CLIFFORD CHANCE CLIFFORD CHANCE LLP
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XXXXXXXX
CHANCE
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XXXXXXXX
CHANCE LLP
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EXECUTION
VERSION
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DATED
5 August 2010
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FX
ENERGY POLAND SP. Z O.O
AS
BORROWER
THE
ROYAL BANK OF SCOTLAND PLC
AS
AGENT
THE
ROYAL BANK OF SCOTLAND PLC
AS
SECURITY TRUSTEE
THE
SENIOR LENDERS
AND
THE
SUBORDINATED LENDERS
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CONTENTS
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Clause
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Page
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1.
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Definitions
and Interpretation
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1
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2.
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Ranking
and Priority
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7
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3.
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Senior
Lenders: Rights and Obligations
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8
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4.
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Subordinated
Lenders: Rights and Obligations
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8
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5.
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Hedging
Banks: Rights and Obligations
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9
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6.
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Permitted
Payments
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11
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7.
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Entitlement
to Enforce
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11
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8.
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Effect
of Insolvency Event
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12
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9.
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Turnover
of Receipts
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13
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10.
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Sharing
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14
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11.
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Enforcement
of Security
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15
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12.
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Disposals
by Security Trustee
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16
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13.
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Application
of Proceeds
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16
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14.
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The
Security Trustee
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18
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15.
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Change
of Security Trustee and Delegation
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24
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16.
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Change
of Party
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26
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17.
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Fees
and Expenses
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27
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18.
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Indemnities
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28
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19.
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Information
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29
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20.
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Notices
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29
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21.
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Preservation
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31
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22.
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Counterparts
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32
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23.
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Governing
Law
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32
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24.
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Enforcement
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33
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Schedule
1
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Form
of Obligor Accession Deed
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34
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Schedule
2
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Form
of Intercreditor Accession Deed
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36
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UK-2474912-v6A
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70-40474932
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THIS AGREEMENT is dated 5
August 2010 and made between:
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(1)
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FX ENERGY POLAND SP. Z
O.O as Borrower;
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(2)
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FX ENERGY, INC. as
Original Guarantor;
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(3)
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FX DRILLING COMPANY, INC. AND
FRONTIER EXPLORATION COMPANY IN THEIR CAPACITY AS GENERAL PARTNERS OF FX
ENERGY NETHERLANDS PARTNERSHIP C.V. as Original
Guarantor;
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(4)
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FX ENERGY NETHERLANDS B.V.
as Original Guarantor;
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(5)
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THE ROYAL BANK OF SCOTLAND
PLC as agent under the Senior Facility Agreement (the “Agent”);
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(6)
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THE ROYAL BANK OF SCOTLAND
PLC as trustee for the Secured Parties (the “Security
Trustee”);
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(7)
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THE FINANCIAL
INSTITUTIONS named on the signing pages as Senior Lenders (the
“Senior
Lenders”);
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(8)
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THE ENTITIES named on
the signing pages as Subordinated Lenders (the “Subordinated Lenders”);
and
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(9)
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THE ENTITIES named on
the signing pages as Group Subordinated Lenders (the “Group Subordinated
Lenders”)
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IT IS AGREED as
follows:
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1.1
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Definitions
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In this
Agreement:
“Agent’s Spot Rate of Exchange”
means the Agent’s spot rate of exchange for the purchase of the relevant
currency with the Base Currency in the London foreign exchange market at or
about 11:00 a.m. on a particular day.
“Base Currency” means
dollars.
“Borrower” means the Borrower
as defined in the Senior Facility Agreement.
“Default” means an Event of
Default or any event or circumstance 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 Security Trustee.
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“Enforcement Action”
means:
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(a)
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the
acceleration of any Liabilities or any declaration that any Liabilities
are prematurely due and payable (other than as a result of it becoming
unlawful for a Lender or Hedging Bank to perform its obligations under, or
of any voluntary or mandatory prepayment arising under, the Finance
Documents) or payable on demand or the premature termination or close out
of any Hedging Liabilities;
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(b)
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the
taking of any steps to enforce or require the enforcement of any of the
Transaction Security (including the crystallisation of any floating charge
forming part of the Transaction
Security);
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(c)
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the
making of any demand against any Obligor in relation to any guarantee,
indemnity or other assurance against loss in respect of any Liabilities or
exercising any right to require any Obligor to acquire any Liability
(including exercising any put or call option against any Obligor for the
redemption or purchase of any
Liability);
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(d)
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the
exercise of any right of set-off against any Obligor in respect of any
Liabilities;
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(e)
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the
suing for, commencing or joining of any legal or arbitration proceedings
against any Obligor to recover or in respect of any
Liabilities;
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(f)
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the
entering into of any composition, assignment or arrangement with any
Obligor; or
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(g)
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the
petitioning, applying or voting for, or the taking of any steps (including
the appointment of any liquidator, receiver, administrator or similar
officer) in relation to, the winding up, dissolution, administration or
reorganisation of any Obligor or any suspension of payments or moratorium
of any indebtedness of any Obligor, or any analogous procedure or step in
any jurisdiction.
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“Event of Default” means any
event or circumstance specified as such in the Senior Facility Agreement and the
Subordinated Documents.
“Facility Agreement” means each
of the Senior Facility Agreement or the Subordinated Documents, as the case may
be.
“Finance Document” means each
of this Agreement, the Senior Finance Documents, the Subordinated Documents, the
Security Documents, the Hedging Agreements and any other document designated as
such by the Security Trustee and the Borrower.
“Group” means the Parent and
its Subsidiaries for the time being, in each case as a separate legal entity and
not as consolidated with any other member of the Group.
“Hedging Agreement” means any
agreement or instrument relating to the hedging of commodity price exposure,
interest rate exposure or currency exposure (including a forward, swap or
option) or any other derivative or risk hedging instrument approved under Clause
5 (Hedging Banks: rights and
obligations).
“Hedging Banks” means a
counterparty to a Hedging Agreement which (i) is a Lender (as defined in the
Senior Facility Agreement) and (ii) has acceded to this Agreement in accordance
with the terms of Clause 5 (Hedging Banks: rights and
obligations) as a Hedging Bank.
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“Hedging Liabilities” means the
Liabilities owed by any Obligor to the Hedging Banks under the Hedging
Agreements.
“Hedging Transaction” means
transactions under Hedging Agreements.
“Intercreditor Accession Deed”
means an undertaking in substantially the form set out in Schedule 2 (Form of Intercreditor Accession
Deed).
“ISDA Agreement” means the 1992
ISDA Master Agreement (Multicurrency - Cross Border), as supplemented and
amended by a Schedule.
“Insolvency Event” means, in
relation to any Obligor:
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(a)
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any
resolution is passed or order made for the winding up, dissolution,
administration or reorganisation of that Obligor, a moratorium is declared
in relation to any indebtedness of that Obligor or an administrator is
appointed to that Obligor;
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(b)
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any
composition, assignment or arrangement is made with any of its
creditors;
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(c)
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the
appointment of any liquidator, receiver, administrator, administrative
receiver, compulsory manager or other similar officer in respect of that
Obligor or any of its assets; or
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(d)
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any
analogous procedure or step is taken in any
jurisdiction.
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“Instructing Group” means those
Senior Creditors whose Senior Credit Participations at that time aggregate more
than 662/3 percent of
the total Senior Credit Participations at that time.
“Lenders” means the Senior
Lenders and the Subordinated Lenders.
“Liabilities” means all present
and future liabilities and obligations at any time of any Obligor to any Lender
or Hedging Bank under the Finance Documents, both actual and contingent and
whether incurred solely or jointly or in any other capacity together with any of
the following matters relating to or arising in respect of those liabilities and
obligations:
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(a)
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any
refinancing, novation, deferral or
extension;
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(b)
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any
claim for damages or restitution;
and
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(c)
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any
claim as a result of any recovery by any Obligor of a payment or discharge
on the grounds of preference,
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and any
amounts which would be included in any of the above but for any discharge,
non-provability or unenforceability of those amounts in any insolvency or other
proceedings.
“Majority Senior Lenders” means
the Majority Lenders as defined in the Senior Facility Agreement.
“Obligor Accession Deed” means
a deed in substantially the form set out in Schedule 1 (Form of Obligor Accession
Deed).
“Obligor” means the Borrower
and the Guarantors, and any person which becomes a Party to this Agreement as an
Obligor in accordance with Clause 16 (Change of
Party).
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“Party” means a party to this
Agreement.
“Permitted Payment”
means:
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(a)
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scheduled
payments of principal and interest (including default
interest);
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(b)
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costs,
expenses, commitment commission and fees payable to and sums payable under
indemnities to any agent or
trustee;
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(c)
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sums
payable in respect of any applicable tax gross-up or indemnity or of any
increased costs in accordance with the terms of the Senior Facility
Agreement;
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(d)
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prepayment
in accordance with the terms of the Senior Facility Agreement as a result
of it becoming unlawful for a Lender to perform its obligations under, or
of any mandatory prepayment arising under, any of the Finance
Documents;
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(e)
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save
in respect of the circumstances described in Clause 7.3(b) (Hedging Bank: Permitted
Enforcement), scheduled payments arising under the terms of the
Hedging Agreements (excluding, for the purposes of this paragraph (e), any
payments as a result of the premature close out or termination of a
Hedging Agreement);
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(f)
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payments
under the Hedging Agreements in respect of any (i) applicable tax gross-up
or indemnity under those Hedging Agreements and (ii) any close out or
termination in accordance with Clause 7.3(c) (Hedging Banks: Permitted
Enforcement); and
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(g)
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any
prepayments of any Liabilities arising as a result of the application of
the proceeds of permitted under Clause 6 (Permitted
Payments).
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“Receiver” means a receiver or
receiver and manager or administrative receiver of the whole or any part of the
Trust Property.
“Relevant Liabilities”
means:
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(a)
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in
the case of a Lender, the Liabilities owed to Lenders ranking (in
accordance with the terms of this Agreement) pari passu with or in
priority to that Lender together with all present and future liabilities
and obligations, actual and contingent, of the Obligors to the Agent and
the Security Trustee;
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(b)
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in
the case of a Hedging Bank, the Liabilities owed to Hedging Banks ranking
(in accordance with the terms of this Agreement) pari passu with or in
priority to that Hedging Bank together with all present and future
liabilities and obligations, actual and contingent, of the Obligors to the
Agent and the Security Trustee; and
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(c)
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in
the case of an Obligor, the Liabilities owed to the Lenders and Hedging
Banks together with all present and future liabilities and obligations,
actual and contingent, of the Obligors to the Agent and the Security
Trustee.
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“Secured Obligations” means all
the Liabilities and all other present and future obligations at any time due,
owing or incurred by the Borrower or the Guarantors to any Secured Party under
the Finance Documents, including the obligations set out in Clause 14.2 (Parallel Debt (Covenant to pay the Security
Trustee)) whether present or future, actual and contingent (and whether
incurred solely or jointly and as principal or surety or in any other
capacity).
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“Secured Parties” means the
Security Trustee, any Receiver or Delegate, the Agent and the Senior Creditors
from time to time but, in the case of the Agent or Senior Creditor, only if it
is a party to this Agreement or has delivered to the Security Trustee a duly
executed Lender Accession Deed accepted by the Security Trustee and the
Agent.
“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.
“Senior Creditors” means the
Senior Lenders and the Hedging Banks.
“Senior Credit Participation”
means, in relation to a Senior Creditor, the aggregate of:
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(a)
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if
there is no Loan then outstanding under the Senior Facility Agreement, its
Commitment, and otherwise its participation in the Loans then outstanding
under the Senior Facility Agreement;
and
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(b)
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in
respect of any Hedging Transaction of that Senior Creditor under any
Hedging Agreement that has, as of the date the calculation is made, been
terminated or closed out in accordance with Clause 7.3(a) (Hedging Banks: Permitted
Enforcement) of this Agreement, the amount, if any, payable to it
under any Hedging Agreement in respect of that termination or close out as
of the date of termination or close out (and before taking into account
any interest accrued on that amount since the date of termination or close
out) to the extent that amount is unpaid (that amount to be certified by
the relevant Senior Creditor and as calculated in accordance with the
relevant Hedging Agreement).
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“Senior Facility Agreement”
means the USD 55,000,000 reserve based lending facility agreement dated on or
about the date of this agreement between FX Energy Poland sp. z o.o as borrower
and the Senior Lenders.
“Senior Finance Documents”
means the Finance Documents as defined in the Senior Facility
Agreement.
“Senior Liabilities” means the
Liabilities owed by the Obligors to the Senior Creditors under the Senior
Finance Documents and the Hedging Liabilities.
“Subordinated Documents” means
any document pursuant to which the Borrower has incurred or may incur Financial
Indebtedness to an Affiliate (except for any such document which is a Field
Document) and any document designated as such by the Agent and the Borrower,
acting reasonably.
“Subordinated Liabilities”
means the Liabilities owed by the Borrower to the Subordinated Lenders under the
Subordinated Documents.
“Trust Property”
means:
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(a)
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the
Transaction Security and all proceeds of the Transaction
Security;
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(b)
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all
obligations expressed to be undertaken by an Obligor to pay amounts in
respect of the Liabilities to the Security Trustee as trustee for the
Secured Parties and secured by the Transaction Security together with all
representations and warranties expressed to be given by an Obligor in
favour of the Security Trustee as trustee for the Secured
Parties;
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(c)
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the
Security Trustee’s interest in any trust fund created pursuant to Clause 9
(Turnover of
Receipts);
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(d)
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any
guarantee, indemnity or other assurance against loss offered to the
Security Trustee as trustee for Secured Parties (or any of them) under
Clauses 3.2 (Security);
and
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(e)
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any
other amounts or property, whether rights, entitlements, choses in action
or otherwise, actual or contingent, which the Security Trustee is required
by the terms of the Finance Documents to hold as trustee on trust for the
Secured Parties.
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1.2
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Construction
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(a)
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Unless
a contrary indication appears a reference in this Agreement
to:
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(i)
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any
“Agent”, the “
Security Trustee”,
any “Lender”, any
“Hedging Bank”,
any “Obligor” or
any “Party” shall
be construed so as to include its successors in title, permitted assignees
and permitted transferees and, in the case of the Security Trustee, any
person for the time being appointed as security trustee or security
trustees in accordance with this
Agreement;
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(ii)
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“assets” includes present
and future properties, revenues and rights of every
description;
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(iii)
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a
“Finance Document”
or any other agreement or instrument is a reference to that Finance
Document, or other agreement or instrument, amended, novated,
supplemented, extended, replaced or restated (in each case however
fundamentally) as permitted by this
Agreement;
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(iv)
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“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;
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(v)
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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;
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(vi)
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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;
and
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(vii)
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a
provision of law is a reference to that provision as amended or
re-enacted.
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(b)
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Section,
Clause and Schedule headings are for ease of reference
only.
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(c)
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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.
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1.3
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Dutch
terms
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In this
Agreement, where it relates to a Dutch entity, a reference to:
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(a)
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a
necessary action to authorise, where applicable, includes without
limitation:
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(i)
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any
action required to comply with the Dutch Works Council Act (Wet op de
ondernemingsraden); and
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(ii)
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obtaining
unconditional positive advice (advies) from each
competent works council;
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(b)
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a
winding-up, administration or dissolution includes a Dutch entity
being:
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(i)
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declared
bankrupt (failliet
verklaard);
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(ii)
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dissolved
(ontbonden);
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(c)
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a
moratorium includes surséance van betaling
and granted a moratorium includes surséance
verleend;
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(d)
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a
trustee in bankruptcy includes a curator;
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(e)
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an
administrator includes a bewindvoerder;
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(f)
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a
receiver or an administrative receiver does not include a curator or bewindvoerder;
and
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(g)
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an
attachment includes a beslag.
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1.4
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Terms
defined in other Finance Documents
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Unless
defined in this Agreement or the context otherwise requires, a term defined in
the Senior Facility Agreement has the same meaning in this Agreement or any
notice given under or in connection with this Agreement.
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1.5
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Currency
symbols and definitions
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(a)
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“USD”, “$” and “dollars” denote the
lawful currency of the United States of
America.
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(b)
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“zloty” denotes the
lawful currency of the Republic of
Poland.
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1.6
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Third
party rights
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(a)
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Unless
expressly provided to the contrary in this Agreement, 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.
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(b)
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Notwithstanding
any term of this Agreement, the consent of any person who is not a Party
is not required to rescind or vary this Agreement at any
time.
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1.7
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Intercreditor
Deed prevails
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In the
event of any inconsistency between the terms of any Finance Document and this
Agreement, the terms of this Agreement shall prevail.
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2.
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RANKING
AND PRIORITY
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Each of
the Parties agrees that the Liabilities owed by the Obligors to the Lenders and
the Hedging Banks rank in the following order and are postponed and subordinated
to any prior ranking Liabilities as follows:
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(a)
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first,
the Senior Liabilities, pari passu as between
the Liabilities owed by the Obligors to the Senior Creditors under the
Senior Finance Documents and the Hedging Liabilities;
and
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(b)
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second,
the Subordinated Liabilities.
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3.
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SENIOR
LENDERS: RIGHTS AND
OBLIGATIONS
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3.1
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Payment
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The
Obligors may pay, repay, redeem or acquire the Senior Liabilities at any time in
accordance with the terms of the Senior Finance Documents.
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3.2
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Security
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The
Senior Lenders may take, accept or receive the benefit of any Security,
guarantee, indemnity or other assurance against loss in respect of the Senior
Liabilities in addition to the Transaction Security if and to the extent legally
possible, at the same time, it is also offered to the Security Trustee on behalf
of the Hedging Banks in respect of, and ranking in the same order of priority
as, the Hedging Liabilities.
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3.3
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Amendments
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The
Senior Lenders may in accordance with their terms amend the Senior Finance
Documents at any time.
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4.
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SUBORDINATED
LENDERS: RIGHTS AND
OBLIGATIONS
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4.1
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Payment
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The
Borrower may pay, repay, redeem or acquire the Subordinated Liabilities at any
time only if that action is permitted under Clause 6.2 (Payments to Subordinated
Lenders) or if the prior consent of the Majority Senior Lenders is
obtained.
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4.2
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Security
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The
Subordinated Lenders may not take, accept or receive the benefit of any
Security, guarantee, indemnity or other assurance against loss in respect of the
Subordinated Liabilities.
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4.3
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Amendments
and waivers
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The
Subordinated Lenders and the Borrower may not amend or waive any material term
of the Subordinated Documents without the prior written consent of the Majority
Senior Lenders.
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4.4
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Representations
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(a)
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Each
Subordinated Lender represents and warrants to the Senior Creditors,
Security Trustee and Agent that it has not made available any Financial
Indebtedness to the Borrower under any agreement other than a Subordinated
Document.
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(b)
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The
Borrower represents and warrants to the Senior Creditors, Security Trustee
and Agent that it has not received any Financial Indebtedness from any
member of the Group save from the Subordinated Lenders under the
Subordinated Documents.
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(c)
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The
representations in (a) and (b) above are also deemed to be made by each of
the Subordinated Lenders (by reference to the facts and circumstances then
existing) on each date that a person accedes as a Subordinated Lender
under this Agreement by executing and delivering to the
Security Trustee a Lender Accession
Deed.
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5.
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HEDGING
BANKS: RIGHTS AND
OBLIGATIONS
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5.1
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Identity
of Hedging Banks
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No person
providing hedging facilities to the Borrower shall be entitled to share in any
of the Transaction Security in respect of any of the liabilities arising in
relation to those hedging facilities unless it is a party to this Agreement as a
Hedging Bank. No person may become a Hedging Bank nor shall any
liabilities arising in respect of its hedging facilities be treated as Hedging
Liabilities unless:
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(a)
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that
person has executed and delivered to the Security Trustee a Lender
Accession Deed acceding to this Agreement as a Hedging Bank in accordance
with Clause 16 (Change
of Party);
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(b)
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the
proposed Hedging Agreements comply with the Hedging Policy;
and
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(c)
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the
Agent has received a copy of the documents proposed to be Hedging
Agreements.
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5.2
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Payment
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The
Obligors may pay, repay, redeem or acquire the Hedging Liabilities at any time
if that action is a Permitted Payment or payment pursuant to Clause 8.1 (Acceleration and claim) or if
the prior consent of the Majority Senior Lenders is obtained.
|
5.3
|
Security
|
The
Hedging Banks may not take, accept or receive the benefit of any Security,
guarantee, indemnity (other than the indemnities under the ISDA Agreement) or
other assurance against loss in respect of the Hedging Liabilities other
than:
|
(a)
|
the
Transaction Security; and
|
|
(b)
|
any
guarantee, indemnity or other assurance against loss contained in the
Senior Facility Agreement.
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5.4
|
Amendments
and waivers
|
The
Hedging Banks may not amend or waive any term of the Hedging Agreements save
if:
|
(a)
|
the
amendment or waiver would not constitute a breach of the Hedging Policy;
or
|
|
(b)
|
the
prior consent of the Majority Senior Lenders is
obtained.
|
|
5.5
|
Terms
of Hedging Agreements
|
The
Borrower and Hedging Banks agree that any Hedging Agreement will be based on the
standard ISDA Agreement and will provide for payments under the “Second Method”
in the event of a termination of the Hedging Transaction (whether as a result of
a termination event or an event of default, as defined in that Hedging
Agreement).
|
5.6
|
Termination
of Hedging Transactions
|
If, on
termination of any Hedging Transaction occurring after the commencement of any
Enforcement Action, a settlement amount or other amount falls due from a Hedging
Bank to the Borrower then that amount shall, without prejudice to the terms of
any Security Document, be paid by that Hedging Bank to the Security Trustee,
treated as the proceeds of enforcement of the Transaction Security and applied
in accordance with the terms of this Agreement.
|
5.7
|
Hedging
Bank undertakings
|
Each
Hedging Bank undertakes and agrees with each of the Senior Lenders that it will
not:
|
(a)
|
demand
or receive payment, prepayment or repayment of, or any distribution in
respect of (or on account of) any of the Hedging Liabilities in cash or in
kind, or apply any money or property in or towards discharge of the
Hedging Liabilities other than:
|
|
(i)
|
scheduled
payments and deliveries and amounts in respect of Tax, commission and
indemnities under the terms of a Hedging Agreement or a Hedging
Transaction and any netting, set–off or automatic discharge pursuant to
the terms of a Hedging Agreement;
or
|
|
(ii)
|
on
termination or closing out (in whole or in part) of a Hedging Agreement or
a Hedging Transaction in accordance with Clause 7.2 (Hedging Banks: Permitted
Enforcement); or
|
|
(iii)
|
proceeds
of the enforcement of the Security Documents applied in the order
permitted by Clause 13 (Application of
Proceeds);
|
|
(b)
|
discharge
all or any part of the Hedging Liabilities by set–off, any right of
combination of accounts or otherwise save to the extent permitted under
paragraph (a)
above;
|
|
(c)
|
assign,
sell, transfer or otherwise dispose of any interest in any of the Hedging
Liabilities owing to it to any person except by way of novation to a
Hedging Bank, and then (unless the Borrower is a Defaulting Party (as
defined in the ISDA Agreement)) not if as a result there would be a Tax
Event (as defined in the ISDA Agreement) with respect to which the
Borrower would be the sole Affected Party (as defined in the ISDA
Agreement); or
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(d)
|
commence
any proceedings against the Borrower or take any action for or in respect
of the recovery of any of sums due to it or any part of such sums
(including, without limitation, any action or step in connection with
liquidation, administration, winding-up proceedings or any voluntary
arrangement or assignment for the benefit of creditors or any similar
proceedings involving the Borrower or the enforcement of any Security
created or evidenced by a Security Document securing the Hedging
Liabilities) other than notifying the Borrower, and the Agent that the
Borrower is in breach of a Hedging Agreement and reserving its rights to
take action when permitted to do so by this
Agreement.
|
|
6.
|
PERMITTED
PAYMENTS
|
|
6.1
|
Permitted
Payments to Senior Creditors
|
The
Obligors may make Permitted Payments to the Senior Creditors from time to time
in accordance with Clause 7.4 (Withdrawals from the Onshore
Proceeds Account) of the Senior Facility Agreement.
|
6.2
|
Payments
to Subordinated Lenders
|
The
Borrower may not make any payments in respect of the Subordinated Liabilities
save for payments in respect of Parent Operating Expenses in accordance with the
terms of the Senior Facility Agreement.
|
6.3
|
Payment
obligations continue
|
No
Obligor shall be released from the liability to make any payment (including of
default interest, which shall continue to accrue) under any Finance Document by
the operation of this Clause 6 even if its obligation to make that payment is
restricted at any time by the terms of this Clause 6.
|
7.
|
ENTITLEMENT
TO ENFORCE
|
|
7.1
|
Subordinated
Lenders: Permitted
Enforcement
|
Subject
to Clause 8 (Effect of
Insolvency Event), the Subordinated Lenders shall not be entitled to take
any Enforcement Action unless all the Liabilities of the Senior Creditors have
been repaid and discharged in full.
|
7.2
|
Group
Subordinated Lenders: Permitted
Enforcement
|
Subject
to Clause 8 (Effect of
Insolvency Event), the Group Subordinated Lenders shall not be entitled
to take any Enforcement Action unless all the Liabilities of the Senior
Creditors have been repaid and discharged in full.
|
7.3
|
Hedging
Banks: Permitted
Enforcement
|
Subject
to Clause 8 (Effect of
Insolvency Event) and without prejudice to each Hedging Bank’s rights
under Clause 11.1 (Instructing
Group’s directions), the Hedging Banks shall not take any Enforcement
Action at any time except that they may terminate or close out any Hedging
Transaction prior to its stated maturity (and shall notify the Agent if they do
so) if:
|
(a)
|
the
Senior Lenders have accelerated their Liabilities or declared them
prematurely due and payable;
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(b)
|
the
Borrower has defaulted on a payment due under the Hedging Agreements
(after allowing any applicable notice or grace periods) and the default
has continued unwaived for more than 30 days after notice of that default
has been given to the Agent;
|
|
(c)
|
it
becomes unlawful for the relevant Hedging Bank or the Borrower to give
effect to any of its obligations under, and as contemplated by, the
relevant Hedging Agreement; or
|
|
(d)
|
the
consent of the Majority Senior Lenders is
obtained.
|
|
8.
|
EFFECT
OF INSOLVENCY EVENT
|
|
8.1
|
Acceleration
and claim
|
After the
occurrence of an Insolvency Event in relation to any Obligor, each Senior Lender
or Hedging Bank shall be entitled (if it has not already done so) to (and, if so
directed by the Agent, each Subordinated Lender or Group Subordinated
Lender shall) exercise any right it may have in respect of that Obligor
to:
|
(a)
|
accelerate
any of its Liabilities or declare them prematurely due and payable or
payable on demand or (in the case of a Hedging Bank) prematurely close out
or terminate any Hedging
Liabilities;
|
|
(b)
|
make
a demand under any guarantee, indemnity or other assurance against loss in
respect of any Liabilities of that
Obligor;
|
|
(c)
|
exercise
any right of set off or take or receive any payment in respect of any
Liabilities; or
|
|
(d)
|
claim
and prove in the liquidation of that Obligor for the Liabilities owing to
it.
|
|
8.2
|
Payment
of distributions
|
After the
occurrence of an Insolvency Event in relation to any Obligor, the person
responsible for the distribution of the assets of that Obligor shall be directed
to pay any distributions in respect of any of the Subordinated Liabilities to
the Security Trustee until the Senior Liabilities have been paid in
full.
|
8.3
|
Set-Off
|
To the
extent that any of the Liabilities is discharged by way of set-off (mandatory or
otherwise) after the occurrence of an Insolvency Event, any Lender or Hedging
Bank which benefited from that set-off shall pay an amount equal to the amount
of its Liabilities discharged by that set-off to the Security Trustee for
application in accordance with Clause 13 (Application of
Proceeds).
|
8.4
|
Filing
of claims
|
After the
occurrence of an Insolvency Event each of the Secured Parties irrevocably
authorise the Security Trustee to:
|
(a)
|
take
any Enforcement Action (in accordance with the terms of this
Agreement);
|
|
(b)
|
demand,
xxx, prove and give receipt for any or all of the
Liabilities;
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(c)
|
collect
and receive all distributions on, or on account of, any or all of the
Liabilities; and
|
|
(d)
|
file
claims, take proceedings and do all other things the Security Trustee
considers reasonably necessary to recover the
Liabilities.
|
|
8.5
|
Further
Assurances
|
The
Lenders and Hedging Banks will do all things that the Security Trustee
reasonably requests in order to give effect to this Clause 8 and, if the
Security Trustee is not entitled to take any of the actions contemplated by this
Clause 8 or if the Security Trustee requests any Lender or Hedging Bank to take
that action, that Lender or Hedging Bank will undertake those actions itself in
accordance with the reasonable instructions of the Security
Trustee.
|
8.6
|
Subordinated
Lenders: power of
attorney
|
Each
Subordinated Lender by way of security for its obligations under this Agreement,
irrevocably appoints the Security Trustee to be its attorney to do anything
which that Subordinated Lender has authorised the Security Trustee or any other
Party to do under this Agreement or is itself required to do under this
Agreement but has failed to do (and the Security Trustee may delegate that power
on such terms as it sees fit).
|
9.
|
TURNOVER
OF RECEIPTS
|
|
9.1
|
Turnover
by the Lenders and Hedging Banks
|
Subject
to Clause 9.2 (Permitted
assurance and receipts) if at any time prior to the discharge in full of
the Liabilities of the Senior Creditors, any Lender or Hedging Bank receives or
recovers:
|
(a)
|
any
payment or distribution of, or on account of or in relation to, any of the
Liabilities which is not permitted by either Clause 6 (Permitted Payments) or
Clause 13 (Application
of Proceeds);
|
|
(b)
|
any
amount by way of set-off in respect of any of the Liabilities owed to them
which does not give effect to a payment permitted by Clause 6 (Permitted
Payments);
|
|
(c)
|
the
proceeds of any enforcement of any Transaction Security except in
accordance with Clause 13 (Application of
Proceeds); or
|
|
(d)
|
any
distribution in cash or in kind made as a result of the occurrence of an
Insolvency Event in respect of any
Obligor,
|
that
Lender or Hedging Bank will:
|
(i)
|
in
relation to receipts and recoveries described in paragraphs (a), (c) and
(d) above:
|
|
(A)
|
hold
an amount of that receipt or recovery equal to the Relevant Liabilities
(or if less, the amount received or recovered) on trust for the Security
Trustee and promptly pay that amount to the Security Trustee for
application in accordance with the terms of this Agreement;
and
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|
(B)
|
promptly
pay an amount equal to the amount (if any) by which the receipt or
recovery exceeds the Relevant Liabilities to the Security Trustee for
application in accordance with the terms of this Agreement;
and
|
|
(ii)
|
in
relation to recoveries described in paragraph (b) above, promptly pay an
amount equal to that receipt or recovery to the Security Trustee to be
held on trust by the Security Trustee for application in accordance with
the terms of this Agreement.
|
|
9.2
|
Permitted
assurance and receipts
|
Nothing
in this Agreement shall restrict the ability of any Senior Creditor
to:
|
(a)
|
arrange
with any person (other than a member of the Group) any assurance against
loss in respect of, or reduction of its credit exposure to, the Borrower
(including assurance by way of credit based derivative or
sub-participation); or
|
|
(b)
|
to
receive or recover any sum in respect of its Liabilities as a result of
any assignment or transfer permitted by Clause 16 (Change of
Party),
|
and that
Senior Creditor shall not be obliged to account to any other Party for any sum
received by it as a result of that action.
|
9.3
|
Sums
received by Obligors
|
If any of
the Obligors receives or recovers any sum which, under the terms of any of the
Finance Documents, should have been paid to the Security Trustee, that Obligor
will:
|
(a)
|
hold
an amount of that receipt or recovery equal to the Relevant Liabilities
(or if less, the amount received or recovered) on trust for the Security
Trustee and promptly pay that amount to the Security Trustee for
application in accordance with the terms of this Agreement;
and
|
|
(b)
|
promptly
pay an amount equal to the amount (if any) by which the receipt or
recovery exceeds the Relevant Liabilities to the Security Trustee for
application in accordance with the terms of this
Agreement.
|
|
9.4
|
Saving
provision
|
If, for
any reason, any of the trusts expressed to be created in this Clause 9 (Turnover of Receipts) should
fail or be unenforceable, the affected Lender, Hedging Bank or Obligor will
promptly pay an amount equal to that receipt or recovery to the Security Trustee
to be held on trust by the Security Trustee for application in accordance with
the terms of this Agreement.
|
10.
|
SHARING
|
|
10.1
|
Recovering
Party’s rights
|
|
(a)
|
Any
amount paid by a Lender or Hedging Bank (a “Recovering Party”) to
the Security Trustee under Clause 8 (Effect of Insolvency
Event) or Clause 9 (Turnover of Receipts)
shall be treated as having been paid by the relevant Obligor and
distributed in accordance with the terms of this
Agreement.
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|
(b)
|
On
a distribution of that amount by the Security Trustee, the Recovering
Party will be subrogated to the rights of the Lenders or Hedging Banks
which have shared in the
redistribution.
|
|
(c)
|
If
and to the extent that the Recovering Party is unable to rely on its
rights under paragraph (b) of this Clause 10.1 the relevant Obligor shall
be liable to the Recovering Party for a debt equal to the amount received
or recovered by the Recovering Party and paid to the Security Trustee (the
“Shared Amount”)
which is immediately due and
payable.
|
|
10.2
|
Reversal
of redistribution
|
If any
part of the Shared Amount received or recovered by a Recovering Party becomes
repayable to an Obligor and is repaid by that Recovering Party to that Obligor,
then:
|
(a)
|
each
Lender or Hedging Bank which has received a share of the relevant Shared
Amount shall, upon request of the Security Trustee, pay to the Security
Trustee for the account of that Recovering Party an amount equal to the
appropriate part of its share of the Shared Amount (together with an
amount as is necessary to reimburse that Recovering Party for its
proportion of any interest on the Shared Amount which that Recovering
Party is required to pay); and
|
|
(b)
|
that
Recovering Party’s rights of subrogation in respect of any reimbursement
shall be cancelled and that Obligor will be liable to each reimbursing
Lender or Hedging Bank for the amount so
reimbursed.
|
|
10.3
|
Deferral
of subrogation
|
No
Subordinated Lender or Obligor will exercise any rights which it may have by
reason of the performance by it of its obligations under the Finance Documents
to take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights under the Finance Documents of any Senior Lender which
ranks ahead of it in accordance with the priorities set out in Clause 2 (Ranking and Priority) until
such time as all of the Liabilities of each Senior Lender have been irrevocably
paid in full.
|
11.
|
ENFORCEMENT
OF SECURITY
|
|
11.1
|
Instructing
Group’s directions
|
The
Security Trustee will enforce the Transaction Security only at the request of
Instructing Group. At all times after the request to commence
enforcement has been issued and subject to the terms of this Agreement, the
Security Trustee will act on the directions of the Instructing Group, who shall
be entitled to give directions and do any other things in relation to the
enforcement of the Transaction Security (including in connection with, but not
limited to, the disposal, collection or realisation of assets subject to the
Transaction Security) that it considers appropriate including (without
limitation) determining the timing and manner of enforcement against any
particular person or asset.
|
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11.2
|
Obligors’
waiver
|
To the
extent permitted under applicable law and subject to Clause 13 (Application of Proceeds),
each of the Obligors waives all rights it may otherwise have to require that the
Transaction Security be enforced in any particular order or manner or at any
particular time or that any sum received or recovered from any person, or by
virtue of the enforcement of any of the Transaction Security or of any other
security interest, which is capable of being applied in or towards discharge of
any of the Secured Obligations is so applied.
|
12.
|
DISPOSALS
BY SECURITY TRUSTEE
|
If any
assets are sold or otherwise disposed of by (or on behalf of) the Security
Trustee or by an Obligor at the request of the Security Trustee either as a
result of the enforcement of any of the Transaction Security or if that disposal
is permitted under the Senior Facility Agreement:
|
(a)
|
the
Security Trustee shall be authorised (at the cost of the Obligors) to
release those assets from the Transaction Security and is authorised to
execute, on behalf of and without the need for any further authority from,
any of the Lenders or Hedging Banks, any release of the Transaction
Security or any other claim over those assets and to issue any
certificates of non-crystallisation of any floating charge that may, in
the absolute discretion of the Security Trustee, be considered necessary
or desirable;
|
|
(b)
|
if
the asset which is disposed of consists of all of the shares (which are
held by an Obligor) in the capital of an Obligor or any holding company of
that Obligor, the Security Trustee is authorised to, and may execute on
behalf of each Lender, Hedging Bank and each Obligor, as appropriate, a
release of the Obligor or holding company whose shares are being disposed
of from all liabilities it may have to any Lender, Hedging Bank or
Obligor, both actual and contingent in its capacity as a guarantor or
borrower (including any liability to any other Obligor by way of
guarantee, contribution, subrogation or indemnity) and a release of any
Transaction Security granted by that Obligor or holding company over any
of its assets under any of the Security Documents;
and
|
|
(c)
|
the
Lenders, Hedging Banks and Obligors shall execute any releases or other
documents that the Security Trustee may consider to be necessary to give
effect to those releases provided that the
proceeds of that disposal are applied in accordance with this
Agreement.
|
|
13.
|
APPLICATION
OF PROCEEDS
|
|
13.1
|
Order
of application
|
All
amounts from time to time received or recovered by the Security Trustee pursuant
to the terms of any Finance Document or in connection with the realisation or
enforcement of all or any part of the Transaction Security shall be held by the
Security Trustee on trust to apply them at any time the Security Trustee sees
fit, to the extent permitted by applicable law (and subject to the provisions of
this Clause 13 (Application of
Proceeds)), in the following order of priority:
|
(a)
|
in
discharging any sums owing to the Security Trustee (in its capacity as
security trustee), any Receiver or any
Delegate;
|
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(b)
|
in
payment of all costs and expenses reasonably incurred by the Agent or any
Senior Creditor in connection with any realisation or enforcement of the
Transaction Security taken in accordance with the terms of this Agreement
or any action taken at the request of the Security Trustee under Clause
8.5 (Further
Assurances);
|
|
(c)
|
in
payment to the Agent and Account Bank of all amounts due and payable to
them under the Finance Documents;
|
|
(d)
|
in
payment to the Agent on behalf of the Senior Lenders and Hedging Banks for
application (in accordance with the terms of the Senior Finance Documents
and Hedging Agreements) towards the discharge of the Senior Liabilities on
a pari passu
basis;
|
|
(e)
|
in
payment to the Subordinated Lenders for application on a pari passu
basis towards the discharge of the Subordinated
Liabilities;
|
|
(f)
|
if
none of the Obligors is not under any further actual or contingent
liability under any Finance Document, in payment to any person to whom the
Security Trustee is obliged to pay in priority to that Obligor;
and
|
|
(g)
|
the
balance, if any, in payment to the relevant
Obligor.
|
|
13.2
|
Investment
of proceeds
|
Prior to
the application of the proceeds of the Trust Property in accordance with Clause
13.1 (Order of
application) the Security 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 Security Trustee or the Agent with such financial institution
(including itself) and for so long as the Security Trustee shall think fit (the
interest being credited to the relevant account) pending the application from
time to time of those monies at the Security Trustee’s discretion in accordance
with the provisions of this Clause 13.2.
|
13.3
|
Currency
conversion
|
|
(a)
|
For
the purpose of, or pending the discharge of, any of the Secured
Obligations the Security Trustee may convert any moneys received or
recovered by the Security Trustee from one currency to another, at the
spot rate at which the Security 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.
|
|
13.4
|
Permitted
deductions
|
The
Security 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 taxes 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 Taxes which may be assessed against it in respect of any of the
Trust Property, or as a consequence of performing its duties, or by virtue of
its capacity as Security Trustee under any of the Finance Documents or otherwise
(other than in connection with its remuneration for performing its duties under
this Agreement).
|
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13.5
|
Good
discharge
|
|
(a)
|
Any
payment to be made in respect of the Secured Obligations by the Security
Trustee may be made to the Agent on behalf of the Senior Lenders or the
Hedging Banks, or directly to the Subordinated Lenders and any payment
made in that way shall be a good discharge, to the extent of that payment,
by the Security Trustee.
|
|
(b)
|
The
Security Trustee is under no obligation to make the payments to the Agent
or the Subordinated Lenders under paragraph (a) of this Clause 13.5 in the
same currency as that in which the Liabilities of the relevant Lender or
Hedging Bank are denominated.
|
|
13.6
|
Application
of Parallel Debt
|
In
consideration for the covenants given to the Security Trustee by each Obligor in
Clause 14.2 (Parallel Debt
(Covenant to pay the Security Trustee)), the Security Trustee agrees with
each Obligor to apply all moneys from time to time paid by such Obligor to the
Security Trustee in accordance with the provisions of Clause 13.1 (Order of
Application).
|
13.7
|
Calculation
of amounts
|
For the
purpose of calculating any person’s share of any sum payable to or by it, the
Security Trustee shall be entitled to:
|
(a)
|
notionally
convert the Liabilities owed to any person into a common base currency
(decided in its discretion by the Security Trustee), that notional
conversion to be made at the spot rate at which the Security Trustee is
able to purchase the notional base currency with the actual currency of
that person ‘s Liabilities at the time at which that calculation is to be
made; and
|
|
(b)
|
assume
that all moneys received or recovered as a result of the enforcement or
realisation of the Trust Property are applied in discharge of the
Liabilities in accordance with the terms of the Finance Documents under
which those Liabilities have
arisen.
|
|
14.
|
THE
SECURITY TRUSTEE
|
|
14.1
|
Trust
|
|
(a)
|
The
Security Trustee declares that it shall hold the Trust Property on trust
for the Secured Parties on the terms contained in this
Agreement.
|
|
(b)
|
Each
of the parties to this Agreement agrees that the Security Trustee shall
have only those duties, obligations and responsibilities expressly
specified in this Agreement or in the Security Documents to which the
Security Trustee is expressed to be a party (and no others shall be
implied).
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14.2
|
Parallel
Debt (Covenant to pay the Security
Trustee)
|
|
(a)
|
Notwithstanding
any other provision of this Agreement, each Obligor hereby irrevocably and
unconditionally undertakes to pay to the Security Trustee, as creditor in
its own right and not as representative of the other Secured Parties, sums
equal to and in the currency of each amount payable by such Obligor to
each of the Secured Parties under each of the Finance Documents as and
when that amount falls due for payment under the relevant Finance Document
or would have fallen due but for any discharge resulting from failure of
another Secured Party to take appropriate steps, in insolvency proceedings
affecting that Obligor, to preserve its entitlement to be paid that
amount.
|
|
(b)
|
The
Security Trustee shall have its own independent right to demand payment of
the amounts payable by each Obligor under this Clause 14.2 (Parallel Debt (Covenant to pay the Security
Trustee)), irrespective of any discharge of such Obligor’s
obligation to pay those amounts to the other Secured Parties resulting
from failure by them to take appropriate steps, in insolvency proceedings
affecting that Obligor, to preserve their entitlement to be paid those
amounts.
|
|
(c)
|
Any
amount due and payable by an Obligor to the Security Trustee under this
Clause 14.2 (Parallel
Debt (Covenant to
pay the Security Trustee)) shall be decreased to the extent that
the other Secured Parties have received (and are able to retain) payment
in full of the corresponding amount under the other provisions of the
Finance Documents and any amount due and payable by an Obligor to the
other Secured Parties under those provisions shall be decreased to the
extent that the Security Trustee has received (and is able to retain)
payment in full of the corresponding amount under this Clause 14.2 (Parallel Debt (Covenant to pay the Security
Trustee)).
|
|
(d)
|
The
rights of the Secured Parties (other than the Security Trustee) to receive
payment of amounts payable by each Obligor under the Finance Documents are
several and are separate and independent from, and without prejudice to,
the rights of the Security Trustee to receive payment under this Clause
14.2 (Parallel
Debt (Covenant to
pay the Security Trustee)). Each Obligor’s parallel obligation
under this Clause 14.2 (Parallel Debt (Covenant to pay the Security
Trustee)) towards the Security Trustee constitutes a single and
separate obligation from any other debt of each Obligor under the Finance
Documents.
|
|
(e)
|
Notwithstanding
that the amounts payable by each Obligor under the Finance Documents (the
“Principal
Obligations”) may be expressed in different currencies, the
parallel obligation of each Obligor to the Security Trustee under this
Clause 14.2 (Parallel
Debt (Covenant to
pay the Security Trustee)) (each a “Parallel Obligation”)
shall be expressed in dollars. For the purposes of establishing
the amount of the Parallel Obligation from time to time, the Principal
Obligations expressed in other currencies shall be notionally converted to
zloty at the Agent’s Spot Rate of
Exchange.
|
|
14.3
|
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 Security
Trustee.
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14.4
|
Security
Trustee’s instructions
|
The
Security Trustee shall:
|
(a)
|
unless
a contrary indication appears in this Agreement, act in accordance with
any instructions given to it by the Instructing Group and shall
be entitled to assume that, unless it has received actual notice of
revocation, that those instructions or directions have not been
revoked;
|
|
(b)
|
be
entitled to request instructions, or clarification of any direction, from
the Instructing Group as to whether, and in what manner, it should
exercise or refrain from exercising any rights, powers and discretions and
the Security Trustee may refrain from acting unless and until those
instructions or clarification are received by
it.
|
|
14.5
|
Security
Trustee’s actions
|
Subject
to the provisions of Clause 14.4 (Security Trustee’s
instructions):
|
(a)
|
the
Security 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 Security Trustee of notice from the
Instructing Group directing the Security Trustee to exercise all or any of
its rights, remedies, powers or discretions under any of the Finance
Documents, the Security Trustee may, and shall if so directed by the
Instructing Group, take any action as in its sole discretion it thinks fit
to enforce the Transaction
Security.
|
|
14.6
|
Security
Trustee’s discretions
|
The
Security Trustee may:
|
(a)
|
assume
(unless it has received actual notice to the contrary from the Instructing
Group in its capacity as security 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 by any Finance Document in
any person has not been exercised;
|
|
(b)
|
if
it receives any instructions or directions from the Instructing Group 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)
|
engage,
pay for and rely on the advice or services of any lawyers, accountants,
surveyors or other experts (whether obtained by the Security Trustee or by
any other Secured Party) whose advice or services may at any time seem
necessary, expedient or desirable;
|
|
(d)
|
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, the Subordinated Lender or an Obligor, upon
a certificate signed by or on behalf of that person;
and
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(e)
|
refrain
from acting in accordance with the instructions of the Instructing Group
(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 any action or
proceedings.
|
|
14.7
|
Security
Trustee’s obligations
|
The
Security Trustee shall promptly inform the Secured Parties of:
|
(a)
|
the
contents of any notice or document received by it in its capacity as
Security Trustee from any Obligor under any Finance Document;
and
|
|
(b)
|
the
occurrence of any Default or any default by an Obligor in the due
performance of or compliance with its obligations under any Finance
Document of which the Security Trustee has received notice from any other
party to this Agreement.
|
|
14.8
|
Excluded
obligations
|
Notwithstanding
anything to the contrary expressed or implied in the Finance Documents, the
Security Trustee shall not:
|
(a)
|
be
bound to enquire as to (i) whether or not any Default has occurred or (ii)
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 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 but not limited to 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 or any Subordinated
Lender.
|
|
14.9
|
Exclusion
of Security Trustee’s liability
|
The
Security Trustee shall not accept responsibility or be liable for:
|
(a)
|
the
adequacy, accuracy and/or completeness of any information (whether oral or
written) supplied by the Security Trustee or any other person in or in
connection with any Finance Document or the Information Memorandum or the
transactions contemplated in 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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(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document, the Trust Property or any other agreement, arrangement
or document entered into, made or executed in anticipation of, under or in
connection with any Finance Document or the Trust
Property;
|
|
(c)
|
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, the Trust Property or otherwise, whether in accordance with an
instruction from the Agent or otherwise unless directly caused by its
gross negligence or wilful
misconduct;
|
|
(d)
|
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
Trust Property or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with the
Finance Documents or the Trust Property;
or
|
|
(e)
|
any
shortfall which arises on the enforcement or realisation of the Trust
Property.
|
|
14.10
|
No
proceedings
|
No Party
(other than the Security Trustee) may take any proceedings against any officer,
employee or agent of the Security Trustee in respect of any claim it might have
against the Security Trustee or in respect of any act or omission of any kind by
that officer, employee or agent in relation to any Finance Document or any Trust
Property and any officer, employee or agent of the Security Trustee may rely on
this Clause subject to Clause 1.6 (Third Party Rights) and the
provisions of the Third Parties Act.
|
14.11
|
Own
responsibility
|
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 confirms
to the Security 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, creditworthiness, affairs, status and nature of each
member of the Group;
|
|
(b)
|
the
legality, validity, effectiveness, adequacy and enforceability of any
Finance Document, the Trust Property 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 Trust
Property;
|
|
(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 Trust Property, 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 or the Trust
Property;
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(d)
|
the
adequacy, accuracy and/or completeness of the Information Memorandum and
any information provided by the Security Trustee 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 Trust Property, the priority of any of the Transaction
Security or the existence of any Security affecting the Trust
Property,
|
and each
Secured Party warrants to the Security Trustee that it has not relied on and
will not at any time rely on the Security Trustee in respect of any of these
matters.
|
14.12
|
No
responsibility to perfect Transaction
Security
|
The
Security 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 Trust
Property;
|
|
(b)
|
obtain
any licence, consent or other authority for the execution, delivery,
legality, validity, enforceability or admissibility in evidence of any of
the Finance Documents or the Transaction
Security;
|
|
(c)
|
register,
file or record or otherwise protect any of the Transaction Security (or
the priority of any of the Transaction Security) under any applicable laws
in any jurisdiction or to give notice to any person of the execution of
any of the Finance Documents or of the Transaction
Security;
|
|
(d)
|
take,
or to require any Obligor to take, any steps to perfect its title to any
of the Trust 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.
|
|
14.13
|
Insurance
by Security Trustee
|
|
(a)
|
The
Security Trustee shall not be under any obligation to insure any of the
Trust 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 Security 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 Security 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 such insurers or any other
information of any kind, unless the Agent or the Subordinated Lenders
shall have requested it to do so in writing and the Security Trustee shall
have failed to do so within fourteen days after receipt of that
request.
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14.14
|
Custodians
and nominees
|
The
Security 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 Security 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 Security 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.
|
14.15
|
Acceptance
of title
|
The
Security Trustee shall be entitled to accept without enquiry, and shall not be
obliged to investigate, any right and title that any Obligor may have to any of
the Trust Property and shall not be liable for or bound to require any Obligor
to remedy any defect in its right or title.
|
14.16
|
Refrain
from illegality
|
The
Security 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 Security
Trustee may do anything which is, in its opinion, necessary to comply with any
such law, directive or regulation.
|
14.17
|
Business
with the Obligors
|
The
Security Trustee may accept deposits from, lend money to, and generally engage
in any kind of banking or other business with any of the Obligors.
|
14.18
|
Releases
|
Upon a
disposal of any of the Trust Property:
|
(a)
|
pursuant
to the enforcement of the Transaction Security by a Receiver or the
Security Trustee; or
|
|
(b)
|
if
that disposal is permitted under the Senior Finance
Documents,
|
the
Security Trustee shall (at the cost of the Obligors) release that property from
the Transaction Security 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.
|
14.19
|
Winding
up of trust
|
If the
Security Trustee, with the approval of the Instructing Group, determines that
(a) all of the Secured Obligations and all other obligations secured by 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 Security Trustee shall release, without recourse or
warranty, all of the Transaction Security and the rights of the Security Trustee
under each of the Security Documents.
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14.20
|
Powers
supplemental
|
The
rights, powers and discretions conferred upon the Security Trustee by this
Agreement shall be supplemental to the Trustee Xxx 0000 and the Trustee Xxx 0000
and in addition to any which may be vested in the Security Trustee by general
law or otherwise.
|
14.21
|
Security
Trustee division separate
|
|
(a)
|
In
acting as security trustee for the Secured Parties, the Security Trustee
shall be regarded as acting through its trustee division which shall be
treated as a separate entity from any of its other divisions or
departments.
|
|
(b)
|
If
information is received by another division or department of the Security
Trustee, it may be treated as confidential to that division or department
and the Security Trustee shall not be deemed to have notice of
it.
|
|
14.22
|
Disapplication
|
Section 1
of the Trustee Act 2000 shall not apply to the duties of the Security Trustee in
relation to the trusts constituted by this Agreement. Where there are
any inconsistencies between the Trustee Xxx 0000 and the Trustee Xxx 0000 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.
|
15.
|
CHANGE
OF SECURITY TRUSTEE AND DELEGATION
|
|
15.1
|
Resignation
of the Security Trustee
|
|
(a)
|
The
Security Trustee may resign and appoint one of its affiliates as successor
by giving notice to the Secured
Parties.
|
|
(b)
|
Alternatively
the Security Trustee may resign by giving notice to the Secured Parties in
which case the Instructing Group may appoint a successor Security Trustee
(which shall be a Senior Lender).
|
|
(c)
|
If
the Instructing Group have not appointed a successor Security Trustee in
accordance with paragraph (b) above within 30 days after the notice of
resignation was given, the Security Trustee (after consultation with the
Agent) may appoint a successor Security Trustee (which shall be a Senior
Lender).
|
|
(d)
|
The
retiring Security Trustee shall, at its own cost, make available to the
successor Security Trustee such documents and records and provide such
assistance as the successor Security Trustee may reasonably request for
the purposes of performing its functions as Security Trustee under the
Finance Documents.
|
|
(e)
|
The
Security Trustee’s resignation notice shall only take effect upon (i) the
appointment of a successor and (ii) the transfer of all of the Trust
Property to that successor.
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(f)
|
Upon
the appointment of a successor, the retiring Security Trustee shall be
discharged from any further obligation in respect of the Finance Documents
but shall remain entitled to the benefit of Clause 14 (The Security
Trustee). Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves as they
would have had if that successor had been an original
Party.
|
|
(g)
|
The
Instructing Group may, by notice to the Security Trustee, require it to
resign in accordance with paragraph (b) above. In this event,
the Security Trustee shall resign in accordance with paragraph (b)
above.
|
|
15.2
|
Delegation
|
|
(a)
|
The
Security 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 that the Security 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 such delegate or
sub-delegate.
|
|
15.3
|
Additional
Security Trustees
|
|
(a)
|
The
Security 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 Security Trustee deems to be relevant
or (iii) for obtaining or enforcing any judgment in any jurisdiction, and
the Security Trustee shall give prior notice to the Obligors and the
Secured Parties of that
appointment.
|
|
(b)
|
Any
person so appointed shall have the rights, powers and discretions (not
exceeding those conferred on the Security Trustee by this Agreement) and
the duties and obligations that are conferred or imposed by the instrument
of appointment.
|
|
(c)
|
The
remuneration that the Security Trustee may pay to that 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 Security
Trustee.
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16.
|
CHANGE
OF PARTY
|
|
16.1
|
Change
of Party
|
No party
may assign any of its rights and benefits or transfer any of its rights,
benefits and obligations in respect of any Finance Documents or the Liabilities
except as permitted by this Clause 16.
|
16.2
|
Change
of Lender or Hedging Bank
|
|
(a)
|
A
Senior Lender may assign any of its rights and benefits or transfer any of
its rights, benefits and obligations in respect of any Senior Finance
Documents or its Liabilities if that assignment or transfer is in
accordance with the terms of the Senior Facility Agreement and any
assignee or transferee has executed and delivered to the Security Trustee
a Lender Accession Deed.
|
|
(b)
|
A
Subordinated Lender may not assign any of its rights and benefits or
transfer any of its rights, benefits and obligations in respect of the
Subordinated Documents or the Subordinated
Liabilities.
|
|
(c)
|
A
Group Subordinated Lender may not assign any of its rights and benefits or
transfer any of its rights, benefits and obligations in respect of the
Liabilities.
|
|
(d)
|
A
Hedging Bank may assign any of its rights and benefits or transfer any of
its rights, benefits and obligations in respect of any Hedging Agreement
if the conditions set out in Clause 5.1 (Identity of Hedging
Banks) and Clause 5.7 (Hedging Bank
undertakings) have been
satisfied.
|
|
(e)
|
A
Senior Lender which is also Security Trustee may not transfer all of its
rights, benefits and obligations in respect of any Senior Finance
Documents or its Liabilities pursuant to (a) if at as a result of such
transfer the Security Trustee shall not be Senior Lender, and any such
purported transfer shall be void.
|
|
16.3
|
Change
of Agent
|
Any
person which becomes an Agent as defined in, and in accordance with, the terms
of the Senior Facility Agreement, shall at the same time accede to this
Agreement by executing and delivering to the Security Trustee a Lender Accession
Deed.
|
16.4
|
Lender
Accession Deed
|
With
effect from the date of acceptance by the Security Trustee and, if appropriate,
the Agent of a Lender Accession Deed (which shall in each case be accepted as
soon as reasonably practicable after receipt by it of a duly completed Lender
Accession Deed) or, if later the date specified in that Lender Accession
Deed:
|
(a)
|
any
Party ceasing entirely to be a Lender and/or Agent shall be discharged
from further obligations towards the Security Trustee and other Parties
under this Agreement and their respective rights against one another shall
be cancelled (except in each case for those rights which arose prior to
that date); and
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(b)
|
as
from that date, the replacement or new Lender and/or Agent shall assume
the same obligations, and become entitled to the same rights, as if it had
been an original Party to this
Agreement.
|
|
16.5
|
New
Obligor
|
|
(a)
|
If
any member of the Group gives any security, guarantee, indemnity or other
assurance against loss in respect of any of the Liabilities, the Borrower
will procure that the person giving that assurance becomes a Party to this
Agreement as an Obligor by executing and delivering to the Security
Trustee an Obligor Accession Deed.
|
|
(b)
|
The
Borrower shall procure that each Additional Guarantor (as defined in the
Senior Facility Agreement) will become a Party to this Agreement as an
Obligor by executing and delivering to the Security Trustee an Obligor
Accession Deed.
|
|
(c)
|
With
effect from the date of acceptance by the Security Trustee of an Obligor
Accession Deed or, if later, the date specified in the Obligor Accession
Deed, the new Obligor shall assume the same obligations and become
entitled to the same rights as if it had been an original Party to this
Agreement.
|
|
16.6
|
Additional
Parties
|
Each of
the Parties appoints the Security Trustee to receive on its behalf each Obligor
Accession Deed and Lender Accession Deed delivered to the Security Trustee and
to accept and sign it if, in the Security Trustee’s opinion, it is complete and
appears on its face to be authentic and duly executed and until accepted and
signed by the Security Trustee that document shall not be
effective.
|
17.
|
FEES
AND EXPENSES
|
|
17.1
|
Security
Trustee’s ongoing fees
|
|
(a)
|
In
the event of (i) the occurrence of a Default or (ii) the Security Trustee
considering it necessary or expedient or (iii) the Security Trustee being
requested by an Obligor or the Instructing Group to undertake duties which
the Security Trustee and the Borrower agree to be of an exceptional nature
and/or outside the scope of the normal duties of the Security Trustee
under the Finance Documents, the Borrower shall pay to the Security
Trustee any additional remuneration (together with any applicable VAT) as
may be agreed between them.
|
|
(b)
|
If
the Security Trustee and the Borrower fail to agree upon the nature of
those duties or upon any additional remuneration, that dispute shall be
determined by an investment bank (acting as an expert and not as an
arbitrator) selected by the Security Trustee and approved by the Borrower
or, failing that approval, nominated (on the application of the Security
Trustee) by the President for the time being of the Law Society of England
and Wales (the costs of that nomination and of the investment bank being
payable by the Borrower) and the determination of any such investment bank
shall be final and binding upon the parties to this
Agreement.
|
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17.2
|
Transaction
and enforcement expenses
|
The
Borrower shall, from time to time on demand of the Security Trustee, reimburse
the Security Trustee for all costs and expenses (including legal fees) on a full
indemnity basis together with any applicable VAT incurred by the Security
Trustee and any Receiver and Delegate in connection with:
|
(a)
|
the
negotiation, preparation and execution of this Agreement and the Security
Documents and the completion of the transactions and perfection of the
security contemplated in the Security Documents;
and
|
|
(b)
|
the
exercise, preservation and/or enforcement of any of the rights, powers and
remedies of the Security Trustee and of the Transaction Security and any
proceedings instituted by or against the Security Trustee as a consequence
of taking or holding the Transaction Security or of enforcing those
rights, powers and remedies.
|
|
17.3
|
Stamp
taxes
|
The
Borrower shall pay all stamp, registration, notarial and other taxes or fees to
which this Agreement, the Transaction Security or any judgment given in
connection with them, is or at any time may be, subject and shall, from time to
time, indemnify the Security Trustee on demand against any liabilities, costs,
claims and expenses resulting from any failure to pay or any delay in paying any
tax or fee.
|
17.4
|
Interest
on demands
|
If any
Obligor, Hedging Bank or Lender fails to pay any amount payable by it under this
Agreement on its due date, interest shall accrue on the overdue amount (and be
compounded with it) from the due date up to the date of actual payment (both
before and after judgment and to the extent interest at a default rate is not
otherwise being paid on that sum) at the rate which is two (2) percent, per
annum over the rate at which the Security Trustee was being offered, by prime
banks in the London Interbank Market, deposits in an amount comparable to the
unpaid amounts in the currencies of those amounts for any period(s) that the
Security Trustee may from time to time select.
|
18.
|
INDEMNITIES
|
|
18.1
|
Obligor
indemnity
|
The
Obligors jointly and severally shall promptly indemnify the Security Trustee and
every Receiver and Delegate against any cost, loss or liability (together with
any applicable VAT), whether or not reasonably foreseeable, incurred by any of
them:
|
(a)
|
in
relation to or arising out of:
|
|
(i)
|
any
failure by the Borrower to comply with obligations under Clause 17 (Fees and
expenses);
|
|
(ii)
|
the
taking, holding, protection or enforcement of the Transaction
Security;
|
|
(iii)
|
the
exercise of any of the rights, powers, and discretions vested in any of
them by the Finance Documents or by
law;
|
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|
(iv)
|
any
default by any Obligor in the performance of any of the obligations
expressed to be assumed by it in the Finance Documents;
or
|
|
(b)
|
which
otherwise relate to any of the Trust Property or the performance of the
terms of this Agreement (otherwise than as a result of its gross
negligence or wilful misconduct).
|
|
18.2
|
Priority
of indemnity
|
The
Security Trustee may, in priority to any payment to the Secured Parties,
indemnify itself out of the Trust Property in respect of, and pay and retain,
all sums necessary to give effect to the indemnity in Clause 18.1 (Obligor indemnity) from the
Obligors and shall have a lien on the Transaction Security and the proceeds of
the enforcement of the Transaction Security for all moneys payable to it under
this Clause.
|
18.3
|
Senior
Creditors’ indemnity to Security
Trustee
|
Each
Senior Creditor shall (in the proportion that its Senior Credit Participation
bears to the aggregate of the Senior Credit Participations), indemnify the
Security Trustee, within three business days of demand, against any cost, loss
or liability incurred by the Security Trustee (otherwise than by reason of the
Security Trustee’s gross negligence or wilful misconduct) in acting as Security
Trustee under the Finance Documents (unless the Security Trustee has been
reimbursed by an Obligor pursuant to a Finance Document) and the Obligors shall
indemnify each Senior Creditor against any payment made by it under this
Clause.
|
19.
|
INFORMATION
|
|
19.1
|
Information
and dealing
|
The
Lenders and Hedging Banks shall provide to the Security Trustee from time to
time (through the Agent if relevant) any information that the Security Trustee
may reasonably specify as being necessary or desirable to enable the Security
Trustee to perform its functions as Security Trustee. Each Senior
Creditor shall deal with the Security Trustee exclusively through the Agent and
shall not deal directly with the Security Trustee.
|
19.2
|
Disclosure
|
Each
Obligor and Subordinated Lender consents, until such time as all of the
Liabilities owed by it to the Senior Creditors have been discharged in full, to
the disclosure by any of the Senior Creditors to each other of such information
concerning the Obligors as any Senior Creditor shall see fit.
|
20.
|
NOTICES
|
|
20.1
|
Communications
in writing
|
Any
communication to be made under or in connection with this Agreement shall be
made in writing and, unless otherwise stated, may be made by fax or
letter.
|
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20.2
|
Addresses
|
The
address and fax 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)
|
identified
with its name below; or
|
|
(b)
|
specified
on the Lender Accession Deed or Obligor Accession Deed to which it is a
party,
|
or any
substitute details which that Party may notify to the Security Trustee (or the
Security Trustee may notify to the other Parties, if a change is made by the
Security Trustee) by not less than five business days’ notice and promptly upon
receipt of any notification of any new or changed details, the Security Trustee
shall notify the other Parties.
|
20.3
|
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
(5) business days after being deposited in the post postage prepaid in an
envelope addressed to it at that
address,
|
and, if a
particular department or officer is specified as part of its address details
provided under Clause 20.2 (Addresses), if addressed to
that department or officer.
|
(b)
|
Any
communication or document to be made or delivered to the Security Trustee
will be effective only when actually received by the Security Trustee and
then only if it is expressly marked for the attention of the department or
officer identified with the Security Trustee’s signature below (or any
substitute department or officer as the Security Trustee shall specify for
this purpose).
|
|
(c)
|
Any
communication or document made or delivered to the Borrower in accordance
with this Clause 20 (Notices) will be deemed
to have been made or delivered to each of the
Obligors.
|
|
20.4
|
Electronic
communication
|
|
(a)
|
Any
communication to be made between the Security Trustee, the Agent, the
Subordinated Lenders or a Senior Creditor under or in connection with the
Finance Documents may be made by electronic mail or other electronic
means, if the Security Trustee, Agent, Subordinated Lenders or Senior
Creditor:
|
|
(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
|
|
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|
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|
|
(iii)
|
notify
each other of any change to their address or any other such information
supplies by them.
|
|
(b)
|
Any
electronic communication made between the Security Trustee, Agent,
Subordinated Lenders or Senior Creditor will be effective only when
actually received in readable form and in the case of any electronic
communication made by a Senior Creditor, the Agent or a Subordinated
Lender to the Security Trustee only if it is addressed in such a manner as
the Security Trustee shall specify for this
purpose.
|
|
20.5
|
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 Security Trustee, 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.
|
|
21.
|
PRESERVATION
|
|
21.1
|
Partial
invalidity
|
If, at
any time, any provision of this Agreement 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 that provision under the law of any
other jurisdiction will in any way be affected or impaired.
|
21.2
|
Remedies
and waivers
|
No
failure to exercise, nor any delay in exercising, on the part of any Secured
Party, any right or remedy under this Agreement shall operate as a waiver of any
such right or remedy or constitute an election to affirm this
Agreement. No election to affirm this Agreement shall be effective
unless it is in writing. No single or partial exercise of any right or remedy
shall 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.
|
21.3
|
Waiver
of defences
|
The
provisions of this Agreement will not be affected by an act, omission, matter or
thing which, but for this Clause 21.3, would reduce, release or prejudice the
subordination and priorities in this Agreement including:
|
(a)
|
any
time, waiver or consent granted to, or composition with, any Obligor or
other person;
|
|
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|
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(b)
|
the
taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any 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 Transaction
Security;
|
|
(c)
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of any Obligor or other
person;
|
|
(d)
|
any
amendment, novation, supplement, extension (whether of maturity or
otherwise) or restatement (in each case, however fundamental and of
whatsoever nature, and whether or not more onerous) or replacement of a
Finance Document or any other document or
security;
|
|
(e)
|
any
unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security;
or
|
|
(f)
|
any
intermediate payment or discharge of any of the Liabilities of the Senior
Creditors in whole or in part.
|
|
21.4
|
Priorities
not affected
|
Except as
otherwise provided in this Agreement the priorities referred to in Clause 2
(Ranking and Priority)
will:
|
(a)
|
not
be affected by any reduction or increase in the principal amount secured
by the Transaction Security in respect of the Liabilities of the Senior
Creditors or by any intermediate reduction or increase in, amendment or
variation to any of the Finance Documents, or by any variation or
satisfaction of, any of the Liabilities or any other
circumstances;
|
|
(b)
|
apply
regardless of the order in which or dates upon which the Finance Documents
and this Agreement are executed or registered or notice of them is given
to any person; and
|
|
(c)
|
secure
the Senior Liabilities in the order specified, regardless of the date upon
which any of the Liabilities arise or of any fluctuations in the amount of
any of the Liabilities outstanding.
|
|
22.
|
COUNTERPARTS
|
This
Agreement may be executed in any number of counterparts, and this has the same
effect as if the signatures on the counterparts were on a single copy of this
Agreement.
|
23.
|
GOVERNING
LAW
|
This
Agreement and any non-contractual obligations arising out of or in connection
with it are governed by English law.
|
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|
|
24.
|
ENFORCEMENT
|
|
24.1
|
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
relating to the existence, validity or termination of this Agreement or
the consequences of its nullity or any non-contractual obligation arising
out of or in connection with 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 24.1 is for the benefit of the Secured Parties only. As
a result, no Secured Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To
the extent allowed by law, the Secured Parties may take concurrent
proceedings in any number of
jurisdictions.
|
|
24.2
|
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 Law Debenture Corporate Services Limited as its agent for service
of process in relation to any proceedings before the English courts in
connection with this Agreement; and
|
|
(b)
|
agrees
that failure by a process agent to notify the relevant Obligor of the
process will not invalidate the proceedings
concerned.
|
This Agreement has been entered into
on the date stated at the beginning of this Agreement and executed as a deed by
the Subordinated Lenders and is intended to be and is delivered by them as a
deed on the date specified above.
|
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SCHEDULE
1
FORM OF OBLIGOR ACCESSION DEED
FORM OF OBLIGOR ACCESSION DEED
THIS AGREEMENT is made on
[date]
BETWEEN:
|
(1)
|
[insert full name of new
Obligor] (the “Acceding Obligor”);
and
|
|
(2)
|
[insert full name of Security
Trustee] (the “Security Trustee”), for
itself and each of the other parties to the Intercreditor Deed referred to
below.
|
This
agreement is made on [date] by the Acceding Obligor in relation to an
Intercreditor Deed (the “Intercreditor Deed”) dated [•] August 2010 between
[insert name of Security
Trustee] as security trustee, [insert name of Agent] as
agent, the Lenders and the Borrower.
The
Acceding Obligor has entered into [insert details (date, parties and
description) of relevant Security Documents] (the “Additional Security
Document[s]”) giving Security or a guarantee, indemnity or other
assurance against loss in respect of Liabilities.
IT IS AGREED as
follows:
Terms
defined in the Intercreditor Deed shall, unless otherwise defined in this
Agreement, bear the same meaning when used in this Agreement.
The
Acceding Obligor and the Security Trustee agree that the Security Trustee shall
hold (a) the Security, guarantee, indemnity or other assurance against loss in
respect of Liabilities created or expressed to be created pursuant to the
Additional Security Document[s] and (b) all moneys from time to time received or
recovered by the Security Trustee in connection with the realisation or
enforcement of that Security, guarantee, indemnity or other assurance against
loss in respect of Liabilities, on trust for the Secured Parties on the terms
and conditions contained in the Intercreditor Deed.
The
Acceding Obligor confirms that it intends to be party to the Intercreditor Deed
as an Obligor, undertakes to perform all the obligations expressed to be assumed
by an Obligor under the Intercreditor Deed and agrees that it shall be bound by
all the provisions of the Intercreditor Deed as if it had been an original party
to the Intercreditor Deed.
This
Agreement and any non-contractual obligations arising out of or in connection
with it is governed by, and construed in accordance with, English
law.
THIS AGREEMENT has been signed
on behalf of the Security Trustee and executed as a deed by the Acceding Obligor
and is delivered on the date stated above.
The
Acceding Obligor
EXECUTED
AS A DEED )
by [Full name of Acceding
Obligor] )
The
Security Trustee
[Full name of Security
Trustee]
By:
Date:
|
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SCHEDULE
2
FORM OF INTERCREDITOR ACCESSION DEED
FORM OF INTERCREDITOR ACCESSION DEED
|
To:
|
[Insert full name of current
Security Trustee], for itself and each of the other Parties to the
Intercreditor Deed referred to
below.
|
THIS
UNDERTAKING is made on [date] by [insert full name of new
Lender/Guarantor/Hedging Bank/Agent] (the “Acceding
[Lender/Guarantor/Hedging Bank/Agent]”) in relation to the Intercreditor Deed
(the “Intercreditor Deed”) dated [•] August 2010 between [INSERT NAME OF
SECURITY TRUSTEE] as security trustee, [INSERT NAMES OF AGENT] as agent, the
Lenders and the Obligor. Terms defined in the Intercreditor Deed
shall bear the same meanings when used in this Undertaking.
In
consideration of the Acceding [Lender/ Guarantor/Hedging Bank/Agent] being
accepted as [a Senior/Subordinated Lender]/[Guarantor]/[Agent]/[Hedging Bank]
for the purposes of the Intercreditor Deed, the Acceding
[Lender/Guarantor/Hedging Bank/Agent] hereby confirms that, as from [date], it
intends to be party to the Intercreditor Deed as a [[Senior/Subordinated
Lender]/ [Guarantor]/[Agent]/[Hedging Bank], undertakes to perform all the
obligations expressed in the Intercreditor Deed to be assumed by [an Agent]/[a
Senior/Subordinated Lender] [Guarantor]//[Hedging Bank] and agrees that it shall
be bound by all the provisions of the Intercreditor Deed, as if it had been an
original party to the Intercreditor Deed.
[The
following documents, having been approved in accordance with the terms of the
Intercreditor Deed, shall be treated as “Hedging Agreements” for the purpose of
the Intercreditor Deed: [specify
documents].]
This
Undertaking and any non-contractual obligations arising out of or in connection
with it is governed by and construed in accordance with English
law.
THIS UNDERTAKING has been
entered into and executed as a deed by the [Acceding [Lender/Guarantor/Hedging
Bank/Agent] and is delivered on the date stated above.
EXECUTED
AS A DEED
by [Acceding [Lender/Guarantor/Hedging
Bank/Agent]
By:
Address:
Fax:
|
Accepted
by the Security Trustee:
|
Accepted,
in the case of Senior Lenders by [Agent/outgoing
Agent]
|
|
for
and on behalf of
|
for
and on behalf of
|
|
[Insert actual name of Security
Trustee]
|
[Insert actual name of Agent or
outgoing Agent as appropriate]
|
|
Date:
|
Date:
|
|
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|
SIGNATURES
The
Borrower
As a
Borrower FX ENERGY POLAND SP. Z
O.O
By: /s/
Xxxxxx Xxxxxxxxxx
Address:
Fax:
The
Borrower
As a
Borrower FX ENERGY POLAND SP. Z
O.O
By: /s/
Xxxxx X. Xxxxxx
Xxxxx X.
Xxxxxx
Address:
Xx Xxxxxxxxxxxxxx 0, 00-000 Xxxxxx, Xxxxxx
Fax:
0-000-000-0000
The
Original Guarantors
FX
ENERGY, INC.
By: /s/
Xxxxx X. Xxxxxx
Xxxxx X.
Xxxxxx
Address:
0000 Xxxxxxxx Xxxxx, Xxxx Xxxx Xxxx, XX XXX
Fax:
0-000-000-0000
FX NETHERLANDS PARTNERSHIP
C.V. by:
|
FX
DRILLING COMPANY, INC.
|
FRONTIER
EXPLORATION COMPANY
|
|
By:
/s/ Xxxxx X. Xxxxxx
|
By:
/s/ Xxxxxx X. Xxxxxx
|
|
Xxxxx
X. Xxxxxx
|
Xxxxxx
X. Xxxxxx
|
acting as
authorised agent
acting in
their capacity as general partners of FX Netherlands Partnership
C.V.
|
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|
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|
FX
ENERGY NETHERLANDS B.V.
By: /s/
Xxxx Xxxxxx
Address:
Xxxxxxxxxxxxx 0, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx
Fax:
0-000-000-0000
The
Agent
THE
ROYAL BANK OF SCOTLAND PLC
By: /s/
Xxxxx Xxxxxxx
Address:
000 Xxxxxxxxxxx, Xxxxxx, XX0X 0XX
Fax: x00
(0) 00 0000 0000
Attention:
Xxxxxx X. Xxxxxxx
The
Security Trustee
THE
ROYAL BANK OF SCOTLAND PLC
By: /s/
Xxxxx Xxxxxxx
Address:
000 Xxxxxxxxxxx, Xxxxxx, XX0X 0XX
Fax: x00
(0) 00 0000 0000
Attention:
Xxxxxx X. Xxxxxxx
The
Senior Lenders
THE
ROYAL BANK OF SCOTLAND PLC
By: /s/
Xxxxx Xxxxxxx
Address:
000 Xxxxxxxxxxx, Xxxxxx XX0X 0XX
Fax: x00
(0)00 0000 0000
Attention:
Shenth Ravindra / Xxxx-Xxxxx Xxxxx
|
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|
ING
BANK N.V.
|
By:
/s/ M.F.E. de Haan
|
/s/
Xxxxxxx Xxxxxx
|
|
M.F.E.
de Haan
Managing
Director
|
Xxxxxxx
Xxxxxx
Managing
Director
|
Address:
Fax:
KBC
BANK NV
|
By:
/s/ Xxxxxxx Xxxxxxxxxx
|
By:
/s/ Xxxxx Xxxxx
|
Address:
Xxxxxxxxx 0, 0000 Xxxxxxxx, Xxxxxxx
|
Fax:
00 0 000 0000
|
Fax:
000 000 0000
|
The
Subordinated Lenders
EXECUTED
as a DEED by
FX
ENERGY NETHERLANDS B.V.
By: /s/
Xxxx Xxxxxx
Xxxx
Xxxxxx
Address:
Xxxxxxxxxxxxx 0, 0000 XX, Xxxxxxxxx
Fax:
0-000-000-0000
|
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|
The
Group Subordinated Lenders
EXECUTED
as a DEED by
FX ENERGY NETHERLANDS C.V.
by
|
FX
DRILLING COMPANY, INC.
|
FRONTIER
EXPLORATION COMPANY
|
|
By:
/s/ Xxxxx X. Xxxxxx
|
By:
/s/ Xxxxxx X. Xxxxxx
|
|
Xxxxx
X. Xxxxxx
|
Xxxxxx
X. Xxxxxx
|
acting as
authorised agent
|
Address:
|
Address:
|
|
Fax:
0-000-000-0000
|
Fax:
0-000-000-0000
|
|
Attention:
Xxxxx X. Xxxxxx
|
Attention:
Xxxxxx X. Xxxxxx
|
acting in
their capacity as general partners of FX Netherlands Partnership
C.V.
|
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