REVOLVING CREDIT FACILITY
DATED 11TH MAY, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
as the Parent
ARRANGED BY
BNP CAPITAL MARKETS LIMITED
as Arranger
BANQUE NATIONALE DE PARIS
as Agent
▇▇▇▇▇ & ▇▇▇▇▇
London
E21751001
INDEX
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Clause Page No.
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1. Interpretation........................... 1
2. Commitments and Nature of Obligations.... 12
3. Purpose.................................. 13
4. Conditions precedent..................... 14
5. Drawdown................................. 14
6. Repayment ............................... 15
7. Prepayment and cancellation.............. 16
8. Interest Periods......................... 17
9. Interest ................................ 18
10. Selection of Optional Currencies......... 19
11. Amount of Optional Currencies............ 20
12. Payments ................................ 21
13. Taxes.................................... 23
14. Market disruption........................ 26
15. Increased costs.......................... 27
16. Illegality............................... 29
17. Mitigation............................... 29
18. Guarantee................................ 30
19. Representations and warranties........... 32
20. Undertakings ............................ 35
21. Default ................................. 40
22. The Agent and the Arranger............... 44
23. Fees .................................... 49
24. Expenses ................................ 50
25. Stamp duties ............................ 50
26. Indemnities ............................. 50
27. Evidence and calculations................ 52
28. Amendments and waivers .................. 52
29. Changes to the Parties .................. 53
30. Disclosure of information................ 56
31. Set-off.................................. 56
32. Pro rat sharing.......................... 56
33. Severability............................. 58
34. Counterparts............................. 58
35. Notices.................................. 58
36. Language................................. 59
37. Jurisdiction............................. 59
38. Governing law............................ 60
Schedule
--------
1. Banks and Commitments................... 61
2. Conditions Precedent Documents.......... 62
3. Calculation of the MLA Cost............. 64
4. Form of Request ........................ 66
5. Form of Novation Certificate............ 67
6. Form of Deed of Accession .............. 68
7. Approved Additional Borrowers........... 70
Signatories............................................. 71
THIS FACILITY AGREEMENT is dated 11th May, 1993 between:-
(1) GAMBRO AB (the "Parent");
------
(2) BNP CAPITAL MARKETS LIMITED as Arranger (the "Arranger");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the
"Banks"); and
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(4) BANQUE NATIONALE DE PARIS as agent (the "Agent").
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IT IS AGREED as follows:-
1. INTERPRETATION
--------------
1.1 Definitions
-----------
In this Agreement:-
"Additional Borrower"
-------------------
means any entity that becomes an additional borrower by virtue of
Clauses 2.5 and 2.6.
"Affiliate"
---------
means a subsidiary or a holding company (in each case, as defined in
Section 736 of the Companies ▇▇▇ ▇▇▇▇ of England and Wales) of a
Bank or any other subsidiary of that holding company.
"Agent's Spot Rate of Exchange"
-----------------------------
means the Agent's spot rate of exchange for the purchase of the
relevant Optional Currency in the London foreign exchange market
with U.S. Dollars at or about 11.00 a.m. on a particular day.
"Agreed Optional Currencies"
--------------------------
means Deutschmarks, Dutch Guilders, French Francs, Swiss Francs,
Sterling and Yen.
"Borrowers"
---------
means the Parent and/or any Additional Borrower and, in relation to
any Loan, the Borrower to whom that Loan is, or is to be, made (each
a "Borrower").
"Borrowers' Agent"
----------------
means the Parent or such other person from time to time nominated by
the Borrowers to act on behalf of the Borrowers in relation hereto
2
and approved for such purpose by the Agent (whose approval shall not
be unreasonably withheld).
"Business Day"
------------
means a day (other than a Saturday or a Sunday) on which banks are
open for business in:-
(a) London and Paris;
(b) (in relation to a transaction involving any payment in Dollars) New
York; and
(c) (in relation to a transaction involving any payment in an Optional
Currency) the principal financial center of the country of that
Optional Currency.
"COBE"
----
means COBE Laboratories, Inc.
"Commitment"
----------
means:-
(a) in relation to a Bank which is a Bank on the date of this Agreement,
the amount in Dollars set opposite its name in Schedule 1;
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of a Commitment acquired by it under Clause 29
(Changes to the Parties),
to the extent not canceled, reduced or transferred under this
Agreement (collectively, the "Total Commitments").
"Commitment Period"
-----------------
means the period from the date of this Agreement until the Term
Date.
"Consolidated Total Assets"
-------------------------
means the total tangible assets of the Group (excluding recorded
goodwill but including all intellectual property rights) as shown in
its latest audited consolidated accounts with such adjustments, if
any, as the Parent's auditors may, at the request of the Parent or the
Agent, certify to the Parent and the Agent to be appropriate to take
account of events that have occurred since the date as at which such
accounts were prepared.
3
"Default"
-------
means an Event of Default or an event which, with the giving of notice,
lapse of time, determination of materiality or fulfillment of any other
applicable condition (or any combination of the foregoing), would
constitute an Event of Default.
"Deutschmarks"
------------
means the lawful currency for the time being of the Federal Republic
of Germany.
"Disclosure Letter"
-----------------
means a letter delivered by the Parent to the Agent prior to the date
hereof relating to Clause 19 (Representations and warranties).
"Dollars" or "$"
--------------
means the lawful currency for the time being of the United States of
America.
"Drawdown Date"
-------------
means the date of the advance of a Loan.
"Dutch Guilders"
--------------
means the lawful currency for the time being of The Netherlands.
"EIBOR"
-----
means, in relation to a Loan denominated in Sterling:-
(a) the rate per annum of the offered quotation for deposits in
Sterling for a period comparable to the relevant Interest
Period which appears on Telerate Page 3750 at or about
11.00 a.m. on the applicable Rate Fixing Day; or
(b) if no such offered quotation appears on Telerate Page 3750 at
or about such time, the arithmetic mean (rounded upwards, if
necessary, to four decimal places) of the offered quotations
for deposits in Sterling for a period comparable to the
relevant Interest Period which appears on the Reuters Screen
LIBP at or about 11.00 a.m. on the applicable Rate Fixing Day;
or
(c) if no such offered quotation appears on the Telerate Page 3750
and one only or no such offered quotation appears on the LIBP
Page of the Reuters Screen at or about 11.00 a.m. on the
applicable Rate Fixing Day (or if there is no LIBP Page on the
4
Reuters Screen) or the Agent determines, on the instruction of
a Bank, that the rate determined in accordance with paragraphs
(a) and (b) above is not available for deposits in Sterling
domiciled outside the United Kingdom, the arithmetic mean
(rounded upwards, if necessary, to four decimal places) of the
per annum rates, as supplied to the Agent at its request,
quoted by each Reference Bank to leading banks at or about
11.00 a.m. on the applicable Rate Fixing Day for the offering
of deposits in Sterling domiciled outside the United Kingdom
in an amount comparable to its participation in that Loan and
for a period equal to the relevant Interest Period.
For the purposes of this definition, "Telerate Page 3750" means the display
------------------
designated as "Page 3750", on the Telerate Service (or such other page as may
replace Page 3750 on that service or such other service as may be nominated by
the British Bankers' Association as the information vendor for the purpose of
displaying British Bankers' Association Interest Settlement Rates for Sterling
deposits).
"Event of Default"
----------------
means an event specified as such in Clause 21.1 (Events of Default).
"Facility"
--------
means the revolving credit facility so designated, the terms of which are set
out herein.
"Facility Office"
---------------
means the office(s) notified by a Bank to the Agent:-
(a) on or before the date it becomes a Bank; or
(b) by not less than thirty days' notice (or where Clause 17 (Mitigation)
applies, such other period as the Agent may agree),
as the office(s) through which it will perform all or any of its obligations
under this Agreement.
"Fee Letters"
-----------
means the two letters both dated the date of this Agreement between the Agent
and the Borrower setting out the amount of various fees referred to in Clause 23
(Fees).
"Final Repayment Date"
--------------------
means the fifth anniversary of the date of this Agreement.
5
"Finance Document"
----------------
means this Agreement, the Fee Letters or any other document designated as such
by the Agent and the Parent.
"Finance Party"
-------------
means the Arranger, a Bank or the Agent.
"Financial Indebtedness"
----------------------
means (without double counting) any indebtedness in respect of:-
(a) moneys borrowed and debit balances at banks and other financial
institutions;
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance credit;
(d) receivables sold or discounted to the extent that there is recourse to the
seller for non-payment by the relevant debtor;
(e) the acquisition cost of any asset to the extent payable after the time of
acquisition or possession by the party liable where the deferred payment
is arranged primarily as a method of raising finance and the deferral is
for a period in excess of 180 days (and, for the avoidance of doubt, this
paragraph (e) shall not include trade debt);
(f) leases (in relation to real estate, plant and machinery or equipment), if
and to the extent that the lessee is required under standard accounting
practices or principles applicable to it to account for the value of the
lease as an asset and the lease payments as a liability;
(g) currency swap or interest swap, cap or collar arrangements or any
derivative instruments relating to such arrangements; and
(h) any guarantee, indemnity or similar legally binding assurance against
financial loss of any person in each case in respect of any of the types
of obligation referred to in paragraphs (a) - (g) above.
"French Francs"
-------------
means the lawful currency for the time being of France.
"Group"
-----
means the Parent and its Subsidiaries.
6
"Interest Period"
---------------
means each period determined in accordance with Clause 8 (Interest Periods).
"LIBOR"
-----
means, in relation to a Loan denominated in a currency other than Sterling:-
(a) the rate per annum of the offered quotation for deposits in the currency
of that Loan for a period comparable to the relevant Interest Period which
appears on Telerate Page 3750 or Telerate Page 3740, as the case may be,
at or about 11.00 a.m. on the applicable Rate Fixing Day; or
(b) if no such offered quotation appears on Telerate Page 3750 or Telerate
Page 3740, as the case may be, at or about such time, the arithmetic mean
(rounded upwards, if necessary, to four decimal places) of the offered
quotations for deposits in the currency of that Loan for a period
comparable to the relevant Interest Period which appears on the Reuters
Screen LIBO (in the case of Dollars) or the relevant page (if any) for any
other currency at or about 11.00 a.m. on the applicable Rate Fixing Day;
or
(c) if no such offered quotation appears on the Telerate Page 3750 or Telerate
Page 3740, as the case may be, and one only or no such offered quotation
appears on the relevant Page of the Reuters Screen at or about 11.00 a.m.
on the applicable Rate Fixing Day (or if there is no relevant Page on the
Reuters Screen), the arithmetic mean (rounded upwards, if necessary, to
four decimal places) of the per annum rates, as supplied to the Agent at
its request, quoted by each Reference Bank to leading banks in the London
interbank market at or about 11.00 a.m. on the applicable Rate Fixing Day
for the offering of deposits in the currency of that Loan in an amount
comparable to its participation in that Loan and for a period equal to the
relevant Interest Period.
For the purposes of this definition, "Telerate Page 3750" means the display
------------------
designated as "Page 3750", and "Telerate Page 3740" means the display designated
------------------
as "Page 3740", on the Telerate Service (or such other page as may replace Page
3750 or Page 3740, as the case may be, on that service or such other service as
may be nominated by the British Bankers' Association as the information vendor
for the purpose of displaying British Bankers' Association Interest Settlement
Rates for deposits in the relevant currency).
7
"Loan"
----
means, subject to Clauses 8 (Interest Periods) and 11 (Amount of Optional
Currencies), the principal amount of each borrowing by the Borrowers under this
Agreement or the principal amount outstanding of that borrowing.
"Majority Banks"
--------------
means, at any time, Banks:-
(a) whose participations in the Loans then outstanding aggregate at least 67
per cent. (or, for the purposes of Clause 21.16 (Acceleration), 51 per
cent.) of all the Loans then outstanding; or
(b) if there are no Loans then outstanding, whose Commitments then aggregate
at least 67 per cent. (or, for the purposes of Clause 21.16
(Acceleration), 51 per cent.) of the Total Commitments; or
(c) if there are no Loans then outstanding and the Total Commitments have been
reduced to nil, whose Commitments aggregated at least 67 per cent. (or,
for the purposes of Clause 21.16 (Acceleration), 51 per cent.) of the
Total Commitments immediately before the reduction.
"Margin"
------
Means 0.50 per cent. per annum.
"Material Subsidiary"
-------------------
means, at any time, a member of the Group:-
(a) whose total assets as shown in its latest audited accounts (consolidated
if it itself has Subsidiaries) exceed three per cent. of Consolidated
Total Assets at that time; and/or
(b) whose turnover as shown in its latest audited accounts (consolidated if it
itself has Subsidiaries) exceeds three per cent. of the turnover of the
Group as shown in the Parent's latest audited consolidated accounts
adjusted to reflect turnover of any company which has since become or
ceased to be a member of the Group.
PROVIDED THAT if, at any time, either
(i) the aggregate of the total assets of all the Material Subsidiaries at that
time is not at least 75 per cent. of Consolidated Total Assets; or
8
(ii) the aggregate turnover of all the Material Subsidiaries as
shown in their latest audited accounts is not at least 75 per
cent. of the turnover for the Group as shown in the Parent's
latest audited consolidated accounts, adjusted as aforesaid,
then every member of the Group shall be a Material Subsidiary.
"MLA Cost"
-------
means the cost imputed to a Bank whose Facility Office is in the
United Kingdom of compliance with the Mandatory Liquid Assets
requirements of the Bank of England during an Interest Period for a
Loan maintained in Sterling, expressed as a rate per annum and
determined in accordance with Schedule 3.
"Novation Certificate"
--------------------
has the meaning given to it in Clause 29.3 (Procedure for
novations).
"Obligor"
-------
means the Parent or any Borrower.
"Optional Currency"
-----------------
means the Agreed Optional Currencies and any other currency with the
exception of Dollars.
"Original Dollar Amount"
----------------------
in relation to a Loan, means:-
(a) if that Loan is denominated in Dollars, the amount of that
Loan; or
(b) if that Loan is denominated in an Optional Currency, the
equivalent in Dollars of the amount of that Loan if it had
first been drawn down and had remained denominated in Dollars.
"Original Group Accounts"
-----------------------
means the audited consolidated accounts of the Group for the year
ended December, 1991 and the unaudited consolidated income
statements of the Group for the six months ended 30th June, 1992.
"Party"
-----
means a party to this Agreement.
9
"Rate Fixing Day"
---------------
means the second Business Day before the first day of an Interest
Period for a Loan.
"Reference Banks"
---------------
means, subject to Clause 29.4 (Reference Banks), the principal
London offices of Banque Nationale de Paris, P.L.C., Commerzbank
International S.A. and Union Bank of Switzerland.
"Reg D Cost"
----------
means, in relation to each Bank which is for the time being required
under regulations of the Board of Governors of the Federal Reserve
System of the United States to maintain reserves with respect to
liabilities or assets consisting of Euro Currency Liabilities (as
such term is defined in Regulation D) and in respect of each Loan
which is denominated in Dollars, a rate per annum equal at all times
to the remainder obtained by subtracting (1) LIBOR for the Interest
Period for such Loan from (2) the rate obtained by dividing such
LIBOR by a percentage equal to one hundred per cent. minus the
Eurodollar Rate Reserve Percentage of such Bank for such Interest
Period. Such rate shall be determined by such Bank and notified to
the relevant Borrower by the Agent. The "Eurodollar Rate Reserve
Percentage" of any Bank for any Interest Period for a Loan means the
reserve percentage applicable during such Interest Period (or if
more than one such percentage shall be so applicable, the daily
average of such percentages for those days in such Interest Period
during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of
the Federal Reserve System of the United States for determining the
maximum reserve requirement (including any marginal, supplemental or
emergency reserve requirement) for such Bank with respect to
liabilities or assets consisting of Eurocurrency Liabilities having
a term equal to such Interest Period.
"Request"
-------
means a request made by a Borrower for a Loan, substantially in the
form of Schedule 4.
"Repayment Date"
--------------
means each date on which the Total Commitments are to be reduced in
accordance with Clause 6.2 (Reduction in Total Commitments).
10
"Reserve Asset Costs"
-------------------
means:
(a) in relation to a Loan denominated in Sterling for any Interest
Period, the MLA Cost calculated for that Interest Period in
respect of that Loan; and
(b) in relation to a Loan denominated in Dollars for any Interest
Period the Reg D Cost calculated for that Interest Period in
respect of that Loan.
"Security Interest"
-----------------
means any mortgage, pledge, lien, charge, assignment by way of
security, hypothecation or security interest or any other agreement
or arrangement having the effect of conferring security.
"Sterling"
--------
means the lawful currency for the time being of the United Kingdom.
"Subsidiary"
----------
means a subsidiary within the meaning of the Swedish Companies Act
(1975:1385).
"Swiss Francs"
------------
means the lawful currency for the time being of Switzerland.
"Tax on Overall Net Income"
-------------------------
of a Bank shall be construed as a reference to tax (other than tax
deducted or withheld from any amounts paid or payable hereunder)
imposed on that Bank by the jurisdiction under the laws of which it
has been incorporated or in which its Facility Office is located on
(1) the net income, profits or gains of that Bank worldwide or
(2) such of the net income, profits or gains of that Bank as are
considered to arise in or to relate to or are taxable in that
jurisdiction.
"Term Date"
---------
means the date falling one month prior to the Final Repayment Date.
"Total Commitments"
-----------------
means the aggregate of the Commitments of all the Banks to the
extent not reduced in accordance with Clause 6.2 (Reduction in Total
Commitments) or otherwise cancelled hereunder.
11
"Total Outstandings"
------------------
means, at any time, the aggregate Original Dollar Amount of all
Loans then outstanding.
"Yen"
---
means the lawful currency for the time being of Japan.
1.2 Construction
------------
(a) In this Agreement, unless the contrary intention appears, a
reference to:-
(i) "assets" includes properties, revenues and rights of every
------
description;
an "authorisation" includes an authorisation, consent,
-------------
approval, resolution, licence, exemption, filing and
registration;
a "month" or a period of "months" is a reference to a period
-----
starting on one day in a calendar month and ending on the
numerically corresponding day in the relevant later calendar
month, except that if there is no numerically corresponding
day in that later month, that period shall end on the last
Business Day in that calendar month;
a "regulation" includes any regulation, rule, official
----------
directive, request or guideline (whether or not having the
force of law but, if not, being of a kind with which it is
customary for companies within the relevant industry to
comply) of any governmental body, agency, department or
regulatory, self-regulatory or other authority or
organisation;
(ii) a provision of law is a reference to that provision as amended
or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a
schedule to this Agreement;
(iv) a person includes its successors, transferees and assigns;
(v) a Finance Document or another document is a reference to that
Finance Document or other document as amended, novated or
supplemented; and
(vi) a time of day is a reference to London time.
12
(b) Unless the contrary intention appears, a term used in any other
Finance Document or in any notice given under or in connection with
any Finance Document has the same meaning in that Finance Document
or notice as in this Agreement.
(c) The index to and the headings in this Agreement are for convenience
only and are to be ignored in construing this Agreement.
(d) Words importing the singular shall include the plural and vice
versa.
2. COMMITMENTS AND NATURE OF OBLIGATIONS
-------------------------------------
2.1 Statement of Commitments
------------------------
Subject to the terms of this Agreement, each Bank agrees to make
Loans in Dollars or an Optional Currency up to an aggregate Original
Dollar Amount not exceeding its Commitment.
2.2 Maximum Amounts
---------------
Notwithstanding any other provision of this Agreement, save as
provided in Clause 11.2(c), the Total Outstandings may not, at any
time, exceed the Total Commitments at that time.
2.3 Obligations several
-------------------
The obligations of each Bank under this Agreement are several.
Failure of a Bank to carry out its obligations hereunder shall not
relieve any other party hereto of any of its obligations hereunder.
No Bank shall be responsible for the obligations of any other Bank
hereunder.
2.4 Rights several
--------------
The obligations of each Borrower towards the Agent and the Banks
hereunder are given to each of them as separate and independent
rights. Each Bank may, except as otherwise stated in this
Agreement, separately enforce its rights hereunder.
2.5 Additional Borrowers
--------------------
The Borrowers' Agent may, with the prior written consent of the
Majority Banks, at any time during the term of this Agreement,
notify the Agent that one of the Parent's Subsidiaries incorporated
in Sweden or the United States of America (or elsewhere, with the
consent of all the Banks) is to be designated as an Additional
Borrower, guaranteed by the Parent. Such notice shall be in writing
and signed on behalf of the Borrowers' Agent and on behalf of the
Subsidiary concerned and shall take effect in accordance with its
terms provided that:
13
(a) the Additional Borrower enters into a Deed of Accession with
the Agent on behalf of the Banks in the form of Schedule 6
together with such amendments as the Agent, acting in
accordance with the directions of the Majority Banks, may
reasonably require; and
(b) the Additional Borrower, before entering into such a Deed of
Accession, has fulfilled all appropriate conditions precedent
as notified to the Borrowers' Agent in the Banks' written
consent to the satisfaction of the Agent or as otherwise
agreed by the Banks.
2.6 Approved Additional Borrowers
-----------------------------
The Subsidiaries listed in Schedule 7 shall (subject to
sub-paragraphs (a) and (b) of Clause 2.5 (Additional Borrowers)) be
deemed to be approved by all the Banks as Additional Borrowers.
2.7 Borrowers' Agent
----------------
Each Borrower by its execution of this Agreement or, as the case may
be, of a Deed of Accession irrevocably authorises the Borrowers'
Agent to give all notices and instructions and make such agreements
expressed to be capable of being given or made by the Borrowers
herein notwithstanding that they may affect such Borrower without
further reference to or the consent of such Borrower and such
Borrower shall, as regards the Agent and each Bank, be bound thereby
as though such Borrower itself had agreed such change or given such
notice or made such agreement.
2.8 Choice of Facility Office
-------------------------
Each Bank agrees (but without accepting any legal liability) that,
when selecting the Facility Office(s) through which it will perform
all or any of its obligations under this Agreement relating to an
Additional Borrower, it shall use reasonable efforts to minimise the
taxation and other costs (other than Reserve Asset Costs) for the
Additional Borrower arising from such selection PROVIDED THAT such
Bank shall not be required to select a particular Facility Office or
to take any other steps if, in its bona fide opinion, such selection
or such steps would or might have an adverse effect upon its
business, operations or financial condition.
3. PURPOSE
-------
The Borrower shall apply each Loan towards its general corporate
purposes including the refinancing of existing debt. Without
affecting the obligations of the Borrower in any way, no Finance
Party is bound to monitor or verify the application of any Loan.
14
4. CONDITIONS PRECEDENT
--------------------
4.1 Documentary conditions precedent
--------------------------------
The obligations of each Finance Party to any Obligor under this
Agreement are subject to the condition precedent that the Agent has
notified the Parent and the Banks that it has received all of the
documents set out in Schedule 2 in form and substance satisfactory
to the Agent. The Agent will give the Borrower such notification
promptly upon receipt of such documents.
4.2 Further conditions precedent
----------------------------
The obligations of each Bank to advance any amount under Clause 5.3
(Participations) or 11 (Amount of Optional Currencies) are (unless
all of the Banks otherwise agree in any particular case) subject to
the further conditions precedent that on both the date of the
Request (if applicable) and the date on which the relevant amount is
to be advanced:
(a) the representations and warranties in Clause 19
(Representations and warranties) to be repeated on those dates
are correct and will be correct immediately after the advance;
and
(b) no Default is outstanding or would result from the advance.
5. DRAWDOWN
--------
5.1 Commitment
----------
Subject to the terms of this Agreement, Loans will be made to each
Borrower at any time when requested by the Borrower.
5.2 Requests
--------
(a) Whenever a Borrower desires a Loan to be made available to it, it
shall give a Request in writing to the Agent, appropriately
completed, to be received not later than 10.00 a.m. (London time) on
the fourth (in the case of a Loan to be denominated in Dollars or an
Agreed Optional Currency during the first Interest Period) or the
fifth (in the case of a Loan to be denominated in a currency other
than Dollars or an Agreed Optional Currency during the first
Interest Period) Business Day prior to the proposed Drawdown Date of
such Loan (or such other time as the Borrower may agree with the
Banks), specifying in respect of such Loan:
(i) the proposed Drawdown Date (being a Business Day during the
Commitment Period);
(ii) the Original Dollar Amount of such Loan which shall be a
minimum of $5,000,000 and an integral multiple of $1,000,000;
15
(iii) the currency in which such Loan is to be denominated for the
first Interest Period determined in accordance with Clause 10
(Selection of Optional Currencies);
(iv) the first Interest Period for such Loan determined in
accordance with Clause 8 (Interest Periods);
(v) the payment instructions in compliance with Clause 12
(Payments).
(b) Subject to the terms of this Agreement, each Request shall be
irrevocable and the Borrower shall be bound to accept the Loan in
accordance with the Request. The Agent shall promptly notify each
Bank of each Request and, if the Loan is to be denominated in an
Agreed Optional Currency, the Optional Currency amounts (and the
applicable Agent's Spot Rate of Exchange) in accordance with Clause
11.1 (Drawdowns). No Borrower may serve a Request until the Agent
has confirmed to the Parent and the Banks that the conditions
precedent set out in Clause 4.1 (Conditions Precedent) have been
satisfied. Loans may not be in more than five currencies at any one
time. Each Request must specify one Loan only, but the Borrower
may, subject to the other terms of this Agreement, deliver more than
one Request on any one day.
5.3 Participations
--------------
Subject to the terms of this Agreement, each Bank shall on the
proposed Drawdown Date make available to the Agent the amount of its
participation in the Loan concerned in the proportion its Commitment
bears to the Total Commitments.
6. REPAYMENT
---------
6.1 Repayment
---------
Subject to Clauses 6.2 (Reduction in Total Commitments) and 7
(Prepayment and Cancellation), the Borrower shall repay each Loan in
the currency in which it is denominated in full on the Final
Repayment Date.
6.2 Reduction in Total Commitments
------------------------------
On each date set out below, the Total Commitments shall be
automatically and irrevocably reduced by the amount set out opposite
that date (such reduction to be applied pro rata to each Bank's
Commitment):
Date Amount of reduction in
---- ----------------------
Total Commitments
-----------------
11th May, 1996 $25,000,000
11th May, 1997 $25,000,000
16
7. PREPAYMENT AND CANCELLATION
---------------------------
7.1 Voluntary Prepayment
--------------------
The Borrower may at any time, by giving not less than five Business
Days' prior written notice to the Agent, prepay (without premium or
penalty) any Loan on the last day of an Interest Period for that
Loan in whole or in part (but, if in part, in an integral multiple
of an Original Dollar Amount of $5,000,000).
7.2 Voluntary Cancellation
----------------------
The Borrower may, by giving not less than 30 days' prior written
notice to the Agent, cancel in whole or in part the undrawn amount
of the Total Commitments (but, if in part, in an integral multiple
of an Original Dollar Amount of $5,000,000).
7.3 Additional right of prepayment and cancellation
-----------------------------------------------
If:-
(a) a Borrower is required to pay to a Bank any additional amounts
under Clause 13 (Taxes); or
(b) a Borrower is required to pay to a Bank any amount under
Clause 15 (Increased costs); or
(c) interest on a Bank's participation in a Loan is being
calculated in accordance with Clause 14.4(c) (Alternative
basis for outstanding Loans),
then, without prejudice to the obligations of the Borrower under
those Clauses, the Borrower's Agent may, whilst the circumstances
continue or within thirty days after receipt of notice from that
Bank or the Agent of the relevant event within paragraph (a), (b) or
(c) above (whichever is the later), serve a notice of prepayment and
cancellation on that Bank through the Agent. On the date falling
five Business Days after the date of service of the notice:-
(i) the Borrowers shall prepay that Bank's participation in all
the Loans; and
(ii) that Bank's undrawn Commitment shall be cancelled.
7.4 Miscellaneous provisions
------------------------
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Banks promptly of receipt
of any such notice.
17
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid.
(c) No prepayment or cancellation is permitted except in accordance with
the express terms of this Agreement.
(d) Any amount of any Loan prepaid under this Agreement may subsequently
be re-borrowed. No amount of the Total Commitments cancelled under
this Agreement may subsequently be reinstated.
8. INTEREST PERIODS
----------------
8.1 Selection
---------
(a) The Borrower may select an Interest Period for a Loan in either the
relevant Request or, if the Loan has been borrowed, a notice
received by the Agent not later than 10.00 a.m. on the fourth
Business Day before the commencement of that Interest Period. Each
Interest Period for a Loan will commence on its Drawdown Date or the
expiry of its preceding Interest Period.
(b) Subject to the following provisions of this Clause 8 (Interest
Periods), each Interest Period will be one, three or six months.
(c) If the Borrower fails to select an Interest Period for an
outstanding Loan in accordance with paragraph (a) above, that
Interest Period will, subject to the other provisions of this Clause
8 (Interest Periods), be three months.
(d) No more than six Interest Periods of one month's duration may be
selected in any calendar year.
8.2 Non-Business Days
-----------------
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next
Business Day in that calendar month (if there is one) or the
preceding Business Day (if there is not).
8.3 Consolidation and splitting
---------------------------
(a) The number of Interest Periods current hereunder at any time with
different expiry dates shall not exceed 10.
(b) If the number of Interest Periods current hereunder with different
expiry dates reaches 10, the first Interest Period for any
additional Loan must end on the same day as an existing Interest
Period for another Loan for the same Borrower and both such Loans
shall thereafter (if in the same currency and subject to paragraph
(c) below) be consolidated.
18
(c) Subject to paragraph (a) above, the Borrower may, in any Request or
any notice given pursuant to Clause 8.1(a) above, split any Loan
(including any consolidated Loan) into two or more Loans (provided
that the Original Dollar Amount of each resulting Loan is a minimum
of $5,000,000).
8.4 No overrunning
--------------
If an Interest Period in respect of a Loan would otherwise overrun
the Final Repayment Date, it shall be shortened so that it ends on
the Final Repayment Date. The Agent may also shorten any Interest
Period for any Loan (and may redesignate any Loan as two Loans) to
ensure that the aggregate principal amount of Loans with an Interest
Period ending on a Repayment Date is at least equal to the amount to
be repaid on that Repayment Date.
8.5 Other adjustments
-----------------
The Agent and the Borrowers' Agent may, with the consent of the
Majority Banks, enter into such other arrangements as they may agree
for the adjustment of Interest Periods and the consolidation and/or
splitting of Loans.
8.6 Notification
------------
The Agent shall notify the Borrower, the Borrowers' Agent and the
Banks of the duration of each Interest Period promptly after
ascertaining its duration.
9. INTEREST
--------
9.1 Interest rate
-------------
The rate of interest on each Loan for each of its Interest Periods
is the rate per annum determined by the Agent to be the aggregate
of:-
(a) Margin;
(b) (i) in the case of all Loans other than a Sterling Loan,
LIBOR; or
(ii) in the case of a Sterling Loan, EIBOR; and
(c) Reserve Asset Costs when applicable to such Loan.
9.2 Due dates
---------
Except as otherwise provided in this Agreement, accrued interest on
each Loan is payable by the Borrower on the last day of each
Interest Period for that Loan.
19
9.3 Default interest
----------------
(a) If an Obligor fails to pay any amount payable by it under this
Agreement, it shall forthwith on demand by the Agent pay interest on
the overdue amount from the due date up to the date of actual
payment, as well after as before judgment, at a rate (the "default
-------
rate") determined by the Agent to be one per cent. per annum above:-
----
(i) if the overdue amount is of principal and an Interest Period
relative thereto is still current, the rate applicable to such
overdue amount under Clause 9.1 (Interest rate) during such
Interest Period; and
(ii) in any other case, the rate which would have been payable if
the overdue amount had, during the period of non-payment,
constituted a Loan in the currency of the overdue amount for
such successive Interest Periods of such duration as the Agent
may determine (each a "Designated Interest Period").
--------------------------
(b) The default rate will be determined by the Agent on each Business
Day or two Business Days before the first day of the relevant
Designated Interest Period, as appropriate.
(c) If the Agent determines that deposits in the currency of the overdue
amount are not at the relevant time being made available by the
Reference Banks to leading banks in the relevant interbank market,
the default rate will be determined by reference to the weighted
average of the cost of funds to the Banks from whatever sources they
may select.
(d) Default interest will be compounded at the end of each Designated
Interest Period.
9.4 Notification
------------
The Agent shall promptly notify the Borrower, the Borrowers' Agent
and each Bank of the determinstion of a rate of interest under this
Agreement.
10. SELECTION OF OPTIONAL CURRENCIES
--------------------------------
10.1 Availability
------------
A Borrower may not request that a Loan be denominated in an Optional
Currency (other than an Agreed Optional Currency) unless the Agent
has confirmed to the Borrower that the Optional Currency is readily
available and freely transferable in the London foreign exchange
market.
20
10.2 Selection
---------
(a) The Borrower may select the currency of a Loan for an Interest
Period in the relevant Request. Each Loan shall be denominated in
only one currency.
(b) The Borrower may not choose a currency if as a result the Loans
would be denominated at any one time in more than five currencies.
10.3 Revocation of currency
----------------------
Notwithstanding Clause 10.1 (Availability), if before 10.00 a.m. on
the fourth Business Day before the commencement of an Interest
Period, the Agent receives notice from a Bank that:-
(a) it is impracticable for the Bank to fund or make its
participation in the Loan in the relevant Optional Currency
(other than an Agreed Optional Currency) during that Interest
Period for reasons affecting the London interbank market
generally; or
(b) the use of the proposed Optional Currency (other than an
Agreed Optional Currency) might contravene any law or
regulation,
the Agent shall give notice to the Borrower, the Borrowers' Agent
and to the Banks to that effect before 11.00 a.m. on that day and,
unless the Borrower, the Borrowers' Agent and the Banks agree
otherwise, the Loan shall be denominated in Dollars during that
Interest Period.
11. AMOUNT OF OPTIONAL CURRENCIES
-----------------------------
11.1 Drawdowns
---------
If a Loan is to be drawn down in an Optional Currency, the amount of
each Bank's participation in that Loan will be determined by
converting into that Optional Currency the Bank's participation in
the Original Dollar Amount of that Loan on the basis of the Agent's
Spot Rate of Exchange four Business Days before its Drawdown Date.
11.2 Calculation for each Interest Period
------------------------------------
(a) If a Loan is denominated in an Optional Currency, prior to the end
of each of its Interest Periods, there shall be calculated the
difference between the amount of such Loan (in that Optional
Currency) for the current Interest Period and for the next Interest
Period. The amount of such Loan for the next Interest Period will
be determined by notionally converting into that Optional Currency
the Original Dollar Amount of such Loan on the basis of the Agent's
Spot Rate of Exchange four Business Days before the commencement of
that Interest Period.
21
(b) At the end of the current Interest Period (but subject always to
paragraph (c) below):-
(i) if the amount of such Loan for the next Interest Period is
less than for the preceding Interest Period, the Borrower
shall repay the difference; or
(ii) if the amount of such Loan for the next Interest Period is
greater, each Bank shall forthwith make available to the Agent
for the Borrower its participation in the difference.
(c) If the Agent's Spot Rate of Exchange for the next Interest Period
shows an appreciation or depreciation of the Optional Currency
against Dollars of less than five per cent. when compared with the
Original Exchange Rate, no amounts are payable in respect of the
difference. In this Clause 11 (Amount of Optional Currencies)
"Original Exchange Rate" means the Agent's Spot Rate of Exchange
used for determining the amount of the Optional Currency for the
Interest Period which is the later of the following:-
(i) the Interest Period during which such Loan was first
denominated in that Optional Currency if such Loan has since
then remained denominated in that Optional Currency; and
(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this Clause 11.2.
11.3 Prepayments and Repayments
--------------------------
If a Loan is to be repaid or prepaid by reference to an Original
Dollar Amount, the amount actually to be repaid or prepaid in the
relevant Optional Currency shall be determined by applying to the
relevant part of the Original Dollar Amount to be repaid or prepaid
the Agent's Spot Rate of Exchange last used for determining the
Optional Currency amount of that Loan under this Clause 11 (Amount
of Optional Currencies) or, if applicable, the Original Exchange
Rate.
11.4 Notification
------------
Except for Optional Currency amounts for a Loan to be drawn down in
an Agreed Optional Currency of which the Agent shall notify the
Banks in accordance with Clause 5.2 (Requests), the Agent shall
notify the Banks, the Borrower and the Borrowers' Agent of Optional
Currency amounts (and the applicable Agent's Spot Rate of Exchange)
promptly after they are ascertained.
12. PAYMENTS
--------
12.1 Place
-----
All payments by an Obligor or a Bank under this Agreement shall be
made to the Agent to its account at such office or bank as it may,
22
at least three Business Days prior to the due date of such payment,
notify to that Obligor or Bank for this purpose.
12.2 Funds
-----
Payments under this Agreement to the Agent shall be made for value
on the due date at such times and in such funds as are customary at
the time for the settlement of transactions in the relevant currency
in the place for payment.
12.3 Distribution
------------
(a) Each payment received by the Agent under this Agreement for another
Party shall, subject to paragraphs (b) and (c) below, be made
available by the Agent to that Party by payment (on the date and in
the currency and funds of receipt) to its account with such office
or bank in the principal financial centre of the country of the
relevant currency as it may notify to the Agent for this purpose by
not less than five Business Days' prior notice.
(b) The Agent may apply any amount received by it for a Borrower in or
towards payment (on the date and in the currency and funds of
receipt) of any amount due from such Borrower under this Agreement
or in or towards the purchase of any amount of any currency to be so
applied.
(c) Where a sum is to be paid to the Agent under this Agreement for
another Party, the Agent is not obliged to pay that sum to that
Party until it has established that it has actually received that
sum. The Agent may, however, assume that the sum has been paid to
it in accordance with this Agreement, and, in reliance on that
assumption, make available to that Party a corresponding amount. If
the sum has not been made available but the Agent has paid a
corresponding amount to another Party, that Party shall forthwith on
demand by the Agent refund the corresponding amount together with
interest on that amount from the date of payment to the date of
receipt, calculated at a rate determined by the Agent to reflect its
cost of funds.
12.4 Currency
--------
(a) A repayment or prepayment of a Loan or any part of a Loan is payable
in the currency in which the Loan is denominated.
(b) Interest is payable in the currency in which the relevant amount in
respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses and taxes and the like
are payable in the currency in which they are incurred.
(d) Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Dollars.
23
12.5 Set-off and counterclaim
------------------------
All payments made by an Obligor under this Agreement shall be made
without set-off or counterclaim;
12.6 Non-Business Days
-----------------
(a) If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall instead be the
next Business Day in the same calendar month (if there is one) or
the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal
under this Agreement interest is payable on that principal at the
rate payable on the original due date.
12.7 Partial payments
----------------
(a) If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Obligors under this Agreement,
the Agent shall apply that payment towards the obligations of the
Obligors under this Agreement in the following order:-
(i) first, in or towards payment pro rata of any unpaid costs and
-----
expenses of the Agent under this Agreement;
(ii) secondly, in or towards payment pro rata of any accrued
--------
interest due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due
-------
but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due
--------
but unpaid under this Agreement.
(b) The Agent shall, if so directed by all the Banks, vary the order set
out in sub-paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above shall override any appropriation made
by an Obligor.
13. TAXES
-----
13.1 Gross-up
--------
All payments by an Obligor under the Finance Documents shall be made
without any deduction and free and clear of and without deduction
for or on account of any taxes (other than Taxes on Overall Net
Income), except to the extent that the Obligor is required by law to
make payment subject to any taxes. If any tax or amounts in respect
of tax must be deducted, or any other deductions for or on account
of any taxes must be made, from any amounts payable or paid by an
24
Obligor, or paid or payable by the Agent to a Bank, under the
Finance Documents, the Obligor shall (subject to Clause 13.2(c)) pay
such additional amounts as may be necessary to ensure that the
relevant Bank receives a net amount equal to the full amount which
it would have received had payment not been made subject to tax.
13.2 Forms
-----
(a) To the extent that at that time any Bank is entitled to complete or
partial, as the case may be, exemption from deduction or withholding
for or on account of any taxes with respect to all payments to be
made by any Obligor under the Finance Documents merely by completing
certain forms, that Bank agrees, upon request by such Obligor, to
execute and deliver to such Obligor, such forms, if they are
required by law or are such as the Obligor may reasonably request.
Further, if COBE becomes an Additional Borrower, each Bank which is
organised under the laws of a jurisdiction outside the United States
of America hereby agrees (insofar as it can lawfully do so):
(i) within 10 days after the date on which COBE becomes an
Additional Borrower to deliver to COBE and the Agent:-
(aa) for the office, if any, identified with such Bank's
signature which is located in the United States of
America, two accurate and complete, original signed
copies of Internal Revenue Service Form 4224 or any
successor thereto ("Form 4224"); or
(bb) for the office, if any, identified with such Bank's
signature below which is located outside the United
States of America, two accurate and complete, original
signed copies of Internal Revenue Service Form 1001 or
any successor thereto ("Form 1001"),
in each case indicating that such Bank is on the date hereof
entitled to receive all payments under this Agreement through
such office free from withholding of US federal income tax;
and
(ii)
before or promptly after the occurrence of any event
(including the passage of time or the designation of an
Additional Borrower) requiring the delivery of an additional
or replacement Form 4224 or 1001 to deliver to COBE and the
Parent, upon the request of COBE, the Parent or the Agent, (if
delivery of the same be lawful under then applicable law), two
accurate and original signed copies of Form 4224 or 1001 in
addition to or replacement for the forms previously delivered
by such Bank claiming an exemption from withholding tax or the
greatest reduction of withholding tax available under then
applicable law.
25
(b) Each Bank agrees that, to the extent any form claiming or otherwise
establishing complete or partial exemption from withholding and
deduction of taxes delivered under this Agreement is incomplete or
incorrect in any material respect when delivered or thereafter, such
Bank shall execute and deliver complete and correct replacement
forms.
(c) If a Bank fails to comply with paragraph (a) above, such Obligor
shall not be obliged to pay additional amounts under Clause 13.1
(Gross-up) in respect of any deduction for or on account of taxes
that would not have been made had such Bank complied.
13.3 Tax receipts
------------
All taxes required by law to be deducted or withheld by an Obligor
from any amounts paid or payable under the Finance Documents shall
be paid by the relevant Obligor when due and the Obligor shall, as
soon as reasonably practicable after the payment is made, deliver to
the Agent for the relevant Bank evidence satisfactory to that Bank
(including all relevant tax receipts (or similar evidence) or copies
thereof) that the payment has been duly remitted to the appropriate
authority.
13.4 Tax credits
-----------
(a) If, following the payment by any Obligor of any additional amounts
under Clause 13.1 (Gross-up), the Agent or any Bank shall determine
that it has received or been granted a credit against or remission
for any taxes payable by it, the Agent or such Bank shall reimburse
such Obligor with such amount as the Agent or such Bank shall in its
absolute discretion certify to be the proportion of such credit or
remission (if any) as will leave the Agent or such Bank (after such
reimbursement) in no worse position than it would have been in had
the relevant deduction or withholding not been made. Such
reimbursement shall be made promptly upon the Agent or such Bank
making any such determination.
(b) Nothing in paragraph (a) above shall:
(i) require the Agent or any Bank to disclose to any Obligor any
details of its tax affairs;
(ii) interfere with the right of the Agent or any Bank to arrange
its tax affairs in whatever manner it thinks fit; and
(iii) neither the Agent nor any Bank shall be under any obligation
to claim relief in respect of any payment under Clause 13.1 in
priority to any other reliefs, claims or credits available to
it.
26
14. MARKET DISRUPTION
-----------------
14.1 Absence of quotations
---------------------
If the Agent requests a quotation from the Reference Banks and a
Reference Bank does not supply an offered rate by 1.00 p.m. on a
Rate Fixing Day, the applicable LIBOR or EIBOR (as the case may be)
shall, subject to Clause 14.2 (Market disruption), be determined on
the basis of the quotation of the other Reference Banks.
14.2 Market disruption
-----------------
If, on or prior to a Rate Fixing Day:-
(a) the Agent requests a quotation from the relevant Reference
Banks and two of those Reference Banks do not supply an
offered rate by 1.00 p.m. on a Rate Fixing Day; or
(b) the Agent determines that adequate and fair means do not exist
for ascertaining LIBOR or EIBOR (as the case may be); or
(c) the Agent receives notification from Banks whose
participations in a Loan exceed 50 per cent. of that Loan
that, in their opinion:-
(i) matching deposits are not available to them in the
relevant interbank market in the ordinary course of
business to fund their participations in that Loan for
the relevant Interest Period; or
(ii) the cost to them of obtaining matching deposits in the
relevant interbank market would be in excess of LIBOR or
EIBOR (as the case may be) for the relevant Interest
Period,
the Agent shall promptly notify the Borrower, the Borrowers' Agent
and the Banks of the fact and that this Clause 14 (Market
Disruption) is in operation.
For the purposes of this Clause, "relevant interbank market" means:
(1) in the case of all Loans other than a Sterling Loan, London;
and
(2) in the case of a Sterling Loan, such interbank market outside
the United Kingdom as a Bank may reasonably select for the
purposes of funding its participation.
14.3 Suspension of drawdowns
-----------------------
If a notification under Clause 14.2 (Market disruption) applies to a
Loan which has not been made, the Borrowers' Agent may (by notice to
27
the Agent) elect that the Loan shall not be made. If the Borrowers'
Agent does not so elect and such Loan is made, Clause 14.4 shall
apply thereto. If the Borrowers' Agent does so elect, the
Borrowers' Agent and the Agent shall, within five Business Days of
the relevant Rate Fixing Day, enter into negotiations for a period
of not more than 30 days with a view to agreeing an alternative
basis for the borrowing of that and any future Loan made while such
circumstances continue. Any alternative basis agreed shall be, with
the prior consent of all the Banks, binding on all the Parties.
14.4 Alternative basis for outstanding Loans
---------------------------------------
If a notification under Clause 14.2 (Market disruption) applies to a
Loan which is (or, by virtue of the Borrowers' Agent not making an
election under Clause 14.3 (Suspension of drawdowns), which has
become) outstanding, then, notwithstanding any other provision of
this Agreement:-
(a) within five Business Days of receipt of the notification, the
Borrowers' Agent and the Agent shall enter into negotiations
for a period of not more than 30 days with a view to agreeing
an alternative basis for determining the rate of interest
and/or funding applicable to that Loan and/or any other Loans
denominated or to be denominated in the currency of that Loan;
(b) any alternative basis agreed under paragraph (a) above shall
be, with the prior consent of all the Banks, binding on all
the Parties;
(c) if no alternative basis is agreed, each Bank shall (through
the Agent) certify on or before the last day of the Interest
Period to which the notification relates an alternative basis
for maintaining its participation in that Loan;
(d) any such alternative basis may include an alternative method
of fixing the interest rate, alternative Interest Periods or
alternative currencies but it must reflect the cost to the
Bank of funding its participation in the Loan from whatever
sources it may reasonably select plus the Margin plus any
applicable Reserve Asset Costs; and
(e) each alternative basis so certified shall be binding on the
Borrower, the Borrowers' Agent and the certifying Bank and
treated as part of this Agreement.
15. INCREASED COSTS
---------------
15.1 Increased costs
---------------
(a) Subject to Clause 15.2 (Exceptions), the relevant Borrower, or,
where the increased cost cannot be attributed to a particular Loan,
the Borrowers' Agent, shall, forthwith on demand by a Finance Party
28
to the Borrowers' Agent, pay to that Finance Party the amount of any
increased cost incurred by it as a result of:-
(i) any change after the date of this Agreement in, or in the
interpretation or application of, any law or regulation; or
(ii) compliance with any regulation made after the date of this
Agreement,
(including any law or regulation relating to reserve asset, special deposit,
cash ratio, liquidity or capital adequacy requirements or any other form of
banking or monetary control).
(b) In this Agreement "increased cost" means:-
--------------
(i) an additional cost incurred by a Finance Party as a result of
it having entered into, or performing, maintaining or funding
its obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by a Finance Party
in making, funding or maintaining all or any advances
comprised in a class of advances formed by or including its
participations in the Loans made or to be made under this
Agreement as is attributable to it making, funding or
maintaining those participations; or
(iii) a reduction in any amount payable to a Finance Party or the
effective return to a Finance Party under this Agreement on
its capital; or
(iv) the amount of any payment made by a Finance Party, or the
amount of any interest or other return foregone by a Finance
Party, on or in relation to any amount received or receivable
by that Finance Party from the Agent or an Obligor under this
Agreement.
(c) A Finance Party intending to make a claim under paragraph (a) above
shall, promptly upon its Facility Office becoming aware of an event
by reason of which it is entitled to do so and the possible results
thereof, notify the Agent, and the Agent shall promptly notify the
Borrower and the Borrowers' Agent, of such event.
15.2 Exceptions
----------
Clause 15.1 (Increased costs) does not apply to any increased cost:-
(a) compensated for by the payment of any Reserve Asset Costs;
(b) provided for by the operation of Clause 13 (Taxes); or
29
(c) attributable to any change in the rate of Tax on Overall Net
Income of a Bank (or tax on the overall net income of a
division or branch of the Bank).
16. ILLEGALITY
----------
If it becomes unlawful in any jurisdiction for a Bank to give effect
to any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Loan, then:-
(a) that Bank may notify the Borrowers' Agent through the Agent
accordingly; and
(b) (i) if so requested by that Bank through the Agent, the
Borrowers shall forthwith prepay that Bank's
participation in all Loans together with all other
amounts payable by the Borrowers to that Bank under this
Agreement; and
(ii) the Bank's undrawn Commitment shall forthwith be cancelled.
17. MITIGATION
----------
If, in respect of any Finance Party, circumstances arise which would
or would upon the giving of notice result in:
(i) the prepayment of its share of any outstanding Loans and the
cancellation of its Commitment pursuant to Clause 16
(Illegality); or
(ii) the payment of additional amounts for its account pursuant to
Clause 13.1 (Gross-up); or
(iii) a claim for payment pursuant to Clause 15.1 (Increased Costs),
or if payments are being made to a Finance Party pursuant to Clauses
13.1 (Gross-up) and 15.1 (Increased Costs), then, without in any way
limiting, reducing or otherwise qualifying the Obligors' obligations
hereunder (and, in particular, under any of the Clauses referred to
in sub-paragraphs (i), (ii), and (iii) above), such Finance Party
shall take such steps as such Finance Party in its bona fide opinion
considers appropriate to mitigate the effects of such circumstances
including (if such Bank considers it so appropriate) the transfer of
its Facility Office to another jurisdiction or the transfer of its
rights and obligations hereunder to another financial institution
willing to participate herein PROVIDED THAT such Finance Party shall
be under no obligation to take any such steps if, in its bona fide
opinion, such steps would have an adverse effect upon its business,
operations or financial condition.
30
18. GUARANTEE
---------
18.1 Guarantee
---------
The Parent irrevocably and unconditionally:-
(a) as principal obligor guarantees to each Finance Party prompt
payment by each Borrower (other than the Parent) of all
amounts payable by the Borrower under the Finance Documents;
(b) undertakes with each Finance Party that whenever a Borrower
(other than the Parent) does not pay any amount when due under
or in connection with any Finance Document, the Parent shall
forthwith on demand by the Agent pay that amount as if the
Parent instead of the relevant Borrower were expressed to be
the principal obligor; and
(c) agrees to indemnify each Finance Party on demand against any
loss or liability suffered by it if any obligation guaranteed
by the Parent is or becomes unenforceable, invalid or illegal.
18.2 Continuing guarantee
--------------------
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Borrowers (other than
the Parent) under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part.
18.3 Reinstatement
-------------
(a) Where any discharge (whether in respect of the obligations of any
Borrower or any security for those obligations or otherwise) is made
in whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of the Parent under this Clause 18 (Guarantee) shall
continue as if the discharge or arrangement had not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
18.4 Waiver of defences
------------------
The obligations of the Parent under this Clause 18 (Guarantee) will
not be affected by any act, omission, matter or thing which, but for
this provision, would reduce, release or prejudice any of its
obligations under this Clause 18 (Guarantee) or prejudice or
diminish those obligations in whole or in part, including (whether
or not known to it or any Finance Party):-
31
(a) any time or waiver granted to, or composition with, any
Borrower (other than the Parent) or other person;
(b) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any
Borrower (other than the Parent) or other person or any
non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to
realize the full value of any security;
(c) any incapacity or lack of powers, authority or legal
personality of or dissolution or change in the members or
status of a Borrower or any other person;
(d) any variation (however fundamental) or replacement of a
Finance Document or any other document or security so that
references to that Finance Document in this Clause 18
(Guarantee) shall include each variation or replacement;
(e) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security, to the intent that the Parent's
obligations under this Clause 18 (Guarantee) shall remain in
full force and its guarantee be construed accordingly, as if
there were no unenforceability, illegality or invalidity; or
(f) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of any
Borrower (other than the Parent) under a Finance Document
resulting from any insolvency, liquidation or dissolution
proceedings or from any law, regulation or order so that each
such obligation shall for the purposes of the Parent's
obligations under this Clause 18 (Guarantee) be construed as
if there were no such circumstance.
18.5 Immediate recourse
------------------
The Parent waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment
from any person before claiming from the Parent under this Clause 18
(Guarantee).
18.6 Appropriations
--------------
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or
agent on its behalf) may:-
32
(a) refrain from applying or enforcing any other moneys, security
or rights held or received by that Finance Party (or any
trustee or agent on its behalf) in respect of those amounts,
or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and
neither the Parent nor any Borrower shall be entitled to the
benefit of the same; and
(b) hold in a suspense account any moneys received from the Parent
or on account of the Parent's liability under this Clause 18
(Guarantee), which shall bear interest at such Finance Party's
best rate for comparable commercial deposits.
18.7 Non-competition
---------------
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been
irrevocably paid in full, the Parent shall not, after a claim has
been made or by virtue of any payment or performance by it under
this Clause 18 (Guarantee):-
(a) be subrogated to any rights, security or moneys held, received
or receivable by any Finance Party (or any trustee or agent on
its behalf) or be entitled to any right of contribution or
indemnity in respect of any payment made or moneys received on
account of the Parent's liability under this Clause 18
(Guarantee);
(b) claim, rank, prove or vote as a creditor of any Borrower
(other than the Parent) or its estate in competition with any
Finance Party (or any trustee or agent on its behalf); or
(c) receive, claim or have the benefit of any payment,
distribution or security from or on account of any Borrower
(other than the Parent), or exercise any right of set-off as
against any such Borrower.
The Parent shall hold in trust for and forthwith pay or transfer to
the Agent for the Finance Parties any payment or distribution or
benefit of security received by it contrary to this Clause 18.7.
18.8 Additional security
-------------------
This guarantee is in addition to and is not in any way prejudiced by
any other security now or subsequently held by any Finance Party.
19. REPRESENTATIONS AND WARRANTIES
------------------------------
19.1 Representations and warranties
------------------------------
Each Obligor makes the representations and warranties set out in
this Clause 19 (Representations and warranties) to each Finance
33
Party (subject in each case, however, to any qualifications as to
matters of law set out in any legal opinion delivered pursuant to
this Agreement).
19.2 Status
------
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation; and
(b) It has the power to own its assets and carry on its business as it
is being conducted.
19.3 Powers and authority
--------------------
It has the power to enter into and perform, and has taken all
necessary action to authorize the entry into, performance and
delivery of, the Finance Documents to which it is or will be a party
and the transactions contemplated by those Finance Documents.
19.4 Legal validity
--------------
Each Finance Document to which it is or will be a party constitutes,
or when executed in accordance with its terms will constitute, its
legal, valid and binding obligation enforceable in accordance with
its terms subject, however, to any limitations due to bankruptcy,
insolvency, liquidation, re-organization, limitation and other laws
of general application regarding or affecting the rights of
creditors and to general equitable principles.
19.5 Non-conflict
------------
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not:-
(a) conflict with any law or regulation or judicial or official
order; or
(b) conflict with its Articles of Association; or
(c) conflict with any document which is binding upon it or any of
its assets.
19.6 No default
----------
(a) No Default is outstanding or would result from the making of any
Loan; and
(b) no other event is outstanding which constitutes (or with the giving
of notice, lapse of time, determination of materiality or the
fulfilment of any other applicable condition or any combination of
the foregoing, might constitute) a default under any document which
34
is binding on it or any of its assets to an extent or in a manner
which would be likely to have a material adverse effect on its
ability to perform its obligations under this Agreement or on the
business or financial condition of the Group as a whole.
19.7 Authorisations
--------------
All authorisations required in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, the Finance Documents have been obtained or
effected (as appropriate) and are in full force and effect.
19.8 Accounts
--------
In the case of the Parent, the audited consolidated accounts of the
Group and the unaudited consolidated income statement of the Group
most recently delivered to the Agent (which, at the date of this
Agreement, are the Original Group Accounts):-
(i) have been prepared in accordance with accounting principles
and practices generally accepted in Sweden consistently
applied and, in the case of the audited consolidated accounts,
audited by an internationally recognized firm of accountants
or by Swedish public authorized accountants; and
(ii) fairly represent the consolidated financial condition of the
Group as at the date to which they were drawn up,
and there has been no material adverse change in the consolidated
financial condition of the Group, taken as a whole, since the date
to which those accounts were drawn up.
19.9 Litigation
----------
Except as set out in the Disclosure Letter, no litigation,
arbitration or administrative proceedings are current or, to its
knowledge, pending or threatened, which would, if adversely
determined, have a material adverse effect on the ability of any
Obligor to perform its obligations under this Agreement or the
business or financial condition of the Group as a whole.
19.10 Times for making representations and warranties
-----------------------------------------------
The representations and warranties set out in this Clause 19
(Representations and warranties) are made by each Obligor or the
Parent, as the case may be, on the date of this Agreement and (with
the exception of Clauses 19.6 (No default), 19.8 (Accounts) and 19.9
(Litigation)) are deemed to be repeated by each Obligor, on the date
of each Request, each Drawdown Date and on the first day of each
Interest Period, and by each Additional Borrower, on the date on
which its enters into a Deed of Accession, with reference to the
facts and circumstances then existing.
35
20. UNDERTAKINGS
------------
20.1 Duration
--------
The undertakings in this Clause 20 (Undertakings) remain in force
from the date of this Agreement for so long as any amount is or may
be outstanding under this Agreement or any Commitment is in force.
20.2 Financial Information
---------------------
The Parent shall supply to the Agent in sufficient copies for all
the Banks:-
(a) as soon as the same are available (and in any event within 180
days of the end of each of its financial years), the audited
consolidated accounts of the Group for that financial year:
and
(b) as soon as the same are available (and in any event within
120 days of the end of the first half-year of each of its
financial years), the unaudited consolidated income statement
of the Group for that half-year; and
(c) together with the accounts specified in paragraphs (a) and (b)
above, a certificate signed by two of its senior officers on
its behalf setting out in reasonable detail computations
establishing compliance with Clause 20.12 (Financial
covenants) as at the date to which those accounts were
drawn-up.
20.3 Information - Miscellaneous
---------------------------
The Parent shall (save to the extent that it considers that to do so
would be in violation of the applicable rules or requirements of the
Stockholm Stock Exchange or any other exchange on which its equity
or debt securities are listed) supply to the Agent:-
(a) all documents dispatched by it to its shareholders or creditors
generally at the same time as they are dispatched;
(b) promptly upon becoming aware of them, reasonable details of any
litigation, arbitration or administrative proceedings which are current,
threatened or pending, and which would, if adversely determined, have a
material adverse effect on the ability of any Obligor to perform its
obligations under this Agreement or on the business or financial
condition of the Group as a whole; and
(c) promptly, such further information in the possession or
control of the Parent regarding its financial condition and
operations (or the financial condition and operations of any
36
member of the Group) as the Agent, or any Bank through the
Agent, may reasonably request, in sufficient copies for all
of the Banks, if the Agent so requests.
20.4 Notification of Default
-----------------------
Each Obligor shall notify the Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon its becoming aware
of the same.
20.5 Compliance certificates
-----------------------
The Parent shall supply to the Agent:-
(a) together with the accounts specified in Clause 20.2(a) (Financial
information); and
(b) promptly at any other time, if the Agent so reasonably requests,
a certificate signed by two of its senior officers on its behalf
certifying that no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps, if any, being
taken to remedy it.
20.6 Authorisations
--------------
Each Obligor shall promptly obtain, maintain and comply with the
terms of any authorisation required under any law or regulation to
enable it to perform its obligations under, or for the validity or
enforceability of, any Finance Document.
20.7 Pari passu ranking
------------------
Each Obligor shall procure that its obligations under the Finance
Documents do and will rank at least pari passu with all its other
present and future unsecured and unsubordinated obligations, except
for obligations which are mandatorily preferred by law.
20.8 Negative pledge
---------------
(a) No Obligor shall, and the Parent shall procure that no other member
of the Group will, create or permit to subsist any Security Interest
on any of its assets.
(b) Paragraph (a) does not apply to:-
(i) any lien arising by operation of law in the ordinary course
of business and securing amounts not more than 30 days overdue;
37
(ii) any Security Interest created in connection with any loan or
credit granted, or guaranteed wholly or partially, by the
Swedish Export Credit Corporation or the Swedish Export
Credit Board or any other export credit or similar public
institution;
(iii) any Security Interest created in connection with any loan,
debt or other obligation (including an obligation under a
guarantee) of a member of the Group in respect of borrowed
money where the borrowed money is by its terms repayable not
more than 12 months after the date on which the member of
the Group assumes liability in respect thereof and the
purpose of the borrowed money is to meet the funding
requirements of that company in the ordinary course of
business;
(iv) any Security Interest over an asset acquired after the date
hereof which was not created in contemplation of such
acquisition and so long as the outstanding principal amount
secured thereby is not increased on or after the date of
that acquisition;
(v) any Security Interest created prior to the date of its
acquisition by a company which becomes a member of the Group
after the date hereof provided that such Security Interest
only secures Financial Indebtedness up to a stated maximum
principal amount and was not created in contemplation of
such acquisition and so long as the principal committed
amount (whether drawn or not) is not increased on or after
the date of that acquisition;
(vi) any Security Interest created in favour of persons providing
tender, performance, bid or similar bonds or guarantees
relating to or arising out of contracts undertaken in the
normal course of business by any members of the Group to
secure amounts which may become payable by those persons
pursuant to those bonds or guarantees (but not where those
bonds or guarantees are issued to facilitate the incurrence
of any Financial Indebtedness);
(vii) any Security Interest created in connection with any loan,
debt or other obligation (including an obligation under a
guarantee but in each case not having a maturity of longer
than twelve months from the date of its creation) of a
member of the Group in order to take advantage of interest
arbitrage and hedging opportunities where the assets secured
comprise cash or debt securities;
(viii) any Security Interest disclosed to the Agent prior to the
date hereof so long as the maximum principal amount that
could be secured thereby was approved by the Agent and is
not increased after the date hereof;
38
(ix) any Security Interest consented to by the Majority Banks; and
(x) any Security Interest over an asset which does not fall
within sub-paragraphs (i) - (ix) above PROVIDED THAT the
aggregate amount of all claims in respect of indebtedness
for a principal sum which are, at any time, outstanding and
secured by Security Interests created or existing in
reliance on sub-paragraphs (iii) or (x) does not exceed ten
per cent. of the Consolidated Total Assets at that time.
AND PROVIDED FURTHER that the aggregate amount of all claims
in respect of indebtedness for a principal sum which are, at
any time, outstanding and secured by any Security Interest
(other than a Security Interest created or existing in
reliance on sub-paragraphs (i) or (vii) above) do not exceed
twenty-five per cent. of the Consolidated Total Assets at
that time.
For the avoidance of doubt, any transaction which is
permitted under this Clause 20.8 shall be deemed not to be
prohibited under Clause 20.9 or 20.10.
20.9 Transactions similar to security
--------------------------------
No Obligor shall, and the Parent shall procure that no other member
of the Group will, except with the prior written consent of the
Majority Banks, sell, transfer or otherwise dispose of any of its
assets on terms whereby it is or may be leased to or re-acquired or
acquired by a member of the Group or any of its related entities
(save that this Clause 20.9 shall not prevent any such sales,
transfers or disposals being effected in relation to assets normally
sold in the course of the trade of the disposing entity (including
the sale with recourse of accounts receivable arising out of the
sale of such assets) nor to any transaction which is not entered
into primarily as a method of raising finance nor in relation to
assets with an aggregate market value of up to five per cent. of the
Consolidated Total Assets).
For the avoidance of doubt, any transaction which is permitted under
this Clause 20.9 shall be deemed not to be prohibited under Clause
20.8 or 20.10.
20.10 Disposals
---------
(a) No Obligor shall, and the Parent shall procure that no other member
of the Group will, except with the prior written consent of the
Majority Banks, either in a single transaction or in a series of
transactions, whether related or not and whether voluntarily or
involuntarily, sell, transfer, grant or lease or otherwise dispose
of all or any substantial part of its assets.
39
(b) Paragraph (a) does not apply to:-
(i) any disposal made by any Obligor in the ordinary course of trading;
(ii) any disposal of obsolete plant or equipment;
(iii) any disposal to another Obligor or another Subsidiary of an Obligor;
and
(iv) any other disposal not within sub-paragraphs (i)-(iii) above
where the value of the asset disposed of (when aggregated with
the value of all other assets disposed of in the same
financial year (not within sub-paragraphs (i)-(iii) above))
does not exceed 10 per cent. of Consolidated Total Assets.
For the avoidance of doubt, for the purposes of this
paragraph (iv), the value of an asset shall be equal to its
book value net of depreciation and other similar allowances.
For the avoidance of doubt, any transaction which is permitted
under this Clause 20.10 shall be deemed not to be prohibited
under Clause 20.8 or 20.9.
20.11 Change of business
------------------
The Parent shall procure that no substantial change is made to the
general nature or scope of the business of the Parent or the Group
taken as a whole from that carried on at the date of this Agreement.
20.12 Financial covenants
--------------------
(a) In this Clause 20.12:-
"Net Interest Expense"
----------------------
means, in relation to any twelve month period, consolidated interest
expense less consolidated interest income during that period.
"Operating Income"
------------------
means, in relation to any twelve month period, consolidated income
before taxes, plus any extraordinary or exceptional losses, less any
extraordinary or exceptional gains, plus minority expense less
minority income, plus interest expense less interest income, plus
foreign exchange losses less foreign exchange gains, plus any other
financial costs less any other financial income during that period.
(b) (i) All the terms used in paragraph (a) above are to be calculated
in accordance with the accounting principles applied in
connection with the Original Group Accounts.
40
(ii) If there is a dispute as to any interpretation of or
computation for paragraph (a) above, the interpretation or
computation of the Parent's auditors prevails.
(c) The Parent shall procure that the ratio of Operating Income to Net
Interest Expense is not, at the end of each half-year of each
financial year of the Group, less than 2.2 to 1.
20.13 Insurance
---------
Provided that such insurance is available in the market and can be
purchased on reasonable terms and conditions, each Obligor shall
maintain with financially sound and reputable insurance companies,
funds or underwriters adequate insurance of the kinds, covering such
risks and in such amounts and with such deductibles (including
captive or similar self-insuring arrangements) and exclusions as are
consistent with prudent business practice for an entity engaged in
businesses similar to those of the Obligors.
21. DEFAULT
-------
21.1 Events of Default
-----------------
Each of the events set out in Clauses 21.2 (Non-payment) to 21.16
(Material adverse change) (inclusive) is an Event of Default
(whether or not caused by any reason whatsoever outside the control
of any Obligor or any other person).
21.2 Non-payment
-----------
Any Obligor does not pay any amount of principal payable by it under
the Finance Documents on the due date or any other amount payable by
it under the Finance Documents within three (or, if the reason
therefor is technical or administrative error, five) Business Days
after the due date, in each case at the place at and in the currency
in which it is expressed to be payable.
21.3 Breach of other obligations
---------------------------
Any Obligor does not comply with any of its obligations under the
Finance Documents (other than those referred to in Clause 21.2
(Non-Payment)) and (save in the case of non-compliance under Clause
21.13) such non-compliance, if capable of remedy, continues
unremedied for 30 days after such Obligor and the Borrowers' Agent
received notice thereof from the Agent (or, if earlier, such Obligor
obtained actual knowledge thereof).
21.4 Misrepresentation
-----------------
A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by
or on behalf of any Obligor under or in connection with any Finance
41
Document is incorrect in any material respect when made or deemed to
be made or repeated.
21.5 Cross-default
-------------
(a) Any Financial Indebtedness of an Obligor or a Material Subsidiary is
not paid when due or after the expiry of any applicable grace period
(but this paragraph (a) shall not apply to non-payment by a member
of the Group under any performance or bid bond (or similar
instrument) issued by it where there is a bona fide dispute as to
its liability); or
(b) an event of default howsoever described (or any event which with the
giving of notice, lapse of time, determination of materiality or
fulfillment of any other applicable condition or any combination of
the foregoing would constitute such an event of default) occurs
under any document relating to Financial Indebtedness of a member of
the Group in excess of $2,000,000 (or its equivalent) and
discussions with the relevant creditors are arranged with a view to
rescheduling or otherwise varying the terms of the Financial
Indebtedness in question or considering other remedial action; or
(c) any Financial Indebtedness of a member of the Group becomes
prematurely due and payable or is placed on demand as a result of an
event of default (howsoever described) under the document relating
to that Financial Indebtedness; or
(d) any commitment for, or underwriting of, any Financial Indebtedness
of a member of the Group is cancelled or suspended as a result of an
event of default (howsoever described) under the document relating
to that Financial Indebtedness; or
(e) steps are taken to enforce any Security Interest securing Financial
Indebtedness over any asset of a member of the Group.
PROVIDED that there shall not be an Event of Default under
paragraphs (a), (c), (d) or (e) above unless the aggregate of all
amounts at any one time unpaid or in default as a result of events
referred to in paragraphs (a), (c), (d) and (e) above exceeds
$1,000,000 (or its equivalent).
21.6 Insolvency
----------
Any Obligor or Material Subsidiary is, or is deemed for the purposes
of any law to be, unable to pay its debts as they fall due or to be
insolvent, or admits inability to pay its debts as they fall due
(unless, in the case of a Material Subsidiary, the Parent gives a
support letter satisfactory to the auditors so that no qualification
is required to be made in relation to the accounts of the Material
Subsidiary concerned); or
42
(b) any Obligor or Material Subsidiary suspends making payments on all
or any class of its debts or announces an intention to do so, or a
moratorium is declared in respect of any of its indebtedness; or
(c) any Obligor, by reason of financial difficulties, begins
negotiations with its creditors generally with a view to the
readjustment or rescheduling of any of its indebtedness.
21.7 Insolvency proceedings
----------------------
(a) Any step (including petition, proposal or convening a meeting) is
taken by any Obligor or Material Subsidiary with a view to a
composition, assignment or arrangement with any of its creditors; or
(b) a meeting of any Obligor or Material Subsidiary is convened for the
purpose of considering any resolution for (or to petition for) its
winding-up or its administration or any such resolution is passed
(save where such meeting is called on frivolous or vexatious
grounds); or
(c) any person presents a petition (other than a frivolous or vexatious
petition) for the bankruptcy, winding-up or for the administration
of any Obligor or Material Subsidiary unless the same is discharged
within 45 days; or
(d) any order for the bankruptcy, winding-up or administration of any
Obligor or Material Subsidiary is made; or
(e) any other step (including petition, proposal or convening a meeting
but excluding steps taken on frivolous or vexatious grounds) is
taken with a view to the rehabilitation, administration,
custodianship, bankruptcy, liquidation, winding-up or dissolution of
any Obligor or Material Subsidiary or any other insolvency
proceedings involving any Obligor or Material Subsidiary,
PROVIDED that the solvent winding-up of a Material Subsidiary on
terms approved by the Majority Banks (whose approval shall not be
unreasonably withheld) shall not be an Event of Default under this
or any other Clause.
21.8 Appointment of receivers and managers
-------------------------------------
(a) Any liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver, administrator
or the like is appointed in respect of any Obligor or Material
Subsidiary or any substantial part of its assets; or
(b) the directors of any Obligor or Material Subsidiary request the
appointment of a liquidator, trustee in bankruptcy, judicial
custodian, compulsory manager, receiver, administrative receiver,
administrator or the like; or
43
(c) any other steps are taken to enforce any Security Interest over any
part of the assets of any Obligor or Material Subsidiary and are
followed by legal proceedings which are initiated and not discharged
within 45 days.
21.9 Creditors' process
------------------
Any attachment, sequestration, distress or execution affects any
asset of any Obligor or Material Subsidiary and is not discharged
within 28 days.
21.10 Analogous proceedings
---------------------
There occurs, in relation to any Obligor or Material Subsidiary, any
event in any relevant jurisdiction which is analogous to any of
those mentioned in Clauses 21.6 to 21.9 (inclusive).
21.11 Cessation of business
---------------------
Any Obligor or Material Subsidiary ceases, or threatens to cease, to
carry on all or a substantial part of its business where this would
have a material adverse effect on the business or financial
condition of the Group as a whole or on the ability of any Obligor
to perform its obligations under this Agreement.
21.12 Unlawfulness
------------
It is or becomes unlawful for any Obligor to perform any of its
material obligations under the Finance Documents.
21.13 Guarantee
---------
The guarantee of the Parent is not effective or is alleged by it to
be ineffective for any reason.
21.14 Ownership of the Borrowers
--------------------------
Any Borrower (other than the Parent) is not or ceases to be a
Subsidiary of the Parent, unless the Majority Banks consent to the
sale of such Borrower.
21.15 Material adverse change
-----------------------
Any event or series of events occurs which would be likely to have a
material and adverse effect on the business or financial condition
of the Group taken as a whole or on the ability of any Obligor to
comply with its obligations under the Finance Documents.
21.16 Acceleration
-------------
On and at any time after the occurrence of an Event of Default (for
so long as such Event of Default is continuing) the Agent shall if,
44
and only if, so directed by the Majority Banks, by notice to the Parent:-
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loans, together with accrued
interest, and all other amounts accrued under this Agreement be
immediately due and payable, whereupon they shall become
immediately due and payable; and/or
(c) demand that all or part of the Loans be payable on demand, whereupon
they shall immediately become payable on demand.
22. THE AGENT AND THE ARRANGER
--------------------------
22.1 Appointment and duties of the Agent
-----------------------------------
Each Finance Party (other than the Agent) irrevocably appoints the
Agent to act as its agent under and in connection with the Finance
Documents, and irrevocably authorizes the Agent on its behalf to
perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in
connection with the Finance Documents, together with any other
incidental rights, powers and discretions. The Agent has only those
duties which are expressly specified in this Agreement, and those
duties are solely of a mechanical and administrative nature.
22.2 Role of the Arranger
--------------------
Except as specifically provided in this Agreement, the Arranger has
no obligation of any kind to any other Party under or in connection
with any Finance Document.
22.3 Relationship
------------
The relationship between the Agent and the other Finance Parties is
that of agent and principal only. Nothing in this Agreement
constitutes the Agent as trustee or fiduciary for any other Party or
any other person and the Agent need not hold in trust any moneys
paid to it for a Party or be liable to account for interest on those
moneys.
22.4 Majority Banks' directions
--------------------------
The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise
of any right, power or discretion or any matter not expressly
provided for in this Agreement. Any such instructions given by the
Majority Banks will be binding on all the Banks. In the absence of
such instructions, the Agent may act as it considers to be in the
best interests of all the Banks.
45
22.5 Delegation
----------
The Agent may act under the Finance Documents through its personnel
and agents whose acts shall be binding upon it.
22.6 Responsibility for documentation
--------------------------------
Neither the Agent nor the Arranger is responsible to any other Party for:-
(a) the execution, genuineness, validity, enforceability or sufficiency of
any Finance Document or any other document;
(b) the collectability of amounts payable under any Finance Document; or
(c) the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document.
22.7 Default
-------
(a) The Agent is not obliged to monitor or enquire as to whether or not
a Default has occurred. The Agent will not be deemed to have knowledge
of the occurrence of a Default. However, if the Agent receives notice
from a Party referring to this Agreement, describing the Default and
stating that the event is a Default, or if the officers of the Agent
actually engaged in carrying out the agency function under this
Agreement acquire actual knowledge of a Default, it shall promptly
notify the Banks.
(b) The Agent may require the receipt of security satisfactory to it
from any other Finance Party, whether by way of payment in advance
or otherwise, against any liability or loss which it will or may
incur in taking any proceedings or action arising out of or in
connection with any Finance Document before it commences those
proceedings or takes that action.
22.8 Exoneration
-----------
(a) Without limiting paragraph (b) below, the Agent will not be liable
to any other Party for any action taken or not taken by it under or
in connection with any Finance Document, unless directly caused by
its gross negligence or wilful misconduct
(b) No Party may take any proceedings against any officer, employee or
agent of the Agent in respect of any claim it might have against the
Agent or in respect of any act or omission of any kind (including
gross negligence or wilful misconduct) by that officer, employee or
agent in relation to any Finance Document.
46
22.9 Reliance
--------
The Agent may:-
(a) rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority
of, the proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional
advisers selected by it (including those in the Agent's
employment and those representing a Party other than the
Agent).
22.10 Credit approval and appraisal
-----------------------------
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Bank confirms that it:-
(a) has made its own independent investigation and assessment of
the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this
Agreement and has not relied exclusively on any information
provided to it by the Agent or the Arranger in connection with
any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
22.11 Information
-----------
(a) The Agent shall promptly forward to the person concerned the
original or a copy of any document which is delivered to the Agent
by a Party for that person.
(b) The Agent shall promptly supply a Bank with a copy of each document
received by the Agent under Clause 4 (Conditions Precedent) upon the
request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the
Agent is not obliged to review or check the accuracy or completeness
of any document it forwards to another Party.
47
(d) Except as provided above, the Agent has no duty:-
(i) either initially or on a continuing basis to provide any Bank
with any credit or other information concerning the financial
condition or affairs of any Obligor or any related entity of
any Obligor whether coming into its possession before, on or
after the date of this Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance
with this Agreement, to request any certificates or other
documents from any Obligor.
22.12 The Agent and the Arranger
--------------------------
(a) If it is also a Bank, each of the Agent and the Arranger has the
same rights and powers under this Agreement as any other Bank and
may exercise those rights and powers as though it were not the Agent
or the Arranger.
(b) Each of the Agent and the Arranger may:-
(i) carry on any business with an Obligor or its related entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, an Obligor or its related entities; and
(iii) retain any profits or remuneration in connection with its
activities under this Agreement or in relation to any of the
foregoing.
22.13 Indemnities
-----------
(a) Without limiting the liability of any Obligor under the Finance
Documents, each Bank shall forthwith on demand indemnify the Agent
for its proportion of any liability or loss incurred by the Agent in
any way relating to or arising out of its acting as the Agent,
except to the extent that the liability or loss arises directly from
the Agent's gross negligence or wilful misconduct.
(b) A Bank's proportion of the liability set out in paragraph (a) above
will be the proportion which its participation in the Loans (if any)
bears to all the Loans on the date of the demand. If, however,
there are no Loans outstanding on the date of demand, then the
proportion will be the proportion which its Commitment bears to the
Total Commitments at the date of demand or, if the Total Commitments
have then been cancelled, bore to the Total Commitments immediately
before being cancelled.
48
22.14 Compliance
----------
(a) The Agent may refrain from doing anything which might, in its
opinion, constitute a breach of any law or regulation or be
otherwise actionable at the suit of any person, and may do anything
which, in its opinion, is necessary or desirable to comply with any
law or regulation of any jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not disclose
any information relating to any Obligor or any of its related
entities if the disclosure might, in the opinion of the Agent,
constitute a breach of any law or regulation or any duty of secrecy
or confidentiality or be otherwise actionable at the suit of any
person.
22.15 Resignation of the Agent
------------------------
(a) Notwithstanding its irrevocable appointment, the Agent may resign by
giving notice to the Banks and the Borrowers' Agent, in which case
the Agent may forthwith appoint one of its Affiliates as successor
Agent or, failing that, the Majority Banks may appoint a successor
Agent.
(b) If the appointment of a successor Agent is to be made by the
Majority Banks but they have not, within 30 days after notice of
resignation, appointed a successor Agent which accepts the
appointment, the Agent may appoint a successor Agent.
(c) The resignation of the Agent and the appointment of any successor
Agent will both become effective only upon the successor Agent
notifying all the Parties that it accepts its appointment. On
giving the notification, the successor Agent will succeed to the
position of the Agent and the term "Agent" will mean the successor
Agent.
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as the Agent under this
Agreement.
(e) Upon its resignation becoming effective, this Clause 22 (The Agent
and the Arranger) shall continue to benefit the retiring Agent in
respect of any action taken or not taken by it under or in
connection with the Finance Documents while it was the Agent, and,
subject to paragraph (d) above, it shall have no further obligations
under any Finance Document.
(f) Any successor Agent must be acceptable to the Borrowers' Agent but
the Borrowers' Agent may not unreasonably withhold his acceptance.
(g) If the Majority Banks so direct, the Agent shall resign in
accordance with paragraph (a) above.
49
22.16 Banks
-----
The Agent may treat each Bank as a Bank, entitled to payments under
this Agreement and as acting through its Facility Office(s).
23. FEES
----
23.1 Management fee
--------------
The Parent shall pay to the Arranger on the earlier of the date
seven days after the date of this Agreement and the first Drawdown
Date a management fee in the amount agreed in the relevant Fee
Letter. The management fee shall be distributed by the Agent among
the Banks in its sole discretion.
23.2 Commitment fee
--------------
(a) The Parent shall pay to the Agent for each Bank a commitment fee
computed at the rate of 0.25 per cent. per annum on the undrawn,
uncancelled amount of that Bank's Commitment during the period from
the date of this Agreement up to and including the Final Repayment
Date. For this purpose, Loans are taken at their Original Dollar
Amount.
(b) Accrued commitment fee is payable quarterly in arrear. Accrued
commitment fee is also payable to the Agent for the relevant Bank(s)
on the cancelled amount of its Commitment at the time the
cancellation takes effect.
23.3 Agent's fee
-----------
The Parent shall pay to the Agent for its own account an agency fee
in the amount agreed in the relevant Fee Letter. The agency fee is
payable annually in advance. The first payment of this fee is
payable on the earlier of the date seven days after the date of this
Agreement and the first Drawdown Date and each subsequent payment is
payable on each anniversary of the date of this Agreement for so
long as any amount is or may be outstanding under this Agreement or
any Commitment is in force.
23.4 VAT
---
Any fee referred to in this Clause 23 (Fees) is exclusive of any
value added tax or any other tax which might be chargeable in
connection with that fee. If any value added tax or other tax is so
chargeable, it shall be paid by the Parent at the same time as it
pays the relevant fee.
50
24. EXPENSES
--------
24.1 Initial and special costs
-------------------------
The Parent shall forthwith on demand pay the Agent and the Arranger
the amount of all reasonable out-of-pocket costs and expenses
(including legal fees) incurred by either of them in connection
with:-
(a) the negotiation, preparation, printing and execution of:-
(i) this Agreement and any other documents referred to in
this Agreement; and
(ii) any other Finance Document executed after the date of
this Agreement; and
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf
of an Obligor and relating to a Finance Document or a document
referred to in any Finance Document.
24.2 Enforcement costs
-----------------
Following a Default, the Parent shall forthwith on demand pay to
each Finance Party the amount of all costs and expenses (including
legal fees) properly incurred by it in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
25. STAMP DUTIES
------------
The Parent shall pay and forthwith on demand indemnify each Finance
Party against any liability it incurs in respect of, any stamp,
registration and similar tax which is or becomes payable in
connection with the entry into, performance or enforcement of any
Finance Document.
26. INDEMNITIES
-----------
26.1 Currency indemnity
------------------
(a) If a Finance Party receives an amount in respect of an Obligor's
liability under the Finance Documents or if that liability is
converted into a claim, proof, judgment or order in a currency other
than the currency (the "contractual currency") in which the amount
--------------------
is expressed to be payable under the relevant Finance Document:-
(i) that Obligor shall indemnify that Finance Party as an
independent obligation against any loss or liability arising
out of or as a result of the conversion;
51
(ii) if the amount received by that Finance Party, when converted
into the contractual currency at a market rate in the usual
course of its business, is less than the amount owed in the
contractual currency, the Obligor concerned shall forthwith on
demand pay to that Finance Party an amount in the contractual
currency equal to the deficit; and
(iii) the Obligor shall pay to the Finance Party concerned forthwith
on demand any exchange costs and taxes payable in connection
with any such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency other than that
in which it is expressed to be payable.
26.2 Other indemnities
-----------------
The Parent shall forthwith on receipt of a demand setting out
reasonable details of the relevant loss or liability indemnify each
Finance Party against any loss or liability which that Finance Party
incurs as a consequence of:-
(a) the occurrence of any Default;
(b) the operation of Clause 21.16 (Acceleration);
(c) any payment of principal or an overdue amount being received
from any source otherwise than on the last day of a relevant
Interest Period or Designated Interest Period (as defined in
Clause 9.3 (Default interest)) relative to the amount so
received; or
(d) (other than by reason of negligence or default by a Finance
Party) a Loan not being made after the Borrower has delivered
a Request or a Loan (or part of a Loan) not being prepaid in
accordance with a notice of prepayment.
The Parent's liability in each case includes any loss of margin or
other loss or expense on account of funds borrowed, contracted for
or utilised to fund any amount payable under any Finance Document,
any amount repaid or prepaid or any Loan.
26.3 No restriction on Obligors
--------------------------
Nothing in this Agreement shall prevent any Obligor from enforcing
any rights it may have against any Finance Party which fails to
fulfil its obligations hereunder.
52
27. EVIDENCE AND CALCULATIONS
-------------------------
27.1 Accounts
--------
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they
relate.
27.2 Certificates and determinations
-------------------------------
Any certification or determination by a Finance Party of a rate or
amount under this Agreement is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
27.3 Calculations
------------
Interest (including any applicable Reserve Asset Costs) and the fee
payable under Clause 23.2 (Commitment fee) accrue from day to day
and are calculated on the basis of the actual number of days elapsed
and a year of 360 days, or, in the case of interest payable on an
amount denominated in Sterling only, 365 days.
28. AMENDMENTS AND WAIVERS
----------------------
28.1 Procedure
---------
(a) Subject to Clause 28.2 (Exceptions), any term of the Finance
Documents may be amended or waived with the agreement of the Parent,
the Majority Banks and the Agent. The Agent may effect, on behalf
of the Majority Banks, an amendment or waiver to which they have
agreed.
(b) The Agent shall promptly notify the other Parties of any amendment
or waiver effected under paragraph (a) above, and any such amendment
or waiver shall be binding on all the Parties.
28.2 Exceptions
----------
An amendment or waiver which relates to:-
(a) the definition of "Majority Banks" in Clause 1.1;
--------------
(b) an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment under the Finance
Documents;
(c) an increase in a Bank's Commitment;
(d) a term of a Finance Document which expressly requires the
consent of each Bank; or
53
(e) Clause 32 (Pro rata sharing) or this Clause 28 (Amendments and
waivers),
may not be effected without the consent of each Bank.
28.3 Waivers and Remedies Cumulative
-------------------------------
The rights of each Finance Party under the Finance Documents:-
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a
waiver of that right.
29. CHANGES TO THE PARTIES
----------------------
29.1 Transfers by Obligors
---------------------
No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under this Agreement.
29.2 Transfers by Banks
------------------
(a) A Bank (the "Existing Bank") may at any time assign, transfer or
-------------
novate any of its rights and/or obligations under this Agreement to
another bank or financial institution (the "New Bank"). The prior
--------
written consent (such consent not to be unreasonably withheld or
delayed) of the Parent is required for any such assignment, transfer
or novation unless the New Bank is an Affiliate of a Bank.
(b) A transfer of obligations will be effective only if either:-
(i) the obligations are novated in accordance with Clause 29.3
(Procedure for novations); or
(ii) the New Bank confirms to the Agent and the Obligors that it
undertakes to be bound by the terms of this Agreement as a
Bank in form and substance satisfactory to the Agent. On the
transfer becoming effective in this manner the Existing Bank
shall be relieved of its obligations under this Agreement to
the extent that they are transferred to the New Bank.
(c) Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation if that Bank remains liable under this
Agreement for that obligation.
54
(d) On each occasion an Existing Bank assigns, transfers or novates any
of its rights and/or obligations under this Agreement, the New Bank
shall, on the date the assignment, transfer and/or novation takes
effect, pay to the Agent for its own account a fee of $500.
(e) An Existing Bank is not responsible to a New Bank for:-
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance
Document; or
(iii) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document.
(f) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:-
(i) has made its own independent investigation and assessment of
the financial condition and affairs of each Obligor and its
related entities in connection with its participation in this
Agreement and has not relied exclusively on any information
provided to it by the Existing Bank in connection with any
Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under this Agreement
or any Commitment is in force.
(g) Nothing in any Finance Document obliges an Existing Bank to:-
(i) accept a re-transfer from a New Bank of any of the rights
and/or obligations assigned, transferred or novated under this
Clause; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by the Borrower of its obligations under this
Agreement or otherwise.
(h) Any reference in this Agreement to a Bank includes a New Bank but
excludes a Bank if no amount is or may be owed to or by it under
this Agreement and its Commitment has been cancelled or reduced to
nil.
55
29.3 Procedure for novations
-----------------------
(a) A novation is effected if:-
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate, substantially in the form of Part I of
Schedule 5 (a "Novation Certificate"); and
--------------------
(ii) the Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank)
irrevocably authorises the Agent to execute any duly completed
Novation Certificate on its behalf.
(c) To the extent that they are expressed to be the subject of the
novation in the Novation Certificate:-
(i) the Existing Bank and the other Parties (the "existing
--------
Parties") will be released from their obligations to each
-------
other (the "discharged obligations");
----------------------
(ii) the New Bank and the existing Parties will assume obligations
towards each other which (subject to Clause 29.5) differ from
the discharged obligations only insofar as they are owed to or
assumed by the New Bank instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties
and vice versa (the "discharged rights") will be cancelled;
-----------------
and
(iv) the New Bank and the existing Parties will acquire rights
against each other which (subject to Clause 29.5) differ from
the discharged rights only insofar as they are exercisable by
or against the New Bank instead of the Existing Bank,
all on the date of execution of the Novation Certificate by the
Agent or, if later, the date specified in the Novation Certificate.
29.4 Reference Banks
---------------
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank
of which it is an Affiliate) ceases to be a Bank, the Agent shall
(in consultation with the Parent) appoint another Bank or an
Affiliate of a Bank to replace that Reference Bank.
29.5 No extra cost
-------------
If: -
(a) any assignment or transfer of all or any part of the rights or
obligations of a Bank pursuant to Clause 29; or
56
(b) any change in a Bank's Facility Office,
results, as a result of laws or regulations in force or the subject
of a formal government proposal at that time, in amounts becoming
due at that time under Clauses 13.1 (Gross-up) or 15 (Increased
Costs), then the assignee, transferee, New Bank or Bank, as the case
may be, shall be entitled to receive those amounts only to the
extent that the assignor, transferor, Existing Bank or Bank, as the
case may be, would have been so entitled had there been no such
assignment, transfer, or change in Facility Office.
30. DISCLOSURE OF INFORMATION
-------------------------
(a) A Bank may disclose to one of its Affiliates or (subject to prior
notification to the Borrowers' Agent of the identity of such person)
any person with whom it is proposing to enter, or has entered into,
any kind of transfer, participation or other agreement in relation
to this Agreement:-
(i) a copy of any Finance Document; and
(ii) any information which that Bank has acquired under or in
connection with any Finance Document.
(b) A Finance Party shall keep confidential any and all information
(except information which is publicly available or in respect of
which disclosure is required by law) relating to the Group or a
member of the Group which is disclosed to the Finance Party for the
purpose of or in connection with any Finance Document.
31. SET-OFF
-------
A Finance Party may set off any amount due and owed by an Obligor
under this Agreement (to the extent beneficially owned by that
Finance Party) against any obligation (whether or not matured) owed
by that Finance Party to that Obligor, regardless of the place of
payment, booking branch or currency of either obligation. If the
obligations are in different currencies, the Finance Party may
convert either obligation at a market rate of exchange in its usual
course of business for the purpose of the set-off.
32. PRO RATA SHARING
----------------
32.1 Redistribution
--------------
If any amount owing by an Obligor under this Agreement to a Finance
Party (the "recovering Finance Party") is discharged by payment,
------------------------
set-off or any other manner other than through the Agent in
accordance with Clause 12 (Payments) (a "recovery"), then:-
--------
(a) the recovering Finance Party shall, within three Business
Days, notify details of the recovery to the Agent;
57
(b) the Agent shall determine whether the recovery is in excess of
the amount which the recovering Finance Party would have
received had the recovery been received by the Agent and
distributed in accordance with Clause 12 (Payments);
(c) subject to Clause 32.3 (Exception), the recovering Finance
Party shall within three Business Days of demand by the Agent
pay to the Agent an amount (the "redistribution") equal to the
--------------
excess;
(d) the Agent shall treat the redistribution as if it were a
payment by the Obligor concerned under Clause 12 (Payments)
and shall pay the redistribution to the Finance Parties (other
than the recovering Finance Party) in accordance with
Clause 12.7 (Partial Payments); and
(e) after payment of the full redistribution, the recovering
Finance Party will be subrogated to the portion of the claims
paid under paragraph (d) above and that Obligor will owe the
recovering Finance Party a debt which is equal to the
redistribution, immediately payable and of the type originally
discharged.
32.2 Reversal of redistribution
--------------------------
If under Clause 32.1 (Redistribution):-
(a) a recovering Finance Party must subsequently return a
recovery, or an amount measured by reference to a recovery, to
an Obligor; and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within three Business Days of demand by
the recovering Finance Party through the Agent, reimburse the
recovering Finance Party all or the appropriate portion of the
redistribution paid to that Finance Party. Thereupon, the
subrogation in Clause 32.1(e) (Redistribution) will operate in
reverse to the extent of the reimbursement.
32.3 Exception
---------
(a) A recovering Finance Party need not pay a redistribution to the
extent that it would not, after the payment, have a valid claim
against the Obligor concerned in the amount of the redistribution
pursuant to Clause 32.1(e) (Redistribution).
(b) A Finance Party is not entitled to participate in a redistribution
if the redistribution results from the proceeds of a judicial
enforcement order obtained by the recovering Finance Party and the
58
other Finance Party had adequate notice of and opportunity to
participate in the proceedings concerned but did not do so.
33. SEVERABILITY
------------
If a provision of any Finance Document is or becomes illegal,
invalid or unenforceable in any jurisdiction, that shall not
affect:-
(a) the validity or enforceability in that jurisdiction of any
other provision of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that
or any other provision of the Finance Documents.
34. COUNTERPARTS
------------
This Agreement 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.
35. NOTICES
-------
35.1 Giving of notices
-----------------
All notices or other communications under or in connection with this
Agreement shall be given in writing or by telex or facsimile. Any
such notice will be deemed to be given as follows:-
(a) if in writing, when delivered;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and
at the end of the sender's copy of the notice; and
(c) if by facsimile, when received.
However, a notice given in accordance with the above but received on
a non-working day or after business hours in the place of receipt
will only be deemed to be given on the next working day in that
place.
35.2 Addresses for notices
---------------------
(a) The address, telex number and facsimile number of each Party (other
than the Agent) for all notices under or in connection with this
Agreement are:-
(i) those notified by that Party for this purpose to the Agent on
or before the date it becomes a Party; or
59
(ii) any other notified by that Party for this purpose to the Agent
by not less than five Business Days' notice.
(b) The address, telex number and facsimile number of the Agent are:-
Banque Nationale de Paris
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Attention: DRI Gestion des Credits Financiers
Telex: 290 181
Facsimile: 40 147785
or such other as the Agent may notify to the other Parties by not
less than five Business Days' notice.
(c) All notices from or to an Obligor shall be sent through the Agent.
(d) The Agent shall, promptly upon request from any Party, give to that
Party the address, telex number or fax number of any other Party
applicable at the time for the purposes of this Clause.
36. LANGUAGE
--------
Any notice given under or in connection with any Finance Document
shall be in English.
(b) All other documents (other than the accounts and the constitutional
documents of each Obligor) provided under or in connection with any
Finance Document shall be:-
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation and, in this case, the English translation shall
prevail unless the document is a statutory or other official
document.
37. JURISDICTION
------------
37.1 Submission
----------
For the benefit of each Finance Party, each Obligor agrees that the
courts of England and the Kingdom of Sweden have jurisdiction to
settle any disputes in connection with any Finance Document and
accordingly submits to the non-exclusive jurisdiction of the English
and Swedish courts.
37.2 Service of process
------------------
Without prejudice to any other mode of service, each Obligor:-
(a) irrevocably appoints:
60
(i) Gambro Limited of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇ as its agent for service of process relating to any
proceedings before the English courts in connection with
any Finance Document;
(ii) the Parent of ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇, S-22010
Lund as its agent for service of process relating to any
proceedings before the courts of the Kingdom of Sweden
in connection with any Finance Document,
except where an Obligor is incorporated in the relevant
jurisdiction;
(b) agrees that failure by a process agent to notify the Obligors
of the process will not invalidate the proceedings concerned;
and
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 35.2
(Addresses for notices).
37.3 Forum convenience and enforcement abroad
----------------------------------------
Each Obligor:-
(a) waives objection to the English and Swedish courts on grounds
of inconvenient forum or otherwise as regards proceedings in
connection with a Finance Document; and
(b) agrees that a judgment or order, other than an interim
judgment or order, of an English or Swedish Court in
connection with a Finance Document is conclusive and binding
on it and may be enforced against it in the courts of any
other jurisdiction in accordance with the laws and procedures
of that jurisdiction.
37.4 Non-exclusivity
---------------
Nothing in this Clause 37 limits the right of a Finance Party to
bring proceedings against an Obligor in connection with any Finance
Document in any other court of competent jurisdiction.
38. GOVERNING LAW
-------------
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning
of this Agreement.
61
SCHEDULE 1
----------
BANKS AND COMMITMENTS
---------------------
Banks Commitments
----- -----------
$
Banque Nationale de Paris, P.L.C. 15,000,000
The First National Bank of Boston 12,000,000
Commerzbank International S.A. 12,000,000
Credit Suisse (Luxembourg) S.A. 12,000,000
Societe Generale Alsacienne de
Banque, Strasbourg 12,000,000
Union Bank of Switzerland 12,000,000
----------
Total Commitments U.S.$75,000,000
----------
62
SCHEDULE 2
----------
CONDITIONS PRECEDENT DOCUMENTS
------------------------------
1. All Obligors
------------
A copy of the constitutional documents of each Obligor.
2. Parent
------
(a) A copy of a resolution of the board of directors of the Parent:-
(i) approving the transactions contemplated by this Agreement;
(ii) authorising a specified person or persons to execute this
Agreement and the Fee Letter on its behalf; and
(iii) authorising a specified person or persons, on its behalf,
to sign and/or despatch all other documents and notices to be
signed and/or despatched by it under or in connection with
this Agreement;
(b) a power of attorney executed on behalf of the Parent by a person or
persons authorised by the resolution referred to in paragraph (a)
above;
(c) a specimen of the signature of each person authorised by the
resolution referred to in paragraph (a) above;
(d) a registration certificate not older than four months issued by the
Swedish Patent and Registration Office and certified by an officer
of the Parent to be a true copy; and
(e) a certificate of an authorised signatory of the Parent certifying
that each copy document specified in this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than
the date of this Agreement.
3. Borrower (other than the Parent)
--------------------------------
(a) A copy of a resolution of the board of directors of each Borrower:-
(i) approving the terms of, and the transactions contemplated by,
this Agreement and resolving that it execute this Agreement;
(ii) authorising a specified person or persons to execute this
Agreement on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all other documents and notices to be
63
signed and/or despatched by it under or in connection with
this Agreement;
(b) a power of attorney executed on behalf of the Borrower by a person
or persons authorised by the resolution referred to in paragraph (a)
above; and
(c) a specimen of the signature of each person authorised by the
resolution referred to in paragraph (a) above.
4. Process agents
--------------
Evidence of acceptance by the process agents referred to in
Clause 37.2 of their appointments of that Clause.
5. Other documents
---------------
A copy of any other authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable in
connection with the entry into and performance of, and the
transactions contemplated by, any Finance Document or for the
validity and enforceability of any Finance Document.
6. Legal opinion
-------------
(a) A legal opinion of ▇▇▇▇▇, legal advisers in Sweden to the Agent,
addressed to the Finance Parties.
(b) A legal opinion of ▇▇▇▇▇ & ▇▇▇▇▇, legal advisers to the Agent,
addressed to the Finance Parties.
64
SCHEDULE 3
----------
CALCULATION OF THE MLA COST
---------------------------
(a) The MLA Cost for a Loan maintained in Sterling for each of its
Interest Periods is calculated in accordance with the following
formula:-
BY + L(Y-X) + S(Y-Z) % per annum
--------------------
100-(B + S) = MLA Cost
where on the day of application of the formula:-
B is the percentage of the Agent's eligible liabilities which
the Bank of England requires the Agent to hold on a
non-interest-bearing deposit account in accordance with its
cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the
Agent to leading banks in the London interbank market at or
about 11.00 a.m. on that day for the relevant period;
L is the percentage of eligible liabilities which the Bank of
England requires the Agent to maintain as secured money with
members of the London Discount Market Association and/or as
secured call money with certain money brokers and gilt-edged
primary market makers;
X is the rate at which secured Sterling deposits may be placed
by the Agent with members of the London Discount Market
Association and/or as secured call money with certain money
brokers and gilt-edged primary market makers at or about
11.00 a.m. on that day for the relevant period;
S is the percentage of the Agent's eligible liabilities which
the Bank of England requires the Agent to place as a special
deposit; and
Z is the interest rate per annum allowed by the Bank of England
on special deposits.
(b) For the purposes of this Schedule 3:-
(i) "eligible liabilities" and "special deposits" have the
-------------------- ----------------
meanings given to them at the time of application of the
formula by the Bank of England; and
(ii) "relevant period" in relation to each Interest Period, means:-
---------------
(A) if it is 3 months or less, that Interest Period; or
65
(B) if it is more than 3 months, each successive period of 3
months and any necessary shorter period comprised in
that Interest Period.
(c) In the application of the formula, B, Y, L, X, S and Z are included
in the formula as figures and not as percentages, e.g. if B = 0.5%
and Y = 15%, BY is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of each relevant
period comprised in the relevant Interest Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(e) If the Agent determines that a change in circumstances has rendered,
or will render, the formula inappropriate, the Agent (after
consultation with the Banks and the Borrowers' Agent) shall notify
the Banks and the Borrowers' Agent of the manner in which the MLA
Cost will subsequently be calculated. The manner of calculation so
notified by the Agent shall, in the absence of manifest error, be
binding on all the Parties.
66
SCHEDULE 4
----------
FORM OF REQUEST
---------------
To: BANQUE NATIONALE DE PARIS as Agent
From: [BORROWER]
Date: [ ]
GAMBRO AB
---------
U.S.$75,000,000 Facility Agreement dated [DATE]
-----------------------------------------------
1. We wish to borrow a Loan as follows: -
(a) Drawdown Date: [ ]
(b) Original Dollar Amount: [ ]
(c) Currency: [ ]
(d) First Interest Period(s): [ ]*
(e) Payment Instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Request.
By:
[BORROWER]
Authorised Signatory
* The splitting of Loans is dealt with in Clause 8.3.
67
SCHEDULE 5
----------
FORM OF NOVATION CERTIFICATE
----------------------------
To: BANQUE NATIONALE DE PARIS as Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
GAMBRO AB
---------
U.S.$75,000,000 Facility Agreement dated [DATE]
-----------------------------------------------
We refer to Clause 29.3 (Procedure for novations).
1. We [ ] (the "Existing Bank") and [ ] (the "New
------------- ---
Bank") agree to the Existing Bank and the New Bank novating all the
----
Existing Bank's rights and obligations referred to in the Schedule
in accordance with Clause 29.3 (Procedure for novations).
2. The specified date for the purposes of Clause 29.3(c) is [date of
novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 35.2 (Addresses for notices) are set out in the
Schedule.
4. This Novation Certificate is governed by English law.
THE SCHEDULE
------------
Rights and obligations to be novated
------------------------------------
[Details of the rights and obligations of the Existing Bank to
be novated].
[Existing Bank] [New Bank]
By: By:
Date: Date:
[New Bank]
--------
[Facility Office Address for notices]
BANQUE NATIONALE DE PARIS
By:
Date:
68
SCHEDULE 6
----------
FORM OF DEED OF ACCESSION
-------------------------
THIS DEED OF ACCESSION dated [ ] and made between:-
(1) [ ] (the "Additional Borrower");
(2) BANQUE NATIONALE DE PARIS as agent (the "Agent") on behalf of itself
and the Banks (as defined in the Facility Agreement referred to
below);
is supplemental to the revolving credit facility agreement dated
[ ] and made between Gambro AB, BNP Capital Markets
Limited, the Banks defined therein and the Agent (the "Facility
Agreement").
NOW THIS DEED WITNESSETH:-
1. Accession
---------
In consideration of the Banks through the Agent agreeing to the
Additional Borrower becoming an additional borrower pursuant to
Clause 2.5 of the Facility Agreement, the Additional Borrower hereby
affirms and ratifies the Facility Agreement and by the execution of
this Deed agrees to observe and be bound by the terms and provisions
of the Facility Agreement insofar as they apply to Borrowers as if
it were an original party to the Facility Agreement.
2. Integration
-----------
This Deed of Accession shall be read as one with the Facility
Agreement so that any reference therein to "this Agreement",
"hereunder" and similar shall include and be deemed to include this
Deed of Accession.
3. Conditions precedent
--------------------
The obligations of the Agent and each Bank hereunder are subject to
the condition that the Agent is satisfied that all appropriate
conditions precedent have been fulfilled by the Additional Borrower
including, without limitation, the delivery of documents equivalent
to those referred to in Schedule 2 to the Facility Agreement but
relating to the Additional Borrower and this Deed of Accession.
4. Notices
-------
The Additional Borrower's address for notices and demands under the
Facility Agreement is [ ] (marked for the attention
of [ ] ) (Telex No. [ ] ) (Facsimile
No. [ ]).
69
IN WITNESS whereof the parties hereto have caused this Deed of Accession
to be duly executed on the date first written above.
EXECUTED as a deed by )
[The Additional Borrower] )
acting by [NAME OF DIRECTOR] )
and [NAME OF DIRECTOR/SECRETARY] )
............................... ..............................
director director/secretary
BANQUE NATIONALE DE PARIS
for itself and as Agent for the
Banks
By: .............................
70
SCHEDULE 7
----------
APPROVED ADDITIONAL BORROWERS
-----------------------------
Gambro GmbH
Gambro SpA
Gambro ▇.▇.
▇▇▇▇▇▇ S.A.
Sopamed AG
Hogamed S.A.
Hospal Industrie S.A.
Hospal Dasco SpA
COBE Laboratories, Inc.
71
SIGNATORIES
-----------
The Parent
----------
Gambro AB
By: /s/ /s/
Arranger
--------
BNP CAPITAL MARKETS LIMITED
By: /s/
Agent
-----
BANQUE NATIONALE DE PARIS
By: /s/
Banks
-----
BANQUE NATIONALE DE PARIS, P.L.C.
By: /s/
FIRST NATIONAL BANK OF BOSTON
.
By: /s/ M.E. ▇▇▇▇▇▇▇, DIRECTOR
COMMERZBANK INTERNATIONAL S.A.
By: /s/ A. Lissay
CREDIT SUISSE (LUXEMBOURG) S.A.
By: /s/ A. Lissay
SOCIETE GENERALE ALSACIENNE DE BANQUE, STRASBOURG
By: /s/ A. Lissay
UNION BANK OF SWITZERLAND
By: /s/ A. Lissay