;
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(IX) refrain from exercising any right, power or discretion
vested in it hereunder unless and until instructed by the Majority
Banks as to whether or not such right, power or discretion is to be
exercised and, if it is to be exercised, as to the manner in which
it should be exercised; and
(X) refrain from acting in accordance with any instructions of
the Majority Banks to begin any legal action or proceeding arising
out of or in connection with this Agreement or any Loan Document
until it shall have received such security as it may require
(whether by way of payment in advance or otherwise) for all costs,
claims, expenses (including legal fees) and liabilities which it
will or may expend or incur in complying with such instructions.
(D) Each of the Banks, the Issuing Bank and the Overdraft Bank
hereby appoints the Agent with the power to act, subject to the express
conditions hereinafter set forth, as its true and lawful attorney, with
full power and authority to act for and on behalf of it as attorney:
(I) to execute and deliver, whether as a deed or under hand,
any and all agreements and other documents relating to the
establishment, maintenance and exercise of rights deriving from the
Security Documents;
(II) to execute and deliver any and all amendments and
supplements to the matters described in subclause (I) above;
(III) to take all such further action and do all such things of
whatsoever nature and description as in the entire discretion of
such attorney are appropriate, necessary or convenient to carry out
the objects referred to in this subclause (D); and
(IV) to appoint a substitute to carry out all or any of the
objects referred to in this subclause (D) and to revoke any such
appointment.
Each of the Banks hereby ratifies and confirms all that the Agent as
attorney shall do or cause to be done by virtue of this subclause (D).
Notwithstanding anything contained herein to the contrary, nothing
in this subclause (D) shall be deemed or construed to constitute a
transfer of the rights arising under the Security Documents to the Agent
as attorney.
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(E) All rights of action and rights to assert claims upon or under
this Clause 11 and the Security Documents may be enforced by the Agent and
any such suit or proceeding instituted by the Agent shall be brought in
its name in its capacity as agent and trustee under this Clause 11 and/or
in the name of the relevant Banks and any recovery of judgment shall be
held by it in such capacity.
(F) (I) If there shall exist and be continuing an Event of Default
or an Unmatured Event of Default, the Majority Banks shall have the
right, by an instrument in writing executed and delivered to the
Agent under this Clause 11, to direct the Agent to exercise, or to
refrain from exercising, any right, power, discretion or remedy,
available to or conferred upon any of the Banks in respect of the
Security Documents, and in connection therewith, to direct the time,
method and place of conducting any proceeding for the exercise of
any such right, power discretion or remedy available to any of the
Banks, or of exercising any right, power, discretion or remedy
conferred on the Agent under this Clause 11, or for the appointment
of a receiver, or for the taking of any other action authorised by
this Clause 11. Subject to the limitations set forth in subclause
(G) of this Clause 11.1 and subject to Clause 11.1(c)(x), upon
receipt of such directions, the Agent shall take such actions as are
specified therein.
(II) Nothing in this subclause (F) of Clause 11.1 shall impair
the right of the Agent in its discretion to take or omit to take any
action which is deemed proper by the Agent and which is not
inconsistent with any direction of the Majority Banks; PROVIDED,
HOWEVER, that the Agent shall not be under any obligation, as a
result of this subclause (f) of Clause 11.1, to take any action
which is discretionary with the Agent under the provisions of the
Security Documents or this Clause 11 unless so directed by the
Majority Banks.
(G) Notwithstanding any other provision contained in this Agreement,
none of the rights of any Bank, the Issuing Bank or the Overdraft Bank,
which are absolute and unconditional, to receive payment of the
Obligations owing to it on or after the due date thereof as expressed in
this Agreement or in any of the documents constituting the Security
Documents, to institute suit for the enforcement of such payment on or
after such due date, or to assert its position and views as a secured
creditor in, and to otherwise exercise any right (other than the right to
enforce the Security Documents which shall in all circumstances be
exercisable only by the Agent at the direction of the Majority Banks) it
may have in connection with, a case or proceeding under any bankruptcy or
insolvency law in which any member of the
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Affiliate Group is a debtor, or the obligation of any member of the
Affiliate Group which is also absolute and unconditional, to pay the
Obligations owing by such Person to any Bank, the Issuing Bank or the
Overdraft Bank at the time and place expressed in the documents
constituting Security Documents relating thereto, shall be impaired or
affected without the consent of such Bank, the Issuing Bank or the
Overdraft Bank, as the case may be.
(H) If there shall exist and be continuing an Event of Default or an
Unmatured Event of Default, the Agent shall have the right and power to
institute and maintain such suits and proceedings as it may deem
appropriate to protect and enforce the rights vested in it under this
Clause 11, and the Agent may either after entry or without entry proceed
by suit or suits at law or in equity to enforce such rights and to
foreclose upon the property charged by the Security Documents and to sell
or assign, as the case may be, all or, from time to time, any part of such
property under the judgment or decree of any court of competent
jurisdiction in connection with the Security Documents.
11.2 NOTIFICATION. The Agent shall:
(A) promptly inform each Bank, the Issuing Bank and the Overdraft
Bank of the contents of any notice or document received by it from the
Borrower hereunder;
(B) promptly notify each Bank, the Issuing Bank and the Overdraft
Bank of the occurrence of any Event of Default or any default by the
Borrower in the due performance of or compliance with this Agreement of
which the personnel of the Agent having the conduct of such matters have
actual knowledge or actual notice;
(C) except as otherwise provided herein, act hereunder in accordance
with any instructions given to it by the Majority Banks, which
instructions shall be binding on all the Banks; and
(D) if so instructed by the Majority Banks, refrain from exercising
any right, power or discretion vested in it hereunder.
11.3 NO OBLIGATION. Notwithstanding anything set forth to the contrary
herein, the Agent shall not:
(A) be bound to enquire as to:
(I) whether or not any representation made by the
Borrower or any other Person in connection herewith or with
any of the Loan Documents is true;
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(II) the occurrence or otherwise of any event which is
or may become an Event of Default or an Unmatured Event of
Default;
(iii) the performance by the Borrower or any other
Person of its obligations hereunder or under any of the Loan
Documents; or
(IV) any breach of or default by the Borrower or any
other Person of its obligations hereunder or under any of the
Loan Documents;
(B) be bound to account to any Bank, the Issuing Bank or the
Overdraft Bank for any sum or the profit element of any sum received
by it for its own account;
(C) be bound to disclose to any other Person any information
relating to the Borrower or any other Person if such disclosure would or
might in its opinion constitute a breach of any law or regulation or
otherwise be actionable at the suit of any Person; or
(D) be under any obligations other than those for which express
provision is made herein.
11.4 INDEMNITY. Each Bank shall, from time to time on demand by the Agent,
indemnify the Agent, the Issuing Bank and the Overdraft Bank PRO RATA in
accordance with its respective Commitment Percentage against any and all costs,
claims, expenses (including legal fees) together with any applicable VAT and
liabilities which the Agent, the Issuing Bank or the Overdraft Bank may incur in
acting in its capacity.
11.5 NO LIABILITY.
(A) The Agent does not accept any responsibility for the accuracy
and/or completeness of any information supplied by the Borrower or any
other Person in connection herewith or in connection with the Loan
Documents or for the legality, validity, effectiveness, adequacy or
enforceability of this Agreement or the Loan Documents and the Agent shall
not be under any liability as a result of taking or omitting to take any
action in relation to this Agreement or any of the Loan Documents.
(B) The Agent in its capacity as trustee or otherwise:
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(I) shall not be liable for any failure, omission or defect in
perfecting the security constituted by any Security Document or any
security created thereby; and
(II) may accept without enquiry such title as the Borrower or
any of its Subsidiaries may have to the property over which security
is intended to be created by any of the Security Documents.
(C) Each of the Banks agrees that it will not assert or seek to
assert against any director, officer or employee of the Agent, the Issuing
Bank or the Overdraft Bank any claim it might have against the Agent, the
Issuing Bank or the Overdraft Bank in respect of the matters referred to
in this Clause 11.5.
11.6 THE AGENT AS A BANK. The Agent may accept deposits from, lend money
to and generally engage in any kind of banking or other business with any member
of the Affiliate Group and shall not be liable to account to the Banks, the
Issuing Bank or the Overdraft Bank for any profit made by it thereby or in
connection therewith.
11.7 RESIGNATION.
(A) Each of the Agent, the Issuing Bank and the Overdraft Bank may
resign its appointment as such (and in the case of the Agent, as trustee)
hereunder at any time without assigning any reason therefor by giving not
less than seven days' prior written notice to that effect to each of the
other parties hereto; PROVIDED THAT no such resignation shall be effective
until a successor is appointed in accordance with the provisions of this
Clause 11.
(B) If a Person gives notice of its resignation pursuant to
subclause (A) hereof then any reputable and experienced bank or other
financial institution that is qualified to act as Agent, the Issuing Bank
or Overdraft Bank, as the case may be, under this Agreement, may (with the
prior written consent of the Borrower, such consent not to be unreasonably
withheld) be appointed as a successor to such Person by the Majority Banks
during the period of such notice but, if no such successor is so
appointed, such Person may appoint such a successor itself.
(C) If a successor to a Person is appointed under the provisions of
subclause (b) hereof then (i) the retiring Person shall be discharged from
any further obligation hereunder but shall remain entitled to the benefit
of the provisions of this Clause 11 and (ii) its successor and each of the
other parties hereto shall have the same rights and obligations
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amongst themselves as they would have had if such successor had been a
party hereto. The parties hereto shall do such acts and things and execute
such documents as may be necessary to give effect to the appointment of
such successor.
11.8 NO REPRESENTATIONS. It is understood and agreed by each Bank, the
Issuing Bank and the Overdraft Bank that it has itself been, and will continue
to be, solely responsible for making its own independent appraisal of and
investigations into the financial condition, creditworthiness, affairs, status
and nature of the Borrower and the other members of the Affiliate Group and,
accordingly, each Bank, the Issuing Bank and the Overdraft Bank warrants to the
Agent that it has not relied and will not hereafter rely on the Agent:
(A) to check or enquire on its behalf into the adequacy, accuracy or
completeness of any information provided by the Borrower and the other
members of the Affiliate Group in connection with this Agreement or the
Loan Documents or the transactions contemplated hereby or thereby (whether
or not such information has been or is hereafter circulated to such Person
by the Agent); or
(B) to assess or keep under review on its behalf the financial
condition, creditworthiness, affairs, status or nature of the Borrower or
any other member of the Affiliate Group.
11.9 COMPLIANCE WITH LAW. 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.
11.10 INVESTMENT BY AGENT. Save as otherwise provided in the Security
Documents, all monies which under the trusts herein or therein contained or
received by the Agent in its capacity as trustee or otherwise may be invested in
the name of or under the control of the Agent in an investment for the time
being authorised by English law for the investment by trustees of trust money or
in any other investments which may be selected by the Agent with the consent of
the Majority Banks.
11.11 DIVISIONS OF AGENT TREATED AS SEPARATE.
(A) In acting as Agent, the London Branch of BankBoston, N.A.
shall be treated as a separate entity from any other of the
divisions or branches of BankBoston, N.A. or its affiliates.
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(B) In the event that any of BankBoston, N.A.'s divisions, branches
or similar units or affiliates should act for any of the Borrower, its
Subsidiaries or the Parent or its Subsidiaries in any capacity, whether as
bankers or otherwise in relation to any matter, any information given by
such division, units or affiliates shall be treated as confidential and
BankBoston, N.A. shall not be obliged to disclose such information to any
Bank or any other Person.
11.12 NO KNOWLEDGE. The Agent shall be deemed not to have any actual
knowledge or actual notice of the contents of any information obtained by it or
supplied to it by or on behalf of the Borrower, any of its Subsidiaries or the
Parent, other than the contents of information obtained by or supplied to the
Agent in its capacity as Agent under the Loan Documents.
Clause 12. MISCELLANEOUS.
12.1 CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or approval required
or permitted by this Agreement to be given by the Banks may be given, and any
term of this Agreement, the other Loan Documents or any other instrument related
hereto or mentioned herein may be amended (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Borrower and the written consent of the Majority Banks.
The performance or observance by the Borrower or any member of the Affiliate
Group of any terms of this Agreement, the other Loan Documents or any other such
other instrument or the continuance of any Unmatured Event of Default or Event
of Default may be waived (either generally or in a particular instance and
either retroactively or prospectively), with but only with, the written consent
of the Majority Banks. Notwithstanding the foregoing, the rate of interest on
and the term of the Obligations, the time for the payment or repayment of the
principal of any Advances, any interest thereon and any fees or other amounts
payable hereunder, the release of a substantial portion of the security intended
to be created by the Security Documents, the Commitment Percentages, the
respective Commitments of the Banks and the Maximum Commitment Amount hereunder
may not be changed without the written consent of the Borrower and the written
consent of each Bank affected thereby; the definition of Majority Banks and this
Clause 12.1 may not be amended without the written consent of all of the Banks;
Clause 2B and Clause 4.4(a) may not be amended without the written consent of
the Issuing Bank; Clause 2A.5(F) and Clause 4.4(B) and (C) may not be amended
without the written consent of the Overdraft Bank; and Clause 11 may not be
amended without the written consent of the Agent. No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon. No course of dealing or delay or omission on the part of the Agent, any
Bank, the Issuing Bank or the Overdraft Bank in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. No
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notice to or demand upon the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances.
12.2 ASSIGNMENT AND NOVATION.
(A) This Agreement shall be binding upon and enure to the benefit of
each party hereto and its successors and permitted assigns.
(B) The Borrower shall not be entitled to assign or transfer all or
any of its rights, benefits and obligations hereunder and under the other
Loan Documents.
(C) Any Bank (an "Existing Bank") may at any time with the prior
written consent of the Agent on behalf of itself, the Issuing Bank and the
Overdraft Bank assign all or any part of its rights and benefits hereunder
and under the other Loan Documents to an Eligible Transferee (a
"PARTICIPANT"), PROVIDED THAT:
(I) the Existing Bank shall retain all of its obligations
hereunder and under the other Loan Documents unless such obligations
are transferred pursuant to and in accordance with subclauses (E),
(F) and (G) below;
(II) simultaneously with such assignment, the Existing Bank
shall assign to the Participant a pro rata participation in such
Bank's rights and benefits under the Parent Loan Agreement, in
accordance with the relevant terms and conditions of the Parent Loan
Agreement; and
(III) unless the Participant is an Affiliate of the Existing
Bank, the Existing Bank shall give prompt notice of such assignment
and the amount thereof to the Borrower, the Agent, the other Banks,
the Issuing Bank and the Overdraft Bank.
(D) If an Existing Bank assigns all or any of its rights and
benefits hereunder and under the other Loan Documents in accordance with
subclause (C), then, unless and until the Participant has agreed with the
Agent, the Banks, the Issuing Bank and the Overdraft Bank that it shall be
under the same obligations towards each of them as it would have been
under if it had been a party hereto as a Bank, then the Agent, the other
Banks, the Issuing Bank and the Overdraft Bank shall not be obliged to
recognise such Participant as having the rights against each of them which
it would have had if it had been such a party hereto.
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(E) Any Existing Bank may at any time novate all or any part of its
Commitment hereunder and under the other Loan Documents together with all
of such Bank's rights, benefits and obligations hereunder and under the
other Loan Documents (including its obligation to indemnify the Issuing
Bank with respect to drawings under Collateral Instruments and its
obligation to indemnify the Overdraft Bank with respect to the Overdraft)
in connection with such Commitment or part thereof to any Eligible
Transferee (a "NEW BANK"), PROVIDED THAT:
(I) except in the case of a novation to an Affiliate of the
Existing Bank or to another Bank party to this Agreement, no such
novation may be made without the prior written consent of the
Borrower, such consent not be unreasonably withheld;
(II) no such novation may be made without the prior written
consent of the Agent on behalf of itself and the other Banks, the
Issuing Bank and the Overdraft Bank (and for the avoidance of doubt
each of the Banks (other than the Existing Bank and the New Bank),
the Issuing Bank and the Overdraft Bank irrevocably authorises the
Agent to execute any Novation Agreement on its behalf), such
consents not to be unreasonably withheld;
(III) each such novation shall be of a constant, and not a
varying, percentage of all the Existing Bank's rights and
obligations hereunder and under the other Loan Documents; and
(IV) the Existing Bank shall pay to the Agent on the Novation
Date a registration fee as set forth in subclause (H).
(F) If an Existing Bank wishes to novate all or any part of its
Commitment hereunder and under the other Loan Documents and its associated
rights, benefits and obligations as contemplated in subclause (E), then
such novation shall be by effected the delivery to the Agent of a duly
completed and duly executed certificate substantially in the form attached
hereto as EXHIBIT B (a "NOVATION AGREEMENT"). On the date (the "NOVATION
DATE") which is the later of the date specified in such Novation Agreement
(the "NOVATION Date") and the fifth Business Day following the date of the
delivery thereof to the Agent, or on such earlier date as the Agent may
agree, to the extent of the rights and obligations specified in the
Novation Agreement:
(I) the Existing Lender, on the one hand, and the Borrower,
the other Banks, the Agent, the Issuing Bank and the Overdraft Bank
(collectively, the "EXISTING PARTIES"), on the other
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hand, shall be released from their obligations to each other (the
"DISCHARGED OBLIGATIONS") under this Agreement and the other Loan
Documents, but without prejudice to any claims that may have arisen
prior to the Novation Date;
(ii) the New Lender and the Existing Parties shall assume
obligations towards each other that differ from the Discharged
Obligations only insofar as they are owed to or assumed by the New
Lender instead of the Existing Lender;
(iii) the rights of the Existing Lender against the Existing
Parties and vice versa (the "Discharged Rights") under this
Agreement and the Loan Documents shall be cancelled but without
prejudice to any claims that may have arisen prior to the Novation
Date; and
(iv) the New Lender and the Existing Parties shall acquire
rights against each other that differ from the Discharged Rights
only insofar as they are exercisable by or against the New Lender
instead of the Existing Lender.
(g) By executing and delivering a Novation Agreement, each of the
Existing Bank and the New Bank party thereto confirms to, and agrees with,
each other and the Existing Parties as follows:
(i) other than the representation and warranty that it is the
legal and beneficial owner of the interest being novated thereby
free and clear of any adverse claim, the Existing Bank makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement,
the other Loan Documents or any other instrument or document
furnished pursuant hereto or the attachment, perfection or priority
of any charge, security interest or mortgage;
(II) the Existing Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Borrower and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Borrower and its Subsidiaries or
any other Person primarily or secondarily liable in respect of any
of the Obligations of any of their obligations under this Agreement
or any of the other Loan
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Documents or any other instrument or document furnished pursuant
hereto or thereto;
(III) the New Bank confirms that it has received such
documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Novation
Agreement;
(IV) the New Bank agrees that it will, independently and
without reliance upon the Existing Bank, the Agent, the Issuing
Bank, the Overdraft Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents;
(V) the New Bank represents and warrants that it is an
Eligible Transferee;
(VI) the New Bank appoints and authorises the Agent to take
such action as agent on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to the
Agent by the terms hereof or thereof, together with such powers as
are reasonably incidental thereto;
(VII) the New Bank agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement and the other Loan Documents are required to be performed
by it as a Bank; and
(VIII) the New Bank represents and warrants that it is legally
authorised to enter into such Novation Agreement.
(H) The Agent shall maintain a copy of each Novation Agreement
delivered to it in a register or similar list (the "REGISTER") for the
recordation of the names and addresses of the Banks and the Commitment
Percentage of and principal amount of the Advances owing to each of the
Banks from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error. Upon each such recordation, the Existing
Lender shall pay to the Agent a registration fee in the amount of
(pound)1,000.
(I) Any Bank may, in connection with an actual or potential
assignment or novation pursuant to this Clause 12.2 disclose to any actual
or potential Participant or New Bank or to any Person who may otherwise
enter into contractual relations with such Bank in relation to
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this Agreement such information about the Borrower and its Subsidiaries
furnished to such Bank by or on behalf of the Borrower.
12.3 NOTICES.
(A) Any notice, demand or communication made or given hereunder by
one Person to another pursuant to this Agreement shall be in writing and
shall be made or delivered to that other Person at the address listed in
subclause (B) below (or, in the case of a New Bank, as indicated in the
Novation Agreement to which it is a party as the New Bank) and shall be
deemed to have been made or delivered when despatched (in the case of any
communication made by facsimile transmission), when left at that address
(in the case of any letter sent by hand or courier service), or one
Business Day after being deposited in the post, first class postage
prepaid, in an envelope addressed to it at that address (in the case of
any letter sent by post).
(B) Notices to any party shall be sent to it at the following
addresses, or any other address of which all the other parties are
notified in writing.
If to the Borrower at: Pipeline Induction Heat Limited
Xxx Xxxxxxxx Xxxxxx, Xxxx 00
Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX00 0XX
Attention: Xxxxxxx Xxxxx
Telephone no.: 00000 000 000
Telecopy no.: 01282 415 326
If to the Agent, the Issuing
Bank or the Overdraft Bank at: The First National Bank
of Boston, London Branch
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X OED
Attention: Xxxxxxx Xxxx
Telephone no.: 0000 000 0000
Telecopy No. 0171 932 9364
If to any of the Banks, to the address for such Bank set forth on
THE SECOND SCHEDULE hereto, or as otherwise set forth in a notice from
such Bank to each other party hereto.
(C) Any communication to be made or delivered to the Borrower by the
Banks, the Issuing Bank or the Overdraft Bank, or by the Borrower to any
of them shall be made or delivered to the Agent, which
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shall promptly advise the Borrower, the Banks or the Overdraft Bank, as
the case may be, thereof.
12.4 GOVERNING LAW; PLACE OF JURISDICTION.
(A) This Agreement shall be governed by, and shall be construed in
accordance with, the laws of England.
(B) For the benefit of the Agent, each of the Banks, the Issuing
Bank and the Overdraft Bank, the Borrower irrevocably agrees that:
(I) the courts of England are to have jurisdiction to settle
any disputes which may arise in connection with the legal
relationships established by this Agreement or otherwise arising in
connection with this Agreement, and the Borrower irrevocably submits
to the jurisdiction of such courts; and
(II) this provision shall not limit the rights of the Agent,
the Banks, the Issuing Bank or the Overdraft Bank to take
proceedings in any other court of competent jurisdiction.
12.5 SEVERABILITY. The provisions of this Agreement are severable and if
any one clause or provision hereof shall be held invalid or unenforceable in
whole or in part in any jurisdiction, then such invalidity or unenforceability
shall affect only such clause or provision or part thereof, in such
jurisdiction, and shall not in any manner affect such clause or provision in any
other jurisdiction, or any other clause or provision of this Agreement in any
jurisdiction.
12.6 COUNTERPARTS. This Agreement and any amendment hereof may be executed
in several counterparts and by each party on a separate counterpart, each of
which when executed and delivered shall be an original, and all of which
together shall constitute one Agreement.
12.7 ENTIRE AGREEMENT. This Agreement together with all Amendments,
Exhibits and Schedules hereto, expresses the entire understanding of the
parties, with respect to the transactions contemplated hereby. Neither this
Agreement nor any term hereof may be changed, waived, discharged, or terminated,
orally or in writing, except as provided in Clause 12.1 hereof.
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IN WITNESS WHEREOF this Agreement has been duly executed and delivered by or on
behalf of the parties on the day and year first written above.
SIGNED by )
for and on behalf of PIPELINE )
INDUCTION HEAT LIMITED )
in the presence of: ) ______________________
)
Witness Signature:
Name:
Address:
Occupation:
SIGNED by )
for and on behalf of )
THE FIRST NATIONAL, ) ____________________
BANK OF BOSTON, )
LONDON BRANCH, as a )
Bank, Agent, Issuing Bank )
and Overdraft Bank, )
in the presence of: )
Witness Signature:
Name:
Address:
Occupation
