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10.33.1
THE BANK OF N.T. XXXXXXXXXXX & SON LIMITED - LONDON BRANCH
OFFER OF TERM LOAN FACILITIES
The Schedule
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Date: 27 February 1995
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Borrower: Horizon Exploration Limited
0 Xxxxxxxx Xxxx
Xxxxxxxxx
Xxxx
XX00 0XX
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Currency and Loan Amount: Up to a maximum sum of USD 2,000,000 (Two
Million United States Dollars).
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Purpose: To finance the purchase of Marine Seismic Digital Streamer
Sections and Modules which are currently the subject of the
A.T. & T Lease.
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Interest Rate the aggregate of: 2.00% p.a. (per centum per annum) above
LIBOR and Reserve Assets Costs.
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Interest Periods: Three month LIBOR.
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Loan Maturity Date: Subject to the terms of this Offer and no Event of Default
or Potential Event of Default having occurred, the final instalment of the Debt
shall be repayable on the date occurring, thirty months following the Drawdown
Date.
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Security:
a) A Chattel Mortgage in a form acceptable to the Bank over the assets
financed under the A.T. & T. Lease.
The security to be given by the Borrower to the Bank under the General
Banking and Contract Finance Facility will also constitute security for the
Borrower's liabilities hereunder and for the avoidance of doubt includes
inter-alia the following;
a) A Debenture incorporating First Fixed and Floating charges over all
the Borrower's assets, undertakings and property; and
b) A Letter of Hypothecation and Pledge; and
c) A Set Off and Charge
d) The Guarantee of Seismic Exploration Limited supported by a Third
Party Charge over the Panamanian registered "M/V Caribbean Horizon".
e) The Guarantee of Exploration Holdings Limited.
f) The Assignments of the Life Policies on the lives of Mr G Xxxxxxxx,
Mr N Xxxxxxxx and Mr G Xxxxxx with each life being insured for not
less than L.250,000.
g) Assignments of the proceeds payable under the Contracts.
h) The Letter of Comfort from the Majority Shareholder.
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Arrangement Fee: 1% of the Facility.
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Repayment Arrangments:
i) The Loan Amount is to be repaid in quarterly instalments with the
first repayment falling due on the 30 June 1995 and thereafter each
instalment of principal is to be paid by the Borrower to the Bank on
the Bank's Quarter End Dates with the final repayment being thirty
months from the Drawdown Date.
ii) Interest Payments are to be made by the Borrower on the Bank's
Quarter End Dates with the first such interest payment date being
the 30 June 1995 and thereafter on each Quarter End Date with the
final interest payment date being thirty months from the Drawdown
Date.
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* Special Conditions apply and are listed on the Continuation Sheet.
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THE SCHEDULE (Continued)
Special Conditions:
A) PRIOR TO DRAWDOWN UNDER THE FACILITY THE BANK IS TO RECEIVE THE FOLLOWING
IN A FORM AND SUBSTANCE WHICH IS ACCEPTABLE TO THE BANK AND ITS LEGAL
ADVISORS.
i) Your written acceptance of the Facility in accordance with the terms
of this offer; and
ii) Written confirmation from the relevant insurers that the Borrower
has in place adequate insurance cover for the business and its
assets with the Bank named as first loss payee; and
iii) A duly completed and signed Drawdown Notice in the form attached;
and
iv) A copy, certified as true and accurate by a Director or the
Borrower's Secretary of a resolution of the Borrower's Board of
Directors agreeing to accept the Facility on the terms of this offer
and authorizing an officer or officers of the Borrower to sign the
enclosed copy of this letter, any security documentation or
ancillary documentation related hereto and also execute any other
notices, advices and instructions whatsoever which from time to time
may be issued or provided under the Facility; and
v) Written confirmation signed by the Borrower and addressed to the
Bank confirming that;
a) The Borrowers Memorandum and Articles of Association, a
certified copy of which is held on the Bank's files, have
not been amended or altered in any manner whatsoever.
b) That the Bank may continue to rely on the Resolutions passed
by the Borrower on the 8 August 1994 and the signature
mandate executed by the Borrower.
c) The Borrower will continue to be bound by the General
Conditions signed by the Borrower on the 8 August 1994.
vi) A copy of this letter signed by Seismic Exploration Limited and
Exploration Holdings Limited as guarantors; and
vii) A deed (Deed of Subordination) in a form acceptable to the Bank
signed by the Majority Shareholder, postponing repayment of the
principal of the Majority Shareholders Loan until 30 September 1996
at the earliest; and
viii) A Copy, certified as true and accurate by a Director or the Company
Secretary of a resolution passed by the Company amending the
Articles of Association making the payment of dividends to the
shareholders subject to the terms of the Deed of Subordination.
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B) THE FOLLOWING SPECIAL CONDITIONS WILL CONTINUE TO APPLY THROUGHOUT
THE TERM OF THIS FACILITY:
i) The Security provided under the Facility will also constitute cross
collateralisation for the General Banking and Contract Finance
Facility; and
ii) No utilisation of the Facility may be requested by the Borrower if
an Event of Default or Potential Event of Default shall have
occurred which has not been expressly waived by the Bank in writing
or which has not been remedied to the Bank's satisfaction or would
result from such utilisation.
iii) Nothing contained in this offer letter shall restrict the operation
of any general lien, right of set off or any other rights or
remedies whatsoever which the Bank may have whether by law or
otherwise; and
iv) No payment of dividends or repayments of principal under the
Shareholders Loan by the Borrower is permitted without the Bank's
prior written consent.
v) The Borrower is to comply with the following financial covenants
which will be tested against the Borrower's accounts for financial
year ending 31 December 1995.
a) Gearing : Not greater than 0.80:1.
b) Leverage : Not greater than 2:1.
c) Interest Cover : Not less than 3.75 X.
d) Net Worth : Not less then L.3,600,000.
Financial Covenants for subsequent years will be notified to the
Borrower by way of an amendment to this letter. Note the following
definitions apply in respect of the financial covenants.
"Gearing" means all the Borrowers interest bearing debt net of cash balances
held to Net Worth.
"Leverage" means all balance sheet liabilities to Net Worth.
"Interest Cover" means operating profits before net interest payable.
"Net Worth" means paid-up share capital, the retained earnings plus the
Majority Shareholders Loan less intangible assets and non-quoted investments.
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TO: The Borrower named in the Schedule
FROM: THE BANK OF N.T. XXXXXXXXXXX & SON LIMITED - LONDON BRANCH 00
Xxxxxxxx Xxxxxx Xxxxxx XX0X 0XX
We, The Bank of N.T. Xxxxxxxxxxx & Son Limited through our London Branch ("the
Bank"), hereby Offer to make available to you ("the Borrower") a banking
accommodation in the form of a term loan facility, as mentioned in the Schedule
attached hereto (the Schedule) in the Currency and up to the aggregate Loan
Amount specified in the Schedule, on the following terms and conditions.
It is a term of this Offer that, if you, the Borrower, are more than one person
or corporate body, the liability of each such person or corporate body in
connection with the Facility will be a joint and several liability.
1. DEFINITIONS
In this Offer and the Schedule hereto, unless the context otherwise requires,
the following words and expressions have the following meanings:
1.1 "The Advance" means an advance of the Facility made by the
Bank to the Borrower hereunder to repay AT &
T Capital Limited
1.2 "Banking Day" means a day (excluding Saturdays) on which
banks are open for normal business in the
City of London
1.3 "Conditions" means the Bank's General Conditions which
govern all transactions between the Bank and
the Borrower
1.4 "Currency" means the currency specified in the Schedule
in which the Loan Amount is to be made
available and in which all payments are to be
made by you pursuant to the terms of this
Offer
1.5 "Debts" means the total amount in the Currency from
time to time outstanding and owed by you to
us pursuant to the terms and conditions of
this Offer including without limitation all
Principal and accrued interest owing under
the Facility, costs and expenses payable in
respect thereof
1.6 "Drawdown Date" means the date upon which the Advance is made
by the Bank to the Borrower
1.7 "Drawdown Notice" means a notice in the form of Appendix I
attached hereto
1.8 "Facility" means the Loan Amount in the Currency
specified in the Schedule
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1.9 "Interest Payment Dates" means the Banking Day upon which you are
required to pay to us interest in respect of
the Facility in accordance with the Schedule.
1.10 "Interest Period" means each period of time specified for the
calculation of interest in accordance with
the terms of this Offer of which the first
such Interest Period will commence on the
Drawdown Date and will end on the 30 June
1995 and the last such Interest Period will
end on the Loan Maturity Date
1.11 "Interest Rate" means the rate of interest specified in the
Schedule
1.12 "LIBOR" means the rate of interest conclusively
determined by us at which the Bank is able in
accordance with the Bank's normal practice to
acquire the Currency in the London Inter-Bank
market from prime banks for an amount
comparable with the relevant instalment of
the Facility or the Debt (as the
circumstances require) for the Interest
Period in question in the case of Pounds
Sterling at or at about 11.00 a.m. London
time on the first day of that Interest Period
for value that day and in the case of United
States Dollars at or about 11.00am London
time on the second Banking Day prior to the
first day of that Interest Period for value
on the first day of that Interest Period
1.13 "Loan Maturity Date" means the date specified in the Schedule on
which the Facility will cease to be available
and on which you are required to repay the
Debt to us
1.14 "AT & T Lease" means the Lease facility made available by AT
& T Capital Limited of 00 Xxxxxxxxxx Xxxx,
Xxxxxx, XX0X 0XX to the Borrower
1.15 "Security" means the Security over assets and/or
commitments of the Borrower and/or any other
person mentioned in the Schedule under the
heading "Security to be Taken" together with
any additional security required by the Bank
from time to time
1.16 "Security Documents" mean those documents referred to in the
Schedule under the heading "Security to be
Taken" which are to effect or comprise the
Security together with any further Security
documents executed from time to time
1.17 "The General Banking and
Contract Finance
Facility" means the facility made available by the Bank
Contract Finance Facility" to the Borrower as
per the letter dated 23 August 1994
1.18 "Reserve Asset Costs" means the cost if any to the Bank of
complying with the Reserve Asset, Special
Deposit and other monetary control or similar
requirements of the Bank of England and/or
any other competent authority from time to
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time expressed as a percentage per annum and
(if not an integral multiple thereof),
rounded up to the nearest 1/16 of 1 per cent.
1.19 "Majority Shareholder" means Energy Research International Limited,
c/o Caledonian Bank and Trust Limited, XX Xxx
0000, Xxxxxxxxxx Xxxxx Xxxxxx, Xxxxxx Xxxxxxx
1.20 "Majority Shareholder's" means the loan granted to the Borrower by
Energy Research International Limited
1.21 "Quarter End Dates" means the last Banking Day of March, June,
September and December
1.22 "Events of Default" means the events specified in clause 13
1.23 "Deed of Subordination" means a Deed of Subordination in a form
acceptable to the Bank, to be entered into
between the Borrower, the Majority
Shareholder and the Bank
2. PURPOSE OF THE FACILITY AND DRAWDOWN
2.1 The Facility is to be provided for the purpose specified in the
Schedule to be drawn in one amount and thereafter the Borrower will be
obliged to supply such evidence as the Bank may from time to time
require to demonstrate the application of the Facility for this
purpose.
2.2 The availability of the Facility will depend upon the Borrower's
ability to satisfy the conditions precedent mentioned in clause 7.
3. INTEREST PERIODS
3.1 If any Interest Period ends on a day which is not a Banking Day, it
will be extended to end on the next succeeding Banking Day unless the
next succeeding Banking Day falls in the next quarterly Interest
Period in which event the Interest Period will be shortened so as to
end on the immediately preceding Banking Day.
3.2 If any Interest Period commences on the last Banking Day in a calendar
month or if there is no corresponding date in the calendar month in
which an Interest period is due to end, then such Interest Period
shall end on the last Banking Day in the relevant later month
4. FEES, INTEREST AND COSTS
4.1 The Borrower is required to pay the Bank the Arrangement Fee mentioned
in the Schedule upon the Borrowers acceptance of this Offer.
4.2 Interest on the Debt will be payable by the Borrower in arrears on the
Interest Payment Dates.
4.3 Interest will accrue from day to day and will be calculated on the
amount of the Debt outstanding on the basis of actual days elapsed.
The calculation will be based upon a year of 360 days.
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4.4 Where the Bank considers that the amount involved is a material sum,
the Borrower will also be required to pay to the Bank additional
interest on the Debt for each Interest Period so as to compensate the
Bank for any cost incurred or loss suffered by the Bank by reason of
any additions or changes to any applicable law, regulation,
requirement, directive or request (whether or not having the force of
law) from the Bank of England or any other relevant fiscal, monetary
or other competent authority or in the interpretation of any such
matters by any governmental or regulatory authority or any Court of
competent jurisdiction.
4.5 If on the first day of an Interest Period the Bank determines that
United States Dollar deposits of the relevant amount or period are not
available to the Bank or the Bank is unable to determine the Interest
Rate thereof, the rate of interest applicable to the Facility during
that Interest Period shall be 2.00% per cent above the rate per annum
determined by the Bank to be the cost of funds to the Bank for similar
amount and period from such source as the Bank may consider
appropriate.
4.6 Any certificate of termination by the Bank as to any rate of interest
payable in respect of the Facility shall (save for manifest error, be
conclusive).
4.7 The Borrower is required to pay to the Bank on demand the amount of
all legal (including all registration and other fees) and other costs
and expenses and Value Added Tax thereon incurred by the Bank in
Connection with the negotiation, preparation and completion of this
Offer and the Security Documents whether or not the Facility becomes
available together with all costs and expenses incurred in connection
with the enforcement of or preservation of any rights under this Offer
and/or of the Security Documents.
5. REPAYMENT
5.1 The Borrower will repay the Debt in accordance with the Schedule.
5.2 No part of the Facility repaid may be redrawn.
6. PREPAYMENT
6.1 No prepayment may be made within the first six months following the
Drawdown Date. Thereafter, providing that the Borrower shall have
given the Bank not less than five Banking Days prior notice (which
will be irrevocable and binding), prepayments of the Facility may be
made on Interest Payment Dates in amounts of not less than USD 200,000
(Two Hundred Thousand United States Dollars). Such prepayment shall
include all interest due and payable on the amount prepaid.
6.2 No amount of the Facility prepaid may be redrawn and the Borrower may
not make any prepayment other than in accordance with the terms of
this Offer.
7. CONDITIONS PRECEDENT AND SECURITY
7.1 As a condition precedent to the Facility becoming available and as
security for the repayment of all monies owed by the Borrower to the
Bank (including all monies outstanding under the General Banking and
Contract Finance Facility as well as all other liabilities or
obligations owed by the
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Borrower to the Bank, from time to time) and the performance by the
Borrower of all its obligations, the Borrower is required to deliver
to the Bank documents and items as specified in the Schedule.
8. PAYMENT
8.1 All payments received by the Bank from the Borrower will be applied
first, towards the reimbursement of the Bank's costs, charges and
expenses on a full indemnity basis secondly, in payment of interest
due up to the date of payment thirdly, in payment of the Debt and
fourthly in payment of any surplus to the Borrower's account with the
Bank.
8.2 All sums payable by the Borrower in connection with the Facility must
be paid to the Bank no later than midday on the due date in the
Currency in London and in cleared funds. Any such payment must be
free and clear of any present or future taxes, charges or withholdings
and without any set-off or counterclaim or any restriction, condition
or deduction.
8.3 If the Borrower is legally obliged to make any deduction or
withholding the Borrower must promptly pay to the Bank an additional
amount so as to ensure that the amount actually received by the Bank
is the full amount which would have been received if there had been no
deduction or withholding. Such an additional amount will be treated
as agreed compensation rather than as interest.
8.4 If the Borrower fails to make a payment in the proper manner when due,
the Borrower must indemnify the Bank against all losses and expenses
which the Bank incurs and, in the case of late payment, pay to the
Bank by way of agreed compensation interest on the sum due at the rate
of 4% per annum above LIBOR for such Interest Period or successive
Interest Periods as the Bank select (which for the purpose of this
clause means any period of time selected by the Bank for the
calculation of that interest including overnight deposit rate) and
with the interest being compounded at the end of each such period
until payment is made.
8.5 The Bank's Certificate as to the amount of any sum due from the
Borrower to the Bank will (in the absence of manifest error) be
binding upon you.
9. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
In accepting this Offer the Borrower represents, warrants and
undertakes that now and so long as any amount remains outstanding or
any interest, fees, costs, expenses or any other liabilities actual or
contingent remain due or may become due to the Bank hereunder, that:
9.1 The Borrower is duly incorporated and validly existing under the laws
of England and has all the necessary powers to enter into and comply
with the terms and conditions of this Offer and the Security Documents
and furthermore the Borrower has complied with all material, statutory
and other requirements (legal or otherwise) relative to its business;
and
9.2 The Borrower's total borrowings and liabilities actual or contingent,
including any sums outstanding hereunder, are within its powers under
its Memorandum and Articles of Association; and
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9.3 All official consents and or approvals required to accept the Offer
have been obtained and are in full force and effect and the Borrower
is not by the acceptance of the Offer, contravening any existing
applicable law or regulation or any contractual or other restriction
or limitation binding on the Borrower; and
9.4 There are no actions, suits or proceedings pending against the
Borrower nor to the Borrower's knowledge after due enquiry, threatened
against the Borrower or any of its assets or revenues which could or
might have a material adverse effect on the financial condition or
otherwise of the Borrower; and
9.5 The Borrower will promptly advise and inform the Bank on becoming
aware of any Event of Default or Potential Event of Default as defined
in Clause 13; and
9.6 Since the date of the last audited accounts for the Borrower (copies
of which have been delivered to the Bank) to the best of the
Borrower's knowledge there have been no material or adverse changes in
the business, assets or financial condition; and
9.7 The Borrower's obligations hereunder will at all times, during the
term of the Facility, rank pari-passu with the existing indebtedness
under the General Banking and Contract Finance Facility but rank in
priority to any other existing and/or future indebtedness or
commitments other than those commitments which by law will
automatically rank in priority; and
9.8 All the information supplied to the Bank in connection with the
negotiation and preparation of the terms of the Facility is to the
best of the Borrower's knowledge true and correct and not misleading
and furthermore the Borrower has disclosed everything which the Bank
could reasonably expect the Borrower to consider to be material in
connection herewith.
The Representations, Warranties and Undertakings will be deemed to be repeated
by the Borrower on each Interest Payment Date as if made with references to the
facts and circumstances existing at such respective date.
10. COVENANTS
So long as amounts remain outstanding under the Facility the Borrower
shall:
10.1 Not create or permit to arise any mortgage, debenture, charge, pledge
lien or any other encumbrance or security whatsoever over any part of
the Borrower's present or future undertaking, assets or revenues
without the Bank's prior written consent, which shall not be
unreasonably withheld; and
10.2 Notify the Bank in writing of any material change in the nature of the
Borrower's business as carried on at the date hereof which may involve
acquisition, disposal or otherwise, of the whole or any substantial
part of the Borrower's undertaking, property or assets except for
stock in trade and in particular but without limitation, you will not
without the consent of the Bank grant or agree to grant any lease or
other interest in the Security Property or any part of it; and
10.3 Ensure that insurances on and in relation to the Borrower's business
and assets are maintained with reputable underwriters or Insurance
companies against such risks and to such extent as is
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usual for companies carrying on a business such as that carried on by
the Borrower and the Bank's interests noted thereon; and
10.4 Not, without prior written consent from the Bank, make any loan or
give any credit to any person other than normal trade credit;
10.5 Except under this Facility or the General Banking and Contract Finance
Facility borrow or raise any money or incur credit or give any
guarantees indemnities or other assurances against financial loss
other than, subject to in each case, the prior written approval of the
Bank which shall not be unreasonably withheld, lease agreements
entered into from time to time by the Borrower for the purchase of
capital equipment;
10.6 Sell, transfer, lend or otherwise dispose of all or any part of your
present or future undertaking, assets right or revenues (whether
transactions are related or not);
10.7 Enter into negotiations with the Bank in the event that the Bank's
legal advisors recommend that the existing security be amended and/or
that the Bank should seek additional security, to secure the
Borrower's liabilities hereunder and provide such additional security
as may be required; and
10.8 Agree to provide the Bank with such additional financial information
as it may reasonably request in connection with the Facility.
11. FINANCIAL REPORTING REQUIREMENTS
The Borrower is required to deliver to the Bank the following
financial information;
11.1 Within seven days of the end of each monthly trading period;
i) Management prepared profit and loss account together with aged
debtors and creditors analysis; and
11.2 Within twenty one days of the end of each three month accounting
period;
i) A comparison of Management prepared Balance Sheet and Profit
and Loss Account against financial projections and forecasts
for the same period; and
ii) Projected cash flow forecasts for the next six months trading;
and
11.3 Within Ninety days of each financial year end;
i) Two copies of the Borrower's Annual Audited Report and
Accounts together with a certificate of compliance signed by
the Borrower's Secretary or the Borrower's auditors; and
ii) Cash flow forecasts and budgets for the next twelve months
trading
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12. THE BANK'S RIGHT OF SET-OFF AND CONSOLIDATION
It is hereby agreed and declared that in addition to any right of
set-off or other similar right to which the Bank may be entitled by
law, the Bank may at any time and without notice to the Borrower
combine and consolidate all or any accounts between the Borrower and
the Bank and/or set-off any moneys whatsoever and whether on current
account or deposit account which the Bank may at any time hold for the
account of the Borrower against any liabilities whatsoever whether
such liabilities are actual or contingent and whether owed as
principal or surety.
13. EVENTS OF DEFAULT
Notwithstanding anything herein contained and without limitation to
the Bank's rights hereunder the Bank shall on the occurrence of any of
the following events of default be entitled to terminate the Facility
and demand from the Borrower either, immediate repayment of or full
cash cover for all the debt. At the same time the Bank will require a
payment from the Borrower for any losses and expenses (including loss
of profit) incurred or suffered by the Bank in consequence of an Event
of Default. The Bank's certificate as to the amount of such losses and
expenses shall be conclusive save for manifest error.
13.1 Each of the following shall be an Event of Default namely:
i) If the Borrower defaults in the payment of any monies which
may become due to the Bank or there shall be any breach by the
Borrower or any other party of the terms and conditions of the
Offer, the General Banking and Contract Finance Facility, the
Deed of Subordination, or any other facility letter,
guarantee, security agreement, document or other obligation
which the Borrower may, from time to time have with the Bank,
its associates or subsidiaries; or
ii) If any representation, warranty, undertaking or covenant from
time to time made or deemed to have been made by the Borrower
to the Bank, its associates or subsidiaries is incorrect or
misleading or if any of the terms and conditions of the Offer
(including for the avoidance of doubt the special conditions
listed in the Schedule) or any other obligation or liability
of the Borrower to the Bank, its associates or subsidiaries is
not fulfilled; or,
iii) If the Borrower defaults or receives notice of default under
any trust, deed, debenture, loan agreement, guarantee (which
expression shall include all contingent liabilities undertaken
in respect of the obligations or liabilities of any third
party including all guarantees, indemnities, bonds or
instruments of suretyship whether constituting primary or
secondary obligations or liabilities whatsoever their
designation) or if money payable thereunder becomes due and is
not paid on or before the due date or if any surety created by
the Borrower becomes enforceable; or
iv) If a petition is presented or any order made or a resolution
passed for the winding up of the Borrower, or if the Borrower
is dissolved or a notice is issued concerning a meeting for
the purpose of passing any such resolution or a resolution to
reduce or redeem all or any part of the Borrower's issued
share capital or of considering whether any and if so what
measures should be taken to deal with the situation referred
to in Section 142 of the
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Companies Act 1985 (or any mandatory or statutory re-enactment
thereof) or if the Borrower ceases or threatens to cease to
carry on its business or any substantial part thereof in the
normal course, save in any such case for the purpose of and
followed within six months by an amalgamation or
reconstruction not involving or arising out of insolvency on
terms previously approved by the Bank in writing; or
v) If any encumbrancer shall take possession or a receiver,
trustee, administrative receiver, administrator or similar
officer shall be appointed to the whole or any part of the
Borrower's undertaking, property or assets or if any judgement
or order made against the Borrower is not complied with within
seven days or if any execution, distress, or other process be
levied or enforced upon or sued out against any of the
Borrower's property, assets or revenues; or
vi) If the Borrower becomes or is deemed to be unable to pay debts
as and when they fall due whether within the meaning of
Section 123 of the Insolvency Xxx 0000 (or any mandatory or
statutory re-enactment thereof) or otherwise or if a notice is
issued convening a meeting of or the Borrower proposes to
enter into any composition or arrangement with its creditors
or agrees or declares a moratorium in respect of any of its
debts or stops payment or if notice is given to the nominee
referred to in Part 1 of the Insolvency Act 1986 (or mandatory
or statutory re-enactment thereof) of an intended proposal for
any such voluntary arrangement in that part of the Act or if a
substantial part of the Borrower's business property assets or
capital is nationalised, seized or appropriated; or
vii) If there is at any time a change in the voting control of the
Borrower which the Bank considers material or if without the
Bank's prior written consent control of the Borrower should
pass to any person or group of persons (as defined in Section
839 of the Income and Corporation Taxes Act 1988) (or any
mandatory or statutory re-enactment thereof) or institution or
group of institutions not having control at the date hereof;
or
viii) If any material provision of this Offer or any security given
in respect thereof ceases in any respect to be in full force
and effect or to be continuing or is purported to be
determined or becomes in jeopardy or is invalid or
unenforceable; or
ix) If any suspension of payments is filed by the Borrower under
any applicable bankruptcy law or similar statute; or
x) If any waiver of consent, (governmental or otherwise),
required for the validity enforceability or performance of the
Facility is for any reason is not provided or is withdrawn or
ceases to be in full force and effect; or
xi) If the Bank considers that the Borrower's financial position
is deteriorating or has deteriorated so as to place in
jeopardy the repayment of any amounts which will become due or
outstanding hereunder; or
xii) If, without the Banks prior written consent, which shall not
be unreasonably withheld, the Borrower makes any fundamental
changes to its Memorandum and Articles of Association.
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13.2 The Borrower will immediately notify the Bank in writing of the
occurrence of any Event of Default (with the exception of Clause 13.1
xi. above). No failure or delay on the Bank's part in exercising any
right hereunder shall operate as a waiver thereof nor shall any single
or partial exercise of any such right preclude its further exercise.
13.3 Any of the events described in clause 13.1 above which occur in
relation to any present or future holding Company, and/or subsidiaries
as defined in Section 736 of the Companies Xxx 0000 (or any mandatory
or statutory re-enactment thereof) and/or the Guarantors which has a
material and/or adverse effect (financial or otherwise) will also be
deemed to be an Event of Default.
13.4 For the purpose of this Offer, Potential Event of Default shall mean
any event which with the giving of notice and/or lapse of time and/or
making any determination by the Bank would constitute an Event of
Default.
14. NOTICES
14.1 In addition to (and not by way of limitation of) the provisions for
service specified in the Security Documents, all notices in connection
with this Offer may be sent by us by first class letter post, cable,
telex or facsimile transmission or delivered by hand to you at the
address set out in the Schedule and will be deemed to have been
served:
i) in the case of a letter - on the day upon which it could be
expected to arrive in the ordinary course of post and in any
event within five Banking Days;
ii) in the case of a cable - one Banking Day after the day of
dispatch;
iii) in the case of a telex or facsimile transmission or hand
delivery - on the day of transmission or delivery or, if that
day is not a Banking Day or the timing of the transmission or
delivery is such that it would reach the recipient after 5.00
p.m. (in the place of receipt) on that day, the following
Banking Day.
14.2 All notices under this Offer and all instructions in connection with
the Facility may be given by you (or by an authorised officer in the
case of a Borrower) by first class letter post, cable or telex or
facsimile transmission to us at our principal office for the time
being in London or at such other office as we may notify to you in
writing.
14.3 A complete copy of any notice or instruction in connection with this
Offer effected by telex or facsimile transmission must, in order for
that notice to have effect, be sent to the recipient by first class
post as soon as possible after the transmission has been completed. A
notice or instruction thus transmitted will be effective
notwithstanding any incomplete or distorted transmission and in
proving service it will be sufficient to prove that the notice or
instruction was transmitted to the correct number from which the
correct answerback or other appropriate acknowledgment of receipt was
obtained and that a complete copy was thereafter dispatched to the
recipient by first class letter post.
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15. CURRENCY AND FOREIGN EXCHANGE RISK
15.1 Notwithstanding your basic liability to make payment to us in the
Currency, where the terms of this Offer require you to pay or to
reimburse to us any costs, expense or loss incurred or suffered by us
in connection with the Facility and/or the Debt or otherwise as
contemplated by this Offer, your primary liability will be to pay or
to reimburse to us the amount in question in the currency in which the
cost, expense or loss has been incurred or suffered by us and such
amount will only be added to the Debt and (if necessary) converted
into the Currency the manner mentioned in clause 15.2 if you fail to
discharge that primary liability in due time in accordance with the
terms of this Offer.
15.2 This clause applies to all cases where the value of the Security or
any part of the Security by reason of its nature or location is most
readily determinable in a currency other than the Currency. In all
such cases you are required to bear the primary risk of all currency
fluctuations and we reserve the right to require you to repay a part
of the Debt or to provide additional security for the Debt if at any
time in our opinion the aggregate value of the Security (when
converted into the Currency at the spot rate of exchange conclusively
determined by the Bank in accordance with the Bank's normal practice)
as related to the amount of the Facility or the Debt (as the case may
be) is less favorable to the Bank by reason of currency fluctuations
than it is now at the date of this Offer. We may exercise this right
at any time and on more than one occasion if we so decide. If and
when we exercise our rights in this respect, you will bound
immediately to effect the required reduction in the Debt (which may
not be redrawn) or to provide additional security of a nature and
value acceptable to the Bank and to our satisfaction in all respects.
Any such additional security thus provided by you will become part of
the Security for the purpose of this Offer.
16. LAW AND JURISDICTION
This Offer and the Security Documents will be governed and construed in
accordance with the Law of England and Wales and will be subject to the
non-exclusive jurisdiction of the Courts in England and Wales to which you
agree to submit.
17. GENERAL
17.1 In the event of there being any conflict between the terms and
conditions of this Offer, the Conditions and the Security Documents
the terms and conditions of the Security Documents will prevail
overall and the terms and conditions of this Offer will prevail over
the Conditions.
17.2 We reserve the right to Offer, transfer or grant participations in the
Facility to other banks or financial institutions without your prior
approval but your contract is solely with us and it will be our
responsibility to account to transferees or participants. You will
execute (at our expense) any documents required by us to facilitate
any such transfer or participation and by your acceptance of this
Offer you authorise us to exchange information with potential
transferees or participants.
17.3 No failure or delay on our part to exercise any power, right or remedy
under this Offer or the Security Documents will operate as a waiver
thereof nor will any single, or any partial, exercise or waiver of any
such power, right or remedy preclude its further exercise or the
exercise of any
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other power, right or remedy. The powers, rights and remedies
provided by this Offer and the Security Documents are cumulative and
in addition to any powers, rights and remedies provided by law.
17.4 If any applicable law, regulation or requirement in any jurisdiction
or any change therein or in the interpretation thereof makes it (or
makes it apparent that it is) unlawful or impossible for you or any
third party to perform your obligations under this Offer or the
Security Documents or if it becomes impossible or unlawful for us to
perform our obligations under this Offer then:
i) we will be discharged from all obligations to grant, renew or
to continue the Facility; and
ii) you will on demand pay to us the Debt; and
iii) you will indemnify us on demand against all loss or expense
including all legal expenses we may incur or sustain in
consequence.
17.5 We shall not be liable for any failure to perform our obligations
under this Offer resulting directly or indirectly from the action or
inaction of any governmental or local authority or any strike,
boycott, blockade, act of God or civil disturbance.
17.6 This Offer and the Security Documents shall be binding upon and enure
for the benefit of our successors and assigns but you may not assign
your rights hereunder.
We reserve the right to withdraw this Offer at any time. Subject thereto, this
Offer will remain open for acceptance by you for a period of one month from the
date in the Schedule and will then lapse.
/s/ [illegible signature] /s/ [illegible signature]
Signed for and on behalf of
THE BANK OF N.T. XXXXXXXXXXX & SON LIMITED - LONDON BRANCH
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IMPORTANT NOTICE
THIS OFFER CREATES LEGAL OBLIGATIONS WHICH WALL BE BINDING UPON YOU AND UPON
WHICH YOU ARE ADVISED TO OBTAIN APPROPRIATE LEGAL ADVICE. IN YOUR ACCEPTANCE OF
THIS OFFER YOU CONFIRM THAT YOU HAVE BEEN ADVISED BY US TO TAKE INDEPENDENT
LEGS ADVICE REGARDING THE CONTENTS OF THIS OFFER AND, WHETHER OR NOT YOU HAVE
FOLLOWED THAT ADVICE, YOU ACCEPT THIS OFFER WITH FULL KNOWLEDGE AND
UNDERSTANDING OF ITS MEANING AND EFFECT.
Offer accepted on the terms and conditions set out above
for and on behalf of
HORIZON EXPLORATION LIMITED
Authorised Signatory /s/ Xxxx A.M. Xxxxxxxx Date
/s/ X.X. Xxxxxxxx
As Guarantor, we Exploration Holdings Limited acknowledge the terms and
conditions set out in this letter.
for and on behalf of
EXPLORATION HOLDINGS LIMITED
Authorised Signature /s/ Xxxx A.M. Xxxxxxxx Date
/s/ X.X. Xxxxxxxx
As Guarantor, we Seismic Exploration Limited acknowledge the terms and
conditions set out in this letter.
for and on behalf of
SEISMIC EXPLORATION LIMITED
Authorised Signature /s/ X.X. Xxxxxxxx Date
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