Exhibit 2 Term Facility Agreement, dated June 10, 2003, among SCBIL, the
Guarantors (including SCL), the Arrangers, the Original Lenders, the
Agent and the Trustee.
Confidential treatment has been requested for portions of this
exhibit. The confidential portions have been omitted and filed
separately with the Commission. The confidential portions are
indicated by the following xxxx: [***].
--------------------------------------------------------------------------------
XXXXXXXX
CHANCE LIMITED LIABILITY PARTNERSHIP
CONFORMED COPY
US$158,000,000
Secured Facilities Agreement
dated 10 June 2003
for
SEA CONTAINERS BRITISH ISLES LIMITED
arranged by
CITIGROUP GLOBAL MARKETS LIMITED
FORTIS BANK S.A./N.V.
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
with
CITIBANK INTERNATIONAL PLC
acting as Agent
and
CITICORP TRUSTEE COMPANY LIMITED
acting as Trustee
---------------------------------------------------------------------------
TERM FACILITY AGREEMENT
---------------------------------------------------------------------------
CONTENTS
Clause Page
1. Definitions and Interpretation..........................................1
-- ------------------------------
2. The Facility...........................................................21
-- ------------
3. Purpose................................................................21
-- -------
4. Conditions Of Utilisation..............................................22
-- -------------------------
5. Utilisation............................................................23
-- -----------
6. Repayment..............................................................25
-- ---------
7. Prepayment And Cancellation............................................25
-- ---------------------------
8. Interest...............................................................35
-- --------
9. Interest Periods.......................................................36
-- ----------------
10. Changes To The Calculation Of Interest.................................36
--- --------------------------------------
11. Fees...................................................................38
--- ----
12. Tax Gross Up And Indemnities...........................................39
--- ----------------------------
13. Increased Costs........................................................43
--- ---------------
14. Other Indemnities......................................................44
--- -----------------
15. Mitigation By The Lenders..............................................45
--- -------------------------
16. Costs And Expenses.....................................................46
--- ------------------
17. Guarantee And Indemnity................................................47
--- -----------------------
18. Representations........................................................50
--- ---------------
19. Information Undertakings...............................................60
--- ------------------------
20. Financial Covenants....................................................65
--- -------------------
21. General Undertakings...................................................67
--- --------------------
22. Events of Default......................................................92
--- -----------------
23. Changes to the Lenders.................................................98
--- ----------------------
24. Role of the Agent and the Arranger....................................102
--- ----------------------------------
25. Role of Trustee.......................................................107
--- ---------------
26. Conduct of Business by the Finance Parties............................113
--- ------------------------------------------
27. Sharing among the Finance Parties.....................................113
--- ---------------------------------
28. Payment mechanics.....................................................115
--- -----------------
30. Application of Proceeds...............................................117
--- -----------------------
31. Notices...............................................................119
--- -------
33. Partial Invalidity....................................................121
--- ------------------
34. Remedies and Waivers..................................................121
--- --------------------
35. Amendments and Waivers................................................121
--- ----------------------
36. Counterparts..........................................................122
--- ------------
37. Governing law.........................................................123
--- -------------
38. Enforcement...........................................................123
--- -----------
SCHEDULE 1 THE ORIGINAL PARTIES..............................................124
-------------------------------
Part I The Obligors...................................................124
-------------------
Part II The Original Lenders - other than UK Non-Bank Lenders.........125
-------------------------------------------------------------
Part III The Original Lenders - UK Non-Bank Lenders...................126
---------------------------------------------------
SCHEDULE 2 CONDITIONS PRECEDENT..............................................127
-------------------------------
SCHEDULE 3 REQUESTS 133
-------------------
Part I Utilisation Request............................................133
--------------------------
Part II Selection Notice..............................................134
------------------------
SCHEDULE 4 MANDATORY COST FORMULAE...........................................135
----------------------------------
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE......................................138
---------------------------------------
SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE....................................140
-----------------------------------------
SCHEDULE 7 GROUP STRUCTURE CHART.............................................142
--------------------------------
SCHEDULE 8 TIMETABLES........................................................143
---------------------
SCHEDULE 9 THE PROPERTY......................................................144
-----------------------
THIS AGREEMENT is dated 10 June 2003 and made between:
(1) SEA CONTAINERS BRITISH ISLES LIMITED (the "Borrower");
(2) THE SUBSIDIARIES and other companies within the same Group (as defined
below) of the Borrower listed in Part I (The Obligors) of Schedule 1 (The
Original Parties) as guarantors (the "Guarantors");
(3) CITIGROUP GLOBAL MARKETS LIMITED, FORTIS BANK and THE GOVERNOR AND
COMPANY OF THE BANK OF SCOTLAND (whether acting individually or together)
(the "Arranger" or the "Mandated Lead Arranger");
(4) THE FINANCIAL INSTITUTIONS listed in Part II (The Original Lenders -
other than UK Non-Bank Lenders) and Part III (The Original Lenders - UK
Non-Bank Lenders) of Schedule 1 (The Original Parties) as lenders (the
"Original Lenders");
(5) CITIBANK INTERNATIONAL PLC as agent of the other Finance Parties (the
"Agent"); and
(6) CITICORP TRUSTEE COMPANY LIMITED as security trustee for the Secured
Parties (the "Trustee").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. Definitions and Interpretation
1.1 Definitions In this Agreement:
"Account Bank" means Citibank, N.A..
"Account Agreement" means the account agreement between the Account Bank,
the Parent and the Trustee in relation to the Mandatory Prepayment
Account, the GNER Dividends Account and the Dividends Account.
"Additional Cost Rate" has the meaning given to it in Schedule 4
(Mandatory Cost Formulae).
"Affiliate" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange
for the purchase of the relevant currency with sterling in the London
foreign exchange market at or about 11:00 a.m. on a particular day.
"Authorisation" means:
(a) a permit, licence, consent, approval, certificate, qualification,
specification, resolution, exemption, filing, notarisation,
registration or other authorisation; or
1
(b) a filing of a notification, report or assessment; or
(c) any item of Port Legislation,
in each case necessary for the effective operation of the Group's
business, its ownership, possession, occupation or use of an asset or the
execution or performance of this Agreement.
"Authorised Signatory" means any person authorised in accordance with a
board resolution, a certified copy of which has been delivered to the
Agent together with such signatory's specimen signature as referred to in
paragraph 1(c) of Schedule 2 (Conditions Precedent).
"Availability Period" means the period from and including the date of
this Agreement to and including the date which is two months after the
Bond Maturity Date but if any such date is not a Business Day, then the
Availability Period shall be deemed to end on the immediately preceding
Business Day.
"Available Commitment" means, at any time in relation to the Facility, a
Lender's Commitment under the Facility minus:
(a) the amount of its participation in any outstanding Loans under the
Facility; and
(b) in relation to any proposed Utilisation, the amount of its
participation in any Loans that are due to be made under the
Facility on or before the proposed Utilisation Date.
"Available Facility" means, in relation to the Facility, the aggregate
for the time being of each Lender's Available Commitment in respect of
the Facility, provided that at any time on or after the earlier of the
Exchange Offer Closing Date and 24 June 2003, and prior to the Bond
Maturity Date, such amount shall not exceed the Exchange Offer Amount.
"Bermuda Obligor" means any company who is a Guarantor and is formed or
incorporated under the laws of Bermuda.
"Bond Maturity Date" means 1 July 2003.
"Break Costs" means the amount (if any) by which:
(a) the interest which a Lender should have received for the period
from the date of receipt of all or any part of its participation
in a Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that
Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it
on deposit with a leading bank in the Relevant Interbank Market
for a period starting on the Business Day following receipt or
recovery and ending on the last day of the current Interest
Period.
2
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London, and (in relation to any
date for payment or purchase of a currency other than euro) the principal
financial centre of the country of that currency.
"Capital Expenditure" shall be construed as meaning any expenditure which
should be treated as capital expenditure in the accounts of any member of
the Group in accordance with Relevant GAAP.
"Cash Disposal Proceeds" means, in respect of any Disposal, the aggregate
cash amount of Disposal Proceeds in respect of such Disposal paid on the
applicable Closing Date following the making of any deductions required
to be applied in repayment of debt existing at the time of the Disposal
in relation to the asset being disposed.
"Charged Property" means all the assets of the Obligors which from time
to time are, or are expressed to be, the subject of the Transaction
Security.
"Class A Shares" means class A common shares, par value US$.01 each, of
OEH.
"Class B Shares" means class B common shares, par value US$0.1 each, of
OEH.
"Closing Date" means, in respect of any Disposal, the date such Disposal
is closed and all conditions in respect of the making of all payments
thereunder become unconditional.
"Code" means, at any date, the U.S. Internal Revenue Code of 1986 (or any
successor legislation thereto) as amended from time to time, and the
regulations promulgated and rulings issued thereunder, all as the same
may be in effect at such date.
"Commitment" means:
(a) in relation to an Original Lender,
(i) at any time prior to the Bond Maturity Date, the amount set
opposite its name in Column 1 under the heading
"Commitment" in Part II (The Original Lenders - other than
UK Non-Bank Lenders) or Part III (The Original Lenders - UK
Non-Bank Lenders) of Schedule 1 (The Original Parties) and
the amount of any other Commitment transferred to it under
this Agreement; and
(ii) at any time on or after the Bond Maturity Date, the amount
set opposite its name in Column 2 under the heading
"Commitment" in Part II (The Original Lenders - other than
UK Non-Bank Lenders) or Part III (The Original Lenders - UK
Non-Bank Lenders) of Schedule 1 (The Original Parties) and
the amount of any other Commitment transferred to it under
this Agreement; and
(b) in relation to any other Lender, the amount of any Commitment
transferred to it under this Agreement,
3
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Commitment Fee" means, on any date, the percentage per annum equal to
50% of the Margin on such date.
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 6 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in any recommended form of the LMA or in any other form
agreed between the Borrower and the Agent.
"Default" means an Event of Default or any event or circumstance
specified in Clause 22 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing)
be an Event of Default.
"Delegate" means any delegate, agent, attorney or co-trustee appointed by
the Trustee.
"Disposal" has the meaning given to that term in Clause 7.5 (Mandatory
Prepayment and Cancellation - Sale of Security and other Disposals).
"Disposal Group" means any of the Isle of Man Group, the Ports Group and
the Marine Group.
"Disposal Proceeds" has the meaning given to that term in Clause 7.5
(Mandatory Prepayment and Cancellation - Sale of Security and other
Disposals).
"Dividend" means any declaration, making or payment, directly or
indirectly, of any dividend, any interest or other payment, or any other
distribution of assets all in respect of its share capital (or any class
thereof) or the setting apart of any such assets for any such purpose.
"Dividends Account" means the account numbered 00000000 in relation to
sterling deposits and the account numbered 00000000 in relation to dollar
deposits being maintained with the Account Bank (in accordance with the
Account Agreement) by the Parent and subject to the Transaction Security.
"Effective Date" means the date upon which this Agreement is dated.
"Employee Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
a US Obligor or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Environment" means all or any of the following media: air (including air
within buildings or other structures and whether above or below ground),
land (including buildings and any other structures or erections in, on or
under it and any soil and anything below the surface of land), land
covered with water and water (including sea, ground and surface water)
and any other meaning given to the term "Environment" under any
Environmental Law.
4
"Environmental Claim" means any written notice from any regulatory
authority or government agency or other person responsible for the
enforcement of any Environmental Law, alleging any breach, contravention
or violation of any Environmental Law by any member of the Group or the
existence of any liability or potential liability arising from any such
breach, contravention or violation including, without limitation,
liability to conduct, pay for or for damages in respect of any
investigation or audit, clean-up, remediation, administrative cost or
charge or expense, damage to the Environment or any natural resource,
property loss or damage, personal injury or any penalty attaching or
relating to the presence, emission, release or leak of any Hazardous
Material in or to the Environment.
"Environmental Law" means all statutes, treaties and conventions,
directives, regulations and all codes of practice or conduct, circulars
and guidance notes having legal or judicial import or effect whether of a
criminal, civil or administrative nature, and the rules of common law,
relating to or concerning:
(a) pollution or contamination of the Environment;
(b) harm, whether actual or potential, to mankind and human senses,
living organisms and ecological systems;
(c) the generation, manufacture, processing, distribution, use
(including abuse), treatment, storage, disposal, transport or
handling of Hazardous Materials; and
(d) the emission, leak, release or discharge into the Environment of
noise, vibration, dust, fumes, gas, odours, smoke, steam,
effluvia, heat, light, radiation (of any kind), infection,
electricity or any Hazardous Material and any matter or thing
capable of constituting a nuisance or an actionable tort of any
kind in respect of such matters.
"Environmental Permits" means any Authorisation and the filing of any
notification, report or assessment required, in each case, under any
Environmental Law for the operation of the business of any member of the
Group conducted on or from the properties owned or used by the relevant
member of the Group.
"ERISA" means, at any date, the United States Employee Retirement Income
Security Act of 1974 (or any successor legislation thereto) as amended
from time to time, and the regulations promulgated and rulings issued
thereunder, all as the same may be in effect at such date.
"ERISA Affiliate" means any person that for purposes of Title I and Title
IV of ERISA and Section 412 of the Code would be deemed at any relevant
time to be a single employer with a US Obligor, pursuant to Section
414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.
"ERISA Event" means
5
(a) any reportable event, as defined in Section 4043 of ERISA, with
respect to an Employee Plan, as to which PBGC has not by
regulation waived the requirement of Section 4043(a) of ERISA that
it be notified of such event;
(b) the filing of a notice of intent to terminate any Employee Plan,
if such termination would require material additional
contributions in order to be considered a standard termination
within the meaning of Section 4041(b) of ERISA, the filing under
Section 4041(c) of ERISA of a notice of intent to terminate any
Employee Plan or the termination of any Employee Plan under
Section 4041(c) of ERISA;
(c) the institution of proceedings under Section 4042 of ERISA by the
PBGC for the termination of, or the appointment of a trustee to
administer, any Employee Plan;
(d) the failure to make a required contribution to any Employee Plan
that would result in the imposition of an encumbrance under
Section 412 of the Code or Section 302 of ERISA or the filing of
any request for a minimum funding waiver under Section 412 of the
Code with respect to any Employee Plan or Multiemployer Plan;
(e) an engagement in a non-exempt prohibited transaction within the
meaning of Section 4975 of the Code or Section 406 of ERISA;
(f) the complete or partial withdrawal of any US Obligor or any ERISA
Affiliate from a Multiemployer Plan; and
(g) an Obligor or an ERISA Affiliate incurring any liability under
Title IV of ERISA with respect to any Employee Plan (other than
premiums due and not delinquent under Section 4007 of ERISA).
"Event of Default" means any event or circumstance specified as such in
Clause 22 (Events of Default).
"Exchange Offer" means the exchange offer pursuant to which SCL will
issue new debt securities maturing after the Final Repayment Date in
exchange for outstanding SCL Bonds.
"Exchange Offer Amount" means, if the Exchange Offer Closing Date has
occurred on or before 24 June 2003, the face value amount of SCL Bonds in
aggregate which have been exchanged for new debt securities maturing
after the Final Repayment Date pursuant to the Exchange Offer or, if the
Exchange Offer Closing Date has not occurred on or before 24 June 2003,
zero.
"Exchange Offer Closing Date" means the date falling on or before 1 July
2003, on which the Exchange Offer is consummated.
"Excluded Dividend" has the meaning ascribed to it in Clause 7.7
(Mandatory Prepayment and Cancellation - GNER Dividend).
6
"Existing Financial Indebtedness" means any Financial Indebtedness
(whether secured or unsecured), and any facilities available for
utilisation by a member of the Group and not drawn, in each case as at
the date of this Agreement and as listed in the Group Structure Chart.
"Existing Security" means:
(a) any Security for Existing Financial Indebtedness noted as secured
in the Group Structure Chart;
(b) the Security granted by Sea Containers Property Services Limited
in favour of Zurich Insurance Company pursuant to a deed of
deposit and charge dated 22 October 2001; and
(c) the Security granted by Isle of Man Steam Packet Holdings Limited
in favour of the Bank of New York pursuant to a security over
shares agreement dated 16 April 2002.
"Facility" means the term loan facility made available under this
Agreement as described in Clause 2 (The Facility).
"Facility Office" means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than five Business Days' written notice) as the
office or offices through which it will perform its obligations under
this Agreement.
"Fee Letter" means any letter or letters dated on or about 28 April 2003
between the Arranger and the Parent (and/or, as the case may be, the
Agent, the Trustee and/or the Lenders) setting out any of the fees
referred to in Clause 11 (Fees) or any other letter dated on or about the
date of this Agreement.
"Ferry" means each of the ocean going vessels owned or operated by any
member of the Group.
"FPHL" means Ferry and Port Holdings Limited a company incorporated under
the laws of England and Wales with registered number 2413534 having its
registered office at Sea Xxxxxxxxxx Xxxxx, 00 Xxxxx Xxxxxx, Xxxxxx, XX0
0XX.
"Final Repayment Date" means 30 April 2004 but if any such date is not a
Business Day, then the Final Repayment Date shall be deemed to be the
immediately succeeding Business Day.
"Final Settlement Date" means the date on which the Xxxxxxxx Litigation
is irrevocably settled or determined in proceedings which are incapable
of further appeal or review.
"Finance Document" means this Agreement, the Security Documents, any Fee
Letter, any Resignation Letter and any other document designated as such
by the Agent and the Borrower.
"Finance Party" means the Agent, the Arranger, the Trustee or a Lender.
7
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with Relevant GAAP,
be treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial effect
of a borrowing for the avoidance of doubt, not including operating
leases;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution;
(i) any amount raised by the issue of redeemable shares;
(j) any amount of any liability under an advance or deferred purchase
agreement if one of the primary reasons behind the entry into this
agreement is to raise finance; and
(k) (without double counting) the amount of any liability in respect
of any guarantee or indemnity for any of the items referred to in
paragraphs (a) to (j) above.
"Folkestone Facility" means the (pound)3,675,000 term loan facility
provided pursuant to an agreement between Folkestone Properties Limited,
the Parent and the Governor and Company of the Bank of Scotland and dated
30 November 2001.
"Franchise Agreement" means the franchise agreement between the Strategic
Rail Authority, GNER Holdings Limited and Great North Eastern Railway
Limited dated 28 March 1996 and as subsequently amended and restated by
agreement between the parties.
"Franchise Services" shall have the meaning attributed thereto in the
Franchise Agreement.
"Franchise Term" shall have the meaning attributed thereto in the
Franchise Agreement.
8
"Franchise Termination Assessment Memorandum" means the memorandum
prepared by the Parent and addressed to the Lenders relating to the
financial consequences of termination of the Franchise Agreement and
delivered as a condition precedent hereto and referred to in paragraph
4(i) of Schedule 2 (Conditions Precedent).
"GNER Dividend" has the meaning ascribed to it in Clause 7.7 (Mandatory
Prepayment and Cancellation - GNER Dividend).
"GNER Dividends Account" means the account numbered 00000000 in relation
to sterling deposits being maintained with the Account Bank (in
accordance with the Account Agreement) by the Parent subject to the
Transaction Security and into which all GNER Dividends are paid.
"GNER Limited" means Great North Eastern Railway Limited, registered
number 02938984.
"GNER Liquidity Maintenance Cash" means any amount which GNER Limited
must retain pursuant to its liquidity maintenance obligations under the
Franchise Agreement.
"GNER Station Refurbishment" means the expenditure (approved in advance
by the Agent) to be incurred in relation to the refurbishment of certain
railway stations belonging to GNER Limited.
"Group" means the Parent and its Subsidiaries that are identified in the
Group Structure Chart (excluding for the avoidance of doubt OEH and GE
Seaco SRL).
"Group Structure Chart" means the group structure chart delivered in
accordance with Clause 4 (Conditions of Utilisation) and set out at
Schedule 7 (Group Structure Chart) showing the Obligors, their holding
companies to the Parent and certain other companies, including current
name, jurisdiction of incorporation and, for each member of the Group
(other than the Parent), any Existing Financial Indebtedness in each
case, as at the date of this Agreement.
"Xxxxxxxx Litigation" means all claims against Network Rail and/or any
successor in title thereto arising out of or in connection with the
derailment of a train operated by GNER Limited near Xxxxxxxx on 17
October 2000.
"Hazardous Materials" means any element or substance, whether natural or
artificial, and whether consisting of gas, liquid, solid or vapour,
whether on its own or in any combination with any other element or
substance, which is listed, identified, defined or determined by any
Environmental Law to be, to have been, or to be capable of being or
becoming harmful to mankind or any living organism or damaging to the
Environment.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Information Package" means the Franchise Termination Assessment
Memorandum and the Litigation Settlement Memoranda.
"Intellectual Property" means any patents, trade marks, service marks,
designs, business names, copyrights, design rights, moral rights,
inventions, confidential information, knowhow and other intellectual
property rights and interests, whether registered or unregistered, and
the benefit of all applications and rights to use such assets of each
Obligor.
9
"Interest Period" means, in relation to a Loan, each period determined in
accordance with Clause 9 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 8.3 (Default
interest).
"Interim Recovery" means, in respect of the Xxxxxxxx Litigation, the
aggregate of monies (a) paid to the Group by Railtrack plc and/or Network
Rail; and (b) recovered by the Group by way of set-off against amounts
payable by GNER Limited under the Track Access Agreement and which the
Group is entitled to retain.
"Investments" means:
(a) any stocks, shares, debentures, securities and certificates of
deposit;
(b) all interests in collective investment schemes; and
(c) all warrants, options and other rights to subscribe or acquire any
of the investments described in (a) and (b).
in each case whether held directly by or to the order of an Obligor or by
any trustee, nominee, fiduciary or clearance system on its behalf.
"IRS" means the United States Internal Revenue Service or any successor
thereto.
"Isle of Man Group" means the following companies: Sea Containers Isle of
Man Limited, Isle of Man Steam Packet Holdings Limited and Isle of Man
Steam Packet Company Limited.
"Isle of Man Group Disposal" means any share and/or asset Disposal of all
or substantially all of the economic value of the Isle of Man Group.
"ISM Code" means the International Safety Management Code adopted by the
International Maritime Organisation in November 1993 and made mandatory
under Chapter IX of the International Convention for the Safety of Life
at Sea.
"Joint Venture" means any joint venture entity which is not a member of
the Group, whether a company, unincorporated firm, undertaking,
association, joint venture or partnership or whether any other entity and
in which a member of the Group has a share. "Legal Opinions" means the
legal opinions delivered to the Agent pursuant to Clause 4 (Conditions of
Utilisation).
"Lender" means:
(a) any Original Lender; and
(b) any bank, financial institution, trust, fund or other entity which
has become a Party in accordance with Clause 23 (Changes to the
Lenders),
10
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the
London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to the
Interest Period for that Loan.
"Litigation Settlement Memoranda" means the two memoranda prepared by the
Parent and addressed to the Lenders relating to certain litigation
matters involving GNER Limited, covering both the claims made by GNER
Limited against Railtrack Plc (now Network Rail) for damages relating to
GNER lost revenue arising from the Xxxxxxxx rail crash and subsequent
rail closure and also the potential costs implications of all other GNER
litigation matters, and delivered as a condition precedent hereto and
referred to in paragraph 4(i) of Schedule 2 (Conditions Precedent).
"LMA" means the Loan Market Association.
"Loan" means a loan made or to be made under the Facility or the
principal amount outstanding for the time being of that loan.
"Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate 662/3% or more of the Total Commitments (or,
if the Total Commitments have been reduced to zero, aggregated
662/3% or more of the Total Commitments immediately prior to the
reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate 662/3% or more of all the Loans
then outstanding.
"Mandate Documents" means the letters dated 1 May 2003 entered into by
the Borrower, the Parent and the Arrangers relating to the entry by them,
and others, into the Finance Documents.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost Formulae).
"Mandatory Prepayment Account" means the interest-bearing account
numbered 00000000 in relation to sterling deposits and the account
numbered 00000000 in relation to dollar deposits of the Parent, in each
case: held in a jurisdiction of the Borrower with the Account Bank (in
accordance with the Account Agreement) (as the same may be redesignated,
substituted or replaced from time to time) and subject to Transaction
Security.
11
"Margin" means, from the date of this Agreement until (and including) the
date falling 6 months after the date of this Agreement, 2.50 per cent.
per annum; and thereafter, 3.00 per cent. per annum.
"Margin Stock" means margin stock or "margin security" within the meaning
of Regulations T, U and X.
"Marine Group" means Charleston Marine Containers Inc.
"Marine Group Disposal" means any share and/or asset Disposal of all or
substantially all of the economic value of the Marine Group.
"Material Adverse Effect" means a material adverse effect on:
(a) the business, operations, property, condition (financial or
otherwise) operations or prospects of the Group taken as a whole;
(b) the ability of an Obligor to comply with any of its obligations
under the Finance Documents; or
(c) the legality, validity or enforceability of the Finance Documents
or the rights or remedies of any Finance Party under the Finance
Documents.
"Month" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) (subject to paragraph (c) below) if the numerically corresponding
day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to end
if there is one, or if there is not, on the immediately preceding
Business Day;
(b) if there is no numerically corresponding day in the calendar month
in which that period is to end, that period shall end on the last
Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest Period
is to end.
The above rules will only apply to the last Month of any period.
"Multiemployer Plan" means a "multiemployer plan" (as defined in Section
(3)(37) of ERISA) contributed to for any employees of a US Obligor or any
ERISA Affiliate.
"Newhaven Facility" means the (pound)6,090,000 term loan facility
provided pursuant to an agreement between Newhaven North Quay Limited,
the Parent and the Governor and Company of the Bank of Scotland and dated
14 December 2001.
"Newhaven Marina Facility" means a syndicated loan facility up to
(pound)5,750,000 to be provided pursuant to an agreement with recourse to
Newhaven Marina Limited but without recourse to any other member of the
Group (other than the Parent).
12
"New York Business Day" means a day (other than a Saturday or Sunday) on
which banks are open for general business in New York, and (in relation
to any date for payment or purchase of a currency other than euro) the
principal financial centre of the country of that currency.
"Obligors" means the Borrower and each Guarantor.
"Occupational Lease" means any lease or licence or other right of
occupation to which any property leased, occupied or otherwise in the
possession of any member of the Group may be subject from time to time.
"OEH" means Orient-Express Hotels Ltd., a Bermuda corporation.
"OEH Shares" means, collectively, (i) 2,459,399 Class B Shares owned by
Parent, (ii) 2,459,399 Class A Shares issuable upon conversion of such
Class B Shares into Class A Shares and (iii) 11,943,901 Class A Shares
owned by Parent.
"Original Financial Statements" means:
(a) in relation to the Parent (and any other member of the Group where
such are available), the audited consolidated financial statements
of the Group for the financial year ended 31 December 2002; and
(b) in relation to each member of the Group (to the extent it has not
delivered anything under (a) above), its audited financial
statements for its financial year ended 31 December 2002.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Community relating to
Economic and Monetary Union.
"Parent" means Sea Containers Ltd., a Bermuda corporation.
"Party" means a party to this Agreement.
"PBGC" means the U.S. Pension Benefit Guaranty Corporation, or any entity
succeeding to all or any of its functions under ERISA.
"Permitted Lease" means any Occupational Lease where:
(a) no premium is paid in consideration of its grant; and
(b) the initial annual open market rent or open market consideration
payable upon its grant is less than (pound)20,000 (or is less than
(pound)20,000 after any rent review or review of the consideration
payable under the same) disregarding amounts payable by way of
service charge, insurance and VAT).
"Ports Group" means Newhaven North Quay Limited and Folkestone Properties
Limited.
"Ports Group Disposal" means any share and/or asset Disposal of all or
substantially all of the economic value of the Ports Group.
13
"Port Legislation" means the Folkestone Harbour Acts 1807, 1818 and 1992,
the Folkestone Pier and Harbours Order Confirmation Acts 1878 and 1881,
the South Eastern Railway Acts 1843, 1844, 1887 and 1990, the South
Eastern Railway (Various Powers) Xxx 0000, the Southern Railway (Dock
Charges) Xxx 0000 and the Sealink (Transfer of Folkestone Harbour)
Harbour Revision Order 1991 and all other statutes, treaties and
conventions, statutory instruments, directives, regulations and all codes
of practice or conduct, circulars and guidance notes having legal or
judicial import or effect whether of a criminal, civil or administrative
nature and the rules of common law relating to or concerning the
operation of a port as the same may be amended or supplemented from time
to time.
"Property" means the property listed in Schedule 10 (The Property).
"Qualifying Lender" has the meaning given to it in Clause 12 (Tax Gross
Up and Indemnities).
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is domestic sterling) the first day of that
period; or
(b) (for any other currency) two Business Days before the first day of
that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day, the
Quotation Day will be the last of those days).
"Receiver" means a receiver or receiver and manager or administrative
receiver of the whole or any part of the Charged Property.
"Reduced Collateral Date" means any date on or after the 15 November 2003
on which the listed market value of the OEH Shares that are subject to
Transaction Security is less than $50,000,000.
"Reference Banks" means, in relation to LIBOR the principal offices of
Citicorp North America, Inc., Fortis Bank S.A./N.V. and The Governor and
Company of the Bank of Scotland or such other banks as may be appointed
by the Agent in consultation with the Borrower.
"Regulations T, U and X" means, respectively, Regulations T, U and X of
the Board of Governors of the Federal Reserve System of the United States
(or any successor) as now and from time to time hereafter in effect.
"Relevant GAAP" means generally accepted accounting principles (i) in the
United States of America in relation to the Parent and GE Seaco SRL, and
(ii) in the United Kingdom in relation to each other Obligor.
"Relevant Interbank Market" means the London interbank market.
14
"Relevant Jurisdiction" means:
(a) the jurisdiction of incorporation of each member of the Group;
(b) the jurisdiction where any asset subject to or intended to be
subject to the Transaction Security is situated;
(c) the jurisdiction whose laws govern the perfection of any of the
Security Documents; and
(d) the jurisdiction where any member of the Group is conducting its
business.
"Relevant Outstandings" means an amount equal to the aggregate amount of
the Loans as at the earlier of 24 June 2003 and the Exchange Offer
Closing Date less the Exchange Offer Amount.
"Repeating Representations" means each of the representations set out in
Clauses 18.1 (Status) to 18.7 (Governing law and enforcement), Clause
18.10 (No default) to Clause 18.16 (No proceedings pending or
threatened), Clause 18.19 (Taxation), Clause 18.21 (Ranking) to Clause
18.25 (Shares), Clause 18.27 (Business Assets), 18.28 (Pensions), 18.32
(Health and safety regulation) and Clause 18.34 (Financial Year End) to
Clause 18.37 (Investment Companies).
"Replacement Franchise Agreement" means any franchise agreement in
respect of any substantive part or all of the Franchise Services to be
entered into after the date hereof by the SRA with a franchisee and
franchise operator.
"Restricted Indebtedness Companies" means the Borrower, Sea Containers
Railway Services Limited, GNER Holdings Limited and GNER Limited.
"Sales Date" means the earlier of the occurrence of an Event of Default,
a Reduced Collateral Date, 15 November 2003 (if on such date the Closing
Date for each Sale of Security by a member of the Group to a third person
has not occurred) and a Shortfall Date.
"Sale of Security" has the meaning ascribed to it in Clause 7.5
(Mandatory Prepayment and Cancellation - Sale of Security and other
Disposals).
"SCL Bonds" means the 9-1/2% senior notes due 1 July 2003 issued by the
Parent and the 10-1/2% senior notes due 1 July 2003 issued by the Parent.
"Screen Rate" means in relation to LIBOR, the British Bankers'
Association Interest Settlement Rate for the relevant currency and period
displayed on page 3750 or 3740 (as appropriate) of the Telerate screen.
If any such agreed page is replaced or service ceases to be available,
the Agent may specify another page or service displaying the appropriate
rate after consultation with the Borrower and the Lenders.
"SEC" means the US Securities and Exchange Commission or any successor
thereto.
"Secured Obligations" means all obligations at any time due, owing or
incurred by any Obligor to any Secured Party under the Finance Documents,
whether present or future, actual or contingent (and whether incurred
solely or jointly and whether as principal or surety or in some other
capacity).
15
"Secured Parties" means, from time to time, each Finance Party and any
Receiver or Delegate.
"Securities Act" means the US Securities Act of 1933, as amended.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"Security Documents" means each of the security documents listed as being
a Security Document in paragraph 2(a) of Schedule 2 (Conditions
Precedent) together with any other document entered into by any Obligor
creating or expressed to create any Security over all or any part of its
assets in respect of the obligations of any of the Obligors under any of
the Finance Documents.
"Selection Notice" means a notice substantially in the form set out in
Part II (Selection Notice) of Schedule 3 (Requests) given in accordance
with Clause 9 (Interest Periods) in relation to the Facility.
"Share Redemption or Dividend", made by a person, means (a) any
redemption, purchase, retirement or other acquisition for consideration
of shares issued by it, or the setting apart of any such consideration
for such purpose, or other reduction in share capital; (b) any
declaration, making or payment, directly or indirectly, of any dividend,
any interest or other payment, or any other distribution of assets in
respect of its share capital (or any class thereof) or the setting apart
of any such assets for any such purpose; or (c) the payment of any
management, advisory or other fee to or to the order of the direct or
indirect holders of any of its share capital other than in the case of
this paragraph (c), on arm's length terms.
"Shortfall Date" means any date following a Shortfall First Date when
there is an obligation to make a prepayment pursuant to Clause 7.9(c) and
such prepayment obligation is in whole or part unsatisfied.
"Shortfall First Date" has the meaning set out in Clause 7.9(a)(i).
"Specified Time" means a time determined in accordance with Schedule 8
(Timetables).
"SRA" means the Strategic Rail Authority.
"Subsidiary" means in relation to any company or corporation, a company
or corporation:
(a) which is controlled, directly or indirectly, by the first
mentioned company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly by the first mentioned company or
corporation; or
16
(c) which is a Subsidiary of another Subsidiary of the first mentioned
company or corporation,
and for this purpose, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
direct its affairs and/or to control the composition of its board of
directors or equivalent body.
"Tax" means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"Taxes Act" means the Income and Corporation Taxes Xxx 0000.
"Total Commitments" means at any time the aggregate of the Commitments.
"Track Access Agreement" means the agreement referred to in paragraph
4(g) of Schedule 2 of this agreement.
"Transaction Closing Agenda" means the transaction closing agenda
prepared by Xxxxxxxx Chance LLP, initialled by or on behalf of the Parent
and the Agent on or before the signing of this Agreement for the purposes
of identification.
"Transaction Security" means the Security created or expressed to be
created in favour of the Trustee pursuant to the Security Documents.
"Transfer Certificate" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificates) or any other
form agreed between the Agent and the Borrower.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Agent executes the Transfer Certificate.
"Treasury Transaction" means any derivative transaction entered into in
connection with protection against or benefit from fluctuation in any
rate or price (including any currency or interest purchase, cap or collar
agreement, forward rate agreements, interest rate or currency future or
option contract, foreign exchange or currency purchase or sale agreement,
interest rate swap, currency swap or combined interest rate and currency
swap agreement and any other similar agreement) (and, when calculating
the value of any derivative transaction, only the marked to market value
shall be taken into account).
"Unfunded Pension Liability" means the excess of an Employee Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of that plan's assets, determined in accordance with the
assumptions used for funding the Employee Plan pursuant to Section 412 of
the Code for the applicable plan year.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under
the Finance Documents.
17
"US Obligor" means any company who is a Guarantor and is formed or
incorporated under the laws of the United States of America, any state
thereof or the District of Columbia.
"US Tax" means any federal, state, local or foreign income, gross
receipts, license, premium, windfall profits, customs duties, capital
stock, franchise, profits, withholding, social security (or similar),
real property, personal property, sales, use, registration, value added,
alternative or add-on minimum, estimated or other tax of any kind
whatsoever, including any interest, penalty or addition thereto, whether
disputed or not.
"Utilisation" means a utilisation of the Facility.
"Utilisation Date" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out in
Part I of Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax Xxx
0000 and any other tax of a similar nature.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other person, the holders of which are ordinarily, in
the absence of contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such person, even
if the right so to vote has been suspended by the happening of such a
contingency.
1.2 Construction
(a) Unless a contrary indication appears any reference in this
Agreement to:
(i) the "Agent", the "Arranger", the "Trustee", any "Finance
Party", any "Secured Party", any "Lender", any "Obligor" or
any "Party" shall be construed so as to include its
successors in title, permitted assigns and permitted
transferees and, in the case of the Trustee, any person for
the time being appointed as trustee or trustees in
accordance with this Agreement;
(ii) "assets" includes present and future properties, revenues
and rights of every description;
(iii) "control" means:
(A) the power (whether by way of ownership of shares,
proxy, contract, agency or otherwise) to:
(1) cast, or control the casting of, more than
one-half of the maximum number of votes that
might be cast at a general meeting of the
Parent; or
(2) appoint or remove all, or the majority, of
the directors or other equivalent officers of
the Parent; or
18
(3) give directions with respect to the operating
and financial policies of the Parent which
the directors or other equivalent officers of
the Parent are obliged to comply with; or the
holding of more than one-half of the issued
share capital of the Parent (excluding any
part of that issued share capital that
carries no right to participate beyond a
specified amount in a distribution of either
profits or capital).
(iv) In addition to a "change of control" as set forth in
paragraphs (iii)(A)(1) - (3) above, with respect to a US
Obligor, any entity, person (within the meaning of Section
14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) or group of persons (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) that theretofore was beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of less than 20 per
cent. of the US Obligor's Voting Stock shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of
the SEC under the Exchange Act), directly or indirectly, of
Voting Stock of the US Obligor (or other securities
convertible into such Voting Stock) representing 20 per
cent. or more of the combined voting power of all Voting
Stock of the applicable US Obligor.
(v) a "Finance Document" or any other agreement or instrument
is a reference to that Finance Document or other agreement
or instrument as amended or novated;
(vi) "indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of
money, whether present or future, actual or contingent;
(vii) a"person" includes any person, firm, company, corporation,
government, state or agency of a state or any association,
trust or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
(viii) a"regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(ix) a provision of law is a reference to that provision as
amended or re-enacted; and
(x) a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of reference
only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
19
(d) A Default (other than an Event of Default) is "continuing" if it
has not been remedied or waived and an Event of Default is
"continuing" if it has not been waived.
1.3 Currency Symbols and Definitions "(pound)" and "sterling" denotes the
lawful currency of the United Kingdom and "$", "US$" and "dollars"
denotes the lawful currency of the United States of America.
1.4 Third party rights A person who is not a Party has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce or to enjoy the
benefit of any term of this Agreement.
(a) Unless expressly provided to the contrary in a Finance Document a
person who is not a Party (other than any "indemnified person" as
referred to in sub-clauses 21.43(e) (Indemnification) and 21.43(f)
(Contribution) has no right under the Contracts (Rights of Third
Parties) Act 1999 (the "Third Parties Act") to enforce or to enjoy
the benefit of any term of this Agreement.
(b) Notwithstanding any term of any Finance Document, the consent of
any person who is not a Party is not required to rescind or vary
this Agreement at any time.
20
SECTION 2
THE FACILITY
2. The Facility
2.1 The Facility
Subject to the terms of this Agreement, the Lenders make available to the
Borrower a term loan facility in an aggregate amount equal to the Total
Commitments.
2.2 Finance Parties' rights and obligations
(a) The obligations of each Finance Party under the Finance Documents
are several. Failure by a Finance Party to perform its obligations
under the Finance Documents does not affect the obligations of any
other Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under
the Finance Documents.
(b) The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from an
Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
2.3 Parent as Obligors' agent
Each Obligor irrevocably appoints the Parent as its agent for the purpose
of:
(a) executing and delivering on its behalf any agreement or document
capable of being entered into by that Obligor under or in
connection with the Finance Documents;
(b) giving and receiving any notice or instruction under or in
connection with any Finance Document (including any Utilisation
Request); and
(c) agreeing and executing all consents, agreements and amendments
(however fundamental and notwithstanding any increase in
obligations of or other effect on an Obligor) entered into in
connection with the Finance Documents (including confirmation of
continuation of guarantee obligations in connection with any
amendment or consent in relation to the Facility).
3. Purpose
3.1 Purpose
The Borrower shall apply all amounts borrowed by it under the Facility
towards the repayment of the SCL Bonds on the Bond Maturity Date, save
that, subject to the terms of this Agreement,
(a) prior to the Bond Maturity Date up to the Available Facility at
any time will be available for general working capital purposes of
the Group; and
21
(b) on and after the Bond Maturity Date, up to one third of the Total
Commitments may be used for the general working capital purposes
of the Group.
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. Conditions Of Utilisation
4.1 Initial conditions precedent
The Borrower may not deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Schedule 2,
Part I (Conditions Precedent) in form and substance satisfactory to the
Agent. The Agent shall notify the Borrower and the Lenders promptly upon
being so satisfied.
4.2 Further conditions precedent
The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(a) no Default is continuing or would result from the proposed Loan;
(b) the Repeating Representations to be made by each Obligor are true
in all material respects;
(c) in relation to any Utilisation on or after the Bond Maturity Date:
(i) the Borrower has requested the making of a Utilisation on
the Bond Maturity Date in an amount at least equal to the
amount required to repay the SCL Bonds in full less any
amount in the Mandatory Prepayment Account; and that the
Utilisation is made and proceeds thereof are first applied
in repayment of the SCL Bonds in full, and to the extent
the SCL Bonds are repaid in full, for other purposes
permitted pursuant to Clause 3.1 (Purpose);
(ii) the Parent has provided evidence in form and substance
satisfactory to the Agent on or before the Specified Time
that the proceeds of the Available Facility (plus any
amount in the Mandatory Prepayment Account) on the Bond
Maturity Date are sufficient to repay the SCL Bonds in full
on such date; and
(iii) the Agent has received evidence in form and substance
satisfactory to it that any registered security over assets
of any member of the Group (other than the Parent), other
than the Transaction Security and the Existing Security,
has been released.
4.3 Maximum number of Loans
The Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation, five or more Loans would be outstanding.
22
SECTION 3
UTILISATION
5. Utilisation
5.1 Delivery of a Utilisation Request
The Borrower may utilise the Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not be regarded
as having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within the
Availability Period;
(ii) the currency and amount of the Utilisation comply with
Clause 5.3 (Currency and amount);
(iii) the proposed Interest Period complies with Clause 9
(Interest Periods); and
(iv) it is signed by an Authorised Signatory of the Parent.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be dollars.
(b) The amount of the proposed Loan must be a minimum of US$10,000,000
or if less, the Available Facility.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met, each
Lender shall make its participation in each Loan available by the
Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan on any date
will be equal to the proportion borne by its Available Commitment
to the Available Facility immediately prior to making the Loan,
and, for the avoidance of doubt and as specified in the definition
of "Commitment", prior to the Bond Maturity Date, the Available
Commitment of certain Lenders may be zero.
(c) On the Bond Maturity Date, all Loans outstanding on such date
shall be notionally refinanced as between the Lenders such that
payments shall be made between the Lenders only, through and on
the instructions of the Agent to ensure that on the Bond Maturity
Date each Lender's participation in each Loan made or outstanding
on the Bond Maturity Date is equal to the proportion borne by its
Available Commitment (on the Bond Maturity Date) to the Available
Facility.
23
(d) In relation to any Utilisation on the Bond Maturity Date, the
Agent shall calculate the amounts to be paid by each Lender on a
net basis taking into account paragraph (b) above in relation to
that Utilisation, and paragraph (c) above in relation to aggregate
participations in the Facility and shall by the Specified Time
notify the Lenders of all amounts to be paid under paragraphs (b)
and (c) above in relation to such Utilisation.
24
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
6. Repayment
6.1 Repayment of Loans
(a) The Borrower shall repay the Loans made to it in full on the Final
Repayment Date.
(b) On one date falling at any time before the earlier of (i) the date
falling a week after the Exchange Offer Closing Date; and (ii) 24
June 2003 (inclusive), the Borrower shall repay an amount equal to
the Relevant Outstandings. The Borrower may not use any sums
standing to the credit of the Mandatory Prepayment Account or the
Dividends Account to make such repayment.
6.2 Re-borrowings
The Borrower may not reborrow any part of the Facility which is prepaid
save that, any amount repaid in accordance with paragraph (b) of Clause
6.1 (Repayment of Loans) may be re-borrowed on the Bond Maturity Date
subject to the terms of this Agreement.
7. Prepayment And Cancellation
7.1 Illegality
If it becomes unlawful in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Borrower, the Commitment of that
Lender will be immediately cancelled; and
(c) the Borrower shall repay that Lender's participation in the Loans
made to the Borrower on the last day of the Interest Period for
each Loan occurring after the Agent has notified the Borrower or,
if earlier, the date specified by the Lender in the notice
delivered to the Agent.
7.2 Mandatory Cancellation
(a) The Available Facility shall be automatically cancelled to zero on
the last day of the Availability Period.
(b) On the Bond Maturity Date, the Available Facility shall
automatically be cancelled to an amount equal to the lesser of (i)
an amount equal to the aggregate of the Exchange Offer Amount and
the principal amount of any Utilisation on such date to the extent
the proceeds of such Utilisation were used to repay the SCL Bonds;
and (ii) an amount equal to the aggregate of one third of the
Total Commitments as defined in Part II of Schedule 1 (The
Original Parties) and the principal amount of any Utilisation on
such date to the extent the proceeds of such Utilisation were used
to repay the SCL Bonds, in each case to the extent less than or
equal to US$158,000,000.
25
7.3 Voluntary prepayment of Loans
(a) The Borrower may, if it gives the Agent not less than five
Business Days' (or such shorter period as the Majority Lenders may
agree) prior notice, prepay the whole or any part of any Loan
(but, if in part, being an amount that reduces the Loan by a
minimum amount of US$2,000,000).
(b) A Loan may only be prepaid after the last day of the Availability
Period (or, if earlier, the day on which the Available Facility is
zero).
7.4 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender by an Obligor is required to
be increased under paragraph (c) of Clause 12.2 (Tax
gross-up); or
(ii) any Lender claims indemnification from the Borrower under
Clause 12.3 (Tax indemnity) or Clause 13.1 (Increased
costs); or
(iii) any Lender notifies the Agent of its Additional Cost Rate
under paragraph 3 of Schedule 4 (Mandatory Cost Formulae);
the Borrower may whilst (in the case of paragraphs (i) and (ii)
above) the circumstance giving rise to the requirement or
indemnification continues or (in the case of paragraph (iii)
above) that Additional Cost Rate is greater than zero, give the
Agent notice of cancellation of the Commitment of that Lender and
its intention to procure the repayment of that Lender's
participation in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if
earlier, the date specified by the Borrower in that notice), the
Borrower shall repay that Lender's participation in that Loan.
7.5 Mandatory Prepayment and Cancellation - Sale of Security and other
Disposals
(a) For the purposes of this Clause 7.5:
"Disposal" means a sale, lease, transfer, loan or other disposal
by a person, not made in the ordinary course of such member of the
Group's business on arm's length terms, of any asset, undertaking
or business (whether voluntary or involuntary and whether as a
single transaction or a series of transactions) excluding a
Disposal by the Parent other than a Disposal in the context of a
Sale of Security or any shares or interest in a company which is a
member of the Group including without limitation, in accordance
with Clause 7.9 (Mandatory Prepayment and Cancellation - Sale of
Security: Shortfall and Right to Sell).
"Disposal Proceeds" means the consideration receivable by any
member of the Group or any Subsidiary of Silja Holdings Limited
(including any amount receivable in repayment of intercompany
debt) for any Disposal including any Sale of Security (but other
than an OEH Share Disposal), made by any member of the Group after
deducting:
26
(i) reasonable expenses incurred by any member of the Group
with respect to that Disposal to person(s) who are not
members of the Group; and
(ii) any amount required to be applied in mandatory prepayment
of Existing Financial Indebtedness of any member of the
Group, provided that the terms thereof are the same as
those originally entered into on or prior to the date of
such agreement.
"Sale of Security" means any of the Isle of Man Disposal, the
Ports Group Disposal or the Marine Group Disposal.
(b) The aggregate of the Commitments of each Lender on and from the
Bond Maturity Date shall be automatically cancelled by an amount
equal to any Disposal Proceeds promptly upon the Closing Date of
any relevant Disposal pro rata their Commitments at such time; and
each Lender's Commitment prior (if positive) to such date shall be
automatically cancelled by an amount such that following such
cancellation such Commitment does not exceed the amount of such
Lender's Commitment on and after such date; and the Borrower shall
promptly prepay such Loans as to ensure that following such
prepayment, the aggregate of all Loans is equal to or less than
the Available Facility at such time after having taken into
account such cancellation.
(c) Promptly upon the occurrence of any Disposal, the Disposal
Proceeds of which are to be applied in accordance with paragraph
(b) above, the Parent shall notify the Agent in writing setting
out the amount and calculation of any such Disposal Proceeds and
details of the Closing Date.
7.6 Mandatory Prepayment and Cancellation - Equity and Debt Financings
(a) For the purposes of this Clause 7.6:
"Debt Financing" means any debt financing provided to, with
recourse to or credit support from, or raised by (or committed or
made available to) any member of the Group or any Subsidiary of
Silja Holdings Limited, including without limitation any financing
whereby any member of the Group or any Subsidiary of Silja
Holdings Limited raises funds through any type of capital markets
or bank debt instrument, from any type of securitisation, or from
any other form of debt other than debt financing referred to in
paragraphs (b)(i) to (ix) of Clause 21.31 (Indebtedness).
"Equity Financing" means any equity sale, issue or offering by any
member of the Group, other than (in the case of any member of the
Group other than the Parent) to any person which is already a
shareholder of such member of the Group.
"Financing" means any Debt Financing or Equity Financing.
27
"Financing Proceeds" means the proceeds receivable by or made
available to any member of the Group from any Financing after
deducting reasonable expenses incurred by any member of the Group
with respect to that Financing to person(s) who are not members of
the Group.
(b) The aggregate of the Commitments of each Lender on and from the
Bond Maturity Date shall be automatically cancelled by an amount
equal to any Financing Proceeds promptly upon the occurrence of
any Financing pro rata their Commitments at such time; and each
Lender's Commitment prior (if positive) to such date shall be
automatically cancelled by an amount such that following such
cancellation such Commitment does not exceed the amount of such
Lender's Commitment on and after such date; and the Borrower shall
promptly prepay such Loans so as to ensure that following such
prepayment, the aggregate of all Loans is equal to or less than
the Available Facility at such time after having taken into
account such cancellation.
(c) Promptly upon the occurrence of any Financing, the Financing
Proceeds of which are to be applied in accordance with paragraph
(b) above, the Parent shall notify the Agent in writing setting
out the amount and calculation of such Financing Proceeds.
7.7 Mandatory Prepayment and Cancellation - GNER Dividend
(a) For the purposes of this Clause 7.7:
"GNER Dividend" means any Dividend or loan made by GNER Limited
pursuant to paragraph (b)(iii) of Clause 21.16 (Dividends) on any
date after the date of this Agreement.
"Excluded Dividend" means (i) any GNER Dividend made at any time
after the date of this Agreement and before 15 November 2003 in
aggregate up to (pound)20,000,000 less (ii) at any time, the
Relevant Amount provided that on and from 15 November 2003 if on
such date the Closing Date for each Sale of Security by a member
of Group to a third person has occurred, such amount shall be
zero.
"Net Claim" means an amount at any time equal to the Interim
Recovery, or the net recovery by the Group in relation to the
final settlement or other determination of the Xxxxxxxx Litigation
as at the Final Settlement Date.
"Relevant Amount" means an amount from time to time, which is due
and payable prior to the Final Repayment Date and, is equal to the
amount by which the Net Claim is less than (pound) [***].
"Relevant Dividend" means any GNER Dividend other than an Excluded
Dividend.
(b) The aggregate of the Commitments of each Lender on and from the
Bond Maturity Date shall be automatically cancelled by an amount
equal to the Relevant Dividend promptly upon payment thereof pro
rata their Commitments at such time; and each Lender's Commitment
prior (if positive) to such date (if any) shall be automatically
cancelled by an amount such that following such cancellation such
Commitment does not exceed the amount of such Lender's Commitment
on and after such date; and the Borrower shall promptly prepay
such Loans so as to ensure that following such prepayment, the
aggregate of all Loans is equal to or less than the Available
Facility at such time after having taken into account such
cancellation.
28
(c) Promptly upon the occurrence of any GNER Dividend, the Parent
shall notify the Agent in writing setting out the amount and
calculation of such GNER Dividend and specifying whether such
dividend is a Relevant Dividend.
(d) In the event that the Parent has withdrawn from the GNER Dividend
Account at any time an amount greater than the Excluded Dividend
(the "Prepayment Amount") at that time, the aggregate of the
Commitments of each Lender on and from the Bond Maturity Date
shall be automatically cancelled by an amount equal to the
Prepayment Amount pro rata their Commitments at such time; and
each Lender's Commitment prior (if positive) to such date (if any)
shall be automatically cancelled by an amount such that following
such cancellation such Commitment does not exceed the amount of
such Lender's Commitment on and after such date; and the Borrower
shall promptly prepay such Loans so as to ensure that following
such prepayment, the aggregate of all Loans is equal to or less
than the Available Facility at such time after having taken into
account such cancellation.
7.8 Mandatory Prepayment and Cancellation - OEH Shares
(a) For the purposes of this Clause 7.8 and Clause 7.5 (Mandatory
Prepayment and Cancellation - Sale of Security and other
Disposals):
"OEH Share Disposal" means a sale of OEH Shares, including without
limitation, in accordance with Clause 7.9 (Mandatory Prepayment
and Cancellation - Sale of Security: Shortfall and Right to Sell).
"OEH Shares Proceeds" means the consideration receivable by any
member of the Group pursuant to an OEH Share Disposal after
deducting reasonable expenses incurred by any member of the Group
with respect to that OEH Share Disposal to person(s) who are not
members of the Group.
(b) The aggregate of the Commitments of each Lender on and from the
Bond Maturity Date shall be automatically cancelled by an amount
equal to any OEH Shares Proceeds promptly upon the occurrence of
any OEH Share Disposal pro rata their Commitments at such time;
and each Lender's Commitment prior (if positive) to such date (if
any) shall be automatically cancelled by an amount such that
following such cancellation such Commitment does not exceed the
amount of such Lender's Commitment on and after such date; and the
Borrower shall promptly prepay such Loans so as to ensure that
following such prepayment, the aggregate of all Loans is equal to
or less than the Available Facility at such time after having
taken into account such cancellation.
29
(c) Promptly upon the occurrence of any OEH Share Disposal, the
Disposal Proceeds of which are to be applied in accordance with
paragraph (b) above, the Parent shall notify the Agent in writing
setting out the amount and calculation of any such OEH Shares
Proceeds.
7.9 Mandatory Prepayment and Cancellation - Sale of Security: Shortfall and
Right to Sell
(a) For the purposes of this Clause 7.9:
"Shortfall Event" shall be deemed to have occurred:
(i) on any date prior to 15 November 2003 if the Cash Disposal
Proceeds for any Sale of Security received by a member of
the Group on the applicable Closing Date are less than the
Relevant Proceeds Amount (a "Shortfall First Date"); or
(ii) on 15 November 2003, if the Closing Date for each Sale of
Security by a member of the Group to a third person has not
occurred.
"Shortfall Amount" means:
(i) in relation to a Shortfall Event falling within paragraph
(i) of the definition thereof and any Sale of Security, an
amount equal to the difference between the Relevant
Proceeds Amount and the Cash Disposal Proceeds; and
(ii) in relation to a Shortfall Event falling within paragraph
(ii) of the definition thereof and any Sale of Security,
the Relevant Proceeds Amount of such Sale of Security that
has not occurred prior to 15 November 2003.
"Relevant Proceeds Amount" means:
(i) in relation to the Isle of Man Group Disposal,
US$ [***] (or its equivalent in other currencies);
(ii) in relation to the Ports Group Disposal, US$ [***] (or its
equivalent in other currencies); and
(iii) in relation to the Marine Group Disposal, US$ [***] (or its
equivalent in other currencies).
(b) Promptly upon the occurrence of any Sale of Security or a
Shortfall Event, the Parent shall notify the Agent in writing (the
"Disposal Proceeds Amount Notice") setting out the amount and
calculation of the Disposal Proceeds, the Cash Disposal Proceeds
and the Closing Date.
(c) Immediately upon the occurrence of any Shortfall Event:
(i) the aggregate of the Commitments of each Lender on and from
the Bond Maturity Date shall be automatically cancelled by:
30
(A) (if the Shortfall Event occurs prior to 15 November
2003), an amount equal to the relevant Shortfall
Amount (calculated in accordance with paragraph (i)
of the definition thereof above); or
(B) (if the Shortfall Event occurs on or after 15
November 2003), an amount equal to the Relevant
Proceeds Amount,
(in each case, promptly upon each of the amounts in (A) and
(B) being received by any member of the Group) pro rata
their Commitments at such time; and each Lender's
Commitment prior (if positive) to such date (if any) shall
be automatically cancelled by an amount such that following
such cancellation such Commitment does not exceed the
amount of such Lender's Commitment on and after such date;
and the Borrower shall promptly prepay such Loans so as to
ensure that following such prepayment, the aggregate of all
Loans is equal to or less than the Available Facility at
such time after having taken into account such
cancellation; and
(ii) at any time following the occurrence of a Sales Date, the
Agent (acting on the instructions of the Majority Lenders)
shall have the right to sell (whether by exercise of its
rights and powers under the power of attorney of the Parent
in favour of the Agent provided pursuant to Clause 4
(Conditions of Utilisation) and Schedule 2 (Conditions
Precedent) (the "Power of Attorney") or otherwise) OEH
Shares at such times, in such manner, and in such volumes
as the Agent may direct in its absolute discretion
including, without limitation, by way of:
(A) trade sale to a strategic or financial buyer;
(B) unregistered block trade or private placement;
(C) public sales under a shelf registration statement of
OEH filed with the SEC, with the Parent acting
solely upon the instructions of the Agent or the
Agent selling on behalf of the Parent under the
Power of Attorney, in each case including an
underwritten offering;
(D) unsolicited broker's transactions or sales directly
with marketmakers, in each case pursuant to Rule 144
under the Securities Act, and
the Parent shall take, and shall use its reasonable best
efforts, including through using its voting rights and
board representation, to procure that OEH will take, any
action necessary, and shall provide, and shall use its
reasonable best efforts, including through using its voting
rights and board representation, to procure that OEH will
provide, any manner of assistance as the Agent may require
in connection with such sale. The proceeds of such sale
should not exceed an amount equal to (if such sale occurs
as a result of a Shortfall Date) any unsatisfied repayment
obligation pursuant to paragraph (i) above, and/or (if such
sale occurs as a result of a Sales Date other than a
Shortfall Date) all Loans together with accrued interest
and all other amounts accrued or outstanding under the
Finance Documents plus any excess amount which shall be
returned to the Parent.
31
(d) In connection with the sale (in any manner whatsoever) of the OEH
Shares after a Sales Date, the Parent shall promptly do, and shall
use its reasonable best efforts, including through using its
voting rights and board representation, to procure that OEH will
do, all such acts or execute all such documents as the Agent may
reasonably specify (and in such form as the Agent may reasonably
require in favour of the Agent or its nominees).
(e) If, on 1 November 2003, the Closing Date for each Sale of Security
by a member of the Group to a third person has not occurred, the
Parent shall have the right to deliver to the Lenders through the
Agent a written strategy paper relating to the repayment of any
Shortfall Amount that may be due on 15 November 2003. For the
period commencing 3 Business Days after receipt of such strategy
paper by the Agent to the Business Day prior to 15 November 2003,
the Agent shall make itself available to consult with the Parent
in relation to its proposed strategy at reasonable times and
following reasonable notice by the Parent. Any obligation to be
available to consult shall be without prejudice in any way to the
rights of the Agent or any of the other Finance Parties pursuant
to any other provision of the Finance Documents.
(f) The Parent shall ensure that on or before the earlier of any Sales
Date (other than a Shortfall Date) and 1 November 2003 the Agent
or any Affiliate thereof or any other third party nominated by the
Agent (acting on the instructions of the Majority Lenders) is
appointed sole and exclusive sales agent with respect to each
Disposal Group pursuant to an appointment letter in form and
substance acceptable to the Agent (in its absolute discretion) and
pursuant to such letter, such sales agent shall have the rights to
effect the sale of any Disposal Group on behalf of the relevant
member of the Group at any time on or after such date and, shall
have the right to solicit and accept any purchase offer in respect
of the assets relating thereto (in consultation with the Parent).
(g) In connection with paragraph (f) above or otherwise, the Parent
shall ensure that on or before the earlier of any Sales Date
(other than a Shortfall Date) and 1 November 2003, it will, upon
written notice from the Agent (acting on the instructions of the
Majority Lenders), execute a power of attorney (in form and
substance acceptable to the Agent, in its absolute discretion) in
favour of any person nominated by the Agent (acting on the
instructions of the Majority Lenders) as sales agent and will
promptly execute all documents and do all things (including the
execution and delivery of any notices) that the Agent may specify
(acting in its absolute discretion) in each case, in order to
effect the sale of any Disposal Group on behalf of any relevant
member of the Group or otherwise to enable the sales agent to act
without any responsibility or liability to any person.
32
(h) Notwithstanding paragraphs (f) and (g) above, at any time
following the occurrence of any Sales Date other than a Shortfall
Date, the Parent shall from time to time procure the sale of any
Disposal Group (or any part thereof) by the relevant member of the
Group at such times, to such persons, and on such terms and
conditions (including price) as the Agent (acting on the
instructions of the Majority Lenders) shall, in its absolute
discretion, determine by written notice to the Parent.
7.10 Mandatory Prepayment Account for amounts to repay the SCL Bonds
(a) Without prejudice to the obligations under Clauses 7.5 (Mandatory
Prepayment and Cancellation - Sale of Security and other
Disposals) to 7.9 (Mandatory Prepayment and Cancellation -
Shortfall on Sale of Security), the Parent shall ensure that an
amount equal to the Disposal Proceeds, the Financing Proceeds, the
OEH Shares Proceeds and the relevant amount determined pursuant to
sub-paragraph 7.9(c)(i)(A) or (B) (as the case may be) are paid
promptly into a Mandatory Prepayment Account at any time prior to
the Bond Maturity Date. For the avoidance of doubt, there shall be
no withdrawals from the Mandatory Prepayment Account prior to the
Bond Maturity Date.
(b) On the Bond Maturity Date:
(i) provided there is no Default, amounts credited to the
Mandatory Prepayment Account shall be applied to repay the
SCL Bonds; or
(ii) if there is a Default that is continuing but which has not
yet become an Event of Default, the Borrower may utilise
any amount credited to the Mandatory Prepayment Account in
repayment of the SCL Bonds less any amount equal to the
Loans outstanding at such time.
(c) After the Bond Maturity Date, if no Default has occurred prior
thereto, the Transaction Security over the Mandatory Prepayment
Account shall be automatically released and the Parent may use any
amount standing to the credit of that account for any purpose.
(d) A Lender or Agent with which a Mandatory Prepayment Account is
held acknowledges and agrees that interest shall accrue at normal
commercial rates on amounts credited to those accounts and that
the account holder shall be entitled to receive such interest
(which shall be paid in accordance with the mandates relating to
such account).
7.11 Mandatory Prepayment and Cancellation
(a) For the purposes of this Clause 7.11 "Cancellation Date" means the
earlier of (i) the occurrence of the Closing Date in relation to
the last Sale of Security; and (ii) 15 November 2003, if the
Closing Date for each the Sale of Security by a member of the
Group to a third person has not occurred by that date.
(b) Upon a Cancellation Date, if the aggregate listed market value of
the OEH Shares subject to Transaction Security less any Shortfall
Amount unpaid on that date is equal to or less than US$70,000,000,
then, within one week of the Cancellation Date, the aggregate of
the Commitments of each Lender on and from such date shall be
automatically cancelled in full; and the Borrower shall promptly
prepay all Loans so as to ensure that following such prepayment,
there are no amounts outstanding under the Facility.
33
7.12 Restrictions
(a) Any notice of cancellation or prepayment given by any Party under
this Clause 7 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or
dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
(c) The Borrower may not reborrow any part of the Facility which is
prepaid.
(d) The Borrower shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at the
times and in the manner expressly provided for in this Agreement.
(e) No amount of any Commitment cancelled under this Agreement may be
subsequently reinstated.
(f) If the Agent receives a notice under this Clause 7 it shall
promptly forward a copy of that notice to either the Borrower or
the affected Lender, as appropriate.
34
SECTION 5
COSTS OF UTILISATION
8. Interest
8.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR; and
(c) Mandatory Cost, if any.
8.2 Payment of interest
The Borrower shall pay accrued interest on that Loan on the last day of
each Interest Period (and, if the Interest Period is longer than six
Months, on the dates falling at six Monthly intervals after the first day
of the Interest Period).
8.3 Default interest
(a) If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual payment
(both before and after judgment) at a rate which, subject to
paragraph (b) below, is one per cent higher than the rate which
would have been payable if the overdue amount had, during the
period of non-payment, constituted a Loan in the currency of the
overdue amount for successive Interest Periods, each of a duration
selected by the Agent (acting reasonably). Any interest accruing
under this Clause 8.3 shall be immediately payable by the Obligor
on demand by the Agent.
(b) If any overdue amount consists of all or part of a Loan which
became due on a day which was not the last day of an Interest
Period relating to that Loan:
(i) the first Interest Period for that overdue amount shall
have a duration equal to the unexpired portion of the
current Interest Period relating to that Loan; and
(ii) the rate of interest applying to the overdue amount during
that first Interest Period shall be one per cent. higher
than the rate which would have applied if the overdue
amount had not become due.
(c) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain
immediately due and payable.
8.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
35
9. Interest Periods
9.1 Selection of Interest Periods
(a) The Borrower may select an Interest Period for a Loan in the
Utilisation Request for that Loan or (if the Loan has already been
borrowed) in a Selection Notice.
(b) Each Selection Notice for a Loan is irrevocable and must be
delivered to the Agent by the Borrower not later than the
Specified Time.
(c) If the Borrower, fails to deliver a Selection Notice to the Agent
in accordance with paragraph (b) above, the relevant Interest
Period will, subject to Clause 9.2 (Changes to Interest Periods),
be one Month.
(d) Subject to this Clause 9, the Borrower, may select an Interest
Period of one or three Months or any other period agreed between
the Borrower and the Agent (acting on the instructions of all the
Lenders).
(e) An Interest Period for a Loan shall not extend beyond the Final
Repayment Date save that, in respect of any Loan outstanding prior
to the Bond Maturity Date, an Interest Period may not extend
beyond the Bond Maturity Date.
(f) Each Interest Period for a Loan shall start on the Utilisation
Date or (if already made) on the last day of its preceding
Interest Period.
9.2 Changes to Interest Periods
If the Agent makes any of the changes to an Interest Period referred to
in this Clause 9.2, it shall promptly notify the Borrower and the
Lenders.
9.3 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next Business
Day in that calendar month (if there is one) or the preceding Business
Day (if there is not).
9.4 Consolidation of Loans
Subject to paragraph (b) below, if two or more Interest Periods:
(a) relate to Loans in the same currency; and
(b) end on the same date,
those Loans will, unless the Borrower, specifies to the contrary in the
Selection Notice for the next Interest Period, be consolidated into, and
treated as, a single Loan on the last day of the Interest Period.
10. Changes To The Calculation Of Interest
10.1 Absence of quotations
Subject to Clause 10.2 (Market disruption), if LIBOR is to be determined
by reference to the Reference Banks but a Reference Bank does not supply
a quotation by noon on the Quotation Day, the applicable LIBOR shall be
determined on the basis of the quotations of the remaining Reference
Banks.
36
10.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share
of that Loan for the Interest Period shall be the rate per annum
which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to be
paid in respect of that Interest Period, to be that which
expresses as a percentage rate per annum the cost to that
Lender of funding its participation in that Loan from
whatever source it may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none
or only one of the Reference Banks supplies a rate to the
Agent to determine LIBOR for the relevant currency and
Interest Period; or
(ii) before close of business in London on the Quotation Day for
the relevant Interest Period, the Agent receives
notifications from a Lender or Lenders (whose
participations in a Loan exceed 35 per cent. of that Loan)
that the cost to it of obtaining matching deposits in the
Relevant Interbank Market would be in excess of LIBOR.
10.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the Borrower`
so requires, the Agent and the Borrower shall enter into
negotiations (for a period of not more than thirty days) with a
view to agreeing a substitute basis for determining the rate of
interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the Borrower,
be binding on all Parties.
10.4 Break Costs
(a) The Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being paid
by the Borrower on a day other than the last day of an Interest
Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the amount
of its Break Costs for any Interest Period in which they accrue.
37
11. Fees
11.1 Commitment fee
(a) The Borrower shall pay to the Agent (for the account of each
Lender) a fee in dollars computed from day to day at the rate of
the Commitment Fee on an amount equal to each Lender's Commitment
on and from the Bond Maturity Date:
(A) accrued from the date of the Mandate Documents until the
date of this Agreement, and payable on the date hereof; and
(B) on and from the date hereof, such amount less an amount
equal to its participations in any Loans made during the
Availability Period and is payable on the last day of each
successive period of three Months which ends during the
Availability Period, on the last day of the Availability
Period and, if cancelled in full, on the cancelled amount
of the relevant Lender's Commitment at the time the
cancellation is effective.
11.2 Structuring Fee
The Borrower shall pay to Citigroup Global Markets Limited (for its own
account) a structuring fee in the amount and at the times set out in a
Fee Letter.
11.3 Arrangement fee
The Borrower shall pay to the Arranger an arrangement fee in the amount
and at the times agreed in a Fee Letter.
11.4 Agency and Trustee fee
The Borrower shall pay to the Agent (for its own account) an agency fee
and to the Trustee (for its own account) a security trustee fee in each
case in the amount and at the times agreed in a Fee Letter.
38
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
12. Tax Gross Up And Indemnities
12.1 Definitions
(a) In this Agreement:
"Protected Party" means a Finance Party which is or will be
subject to any liability, or required to make any payment, for or
on account of Tax in relation to a sum received or receivable (or
any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
"Qualifying Lender" means a Lender which is beneficially entitled
to interest payable to that Lender in respect of an advance under
a Finance Document and is:
(i) a Lender:
(A) which is a bank (as defined for the purpose of
section 349 of the Taxes Act) making an advance
under a Finance Document; or
(B) in respect of an advance made under a Finance
Document by a person that was a bank (as defined for
the purpose of section 349 of the Taxes Act) at the
time that that advance was made,
and which is within the charge to United Kingdom
corporation tax as respects any payments of interest made
in respect of that advance; or
(ii) a Lender which is:
(A) a company resident in the United Kingdom for United
Kingdom tax purposes;
(B) a partnership each member of which is a company
resident in the United Kingdom for United Kingdom
tax purposes; or
(C) a company not so resident in the United Kingdom
which carries on a trade in the United Kingdom
through a branch or agency and which brings into
account interest payable in respect of that advance
in computing its chargeable profits (within the
meaning given by section 11(2) of the Taxes Act); or
(iii) a Treaty Lender.
"Tax Confirmation" means a confirmation by a Lender that the
person beneficially entitled to interest payable to that Lender in
respect of an advance under a Finance Document is either:
(i) a company resident in the United Kingdom, or a partnership
each member of which is a company resident in the United
Kingdom, for United Kingdom tax purposes; or
39
(ii) a company not so resident in the United Kingdom which
carries on a trade in the United Kingdom through a branch
or agency and that interest payable in respect of that
advance falls to be brought into account in computing the
chargeable profits of that company for the purposes of
section 11(2) of the Taxes Act.
"Tax Credit" means a credit against, relief or remission for, or
repayment of any Tax.
"Tax Deduction" means a deduction or withholding for or on account
of Tax from a payment under a Finance Document.
"Tax Payment" means either the increase in a payment made by an
Obligor to a Finance Party under Clause 12.2 (Tax gross-up) or a
payment under Clause 12.3 (Tax indemnity).
"Treaty Lender" means a Lender which:
(i) is treated as a resident of a Treaty State for the purposes
of the Treaty;
(ii) does not carry on a business in the United Kingdom through
a permanent establishment with which that Lender's
participation in the Loan is effectively connected; and
(iii) if the relevant treaty contains additional conditions (over
and above those set out in paragraphs (i) and (ii)) which
must be satisfied by the relevant non-UK lender in order to
enable the Lender to receive interest gross, the Lender has
satisfied such additional conditions.
"Treaty State" means a jurisdiction having a double taxation
agreement (a "Treaty") with the United Kingdom which makes
provision for full exemption from tax imposed by the United
Kingdom on interest.
"UK Non-Bank Lender" means:
(i) where a Lender becomes a Party on the day on which this
Agreement is entered into, a Lender listed in Part III (The
Original Lenders - UK Non-Bank Lenders) of Schedule 1 (The
Original Parties); and
(ii) where a Lender becomes a Party to this Agreement after the
day on which this Agreement is entered into, a Lender which
gives a Tax Confirmation in the Transfer Certificate which
it executes on becoming a Party to this Agreement.
(b) Unless a contrary indication appears, in this Clause 12 a
reference to "determines" or "determined" means a determination
made in the absolute discretion of the person making the
determination.
12.2 Tax gross-up
(a) Each Obligor shall make all payments to be made by it without any
Tax Deduction, unless a Tax Deduction is required by law.
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(b) The Borrower shall promptly upon becoming aware that an Obligor
must make a Tax Deduction (or that there is any change in the rate
or the basis of a Tax Deduction) notify the Agent accordingly.
Similarly, a Lender shall notify the Agent on becoming so aware in
respect of a payment payable to that Lender. If the Agent receives
such notification from a Lender it shall notify the Borrower and
that Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor,
the amount of the payment due from that Obligor shall be increased
to an amount which (after making any Tax Deduction) leaves an
amount equal to the payment which would have been due if no Tax
Deduction had been required.
(d) An Obligor is not required to make an increased payment to a
Lender under paragraph (c) above for a Tax Deduction in respect of
tax imposed by the United Kingdom from a payment of interest on a
Loan, if on the date on which the payment falls due:
(i) the payment could have been made to the relevant Lender
without a Tax Deduction if it was a Qualifying Lender, but
on that date that Lender is not or has ceased to be a
Qualifying Lender other than as a result of any change
after the date it became a Lender under this Agreement in
(or in the interpretation, administration, or application
of) any law or Treaty, or any published practice or
concession of any relevant taxing authority; or
(ii)
(A) the relevant Lender is a UK Non-Bank Lender, or
would have been a UK Non-Bank Lender were it not for
any change after the date it became a Lender under
this Agreement in (or in the interpretation,
administration, or application of) any law or
Treaty, or any published practice or concession of
any relevant taxing authority; and
(B) the Board of the Inland Revenue has given (and not
revoked) a direction under section 349C of the Taxes
Act (as that provision has effect on the date on
which the relevant Lender became a party to this
Agreement) which relates to that payment and that
Obligor has notified that UK Non-Bank Lender of the
precise terms of that notice; or
(iii) the relevant Lender is a Treaty Lender and the Obligor
making the payment is able to demonstrate that the payment
could have been made to the Lender without the Tax
Deduction had that Lender complied with its obligations
under paragraph (g) below.
(e) If an Obligor is required to make a Tax Deduction, that Obligor
shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and in
the minimum amount required by law.
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(f) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Obligor making
that Tax Deduction shall deliver to the Agent for the Finance
Party entitled to the payment an original receipt (or certified
copy thereof) evidencing to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing authority.
(g) A Treaty Lender and each Obligor which makes a payment to which
that Treaty Lender is entitled shall co-operate in completing any
procedural formalities necessary for that Obligor to obtain
authorisation to make that payment without a Tax Deduction.
(h) A UK Non-Bank Lender which becomes a Party on the day on which
this Agreement is entered into gives a Tax Confirmation to the
Borrower by entering into this Agreement.
(i) A UK Non-Bank Lender shall promptly notify the Borrower and the
Agent if there is any change in the position from that set out in
the Tax Confirmation.
12.3 Tax indemnity
(a) The Borrower shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be or
has been (directly or indirectly) suffered for or on account of
Tax by that Protected Party in respect of a Finance Document.
(b) Paragraph (a) above shall not apply:
(i) with respect to any Tax assessed on a Finance Party:
(A) under the law of the jurisdiction in which that
Finance Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax
purposes; or
(B) under the law of the jurisdiction in which that
Finance Party's Facility Office is located in
respect of amounts received or receivable in that
jurisdiction,
if that Tax is imposed on or calculated by reference to the
net income received or receivable (but not any sum deemed
to be received or receivable) by that Finance Party; or
(ii) to the extent a loss, liability or cost:
(A) is compensated for by an increased payment under
Clause 12.2 (Tax gross-up); or
(B) would have been compensated for by an increased
payment under Clause 12.2 (Tax gross-up) but was not
so compensated solely because one of the exclusions
in paragraph (d) of Clause 12.2 (Tax gross-up)
applied.
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(c) A Protected Party making, or intending to make a claim under
paragraph (a) above shall promptly notify the Agent of the event
which will give, or has given, rise to the claim, following which
the Agent shall notify the Borrower.
(d) A Protected Party shall, on receiving a payment from an Obligor
under this Clause 12.3, notify the Agent.
12.4 Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable either to an increased payment of
which that Tax Payment forms part, or to that Tax Payment; and
(b) that Finance Party has obtained, utilised and fully retained that
Tax Credit on an affiliated group basis,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been required
to be made by the Obligor.
12.5 Stamp taxes
The Borrower shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
12.6 Value added tax
(a) All consideration expressed to be payable under a Finance Document
by any Party to a Finance Party shall be deemed to be exclusive of
any VAT. If VAT is chargeable on any supply made by any Finance
Party to any Party in connection with a Finance Document, that
Party shall pay to the Finance Party (in addition to and at the
same time as paying the consideration) an amount equal to the
amount of the VAT.
(b) Where a Finance Document requires any Party to reimburse a Finance
Party for any costs or expenses, that Party shall also at the same
time pay and indemnify the Finance Party against all VAT incurred
by the Finance Party in respect of the costs or expenses to the
extent that the Finance Party reasonably determines that it is not
entitled to credit or repayment of the VAT.
13. Increased Costs
13.1 Increased costs
(a) Subject to Clause 13.3 (Exceptions) the Borrower shall, within
three Business Days of a demand by the Agent, pay for the account
of a Finance Party the amount of any Increased Costs incurred by
that Finance Party or any of its Affiliates as a result of (i) the
introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation or (ii)
compliance with any law or regulation made after the date of this
Agreement.
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(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing
its obligations under any Finance Document.
13.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause 13.1
(Increased costs) shall notify the Agent of the event giving rise
to the claim, following which the Agent shall promptly notify the
Borrower.
(b) Each Finance Party shall, as soon as practicable after a demand by
the Agent, provide a certificate confirming the amount of its
Increased Costs.
13.3 Exceptions
(a) Clause 13.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be made
by an Obligor;
(ii) compensated for by Clause 12.3 (Tax indemnity) (or would
have been compensated for under Clause 12.3 (Tax indemnity)
but was not so compensated solely because any of the
exclusions in paragraph (b) of Clause 12.3 (Tax indemnity)
applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation.
(b) In this Clause 13.3, a reference to a "Tax Deduction" has the same
meaning given to the term in Clause 12.1 (Definitions).
14. Other Indemnities
14.1 Currency indemnity
(a) If any sum due from an Obligor under the Finance Documents (a
"Sum"), or any order, judgment or award given or made in relation
to a Sum, has to be converted from the currency (the "First
Currency") in which that Sum is payable into another currency (the
"Second Currency") for the purpose of:
(i) making or filing a claim or proof against that Obligor;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
44
that Obligor shall as an independent obligation, within three
Business Days of demand, indemnify each Finance Party to whom that
Sum is due against any cost, loss or liability arising out of or
as a result of the conversion including any discrepancy between
(A) the rate of exchange used to convert that Sum from the First
Currency into the Second Currency and (B) the rate or rates of
exchange available to that person at the time of its receipt of
that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
14.2 Other indemnities
The Borrower shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify each Finance Party against any cost,
loss or liability incurred by that Finance Party as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 27 (Sharing among
the Finance Parties);
(c) funding, or making arrangements to fund, its participation in a
Loan requested by a Borrower in a Utilisation Request but not made
by reason of the operation of any one or more of the provisions of
this Agreement (other than by reason of default or negligence by
that Finance Party alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by the Borrower.
14.3 Indemnity to the Agent
The Borrower shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default;
or
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
15. Mitigation By The Lenders
15.1 Mitigation
(a) Each Finance Party shall, in consultation with the Borrower, take
all reasonable steps to mitigate any circumstances which arise and
which would result in any amount becoming payable under or
pursuant to, or cancelled pursuant to, any of Clause 7.1
(Illegality), Clause 12 (Tax gross up and indemnities), Clause 13
(Increased costs) or paragraph 3 of Schedule 4 (Mandatory Cost
Formulae) including (but not limited to) transferring its rights
and obligations under the Finance Documents to another Affiliate
or Facility Office.
45
(b) Paragraph (a) above does not in any way limit the obligations of
any Obligor under the Finance Documents.
15.2 Limitation of liability
(a) The Borrower shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 15.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 15.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it.
16. Costs And Expenses
16.1 Transaction expenses
The Borrower shall promptly on demand pay the Agent and the Arranger the
amount of all reasonable documented valuation expenses, travelling
expenses, professional fees and reports, and "out-of-pocket" expenses
including legal expenses reasonably incurred by any of them in connection
with due diligence, drafting, negotiation, preparation, printing,
execution, closing, syndication and maintenance of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
16.2 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 28.9 (Change of currency), the
Borrower shall, within three Business Days of demand, reimburse the Agent
for the amount of all costs and expenses (including legal fees)
reasonably incurred by the Agent in responding to, evaluating,
negotiating or complying with that request or requirement.
16.3 Enforcement costs
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
16.4 Collateral costs
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the perfection or
enforcement of the collateral constituted by any Security Document or the
exercise of any rights thereunder.
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SECTION 17
GUARANTEE
17. Guarantee And Indemnity
17.1 Guarantee and indemnity
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by the
Borrower of all the Borrower's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever the Borrower does
not pay any amount when due under or in connection with any
Finance Document, that Guarantor shall immediately on demand pay
that amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal. The amount of the cost, loss or liability shall be
equal to the amount which that Finance Party would otherwise have
been entitled to recover.
17.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
17.3 Reinstatement
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for
those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from each Obligor, as if the
payment, discharge, avoidance or reduction had not occurred.
17.4 Waiver of defences
The obligations of each Guarantor under this Clause 17 will not be
affected by an act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice any of its obligations under this
Clause 17 (without limitation and whether or not known to it or any
Finance Party) including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of any
member of the Group;
47
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Obligor or other
person or any non-presentation or non-observance of any formality
or other requirement in respect of any instrument or any failure
to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality of
or dissolution or change in the members or status of an Obligor or
any other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
17.5 Immediate recourse
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed against
or enforce any other rights or security or claim payment from any person
before claiming from that Guarantor under this Clause 17. This waiver
applies irrespective of any law or any provision of a Finance Document to
the contrary.
17.6 Appropriations
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of any Guarantor's liability
under this Clause 17.
17.7 Deferral of Guarantors' rights
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full and unless the Agent otherwise directs, no Guarantor will exercise
any rights which it may have by reason of performance by it of its
obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents by
any Finance Party.
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17.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance
Party.
17.9 Limitation on U.S. Guarantors
Any term or provision of this Clause 17 or any other term in this
Agreement or any Finance Document notwithstanding, the maximum aggregate
amount of the obligations for which any U.S. Obligor shall be liable
hereunder shall in no event exceed an amount equal to the largest amount
that would not render such U.S. Obligor's obligations hereunder, subject
to avoidance under applicable United States federal or state fraudulent
conveyance laws.
17.10 Limitation on Bermuda Guarantors
Any term or provision of this Clause 17 or any other term in this
Agreement or any Finance Document shall not extend to any liability or
sum which, after giving effect to any rights of contribution of any
Bermuda Obligor among themselves, would cause the undertaking or
discharge of such obligation by such Bermuda Obligor to be unlawful or
prohibited by any applicable Bermudan law.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
18. Representations
Each Obligor in relation to itself and the Parent, on behalf of each
other member of the Group which is not an Obligor, makes the
representations and warranties set out in this Clause 18 to each Finance
Party on the date of this Agreement (other than in relation to the
Information Package which shall be made in accordance with Clause 18.40
(Repetition)).
18.1 Status
(a) It is a corporation, duly incorporated and validly existing under
the law of its jurisdiction of incorporation.
(b) It and each of its Subsidiaries has the power to own its assets
and carry on its business as it is being conducted.
18.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law as at the date of this
Agreement limiting its obligations which are specifically referred to in
any legal opinion delivered pursuant to Clause 4 (Conditions of
Utilisation) legal, valid, binding and enforceable obligations.
18.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its or any of its Subsidiaries' constitutional documents; or
(c) any agreement or instrument binding upon it or any of its
Subsidiaries or any of its or any of its Subsidiaries' assets.
18.4 Power and authority
(a) It has the power to enter into, perform and deliver, and has taken
all necessary action to authorise its entry into, performance and
delivery of, the Finance Documents to which it is a party and the
transactions contemplated by those Finance Documents.
(b) It and each of its Subsidiaries has the power and has taken all
necessary corporate action to authorise it to own its property and
assets and to carry on its business as currently conducted.
(c) No limit on its powers will be exceeded as a result of the
borrowing, grant of security or giving of guarantees or
indemnities contemplated by the Finance Documents to which it is a
party.
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18.5 Authorisations
(a) All Authorisations required or reasonably desirable:
(i) to enable it lawfully to enter into, exercise its rights
and comply with its obligations in the Finance Documents to
which it is a party;
(ii) to make the Finance Documents to which it is a party
admissible in evidence in each Relevant Jurisdiction;
(iii) subject to the Legal Reservations, to make the Finance
Documents to which it is a party admissible in evidence in
its Relevant Jurisdictions,
have been obtained or effected and are in full force and effect
except any such requirement in connection with the Transaction
Security Documents which will be made promptly after the execution
of the relevant Transaction Security Document and in any event
within the applicable time limits in accordance with the terms
hereof.
(b) All contracts, licences, consents and Authorisations necessary or
desirable for carrying on the conduct of the business, trade and
ordinary activities of it and any member of the Group have been
obtained or effected, are in full force and effect and are not
likely to be revoked, amended or unavailable to it or any member
of the Group and no notice of an intention to terminate any such
contract, licence, consent or Authorisation has been received by
it or any member of the Group.
(c) To the extent that it is under an obligation to comply, it has at
all times complied with the Port Legislation in relation to the
Property, there has been no default in the observance of the
conditions and restrictions (if any) imposed in, or in connection
with, any of the same and no circumstances have arisen (i) which
would entitle any person to revoke, suspend, amend, vary, withdraw
or refuse to amend any of the same which may reasonably be
expected to have a Material Adverse Effect or (ii) which might
give rise to any claim under the Port Legislation against any
member of the Group which may reasonably be expected to have a
Material Adverse Effect having regard to the cost to each member
of the Group of meeting such claim.
(d) All Authorisations necessary for the conduct of the business,
trade and ordinary activities of members of the Group including
under, or in connection with, the ISM Code have been obtained or
effected and are in full force and effect.
18.6 Solvency
(a) Neither it nor any member of the Group is unable or has admitted
inability to pay its debts as they fall due or has suspended
making payments on any of its debts or, by reason of actual or
anticipated financial difficulties, commenced negotiations with
one or more of its creditors with a view to rescheduling any of
its indebtedness (other than the Exchange Offer).
51
(b) The value of the assets of it or any member of the Group is not
less than the liabilities of it or that member of the group
(taking into account contingent and prospective liabilities).
(c) A moratorium has not been declared in respect of any of the
indebtedness of it or any member of the Group.
(d) No event or circumstance described in Clause 22.6 (Insolvency) or
Clause 22.7 (Creditors' process) has been taken or, to the
knowledge of the Borrower, threatened in relation to it or any
member of the Group.
18.7 Governing law and enforcement
(a) The choice of governing law of each of the Finance Documents will
be recognised and enforced in each Relevant Jurisdiction.
(b) Any judgment obtained in England in relation to a Finance Document
will be recognised and enforced in each Relevant Jurisdiction.
18.8 Deduction of Tax
It is not required under the law of each Relevant Jurisdiction to make
any deduction for or on account of Tax from any payment it may make under
any Finance Document.
18.9 No filing or stamp taxes
Under the law of each Relevant Jurisdiction it is not necessary that the
Finance Documents be filed, recorded or enrolled with any court or other
authority in that jurisdiction or that any stamp, registration, notarial
or similar Taxes or fees be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance Documents
except any filing, recording or enrolling or any tax or fee payable in
connection with the Transaction Security or notified to the Agent prior
to the Closing Date.
18.10 No default
(a) No Default is continuing or might reasonably be expected to result
from the making of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding
on it or any of its Subsidiaries or to which its (or its
Subsidiaries') assets are subject which might reasonably be
expected to have a Material Adverse Effect.
(c) The Franchise Agreement is in full force and effect and no Event
of Default (as defined therein) has occurred and no other event or
circumstance has occurred or is subsisting which might reasonably
be expected to lead to the termination of the Franchise Agreement.
18.11 No misleading information
(a) Any factual information including, for the avoidance of doubt and
without limitation, the Franchise Termination Assessment
Memorandum, the Litigation Settlement Memoranda and any
information provided to potential bidders in relation to the
acquisition of any of (or any member of) the Disposal Group,
provided by it or any member of the Group was true and accurate in
all material respects as at the date it was provided or as at the
date (if any) at which it is stated and is not misleading in any
respect.
52
(b) The financial projections provided by it or any member of the
Group have been prepared on the basis of recent historical
information and on the basis of reasonable assumptions.
(c) Nothing has occurred or been omitted from any information provided
by it or any member of the Group and no information has been given
or withheld that results in such information being untrue or
misleading in any material respect.
(d) Network Rail has the obligation to pay CP2 Payments (as defined in
paragraph 6 of the Litigation Settlement Memorandum relating to
the Xxxxxxxx Litigation) by way of recompense for poor performance
from April 2001 to members of the Group and without set-off,
deduction or counterclaim.
(e) As at the date hereof, the Interim Recovery is(pound) [***].
18.12 Non-disclosure
Neither any Obligor nor the Parent have failed to disclose to the Agent
any matters of which they are aware which could reasonably be expected to
adversely affect:
(a) such party's ability to pay any indebtedness under this Agreement;
or
(b) such party's ability to comply with any Finance Documents or the
validity or enforceability of any Finance Document.
18.13 Financial statements
(a) Its latest Financial Statements (being those most recently
delivered to the Agent) were prepared in accordance with Relevant
GAAP consistently applied.
(b) Its latest Financial Statements (being those most recently
delivered to the Agent) fairly represent its financial condition
and operations (consolidated in the case of the Parent) during the
relevant financial year.
18.14 Material Adverse Change
There has been no change in its business, condition (financial or
otherwise), prospects or operations of the Group (taken as a whole), any
Disposal Group (taken as a whole) or the Borrower, since 31 December 2002
which might reasonably be expected to have a Material Adverse Effect.
18.15 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
18.16 No proceedings pending or threatened
(a) No investigation, litigation, arbitration or administrative
proceedings of or before any court, arbitral body or agency, which
if adversely determined might reasonably be expected to have a
Material Adverse Effect, other than as disclosed, have been
started or threatened against it or any of its Subsidiaries.
53
(b) No labour disputes, which would reasonably be expected to have a
Material Adverse Effect, have been started or (to the best of its
knowledge and belief after making reasonable enquiries of the
relevant members of the management of the Group) threatened
against it or any of its Subsidiaries.
(c) No unsatisfied judgement or award given against it or any member
of the Group by any court, arbitral body or agency exists which
might reasonably be expected to have a Material Adverse Effect
(other than in relation to any judgement or award other than a
final judgement or award, which is being contested in good faith).
18.17 Environmental compliance and environmental claims
(a) Each member of the Group:
(i) has performed and observed in all material respects all
Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or agreements
directly or indirectly concerned with any contamination,
pollution or waste or the release or discharge of any toxic
or hazardous substance in connection with any real property
which is or was at any time owned, leased or occupied by it
or any member of the Group or on which it or any member of
the Group has conducted any activity;
(ii) has performed all material covenants, conditions,
restrictions, agreements, statutory requirements, planning
consents, bye-laws, orders and regulations affecting any
property which it or any member of the Group is or has
occupied or conducted any activity in, including relating
to the Environment, no notice of any breach of any such
matter has been received and as far as the Parent is aware,
there are no grounds for any such notice being issued;
(iii) has no Environmental Claim or potential liability relating
to the Environment (which has not been disclosed to the
Agent in writing prior to the date of this Agreement)
commenced against it (or to the best of its knowledge and
belief) threatened against it in connection with its acts
or omissions (whether in respect of any properties or the
ships owned or operated by it or otherwise) nor in
connection with the acts or omissions of any predecessor in
title to any properties or the ships owned or operated by
it where such claim or potential liability would be
reasonably likely, if determined against it or that member
of the Group to have a Material Adverse Effect;
(iv) has at all times been, and is in compliance with
Environmental Laws, has not caused or permitted any
liability to arise under them and no circumstances exist
which are or ought reasonably to be known which might be
expected to prevent it or any member of the Group being in
compliance with any Environmental Laws or result in any
liability under them;
54
(v) has no knowledge of any circumstances existing which may
reasonably be expected to prevent or interfere with
compliance with Environmental Permits in the future which
have not been disclosed in writing to the Agent prior to
the date of this Agreement; and
(b) The future cost of compliance with Environmental Laws by it and
any member of the Group is adequately provided for in the annual
budget of the Parent.
18.18 Joint ventures
No member of the Group (other than the Parent) has entered into any
partnership, joint venture or other agreement with any person outside the
Group for the joint development of any business or the sharing of any
assets or revenues derived from any business other than normal commercial
arrangements entered into on arm's length terms consistent with the
normal course of the Group's business.
18.19 Taxation
(a) It has duly and punctually paid and discharged all Taxes imposed
upon it or its assets within the time period allowed without
incurring penalties (save to the extent that (i) payment is being
contested in good faith, (ii) it has maintained adequate reserves
for those Taxes and (iii) payment can be lawfully withheld).
(b) It is not materially overdue in the filing of any Tax returns
where such late filing would reasonably be expected to have a
Material Adverse Effect.
(c) No claims are being or are reasonably likely to be asserted
against it with respect to Taxes which would reasonably be
expected to have a Material Adverse Effect.
(d) Save as disclosed in the Original Financial Statements no member
of the Group has any material unindemnified tax liabilities.
18.20 Security
No third party consents or regulatory approvals are required for the
purposes of a sale of all or part of the Charged Property.
18.21 Ranking
The Transaction Security has or will have first ranking priority and it
is not subject to any prior ranking or pari passu ranking Security.
18.22 Transaction Security
Each Security Document to which it is a party validly creates the
Security which is expressed to be created by that Security Document and
evidences the Security it is expressed to evidence and is enforceable in
accordance with its terms.
18.23 Good Title to Assets
It has good, valid and marketable title to, or valid leases or licences
of, and all appropriate Authorisations to use, the assets necessary to
carry on its business as presently conducted.
55
18.24 Legal and Beneficial Owner
It is the absolute legal owner and beneficial owner of the assets subject
to the Transaction Security free from any Security, claims or competing
interests whatsoever other than the Existing Security.
18.25 Shares
(a) In relation to any OEH shares, any shares in the Isle of Man
Group, the Marine Group and Silja Holdings Limited, in each case,
subject to Transaction Security as at the date hereof; and, in
relation to the shares of any other relevant member of the Group,
within the earlier of 1 Month of the date of this Agreement and 24
June 2003, the constitutional documents of companies whose shares
are subject to the Transaction Security do not and will not
restrict or inhibit any transfer of those shares on creation or on
enforcement of the Transaction Security or, in the case of the OEH
Shares, upon sale thereof pursuant to Clause 7.8 (Mandatory
Prepayment and Cancellation - OEH Shares) hereof.
(b) The applicable shares which are subject to the Transaction
Security are fully paid and not subject to any option to purchase
or similar rights.
(c) There are no agreements in force which provide for the issue or
allotment of, or grant any person the right to call for the issue
or allotment of, any share or loan capital (including any option
or right of pre-emption or conversion) of any member of the Group.
18.26 Intellectual Property
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its Intellectual Property which would
reasonably be expected to have a Material Adverse Effect.
18.27 Business Assets
It and each of its Subsidiaries has a good, valid and marketable title to
or valid leases or licences of and all appropriate Authorisations to use
all assets to carry on its business as presently conducted.
18.28 Pensions
It and each member of the Group is in material compliance with all
applicable laws and contracts relating to the pension schemes (if any)
operated by it or in which it participates (other than those pension
schemes subject to ERISA) and each such pension scheme is fully funded to
the extent required by law by provision in the relevant balance sheet or
otherwise) based on reasonable actuarial assumptions and administered and
funded in accordance with applicable law.
18.29 Insurances
To the best of its knowledge, information and belief:
(a) each of the insurance policies by which it is covered is in full
force and effect;
(b) there has been no material breach of any term of any insurance
policy which would entitle the relevant insurer to avoid the same;
56
(c) in respect of each insurance policy, all premiums due have been
paid in full (save in respect of normal credit terms for payment
of premiums) and there are no material outstanding claims under
it;
(d) where a member of the Group operates, owns or bare boat charters
(as the case may be) Ferries, it is covered under group and other
insurance policies in respect of such risks and amounts as would
be usually covered by a reasonably prudent owner and operator of
ferry services and tourism-related activities in any area where it
operates such services or activities;
(e) where a member of the Group operates, owns or bare boat charters
(as the case may be) Ferries, in respect of each Ferry owned or
operated by it, hull and machinery insurance is maintained on its
behalf for a total loss representing an amount at least equal to
its full replacement value with a vessel of similar size, nature,
purpose and capacity and for partial loss in an amount at least
equal to the repair value, as determined in accordance with market
practice generally; and
(f) where a member of the Group operates, owns or bare boat charters
(as the case may be) Ferries, in respect of an vessel which it
owns or which it bare boat charters, protection and indemnity
insurance is maintained by it or on its behalf.
18.30 Ferries
(a) Each Ferry is:
(i) in the absolute legal and beneficial ownership of a member
of the Group, subject to any Existing Security; and
(ii) operated under legal, valid, enforceable and binding
charters from their owners and are registered in the names
of their operators at the appropriate national registry.
(b) Each Ferry has been issued with all necessary governmental
documentation necessary to permit it to carry on its business in
the usual course and all such documentation is valid and current.
18.31 Ports
The Ports Group own all the port assets of material value and necessary
to run the ports business of the Group as at the date hereof; and such
assets are the subject of the Transaction Security.
18.32 Health and safety regulation
Each member of the Group is compliant in all material respects with all
the applicable provisions of law and regulation covering health and
safety at work.
18.33 Group Structure Chart
The Group Structure Chart delivered to the Agent pursuant to Clause 4
(Conditions of Utilisation) shows each member of the Group and accurately
and completely represents the corporate ownership structure of the Group.
57
18.34 Financial Year End
Its financial year end, and the financial year end of the Group, is 31
December.
18.35 ERISA and Multiemployer Plans
(a) Neither any US Obligor nor any ERISA Affiliate is making or
accruing an obligation to make contributions or has within any of
the five calendar years immediately preceding the date of this
Agreement made or accrued an obligation to make contributions to
any Multiemployer Plan.
(b) Each Employee Plan is in compliance in form and operation with
ERISA and the Code and all other applicable laws and regulations.
(c) Each Employee Plan which is intended to be qualified under Section
401(a) of the Code has been determined by the IRS to be so
qualified or is in the process of being submitted to the IRS for
approval or will be so submitted during the applicable remedial
amendment period, and, to the knowledge of the Borrower, nothing
has occurred since the date of such determination that would
adversely affect such determination (or, in the case of an
Employee Plan with no determination, nothing has occurred that
would materially adversely affect such qualification).
(d) There has been no increase in the amount of Unfunded Pension
Liability with respect to any Employee Plan as it existed on the
date of this Agreement.
(e) There are no actions, suits or claims pending against or involving
an Employee Plan (other than routine claims for benefits) or, to
the knowledge of the Borrower, any US Obligor or any ERISA
Affiliate, threatened, which would reasonably be expected to be
asserted successfully against any Employee Plan.
(f) Each US Obligor and any ERISA Affiliate has made all material
contributions to or under each such Employee Plan required by law
within the applicable time limits prescribed thereby, the terms of
such Employee Plan, or any contract or agreement requiring
contributions to an Employee Plan.
(g) Neither any US Obligor nor any ERISA Affiliate has ceased
operations at a facility so as to become subject to the provisions
of Section 4068(a) of ERISA, withdrawn as a substantial employer
so as to become subject to the provisions of Section 4063 of ERISA
or ceased making contributions to any Employee Plan subject to
Section 4064(a) of ERISA to which it made contributions.
(h) Neither any US Obligor nor any ERISA Affiliate has incurred or
reasonably expects to incur any liability to PBGC save for any
liability for premiums due in the ordinary course or other
liability which would not reasonably be expected to have a
Material Adverse Effect.
18.36 Margin Stock
(a) No US Obligor is engaged nor will it engage principally, or as one
of its important activities, in the business of owning or
extending credit for the purpose of "buying" or "carrying" any
Margin Stock.
58
(b) None of the proceeds of the Loans or other extensions of credit
under this Agreement will be used, directly or indirectly, for the
purpose of buying or carrying any Margin Stock, for the purpose of
reducing or retiring any Indebtedness that was originally incurred
to buy or carry any Margin Stock or for any other purpose which
might cause all or any Loans or other extensions of credit under
this Agreement to be considered a "purpose credit" within the
meaning of Regulation U or Regulation X.
(c) No US Obligor or any agent acting on its behalf has taken or will
take any action which might cause the Finance Documents to violate
any regulation of the Board of Governors of the Federal Reserve
System of the United States.
18.37 Investment Companies
No US Obligor is an "investment company" or an "affiliated person" of an
"investment company" as such terms are defined in the Investment Company
Act of 1940 of the United States (the "1940 Act") or otherwise subject to
regulation under the 1940 Act or subject to regulation under the Public
Utility Holding Company Act of 1935 of the United States, the Federal
Power Act of 1935 of the United States or any United States federal or
state statute or regulation restricting or limiting its ability to incur
indebtedness.
18.38 Anti-Terrorism Laws
(a) None of the Obligors or, to the knowledge of any of the Obligors,
any of their Affiliates, is in violation of any laws relating to
terrorism or money laundering ("Anti-Terrorism Laws"), including
Executive Order No. 13224 on Terrorist Financing, effective
September 24, 2001 (the "Executive Order"), and the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
(b) No Obligor or, to the knowledge of any of the Obligors, any of
their Affiliates, or their respective brokers or other agents
acting or benefiting in any capacity in connection with the
Facility, is any of the following:
(i) a person or entity that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive
Order;
(ii) a person or entity owned or controlled by, or acting for or
on behalf of, any person or entity that is listed in the
annex to, or is otherwise subject to the provisions of, the
Executive Order;
(iii) a person or entity with which any Lender is prohibited from
dealing or otherwise engaging in any transaction by any
Anti-Terrorism law;
(iv) a person or entity that commits, threatens or conspires to
commit or supports "terrorism" as defined in the Executive
Order; or
(v) a person or entity that is named as a "specially designated
national and blocked Person" on the most current list
published by the US Treasury Department Office of Foreign
Asset Control at its official website or any replacement
website or other replacement official publication of such
list.
59
(c) No Obligor, or to the knowledge of any Obligor, any of its brokers
or other agents acting in any capacity in connection with the
Facility (i) conducts any business or engages in making or
receiving any contribution of funds, goods or services to or for
the benefit of any person described in paragraph (b) above, (ii)
deals in, or otherwise engages in any transaction relating to, any
property or interests in property blocked pursuant to the
Executive Order, or (iii) engages in or conspires to engage in any
transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set
forth in any Anti-Terrorism Law.
18.39 Registration Statement
The SEC has declared the Existing Shelf Registration Statement (as
defined in Clause 21.43 (Registration Rights and Indemnity Agreement)) as
amended, effective. The Existing Shelf Registration Statement allows for
the sale of the OEH Shares as contemplated by Clause 7.9 (c)(ii)(C). The
SEC has issued no order preventing or suspending the use of the Existing
Shelf Registration Statement or any amendment thereto.
18.40 Repetition
On the date of each Utilisation Request and the first day of each
Interest Period the Repeating Representations shall be deemed to be made
by each Obligor (by reference to the facts and circumstances then
existing).
18.41 Obligors' acknowledgement
Each Obligor and the Parent acknowledges that the Finance Parties have
provided the Facility in reliance on the representations and warranties
expressly set out in this Clause 18 and not on any other information
contradictory to or varying them of which any Finance Party or its agents
or advisers may have actual or constructive knowledge.
19. Information Undertakings
The undertakings in this Clause remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
19.1 Financial statements
The Parent shall, and, as applicable, shall procure that each Obligor
referred to below will, supply to the Agent in sufficient copies for all
the Lenders:
(a) as soon as the same become available, but in any event within 180
days after the end of each of its financial years, in relation to
each of, the:
(i) Parent and the Borrower, its audited consolidated financial
statements for that financial year; and
(ii) Parent, the Borrower, GNER Holdings Limited, GNER Limited
and Sea Containers Railway Services Limited, its audited
financial statements for that financial year;
60
(b) as soon as the same become available, but in any event within 90
days after the end of each half of each of its financial years, in
relation to each of, the:
(i) Parent and the Borrower, its consolidated financial
statements for that financial half year; and
(ii) Parent, the Borrower, GNER Holdings Limited, GNER Limited
and Sea Containers Railway Services Limited, its financial
statements for that financial half year;
(c) as soon as the same become available, but in any event within 30
days after the end of each quarter of each of its financial years,
in relation to each of the:
(i) Parent and the Borrower, its consolidated financial
statements for that period; and
(ii) Parent, the Borrower, GNER Holdings Limited, GNER Limited
and Sea Containers Railway Services Limited, its financial
statements of that period;
(d) as soon as it becomes available and not later than 30 days before
the start of its financial year, an itemised consolidated budget
for the Group as a whole for the next financial year in the format
approved by the Agent for the financial year 2003, such budget to
have been approved by the directors of the Parent, to include for
each quarter of each of its financial years consolidated
statements and statements for each member of the Group which is
trading, of forecast profit and loss, turnover and cash flow and a
balance sheet; together with a commentary on the above and to
contain such other information as is necessary in the reasonable
opinion of the Agent;
(e) subject to a request from the Agent, acting reasonably, as soon as
the same become available, but in any event:
(i) within 6 weeks after the end of each quarter of each of its
financial years its quarterly unaudited management accounts
and which shall include in respect of such period a
statement of its profit and loss;
(ii) within 120 days after the end of each of its financial
years copies of all registration statements (other than the
exhibits thereto) and reports on Form 10-K (or its
equivalent) which it shall or should have filed with the
SEC;
(iii) within 90 days after the end of each quarter of each of its
financial years all registration statements (other than the
exhibits thereto) and reports on Form 10-Q (or its
equivalent) which it shall or should have filed with the
SEC;
(f) upon the request of the Agent acting reasonably:
(i) such information, documents and records about the property,
business, financial condition, operations and prospects of
the Parent and any member of the Group as the Agent may
from time to time reasonably require;
61
(ii) in relation to any member of the Group, as soon as they
become available, but in any event within 30 days after the
end of each quarter of the relevant member of the Group's
financial years, its consolidated financial statements
(where relevant) and/or its financial statements for that
period; and
(iii) in relation to any member of the Group, as soon as they
become available, but in any event within 6 weeks after the
end of each quarter of the relevant member of the Group's
financial years, its quarterly unaudited management
accounts and which shall include in respect of such period
a statement of its profit and loss.
19.2 Compliance Certificate
(a) The Borrower shall supply to the Agent, with each set of financial
statements delivered pursuant to paragraph (a)(i), (b)(i) or
(c)(i) of Clause 19.1 (Financial statements), a Compliance
Certificate setting out (in reasonable detail) computations as to
compliance with Clause 20 (Financial Covenants) as at the date as
at which those financial statements were drawn up.
(b) Each Compliance Certificate shall be signed by an Authorised
Signatory of the Parent who is a finance officer and, if required
to be delivered with the financial statements delivered pursuant
to paragraph (a)(i) of Clause 19.1 (Financial statements), shall
be in the form agreed by the Borrower and all the Lenders before
the date of this Agreement.
19.3 Requirements as to financial statements
(a) Each set of financial statements delivered by the Parent and the
Borrower and any other Obligor pursuant to Clause 19.1 (Financial
statements) shall be certified by a director of the relevant
company and by an Authorised Signatory of the Parent, in each
case, as fairly representing its financial condition as at the
date as at which those financial statements were drawn up.
(b) The Parent shall procure that each set of financial statements
delivered pursuant to Clause 19.1 (Financial statements) is
prepared using Relevant GAAP.
19.4 Information: miscellaneous
The Borrower shall, and procure that each Obligor shall supply to the
Agent (in sufficient copies for all the Lenders, if the Agent so
requests):
(a) all documents dispatched by any member of the Group to its
shareholders (or any class of them) or its creditors generally at
the same time as they are dispatched;
(b) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which are
current, threatened or pending against any member of the Group,
and which might, if adversely determined, be reasonably expected
to have a Material Adverse Effect;
62
(c) promptly upon the date such information is available, such further
information regarding the details of any Exchange Offer, including
without limitation, the face value amount of SCL Bonds in
aggregate which are subject to the Exchange Offer, and
confirmation of the Exchange Offer Date; and
(d) promptly, such further information regarding the financial
condition, business and operations of any member of the Group as
any Finance Party (through the Agent) may reasonably request; and
(e) promptly from time to time, any information relating to any matter
the subject of any Litigation Settlement Memoranda, including
without limitation, any amount to be paid to the SRA by any member
of the Group or any recovery agreed or determined to be made from
Network Rail by any member of the Group in relation thereto.
19.5 Notification of default
(a) Each Obligor shall notify the Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon becoming aware of
its occurrence (unless that Obligor is aware that a notification
has already been provided by another Obligor).
(b) Promptly upon a request by the Agent, the Borrower shall supply to
the Agent a certificate signed by two of its directors or senior
officers on its behalf certifying that no Default is continuing
(or if a Default is continuing, specifying the Default and the
steps, if any, being taken to remedy it).
19.6 Use of websites
(a) The Borrower or any member of the Group may satisfy its obligation
under this Agreement to deliver any information in relation to
those Lenders ( the "Website Lenders") who accept this method of
communication by posting this information onto an electronic
website designated by the Borrower and the Agent (the "Designated
Website") if:
(i) the Agent expressly agrees (after consultation with each of
the Lenders) that it will accept communication of the
information by this method;
(ii) both the Borrower and the Agent are aware of the address of
and any relevant password specifications for the Designated
Website; and
(iii) the information is in a format previously agreed between
the Borrower and the Agent.
If any Lender (a "Paper Form Lender") does not agree to the
delivery of information electronically then the Agent shall notify
the Borrower accordingly and the Borrower shall supply the
information to the Agent (in sufficient copies for each Paper Form
Lender) in paper form. In any event the Borrower shall supply the
Agent with at least one copy in paper form of any information
required to be provided by it.
63
(b) The Agent shall supply each Website Lender with the address of and
any relevant password specifications for the Designated Website
following designation of that website by the Borrower and the
Agent.
(c) The Borrower shall promptly upon becoming aware of its occurrence
notify the Agent if:
(i) the Designated Website cannot be accessed due to technical
failure;
(ii) the password specifications for the Designated Website
change;
(iii) any new information which is required to be provided under
this Agreement is posted onto the Designated Website;
(iv) any existing information which has been provided under this
Agreement and posted onto the Designated Website is
amended; or
(v) the Borrower becomes aware that the Designated Website or
any information posted onto the Designated Website is or
has been infected by any electronic virus or similar
software.
If the Borrower notifies the Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information to be provided by the
Borrower under this Agreement after the date of that notice shall
be supplied in paper form unless and until the Agent and each
Website Lender is satisfied that the circumstances giving rise to
the notification are no longer continuing.
(d) Any Website Lender may request, through the Agent, one paper copy
of any information required to be provided under this Agreement
which is posted onto the Designated Website. The Borrower shall
comply with any such request within ten Business Days.
19.7 ERISA-Related Information
The Borrower shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) promptly and in any event within thirty days after any US Obligor
and each ERISA Affiliate (each, a "Relevant Company") knows or has
reason to know that any ERISA Event which, individually or when
aggregated with any other ERISA Event, would reasonably be
expected to have a Material Adverse Effect, the written statement
of a finance officer of such Relevant Company describing such
ERISA Event and the action, if any, which it proposes to take with
respect thereto and a copy of any notice filed with the PBGC or
the IRS pertaining thereto; providing that, in the case of ERISA
Events under paragraph (d) of the definition thereof, the 15-day
period set forth above shall be a 10-day period, and, in the case
of ERISA
(b) Events under paragraph (b) of the definition thereof, in no event
shall notice be given later than the occurrence of the ERISA
Event;
64
(c) promptly and in any event within 15 days after any Relevant
Company files a Schedule B (or such other schedule as contains
actuarial information) to IRS Form 5500 in respect of an Employee
Plan with Unfunded Pension Liabilities, a copy of such IRS Form
5500 (including the Schedule B); and
(d) promptly, and in any event within 30 days, after becoming aware
that there has been (A) a material increase in Unfunded Pension
Liabilities, taking into account only Employee Plans with positive
Unfunded Pension Liabilities; (B) a material increase in potential
withdrawal liability under Section 4201 of ERISA, if the Relevant
Company were to completely or partially withdraw from all
Multiemployer Plans; (C) the adoption of, or the commencement of
contributions to, any Employee Plan subject to Section 412 of the
Code by any Obligor or any Relevant Company; or (D) the adoption
of any amendment to an Employee Plan subject to Section 412 of the
Code which results in a material increase in contribution
obligations of any Obligor, the detailed written description
thereof from a finance officer of each affected Relevant Company,
as applicable.
19.8 Inspection of Books and Records
Upon the request of the Agent (on the instructions of any Finance Party)
the Borrower or relevant member of the Group shall provide the Agent and
any of its or their representatives, professional advisers and
contractors with access to and permit inspection of the books and records
of any member of the Group, in each case at reasonable times and upon
reasonable notice.
20. Financial Covenants
20.1 Financial definitions
In this Clause 20:
"Cash" of a member of the Group means, at any time:
(i) GNER Liquidity Maintenance Cash; and
(ii) cash at bank credited to an account in the name thereof and
to which such member of the Group is alone beneficially
entitled, and for so long as (a) that cash is repayable on
demand and (b) repayment of that cash is not contingent on
the prior discharge of any other indebtedness of any Group
member or of any other person whatsoever or on the
satisfaction of any other condition and (c) there is no
Security or netting or set-off arrangements over that cash
other than in respect of the Dividends Account.
"Consolidated Tangible Net Worth" means at any time the aggregate of the
amounts paid up or credited as paid up on the issued ordinary share
capital of the Parent and the aggregate amount of the reserves of the
Group,
including:
(i) any amount credited to the share premium account;
65
(ii) any capital redemption reserve fund; and
(iii) any balance standing to the credit of the consolidated
profit and loss account of the Group,
but deducting:
(1) any debit balance on the consolidated profit and loss
account of the Group;
(2) (to the extent included) any amount shown in respect of
goodwill (including goodwill arising only on consolidation)
or other intangible assets of the Group;
(3) any amount in respect of interests of non-Group members in
Group subsidiaries;
(4) (to the extent included) any amount set aside for taxation,
deferred taxation or bad debts;
(5) (to the extent included) any amounts arising from an upward
revaluation of assets made at any time after 31 December
2002; and
(6) any amount in respect of any dividend or distribution
declared, recommended or made by any member of the Disposal
Group to the extent payable to a person who is not a member
of the Disposal Group or to any other member of the
Disposal Group and to the extent such distribution is not
provided for in the most recent financial statements,
and so that no amount shall be included or excluded more than
once.
20.2 Financial condition
(a) Tangible Net Worth
Consolidated Tangible Net Worth shall at all times not be less
than US$250,000,000 (or its equivalent in other currencies).
(b) Maintenance of Cash by certain companies
The Parent, the Borrower, GNER Holdings Limited and GNER Limited
shall at all times maintain, in aggregate, at least US$50,000,000
(or its equivalent in other currencies) in Cash.
(c) Maintenance of Cash by the Borrower
Notwithstanding paragraph (b) above, the Borrower shall at all
times maintain at least (pound)2,500,000 (or its equivalent in
other currencies) in Cash which shall be increased to
(pound)5,000,000 (or its equivalent in other currencies) on and
after 15 November 2003.
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20.3 Financial testing
The financial covenants set out in Clause 20.2 (Financial Condition)
shall be taken by reference to each of the financial statements
delivered pursuant to Clause 19.1 (Financial statements).
21. General Undertakings
The undertakings in this Clause 21 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
Positive Covenants
21.1 Authorisations
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in
full force and effect; and
(b) supply certified copies to the Agent of, any Authorisation
(including under, or in connection with, the ISM Code) required
under any law or regulation of the Relevant Jurisdictions (and in
the case of the ISM Code, wherever the same is applicable) to:
(i) enable it to perform its obligations under the Finance
Documents;
(ii) to ensure the legality, validity, enforceability or
admissibility in evidence in each Relevant Jurisdiction of
any Finance Document; and
(iii) enable it to own its property and assets and to carry on
its business, trade and ordinary activities as currently
conducted.
21.2 Compliance with laws
Each Obligor shall comply in all respects with all laws to which it may
be subject, if failure so to comply would materially impair its ability
to perform its obligations under the Finance Documents.
21.3 Sale of Security - Conduct of Business
(a) The Parent shall and shall procure that every member of the
Disposal Group will:
(i) conduct and carry on its business in a proper and efficient
manner substantially in the same manner, to the same
standard and within the same areas of business as it has
done prior to its entering into this Agreement and shall
not take any step, or omit to take any step, the taking or
omission of which might reasonably be expected to have a
material adverse effect on the value of its goodwill;
(ii) operate its business in the usual way so as to maintain
that business as a going concern;
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(iii) not enter into a long-term, onerous, unusual or material
agreement, arrangement or obligation other than in the
ordinary course of business or in relation to the Sale of
Security; and
(iv) not amend or terminate a material agreement, arrangement or
obligation to which it is a party other than in the
ordinary course of business.
21.4 Waiver of Consequential Loss
In no event shall any Finance Party be liable on any theory of liability
for any special, indirect, consequential or punitive damages and each
Obligor hereby waives, releases and agrees (for itself and on behalf of
its Subsidiaries) not to xxx upon any such claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in
its favour.
21.5 Maintenance of Contracts
Each Obligor shall do all things necessary to maintain in full force and
effect when necessary, all contracts or rights necessary or desirable for
the conduct of its business.
21.6 Insurance
Each Obligor shall (and the Parent shall ensure that each member of the
Group will) procure and maintain customary and adequate insurances on
terms acceptable to the Agent relevant in each case to the conduct by
each Obligor (or each member of the Group, as the case may be,) of its
business in relation to property and marine assets; business
interruption; hull and machinery; and protection and indemnity
insurances, as well as in respect of liabilities for loss of or damage to
cargo and customers' equipment and ships, loss and/or damage due to
strikes, riots or terrorist acts, errors and omissions including delay
and unauthorised delivery, third party liabilities including impact and
accidental pollution, regulatory breach, wreck removal, investigation,
defence and mitigation costs, disposal costs and quarantine/disinfection
costs.
21.7 Occupational Leases
Subject to the terms of the Occupational Leases, during normal business
hours and upon reasonable notice permit the Agent and/or the Agent's
authorised representatives and advisers to have access to the Property
and all buildings thereon for the purpose of inspecting the Property.
21.8 Environmental Compliance
Each Obligor shall (and the Parent shall procure that each member of the
Group will) comply in all material respects with all Environmental Law
and obtain and maintain any Environmental Permits and take all reasonable
steps in anticipation of known or expected future changes to or
obligations under the same.
21.9 Environmental Claims
The Borrower shall inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same:
(a) if any Environmental Claim has been commenced or (to the best of
the Borrower's knowledge and belief) is threatened against any
member of the Group; or
68
(b) of any facts or circumstances which will or are reasonably likely
to result in any Environmental Claim being commenced or threatened
against any member of the Group.
21.10 Hazardous materials
Each Obligor shall comply in all respects with all governmental and other
regulatory requirements in relation to the storing, producing,
manufacturing, using, generating and refining of Hazardous Materials.
21.11 Rent Reviews
Each Obligor shall promptly notify the Agent in writing of the outcome of
any rent review undertaken pursuant to the terms of any Occupation Lease
(other than a Permitted Lease, provided that following rent review, the
rent payable pursuant to the relevant Occupational Lease still makes it a
Permitted Lease).
21.12 Taxation
Each Obligor shall (and the Parent shall ensure that each member of the
Group will) duly and punctually pay and discharge all Taxes imposed upon
it or its assets within the time period allowed without incurring
penalties (except to the extent that (a) such payment is being contested
in good faith, (b) adequate reserves are being maintained for those Taxes
and (c) where such payment can be lawfully withheld).
21.13 Pari passu ranking
Each Obligor shall ensure that at all times any unsecured and
unsubordinated claims of a Finance Party against it under the Finance
Documents rank at least pari passu with the claims of all its other
unsecured and unsubordinated creditors except those creditors whose
claims are preferred solely by any bankruptcy, insolvency, liquidation or
other similar laws of general application.
21.14 Pensions
(a) The Parent shall ensure that all pension schemes operated by or
maintained for the benefit of members of the Group and/or any of
its employees (other than those pension schemes subject to ERISA)
are fully funded to the extent required by law based on reasonable
actuarial assumptions and recommendations and are operated or
maintained as required by law.
(b) The Parent shall deliver to the Agent at intervals of no more than
three calendar years, and in any event at such time as those
reports are prepared in order to comply with the then current
statutory or auditing requirements, actuarial reports in relation
to those pension schemes if requested by the Agent.
21.15 Intellectual property
Each Obligor shall (and the Parent shall procure that each member of the
Group will):
(a) preserve and maintain the subsistence and validity of the material
Intellectual Property necessary for the business of the Group;
(b) use reasonable endeavours to prevent any infringement in any
material respect of that Intellectual Property;
69
(c) make registrations and pay all registration fees and taxes
necessary to maintain that Intellectual Property in full force and
effect and record its interest in that Intellectual Property;
(d) not use or permit that Intellectual Property to be used in a way
or take any step or omit to take any step in respect of that
Intellectual Property which may materially and adversely affect
the existence or value of that Intellectual Property or imperil
the right of relevant members of the Group to use such property;
and
(e) not discontinue the use of that Intellectual Property.
21.16 Dividends
(a) Any amounts paid to the Parent by way of loan or Share Redemption
or Dividend from a member of the Group shall be paid into the
Dividends Account other than the GNER Dividend or any loan of the
Incremental Amount (as defined in paragraph (b)(ii) of Clause
21.31 (Indebtedness)).
(b) GNER Holdings Limited shall procure that:
(i) GNER Limited shall only make loans to the Parent (and no
other member of the Group);
(ii) pursuant to the Security Documents, GNER Limited pays all
GNER Dividends payments to the GNER Dividends Account;
(iii) promptly upon the earlier of the latest date for the
delivery of any financial statements in relation to GNER
Limited pursuant to paragraph (c)(ii) of Clause 19.1
(Financial Statements) and the date of delivery of such
statements, GNER Limited pays to the Parent into the GNER
Dividend Account whether by way of loan or Dividend (but
only to the extent permitted by the Franchise Agreement in
effect at such time) an amount equal to all excess cash at
GNER Limited less, prior to the termination of the
Franchise Agreement, the amount representing GNER Liquidity
Maintenance Cash; and
(iv) an amount equal to any proceeds received by GNER Limited
from any litigation is, to the extent permitted by the
Franchise Agreement, promptly loaned by GNER Limited to the
Parent.
21.17 Running of Railway
The Parent shall notify the Agent promptly and in any event within 24
hours of it becoming aware, and/or notifying the SRA, of the occurrence
of an "Event of Default" or an event which is likely to result in the
occurrence of an "Event of Default", in each case, pursuant to clause
22.1 of the Franchise Agreement or upon receipt by GNER Holdings Limited
or GNER Limited of notice from the SRA of a "default" under the Franchise
Agreement pursuant to clause 22.2 of the Franchise Agreement.
70
21.18 Xxxxxxxx
The Parent shall notify the Agent promptly of any arbitration decision or
other judgment delivered concerning the Xxxxxxxx Litigation.
21.19 Further assurance
Each Obligor shall (and the Parent shall procure that each member of the
Group will) promptly do all such acts or execute all such documents
(including assignments, transfers, mortgages, charges, notices and
instructions) as the Trustee may reasonably specify (and in such form as
the Trustee may reasonably require in favour of the Trustee or its
nominee(s)):
(a) to effect, register or perfect the Security created or intended to
be created under or evidenced by the Transaction Security
Documents or for the exercise of any rights powers and remedies of
the Trustee or the Secured Parties provided by or pursuant to the
Finance Documents or by law;
(b) to confer on the Trustee or confer on the Secured Parties
Transaction Security, Security over the Policies and any other
material insurance policies of the Group (taken as a whole);
and/or
(c) to facilitate the realisation of the assets which are, or are
intended to be, the subject of the Transaction Security.
Each Obligor shall (and the Parent shall procure that each member of the
Group will) take all such action as is available to it (including making
all filings and registrations) as may be necessary for the purpose of the
creation, perfection, protection, registration, admissibility in evidence
or maintenance of any Security conferred or intended to be conferred on
the Trustee or the Secured Parties by or pursuant to the Finance
Documents.
21.20 Preservation of Assets
Each Obligor shall, (and the Parent shall ensure that each member of the
Group will), maintain and preserve all of its assets that are necessary
or desirable, in the opinion of the Agent, for the conduct of its
business, as conducted at the date of this Agreement, in good working
order and condition, ordinary wear and tear excepted.
21.21 Access
Each Obligor shall, and the Parent shall:
(a) on request of the Agent, provide the Agent and Trustee with any
information the Agent or Trustee may reasonably require about that
company's business and affairs, the Charged Property and its
compliance with the terms of the Security Documents; and
(b) permit the Trustee, its representatives, delegates, professional
advisers and contractors, free access at all reasonable times and
on reasonable notice at the cost of the Obligors, (a) to inspect
and take copies and extracts from the books, accounts and records
of that company and (b) to view the Charged Property (without
becoming liable as mortgagee in possession).
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21.22 Federal Reserve Regulations
Each US Obligor will use the Facility without violating Regulations T, U
and X.
21.23 Conduct of Exchange Offer
(a) Upon expiration of the Exchange Offer on the Exchange Offer
Closing Date, the Parent shall promptly notify the Agent in
writing of the aggregate principal amount of SCL Bonds tendered
pursuant to the Exchange Offer.
(b) The Parent shall procure that The Bank of New York, in its
capacity as exchange agent in respect of the Exchange Offer,
and/or Lazard Freres & Co. LLC, in its capacity as dealer manager
in respect of the Exchange Offer, will provide to the Agent, such
information, and at such times, that information is provided to
the dealer manager pursuant to the dealer manager agreement and
that such information shall be provided in the form of a report
together with, at the Exchange Offer Closing Date, a final report
setting out the aggregate principal amount of SCL Bonds tendered
pursuant to the Exchange Offer; in each case, the relevant report
may be delivered by electronic mail to the relevant address
notified to the Parent in writing by the Agent and, any other
information concerning the Exchange Offer as the Agent may
reasonably request.
(c) The Parent shall promptly notify the Agent in writing of (a) any
proposal to change, amend or supplement any of the terms of the
Exchange Offer (including, without limitation, any extension of
the Exchange Offer Closing Date), (b) the occurrence of any event
which would cause the Parent to withdraw, rescind or terminate the
Exchange Offer or would permit the Parent to exercise any right
not to exchange SCL Bonds tendered pursuant to the Exchange Offer,
(c) the taking of any action concerning the Exchange Offer by the
SEC or any other US or other governmental authorities, securities
exchanges or courts, (d) any other material developments in
connection with the Exchange Offer (including, without limitation,
the commencement of any lawsuit concerning the Exchange Offer) and
(e) any other information concerning the Exchange Offer as the
Agent may reasonably request.
NEGATIVE COVENANTS
21.24 Negative pledge
(a) No Obligor (other than the Parent) shall (and the Parent shall
ensure that no other member of the Group will) create or permit to
subsist any Security over any of its assets.
(b) No Obligor (other than the Parent) shall (and the Parent shall
ensure that no other member of the Group will):
(i) sell, transfer or otherwise dispose of any of its assets on
terms whereby they are or may be leased to or re-acquired
by an Obligor (other than the Parent) or any other member
of the Group;
(ii) sell, transfer or otherwise dispose of any of its
receivables on recourse terms;
72
(iii) enter into any arrangement under which money or the benefit
of a bank or other account may be applied, set-off or made
subject to a combination of accounts;
(iv) purchase any assets on retention of title terms; or
(v) enter into any other preferential arrangement having a
similar effect.
(c) Paragraphs (a) and (b) above do not apply to:
(i) any Existing Security: (A) over Existing Financial
Indebtedness as at the date hereof or (B) which continues
in place for the refinancing of that Existing Financial
Indebtedness including the Incremental Amount (as defined
in paragraph (b)(ii) of Clause 21.31 (Indebtedness));
(ii) any Security to be provided by Sea Containers Railway
Services Limited or GNER Limited pursuant to paragraphs
(b)(iii) and (b)(iv) of Clause 21.31 (Indebtedness)
provided that the total amount of indebtedness secured
thereby and the aggregate market value of such Security in
each case does not exceed (pound)5,000,000 and
(pound)15,000,000 respectively (or, in each case, its
equivalent);
(iii) any Security to be provided by Newhaven Marina Limited
pursuant to paragraph (b)(v) of Clause 21.31 (Indebtedness)
provided that the total amount of indebtedness secured
thereby and the aggregate market value of such Security
does not exceed (pound)5,750,000 (or its equivalent);
(iv) any Security to be provided by Sea Containers UK Limited
Sea Containers America Inc. Hoverspeed Limited and Silja
Oyj. Abp. (together the "Permitted Indebtedness Companies")
pursuant to paragraph (vi) of Clause 21.31 (Indebtedness)
provided that the total amount of indebtedness secured
thereby and the aggregate market value of such Security is
equal to or less than:
(A) prior to a sale of the Isle of Man Group,
US$10,000,000 (or its equivalent) in relation to
each of Hoverspeed Limited and Silja Oyj. Abp. and,
is equal to or less than US$25,000,000 (or its
equivalent) in aggregate in relation to the
Permitted Indebtedness Companies taken as a whole;
and
(B) after a sale of the Isle of Man Group (in accordance
with the terms of this Agreement), US$15,000,000 (or
its equivalent) in relation to each of Hoverspeed
Limited and Silja Oyj. Abp. and, is equal to or less
than US$50,000,000 (or its equivalent), and
provided that in each case such debt financing is less than
or equal to the market value of such assets to be acquired
and that the Security is secured only on such assets;
73
(v) any netting or set-off arrangement entered into by any
member of the Group in the ordinary course of its banking
arrangements for the purpose of netting debit and credit
balances (other than between members of different Disposal
Groups and excluding the Restricted Indebtedness
Companies);
(vi) any lien arising by operation of law and in the ordinary
course of trading;
(vii) the Transaction Security; and
(viii) any retention of title, hire purchase or conditional sale
arrangement or arrangements having similar effect in
respect of goods supplied to a member of the Group in the
ordinary course of trading and on the counterparty's
standard or usual terms (other than the Restricted
Indebtedness Companies),
provided that, nothing in this paragraph (c) shall permit the
granting or subsistence of Security over any asset of the Group
which is the subject of Transaction Security.
21.25 Disposals
(a) No Obligor (other than the Parent) shall (and the Parent shall
ensure that no other member of the Group will), enter into a
single transaction or a series of transactions (whether related or
not) and whether voluntary or involuntary to sell, lease, transfer
or otherwise dispose of any asset.
(b) Paragraph (a) above does not apply to any disposal:
(i) made in the ordinary course of trading and on arm's length
terms of the disposing entity;
(ii) of cash to the extent specifically permitted by the terms
of this Agreement;
(iii) for cash on arm's length terms of any obsolete assets not
required for the efficient operation of the business of the
Group by any member of the Group;
(iv) of assets to the extent permitted by Clause 21.24 (Negative
Pledge);
(v) constituting a Sale of Security or the OEH Shares subject
to the terms and conditions of Clause 7.5 (Mandatory
Prepayment and Cancellation - Sale of Security and other
Disposals) and 7.8 (Mandatory Prepayment and Cancellation -
OEH Shares);
(vi) subject to compliance with Clause 7.5 (Mandatory Prepayment
and Cancellation - Sale of Security and other Disposals) of
an asset (other than cash or cash equivalents) by a member
of the Group to any person to the extent not permitted by
paragraphs (i) to (iv) above,
74
provided that,
(A) no disposals in the preceding paragraphs material
adversely affect the marketability or value of any
of the Disposal Group in each case as a whole;
(B) all disposals in the preceding paragraphs shall be
on arms' length terms and be made for cash
consideration payable in full at the time of the
disposal;
(C) nothing in this clause 21.25 shall permit the
disposal of any assets (other than cash) which is
the subject of Transaction Security.
21.26 Merger
No Obligor shall (and the Parent shall ensure that no other member of the
Group will) enter into any amalgamation, demerger, merger or corporate
reconstruction.
21.27 Change of Business
The Parent shall procure that no substantial change is made to the
general nature of the business of the Group or any Disposal Group from
that carried on at the date of this Agreement.
21.28 Acquisitions
No Obligor (other than the Parent) shall (and the Parent shall ensure
that no other member of the Group will) incorporate or acquire a company
or acquire (or acquire an interest in) shares or securities or a business
or undertaking by making an investment or otherwise; or incorporate any
person.
21.29 Joint Ventures
No Obligor (other than the Parent) shall (and the Parent shall ensure
that no other member of the Group will) form, enter into or acquire or
subscribe (or agree to enter into or acquire or subscribe) for any shares
in or transfer of any assets to or lend to or guarantee or give an
indemnity for or give Security for the obligations of any Joint Ventures
(or agree to transfer, lend, guarantee, indemnify or give Security for
the obligations of a Joint Venture) other than in relation to any such
matters conducted in accordance with normal commercial arrangements
entered into on arm's length terms consistent with the normal course of
the Group's business.
21.30 Loans and Guarantees
No Obligor (other than the Parent) shall (and the Parent shall ensure
that no other member of the Group will) be a creditor in respect of
Financial Indebtedness or give any guarantee or indemnity to or for the
benefit of any person or otherwise voluntarily assume any liability,
whether actual or contingent, in respect of any obligation of any person
(save, other than in relation to the Restricted Indebtedness Companies,
in each case in the ordinary course of business or as required under any
of the Finance Documents),
75
provided that:
(a) a member of the Group may be a creditor in respect of Financial
Indebtedness which is permitted pursuant to Clause 21.31
(Indebtedness); and
(b) Sea Containers Railway Services Limited may, in the ordinary
course of its business, be a creditor in respect of Financial
Indebtedness or give any guarantee or indemnity to or for the
benefit (or otherwise assume any liability whether actual or
contingent) of another member of the Group up to an aggregate
amount at any time not exceeding (pound)500,000 (or its
equivalent).
21.31 Indebtedness
(a) No Obligor (other than the Parent) shall (and the Parent shall
ensure that no other member of the Group will) incur, create or
permit to subsist or have outstanding any Financial Indebtedness
or enter into any agreement or arrangement whereby it is entitled
to incur, create or permit to subsist any Financial Indebtedness.
(b) Paragraph (a) above does not apply to any of the following
Financial Indebtedness:
(i) Financial Indebtedness arising under or permitted by the
Finance Documents;
(ii) Existing Financial Indebtedness of any member of the Group
or any refinancing of that Existing Financial Indebtedness
by that member of the Group up to a maximum of the original
principal amount of such Existing Financial Indebtedness of
that member of the Group, save that, in relation to Silja
Oyj. Abp. and/or Silja Holdings Limited, this may be
increased by up to in aggregate EUR30,000,000 (or its
equivalent) (the "Incremental Amount");
(iii) up to(pound)15,000,000 (or its equivalent) in respect of
Financial Indebtedness incurred by GNER Limited for the
purposes of the GNER Station Refurbishment;
(iv) up to(pound)5,000,000 (or its equivalent) in respect of
Financial Indebtedness incurred by Sea Containers Railway
Services Limited for the purpose of Capital Expenditure;
(v) up to(pound)5,750,000 (or its equivalent) in respect of
Financial Indebtedness incurred by Newhaven Marina Limited
under the Newhaven Marina Facility;
(vi)
(A) prior to a sale of the Isle of Man Group, up to
US$10,000,000 (or its equivalent) in relation to
each of Hoverspeed Limited and Silja Oyj. Abp. and,
up to US$25,000,000 (or its equivalent) in aggregate
in relation to the Permitted Indebtedness Companies
(as defined in paragraph (c)(iv) of Clause 21.24
(Negative Pledge) taken as a whole and;
76
(B) after a sale of the Isle of Man Group, up to
US$15,000,000 (or its equivalent) in relation to
each of Hoverspeed Limited and Silja Oyj. Abp. and,
up to US$50,000,000 (or its equivalent) in aggregate
in relation to the Permitted Indebtedness Companies
(as defined in paragraph (c)(iv) of Clause 21.24
(Negative Pledge)) taken as a whole,
(in each case, in accordance with the terms of this
Agreement) in respect of Financial Indebtedness incurred by
any of the Permitted Indebtedness Companies (as defined in
paragraph (c)(iv) of Clause 21.24 (Negative Pledge)) in the
ordinary course of business of those companies for the sole
purpose of the acquisition of new assets, provided that
such Financial Indebtedness shall be less than or equal to
the market value of such assets to be acquired;
(vii) any overdraft facility on arm's length terms in the
ordinary course of business (other than in relation to the
Restricted Indebtedness Companies);
(viii) any Financial Indebtedness (other than in relation to the
Restricted Indebtedness Companies) arising pursuant to a
Treasury Transaction entered into in the ordinary course of
business on arm's length terms for non speculative
purposes;
(ix) any Financial Indebtedness arising pursuant to a Treasury
Transaction entered into in the ordinary course of business
on arm's length terms for non speculative purposes by a
Restricted Indebtedness Company in relation to hedging
liabilities in relation to assets subject to a Sale of
Security;
(x) any Financial Indebtedness owed by any member of the Group
to the Parent; and
(xi) any amount to be applied directly or indirectly in
mandatory prepayment pursuant to Clause 7.6 (Mandatory
Prepayment and Cancellation-Equity and Debt Financings).
21.32 Leases and other similar interests
The Parent shall ensure that no member of the Group shall:
(a) sell, transfer, lease, licence, part with possession or
occupation, lend or otherwise dispose of (whether by a single
transaction or a series of transactions, related or not) all or
any of its undertaking and assets other than obsolete or worn out
property or assets which are immaterial in the aggregate from time
to time owned by it
77
(b) enter into any Occupational Lease after the date of this Agreement
or agree to enter into the same unless (i) it is a Permitted
Lease, or (ii) the Agent has given its prior written consent to
the terms of the proposed Occupational Lease and the financial
standing of the proposed new tenant under the relevant
Occupational Lease;
(c) accept or consent to a surrender, assignment, assignation or
sub-letting of or vary the terms of any Occupational Lease (other
than a Permitted Lease);
(d) waive any breach of nor reduce any sum payable under any
Occupational Lease (other than a Permitted Lease) nor enter into
any onerous or restrictive obligations affecting the Property;
(e) not to vary or alter the terms of any Occupational Lease (other
than a Permitted Lease) in such a way whereby such alteration or
variation would have a Material Adverse Effect on the value to the
Finance Parties of the Security created by any of the Transaction
Security; and
(f) enter into any agreement or arrangement for the management of the
Property except on terms and conditions acceptable to the Agent
which acceptance shall not be unreasonably withheld.
21.33 Hazardous Materials
No Obligor (other than the Parent) shall (and the Parent shall ensure
that no other member of the Group will) other than in compliance with all
applicable Environmental Law, cause, permit or suffer any Hazardous
Materials to be brought upon, treated, kept, stored, disposed of,
discharged, released, emitted, leaked from, produced, manufactured,
generated, refined or used from, in, upon or under any of the real
property owned by any member of the Group where such action could involve
a potential liability in excess of (pound)100,000 for such member of the
Group;
21.34 Port Legislation
No Obligor (other than the Parent) shall (and the Parent shall ensure
that no other member of the Group will) breach any Port Legislation save
that this provision will not be breached in circumstances where the
relevant member of the Group can demonstrate to the Agent that the party
alleging the breach has mis-interpreted the relevant legislation and that
the relevant member of the Group is diligently pursuing this argument
with such party.
21.35 Federal Reserve Regulations
Each U.S. Borrower will use the Facility without violating Regulations T,
U and X.
21.36 Compliance with ERISA
No Obligor shall:
(a) allow, or permit any of its ERISA Affiliates to allow, (i) any
Employee Plan with respect to which any Relevant Company may have
any liability to terminate, (ii) any Relevant Company to withdraw
from any Employee Plan or Multiemployer Plan, (iii) any ERISA
Event to occur with respect to any Employee Plan, or (iv) any
Accumulated Funding Deficiency (as defined in Section 302 of ERISA
and Section 412 of the Code), whether or not waived, to exist
involving any of its Employee Plans; to the extent that any of the
events described in (i), (ii), (iii) or (iv), singly or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect;
78
(b) allow, or permit any of its ERISA Affiliates to allow, (i) an
Unfunded Pension Liability (taking into account only Employee
Plans with positive Unfunded Pension Liability); or (ii) any
potential withdrawal liability under Section 4201 of ERISA, if the
Relevant Company were to completely or partially withdraw from all
Multiemployer Plans; or
(c) fail, or permit any of its ERISA Affiliates to fail, to comply in
any material respect with ERISA or the related provisions of the
Code, if any such non-compliance, singly or in the aggregate,
would be reasonably likely to have a Material Adverse Effect.
21.37 Arm's length basis
No Obligor shall (and the Parent shall ensure that no other member of the
Group will) enter into any material arrangement, contract or transaction
(collectively a "Transaction") with any Affiliate except on arm's length
terms.
21.38 Compliance with U.S. Regulations
No Obligor shall (and the Borrower shall ensure that no other member of
the Group will) become an "investment company," or an "affiliated person"
of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the 1940 Act. Neither the making
of any Loan, or the application of the proceeds or repayment thereof by
any Obligor nor the consummation of the other transactions contemplated
hereby will violate any provision of such act or any rule, regulation or
order of the SEC thereunder.
21.39 Anti-Terrorism Law
The Obligors shall not (i) conduct any business or engage in making or
receiving any contribution of funds, goods or services to or for the
benefit of any Person described in Clause 18.38 (Anti-Terrorism Laws)
above, (ii) deal in, or otherwise engage in any transaction relating to,
any property or interests in property blocked pursuant to the Executive
Order or any other Anti-Terrorism Law, or (iii) engage in or conspire to
engage in any transaction that evades or avoids, or has the purposes of
evading or avoiding, or attempts to violate, any of the prohibitions set
forth in any Anti-Terrorism Law (and the Obligors shall deliver to the
Lenders any certificates or other evidence requested from time to time by
any Lender in its reasonable discretion, to confirm such Obligor's
compliance with this Clause 21.39).
21.40 Embargoed Person
At all times through the term of the Facility, (a) none of the funds or
assets of the Obligors that are used to repay the Facility shall
constitute property of, or shall be beneficially owned directly or, to
the knowledge of any Obligor, indirectly by, any Person subject to
sanctions or trade restrictions under United States law ("Embargoed
Person" or "Embargoed Persons") that is identified on (1) the "List of
Specially Designated Nationals and Blocked Persons" maintained by the
Office of Foreign Assets Control (OFAC) of the US Department of the
Treasury, and/or to the knowledge of any Obligor, as of the date hereof,
based upon reasonable inquiry by such Obligor, on any other similar list
maintained by OFAC pursuant to any authorising statute including, but not
limited to, the International Emergency Economic Powers Act, 50 USC
ss.ss.1701 et seq., the Trading with the Enemy Act, 50 USC App. 1 et
seq., and any Executive Order or regulation promulgated thereunder, with
the result that the investment in the Obligors (whether directly or
indirectly), is prohibited by law, or the Facility made by the Lenders
would be in violation of law, or (2) the Executive Order, any related
enabling legislation or any other similar Executive Orders, and (b) no
Embargoed Person shall have any direct interest and to the knowledge of
any Obligor, as of the date hereof, based upon reasonable inquiry by any
Obligor, indirect interest of any nature whatsoever in the Obligors, with
the result that the investment in the Obligors (whether directly or
indirectly), is prohibited by law or the Facility is in violation of law.
79
21.41 Anti-Money Laundering
At all times throughout the term of the Facility, to the knowledge of any
Obligor, as of the date hereof, based upon reasonable inquiry by such
Obligor, none of the funds of such Obligor that are used to pay the
Facility shall be derived from any unlawful activity, with the result
that their investment in the Obligors (whether directly or indirectly) is
prohibited by law or the Facility would be in violation of law.
21.42 Disposal Group Proceeds Amount
Pursuant to Clause 7.8 (Mandatory Prepayment and Cancellation - OEH
Shares) and Clause 7.9 (Mandatory Prepayment and Cancellation - Sale of
Security: Shortfall and Right to Sell):
(a) in connection with the sale (in any manner whatsoever) of the OEH
Shares, under that Clause the Parent shall promptly do, and shall
use its best efforts to cause OEH to do, all such acts or execute
all such documents as the Agent may reasonably specify (and in
such form as the Agent may reasonably require in favour of the
Agent or its nominees); and
(b) the Parent shall appoint the Agent as sales agent for any of the
above assets if such assets are not sold by any due date specified
above and as sales agent, the Agent shall have the right to
solicit and accept any purchase offer on any such assets in
consultation with the Parent.
21.43 Registration Rights and Indemnity Agreement
(a) Without prejudice to Clause 7.8 (Mandatory Prepayment and
Cancellation - OEH Shares) and Clause 7.9 (Mandatory Prepayment
and Cancellation - Sale of Security: Shortfall and Right to Sell)
above:
(i) Filing and Effectiveness
In connection with the Power of Attorney and the pledge
(the "Pledge") by the Parent of all of the Class A Shares
(the "A Shares") now or hereafter owned by Parent and all
of the Class B Shares now or hereafter owned by Parent ("B
Shares" and, together with the A Shares, the "Shares")
provided pursuant to Clause 4 (Conditions of Utilisation)
and Schedule 2 (Conditions Precedent), Parent agrees to use
its reasonable best efforts, including through using its
voting rights and board representation, to procure that OEH
will:
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(A) promptly (but in any event within three Business
Days) upon request of the Agent, if necessary, file
an amendment to the registration statement on Form
S-3 (File No. 333-102576) filed by OEH pursuant to
Rule 415 under the Securities Act (the "Existing
Shelf Registration Statement") or file an amendment
to the prospectus in the Existing Shelf Registration
Statement pursuant to Rule 424(b) under the
Securities Act, to provide for resales of all of (i)
the A Shares held by Parent (including all of the A
Shares issuable upon conversion of all of the B
Shares held by Parent) and (ii) such A Shares by the
Agent following a Sales Date, in each case in
accordance with the intended method or methods of
distribution thereof as specified by Parent and/or
the Agent, including an underwritten offering, and
in the event the Existing Shelf Registration
Statement becomes for any reason unavailable to
permit public resales of A Shares by Parent or Agent
in the United States (other than pursuant to the
terms of paragraph (b) (Suspension Periods) of this
Clause 21.43), file with the SEC a new registration
statement on Form S-3 (or any successor form
thereto, or any other form available for use by OEH
for the registration of resales of A Shares by
Parent and/or Agent) (a "New Shelf Registration
Statement"; the Existing Shelf Registration
Statement and the New Shelf Registration Statement
are each referred to herein as a "Shelf Registration
Statement"), which Shelf Registration Statement
shall provide for resales of all of (i) the A Shares
held by Parent (including all of the A Shares
issuable upon conversion of all of the B Shares held
by Parent) and (ii) such A Shares by the Agent
following a Sales Date, in each case in accordance
with the intended method or methods of distribution
thereof as specified by Parent and/or the Agent,
including an underwritten offering;
(B) use its reasonable best efforts to cause any
required New Shelf Registration Statement to be
declared effective by the SEC as promptly as is
practicable but in no event later than 75 days after
the filing thereof (the applicable date being, in
the case of either the Existing Shelf Registration
Statement or the New Shelf Registration Statement,
as applicable, the "Registration Statement Effective
Date"); and
(C) at all times, use its reasonable best efforts to
keep the Shelf Registration Statement continuously
effective and, including with respect to any
prospectus contained therein (a "Prospectus"),
supplemented and amended to the extent necessary to
ensure that (i) it is available for resales by
Parent and/or the Agent and (ii) it conforms with
the requirements of this Agreement and the
Securities Act and the rules and regulations of the
SEC promulgated thereunder as announced from time to
time, for a period (the "Effective Period") ending:
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(1) in the event that Agent has taken possession
of any Shares as a result of enforcement of
the Pledge, when (i) the Agent is able to
sell all of the Shares without restriction
pursuant to the volume limitation provisions
of Rule 144(e) under the Securities Act or
any successor rule thereto or (ii) all of the
Shares so possessed by the Agent have been
sold; or
(2) in the event that the Agent has not taken
possession of any Shares as a result of
enforcement of the Pledge, when all amounts
owed by Parent and its affiliates to the
Lenders under the Loan have been paid in
full.
(b) Suspension Periods
Notwithstanding any provision of paragraph (a)(i)(C) of this
Clause 21.43 (Registration Rights and Indemnity Agreement) to the
contrary, the effectiveness of the Shelf Registration Statement
may be suspended by written notice from Parent or OEH to the Agent
for a period not to exceed an aggregate of 30 days in any 90-day
period (each such period, a "Suspension Period", and the aggregate
of all such Suspension Periods shall not exceed an aggregate of 60
days in any 360 day period) if:
(i) an event occurs and is continuing as a result of which the
Shelf Registration Statement would, in the reasonable
judgment of the Board of Directors of OEH, contain an
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading; and
(ii) OEH reasonably determines that the disclosure of such event
at such time would have a Material Adverse Effect on the
business of OEH and its subsidiaries, taken as a whole;
provided, however, that in the event the disclosure relates to a
previously undisclosed proposed or pending material business
transaction, the disclosure of which would impede the ability of
OEH to consummate such transaction, a Suspension Period may be
extended from 30 days to 45 days, subject in any event to the
requirement that Suspension Periods shall not exceed an aggregate
of 60 days in any 360-day period.
(c) Registration Procedures
In connection with the Shelf Registration Statement, Parent agrees
to use its reasonable best efforts, including through using its
voting rights and board representation, to procure that OEH will:
(i) advise the Agent promptly (but in any event within one
Business Day):
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(A) when the Prospectus or any Prospectus supplement or
any New Shelf Registration Statement or
post-effective amendment to any Shelf Registration
Statement has been filed, and when any New Shelf
Registration Statement or any post-effective
amendment to any Shelf Registration Statement has
become effective,
(B) of any request by the SEC for amendments to a Shelf
Registration Statement or amendments or supplements
to the Prospectus or for additional information
relating thereto,
(C) of the issuance by the SEC of any stop order
suspending the effectiveness of a Shelf Registration
Statement under the Securities Act, or the
initiation of any proceeding for such purpose known
to OEH, or
(D) of the existence of any fact or the happening of any
event that makes any statement of a material fact
made in a Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein
untrue, or that requires the making of any additions
to or changes in a Shelf Registration Statement or
the Prospectus in order to make such statements
therein not misleading;
(ii) prepare and file with the SEC such amendments and
post-effective amendments to a Shelf Registration Statement
as may be necessary to keep it effective during the
Effective Period; cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so
supplemented to be filed (if required) pursuant to Rule
424(b) under the Securities Act, and comply fully with the
applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the sale
or other disposition of all A Shares covered by the Shelf
Registration Statement during the Effective Period in
accordance with the intended method or methods of
distribution by the Parent or the Agent set forth in the
Shelf Registration Statement or supplement to the
Prospectus;
(iii) furnish to the Agent such number of conformed copies of
each Shelf Registration Statement and of each amendment and
supplement thereto (in each case including all exhibits and
documents incorporated by reference), such number of copies
of the Prospectus (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed
under Rule 424(b) under the Securities Act relating to the
Shares, in conformity with the requirements of the
Securities Act, and such other documents as the Agent may
reasonably request to facilitate the disposition of the
Shares;
(iv) at any time on or after the occurrence of a Sales Date, (A)
promptly notify the Agent, at any time when a prospectus
relating to the A Shares is required to be delivered under
the Securities Act, upon discovery that, or upon the
happening of any event known to OEH, as a result of which,
the Prospectus included in the Shelf Registration Statement
as then in effect includes an untrue statement of a
material fact or omits to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under
which they were made, and (B) at the request of the Agent
as promptly as practicable, prepare and furnish to the
Agent a reasonable number of copies of a supplement to or
an amendment of such Prospectus as may be necessary so
that, as thereafter delivered to the purchasers of A
Shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances under which they were made;
83
(v) upon the occurrence of any event that would cause a Shelf
Registration Statement or the Prospectus contained therein
not to be effective and usable for the resale of A Shares
during the Effective Period, file promptly an appropriate
amendment to the Shelf Registration Statement or a report
filed with the SEC pursuant to Section 13(a), 13(c) or
15(d) of the US Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and use its best efforts to cause
such amendment to be declared effective and the Shelf
Registration Statement and the related Prospectus to become
usable for their intended purposes as soon as practicable
thereafter;
(vi) if at any time the SEC shall issue any stop order
suspending the effectiveness of a Shelf Registration
Statement, use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(vii) on or after the occurrence of a Sales Date, furnish to the
Agent, at least five Business Days before filing with the
SEC, a copy of any amendment to the Shelf Registration
Statement and copies of any Prospectus supplement
(excluding documents incorporated by reference therein),
which amendment or supplement will be subject to the review
of the Agent (and any underwriters, broker-dealers or other
agents acting on behalf of the Agent), and
(A) not file any amendment to a Shelf Registration
Statement or a Prospectus supplement (excluding
documents incorporated by reference therein) to
which the Agent (or any underwriters, broker-dealers
or other agents acting on behalf of the Agent) shall
reasonably object within three Business Days after
the receipt thereof; and/or
(B) make such changes in such amendments or supplements
prior to the filing thereof, if reasonably
practicable, or prepare and file further amendments
or supplements, as the Agent (or any underwriters,
broker-dealers or other agents acting on behalf
thereof) may reasonably request;
84
(viii) on and after the occurrence of a Sales Date, make
representatives of OEH and its subsidiaries available for
discussion and make available at reasonable times for
inspection all financial and other records, pertinent
corporate documents and properties of OEH and its
subsidiaries as shall be reasonably necessary to enable the
Agent and any underwriters, broker-dealers or agents acting
on behalf of the Agent, and any attorney or accountant
retained by any of them, to exercise any applicable due
diligence responsibilities and to conduct a reasonable
investigation within the meaning of the Securities Act, and
cause OEH's officers, directors, managers and employees
supply all information reasonably requested by the Agent
and any underwriters, broker-dealers or agents acting on
behalf thereof, and any attorney or accountant retained by
any of them in connection with a Shelf Registration
Statement; provided, however, that any information
designated by OEH as confidential at the time of delivery
of such information shall be kept confidential by the
recipient thereof and shall not be disclosed by the
recipient thereof unless (i) disclosure of such information
is necessary to avoid or correct a misstatement or omission
in a Shelf Registration Statement, (ii) the release of such
information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) the
release of such information or records is reasonably
necessary to establish a defence to legal liability, or
(iv) the information has been made generally available to
the public;
(ix) on and after the occurrence of a Sales Date, promptly
incorporate in a Shelf Registration Statement or
Prospectus, pursuant to a supplement or post-effective
amendment if necessary (and make all required filings of
such Prospectus supplement or post-effective amendment as
soon as reasonably practicable), of such information as the
Agent (and any underwriters, broker-dealers or agents
acting on behalf of the Agent) may reasonably request to
have included therein, including, without limitation, (i)
information relating to the "Plan of Distribution" of the A
Shares, (ii) information with respect to the number of A
Shares being sold to such underwriters or broker-dealers,
(iii) the purchase price being paid therefor and (iv) any
other terms of the offering of the A Shares to be sold in
such offering;
(x) otherwise comply with the Securities Act and the Exchange
Act and the rules and regulations of the SEC thereunder,
and make available to its securityholders, as soon as
reasonably practicable, an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act and
Rule 158 promulgated thereunder;
(xi) use its best efforts to cause the A Shares covered by the
Shelf Registration Statement to be registered with or
approved by such other governmental agencies or authorities
in the United States of America, any state thereof or the
District of Columbia as may be necessary to enable the
Agent (and any underwriters, broker-dealers or agents
acting on behalf thereof) to consummate the disposition of
such Shares in the United States;
85
(xii) cause to be maintained a transfer agent and registrar for
all A Shares from and after the date of this Agreement;
(xiii) use its best efforts to maintain the listing of the A
Shares on the New York Stock Exchange, Inc.;
(xiv) upon request of the Agent, in connection with any
underwritten public offering of A Shares by the Agent (on
its own behalf or on behalf of the Parent) after a Sales
Date has occurred, furnish to the Agent and to each
underwriter, broker-dealer or agent acting on behalf of the
Agent, a signed counterpart, addressed to the Agent (and to
each underwriter, broker-dealer or agent acting on behalf
of the Agent), of (i) certificates of officers of OEH and
the Parent, as the case may be, dated the date of closing
under any Selling Agreement (as defined below), (ii)
opinions of counsel to OEH dated the effective date of the
applicable Shelf Registration Statement and the date of
closing under any Selling Agreement, and (iii) comfort
letters from the independent accountants of OEH (and from
any other accountants whose report is contained or
incorporated by reference in the Shelf Registration
Statement) dated the effective date of the applicable Shelf
Registration Statement and the date of closing under any
Selling Agreement, in each case covering substantially the
same matters with respect to the Shelf Registration
Statement (and the Prospectus) and, in the case of the
accountants' letter, with respect to events subsequent to
the date of such financial statements, as are customarily
covered in officers' certificates of issuers or selling
securityholders in an underwritten public offering, as the
case may be, opinions of issuer's counsel and in
accountants' letters delivered to the underwriters in
underwritten public offerings of securities and, in the
case of the accountants' letter, such other financial
matters as any underwriters, broker-dealers or agents, as
the case may be, may reasonably request; and
(xv) cooperate with the Agent in connection with the
registration and qualification of the A Shares under the
securities or Blue Sky laws of such jurisdictions as the
Agent (and any underwriters, broker-dealers or agents
acting on behalf of the Agent) may reasonably request, and
do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the A
Shares covered by the Shelf Registration Statement;
provided, however, that neither Parent nor OEH shall be
required to (i) register or qualify as a foreign
corporation or a dealer of securities where it is not now
so qualified or (ii) take any action that would subject it
to general service of process in any jurisdiction where it
is not now so subject or (iii) subject itself to taxation
in any such jurisdiction where it is not so subject.
(d) Underwriting Arrangements
If an underwriting or similar agreement is entered into by the
Agent (on its own behalf or on behalf of the Parent) on or after
the occurrence of a Sales Date, pursuant to which any A Shares
will be sold to an underwriter or underwriters for reoffering,
whether to the public pursuant to a Shelf Registration Statement
or otherwise, or a sales agreement is entered into so that the A
Shares will be sold to a broker-dealer as agent or principal,
whether for reoffering to the public pursuant to the Shelf
Registration Statement or otherwise (each, a "Selling Agreement"),
Parent shall, and agrees to use its reasonable best efforts,
including through using its voting rights and board
representation, to procure that OEH shall:
86
(i) enter into a Selling Agreement with such underwriters,
broker-dealers or agents, as the case may be, such
agreement to be in form and substance reasonably
satisfactory to the Agent and such underwriters,
broker-dealers or agents, as the case may be, containing
such representations, warranties and other terms as are
customary in agreements of such type, including without
limitation indemnification and contribution provisions and
procedures which provide rights no less protective than
those set forth in Clause 21.43(e) (Indemnification) and
Clause 21.43(f) (Contribution) hereof with respect to all
parties to be indemnified by OEH and Parent, including the
Agent (and any underwriters, broker-dealers or other agents
acting on behalf of the Agent);
(ii) if the Shares are to be sold otherwise than pursuant to a
Shelf Registration Statement, to cooperate with the Agent
and such underwriters, broker-dealers or agents, as the
case may be, and to prepare an offering memorandum or other
offering document for use in connection with such offering;
(iii) deliver such other documents and certificates as may be
reasonably requested by each underwriter or broker-dealer
to evidence compliance with any customary conditions
contained in the Selling Agreement or other agreement
entered into by Parent and/or OEH pursuant to this Clause
21.43(d);
(iv) cooperate with the Agent and each underwriter,
broker-dealer or agent participating in the disposition of
A Shares and their respective counsel in connection with
any filings required to be made with the National
Association of Securities Dealers, Inc.; and
(v) enter into such agreements and take such other actions as
the Agent and such underwriters, broker-dealers or agents,
as the case may be, may reasonably request in order to
expedite or facilitate the disposition of the A Shares,
including making appropriate officers of OEH reasonably
available to the underwriters for meetings with prospective
purchasers of the Shares and preparing and presenting to
potential investors customary "road show" material in a
manner consistent with offerings of other securities
similar to the A Shares.
(e) Indemnification
(i) The Parent agrees to indemnify and hold harmless the Agent,
each of the Lenders, each underwriter, broker-dealer or
agent acting on behalf of the Agent or any Lender, each of
their respective directors, officers, employees, limited
and general partners (either direct or indirect) (and such
partner's directors, officers, employees and agents) and
agents, and each person, if any, who controls any of the
foregoing persons within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each such
person an "indemnified person"):
87
(A) from and against any and all losses, liabilities,
claims, damages and expenses whatsoever, joint or
several, as incurred, to which such indemnified
party may become subject under the Securities Act or
otherwise, insofar as such losses, liabilities,
claims, damages or expenses arise out of or are
based upon any untrue statement or alleged untrue
statement of a material fact contained in a Shelf
Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, or arise out of or are based upon any
untrue statement or alleged untrue statement of a
material fact included in any preliminary
prospectus, the Prospectus, any amendment or
supplement thereto, or any other offering document
prepared or used in connection with the sale of any
Shares, or the omission or alleged omission
therefrom of a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading provided, however, that the Parent shall
not be liable in any such case to the extent, but
only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue
statement or omission or alleged omission made
therein in reliance upon and in conformity with
information relating to the Agent or any Lender
furnished to the Parent in writing by the Agent
expressly for use therein;
(B) against any and all losses, liabilities, claims,
damages and expenses whatsoever, joint or several,
as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any
investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission; provided that (subject to
paragraph (e)(iii) of this Clause 21.43) any such
settlement is effected with the written consent of
Parent; and
(C) against any and all expenses whatsoever, as incurred
(including the fees and disbursements of counsel),
reasonably incurred in investigating, preparing or
defending against any litigation, or any
investigation or proceeding by any governmental
agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, to the extent that any such
expense is not paid under paragraphs (A) or (B)
above.
88
(ii) Each indemnified party shall give notice as promptly as
reasonably practicable to the Parent of any action
commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify the Parent shall
not relieve it from any liability hereunder to the extent
it is not actually and materially prejudiced as a result
thereof and in any event shall not relieve it from any
liability which it may have otherwise than on account of
this indemnity agreement. The Agent shall select counsel to
the indemnified parties. The Parent may participate at its
own expense in the defence of any such action; provided,
however, that counsel to the Parent shall not (except with
the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the Parent be
liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from its own
counsel for all indemnified parties in connection with any
one action or separate but similar or related actions in
the same jurisdiction arising out of the same general
allegations or circumstances. The Parent shall not, without
the prior written consent of each indemnified party, settle
or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which
indemnification could be sought under this Clause 21.43(e)
(whether or not the indemnified parties are actual or
potential parties thereto), that (i) does not include as an
unconditional term thereof the giving by the claimant or
plaintiff to each indemnified party of a release from all
liability arising out of or in respect of such litigation,
investigation, proceeding or claim or (ii) would impose
injunctive relief on any indemnified party or a statement
or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(iii) If at any time an indemnified party shall have requested
the Parent to reimburse the indemnified party for fees and
expenses of counsel, the Parent agrees that it shall be
liable for any settlement of the nature contemplated by
paragraph (e)(i)(B) of this Clause 21.43 effected without
its written consent if (i) such settlement is entered into
more than 45 days after receipt by the Parent of the
aforesaid request, (ii) the Parent shall have received
notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) the
Parent shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such
settlement.
(iv) The provisions of this Clause 21.43(e) and Clause 21.43(f)
(Contribution) shall be in addition to any other rights to
indemnification or contribution which an indemnified party
may have pursuant to law, equity, contract or otherwise.
The indemnity and contributions provisions set forth in
this Clause 21.43(e) and Clause 21.43(f) (Contribution)
shall remain in full force and effect regardless of any
investigation made by or on behalf of any indemnified party
and shall survive the transfer of the Shares by such
indemnified party.
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(v) The indemnification required by this Clause 21.43(e) shall
be made by periodic payments of the amount thereof during
the course of the investigation or defence, promptly as and
when bills are received or loss, liability, damage or
expense is incurred.
(f) Contribution
If for any reason the foregoing indemnity and reimbursement is
unavailable or is insufficient to hold harmless an indemnified
party under Clause 21.43(e) (Indemnification), then the Parent
shall contribute to the amount paid or payable by such indemnified
party as a result of any losses, liabilities, claims, damages and
expenses (or actions or proceedings, whether commenced or
threatened, in respect thereof), including, without limitation,
any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such losses,
liabilities, claims, damages, expenses, actions or proceedings, in
such proportion as is appropriate to reflect the relative fault of
the Parent on the one hand and the indemnified party on the other.
The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a
material fact relates to information supplied by Parent or OEH, on
the one hand, or the indemnified party, on the other, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. If, however, the allocation provided in the second
preceding sentence is not permitted by applicable law, or if the
allocation provided in the second preceding sentence provides a
lesser sum to the indemnified party than the amount hereinafter
calculated, then the Parent shall contribute to the amount paid or
payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative fault but also the
relative benefits to the Parent and the indemnified party as well
as any other relevant equitable considerations. The parties agree
that it would not be just and equitable if contributions pursuant
to this Clause 21.43(f) were to be determined by pro rata
allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the
preceding sentences of this Clause 21.43(f) Notwithstanding
anything in this Clause 21.43(f) to the contrary, no Person (other
than the Parent) shall be required pursuant to this Clause (f) to
contribute any amount in excess of the interest and fees received
by such person under this Agreement. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(g) Expenses of Registration
All Registration Expenses shall be borne by the Parent.
"Registration Expenses" shall mean all costs, fees and expenses
incident to the offering and sale of (i) any or all of the A
Shares held by Parent (including all of the A Shares issuable upon
conversion of all of the B Shares held by Parent) and (ii) any or
all of the A Shares held by the Agent following a Sales Date, in
each case in accordance with the intended method or methods of
distribution thereof as specified by Parent and the Agent,
including, without limitation, (a) all registration, filing,
securities exchange listing and National Association of Securities
Dealers fees, (b) all registration, filing, qualification and
other fees and expenses of complying with securities or blue sky
laws, (c) all word processing, duplicating, printing, messenger
and delivery expenses, (d) the fees and disbursements of counsel
for the Parent and OEH and of the independent public accountants
of OEH, including, without limitation, the expenses of any special
audits or "cold comfort" letters required by or incident to such
performance and compliance, (e) the reasonable fees and
disbursements incurred by the Lenders and the Agent (including,
without limitation, the reasonable fees and disbursements of any
one counsel and any local counsel selected by the Agent), (f)
reasonable premiums and other reasonable costs of policies of
insurance against liabilities arising out of the offering of the
Shares, (g) any fees and disbursements of underwriters,
broker-dealers or agents customarily paid by issuers or sellers of
securities, including, without limitation, reasonable fees and
disbursements of counsel for the underwriters in connection with
blue sky qualifications of the A Shares and determination of their
eligibility for investment under the laws of such jurisdictions,
but excluding underwriting discounts and commissions and transfer
taxes, if any, relating to A Shares and (h) fees and expenses of
any other person retained or employed by the Parent or OEH.
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(h) Reports under the Exchange Act
The Parent agrees to use its reasonable best efforts, including
through using its voting rights and board representation, to
procure that OEH will file the reports required to be filed by OEH
under the Exchange Act and the rules and regulations adopted by
the SEC thereunder (or, if OEH is not required to file such
reports, upon the request of the Agent, make publicly available
other information) and will take such further action as the Agent
may reasonably request, all to the extent required from time to
time to enable the Agent to sell any or all of the A Shares
without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time (or
any successor thereto) or (ii) any other rule or regulation
adopted by the SEC. Upon the reasonable request of the Agent, the
Parent agrees to use its reasonable best efforts, including
through using its voting rights and board representation, to
procure that OEH will deliver to the Agent a written statement as
to whether it has complied with such requirements and will, at its
expense, forthwith upon the request of the Agent, deliver to the
Agent a certificate, signed by OEH's principal financial officer,
stating (a) OEH's name, address and telephone number, (b) OEH's
Internal Revenue Service identification number, (c) OEH's SEC file
number, (d) the number of shares of each class of capital stock
outstanding as shown by the most recent report or statement
published by OEH, and (e) whether OEH has filed the reports
required to be filed under the Exchange Act for a period of at
least ninety (90) days prior to the date of such certificate and
in addition has filed the most recent annual report required to be
filed thereunder.
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(i) Assignment of Registration Rights
The rights pursuant to this Clause 21.43 may be assigned (but only
with all related obligations) by the Agent to a transferee or
assignee of at least five percent (5%) of the then outstanding A
Shares, provided OEH is, within a reasonable time after such
transfer, furnished with written notice of the name and address of
such transferee or assignee and the A Shares with respect to which
such rights are being assigned.
(j) Lock-up Agreement
If an offering pursuant to Clause 21.43(a) through (h), inclusive
involves an underwritten offering of Shares on or after the
occurrence of a Sales Date, the Parent agrees to use its
reasonable best efforts, including through using its voting rights
and board representation, to procure that OEH will, and the Parent
agrees that it shall, enter into a lock-up agreement with the
underwriter or underwriters of such offering containing provisions
of the type customarily employed in such agreements with respect
to registered public offerings underwritten by
nationally-recognized underwriting firms.
(k) Specific Performance
The parties agree that, to the extent permitted by law, (i) the
obligations imposed on them in this Clause 21.43(a) through (j)
inclusive are special, unique and of an extraordinary character,
and that in the event of a breach by any such party damages would
not be an adequate remedy; (ii) each of the other parties shall be
entitled to specific performance and injunctive and other
equitable relief in addition to any other remedy to which it may
be entitled at law or in equity; and (iii) any requirement for the
securing or posting of any bond in connection with the obtaining
of any such injunctive or other equitable relief is hereby waived.
22. Events of Default
Each of the events or circumstances set out in this Clause 22 is an Event
of Default.
22.1 Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document (other than pursuant to Clause 7.9(c)) at the place at
and in the currency in which it is expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical error;
and
(b) payment is made within 2 Business Days of its due date.
22.2 Financial covenants and indebtedness
Any requirement of Clause 20 (Financial covenants) is not satisfied or any
Obligor does not comply with any provision of Clause 21.31 (Indebtedness).
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22.3 Other obligations
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 22.1
(Non-payment) and Clause 22.2 (Financial covenants and
indebtedness)).
(b) No Event of Default under paragraph (a) above in relation to this
Clause 22.3 will occur if the failure to comply is capable of
remedy and is remedied within 10 Business Days of the date of the
occurrence of such failure to comply.
22.4 Misrepresentation
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any other document delivered by or on behalf
of any Obligor under or in connection with any Finance Document is or
proves to have been incorrect or misleading in any material respect when
made or deemed to be made.
22.5 Cross default
(a) Any Financial Indebtedness of any member of the Group or GE Seaco
SRL or any of its Subsidiaries is not paid when due nor within any
originally applicable grace period.
(b) Any Financial Indebtedness of any member of the Group or GE Seaco
SRL or any of its Subsidiaries is declared to be or otherwise
becomes due and payable prior to its specified maturity as a
result of an event of default (however described).
(c) Any commitment for any Financial Indebtedness of any member of the
Group or GE Seaco SRL or any of its Subsidiaries is cancelled or
suspended by a creditor of any member of the Group as a result of
an event of default (however described).
(d) Any creditor of any member of the Group or GE Seaco SRL or any of
its Subsidiaries becomes entitled to declare any Financial
Indebtedness of any member of the Group or GE Seaco SRL or any of
its Subsidiaries due and payable prior to its specified maturity
as a result of an event of default (however described).
(e) No Event of Default will occur under this Clause 22.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above
(i) in relation to any member of the Group other than GE Seaco SRL
or any of its Subsidiaries) is less than US$ 5,000,000 (or its
equivalent in any other currency or currencies); or (ii) in
relation to GE Seaco SRL or any of its Subsidiaries is less than
US$ 20,000,000 (or its equivalent in any other currency or
currencies).
22.6 Insolvency
(a) A member of the Group or GE Seaco SRL or any of its Subsidiaries
is unable or admits inability to pay its debts as they fall due,
suspends making payments on any of its debts or, by reason of
actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to
rescheduling any of its indebtedness.
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(b) A moratorium is declared in respect of any indebtedness of any
member of the Group or GE Seaco SRL or any of its Subsidiaries.
(c) Any US Obligor:
(i) applies for, or consents to, the appointment of, or the
taking of possession by, a receiver, custodian, trustee,
examiner or liquidator of itself or of all or a substantial
part of its property;
(ii) makes a general assignment for the benefit of its
creditors;
(iii) commences a voluntary case under Title II of the United
States of America Code entitled Bankruptcy (or any
successor thereof), as amended;
(iv) files a petition with respect to itself seeking to take
advantage of any other law relating to bankruptcy,
insolvency, reorganisation, liquidation, dissolution,
arrangement or winding up, or composition or readjustment
of debts; or
(v) takes any corporate action for the purpose of effecting any
of the foregoing with respect to itself.
(d) Any corporate action, legal proceedings or other procedure or step
is taken in relation to:
(i) the suspension of payments, a moratorium of any
indebtedness, winding-up, dissolution, administration or
reorganisation (by way of voluntary arrangement, scheme of
arrangement or otherwise) of any member of the Group or GE
Seaco SRL or any of its Subsidiaries other than a solvent
liquidation or reorganisation of any member of the Group
which is not an Obligor;
(ii) a composition, compromise, assignment or arrangement with
any creditor of any member of the Group or GE Seaco SRL or
any of its Subsidiaries;
(iii) the appointment of a provisional liquidator, a liquidator
(other than in respect of a solvent liquidation of a member
of the Group which is not an Obligor), receiver, receiver
or manager, administrative receiver, administrator,
compulsory or interim manager or other similar officer in
respect of any member of the Group or GE Seaco SRL or any
of its Subsidiaries or any of its assets; or
(iv) enforcement of any Security over any assets of any member
of the Group or GE Seaco SRL or any of its Subsidiaries,
or any analogous procedure or step is taken in any jurisdiction.
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22.7 Creditors' process
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of a member of the Group or GE Seaco SRL or
any of its Subsidiaries which is not being contested in good faith or has
not been discharged within 45 days.
22.8 Failure to Comply with Final Judgment
Any Obligor fails to comply with or pay any sum due from it or them under
any final judgment or any final order made or given by any court of
competent jurisdiction.
22.9 Unlawfulness
It is or becomes unlawful for an Obligor to perform any of its
obligations under the Finance Documents or any Transaction Security
created or expressed to be created or evidenced by the Security Documents
ceases to be effective.
22.10 Repudiation
An Obligor repudiates a Finance Document or any of the Transaction
Security or evidences an intention to repudiate a Finance Document or any
of the Transaction Security.
22.11 Amending articles of association
The Articles of Association or equivalent constitutive documents of any
Obligor (or any other provision affecting their operation) are amended,
varied, supplemented, superseded, waived or terminated without the prior
written consent of the Majority Lenders.
22.12 Litigation
Any litigation, arbitration, administrative, governmental, regulatory or
other investigations, proceedings or disputes are commenced against any
member of the Group or GE Seaco SRL or any of its Subsidiaries or its
assets, which, if adversely determined, might reasonably be expected to
have a Material Adverse Effect.
22.13 Employee Plans
Any ERISA Event shall have occurred, or Clause 21.36 (Compliance with
ERISA) shall be breached, and the liability of a US Obligor or its ERISA
Affiliates, either individually or in the aggregate, related to such
ERISA Event or breaches, individually or when aggregated with all other
ERISA Events and all such breaches, would have or would be reasonably
expected to have a Material Adverse Effect.
22.14 Transaction Security
(a) Any Obligor fails to perform or comply with any of the obligations
assumed by it in the Security Documents.
(b) At any time any of the Transaction Security is or becomes unlawful
or is not, or ceases to be legal, valid, binding or enforceable or
otherwise ceases to be effective.
(c) At any time, any of the Transaction Security fails to have first
ranking priority or is subject to any prior ranking or pari passu
ranking Security.
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22.15 Group Structure Chart
There is any change to the Group Structure Chart.
22.16 Material adverse change
Any event or circumstance occurs which the Majority Lenders reasonably
believe might have a Material Adverse Effect.
22.17 Listing of Shares
Either:
(a) the Class A Shares; or
(b) in relation to the Parent, the Class A Shares, par value US$0.01
per share, and the Class B shares, par value US$0.01 per share,
are delisted from the New York Stock Exchange, or trading in the shares
above on the New York Stock Exchange shall be suspended for a period of
an excess of 5 New York Business Days.
22.18 Replacement Franchise Agreement
GNER Holdings Limited is not the franchisee and/or GNER Limited is not
the franchise operator under the Replacement Franchise Agreement on the
expiry of the Franchise Term or earlier termination of the Franchise
Agreement.
22.19 Existing Franchise Agreement
Any event or circumstance occurs which is an Event of Default as defined
pursuant to clause 21 of the Franchise Agreement or any other event or
circumstance which might reasonably be expected to lead to the
termination of the same occurs or exists.
22.20 Xxxxxxxx Litigation
(a) As at the Final Settlement Date the overall net recovery by the
Group in relation to the final settlement or other determination
of the Xxxxxxxx Litigation is less than (pound) [***] after taking
account of any amounts agreed or determined to be payable to
Network Rail, the SRA or any other person.
(b) At any time prior to the Final Settlement Date the aggregate value
of the Interim Recovery is less than (pound) [***]
22.21 Acceleration
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Borrower:
(a) cancel the Lender's Commitment (or part thereof) pro rata
whereupon they shall immediately be cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they
shall become immediately due and payable; and/or
96
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders; and/or
(d) exercise, or direct the Trustee to exercise, any or all of its
rights, remedies and powers under any of the Finance Documents,
but, notwithstanding the foregoing, upon the occurrence of an Event of
Default specified in Clause 22.6 (Insolvency), the Facility shall be
cancelled and all Loans, together with accrued interest, and all other
amounts accrued or outstanding under the Finance Documents shall become
immediately due and payable, in each case without declaration, notice or
demand by or to any persons.
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SECTION 9
CHANGES TO PARTIES
23. Changes to the Lenders
23.1 Assignments and transfers by the Lenders
Subject to this Clause 23, a Lender (the "Existing Lender") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution or to a trust, fund or other
entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial
assets (the "New Lender").
23.2 Conditions of assignment or transfer
(a) The consent of the Borrower is required for an assignment or
transfer by a Lender, unless the assignment or transfer is to
another Lender or an Affiliate of a Lender or another branch of a
Lender.
(b) The consent of the Borrower to an assignment or transfer must not
be unreasonably withheld or delayed. The Borrower will be deemed
to have given its consent five Business Days after the Lender has
requested it unless consent is expressly refused by the Borrower
within that time.
(c) An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the
same obligations to the other Finance Parties and the other
Secured Parties as it would have been under if it was an Original
Lender.
(d) A transfer will only be effective if the procedure set out in
Clause 23.7 (Procedure for transfer) is complied with.
23.3 Assignment to Federal Reserve Bank
In addition to any other assignments or participation rights provided in
this Clause 23, each Lender may assign and pledge all or any portion of
its Loans and the other obligations owed to such Lender, without notice
to or consent of any Party, to any Federal Reserve Bank pursuant to
Regulation A of the Board of Governors of the Federal Reserve Bank and
any operating circular issued by such Federal Reserve Bank; provided,
however, that, (a) no Lender shall be relieved of any of its obligations
hereunder as a result of any such assignment and pledge and (b) in no
event shall such Federal Reserve Bank be considered to be a "Lender" or
be entitled to require the assigning Lender to take or omit to take any
action hereunder.
23.4 Assignment of Registration Rights
Notwithstanding any other assignment made pursuant to this Clause 23, the
Agent may assign any registration rights afforded to it pursuant to
Clause 21.43 (Registration Rights and Indemnity Agreement) provided that
any such assignment is made in accordance with the terms of Clause
21.43(i) (Assignment of Registration Rights).
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23.5 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of
(pound)1,000.
23.6 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents, the Transaction
Security or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document or any
other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of each Obligor and its related entities in
connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by
the Existing Lender in connection with any Finance
Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
whilst any amount is or may be outstanding under the
Finance Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause
23; or
(ii) support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by any Obligor
of its obligations under the Finance Documents or
otherwise.
23.7 Procedure for transfer
(a) Subject to the conditions set out in Clause 23.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing
Lender and the New Lender. The Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this
Agreement, execute that Transfer Certificate.
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(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and
obligations under the Finance Documents and in respect of
the Transaction Security each of the Obligors and the
Existing Lender shall be released from further obligations
towards one another under the Finance Documents and in
respect of the Transaction Security and their respective
rights against one another shall be cancelled (being the
"Discharged Rights and Obligations");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged Rights
and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of
that Obligor and the Existing Lender;
(iii) the Agent, the Arranger, the Trustee, the New Lender and
other Lenders shall acquire the same rights and assume the
same obligations between themselves and in respect of the
Transaction Security as they would have acquired and
assumed had the New Lender been an Original Lender with the
rights and/or obligations acquired or assumed by it as a
result of the transfer and to that extent the Agent, the
Arranger, the Trustee and the Existing Lender shall each be
released from further obligations to each other under the
Finance Documents; and
(iv) the New Lender shall become a Party as a "Lender".
23.8 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents as
that Lender shall consider appropriate if, in relation to paragraphs (a)
and (b) above, the person to whom the information is to be given has
entered into a Confidentiality Undertaking with the disclosing Lender.
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23.9 Assignment and transfers by Obligors
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
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SECTION 10
THE FINANCE PARTIES
24. Role of the Agent and the Arranger
24.1 Appointment of the Agent
(a) Each other Finance Party (other than the Trustee) appoints the
Agent to act as its agent under and in connection with the Finance
Documents.
(b) Each other Finance Party authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given to
the Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities and
discretions.
24.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a copy
of any document which is delivered to the Agent for that Party by
any other Party.
(b) Except where a Finance Document specifically provides otherwise,
the Agent is not obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
(c) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the other Finance
Parties.
(d) If the Agent is aware of the non-payment of any principal,
interest, commitment fee or other fee payable to a Finance Party
(other than the Agent, the Arranger or the Trustee) under this
Agreement it shall promptly notify the other Finance Parties.
(e) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
24.3 Role of the Arranger
Except as specifically provided in the Finance Documents, the Arranger
has no obligations of any kind to any other Party under or in connection
with any Finance Document.
24.4 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent or the Arranger as
a trustee or fiduciary of any other person.
(b) Neither the Agent nor the Arranger shall be bound to account to
any Lender for any sum or the profit element of any sum received
by it for its own account.
24.5 Business with the Group
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member
of the Group.
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24.6 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within
his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of
a Default arising under Clause 22.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any
Party or the Majority Lenders has not been exercised; and
(iii) any notice or request made by the Borrower (other than a
Utilisation Request or Selection Notice) is made on behalf
of and with the consent and knowledge of all the Obligors.
(c) The Agent may engage, pay for and rely on the advice or services
of any lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through its
personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this Agreement.
(f) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Arranger is obliged to do or
omit to do anything if it would or might in its reasonable opinion
constitute a breach of any law or regulation or a breach of a
fiduciary duty or duty of confidentiality.
24.7 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document, the
Agent shall (i) exercise any right, power, authority or discretion
vested in it as Agent in accordance with any instructions given to
it by the Majority Lenders (or, if so instructed by the Majority
Lenders, refrain from exercising any right, power, authority or
discretion vested in it as Agent) and (ii) not be liable for any
act (or omission) if it acts (or refrains from taking any action)
in accordance with an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Finance Parties other than the Trustee.
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(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require for
any cost, loss or liability (together with any associated VAT)
which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from
taking action) as it considers to be in the best interest of the
Lenders.
(e) The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings relating to any Finance Document.
24.8 Responsibility for documentation
None of the Agent, the Arranger and the Trustee:
(a) is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent,
the Arranger, the Trustee, an Obligor or any other person given in
or in connection with any Finance Document or the Information
Package or the transactions contemplated in the Finance Documents;
or
(b) is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or the Transaction
Security or any other agreement, arrangement or document entered
into, made or executed in anticipation of or in connection with
any Finance Document or the Transaction Security.
24.9 Exclusion of liability
(a) Without limiting paragraph (b) below, neither the Agent nor the
Trustee will be liable for any action taken by it under or in
connection with any Finance Document or the Transaction Security,
unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party (other than the Agent or, as the case may be, the
Trustee) may take any proceedings against any officer, employee or
agent of the Agent or the Trustee in respect of any claim it might
have against the Agent or Trustee or in respect of any act or
omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or
agent of the Agent or of the Trustee may rely on this Clause
subject to Clause 1.4 (Third Party Rights) and the provisions of
the Third Parties Act.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the Agent
has taken all necessary steps as soon as reasonably practicable to
comply with the regulations or operating procedures of any
recognised clearing or settlement system used by the Agent for
that purpose.
(d) The Trustee will not be liable for any losses to any person or any
liability arising as a result of taking or refraining from taking
any action in relation to any of the Finance Documents or the
Transaction Security or otherwise, whether in accordance with an
instruction from the Agent or otherwise;
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(e) The Trustee will not be liable for (i) the exercise of, or the
failure to exercise, any judgment, discretion or power given to it
by or in connection with any of the Finance Documents, the
Transaction Security or any other agreement, arrangement or
document entered into, made or executed in anticipation of, or in
connection with the Finance Documents or the Transaction Security
or (ii) any shortfall which arises on the enforcement of the
Transaction Security.
24.10 Lenders' indemnity to the Agent and Trustee
Each Lender shall (in proportion to an amount equal to its share of the
Commitments on and after the Bond Maturity Date or, if such Commitment is
then zero, to its share of such Commitments immediately prior to their
reduction to zero) indemnify each of the Agent and the Trustee, within
three Business Days of demand, against any cost, loss or liability
incurred by the Agent or the Trustee (otherwise than by reason of the
Agent's or the Trustee's gross negligence or wilful misconduct) in acting
as Agent or as Trustee under the Finance Documents (unless the Agent or
the Trustee has been reimbursed by an Obligor pursuant to a Finance
Document).
24.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in the United Kingdom as successor by giving
notice to the other Finance Parties and the Borrower.
(b) Alternatively the Agent may resign by giving notice to the other
Finance Parties and the Borrower, in which case the Majority
Lenders (after consultation with the Borrower) may appoint a
successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice of
resignation was given, the Agent (after consultation with the
Borrower) may appoint a successor Agent (acting through an office
in the United Kingdom).
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause
24. Its successor and each of the other Parties shall have the
same rights and obligations amongst themselves as they would have
had if such successor had been an original Party.
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(g) After consultation with the Borrower, the Majority Lenders may, by
notice to the Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Agent shall resign in
accordance with paragraph (b) above.
24.12 Confidentiality
(a) In acting as agent for the Finance Parties or, as the case may be,
trustee for the Secured Parties, the Agent and the Trustee shall
be regarded as acting through its agency division, or as
appropriate, trustee division which shall be treated as a separate
entity from any other of its divisions or departments.
(b) If information is received by another division or department of
the Agent or the Trustee, it may be treated as confidential to
that division or department and neither the Agent nor the Trustee
shall not be deemed to have notice of it.
24.13 Relationship with the Lenders
(a) The Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office unless
it has received not less than five Business Days prior notice from
that Lender to the contrary in accordance with the terms of this
Agreement.
(b) Each Lender shall supply the Agent with any information required
by the Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formulae).
(c) Each Secured Party shall supply the Agent with any information
that the Trustee may reasonably specify (through the Agent) as
being necessary or desirable to enable the Trustee to perform its
functions as trustee. Each Lender shall deal with the Trustee
exclusively through the Agent and shall not deal directly with the
Trustee.
24.14 Credit appraisal by the Secured Parties
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Secured Party (other than the Trustee) confirms to the Agent, the
Arranger and the Trustee that it has been, and will continue to be,
solely responsible for making its own independent appraisal and
investigation of all risks arising under or in connection with any
Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and the Transaction Security and any other
agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document or the Transaction Security;
(c) whether that Secured Party has recourse, and the nature and extent
of that recourse, against any Party or any of its respective
assets under or in connection with any Finance Document, the
Transaction Security, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection
with any Finance Document;
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(d) the adequacy, accuracy and/or completeness of the Information
Package and any other information provided by the Agent, the
Trustee, any Party or by any other person under or in connection
with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document; and
(e) the right or title of any person in or to, or the value or
sufficiency of any part of the Charged Property, the priority of
any of the Transaction Security or the existence of any Security
affecting the Charged Property.
24.15 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Agent shall (in
consultation with the Borrower) appoint another Lender or an Affiliate of
a Lender to replace that Reference Bank.
24.16 Agent's Management Time
Any amount payable to the Agent under Clause 14.3 (Indemnity to the
Agent), Clause 16 (Costs and expenses) and Clause 24.10 (Lenders'
indemnity to the Agent and Trustee) shall include the cost of utilising
the Agent's management time or other resources and will be calculated on
the basis of such reasonable daily or hourly rates as the Agent may
notify to the Borrower and the Lenders, and is in addition to any fee
paid or payable to the Agent under Clause 11 (Fees).
24.17 Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents the
Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent
would otherwise be obliged to make under the Finance Documents and apply
the amount deducted in or towards satisfaction of the amount owed. For
the purposes of the Finance Documents that Party shall be regarded as
having received any amount so deducted.
25. Role of Trustee
25.1 Trust
The Trustee declares that it shall hold the Transaction Security on trust
for the Secured Parties on the terms contained in this Agreement. Each of
the parties to this Agreement agrees that the Trustee shall have only
those duties, obligations and responsibilities expressly specified in
this Agreement or in the Security Documents (and no others shall be
implied).
25.2 No Independent Power
The Secured Parties shall not have any independent power to enforce, or
have recourse to, any of the Transaction Security or to exercise any
rights or powers arising under the Security Documents except through the
Trustee.
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25.3 Trustee's Instructions
The Trustee shall:
(a) act in accordance with any instructions given to it by the Agent
and shall be entitled to assume that (i) any instructions received
by it from the Agent are duly given by or on behalf of the
Majority Lenders or, as the case may be, the Lenders in accordance
with the terms of the Finance Documents and (ii) unless it has
received actual notice of revocation that any instructions or
directions given by the Agent have not been revoked;
(b) be entitled to request instructions, or clarification of any
direction, from the Agent as to whether, and in what manner, it
should exercise or refrain from exercising any rights, powers and
discretions and the Trustee may refrain from acting unless and
until those instructions or clarification are received by it; and
(c) be entitled to, carry out all dealings with the Lenders through
the Agent and may give to the Agent any notice or other
communication required to be given by the Trustee to the Lenders.
25.4 Trustee's Actions
Subject to the provisions of this Clause 25:
(a) the Trustee may, in the absence of any instructions to the
contrary, take such action in the exercise of any of its powers
and duties under the Finance Documents which in its absolute
discretion it considers to be for the protection and benefit of
all the Secured Parties; and
(b) at any time after receipt by the Trustee of notice from the Agent
directing the Trustee to exercise all or any of its rights,
remedies, powers or discretions under any of the Finance
Documents, the Trustee may, and shall if so directed by the Agent,
take any action as in its sole discretion it thinks fit to enforce
the Transaction Security.
25.5 Trustee's Discretions
(a) The Trustee may assume (unless it has received actual notice to
the contrary in its capacity as trustee for the Secured Parties)
that:
(i) no Default has occurred and no Obligor is in breach of or
default under its obligations under any of the Finance
Documents; and
(ii) any right, power, authority or discretion vested in any
person has not been exercised.
(b) The Trustee may, if it receives any instructions or directions
from the Agent to take any action in relation to the Transaction
Security, assume that all applicable conditions under the Finance
Documents for taking that action have been satisfied.
(c) The Trustee may engage, pay for and rely on the advice or services
of any lawyers, accountants, surveyors or other experts (whether
obtained by the Trustee or by any other Secured Party).
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(d) The Trustee may rely upon any communication or document believed
by it to be genuine and, as to any matters of fact which might
reasonably be expected to be within the knowledge of a Secured
Party or an Obligor, upon a certificate signed by or on behalf of
that person.
(e) The Trustee may refrain from acting in accordance with the
instructions of the Agent or Lenders (including bringing any legal
action or proceeding arising out of or in connection with the
Finance Documents) until it has received any indemnification
and/or security that it may in its absolute discretion require
(whether by way of payment in advance or otherwise) for all costs,
losses and liabilities which it may incur in bringing such action
or proceedings.
25.6 Trustee's Obligations
The Trustee shall promptly inform the Agent of:
(a) the contents of any notice or document received by it in its
capacity as Trustee from any Obligor under any Finance Document;
and
(b) the occurrence of any Default of which the Trustee has received
written notice from any other party to this Agreement.
25.7 Excluded Obligations
The Trustee shall not:
(a) be bound to enquire as to the occurrence or otherwise of any
Default or the performance, default or any breach by an Obligor of
its obligations under any of the Finance Documents;
(b) be bound to account to any other Secured Party for any sum or the
profit element of any sum received by it for its own account;
(c) be bound to disclose to any other person (including any Secured
Party) (i) any confidential information or (ii) any other
information if disclosure would, or might in its reasonable
opinion, constitute a breach of any law or be a breach of
fiduciary duty;
(d) be under any obligations other than those which are specifically
provided for in the Finance Documents; or
(e) have or be deemed to have any duty, obligation or responsibility
to, or relationship of trust or agency with, any Obligor.
25.8 No responsibility to perfect Transaction Security
The Trustee shall not be liable for any failure to:
(a) require the deposit with it of any deed or document certifying,
representing or constituting the title of any Obligor to any of
the Charged Property;
(b) obtain any licence, consent or other authority for the execution,
delivery, legality, validity, enforceability or admissibility in
evidence of any of the Finance Documents or the Transaction
Security;
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(c) register, file or record or otherwise protect any of the
Transaction Security (or the priority of any of the Transaction
Security) under any applicable laws in any jurisdiction or to give
notice to any person of the execution of any of the Finance
Documents or of the Transaction Security;
(d) take, or to require any of the Obligors to take, any steps to
perfect its title to any of the Charged Property or to render the
Transaction Security effective or to secure the creation of any
ancillary Security under the laws of any jurisdiction; or
(e) require any further assurances in relation to any of the Security
Documents.
25.9 Insurance by Trustee
(a) The Trustee shall not be under any obligation to insure any of the
Charged Property, to require any other person to maintain any
insurance or to verify any obligation to arrange or maintain
insurance contained in the Finance Documents. The Trustee shall
not be responsible for any loss which may be suffered by any
person as a result of the lack of or inadequacy of any such
insurance.
(b) Where the Trustee is named on any insurance policy as an insured
party, it shall not be responsible for any loss which may be
suffered by reason of, directly or indirectly, its failure to
notify the insurers of any material fact relating to the risk
assumed by the insurers or any other information of any kind,
unless any Secured Party has requested it to do so in writing and
the Trustee has failed to do so within fourteen days after receipt
of that request.
25.10 Custodians and Nominees
The Trustee may appoint and pay any person to act as a custodian or
nominee on any terms in relation to any assets of the trust as the
Trustee may determine, including for the purpose of depositing with a
custodian this Agreement or any document relating to the trust created
under this Agreement and the Trustee shall not be responsible for any
loss, liability, expense, demand, cost, claim or proceedings incurred by
reason of the misconduct, omission or default on the part of any person
appointed by it under this Agreement or be bound to supervise the
proceedings or acts of any person.
25.11 Acceptance of Title
The Trustee shall be entitled to accept without enquiry, and shall not be
obliged to investigate, the right and title as each of the Obligors may
have to any of the Charged Property and shall not be liable for or bound
to require any Obligor to remedy any defect in its right or title.
25.12 Refrain from Illegality
The Trustee may refrain from doing anything which in its opinion will or
may be contrary to any relevant law, directive or regulation of any
jurisdiction which would or might otherwise render it liable to any
person, and the Trustee may do anything which is, in its opinion,
necessary to comply with any law, directive or regulation.
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25.13 Business with the Obligors
The Trustee may accept deposits from, lend money to, and generally engage
in any kind of banking or other business with any of the Obligors.
25.14 Releases
Upon a disposal of any of the Charged Property:
(a) pursuant to the enforcement of the Transaction Security by a
Receiver or the Trustee; or
(b) if that disposal is permitted under the Finance Documents,
the Trustee shall (at the cost of the Obligors) release that property
from the Transaction Security or the Transaction Security given by that
Obligor and is authorised to execute, without the need for any further
authority from the Secured Parties, any release of the Transaction
Security or other claim over that asset or Obligor and to issue any
certificates of non-crystallisation of floating charges that may be
required or desirable.
25.15 Winding up of Trust
If the Trustee, with the approval of the Majority Lenders, determines
that (a) all of the Secured Obligations and all other obligations secured
by any of the Security Documents have been fully and finally discharged
and (b) none of the Secured Parties is under any commitment, obligation
or liability (actual or contingent) to make advances or provide other
financial accommodation to any Obligor pursuant to the Finance Documents,
the trusts set out in this Agreement shall be wound up and the Trustee
shall release, without recourse or warranty, all of the Transaction
Security and the rights of the Trustee under each of the Security
Documents.
25.16 Perpetuity Period
The perpetuity period under the rule against perpetuities, if applicable
to this Agreement, shall be the period of eighty years from the date of
this Agreement.
25.17 Powers Supplemental
The rights, powers and discretions conferred upon the Trustee by this
Agreement shall be supplemental to the Trustee Acts 1925 and 2000 and in
addition to any which may be vested in the Trustee by general law or
otherwise.
25.18 Disapplication
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Trustee in relation to the trusts constituted by this Agreement. Where
there are any inconsistencies between the Trustee Acts 1925 and 2000 and
the provisions of this Agreement, the provisions of this Agreement shall,
to the extent allowed by law, prevail and, in the case of any
inconsistency with the Trustee Xxx 0000, the provisions of this Agreement
shall constitute a restriction or exclusion for the purposes of that Act.
25.19 Resignation of Trustee
(a) The Trustee may resign and appoint one of its Affiliates as
successor by giving notice to the Borrower and to the Agent on
behalf of the Lenders.
111
(b) Alternatively the Trustee may resign by giving notice to the other
Parties (or to the Agent on behalf of the Lenders) in which case
the Majority Lenders may appoint a successor Trustee.
(c) If the Majority Lenders have not appointed a successor Trustee in
accordance with paragraph (b) above within 30 days after the
notice of resignation was given, the Trustee (after consultation
with the Agent) may appoint a successor Trustee.
(d) The retiring Trustee shall, at its own cost, make available to the
successor Trustee such documents and records and provide such
assistance as the successor Trustee may reasonably request for the
purposes of performing its functions as Trustee under the Finance
Documents.
(e) The Trustee's resignation notice shall only take effect upon (i)
the appointment of a successor and (ii) the transfer of all of the
Transaction Security to that successor.
(f) Upon the appointment of a successor, the retiring Trustee shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of Clauses 26
(Conduct of Business by the Finance Parties) and 25 (Role of
Trustee). Its successor and each of the other Parties shall have
the same rights and obligations amongst themselves as they would
have had if such successor had been an original Party.
(g) The Majority Lenders may, by notice to the Trustee, require it to
resign in accordance with paragraph (b) above. In this event, the
Trustee shall resign in accordance with paragraph (b) above.
25.20 Delegation
(a) The Trustee may, at any time, delegate by power of attorney or
otherwise to any person for any period, all or any of the rights,
powers and discretions vested in it by any of the Finance
Documents.
(b) The delegation may be made upon any terms and conditions
(including the power to sub-delegate) and subject to any
restrictions as the Trustee may think fit in the interests of the
Secured Parties and it shall not be bound to supervise, or be in
any way responsible for any loss incurred by reason of any
misconduct or default on the part of any delegate or sub-delegate.
25.21 Additional Trustees
(a) The Trustee may at any time appoint (and subsequently remove) any
person to act as a separate trustee or as a co-trustee jointly
with it (i) if it considers that appointment to be in the
interests of the Secured Parties or (ii) for the purposes of
conforming to any legal requirements, restrictions or conditions
which the Trustee deems to be relevant or (iii) for obtaining or
enforcing any judgment in any jurisdiction, and the Trustee shall
give prior notice to the Borrower and the Agent of that
appointment.
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(b) Any person so appointed shall have the rights, powers and
discretions (not exceeding those conferred on the Trustee by this
Agreement) and the duties and obligations that are conferred or
imposed by the instrument of appointment.
(c) The remuneration that the Trustee may pay to any person, and any
costs and expenses incurred by that person in performing its
functions pursuant to that appointment shall, for the purposes of
this Agreement, be treated as costs and expenses incurred by the
Trustee.
26. Conduct of Business by the Finance Parties
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim;
(c) oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax; or
(d) notwithstanding any provision to the contrary, prevent any person
participating in any transaction relating to this Agreement from
being free to disclose to any persons, information regarding the
tax and structural aspects of matters in connection with the
Finance Documents.
27. Sharing among the Finance Parties
27.1 Payments to Finance Parties
If a Finance Party (a "Recovering Finance Party") receives or recovers
any amount from an Obligor other than in accordance with Clause 28
(Payment mechanics) or Clause 30 (Application of Proceeds) and applies
that amount to a payment due under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business Days,
notify details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have been
paid had the receipt or recovery been received or made by the
Agent and distributed in accordance with Clause 28 (Payment
mechanics), without taking account of any Tax which would be
imposed on the Agent in relation to the receipt, recovery or
distribution; and
(c) the Recovering Finance Party shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance
Party as its share of any payment to be made, in accordance with
Clause 28.5 (Partial payments).
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27.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Finance Party) in accordance with Clause 28.5
(Partial payments).
27.3 Recovering Finance Party's rights
(a) On a distribution by the Agent under Clause 27.2 (Redistribution
of payments), the Recovering Finance Party will be subrogated to
the rights of the Finance Parties which have shared in the
redistribution.
(b) If and to the extent that the Recovering Finance Party is not able
to rely on its rights under paragraph (a) above, the relevant
Obligor shall be liable to the Recovering Finance Party for a debt
equal to the Sharing Payment which is immediately due and payable.
27.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 27.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together
with an amount as is necessary to reimburse that Recovering
Finance Party for its proportion of any interest on the Sharing
Payment which that Recovering Finance Party is required to pay);
and
(b) that Recovering Finance Party's rights of subrogation in respect
of any reimbursement shall be cancelled and the relevant Obligor
will be liable to the reimbursing Finance Party for the amount so
reimbursed.
27.5 Exceptions
(a) This Clause 27 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to this
Clause, have a valid and enforceable claim against the relevant
Obligor.
(b) A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration
proceedings, if:
(i) it notified that other Finance Party of the legal or
arbitration proceedings; and
(ii) that other Finance Party had an opportunity to participate
in those legal or arbitration proceedings but did not do so
as soon as reasonably practicable having received notice
and did not take separate legal or arbitration proceedings.
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SECTION 11
ADMINISTRATION
28. Payment mechanics
28.1 Payments to the Agent
(a) On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor or Lender shall
make the same available to the Agent (unless a contrary indication
appears in a Finance Document) for value on the due date at the
time and in such funds specified by the Agent as being customary
at the time for settlement of transactions in the relevant
currency in the place of payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro,
in a principal financial centre in a Participating Member State or
London) with such bank as the Agent specifies.
28.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 28.3 (Distributions to an
Obligor), Clause 28.4 (Clawback) and Clause 24.17 (Deduction from amounts
payable by the Agent) be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Agent by not less than five Business Days' notice with a bank in the
principal financial centre of the country of that currency (or, in
relation to euro, in the principal financial centre of a Participating
Member State or London).
28.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 29 (Set-off)) apply any amount received by it for that Obligor in
or towards payment (on the date and in the currency and funds of receipt)
of any amount due from that Obligor under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
28.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance Documents
for another Party, the Agent is not obliged to pay that sum to
that other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be
the case that the Agent had not actually received that amount,
then the Party to whom that amount (or the proceeds of any related
exchange contract) was paid by the Agent shall on demand refund
the same to the Agent together with interest on that amount from
the date of payment to the date of receipt by the Agent,
calculated by the Agent to reflect its cost of funds.
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28.5 Partial payments
(a) If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an Obligor under the
Finance Documents, the Agent shall apply that payment towards the
obligations of that Obligor under the Finance Documents in the
following order:
(i) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent and the Trustee (including
of any Receiver or Delegate) and the Arranger under the
Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this
Agreement;
(iii) thirdly, in or towards payment pro rata of any principal
due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum
due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made
by an Obligor.
28.6 No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
28.7 Business Days
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day (if
there is not).
(b) During any extension of the due date for payment of any principal
or Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due
date.
28.8 Currency of account
(a) Subject to paragraphs (b) to (e) below, dollars is the currency of
account and payment for any sum due from an Obligor under any
Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid
Sum shall be made in the currency in which that Loan or Unpaid Sum
is denominated on its due date.
(c) Each payment of interest shall be made in the currency in which
the sum in respect of which the interest is payable was
denominated when that interest accrued.
116
(d) Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than
dollars shall be paid in that other currency.
28.9 Change of currency
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the
currency of that country shall be translated into, or paid
in, the currency or currency unit of that country
designated by the Agent (after consultation with the
Borrower); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of that
currency or currency unit into the other, rounded up or
down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Borrower) specifies to be necessary, be
amended to comply with any generally accepted conventions and
market practice in the Relevant Interbank Market and otherwise to
reflect the change in currency.
29. Set-off
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
30. Application of Proceeds
30.1 Order of Application
All moneys from time to time received or recovered by the Trustee in
connection with the realisation or enforcement of all or any part of the
Transaction Security shall be held by the Trustee on trust to apply them
at such times as the Trustee sees fit, to the extent permitted by
applicable law, in the following order of priority:
(a) in discharging any sums owing to the Trustee (in its capacity as
trustee), any Receiver or any Delegate;
(b) in payment to the Agent, on behalf of the Secured Parties, for
application towards the discharge of all sums due and payable by
any Obligor under any of the Finance Documents in accordance with
Clause 28.5 (Partial Payments);
117
(c) if none of the Obligors is under any further actual or contingent
liability under any Finance Document, in payment to any person to
whom the Trustee is obliged to pay in priority to any Obligor; and
(d) the balance, if any, in payment to the relevant Obligor.
30.2 Investment of Proceeds
Prior to the application of the proceeds of the Transaction Security in
accordance with Clause 30.1 (Order of Application) the Trustee may, at
its discretion, hold all or part of those proceeds in an interest bearing
suspense or impersonal account(s) in the name of the Trustee or Agent
with any financial institution (including itself) and for so long as the
Trustee thinks fit (the interest being credited to the relevant account)
pending the application from time to time of those monies at the
Trustee's discretion in accordance with the provisions of this Clause 30.
30.3 Currency Conversion
(a) For the purpose of or pending the discharge of any of the Secured
Obligations the Trustee may convert any moneys received or
recovered by the Trustee from one currency to another, at the spot
rate at which the Trustee is able to purchase the currency in
which the Secured Obligations are due with the amount received.
(b) The obligations of any Obligor to pay in the due currency shall
only be satisfied to the extent of the amount of the due currency
purchased after deducting the costs of conversion.
30.4 Permitted Deductions
The Trustee shall be entitled (a) to set aside by way of reserve amounts
required to meet and (b) to make and pay, any deductions and withholdings
(on account of Tax or otherwise) which it is or may be required by any
applicable law to make from any distribution or payment made by it under
this Agreement, and to pay all Tax which may be assessed against it in
respect of any of the Charged Property, or as a consequence of performing
its duties, or by virtue of its capacity as Trustee under any of the
Finance Documents or otherwise (except in connection with its
remuneration for performing its duties under this Agreement).
30.5 Discharge of Secured Obligations
(a) Any payment to be made in respect of the Secured Obligations by
the Trustee may be made to the Agent on behalf of the Lenders and
that payment shall be a good discharge to the extent of that
payment, to the Trustee.
(b) The Trustee is under no obligation to make payment to the Agent in
the same currency as that in which any Unpaid Sum is denominated.
30.6 Sums received by Obligors
If any of the Obligors receives any sum which, pursuant to any of the
Finance Documents, should have been paid to the Trustee, that sum shall
promptly be paid to the Trustee for application in accordance with this
Clause.
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31. Notices
31.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
31.2 Addresses
The address, fax number and telex number (and the department or officer,
if any, for whose attention the communication is to be made) of each
Party for any communication or document to be made or delivered under or
in connection with the Finance Documents is:
(a) in the case of the Borrower, that identified with its name below;
(b) in the case of each Lender or any other Obligor, that notified in
writing to the Agent on or prior to the date on which it becomes a
Party; and
(c) in the case of the Agent and Trustee, that identified with its
name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify to
the other Parties, if a change is made by the Agent) by not less than
five Business Days' notice.
31.3 Delivery
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will
only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at that
address; or
(iii) if by way of telex, when despatched, but only if, at the
time of transmission, the correct answerback appears at the
start and at the end of the sender's copy of the notice;
and, if a particular department or officer is specified as part of
its address details provided under Clause 31.2 (Addresses), if
addressed to that department or officer.
(b) Any communication or document to be made or delivered to the Agent
or to the Trustee will be effective only when actually received by
the Agent or the Trustee and then only if it is expressly marked
for the attention of the department or officer identified with the
Agent's or the Trustee's signature below (or any substitute
department or officer as the Agent shall specify for this
purpose).
(c) All notices from or to an Obligor shall be sent through the Agent.
119
(d) Any communication or document made or delivered to the Borrower in
accordance with this Clause will be deemed to have been made or
delivered to each of the Obligors.
(e) All notices to a Lender from the Trustee shall be sent through the
Agent.
31.4 Notification of address, fax number and telex number
Promptly upon receipt of notification of an address, fax number and telex
number or change of address, fax number or telex number pursuant to
Clause 31.2 (Addresses) or changing its own address, fax number or telex
number, the Agent shall notify the other Parties.
31.5 Electronic communication
(a) Any communication to be made between the Agent or the Trustee and
a Lender under or in connection with the Finance Documents may be
made by electronic mail or other electronic means, if the Agent,
the Trustee and the relevant Lender:
(i) agree that, unless and until notified to the contrary, this
is to be an accepted form of communication;
(ii) notify each other in writing of their electronic mail
address and/or any other information required to enable the
sending and receipt of information by that means; and
(iii) notify each other of any change to their address or any
other such information supplied by them.
(b) Any electronic communication made between the Agent and a Lender
or the Trustee will be effective only when actually received in
readable form and in the case of any electronic communication made
by a Lender to the Agent or the Trustee only if it is addressed in
such a manner as the Agent or Trustee shall specify for this
purpose.
31.6 English language
(a) Any notice given under or in connection with any Finance Document
must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent,
accompanied by a certified English translation and, in this
case, the English translation will prevail unless the
document is a constitutional, statutory or other official
document.
120
32. Calculations and Certificates
32.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
32.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
32.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 365 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
33. Partial Invalidity
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
34. Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of any
Secured Party or the Arranger, any right or remedy under the Finance
Documents shall operate as a waiver, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise or
the exercise of any other right or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any rights
or remedies provided by law.
35. Amendments and Waivers
35.1 Required consents
(a) Subject to Clause 35.2 (Exceptions) and Clause 25.14 (Releases)
any term of the Finance Documents may be amended or waived only
with the consent of the Majority Lenders and the Obligors and any
such amendment or waiver will be binding on all Parties.
(b) The Agent, or in respect of the Security Documents the Trustee,
may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.
35.2 Exceptions
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
121
(ii) an extension to the date of payment of any amount under the
Finance Documents;
(iii) a reduction in the Margin or a reduction in the amount of
any payment of principal, interest, fees or commission
payable;
(iv) an increase in or an extension of any Commitment;
(v) a change to the Borrower or Guarantors;
(vi) any provision which expressly requires the consent of all
the Lenders;
(vii) Clause 2.2 (Finance Parties' rights and obligations),
Clause 23 (Changes to the Lenders) or this Clause 35; or
(viii) the nature or scope of the Charged Property or the manner
in which the proceeds of enforcement of the Transaction
Security are distributed;
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations
of the Agent, the Trustee or the Arranger may not be effected
without the consent of the Agent, the Trustee or the Arranger.
36. Counterparts
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
122
SECTION 12
GOVERNING LAW AND ENFORCEMENT
37. Governing law
This Agreement is governed by English law.
38. Enforcement
38.1 Jurisdiction of English courts
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 38.1 is for the benefit of the Finance Parties only.
As a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties
may take concurrent proceedings in any number of jurisdictions.
38.2 Service of process
Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor incorporated in England and
Wales):
(a) irrevocably appoints the Borrower as its agent for service of
process in relation to any proceedings before the English courts
in connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
38.3 Waiver of Jury Trial
Each of the Finance Parties irrevocably waives trial by jury in any
action or proceeding with respect to this Agreement or any other Finance
Document.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
123
SCHEDULE 1
THE ORIGINAL PARTIES
Part I
The Obligors
Name of Borrower Registration number Jurisdiction
(or equivalent, if any)
Sea Containers British Isles Limited 00994965 UK
Name of Guarantor Registration number Jurisdiction
(or equivalent, if any)
Charleston Marine Containers Inc. 00-0000000 US
Ferry & Port Holdings Limited 02413534 UK
Folkestone Properties Limited 02447559 UK
GNER Holdings Limited 03101807 UK
Hoverspeed Limited 01537993 UK
Newhaven Marina Limited 03874576 UK
Xxxxxxxx Xxxxx Xxxx Xxxxxxx 00000000 XX
Xxx Containers America Inc. 00-0000000 US
Sea Containers Ferries Limited 02404064 UK
Sea Containers Isle of Man Limited 69653C Isle of Man
Sea Containers Ltd. 00-0000000 Bermuda
Sea Containers Ports & Ferries Limited EC21715 Bermuda
Sea Containers Ports Limited 02445259 UK
Sea Containers Properties Limited EC13911 Bermuda
Sea Containers Property Services Limited 02269195 UK
Sea Containers Railway Services Limited 03243875 UK
Sea Containers UK Limited 03048931 UK
124
Part II
The Original Lenders - other than UK Non-Bank Lenders
Name of Original Lender Commitment
Column 1 Column 2
Prior to Bond On and after Bond
Maturity Date Maturity Date
Citicorp North America, Inc. 1/2 of US$35,000,000 1/3 of US$158,000,000
Fortis Bank S.A./N.V. 0 1/3 of US$158,000,000
The Governor and Company of
the Bank of Scotland 1/2 of US$35,000,000 1/3 of US$158,000,000
125
Part III
The Original Lenders - UK Non-Bank Lenders
Name of Original Lender Commitment
None
126
SCHEDULE 2
CONDITIONS PRECEDENT
1. Obligors: Corporate Documents
(a) A copy of the constitutional documents of each Obligor.
(b) A copy of a good standing certificate (including verification of
tax status) with respect to each US Obligor, issued as of a recent
date by the Secretary of State or other appropriate official of
each US Obligor's jurisdiction of incorporation or organisation.
(c) A copy of a resolution of the board of directors of each Obligor:
(i) approving the terms of, and the transactions contemplated
by, the Finance Documents to which it is a party and
resolving that it execute the Finance Documents to which it
is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf,
to sign and/or despatch all documents, powers of attorneys,
deeds and notices (including, if relevant, any Utilisation
Request and Selection Notice) to be signed and/or
despatched by it under or in connection with the Finance
Documents to which it is a party.
(d) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (c) above.
(e) A copy of a resolution signed by all the holders of the issued
shares in each Obligor, approving the terms of, and the
transactions contemplated by, the Finance Documents to which the
Obligor is a party and where such Obligor is a corporate, a
resolution from the directors of that company approving such
shareholder resolution and duly appointing a director or other
authorised signatory to sign it.
(f) A certificate of the Parent (signed by a director) confirming that
borrowing or guaranteeing, as appropriate, the Total Commitments
would not cause any borrowing, guaranteeing or similar limit
binding on any Obligor to be exceeded and would not cause any
Obligor to breach any provision of any contract or agreement
entered into by it prior to the date of this Agreement.
(g) A certificate of an authorised signatory of the relevant Obligor,
certifying that each copy document relating to it specified in
this Schedule 2 is correct, complete and in full force and effect
as at a date no earlier than the date of this Agreement.
(h) The Group Structure Chart certified by the Parent as being true at
the date of this Agreement.
127
2. Security Documents
(a) The following Security Documents duly executed by the relevant
Obligors and, if required, the Trustee:
(i) UNITED KINGDOM
(1) Chargor incorporated in Bermuda
(A) Charge over shares granted by Sea Containers
Ltd. in respect of its shareholding in Silja
Holdings Limited.
(B) Charge over Dividends Account and Mandatory
Prepayment Account granted by Sea Containers
Ltd..
(2) Chargor incorporated in UK
(A) Charge over shares granted by Sea Containers
UK Limited in respect of its shareholding in
Sea Containers British Isles Limited.
(B) Charge over shares granted by Sea Containers
British Isles Limited in respect of its
shareholding in GNER Holdings Limited.
(C) Charge over shares granted by Sea Containers
British Isles Limited in respect of its
shareholding in Sea Containers Property
Services Limited.
(D) Charge over shares granted by Sea Containers
British Isles Limited in respect of its
shareholding in Sea Containers Railway
Services Limited.
(E) Assignment relating to GNER Limited dividends
by GNER Holdings Limited.
(F) Charge over shares granted by Ferry & Port
Holdings Limited in respect of its
shareholding in Sea Containers Ports Limited.
(G) Charge over shares granted by Sea Containers
Ports Limited in respect of its shareholding
in Folkestone Properties Limited.
(H) Charge over shares granted by Sea Containers
Ports Limited in respect of its shareholding
in Newhaven North Quay Limited.
(I) Floating Charge granted by Sea Containers
British Isles Limited.
(J) Debenture granted by Newhaven North Quay
Limited.
128
(K) Debenture granted by Folkestone Properties
Limited.
(ii) ISLE OF MAN
(1) Chargor Incorporated in Bermuda
(A) Charge over shares granted by Sea Containers
Ports & Ferries Limited in respect of its
shareholding in Sea Containers Isle of Man
Limited.
(2) Chargor incorporated in Isle of Man
(A) Charge over shares granted by Sea Containers
Isle of Man Limited in respect of its
shareholding in Isle of Man Steam Packet
Holdings Limited.
(iii) BERMUDA
Chargor incorporated in Bermuda
(A) Charge over shares granted by Sea Containers Ltd. in
respect of its shareholding in Sea Containers Ports
& Ferries Limited.
(B) Charge over shares granted by Sea Containers Ltd. in
respect of its shareholding in Sea Containers
Properties Limited.
(C) Charge over shares granted by Sea Containers Ltd. in
respect of its shareholding in Orient Express Hotels
Limited pursuant to the Custodian Accounts Charge
Agreement between Sea Containers Ltd., Citigroup
Trustee Company Limited and the Custodian (as
defined therein) and the Escrow Agreement between
Sea Containers Ltd., Citigroup Trustee Company
Limited and the Custodian (as defined therein)
relating thereto, and delivery of all such shares to
the account established with the Custodian pursuant
to such agreements.
(D) A Power of Attorney, in form and substance
satisfactory to the Agent, of the Parent in favour
of the Agent permitting the sale of OEH Shares by
the Agent on behalf of the Parent
(iv) US
Chargor incorporated in US
(A) Charge over shares (and dividends) granted by Sea
Containers America Inc. in respect of its
shareholding in Charleston Marine Containers Inc.
(v) BARBADOS
Chargor incorporated in Bermuda
129
(A) Charge over dividends granted by Sea Containers Ltd.
in respect of its shareholding in GE Seaco SRL.
(b) All documentation, and/or evidence of all other steps required to
perfect the Security Documents, as set out in the Transaction
Closing Agenda.
3. Legal Opinions
(a) A legal opinion of Xxxxxxxx Chance LLP legal advisors to the
Arranger and Agent in England, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(b) A legal opinion of Xxxxx, Xxxxx & Xxxxxx legal advisers to the
Arranger and the Agent in Bermuda, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(c) A legal opinion of Xxxxxx Xxxxxx Xxxxx & Co legal advisers to the
Arranger and the Agent in Barbados, substantially in the form
distributed to the Original Lenders prior to signing this
Agreement.
(d) A legal opinion of Simcocks legal advisers to the Arranger and the
Agent in Isle of Man, substantially in the form distributed to the
Original Lenders prior to signing this Agreement.
(e) A legal opinion of Xxxxxxxx Chance LLP legal advisers to the
Arranger and the Agent in the United States (in relation to New
York law), substantially in the form distributed to the Original
Lenders prior to signing this Agreement.
4. Other documents and evidence
(a) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable
(if it has notified the Borrower accordingly) in connection with
the entry into and performance of the transactions contemplated by
any Finance Document or for the validity or enforceability of any
Finance Document or of the Transaction Security.
(b) The Original Financial Statements provided that if Original
Financial Statements are not available for a company, that company
must provide:
(i) its audited financial statements for its financial year
ended 31 December 2001 and the latest set of its management
accounts for the year ended 31 December 2002; or, in the
case of any US Obligor which does not have audited
financial statements;
(ii) its latest set of management accounts for the year ended 31
December 2002.
(c) Evidence that the fees, costs and expenses then due from the
Borrower pursuant to Clause 11 (Fees), Clause 16 (Costs and
Expenses) and Clause 12.5 (Stamp Taxes) have been paid or will be
paid by the first Utilisation Date.
130
(d) The executed Fee Letters.
(e) Offer letters evidencing the valuations in respect of the Cash
Disposal Proceeds of each member of the Disposal Group.
(f) Budget of GNER Holdings Limited evidencing a net cash flow of
US$50,000,000 per annum.
(g) A copy of the Franchise Agreement and Track Access Agreement and
any amendment supplemental or other ancillary document pertaining
to it.
(h) The audited financial statements for GNER Limited for the
financial year ended 31 December 2002 (evidencing the treatment
of/showing the pensions liabilities of GNER Limited).
(i) The Litigation Settlement Memoranda and the Franchise Termination
Assessment Memorandum.
(j) A letter dated on or about the date of this Agreement confirming
consent to the terms and conditions of the Finance Documents and
providing any relevant waivers required in relation thereto from
The Governor and Company of the Bank of Scotland in respect of the
Folkestone Facility and the Newhaven Facility.
(k) A duly executed Account Agreement.
(l) A certificate of a finance officer of each US Obligor stating that
the respective company is Solvent after giving effect to the
initial Loans, the application of the proceeds thereof in
accordance with Clause 3 (Purpose) and the payment of all
estimated legal, accounting and other fees related to this
Agreement and the consummation of the other transactions
contemplated hereby. For purposes of this certificate, "Solvent"
means with respect to such US Obligor on any date of determination
that (a) the fair value of the property of such person is greater
than the total amount of liabilities (including contingent and
unliquidated liabilities) of such person; (b) the present fair
saleable value of the assets of such person is not less than the
amount which will be required to pay the probable liability of
such person on its debts as they become absolute and mature; (c)
such person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such person's ability to pay as
such debts and liabilities mature; and (d) such person is not
engaged in a business or transaction, and is not about to engage
in a business or transaction, for which such person's property
would constitute unreasonably small capital. In computing the
amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in lights of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual and
matured liability.
(m) A certified copy of a letter from the Bermuda Monetary Authority
in form and substance satisfactory to the Trustee granting
permission for the transfer of the OEH Shares and the shares in GE
Seaco SRL to the Trustee or its nominees in the event that the
Trustee exercises its rights under the relevant Security Document.
131
(n) The Transaction Closing Agenda and, to the extent that they are
not otherwise delivered in accordance with Schedule 2 hereof, the
delivery of all items set out therein.
132
SCHEDULE 3
REQUESTS
Part I
Utilisation Request
From: SEA CONTAINERS LTD
To: [Agent]
Dated:
Dear Sirs
SEA CONTAINERS BRITISH ISLES LIMITED - [ ] Facility Agreement
dated [ ] (the "Agreement")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined
in the Agreement have the same meaning in this Utilisation Request unless
given a different meaning in this Utilisation Request.
2. The Borrower wishes to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business
Day, the next Business Day)
Currency of Loan: Dollars
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
3. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Utilisation
Request.
4. The proceeds of this Loan should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
Authorised Signatory of
SEA CONTAINERS LTD.
* delete as appropriate
133
Part II
Selection Notice1
Applicable to a Loan
From: SEA CONTAINERS LTD.
To: [Agent]
Dated:
Dear Sirs
SEA CONTAINERS BRITISH ISLES LIMITED - [ ] Facility Agreement
dated [ ] (the "Agreement")
1. We refer to the Agreement. This is a Selection Notice. Terms defined in
the Agreement have the same meaning in this Selection Notice unless given
a different meaning in this Selection Notice.
2. We refer to the following Loan[s] in dollars with an Interest Period
ending on [ ]*.
3. [We request that the next Interest Period for the above Loan[s] is
[ ]].**
4. This Selecti on Notice is irrevocable.
Yours faithfully
.....................................
Authorised Signatory of
SEA CONTAINERS LTD.
--------------------------------------------------------------------------------
1 This may be used to select the duration of the next Interest Period for
an existing Loan.
* Insert details of all Loans in the same currency which have an Interest
Period ending on the same date.
** Use this option if sub-division is not required.
--------------------------------------------------------------------------------
134
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case,
any other authority which replaces all or any of its functions) or (b)
the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender in
the relevant Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in
a Participating Member State will be the percentage notified by that
Lender to the Agent. This percentage will be certified by that Lender in
its notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
E x 0.01
-------- per cent. per annum.
100
Where:
E is designed to compensate Lenders for amounts payable under the
Fees Rules and is calculated by the Agent as being the average of
the most recent rates of charge supplied by the Reference Banks to
the Agent pursuant to paragraph 6 below and expressed in pounds
per (pound)1,000,000.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of
England;
(b) "Fees Rules" means the rules on periodic fees contained in the FSA
Supervision Manual or such other law or regulation as may be in
force from time to time in respect of the payment of fees for the
acceptance of deposits;
(c) "Fee Tariffs" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any
minimum fee or zero rated fee required pursuant to the Fees Rules
but taking into account any applicable discount rate); and
135
(d) "Tariff Base" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the Agent, the rate of charge payable by that Reference Bank to the
Financial Services Authority pursuant to the Fees Rules in respect of the
relevant financial year of the Financial Services Authority (calculated
for this purpose by that Reference Bank as being the average of the Fee
Tariffs applicable to that Reference Bank for that financial year) and
expressed in pounds per (pound)1,000,000 of the Tariff Base of that
Reference Bank.
7. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information on
or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require for
such purpose.
Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
8. The rates of charge of each Reference Bank for the purpose of E above
shall be determined by the Agent based upon the information supplied to
it pursuant to paragraphs 6 and 7 above and on the assumption that,
unless a Lender notifies the Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits and Special Deposits are
the same as those of a typical bank from its jurisdiction of
incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 6 and 7 above is
true and correct in all respects.
10. The Agent shall distribute the additional amounts received as a result of
the Mandatory Cost to the Lenders on the basis of the Additional Cost
Rate for each Lender based on the information provided by each Lender and
each Reference Bank pursuant to paragraphs 3, 6 and 7 above.
11. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
12. The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change
in law, regulation or any requirements from time to time imposed by the
Bank of England, the Financial Services Authority or the European Central
Bank (or, in any case, any other authority which replaces all or any
136
of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all Parties.
137
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: [ ] as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the
"New Lender")
Dated:
SEA CONTAINERS BRITISH ISLES LIMITED - [ ] Facility Agreement
dated [ ] (the "Agreement")
1. We refer to the Agreement. This is a Transfer Certificate. Terms defined
in the Agreement have the same meaning in this Transfer Certificate
unless given a different meaning in this Transfer Certificate.
2. We refer to Clause 23.7 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing
Lender transferring to the New Lender by novation all or part of
the Existing Lender's Commitment, rights and obligations referred
to in the Schedule in accordance with Clause 23.7 (Procedure for
transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details
for notices of the New Lender for the purposes of Clause 31.2
(Addresses) are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 23.6 (Limitation
of responsibility of Existing Lenders).
4. The New Lender confirms that the person beneficially entitled to interest
payable to that Lender in respect of an advance under a Finance Document
is either:
(a) a company resident in the United Kingdom, or a partnership each
member of which is a company resident in the United Kingdom, for
United Kingdom tax purposes; or
(b) a company not so resident in the United Kingdom which carries on a
trade in the United Kingdom through a branch or agency and
interest payable in respect of an advance under a Finance Document
falls to be brought into account in computing the chargeable
profits of that company for the purposes of section 11(2) of the
Taxes Act.2
138
[4/5]. This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts
were on a single copy of this Transfer Certificate.
[5/6]. This Transfer Certificate is governed by English law.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices
and account details for payments,]
[Existing Lender] [New Lender]
By: By
This Transfer Certificate is accepted by the Agent and the Transfer Date
is confirmed as [ ].
[Agent]
By:
--------------------------------------------------------------------------------
2 Include if New Lender comes within the definition of Qualifying Lender in
Clause 1.1 (Definitions).
--------------------------------------------------------------------------------
139
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: [ ] as Agent
From: SEA CONTAINERS LTD.
Dated:
Dear Sirs
SEA CONTAINERS BRITISH ISLES LIMITED - [ ] Facility Agreement
dated [ ] (the "Agreement")
1. We refer to the Agreement. This is a Compliance Certificate delivered
with the [audited] consolidated accounts of the Company dated [31 March,
30 June, 30 September, 31 December] (the "Reference Date"). Unless
otherwise defined herein, capitalised terms shall have the same meaning
as in the Agreement.
2. We confirm that on the Reference Date:
(a) Consolidated Tangible Net Worth was US$[ ] and therefore was not
less than US$250,000,000 (or equivalent in other currencies).
Therefore the covenant contained in paragraph 20.2(a) of Clause 20
(Financial Covenants) [has/has not] been complied with;
(b) The Parent had Cash in an amount equal to US$[ ] and when combined
with the Cash of GNER Holdings Limited, GNER Limited and the
Borrower (each as referred to at paragraphs (c), (d) and (e)
respectively below) was at least US$50,000,000 (or equivalent in
other currencies). Therefore the covenant contained in paragraph
20.2(b) of Clause 20 (Financial Covenants) [has/has not] been
complied with;
(c) GNER Holdings Limited had Cash in an amount equal to US$[ ] and
when combined with the Cash of the Parent, GNER Limited and the
Borrower (each as referred to at paragraphs (b), (d) and (e)
respectively) was at least US$50,000,000 (or equivalent in other
currencies). Therefore the covenant contained in paragraph 20.2(b)
of Clause 20 (Financial Covenants) [has/has not] been complied
with;
(d) GNER Limited had Cash in an amount equal to US$[ ] and when
combined with the Cash of the Parent, GNER Holdings Limited and
the Borrower (each as referred to at paragraphs (b), (c) and (e)
respectively) was at least US$50,000,000 (or equivalent in other
currencies). Therefore the covenant contained in paragraph 20.2(b)
of Clause 20 (Financial Covenants) [has/has not] been complied
with;
(e) The Borrower had Cash in an amount equal to US$[ ] and when
combined with the Cash of the Parent, GNER Holdings Limited and
GNER Limited (each as referred to at paragraphs (b), (c) and (d)
above respectively) was at least US$50,000,000 (or equivalent in
other currencies). Therefore the covenant contained in paragraph
20.2(b) of Clause 20 (Financial Covenants) [has/has not] been
complied with; and
140
(f) The Borrower had Cash in an amount equal to US$[ ] therefore was
at least [(pound)2,500,000/(pound)5,000,000]* (or equivalent in
other currencies). Therefore the covenant contained in paragraph
20.2(c) of Clause 20 (Financial Covenants) [has/has not] been
complied with.
(g) GNER Limited had excess cash in an amount equal to (pound)[o] and
the GNER Liquidity Maintenance Cash was (pound)[o] therefore
(pound)[o] [shall be / has been] transferred by GNER Limited by
way of loan or Dividend to the GNER Dividends Account.
3. [We confirm that no Default is continuing]**
Signed: ..............................
Authorised Signatory and Finance Officer
of
SEA CONTAINERS LTD.
--------------------------------------------------------------------------------
* After 15 November 2003, this amount shall increase to (pound) 5,000,000
(or equivalent in other currencies).
** If this statement cannot be made, the certificate should identify any
Default that is continuing and the steps, if any, being taken to remedy
it.
--------------------------------------------------------------------------------
141
SCHEDULE 7
GROUP STRUCTURE CHART
[GRAPHIC OMITTED]
[The graphic sets forth the organization and
structure of the Sea Containers Limited group]
142
SCHEDULE 8
TIMETABLES
Loans in dollars
Evidence of Available Facility in relevant amount in Bond Maturity Date -5
accordance with Clause 4.2(c) (Further conditions
precedent).
Delivery of a duly completed Utilisation Request U-3
(Clause 5.1 (Delivery of a Utilisation Request) or a
Selection Notice (Clause 9.1 (Selection of Interest 9.30am
Periods))
Agent notifies the Lenders of the Loan or of any U-2
payment to be made to another Lender in each case in
accordance with Clause 5.4 (Lenders' participation) noon
LIBOR is fixed U-2
as of 11.00 a.m.
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
143
SCHEDULE 9
THE PROPERTY
The Property is the:
(A) leasehold land:
(a) being North Quay, Newhaven Harbour, Newhaven, as is registered at
HM Land Registry with Title Number XXX000000; (the headlease under
which this property above is held is dated 8 February 2001 and
made between (1) Newhaven Port & Properties Limited and (2) FPHL);
(b) lying to the south of Marine Parade Folkestone as is registered
with title number K774627; (the lease is dated 5 April 1974 and
made between (1) The Right Honourable Xxxxx Xxxx of Radnor and (2)
British Railways Board).
(c) being a jetty at Folkestone Harbour as is registered with title
number K744624; (the lease is dated 5 September 1972 between (1)
The Queens Most Excellent Majesty and The Crown Estate
Commissioners and (2) The British Railways Board);
(d) being the site of a railway at Folkestone Harbour as is registered
with title number K667505; (the lease is dated 30 January 1989
between (1) British Railways Board and (2) Sealink Harbours
Limited); and
(B) freehold land being land at Folkestone Harbour, Harbour Approach Road,
Folkestone as is registered at HM Land Registry with title number
K721157.
144
SIGNATURES
The Borrower
SIGNED for and on behalf of
SEA CONTAINERS BRITISH ISLES LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
THE GUARANTORS
SIGNED for and on behalf of
CHARLESTON MARINE CONTAINERS INC.
By: XXXXXX XXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
145
SIGNED for and on behalf of
FERRY & PORT HOLDINGS LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
FOLKESTONE PROPERTIES LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
GNER HOLDINGS LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
146
SIGNED for and on behalf of
HOVERSPEED LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
NEWHAVEN MARINA LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
NEWHAVEN NORTH QUAY LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
147
SIGNED for and on behalf of
SEA CONTAINERS AMERICA INC.
By: XXXXXX XXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS FERRIES LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
148
SIGNED for and on behalf of
SEA CONTAINERS ISLE OF MAN LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS LTD.
By: XXXXXX XXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
149
SIGNED for and on behalf of
SEA CONTAINERS PORTS & FERRIES LIMITED
By: XXXXXX XXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PORTS LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS PROPERTIES LIMITED
By: XXXXXX XXXX X'XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
150
SIGNED for and on behalf of
SEA CONTAINERS PROPERTY SERVICES LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
SIGNED for and on behalf of
SEA CONTAINERS RAILWAY SERVICES LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
151
SIGNED for and on behalf of
SEA CONTAINERS UK LIMITED
By: GUY XXXXXXXX XXXXXXXX
Address: Sea Containers Ltd.
c/o Sea Containers Services Limited
00 Xxxxx Xxxxxx
Xxxxxx XX0 0XX
Fax: x00 00 0000 0000
Telephone: x00 00 0000 0000
Attention: Company Secretary
THE MANDATED LEAD ARRANGERS
SIGNED for and on behalf of
CITIGROUP GLOBAL MARKETS LIMITED
By: XXXXXXXX XXXXXXX
Address: Loan Capital Markets
Citigroup
00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Loan Capital Markets, Xxxxxxxx Xxxxxxx, Director
SIGNED for and on behalf of
FORTIS BANK LIMITED
By: XXXX XXXXXXX XXXXXX
Address: Fortis Bank X.X./X.X.
Xxxxxxxx Xxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00(0) 000 000 0000
Attention: Xxxx Xxxxxx, Head of Global Shipping Group London
152
SIGNED for and on behalf of
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: XXXXXXXX FEAST
Address: Bank of Scotland
Corporate Banking
0xx Xxxxx
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Corporate Banking, Xxx Feast, Director
THE AGENT
SIGNED for and on behalf of
CITIBANK INTERNATIONAL PLC
By: XXXXXXXX XXXXXXX
Address: Citigroup Centre,
33 Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Fax: x00 000 000 0000/4484
Telephone: x00 000 000 0000
Attention: Loans Agency
153
THE TRUSTEE
SIGNED for and on behalf of
CITICORP TRUSTEE COMPANY LIMITED
By: AYDEN XXXX
Address: Citicorp Trustee Company Limited
00xx Xxxxx
Xxxxxxxxx Xxxxxx
Xxxxxx Square
Xxxxxx Xxxxx
Xxxxxx
X00 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Agency and Trust
THE ORIGINAL LENDERS
SIGNED for and on behalf of
CITICORP NORTH AMERICA, INC.
By: XXXXXXXX XXXXXXX
Address: Delaware Loan Ops
Xxx Xxxx'x Xxx
Xxx Xxxxxx
XX 00000 XXX
Fax: x0 000 000 0000
Telephone: x0 000 000 0000
Attention: Xxxx Xxxxx, Vice President
and
Address: Loan Capital Markets
Citigroup
00 Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Loan Capital Markets, Xxxxxxxx Xxxxxxx, Director
154
SIGNED for and on behalf of
FORTIS BANK S.A./N.V.
By: XXXX XXXXXXX XXXXXX
Address: Fortis Bank X.X./X.X.
Xxxxxxxx Xxxxx
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Xxxx Xxxxxx, Head of Global Shipping Group London
SIGNED for and on behalf of
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: XXXXXXXX FEAST
Address: Bank of Scotland
Corporate Banking
0xx Xxxxx
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Fax: x00 (0) 000 000 0000
Telephone: x00 (0) 000 000 0000
Attention: Corporate Banking, Xxx Feast, Director
155
--------------------------------------------------------------------------------
156
