MULTICURRENCY REVOLVING CREDIT FACILITY AGREEMENT dated 2005
US$325,000,000
(or equivalent)
dated
2005
for
ENERGIZER
ASIA INVESTMENTS PTE. LTD.
ENERGIZER
SINGAPORE PTE. LTD.
SONCA
PRODUCTS LTD.
and
▇▇▇▇▇▇
ASIA LIMITED
arranged
by
CITIGROUP
GLOBAL MARKETS SINGAPORE PTE. LTD.
and
STANDARD
CHARTERED BANK
with
CITICORP
INVESTMENT BANK (SINGAPORE) LIMITED
acting
as
Agent
CONTENTS
CLAUSE
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1.
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Definitions
and interpretation
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2.
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The
Facility
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|
3.
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Purpose
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|
4.
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Conditions
of Utilisation
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5.
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Utilisation
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6.
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Repayment
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7.
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Prepayment
and cancellation
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8.
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Interest
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9.
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Interest
Periods
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10.
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Changes
to the calculation of interest
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11.
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Fees
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12.
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Tax
gross up and indemnities
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13.
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Increased
costs
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14.
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Other
indemnities
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15.
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Mitigation
by the Lenders
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16.
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Costs
and expenses
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17.
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Guarantee
and indemnity
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18.
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Representations
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19.
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Information
undertakings
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20.
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Financial
covenants
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21.
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General
undertakings
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22.
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Negative
Undertakings
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23.
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Events
of Default
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24.
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Changes
to the Lenders
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25.
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Changes
to the Obligors
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26.
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Role
of the Agent and the Arranger
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27.
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Conduct
of business by the Finance Parties
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28.
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Sharing
among the Finance Parties
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29.
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Payment
mechanics
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30.
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Set-off
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31.
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Disclosure
of information
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32.
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Notices
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33.
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Calculations
and certificates
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34.
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Partial
invalidity
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35.
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Remedies
and waivers
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36.
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Amendments
and waivers
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37.
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Counterparts
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38.
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Governing
law
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39.
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Enforcement
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THE
SCHEDULES
SCHEDULE PAGE
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SCHEDULE
1 The Original Lenders
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SCHEDULE
2 Conditions precedent
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SCHEDULE
3 Utilisation Request
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SCHEDULE
4 Form of Transfer Certificate
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SCHEDULE
5 Form of Compliance Certificate
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SCHEDULE
6 Existing Security, Contingent Obligations and
Investments
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SCHEDULE
7 Timetables
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SCHEDULE
8 Litigation
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SCHEDULE
9 Subsidiaries
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SCHEDULE
10 Standing Payment Instructions
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THIS
AGREEMENT is dated 2005 and made between:
| (1) |
ENERGIZER
ASIA INVESTMENTS PTE. LTD.,
a
company incorporated in Singapore under registration number 200302032C,
ENERGIZER
SINGAPORE PTE. LTD.,
a
company incorporated in Singapore under registration number 194600106W,
SONCA
PRODUCTS LTD.,
a
company incorporated in Hong Kong under registration number 167972
and
▇▇▇▇▇▇
ASIA LIMITED,
a
company incorporated in Hong Kong under registration number 629014
as
borrowers (together the "Borrowers"
and each a "Borrower");
|
| (2) |
ENERGIZER
HOLDINGS, INC.,
a
company incorporated in Missouri with charter number 00474545 as
guarantor
(the "Guarantor");
|
| (3) |
CITIGROUP
GLOBAL MARKETS SINGAPORE PTE. LTD.
and STANDARD
CHARTERED BANK
(whether acting individually or together the "Arranger");
|
| (4) |
THE
FINANCIAL INSTITUTIONS
listed in Schedule 1 as lenders (the "Original
Lenders");
and
|
| (5) |
CITICORP
INVESTMENT BANK (SINGAPORE) LIMITED
as
agent of the other Finance Parties (the "Agent").
|
IT
IS
AGREED as follows:
INTERPRETATION
| 1. |
DEFINITIONS
AND INTERPRETATION
|
| 1.1 |
Definitions
|
In
this
Agreement:
"Acquisition"
means
any transaction, or any series of related transactions, consummated on or
after
the date of this Agreement, by which the Guarantor or any of its
Subsidiaries:
| (i) |
acquires
any business as a going concern or all or substantially all of
the assets
of any firm, corporation or division thereof, whether through purchase
of
assets, merger or otherwise; or
|
| (ii) |
directly
or indirectly acquires (whether in one transaction or as or after
the most
recent transaction in a series of transactions) at least a majority
(in
number of votes) of the shares and/or securities of a corporation
which
have ordinary voting power for the election of directors or similar
body
(other than securities having such power only by reason of the
happening
of a contingency which contingency has not occurred) or a majority
(by
percentage of voting power) of the outstanding equity interests
of another
person.
|
"Affiliate"
means,
in relation to any person, a Subsidiary of that person or a Holding Company
of
that person or any other Subsidiary of any Holding Company of that person
or any
other person directly or indirectly controlling, controlled by or under control
with such first-mentioned person.
"Agent's
Spot Rate of Exchange"
means
the spot rate of exchange for the purchase of the relevant currency with
US
Dollars in the Singapore foreign exchange market at or about 11:00 a.m. on
a
particular day displayed on page "ASAP" of the Reuters screen (or, (i) if
more
than one such rate is so displayed, the average of such rates; or (ii) if
such
rate is not so displayed or such page or screen ceases to be available, as
determined by the Agent, acting reasonably).
"Agreement
Accounting Principles"
means
generally accepted accounting principles as in effect in the United States
from
time to time or, in the case of the calculation of financial ratios and other
financial tests required by this Agreement, except as provided in Clause
19.3
(Requirements
as to financial statements),
as of
the date of this Agreement, in all cases, applied in a manner consistent
with
that used in preparing the Original Financial Statements.
"Approved
Fund"
means
any person (other than a natural person) that is (or will be) engaged in
making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender, or
(c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
"Authorisation"
means:
| (a) |
an
authorisation, consent, approval, resolution, licence, exemption,
filing,
notarisation, lodgement or registration;
and/or
|
| (b) |
in
relation to anything which will be fully or partly prohibited by
law or
regulation if a Governmental Agency intervenes or acts in any way
within a
specified period after lodgement, filing, registration or notification,
the expiry of that period without intervention or
action.
|
"Availability
Period"
means
the period from and including the date of this Agreement to and including
the
date which is one Month prior to the Termination Date.
"Available
Commitment"
means,
in relation to a Lender and save as otherwise provided in this Agreement,
the
Lender's Commitment minus:
| (a) |
the
amount of its participation in any and all outstanding Loans that
have
been made; and
|
| (b) |
in
relation to any proposed Utilisation, the amount of its participation
in
any Loans (other than the Loan the subject of such proposed Utilisation)
that are due to be made on or before the proposed Utilisation
Date,
|
other
than (in relation to any proposed Utilisation) that Lender's participation
in
any Loans that are due to be repaid or prepaid on or before the proposed
Utilisation Date. The Available Commitment of a Lender at any time shall
be
calculated in US$, and in making such calculations any amount (including
without
limitation the amount of any S$ Loan or any part thereof) that is denominated
in
S$ shall be converted into US$ at the Agent's Spot Rate of Exchange as at
such
time.
"Available
Facility"
means
the aggregate for the time being of each Lender's Available
Commitment.
"Benefit
Plan"
means a
defined benefit plan as defined in Section 3(35) of ERISA (other than a
Multiemployer Plan or Foreign Pension Plan) in respect of which an Obligor
or an
ERISA Affiliate is, or within the immediately preceding six (6) years was,
an
"employer" as defined in Section 3(5) of ERISA.
"Board
of Governors"
means
the Board of Governors of the Federal Reserve System of the US (or any
successor).
"Break
Costs"
means
the amount (if any) by which:
| (a) |
the
interest which a Lender should have received for the period from
the date
of receipt or recovery of all or any part of its participation
in a Loan
or an Unpaid Sum to the last day of the current Interest Period
in respect
of that Loan or Unpaid Sum, had the principal amount of that Loan
or
Unpaid Sum received or recovered been paid on the last day of that
Interest Period
|
exceeds:
| (b) |
the
amount which that Lender would be able to obtain by placing an
amount
equal to the principal amount of that Loan or Unpaid Sum so received
or
recovered by it on deposit with a leading bank in the Relevant
Interbank
Market for a period starting on the Business Day following such
receipt or
recovery and ending on the last day of that current Interest
Period.
|
"Business
Day"
means a
day (other than a Saturday or Sunday) on which banks are open for general
business in Singapore and Hong Kong and, in relation to any date for payment
or
purchase of US Dollars, New York City.
"Capital
Stock"
means:
| (i) |
in
the case of a corporation, shares or capital
stock;
|
| (ii) |
in
the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;
|
| (iii) |
in
the case of a partnership, partnership interests (whether general
or
limited); and
|
| (iv) |
any
other interest or participation that confers on a person the right
to
receive a share of the profits and losses of, or distributions
of assets
of, the person issuing such interest or
participation.
|
"Capitalised
Lease"
of a
person means any lease of an asset by such person as lessee which would be
capitalised on a balance sheet of such person prepared in accordance with
Agreement Accounting Principles.
"Capitalised
Lease Obligations"
of a
person means the amount of the obligations of such person under Capitalised
Leases which would be capitalised on a balance sheet of such person prepared
in
accordance with Agreement Accounting Principles.
"Cash
Equivalents"
means:
| (a) |
marketable
direct obligations issued or unconditionally guaranteed by the
United
States government and backed by the full faith and credit of the
United
States government;
|
| (b) |
domestic
and Eurodollar certificates of deposit and time deposits, bankers'
acceptances and floating rate certificates of deposit issued by
any
commercial bank organised under the laws of the United States,
any state
thereof, the District of Columbia, any foreign bank, or its branches
(fully protected against currency fluctuations for any such deposits
with
a term of more than ninety (90)
days);
|
| (c) |
shares
of money market, mutual or similar funds having assets in excess
of
US$100,000,000 and at least 95% of the investments of which are
limited to
investment grade securities (being securities rated at least Baa
by
▇▇▇▇▇'▇ Investors Service, Inc. or at least BBB by Standard & Poor's
Ratings Group); and
|
| (d) |
commercial
paper of United States and foreign banks and bank holding companies
and
their Subsidiaries and United States and foreign finance, commercial
industrial or utility companies which, at the time of acquisition
by any
member of the Group, are rated A-1 (or better) by Standard & Poor's
Ratings Group or P-1 (or better) by ▇▇▇▇▇'▇ Investors Service,
Inc.;
|
provided
that the maturities of such Cash Equivalents described in the foregoing
paragraphs (a), (b), (c) and (d) shall not exceed 365 days;
| (e) |
repurchase
obligations of any commercial bank organised under the laws of
the United
States, any state thereof, the District of Columbia, any foreign
bank, or
its branches having a term not more than thirty (30) days, with
respect to
securities issued or fully guaranteed or insured by the United
States
government;
|
| (f) |
securities
with maturities of one year or less (from the date of acquisition
by any
member of the Group) issued or fully guaranteed by any state,
commonwealth, territory, political subdivision, taxing authority
or by any
foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign government
(as the case may be) are rated at least BBB by Standard & Poor's
Ratings Group or at least Baa by ▇▇▇▇▇'▇ Investors Service,
Inc.;
|
| (g) |
securities
with maturities of one year or less (from the date of acquisition
by any
member of the Group) backed by standby letters of credit issued
by any
commercial bank organised under the laws of the United States,
any state
thereof or the District of Columbia (which commercial bank shall
have a
short-term debt rating of A-1 (or better) by Standard & Poor's Ratings
Group or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc.), or by any foreign
bank
(which foreign bank shall have a rating of B or better from Thomson
BankWatch Global Issuer Rating or, if not rated by Thomson BankWatch
Global Issuer Rating, which foreign bank shall be an institution
acceptable to the Agent), or its branches;
or
|
| (h) |
shares
of money market mutual or similar funds at least 95% of the assets
of
which are invested in the types of investments satisfying the requirements
of paragraphs (a) to (g) of this
definition.
|
"Change
of Control"
means
an event or series of events by which:
| (a) |
any
"person" or "group" (within the meaning of Sections 13(d) and 14(d)(2)
of
the US Securities Exchange Act of 1934) becomes the "beneficial
owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934),
directly
or indirectly, of thirty percent (30%) or more of the voting power
of the
then outstanding Capital Stock of the Guarantor that is entitled
to vote
generally in the election of the directors of the
Guarantor;
|
| (b) |
during
any period of 12 consecutive calendar months, the board of directors
of
the Guarantor shall cease to have as a majority of its members
individuals
who either:
|
| (i) |
were
directors of the Guarantor on the first day of such period;
or
|
| (ii) |
were
elected or nominated for election to the board of directors of
the
Guarantor at the recommendation of or other approval by at least
majority
of the directors of the Guarantor then still in office at the time
of such
election or nomination who were directors of the Guarantor on the
first
day of such period, or whose election or nomination for election
was so
approved; or
|
| (c) |
The
Guarantor consolidates with or merges into another corporation
or conveys,
transfers or leases all or substantially all of its property to
any
person, or any corporation consolidates with or merges into the
Guarantor,
in either event pursuant to a transaction in which the outstanding
Capital
Stock of the Guarantor is reclassified or changed into or exchanged
for
cash, securities or other property.
|
"Commitment"
means:
| (a) |
in
relation to an Original Lender, the amount in US Dollars set opposite
its
name under the heading "Commitment" in Schedule 1 (The
Original Lenders)
and the amount of any other Commitment transferred to it under
this
Agreement; or
|
| (b) |
in
relation to any other Lender, the amount in US Dollars of any Commitment
transferred to it under this
Agreement,
|
to
the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Companies
Act"
means
the Companies Act (Chapter 50) of the Republic of Singapore.
“Companies
Ordinance”
means
the Companies Ordinance (Chapter 32) of the Laws of Hong Kong.
"Compliance
Certificate"
means a
certificate substantially in the form set out in Schedule 5 (Form
of Compliance Certificate).
"Consolidated
Assets"
means
the total assets of the Guarantor and its Subsidiaries on a consolidated
basis.
"Consolidated
Domestic Assets"
means
(without double counting) the total assets of the Guarantor and each of its
consolidated Subsidiaries that is incorporated under the laws of any
jurisdiction in the United States (other than SPVs).
"Consolidated
Net Worth"
means,
as of any date, all amounts (without double counting) which would be included
under shareholders' equity (including capital stock, additional paid-in capital
and retained earnings) on the consolidated balance sheet of the Guarantor
and
its consolidated Subsidiaries determined in accordance with Agreement Accounting
Principles.
"Consolidated
Total Capitalisation"
means,
as of any date, the sum of (without double counting) (i) Indebtedness of
the
Guarantor and its consolidated Subsidiaries and (ii) Consolidated Net Worth,
all
determined in accordance with Agreement Accounting Principles.
"Contingent
Obligation",
as
applied to any person, means any Contractual Obligation, contingent or
otherwise, of that person with respect to any Indebtedness or other obligation
or liability of another person, including, without limitation, any such
Indebtedness, obligation or liability of another person directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in the ordinary
course of business), co-made or discounted or sold with recourse by that
first-mentioned person, or in respect of which that first-mentioned person
is
otherwise directly or indirectly liable, including Contractual Obligations
(contingent or otherwise) arising through any agreement to purchase, repurchase,
or otherwise acquire such Indebtedness, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether
in
the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, or other financial
condition, or to make payment other than for value received. The amount of
any
Contingent Obligation of any person in respect of any Indebtedness, obligation
or liability of another person shall be equal to the present value of the
portion of such Indebtedness, obligation or liability so guaranteed or otherwise
supported (in the case of known recurring obligations) and the maximum
reasonably anticipated liability in respect of the portion of such Indebtedness,
obligation or liability so guaranteed or otherwise supported assuming such
first-mentioned person is required to perform thereunder (in all other
cases).
"Contractual
Obligation",
as
applied to any person, means any obligation or liability in respect of any
provision of any equity or debt securities issued by that person or any
indenture, mortgage, deed of trust, security agreement, pledge agreement,
guarantee, contract, undertaking, agreement or instrument, in any case in
writing, to which that person is a party or by which it or any of its assets
is
bound, or to which it or any of its assets is subject. Without in any way
limiting the foregoing, as used with respect to any member of the Group,
Contractual Obligations shall include, without limitation, the Financing
Facilities and any instruments, documents or agreements executed or delivered
in
connection therewith by which any member of the Group is bound.
"Customary
Permitted Liens"
means:
| (a) |
Liens
(other than Environmental Security and Liens in favour of the IRS
or the
PBGC or any Plan) with respect to the payment of Taxes, assessments
or
governmental charges in all cases which are not yet due or (if
foreclosure, distraint, sale or other similar proceedings shall
not have
been commenced or each such proceeding after being commenced is
stayed)
which are being contested in good faith by appropriate proceedings
properly instituted and diligently conducted and with respect to
which
adequate reserves or other appropriate provisions are being maintained
as
may be required in accordance with Agreement Accounting
Principles;
|
| (b) |
statutory
Liens of landlords and Liens of suppliers, mechanics, carriers,
materialmen, warehousemen or workmen and other similar Liens imposed
by
law created in the ordinary course of business for amounts not
yet due or
which are being contested in good faith by appropriate proceedings
properly instituted and diligently conducted and with respect to
which
adequate reserves or other appropriate provisions are being maintained
as
may be required in accordance with Agreement Accounting
Principles;
|
| (c) |
Liens
(other than Environmental Security and Liens in favour of the IRS
or the
PBGC or any Plan) incurred or deposits made in the ordinary course
of
business in connection with workers' compensation, unemployment
insurance
or other types of social security benefits or to secure the performance
of
bids, tenders, sales, contracts (other than for the repayment of
Indebtedness), surety, appeal and performance bonds; provided that
(A) all
such Liens do not in the aggregate materially detract from the
value of
each member of the Group's assets taken as a whole or materially
impair
the use thereof in the operation of each member of the Group's
businesses
taken as a whole, and (B) all Liens securing bonds to stay judgments
or in
connection with appeals do not secure at any time an aggregate
amount
exceeding US$30,000,000 or the equivalent in any other currency
or
currencies (such aggregate being the aggregate for all members
of the
Group)
|
| (d) |
Liens
arising with respect to zoning restrictions, easements, licences,
reservations, covenants, rights-of-way, utility easements, building
restrictions and other similar charges or encumbrances on the use
of real
property which do not in any case materially detract from the value
of the
property subject thereto or interfere with the ordinary conduct
of the
business of each member of the
Group;
|
| (e) |
Liens
of attachment or judgment with respect to judgments, writs, warrants
of
attachment, or similar process against any member of the Group
which do
not and would not constitute an Event of Default under Clause 23.10
(Judgments,
creditors' process);
|
| (f) |
any
interest or title of the lessor in the property subject to any
operating
lease (but not any finance lease or Capitalised Lease) entered
into by any
member of the Group in the ordinary course of business;
and
|
| (g) |
Liens
of commercial depository institutions arising in the ordinary course
of
business constituting a statutory or common law right of setoff
against
amounts on deposit with any such
institution.
|
"Default"
means
an Event of Default or any event or circumstance specified in Clause 23
(Events
of Default)
which
would (with the expiry of a grace period, the giving of notice, the making
of
any determination under any Finance Document or any combination of any of
the
foregoing) be an Event of Default.
"Disqualified
Stock"
means
any preferred stock and any Capital Stock that, by its terms (or by the terms
of
any security into which it is convertible or for which it is exchangeable),
or
upon the happening of any event, matures or is mandatorily redeemable, whether
pursuant to a sinking fund obligation or otherwise, or redeemable at the
option
of the holder thereof, in whole or in part, on or prior to the date that
is 91
days after the Termination Date.
"DOL"
means
the United States Department of Labour and any person succeeding to the
functions thereof.
"EBIT"
has the
meaning given hereto in Clause 20 (Financial
covenants).
"EBITDA"
has the
meaning given hereto in Clause 20 (Financial
covenants).
"Energizer
Asia"
means
Energizer Asia Investments Pte. Ltd., a company incorporated in Singapore
under
registration number 200302032C.
"Energizer
Singapore"
means
Energizer Singapore Pte. Ltd., a company incorporated in Singapore under
registration number 194600106W.
"Environment"
means
living organisms including the ecological systems of which they form part
and
the following media:
| (a) |
air
(including air within natural or man-made structures, whether above
or
below ground);
|
| (b) |
water
(including territorial, coastal and inland waters, water under
or within
land and water in drains and sewers);
and
|
| (c) |
land
(including land under water).
|
"Environmental
Law"
means
all laws and regulations of any applicable jurisdiction which:
| (a) |
have
as a purpose or effect the protection of, and/or prevention of
harm or
damage to, the Environment;
|
| (b) |
provide
remedies or compensation for harm or damage to the Environment;
or
|
| (c) |
relate
to Hazardous Substances or health and safety
matters.
|
"Environmental
Licence"
means
any Authorisation required at any time under Environmental Law.
"Environmental
Security"
means a
security in favour of any Governmental Agency for (a) any liability under
Environmental Law, or (b) damages arising from, or costs incurred by such
Governmental Agency in response to, an actual or threatened release, escape,
discharge, migration or leaching of a Hazardous Substance into the
Environment.
"Equity
Interests"
means
Capital Stock and all warrants, options or other rights to acquire Capital
Stock
(but excluding any debt security that is convertible into, or exchangeable
for,
Capital Stock).
"ERISA"
means
the US Employee Retirement Income Security Act of 1974, as amended from time
to
time, including (unless the context otherwise requires) any rules or regulations
promulgated thereunder.
"ERISA
Affiliate"
means
each person (as defined in Section 3(9) of ERISA) that is a member of a
controlled group of, or under common control with, any Obligor, within the
meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue
Code.
"ERISA
Event"
means:
| (a) |
any
reportable event as defined in Section 4043 of ERISA and the regulations
issued under such section, with respect to any Benefit Plan, excluding
however, such events as to which the PBGC by regulation waived
the
requirement of Section 4043(a) of ERISA that it be notified within
30 days
after such event occurs;
|
| (b) |
the
withdrawal of the Guarantor or any ERISA Affiliate from a Benefit
Plan
during a plan year in which the Guarantor or such ERISA Affiliate
was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA
with
respect to such plan;
|
| (c) |
the
imposition of an obligation under Section 4041 of ERISA to provide
affected parties written notice of intent to terminate a Benefit
Plan in a
distress termination described in Section 4041(c) of ERISA;
|
| (d) |
the
institution by the PBGC or any foreign Governmental Agency of proceedings
to terminate or appoint a trustee to administer a Benefit Plan
or Foreign
Pension Plan;
|
| (e) |
any
event or condition which might constitute grounds under Section
4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any Benefit Plan; or
|
| (f) |
the
partial or complete withdrawal of the Guarantor or any ERISA Affiliate
from a Multiemployer Plan.
|
"Event
of Default"
means
any event or circumstance specified as such in Clause 23 (Events
of Default).
"Existing
Facility"
means
(i) a term loan facility in US Dollars in an aggregate amount of up to
US$125,000,000 and (ii) a revolving loan facility in Singapore Dollars in
an
aggregate amount of up to S$220,000,000 under a facility agreement entered
into
between, among others, Energizer Asia as borrower, Citigroup Global Markets
Singapore Merchant Bank Ltd and Standard Chartered Bank as co-ordinating
arrangers and Citicorp Investment Bank (Singapore) Limited as agent dated
25
July 2003.
"Facility"
means
the revolving loan facility made or to be made available under this Agreement
as
described in Clause 2 (The
Facility).
"Facility
Office"
means
the office or offices notified by a Lender to the Agent in writing on or
before
the date it becomes a Lender (or, following that date, by not less than five
Business Days' written notice) as the office or offices through which it
will
perform its obligations under this Agreement.
"Fee
Letter"
means
any letter or letters dated on or about the date of this Agreement between
the
Arranger and the Borrowers (or the Agent and the Borrowers) setting out any
of
the fees referred to in Clause 11 (Fees).
"Finance
Documents"
means
this Agreement, any Hedging Document, any Fee Letter, any Transfer Certificate
and any other document designated as such by the Agent and the Borrower (each
a
"Finance
Document").
"Finance
Party"
means
the Agent, the Arranger or a Lender.
"Financial
Indebtedness"
of any
person means any indebtedness, without double counting, for or in respect
of:
| (a) |
moneys
borrowed;
|
| (b) |
any
amount raised under any acceptance credit, ▇▇▇▇ acceptance or ▇▇▇▇
endorsement facility;
|
| (c) |
any
amount raised pursuant to any note purchase facility or the issue
of
bonds, notes, debentures, loan stock or any similar
instrument;
|
| (d) |
the
amount of any liability in respect of any lease or hire purchase
contract
which would, in accordance with Agreement Accounting Principles,
be
treated as a finance or capital
lease;
|
| (e) |
receivables
sold or discounted (other than any receivables to the extent they
are sold
on a non-recourse basis);
|
| (f) |
any
amount raised under any other transaction (including any forward
or
deferred sale or purchase agreement) having the commercial effect
of a
borrowing;
|
| (g) |
any
derivative transaction entered into in connection with protection
against
or benefit from fluctuation in any rate or price (and, when calculating
the value of any derivative transaction, only the marked to market
value
shall be taken into account);
|
| (h) |
shares
which are expressed to be
redeemable;
|
| (i) |
any
counter-indemnity obligation in respect of a guarantee, indemnity,
bond,
standby or documentary letter of credit or any other instrument
issued by
a bank or financial institution;
|
| (j) |
any
Disqualified Stock (and the amount of Financial Indebtedness relating
to
Disqualified Stock shall be the aggregate amount of the liquidation
preference of such Disqualified Stock);
and/or
|
| (k) |
the
amount of any liability in respect of any guarantee or indemnity
for any
of the items referred to in paragraphs (a) to (j)
above.
|
"Financing
Facilities"
means
the US Facility, the Receivables Purchase Facility, the Senior Notes and
this
Agreement.
"Foreign
Employee Benefit Plan"
means
any employee benefit plan as defined in Section 3(3) of ERISA which is
maintained or contributed to for the benefit of the employees of any member
of
the Group, but which is not covered by ERISA pursuant to Section 4(b)(4)
of
ERISA.
"Foreign
Pension Plan"
means
any employee pension benefit plan (as defined in Section 3(2) of ERISA)
which:
| (a) |
is
maintained or contributed to for the benefit of employees of any
member of
the Group;
|
| (b) |
is
not covered by ERISA pursuant to Section 4(b)(4) thereof;
and
|
| (c) |
under
applicable local law, is required to be funded through a trust
or other
funding vehicle.
|
"Governmental
Agency"
means
any government or any governmental agency, semi-governmental or judicial
entity
or authority (including, without limitation, any stock exchange or any
self-regulatory organisation established under any law or
regulation).
"Group"
means
the Guarantor and its Subsidiaries for the time being.
"Hazardous
Substance"
means
any waste, pollutant, contaminant or other substance (including any liquid,
solid, gas, ion, living organism or noise) that may be harmful to human health
or other life or the Environment or a nuisance to any person or that may
make
the use or ownership of any affected land or property more costly.
"Hedging
Arrangements"
means
any commodity, currency or interest purchase, cap or collar agreement, forward
rate agreements, commodity, interest rate or currency future or option contract,
foreign exchange or currency purchase or sale agreement, interest rate swap,
currency swap or combined interest rate and currency swap agreement and any
other similar agreement.
"Hedging
Bank"
means,
at any time, a Lender or an Affiliate of a Lender party to any Hedging Document
at that time.
"Hedging
Documents"
means
any Hedging Arrangements entered into by a Borrower in order to hedge such
Borrower's exposure to fluctuations in interest and/or exchange rates arising
in
connection with Loans borrowed by it under this Agreement.
"Holding
Company"
means,
in relation to a company, corporation or entity, any other company, corporation
or entity in respect of which it is a Subsidiary.
"Increased
Costs"
has the
meaning given to it in Clause 13.1 (Increased
Costs).
"Indebtedness"
of any
person means, without duplication, such person's:
| (a) |
obligations
for borrowed money;
|
| (b) |
obligations
representing the deferred purchase price of property or services
(other
than accounts payable arising in the ordinary course of such person's
business payable on terms customary in the trade), which purchase
price is
due more than six months from the date of incurrence of the obligation
in
respect thereof;
|
| (c) |
obligations,
whether or not assumed, secured by Liens or payable out of the
proceeds or
production from assets now or hereafter owned or acquired by such
person;
|
| (d) |
obligations
which are evidenced by notes, acceptances or other
instruments;
|
| (e) |
Capitalised
Lease Obligations;
|
| (f) |
Contingent
Obligations in respect of
Indebtedness;
|
| (g) |
obligations
with respect to letters of credit;
|
| (h) |
Off-Balance
Sheet Liabilities;
|
| (i) |
Receivables
Facility Attributed Indebtedness;
and/or
|
| (j) |
Disqualified
Stock (and the amount of Indebtedness relating to Disqualified
Stock shall
be the aggregate amount of the liquidation preference of such Disqualified
Stock).
|
The
amount of Indebtedness of any person at any date shall be without
duplication:
| (i) |
the
outstanding balance at such date of all unconditional and/or
contingent obligations
as described above and the maximum liability of any Contingent
Obligations
in respect of any of the above at such date;
and
|
| (ii) |
in
the case of Indebtedness of any other person secured by a Lien
to which
the property or assets owned or held by such first-mentioned person
is
subject, the lesser of (1) the aggregate fair market value at such
date of
the assets subject to such Lien securing the Indebtedness of any
other
person and (2) the amount of the Indebtedness so
secured.
|
"Indirect
Tax"
means
any goods and services tax, consumption tax, value added tax or any Tax of
a
similar nature.
"Information
Memorandum"
means
the document dated 11 July 2005 (and any update thereof) in the form approved
by
the Guarantor and each of the Borrowers concerning the Group and the Borrowers
which, at the Borrowers' request and on their behalf, was prepared in relation
to this transaction and distributed by the Arranger to selected financial
institutions before the date of this Agreement.
"Internal
Revenue Code"
means
the United States Internal Revenue Code of 1986, as amended and the regulations
promulgated and any rulings issued thereunder.
"Interest
Expense"
has the
meaning given to it in Clause 20 (Financial
covenants).
"Interest
Expense Coverage Ratio"
has the
meaning given to it in Clause 20 (Financial
covenants).
"Interest
Period"
means:
| (a) |
in
relation to a Loan, any period determined in accordance with Clause
9
(Interest
Periods);
and/or
|
| (b) |
in
relation to an Unpaid Sum, any period determined in accordance
with Clause
8.3 (Default
interest).
|
"Inventory"
shall
mean any and all goods, including, without limitation, goods in transit,
wheresoever located, whether now owned or hereafter acquired by the Guarantor
or
any of its Subsidiaries, which are held for sale or lease, furnished under
any
contract of service or held as raw materials, work in process or supplies,
and
all materials used or consumed in the business of the Guarantor or any of
its
Subsidiaries, and shall include, without limitation, all right, title and
interest of the Guarantor or any of its Subsidiaries in any property the
sale or
other disposition of which has given rise to Receivables and which has been
returned to or repossessed or stopped in transit by the Guarantor or any
of its
Subsidiaries.
"Investment"
means,
with respect to any person:
| (a) |
any
purchase or other acquisition by that person of any Indebtedness,
Equity
Interests or other securities, or of a beneficial interest in any
Indebtedness, Equity Interests or other securities, issued by any
other
person;
|
| (b) |
any
purchase by that person of all or substantially all of the assets
of a
business conducted by another person;
and
|
| (c) |
any
loan, advance (other than deposits with financial institutions
available
for withdrawal on demand, prepaid expenses made, or accounts receivable
obtained, or advances to employees and similar items made or incurred,
in
each case in the ordinary course of trading) or capital contribution
by
that person to any other person, including all Indebtedness to
such person
arising from a sale of property by such person other than in the
ordinary
course of its trading.
|
"IRS"
means
the United States Internal Revenue Service and any person succeeding to the
functions thereof.
"Judicial
Manager"
means
any judicial manager appointed pursuant to the provisions of the Companies
Act.
"Lender"
means:
| (a) |
any
Original Lender; or
|
| (b) |
any
person who has become a Lender in accordance with Clause 24 (Changes
to the Lenders),
|
and
in
each case has not ceased to be a Lender in accordance with the terms of this
Agreement.
"Leverage
Ratio"
has the
meaning given to it in Clause 20 (Financial
covenants).
"Lien"
means
any lien (statutory or other), mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance or preference, priority or security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without
limitation, the interest of a vendor or lessor under any conditional sale,
Capitalised Lease or other title retention agreement).
"Loan"
means a
loan made or to be made under the Facility or the principal amount outstanding
for the time being of that loan.
"Majority
Lenders"
means a
Lender or Lenders the sum of whose Available Commitments and participations
in
the Loans then outstanding aggregate more than 50% of the sum of the Available
Facility and all the Loans then outstanding (or, if the Available Facility
is
zero and no Loan is outstanding, a Lender or Lenders the sum of whose
Commitments aggregate more than 50% of the Total Commitments (or, if the
Total
Commitments are then zero, aggregated more than 50% of the Total Commitments
immediately prior to reduction of the Total Commitments to zero)). For the
purposes of this definition, any participation in any S$ Loan shall be converted
to US Dollars at the Agent's Spot Rate of Exchange at the time determination
under this definition is made.
"Margin"
means
0.55 per cent. per annum.
"Margin
Stock"
means
margin stock or margin security within the meaning of Regulation T, U or
X.
"Market
Disruption Event"
has the
meaning given to it in Clause 10.2 (Market
disruption).
"Material
Adverse Effect"
means a
material adverse effect on or material adverse change in:
| (a) |
the
consolidated condition (financial or otherwise), assets, operations,
prospects or business of the Obligors taken as a
whole;
|
| (b) |
the
ability of the Obligors (taken as a whole) to perform and comply
with any
of the obligations under any Finance Document, in any material
respect;
or
|
| (c) |
the
ability of any Finance Party to enforce, in any material respect,
any
Finance Document or its rights or remedies under any Finance
Document.
|
"Material
Domestic Subsidiary"
means
any consolidated Subsidiary (other than any SPV) of the Guarantor:
| (a) |
incorporated
under the laws of any jurisdiction in the United States; and
|
| (b) |
the
total assets of which exceed, as at the end of any calendar quarter
or, in
the case of consummation of a Permitted Acquisition, at the time
of
consummation of such Permitted Acquisition (calculated by the Guarantor
on
a pro
forma
basis in accordance with the Agreement Accounting Principles taking
into
account the consummation of such Permitted Acquisition), three
per cent.
of the Consolidated Domestic Assets of the Guarantor and its consolidated
Subsidiaries (other than SPVs).
|
"Material
Foreign Subsidiary"
means
any consolidated Subsidiary (other than any SPV and the Borrowers) of the
Guarantor:
| (a) |
incorporated
or organised under the laws of any jurisdiction outside the United
States;
and
|
| (b) |
the
total assets of which exceed, as at the end of any calendar quarter
or, in
the case of consummation of a Permitted Acquisition, at the time
of
consummation of such Permitted Acquisition (calculated by the Guarantor
on
a pro
forma
basis in accordance with the Agreement Accounting Principles taking
into
account the consummation of such Permitted Acquisition), five per
cent. of
the Consolidated Assets of the Guarantor and its consolidated Subsidiaries
(excluding those attributable to SPVs and the
Borrowers).
|
"Material
Subsidiaries"
means
each of the Guarantor's Material Domestic Subsidiaries and Material Foreign
Subsidiaries.
"Month"
means a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:
| (a) |
(subject
to paragraph (c) below) if the numerically corresponding day in
that next
calendar month (in which such period is to end) is not a Business
Day,
that period shall end on the next Business Day in that calendar
month if
there is one, or if there is not, on the immediately preceding
Business
Day in that next calendar month;
|
| (b) |
if
there is no numerically corresponding day in that next calendar
month in
which that period is to end, that period shall end on the last
Business
Day in that next calendar month;
and
|
| (c) |
if
any Interest Period begins on the last Business Day of a calendar
month
and, consistent with the terms of this Agreement, that Interest
Period is
to be of a duration equal to a whole number of Months, that Interest
Period shall end on the last Business Day in the calendar month
in which
that Interest Period is to end.
|
The
above
rules will only apply to the last Month of any period.
"Multiemployer
Plan"
means,
at any time, a multiemployer plan (as defined in Section 4001(a)(3) of ERISA)
then or at any time during the previous six years maintained for, or contributed
to (or to which there is or was an obligation to contribute) on behalf of,
employees of any Obligor or ERISA Affiliate.
"Net
Income"
has the
meaning given hereto in Clause 20 (Financial
covenants).
"Non-ERISA
Commitments"
means:
| (a) |
each
pension, medical, dental, life, accident insurance, disability,
group
insurance, sick leave, profit sharing, deferred compensation, bonus,
stock
option, stock purchase, retirement, savings, severance, stock ownership,
performance, incentive, hospitalisation or other insurance, or
other
welfare, benefit or fringe benefit plan, policy, trust, understanding
or
arrangement of any kind; and
|
| (b) |
each
employee collective bargaining agreement and each agreement, understanding
or arrangement of any kind, with or for the benefit of any present
or
prior officer, director, employee or consultant (including, without
limitation, each employment, compensation, deferred compensation,
severance or consulting agreement or arrangement and any agreement
or
arrangement associated with a change in ownership of any member
of the
Group),
|
to
which
an Obligor or an ERISA Affiliate is a party or with respect to which an Obligor
or an ERISA Affiliate is or will be required to make any payment other than
any
Plans.
"Obligors"
means
the Borrowers and the Guarantor (each an "Obligor").
"Off-Balance
Sheet Liabilities"
of a
person means, without duplication:
| (a) |
any
Receivables Facility Attributed Indebtedness and/or repurchase
obligation
or liability of such person or any of its Subsidiaries with respect
to
Receivables or notes receivable sold or disposed of by such person
or any
of its Affiliates (calculated to include the unrecovered investment
of
purchasers or transferees of Receivables or notes receivable or
any other
obligation of the Guarantor or the person making such sale or disposal
to
purchasers/transferees of interests in Receivables or notes receivables
or
the agent for such
purchasers/transferees);
|
| (b) |
any
liability under any sale and leaseback transactions which do not
create a
liability on the consolidated balance sheet of such
person;
|
| (c) |
any
liability under any financing lease or so-called "synthetic" lease
transaction; or
|
| (d) |
any
obligations arising with respect to any other transaction which
is the
functional equivalent of or takes the place of borrowing but which
does
not constitute a liability on the consolidated balance sheets of
such
person and its Subsidiaries.
|
"Original
Financial Statements"
means:
| (a) |
in
relation to the Guarantor, the audited consolidated financial statements
of the Group for the financial year ended 30 September 2004;
|
| (b) |
in
relation to each of Energizer Asia and Energizer Singapore, its
audited
unconsolidated financial statements for its financial year ended
31
December 2004, as delivered to the Lenders together with the Information
Memorandum; and
|
| (c) |
in
relation to each of Sonca Products and ▇▇▇▇▇▇ Asia, its audited
unconsolidated financial statements for its financial year ended
30
September 2004, as delivered to the Lenders together with the Information
Memorandum.
|
"Originators"
means
the Guarantor and/or any of its Subsidiaries in their respective capacities
as
parties to any Receivables Purchase Documents, as sellers or transferors
of any
Receivables and Related Security in connection with a Permitted Receivables
Transfer.
"Party"
means a
party to this Agreement.
"PBGC"
means
the Pension Benefit Guaranty Corporation of the USA established pursuant
to
Section 4002 of ERISA or any entity succeeding to all or any of its functions
under ERISA.
"Permitted
Acquisition"
has the
meaning given hereto in Clause 22.4 (Acquisitions
and Investments).
"Permitted
Hedging Arrangements"
means
any foreign exchange or interest rate swap transactions for spot or forward
delivery entered into in the ordinary course of business (and not for investment
for speculative purposes) entered into by any member of the Group to hedge
its
or its Subsidiaries' reasonably estimated currency or interest rate
exposures.
"Permitted
Receivables Transfer"
means:
| (a) |
a
sale or other transfer by a member of the Group in its capacity
as a party
to a Receivables Purchase Document to an SPV of Receivables and
Related
Security for fair market value and without recourse (except for
limited
recourse typical of such structured finance transactions);
and/or
|
| (b) |
a
sale or other transfer by an SPV to (i) purchasers of or other
investors
in such Receivables and Related Security so sold or transferred
to such
SPV under (a) above or (ii) any other person (including an SPV)
in a
transaction in which purchasers or other investors purchase or
are
otherwise transferred such Receivables and Related Security (so
sold or
transferred to such SPV under (a) above), in each case pursuant
to and in
accordance with the terms of the Receivables Purchase
Documents.
|
"Plan"
means
an employee benefit plan defined in Section 3(3) of ERISA in respect of which
the Guarantor or any member of the Group is, or within the immediately preceding
six (6) years was, an "employer" as defined in Section 3(5) of
ERISA.
"Quotation
Day"
means,
in relation to any period for which an interest rate is to be determined,
two
Singapore Business Days before the first day of that period, unless market
practice differs in the Relevant Interbank Market for a currency, in which
case
the Quotation Day for that currency will be determined by the Agent in
accordance with market practice in the Relevant Interbank Market (and if
quotations for that currency and period would normally be given by leading
banks
in the Relevant Interbank Market on more than one day, the Quotation Day
will be
the last of those days).
"Receivable(s)"
means
and includes all of the Guarantor and its Subsidiaries' presently existing
and
hereafter arising or acquired accounts, accounts receivable, and all present
and
future rights of the Guarantor and its Subsidiaries to payment for goods
sold or
leased or for services rendered (except those evidenced by instruments or
chattel paper), whether or not they have been earned by performance, and
all
rights in any merchandise or goods which any of the same may represent, and
all
rights, title, security and guarantees with respect to each of the foregoing,
including, without limitation, any right of stoppage in transit.
"Receivables
and Related Security"
means
Receivables and the related security and collections with respect thereto
which
are or are to be sold or transferred by any member of the Group to any
SPV.
"Receivables
Facility Attributed Indebtedness"
means
the amount of obligations outstanding under a receivables purchase facility
or
similar arrangement on any date of determination that would be characterised
as
principal if such facility or arrangement were structured as a secured lending
transaction rather than as a purchase or similar arrangement.
"Receivables
Facility Financing Costs"
means
such portion of the cash fees, service charges, and other costs, as well
as all
collections or other amounts retained by purchasers of receivables pursuant
to a
receivables purchase facility or similar arrangement, which are in excess
of
amounts paid to the Guarantor and its consolidated Subsidiaries (other than
SPVs) under any receivables purchase facility or similar arrangement for
the
purchase of receivables pursuant to such facility or arrangement and are
the
equivalent of the interest component of the financing if such facility or
arrangement were characterised as an on-balance sheet financing
transaction.
"Receivables
Purchase Documents"
means
(i) the 2000 Receivables Sale Agreement and (ii) the 2000 Receivables Purchase
Agreement, or any other series of receivables purchase or sale agreements
generally consistent with terms contained in comparable structured finance
transactions pursuant to which a member of the Group sells or transfers to
SPVs
all of their respective right, title and interest in and to certain Receivables
and Related Security for further sale or transfer to other purchasers of
or
investors in such Receivables and Related Security (in any such case, together
with the other documents, instruments and agreements executed in connection
therewith), as any such agreements may be amended, restated, supplemented
or
otherwise modified from time to time, or any replacement or substitution
therefor.
"Receivables
Purchase Facility"
means
the securitisation facility made available to the Guarantor, pursuant to
which
the Receivables and Related Security of members of the Group are transferred
to
one or more SPVs, and thereafter to certain investors, pursuant to the terms
and
conditions of the Receivables Purchase Documents.
"Reference
Banks"
means
the principal Singapore offices of Citibank, N.A. and Standard Chartered
Bank or
such other banks as may be appointed by the Agent in consultation with the
Borrower.
"Regulation
T",
"Regulation
U"
or
"Regulation
X"
means
Regulation T, U or, as the case may be, X of the Board of Governors as from
time
to time in effect and all official rulings and interpretations thereunder
or
thereof.
"Relevant
Borrower"
means
Energizer Singapore, or any other Borrower as may be notified to the Agent
by
all the Borrowers jointly from time to time.
"Relevant
Interbank Market"
means
the Singapore interbank market.
"Repeating
Representations"
means
each of the representations set out in Clause 18 (Representations).
"Rollover
Loan"
means
one or more Loans:
| (a) |
that
are made or to be made to a Borrower on the same day that one or
more
maturing Loans owing by such Borrower is or are due to be
repaid;
|
| (b) |
the
aggregate amount of which is equal to or less than such maturing
Loan(s);
and
|
| (c) |
that
are made or to be made to the same Borrower for the purpose of
refinancing
such maturing Loan(s).
|
"▇▇▇▇▇▇
Asia"
means
▇▇▇▇▇▇ Asia Limited, a company incorporated in Hong Kong under registration
number 629014.
"Screen
Rate"
means:
| (a) |
in
relation to SIBOR, the SIBOR rate for US Dollars for the relevant
period;
and
|
| (b) |
in
relation to SOR, the swap offer rate for Singapore Dollars for
the
relevant period,
|
displayed
on page 50157 of the Moneyline Telerate screen under the caption "Association
of
Banks in Singapore SIBOR and Swap Offer Rate fixing at 11 am Singapore time".
If
the agreed page is replaced or service ceases to be available, the Agent
may
specify another page or service displaying the appropriate rate after
consultation with the Borrowers and the Lenders.
"Security"
means a
mortgage, charge, pledge, lien or other security interest securing any
obligation of any person or any other agreement or arrangement having a similar
effect.
"Senior
Management Team"
means
(a) any of the president, any vice president (including any executive vice
president), the chief financial officer, the treasurer, the chief executive
officer, secretary or any other member of management of an Obligor and (b)
any
chief executive officer, president, vice president, chief financial officer,
treasurer, secretary or any other member of management of any Material Domestic
Subsidiary.
"Senior
Note Purchase Agreements"
means,
collectively, the 2003 Note Purchase Agreement and the 2004 Note Purchase
Agreement.
"Senior
Notes"
means,
collectively, the 2003 Senior Notes and the 2004 Senior Notes.
"SIBOR"
means,
in relation to any US$ Loan and any Interest Period relating
thereto:
| (a) |
the
applicable Screen Rate; or
|
| (b) |
(if
no Screen Rate is available for that Interest Period of that US$
Loan) the
arithmetic mean of the rates (rounded upwards to four decimal places)
as
supplied to the Agent at its request quoted by the Reference Banks
to
leading banks in the Relevant Interbank
Market,
|
as
of the
Specified Time on the Quotation Day for the offering of deposits in US Dollars
for a period comparable to that Interest Period for that US$ Loan.
"Singapore"
means
The Republic of Singapore.
"Singapore
Business Day"
means a
day (other than Saturday or Sunday) on which deposits may be dealt in on
the
Relevant Interbank Market and banks are open for general business in
Singapore.
"Singapore
Dollars"
or
"S$"
means
the lawful currency of Singapore.
"S$
Loan"
means a
Loan that is denominated in Singapore Dollars.
"Sonca
Products"
means
Sonca Products Ltd, a company incorporated in Hong Kong under registration
number 167972.
"SOR"
means,
in relation to any S$ Loan and any Interest Period relating
thereto:
| (a) |
the
applicable Screen Rate as of the Specified Time on the Quotation
Day for
the offering of deposits in Singapore Dollars for a period comparable
to
that Interest Period for that S$ Loan;
or
|
| (b) |
(if
no Screen Rate is available for Singapore Dollars for that Interest
Period
of that S$ Loan) the arithmetic mean of the rates (rounded upwards
to four
decimal places) as supplied to the Agent at its request quoted
by the
Reference Banks to leading banks in the Relevant Interbank Market,
to be,
in relation to that Interest Period for that S$ Loan, equal to
Y (rounded
upwards to four decimal places) calculated by each Reference Bank
in
accordance with the following
formula:
|
where
|
F
|
=
|
the
premium (being a positive number) or the discount (being a negative
number), as the case may be, which would have been paid or received
by
such Reference Bank in offering to sell US Dollars forward in exchange
for
Singapore Dollars on the last day of that Interest Period in the
Relevant
Interbank Market as of the Specified Time on the Quotation
Day;
|
|
S
|
=
|
the
exchange rate at which such Reference Bank sells US Dollars spot
in
exchange for Singapore Dollars in the Singapore foreign exchange
market,
as quoted by such Reference Bank as of the Specified Time on the
Quotation
Day;
|
|
R
|
=
|
the
rate at which such Reference Bank is offering US Dollar deposits
for that
Interest Period in an amount comparable to the US Dollar equivalent
of
that S$ Loan (such US Dollar equivalent to be determined by such
Reference
Bank at such rate or rates as such Reference Bank determines to
be most
appropriate) to prime banks in the Relevant Interbank Market as
of the
Specified Time on the Quotation Day; and
|
|
N
|
=
|
the
actual number of days in that Interest Period.
|
"Specified
Time"
means a
time determined in accordance with Schedule 7 (Timetables).
"SPV"
means
any special purpose entity established for the purpose of purchasing receivables
in connection with a receivables securitisation transaction permitted under
the
terms of this Agreement.
"Standing
Payment Instruction"
means:
| (a) |
in
relation to an Original Lender, payment instructions set out below
the
name of that Lender on Schedule 10 (Standing
Payment Instructions);
|
| (b) |
in
relation to any other Lender, payment instructions set out in the
Transfer
Certificate to which that Lender is
signatory,
|
or
such
other payment instructions as that Lender may notify to the Agent by not
less
than 5 Business Days' notice.
"Subsidiary"
means
(in relation to Energizer Asia or Energizer Singapore) a subsidiary within
the
meaning of section 5 of the Companies Act, or (in relation to Sonca Products
or
▇▇▇▇▇▇ Asia) a subsidiary within the meaning of section 2(4) of the Companies
Ordinance, or (in relation to any other person (the "first
Person")
at any
particular time) any other person which is then either controlled, or more
than
50% of whose issued ordinary or common equity share capital or ownership
interests having ordinary voting power (or the like) is or are then beneficially
owned, directly or indirectly, by the first Person.
"Tax"
means
any tax, levy, impost, duty or other charge or withholding of a similar nature
(including any penalty or interest payable in connection with any failure
to pay
or any delay in paying any of the same).
"Termination
Date"
means
the date which is 60 calendar months after the date of this Agreement, or
if
such date is not a Business Day, the immediately preceding Business
Day.
"Third
Parties Act"
means
the Contract (Rights of Third Parties) ▇▇▇ ▇▇▇▇ of the United
Kingdom.
"Total
Borrowings"
has the
meaning given hereto in Clause 20 (Financial
covenants).
"Total
Commitments"
means
the aggregate of the Commitments, being US$325,000,000 at the date of this
Agreement.
"Transfer
Certificate"
means a
certificate substantially in the form set out in Schedule 4 (Form
of Transfer Certificate)
or in
any other form agreed between the Agent and the Borrower from time to
time.
"Transfer
Date"
means,
in relation to a transfer by a Lender of any or all of its rights and
obligations under this Agreement, the later of:
| (a) |
the
proposed Transfer Date specified in the Transfer Certificate relating
to
such transfer; and
|
| (b) |
the
date on which the Agent executes the Transfer Certificate relating
to such
transfer.
|
"2000
Receivables Purchase Agreement"
means
that certain Receivables Purchase Agreement, dated as of 4 April 2000, as
amended, extended or replaced in a manner permitted by this Agreement, among
Energizer Receivables Funding Corporation, a Delaware corporation, as the
seller
thereunder, Eveready Battery Company, Inc., a Delaware Corporation, as the
servicer thereunder, Falcon Asset Securitization Corporation and JPMorgan
Chase
Bank, N.A., as successor to Bank One, as the agent thereunder.
"2000
Receivables Sale Agreement"
means
that certain Receivables Sale Agreement, dated as of 4 April 2000, as amended,
extended or replaced in a manner permitted by this Agreement, between Eveready
Battery Company, Inc., a Delaware corporation, and Energizer Receivables
Funding
Corporation, a Delaware corporation and SPV.
"2003
Note Purchase Agreement"
means
that certain Note Purchase Agreement dated as of 1 June 2003 among the Guarantor
and the "Purchasers" referred to therein, under which the Guarantor has issued
senior unsecured notes in the aggregate principal amount of US$700,000,000
(the
"2003
Senior Notes"),
which
shall be pari
passu
with the
obligations hereunder and any obligations under the Hedging Documents, as
such
Note Purchase Agreement may be amended, modified or supplemented from time
to
time in a manner that is not materially adverse to the interests of the
Lenders.
"2003
Senior Notes"
has the
meaning given to it in the definition of "2003
Note Purchase Agreement".
"2004
Note Purchase Agreement"
means
that certain Note Purchase Agreement dated as of 1 November, 2004 among the
Guarantor and the "Purchasers" referred to therein, under which the Guarantor
has issued senior unsecured notes in an aggregate principal amount not to
exceed
US$300,000,000 (the "2004
Senior Notes"),
which
notes shall be pari passu with the obligations hereunder and any obligation
under the Hedging Documents, as such Note Purchase Agreement may be amended,
modified or supplemented from time to time in a manner that is not materially
adverse to the interests of the Lenders.
"2004
Senior Notes"
has the
meaning given to it in the definition of "2004
Note Purchase Agreement"
above.
"Unpaid
Sum"
means
any sum due and payable but unpaid by an Obligor under any or all of the
Finance
Documents.
"US"
or
"United
States"
means
the United States of America.
"US
Dollars"
or
"US$"
means
the lawful currency of the United States of America.
"US
Facility"
means
the Revolving Credit Agreement dated 16 November 2004 among the Guarantor,
the
institutions listed therein as lenders, JPMorgan Chase Bank, N.A., as
administrative agent, Bank of America, N.A. as syndication agent and Citibank,
N.A. as documentation agent, as such agreement may be hereafter amended,
restated, supplemented, refinanced, increased or reduced from time to time,
and
any successor credit agreement or similar facility.
"US$
Loan"
means a
Loan that is denominated in US Dollars.
"Utilisation"
means a
utilisation of the Facility.
"Utilisation
Date"
means
the date of a Utilisation, being the date on which the Loan (the subject
of such
Utilisation) is to be made.
"Utilisation
Request"
means a
notice substantially in the form set out in Schedule 3 (Requests).
| 1.2 |
Construction
|
| (a) |
Unless
a contrary indication appears, any reference in this Agreement
to:
|
| (i) |
the
Agent,
the Arranger,
any Finance
Party,
any Lender,
any Obligor
or
any Party
shall be construed so as to include its successors in title, permitted
assigns and permitted transferees;
|
| (ii) |
"assets"
includes present and future properties, revenues and rights of
every
description;
|
| (iii) |
the
"control"
or "controlling"
of one person (the "first
person")
by another person (the "second
person")
or the first person being "controlled"
by the second person means that the second person (whether directly
or
indirectly and whether by the ownership of share capital, the possession
of voting power, contract or otherwise) has the power to appoint
and/or
remove all or a majority of the members of the board of directors
or other
governing body of the first person or otherwise controls or has
the power
of control over the affairs and policies of the first person and
for the
purposes of the definition of "Affiliate"
in Clause 1.1 (Definitions),
other than where such definition is referred to in the definition
of
"Hedging Bank", means, in addition to the foregoing, that the second
person is the beneficial owner of greater than 10 per cent. of
any class
of voting shares or securities or other voting interests of the
first
person;
|
| (iv) |
a
Finance
Document
or
any other agreement or instrument is a reference to that Finance
Document
or other agreement or instrument as amended or
novated;
|
| (v) |
a
"guarantee"
also includes an indemnity, and any other obligation (whatever
called) of
any person to pay, purchase, provide funds (whether by the advance
of
money, the purchase of or subscription for shares or other securities,
the
purchase of assets or services, or otherwise) for the payment of,
indemnify against the consequences of default in the payment of,
or
otherwise be responsible for, any indebtedness of any other
person.
|
| (vi) |
"indebtedness"
includes any obligation (whether incurred as principal or as surety)
for
the payment or repayment of money, whether present or future, actual
or
contingent;
|
| (vii) |
a
"person"
includes any person, firm, company, corporation, government, state
or
agency of a state or any association, trust or partnership (whether
or not
having separate legal personality) or two or more of the
foregoing;
|
| (viii) |
a
"regulation"
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law) of any governmental,
intergovernmental or supranational body, agency, department or
regulatory,
self-regulatory or other authority or
organisation;
|
| (ix) |
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
| (x) |
a
time of day is a reference to Singapore
time.
|
| (b) |
Section,
Clause and Schedule headings are for ease of reference
only.
|
| (c) |
Unless
a contrary indication appears, a term used in any other Finance
Document
or in any notice or certificate given under or in connection with
any
Finance Document has the same meaning in that Finance Document,
notice or
certificate as in this Agreement.
|
| (d) |
A
Default (other than an Event of Default) is "continuing"
if it has not been remedied or waived and an Event of Default is
"continuing"
if it has not been waived.
|
| 1.3 |
Third
Party Rights
|
| (a) |
Except
as provided in a Finance Document, the terms of a Finance Document
may be
enforced and enjoyed only by a Party to it and the operation of
the Third
Parties Act is excluded.
|
| (b) |
Notwithstanding
any provision of any Finance Document, the consent of any person
who is
not a party to a Finance Document is not required to vary, rescind
or
terminate that Finance Document.
|
THE
FACILITY
| 2. |
THE
FACILITY
|
| 2.1 |
The
Facility
|
Subject
to the terms of this Agreement, the Lenders make available to the Borrowers
a
revolving loan facility in US Dollars and Singapore Dollars in an aggregate
amount (or aggregate equivalent amount) equal to the Total Commitments.
| 2.2 |
Finance
Parties' rights and
obligations
|
| (a) |
The
obligations of each Finance Party under the Finance Documents are
several.
Failure by a Finance Party to perform its obligations under the
Finance
Documents does not affect the obligations of any other Party under
the
Finance Documents. No Finance Party is responsible for the obligations
of
any other Finance Party under the Finance
Documents.
|
| (b) |
The
rights of each Finance Party under or in connection with the Finance
Documents are separate and independent rights and any debt arising
under
the Finance Documents to a Finance Party from an Obligor shall
be a
separate and independent debt.
|
| (c) |
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
| 3. |
PURPOSE
|
| 3.1 |
Purpose
|
Without
prejudice to the other provisions of this Agreement, each Borrower shall
apply
all amounts borrowed by it under the Facility for:
| (a) |
refinancing
existing indebtedness of the
Borrowers;
|
| (b) |
repayment
of inter-company notes;
|
| (c) |
repatriation
of funds to the Guarantor in connection with the American Jobs
Creation
Act of 2004; and/or
|
| (d) |
general
corporate funding purposes of the
Borrowers.
|
| 3.2 |
Monitoring
|
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
| 4. |
CONDITIONS
OF UTILISATION
|
| 4.1 |
Initial
conditions precedent
|
No
Borrower may deliver a Utilisation Request unless the Agent has received
all of
the documents and other evidence listed in and appearing to comply with the
requirements of Schedule 2 (Conditions
precedent)
in form
and substance satisfactory to the Agent. The Agent shall notify the Relevant
Borrower and the Lenders promptly upon being so satisfied.
| 4.2 |
Further
conditions precedent
|
The
Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation)
in
relation to any Loan if on the date of the Utilisation Request (relating
to such
Loan) and on the proposed Utilisation Date (relating to such Loan):
| (a) |
in
the case of the first Utilisation, the Agent has received evidence,
in a
form satisfactory to it, that the Relevant Borrower has given irrevocable
written notice of prepayment of all of the outstanding indebtedness
under
the Existing Facility, such prepayment to be made on or before
the date
falling 2 Business Days after the first Utilisation
Date;
|
| (b) |
in
the case of a Rollover Loan, no Event of Default is continuing
or would
result from such proposed Loan and, in the case of any other Loan,
no
Default is continuing or would result from such proposed Loan;
and
|
| (c) |
the
Repeating Representations to be made by each Obligor are true in
all
material respects.
|
| 4.3 |
Maximum
number of Loans
|
A
Borrower may not deliver a Utilisation Request if as a result of the proposed
Utilisation nine or more Loans would be outstanding.
UTILISATION
| 5. |
UTILISATION
|
| 5.1 |
Delivery
of a Utilisation Request
|
A
Borrower may utilise the Facility by delivery to the Agent of a duly completed
Utilisation Request not later than the Specified Time.
| 5.2 |
Completion
of a Utilisation Request
|
| (a) |
Each
Utilisation Request is irrevocable and will not be regarded as
having been
duly completed unless:
|
| (i) |
the
proposed Utilisation Date is a Business Day within the Availability
Period;
|
| (ii) |
the
currency and amount of the proposed Utilisation comply with Clause
5.3
(Currency
and amount);
|
| (iii) |
the
proposed Interest Period complies with Clause 9 (Interest
Periods);
and
|
| (iv) |
(in
the case of a Rollover Loan) it specifies that the proposed Loan
is a
Rollover Loan and identifies the Loans towards which the proceeds
of such
Rollover Loan should be applied or (in the case of any other Loan)
it
specifies the account and bank (which must be in the principal
financial
centre of the country of the currency of such proposed Loan) to
which the
proceeds of such proposed Loan are to be
credited.
|
| (b) |
Only
one Loan may be requested in each Utilisation
Request.
|
| 5.3 |
Currency
and amount
|
| (a) |
The
currency specified in a Utilisation Request must be US Dollars
or
Singapore Dollars.
|
| (b) |
The
amount of the proposed Loan must be an amount which is not more
than the
Available Facility (or, in the case of a proposed Loan in Singapore
Dollars, an amount which, when converted into US Dollars at the
Agent's
Spot Rate of Exchange three Business Days before the proposed Utilisation
Date for such Loan, is not more than the Available Facility) and
which
is:
|
| (i) |
(in
the case of a proposed Loan in US$) a minimum of US$10,000,000
and an
integral multiple of US$1,000,000 or if less, equal to the Available
Facility immediately prior to the making of such loan;
or
|
| (ii) |
(in
the case of a proposed Loan in S$) a minimum of S$10,000,000 and
an
integral multiple of S$1,000,000 or if less, equal to the Available
Facility immediately prior to the making of such loan (converted
at the
Agent’s Spot Rate of Exchange as at the day falling three Business Days
before the Utilisation Date for such proposed
Loan).
|
| 5.4 |
Lenders'
participation
|
| (a) |
If
the conditions set out in Clauses 4 (Conditions
of Utilisation)
and 5.1 (Delivery
of a Utilisation Request)
to 5.3 (Currency
and amount)
have been met, each Lender shall make its participation in each
Loan
available by the Utilisation Date for such Loan through its Facility
Office.
|
| (b) |
The
amount of each Lender's participation in each Loan will be equal
to a
proportion of such Loan, which proportion is equal to the proportion
borne
by such Lender's Available Commitment to the Available Facility
immediately prior to making such
Loan.
|
| (c) |
The
Agent shall notify each Lender of the amount of each Loan and the
amount
of its participation in that Loan, in each case, by the Specified
Time.
|
REPAYMENT,
PREPAYMENT AND CANCELLATION
| 6. |
REPAYMENT
|
| 6.1 |
Repayment
of Loans
|
Subject
to Clause 29.4 (Netting
of payments),
the
Borrower to which any Loan is made shall repay that Loan on the last day
of its
Interest Period.
Without
prejudice to the foregoing, all Loans must be repaid in full on or prior
to the
Termination Date.
| 7. |
PREPAYMENT
AND CANCELLATION
|
| 7.1 |
Illegality
|
| (a) |
If
it becomes unlawful in any applicable jurisdiction for a Lender
to perform
any of its obligations as contemplated by this Agreement or to
fund or
maintain its participation in any Loan or any part
thereof:
|
| (i) |
that
Lender shall promptly notify the Agent upon becoming aware of that
event
and the Agent shall promptly notify the Relevant Borrower upon
the receipt
of such notification from that
Lender;
|
| (ii) |
upon
the Agent so notifying the Relevant Borrower (the "notification
date"),
that Lender's Commitment shall be treated as if cancelled for all
purposes
of this Agreement (other than Clause 24 (Changes
to the Lenders)),
and that Lender shall have no obligation to fund or participate
in any
Loan to be made following the notification date, and the Relevant
Borrower
may deliver a notice pursuant to Clause 24.7 (Replacement
of certain Lenders)
requesting a replacement of that
Lender.
|
| (b) |
If,
in relation to any Lender, by the earlier of (A) the sixth Business
Day
following delivery of the Relevant Borrower’s notice pursuant to Clause
24.7 (Replacement
of certain Lenders)
in respect of such Lender, (B) the date specified by that Lender
in the
notice delivered to the Agent pursuant to sub-paragraph (a)(i)
of this
Clause 7.1 (such date being no earlier than the last day of any
applicable
grace period permitted by law), and (C) the last day of the Interest
Period for any Loan outstanding on the notification date (the earliest
of
such dates being the "relevant
date"),
that Lender has not been replaced in accordance with Clause 24.7
(Replacement
of certain Lenders):
|
| (i) |
the
Commitment of that Lender will be immediately cancelled for all
purposes
(including for the purpose of Clause 24 (Changes
to the Lenders));
and
|
| (ii) |
each
Borrower shall repay that Lender's participation in each Loan made
to that
Borrower on the last day of the Interest Period for such Loan occurring
on
or after the relevant date or, if earlier, the date specified by
that
Lender in the notice delivered by it to the Agent pursuant to
sub-paragraph (a)(i) of this Clause
7.1.
|
| 7.2 |
Change
of control
|
If
the
Guarantor ceases to wholly and beneficially own (directly or indirectly)
and
control a Borrower or there is a Change of Control:
| (a) |
the
Borrowers shall promptly notify the Agent upon becoming aware of
that
event;
|
| (b) |
none
of the Borrowers may make a Utilisation (except for a Rollover
Loan)
unless otherwise agreed by the Majority Lenders;
and
|
| (c) |
if
the Majority Lenders so require, the Agent shall, by not less than
30
days' notice to such Borrower(s), cancel the Facility and declare
all
outstanding Loans, together with accrued interest, and all other
amounts
accrued under the Finance Documents immediately due and payable,
whereupon
the Facility will be cancelled (and the Available Commitment of
each
Lender shall be reduced to zero) and all of the Loans, together
with
accrued interest, and all other amounts accrued under the Finance
Documents will become immediately due and
payable.
|
| 7.3 |
Voluntary
cancellation
|
The
Relevant Borrower may, if it gives the Agent not less than 5 Business Days'
(or
such shorter period as the Majority Lenders may agree) prior notice, cancel
the
whole or any part (being a minimum amount of US$10,000,000 and an integral
multiple of US$1,000,000) of the Available Facility. Any cancellation under
this
Clause 7.3 shall reduce the Commitments of the Lenders rateably.
| 7.4 |
Mandatory
cancellation
|
The
Available Facility shall be cancelled immediately following the last day
of the
Availability Period.
| 7.5 |
Right
of repayment and cancellation in relation to a single
Lender
|
| (a) |
If:
|
| (i) |
by
reason of the introduction after the date of this Agreement of
or any
change after the date of this Agreement in (or in the interpretation,
administration or application of) any law or regulation, any sum
payable
to any Lender by an Obligor is required to be increased under paragraph
(c) of Clause 12.2 (Tax
gross-up)
to a greater extent than would have been required had that payment
been
made on the date of this Agreement;
or
|
| (ii) |
any
Lender claims indemnification from any of the Borrowers under Clause
12.3
(Tax
indemnity)
or Clause 13.1 (Increased
costs),
|
the
Relevant Borrower may, whilst the circumstance giving rise to such requirement
or indemnification continues, give the Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of that
Lender's participation in the Loans.
| (b) |
On
receipt of a notice referred to in paragraph (a) above in respect
of a
Lender, the Commitment of that Lender shall immediately be reduced
to
zero.
|
| (c) |
On
the last day of each Interest Period which ends after the Relevant
Borrower has given notice under paragraph (a) above in respect
of a Lender
(or, if earlier, the date specified by the Relevant Borrower in
that
notice), each Borrower shall repay that Lender's participation
in each
Loan made to that Borrower.
|
| 7.6 |
Restrictions
|
| (a) |
Any
notice of cancellation or prepayment given by any Party under this
Clause
7 shall be irrevocable and, unless a contrary indication appears
in this
Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
|
| (b) |
Any
prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs,
without
premium or penalty.
|
| (c) |
Unless
a contrary indication appears in this Agreement, any part of the
Facility
which is prepaid may be reborrowed in accordance with the terms
of this
Agreement.
|
| (d) |
None
of the Borrowers shall repay or prepay all or any part of the Loans
or
cancel all or any part of the Commitments of the Lenders except
at the
times and in the manner expressly provided for in this
Agreement.
|
| (e) |
No
amount of the Total Commitments (or any Commitment of any Lender)
cancelled under this Agreement may be subsequently
reinstated.
|
| (f) |
If
the Agent receives a notice under this Clause 7 it shall promptly
forward
a copy of that notice to either the Relevant Borrower (on behalf
of all of
the Borrowers) or the affected Lender, as
appropriate.
|
COSTS
OF UTILISATION
| 8. |
INTEREST
|
| 8.1 |
Calculation
of interest
|
Subject
to Clause 8.3 (Default
interest),
the
rate of interest on each Loan for each Interest Period relating thereto is
the
percentage rate per annum which is the aggregate of:
| (i) |
the
Margin; and
|
| (ii) |
(in
the case of a US$ Loan) SIBOR for such Loan and such Interest Period
or
(in the case of a S$ Loan) SOR for such Loan and such Interest
Period.
|
| 8.2 |
Payment
of interest
|
A
Borrower to which a Loan has been made shall pay accrued interest on that
Loan
on the last day of the Interest Period relating to that Loan (and, if such
Interest Period is longer than six Months, on the dates falling at six monthly
intervals after the first day of such Interest Period).
| 8.3 |
Default
interest
|
| (a) |
If
an Obligor fails to pay any amount payable by it under a Finance
Document
on its due date, or after the occurrence of an Event of Default
and for so
long as that Event of Default is continuing, interest shall accrue
on each
overdue amount and each other amount owed to any or all of the
Finance
Parties under the Finance Documents, whether or not due, from the
due date
of that overdue amount or the date of that Event of Default, as
the case
may be, up to the date of actual payment (both before and after
judgment)
at a rate which, subject to paragraph (b) below, is the sum of
2 per cent.
per annum and the rate which would have been payable if each of
such
overdue and other amounts had, during such period, constituted
a Loan in
the currency of such overdue or other amount for successive Interest
Periods, each of a duration selected by the Agent (acting reasonably).
Any
interest accruing under this Clause 8.3 on any amount shall be
immediately
payable by the Obligor owing such amount on demand by the
Agent.
|
| (b) |
If
any overdue amount consists of all or part of a Loan which became
due on a
day which was not the last day of an Interest Period relating to
that
Loan:
|
| (i) |
the
first Interest Period for which interest (at the rate referred
to in
paragraph (a)) accrues shall have a duration equal to the unexpired
portion of the current Interest Period relating to that Loan; and
|
| (ii) |
the
rate of interest applying to such overdue amount during that first
Interest Period shall be the sum of 2 per cent. per annum and the
rate
which would have applied if such overdue amount had not become
due.
|
| (c) |
If
an Event of Default occurs on a day which was not the last day
of an
Interest Period relating to a Loan, then in relation to each amount
owed
to any or all of the Finance Parties under the Finance Documents
(to which
amount paragraph (b) does not apply):
|
| (i) |
the
first Interest Period for which interest (at the rate referred
to in (a))
accrues on such amount shall have a duration equal to (if such
amount
constitutes all or part of any Loan) the unexpired portion of the
current
Interest Period relating to that Loan or (in any other case) the
unexpired
portion of the current Interest Period relating to any Loan which
Interest
Period is the soonest to expire; and
|
| (ii) |
the
rate of interest applying to such amount during that first Interest
Period
shall be the sum of 2 per cent. per annum and the rate which would
have
applied if such amount had not become
due.
|
| (d) |
Default
interest (if unpaid) arising on the relevant amount will be compounded
with that amount at the end of each Interest Period applicable
to that
amount but will remain immediately due and
payable.
|
| 8.4 |
Notification
of rates of interest
|
The
Agent
shall promptly notify the relevant Lenders and the Relevant Borrower of the
determination of a rate of interest under this Agreement.
| 9. |
INTEREST
PERIODS
|
| 9.1 |
Selection
of Interest Periods
|
| (a) |
Subject
to the provisions of this Agreement, the Borrower to which a Loan
is made
may:
|
| (i) |
select
the Interest Period for that Loan in the Utilisation Request for
that
Loan;
|
| (ii) |
select
an Interest Period for that Loan of one, two, three or six Months
or any
other period agreed between such Borrower and the Agent (acting
on the
instructions of all the Lenders participating in the relevant Loan).
|
| (b) |
An
Interest Period for a Loan shall not extend beyond the Termination
Date.
|
| (c) |
Each
Interest Period for a Loan shall start on the Utilisation Date
for such
Loan.
|
| (d) |
A
Loan has one Interest Period only.
|
| 9.2 |
Non-Business
Days
|
If
an
Interest Period would otherwise end on a day which is not a Business Day,
that
Interest Period will instead end on the next Business Day in that calendar
month
(if there is one) or the preceding Business Day (if there is not).
| 10. |
CHANGES
TO THE CALCULATION OF
INTEREST
|
| 10.1 |
Absence
of quotations
|
Subject
to Clause 10.2 (Market
disruption),
if
SIBOR or, if applicable, SOR, for any sum and any Interest Period relating
thereto is to be determined by reference to the Reference Banks but a Reference
Bank does not supply a quotation by the Specified Time on the Quotation Day
for
such sum and such Interest Period, the applicable SIBOR or SOR shall be
determined on the basis of the quotations of the remaining Reference
Banks.
| 10.2 |
Market
disruption
|
| (a) |
If
a Market Disruption Event occurs in relation to a Loan for any
Interest
Period relating thereto, then the rate of interest on each Lender's
share
of that Loan for that Interest Period shall be the rate per annum
which is
the sum of:
|
| (i) |
the
Margin; and
|
| (ii) |
the
rate notified to the Agent by that Lender as soon as practicable
and in
any event before interest is due to be paid in respect of that
Interest
Period, to be that which expresses as a percentage rate per annum
the cost
to that Lender of funding its participation in that Loan from whatever
source it may reasonably select.
|
| (b) |
In
this Agreement "Market
Disruption Event"
means in relation to any Loan and any Interest Period relating
thereto:
|
| (i) |
at
or about noon on the Quotation Day for that Interest Period the
Screen
Rate is not available or the Screen Rate is zero or negative and
none or
only one of the Reference Banks supplies a rate to the Agent to
determine
SIBOR or, if applicable, SOR for such Loan and such Interest Period;
or
|
| (ii) |
before
close of business in Singapore on the Quotation Day for such Interest
Period, the Agent receives notifications from a Lender or Lenders
(whose
participations in that Loan exceed 35 per cent. of that Loan) that
the
cost to it or them of obtaining matching deposits in the Relevant
Interbank Market would be in excess of SIBOR or, if applicable,
SOR.
|
| 10.3 |
Alternative
basis of interest or
funding
|
| (a) |
If
a Market Disruption Event occurs and the Agent or the Relevant
Borrower so
requires, the Agent and the Relevant Borrower shall enter into
negotiations (for a period of not more than thirty days) with a
view to
agreeing a substitute basis for determining the rate of
interest.
|
| (b) |
Any
alternative basis agreed pursuant to paragraph (a) above shall,
with the
prior consent of all the Lenders and the Relevant Borrower, be
binding on
all Parties.
|
| 10.4 |
Break
Costs
|
| (a) |
Each
Obligor shall, within three Business Days of demand by a Finance
Party,
pay to that Finance Party its Break Costs attributable to all or
any part
of a Loan or an Unpaid Sum being paid or recovered from by that
Obligor on
a day other than the last day of an Interest Period for that Loan
or
Unpaid Sum.
|
| (b) |
Each
Lender shall, as soon as reasonably practicable after a demand
by the
Agent, provide a certificate confirming the amount of its Break
Costs in
relation to any Loan or Unpaid Sum and for any Interest Period
relating
thereto.
|
| 11. |
FEES
|
| 11.1 |
Commitment
fee
|
| (a) |
The
Borrowers shall jointly and severally pay to the Agent (for the
account of
each Lender) a fee in US Dollars computed at the rate of 0.25 per
cent.
per annum on that Lender's Available Commitment for each day during
the
Availability Period.
|
| (b) |
The
commitment fee under paragraph (a) shall accrue on a daily basis
and the
commitment fee is payable on the last day of each successive period
of
three Months which ends during the Availability Period, on the
last day of
that Availability Period and, if a Lender's Commitment is cancelled
in
full, on the cancelled amount of such Lender's Commitment at the
time such
cancellation is effective.
|
| 11.2 |
Arrangement
fee
|
The
Borrowers shall jointly and severally pay to the Arranger an arrangement
fee in
the amount and at the times agreed in a Fee Letter.
| 11.3 |
Agency
fee
|
The
Borrowers shall jointly and severally pay to the Agent (for its own account)
an
agency fee in the amount and at the times agreed in a Fee Letter.
ADDITIONAL
PAYMENT OBLIGATIONS
| 12. |
TAX
GROSS UP AND INDEMNITIES
|
| 12.1 |
Definitions
|
| (a) |
In
this Clause 12:
|
"Tax
Credit"
means a
credit against, relief or remission for, or repayment of any Tax.
"Tax
Deduction"
means a
deduction or withholding for or on account of Tax from a payment under a
Finance
Document.
"Tax
Payment"
means
either (i) an increase in a payment made by an Obligor to a Finance Party
under
Clause 12.2 (Tax
gross-up)
or (ii)
a payment under Clause 12.3 (Tax
indemnity).
| (b) |
Unless
a contrary indication appears, in this Clause 12 a reference to
"determines" or "determined" means a determination made in the
absolute
discretion of the person making the
determination.
|
| 12.2 |
Tax
gross-up
|
| (a) |
All
payments to be made by an Obligor to any Finance Party under or
in
connection with a Finance Document shall be made free and clear
of and
without any Tax Deduction, unless a Tax Deduction is required by
law in
which case the sum payable by that Obligor (to which such Tax Deduction
relates) shall be increased to the extent necessary to ensure that
the
Finance Party concerned receives a sum, net of any Tax Deduction,
equal to
the sum which it would have received if no Tax Deduction had been
required.
|
| (b) |
An
Obligor shall promptly upon becoming aware that it must make a
Tax
Deduction (or that there is any change in the rate or the basis
of a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender shall
notify
the Agent on becoming so aware in respect of a payment payable
to that
Lender. If the Agent receives such notification from a Lender it
shall
notify the Relevant Borrower and that
Obligor.
|
| (c) |
If
an Obligor is required to make a Tax Deduction, that Obligor shall
make
that Tax Deduction and any payment required in connection with
that Tax
Deduction within the time allowed and in the minimum amount required
by
law.
|
| (d) |
Within
thirty days of making either a Tax Deduction or any payment required
in
connection with that Tax Deduction, the Obligor making that Tax
Deduction
or payment shall deliver to the Agent for the Finance Party entitled
to
the payment (to which such Tax Deduction relates) an original receipt
(or
a certified copy thereof) evidencing to the reasonable satisfaction
of
that Finance Party that the Tax Deduction has been made or (as
applicable)
any appropriate payment has been paid to the relevant taxing
authority.
|
| 12.3 |
Tax
indemnity
|
| (a) |
Without
prejudice to Clause 12.2 (Tax
gross-up),
if any Finance Party is required to make any payment of or on account
of
Tax on or in relation to any sum received or receivable under or
in
connection with the Finance Documents (including any sum deemed
for
purposes of Tax to be received or receivable by such Finance Party,
whether or not actually received or receivable) or if any liability
in
respect of any such payment is asserted, imposed, levied or assessed
against any Finance Party, the Borrowers shall jointly and severally
(within three Business Days of demand by the Agent) indemnify the
Finance
Party which determined it has suffered a loss or liability as a
result
against such payment or liability together with any interest, penalties,
costs and expenses payable or incurred in connection
therewith.
|
| (b) |
Paragraph
(a) above shall not apply:
|
| (i) |
with
respect to any Tax imposed:
|
| (A) |
by
the jurisdiction in which that Finance Party is incorporated;
or
|
| (B) |
by
the jurisdiction in which its Facility Office is located,
|
which
is
calculated by reference to the net income actually received or receivable
(but,
for the avoidance of doubt, not including any sum deemed for purposes of
Tax to
be received or receivable by that Finance Party but not actually received
or
receivable) by that Finance Party; or
| (ii) |
to
the extent that the loss, liability or cost to which paragraph
(a) would
otherwise apply is compensated for by an increased payment under
Clause
12.2 (Tax
gross-up).
|
| (c) |
A
Finance Party making, or intending to make, a claim under paragraph
(a)
above shall promptly notify the Agent of the event which will give,
or has
given, rise to such claim, whereupon the Agent shall promptly notify
the
Relevant Borrower.
|
| (d) |
A
Finance Party shall, on receiving a payment from an Obligor under
this
Clause 12.3, notify the Agent.
|
| 12.4 |
Tax
Credit
|
If
an
Obligor makes a Tax Payment and the relevant Finance Party determines
that:
| (a) |
a
Tax Credit is attributable either to an increased payment of which
that
Tax Payment forms part, or to that Tax Payment;
and
|
| (b) |
that
Finance Party has obtained, utilised and fully retained that Tax
Credit on
an affiliated group basis,
|
the
Finance Party shall pay an amount to the Obligor which that Finance Party
determines will leave it (after such payment by that Finance Party) in the
same
after-Tax position as it would have been in had that Tax Payment not been
required to be made by that Obligor.
| 12.5 |
Stamp
taxes
|
The
Borrowers shall jointly and severally pay and, within three Business Days
of
demand, indemnify each Finance Party against any cost, loss or liability
that
Finance Party incurs in relation to any or all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
| 12.6 |
Indirect
Tax
|
| (a) |
All
consideration expressed to be payable under a Finance Document
by any
Party to a Finance Party shall be deemed to be exclusive of any
Indirect
Tax. If any Indirect Tax is chargeable on any supply made by any
Finance
Party to any Party in connection with a Finance Document, that
Party shall
pay (unless that Party is the Agent or the Arranger, in which case
the
Borrowers shall jointly and severally pay) to that Finance Party
(in
addition to and at the same time as paying the consideration) an
amount
equal to the amount of that Indirect
Tax.
|
| (b) |
Where
a Finance Document requires any Party to reimburse a Finance Party
for any
costs or expenses, that Party shall also at the same time pay and
indemnify that Finance Party against all Indirect Tax incurred
by that
Finance Party in respect of such costs or
expenses.
|
| 13. |
INCREASED
COSTS
|
| 13.1 |
Increased
costs
|
| (a) |
Subject
to Clause 13.3 (Exceptions)
the Borrowers shall, within three Business Days of a demand by
the Agent,
jointly and severally pay for the account of a Finance Party the
amount of
any Increased Costs incurred by that Finance Party or any of its
Affiliates as a result of (i) the introduction after the date of
this
Agreement of or any change in (or in the interpretation, administration
or
application of) any law or regulation or (ii) compliance with any
law or
regulation made, enacted, issued or put into effect after the date
of this
Agreement provided that if the Borrowers are required to pay the
amount of
any Increased Costs incurred by such Finance Party, and such Finance
Party
is a Lender, the Relevant Borrower may issue a notice pursuant
to Clause
24.7 (Replacement
of certain Lenders).
The term "law"
and "regulation"
in this paragraph (a) shall include, without limitation, any law
or
regulation concerning capital adequacy, prudential limits, liquidity
reserve assets or Tax.
|
| (b) |
In
this Agreement "Increased
Costs"
means:
|
| (i) |
a
reduction in the rate of return from the Facility or on a Finance
Party's
(or its Affiliate's) overall capital (including, without limitation,
as a
result of any reduction in the rate of return on capital brought
about by
more capital being required to be allocated by that Finance Party
or one
of its Affiliates);
|
| (ii) |
an
additional or increased cost; or
|
| (iii) |
a
reduction of any amount due and payable under any Finance
Document,
|
which
is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into, or undertaken
or assumed any commitment represented by its Commitment under, or funding
or
performing its obligations under any Finance Document.
| (c) |
It
is acknowledged that the requirements of the Report of the Basle
Committee
on Banking Supervision dated June 2004 and entitled “International
Convergence of Capital Measurements and Capital Standards: A Revised
Framework” have not yet been implemented as at the date of this Agreement
and nothing herein shall prejudice the ability of a Finance Party
to make
a claim under this Clause 13.1 by reason of such requirements when
and to
the extent implemented.
|
| 13.2 |
Increased
cost claims
|
| (a) |
A
Finance Party intending to make a claim pursuant to Clause 13.1
(Increased
costs)
shall notify the Agent of the event giving rise to that claim,
following
which the Agent shall promptly notify the Relevant
Borrower.
|
| (b) |
Each
Finance Party shall, as soon as practicable after a demand by the
Agent,
provide a certificate confirming the amount of its Increased Costs
in
respect of any claim made by such Finance Party under Clause 13.1
(Increased
costs).
|
| 13.3 |
Exceptions
|
| (a) |
Clause
13.1 (Increased
costs)
does not apply to any Increased Cost to the extent that such Increased
Cost is:
|
| (i) |
attributable
to a Tax Deduction required by law to be made by an Obligor and
that is
compensated by Clause 12.2 (Tax
Gross-up);
|
| (ii) |
compensated
for by Clause 12.3 (Tax
indemnity)
(or would have been compensated for under Clause 12.3 (Tax
indemnity)
but was not so compensated solely because any of the exclusions
in
paragraph (b) of Clause 12.3 (Tax
indemnity)
applied); or
|
| (iii) |
attributable
to the wilful breach by the Finance Party (that is claiming such
Increased
Cost) or its Affiliates of any law or
regulation.
|
| (b) |
In
this Clause 13.3, a reference to a "Tax
Deduction"
has the same meaning given to the term in Clause 12.1 (Definitions).
|
| 14. |
OTHER
INDEMNITIES
|
| 14.1 |
Currency
indemnity
|
| (a) |
If
any sum due from an Obligor under any or all of the Finance Documents
(a
"Sum"),
or any order, judgment or award given or made in relation to a
Sum, has to
be converted from the currency (the "First
Currency")
in which that Sum is payable into another currency (the "Second
Currency")
for the purpose of:
|
| (i) |
making
or filing a claim or proof against that
Obligor;
|
| (ii) |
obtaining
or enforcing an order, judgment or award in relation to any litigation
or
arbitration proceedings,
|
that
Obligor shall as an independent obligation, within three Business Days of
demand, indemnify each Finance Party to whom that Sum is due against any
cost,
loss or liability arising out of or as a result of such conversion including
any
discrepancy between (A) the rate of exchange used to convert that Sum from
the
First Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt or recovery of that
Sum.
| (b) |
Each
Obligor waives any right it may have in any jurisdiction to pay
any amount
under the Finance Documents in a currency or currency unit other
than that
in which it is expressed to be
payable.
|
| 14.2 |
Other
indemnities
|
| (a) |
The
Borrowers shall, within three Business Days of demand, jointly
and
severally indemnify each Finance Party against any cost, loss or
liability
incurred by that Finance Party as a result
of:
|
| (i) |
the
occurrence of any Default;
|
| (ii) |
the
Information Memorandum or any other information provided, produced
or
approved by or on behalf of an Obligor in connection with the Facility
being or being alleged to be misleading and/or deceptive in any
respect;
|
| (iii) |
any
enquiry, investigation, subpoena (or similar order) or litigation
with
respect to any Obligor or with respect to the transactions contemplated
or
financed under the Finance
Documents;
|
| (iv) |
the
use of proceeds of any Loan;
|
| (v) |
a
failure by an Obligor to pay any amount due under a Finance Document
on
its due date, including without limitation, any cost, loss or liability
arising as a result of Clause 28 (Sharing
among the Finance Parties);
|
| (vi) |
funding,
or making arrangements to fund, its participation in a Loan requested
by a
Borrower in a Utilisation Request but not made by reason of the
operation
of any one or more of the provisions of this Agreement (other than
to the
extent by reason of default or negligence by that Finance Party);
or
|
| (vii) |
a
Loan (or part of a Loan) not being prepaid in accordance with a
notice of
prepayment given by a Borrower.
|
| (b) |
The
Borrowers
shall, within three Business Days of demand, jointly and severally
indemnify each of the Finance Parties, their Affiliates and their
respective officers, directors, employees, agents, advisors and
representatives (each an "Indemnified
Party")
from and against any and all claims, damages, losses, liabilities,
costs
and expenses (including, without limitation, reasonable fees and
disbursements of legal counsel), joint or several, that may be
incurred by
or asserted or awarded against any Indemnified Party, in each case
arising
out of or in connection with or relating to any or all of the Finance
Documents (including without limitation any investigation, litigation
or
proceeding or the preparation of any defence with respect thereto,
arising
out of or in connection with or relating to the Finance Documents,
whether
or not such investigation, litigation or proceeding is brought
by a member
of the Group, any shareholder or creditor of any member of the
Group, an
Indemnified Party or any other person) or the transactions contemplated
by
the Finance Documents, except to the extent that such claim, damage,
loss,
liability, cost or expense is found in a final, non-appealable
judgement
by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or wilful
misconduct.
|
| 14.3 |
Indemnity
to the Agent
|
The
Borrowers shall promptly, jointly and severally, indemnify the Agent against
any
cost, loss or liability incurred by the Agent (acting reasonably) as a result
of:
| (a) |
investigating
any event which it reasonably believes is a Default;
or
|
| (b) |
acting
or relying on any notice, request or instruction which it reasonably
believes to be genuine, correct and appropriately
authorised.
|
| 15. |
MITIGATION
BY THE LENDERS
|
| 15.1 |
Mitigation
|
| (a) |
Each
Finance Party shall, in consultation with the Relevant Borrower,
take all
reasonable steps to mitigate any circumstances which arise and
which would
result in any amount becoming payable under or pursuant to, or
cancelled
pursuant to, any of Clause 7.1 (Illegality),
Clause 12 (Tax
gross-up and indemnities)
(other than Clause 12.6 (Indirect
Tax))
or Clause 13 (Increased
costs)
including (but not limited to) transferring its rights and obligations
under the Finance Documents to another Affiliate or Facility Office
(whether pursuant to a request from the Relevant Borrower under
Clause
24.7 (Replacement
of certain Lenders)
or otherwise).
|
| (b) |
Paragraph
(a) above does not in any way limit the obligations of any Obligor
under
the Finance Documents.
|
| 15.2 |
Limitation
of liability
|
| (a) |
The
Borrowers shall jointly and severally indemnify each Finance Party
for all
costs and expenses reasonably incurred by that Finance Party as
a result
of steps taken by it under Clause 15.1 (Mitigation).
|
| (b) |
A
Finance Party is not obliged to take any steps under Clause 15.1
(Mitigation)
if, in the opinion of that Finance Party (acting reasonably), to
do so
might be expected to be prejudicial to
it.
|
| 16. |
COSTS
AND EXPENSES
|
| 16.1 |
Transaction
expenses
|
The
Borrowers shall, within 3 Business Days of demand, jointly and severally
pay the
Agent and the Arranger the amount of all costs and out-of-pocket expenses
(including legal fees) reasonably incurred by any of them in connection with
the
negotiation, preparation, printing, execution and syndication of:
| (a) |
this
Agreement and/or any other documents referred to in this Agreement;
and
|
| (b) |
any
other Finance Documents executed after the date of this
Agreement.
|
| 16.2 |
Amendment
costs
|
If
an
Obligor requests an amendment, waiver or consent, the Borrowers shall, within
three Business Days of demand, jointly and severally reimburse the Agent
for the
amount of all costs and out-of-pocket expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or complying
with that request or requirement.
| 16.3 |
Enforcement
costs
|
The
Borrowers shall, within three Business Days of demand, jointly and severally
pay
to each Finance Party the amount of all costs and out-of-pocket expenses
(including legal fees) incurred by that Finance Party in connection with
the
enforcement of, or the preservation of any rights under, any Finance
Document.
GUARANTEE
| 17. |
GUARANTEE
AND INDEMNITY
|
| 17.1 |
Guarantee
and indemnity
|
Each
of
the Borrowers and the Guarantor irrevocably and unconditionally jointly and
severally:
| (a) |
guarantees
to each Finance Party punctual performance by each of the Borrowers
of all
the obligations of and/or expressed to be assumed by that Borrower
under
the Finance Documents;
|
| (b) |
undertakes
with each Finance Party that whenever a Borrower does not pay any
amount
when due or expressed to be due under or in connection with any
Finance
Document, each of the Borrowers and the Guarantor shall immediately
on
demand pay that amount as if it was the principal obligor;
and
|
| (c) |
indemnifies
each Finance Party immediately on demand against any cost, loss
or
liability suffered by that Finance
Party:
|
| (i) |
if
any obligation guaranteed or expressed to be guaranteed by it (or
anything
which would have been an obligation if not unenforceable, invalid
or
illegal) is or becomes unenforceable, invalid or illegal;
or
|
| (ii) |
if,
as a result of the introduction of or any change in (or the
interpretation, administration or application of) any law or regulation,
or compliance with any law, regulation or administrative procedure
made
after the date of this Agreement, there is a change in the currency,
timing, place or manner in which any obligation guaranteed or expressed
to
be guaranteed by such Borrower and/or Guarantor is payable, or
there is a
reduction in any amount receivable by a Finance Party under any
Finance
Document,
|
in
each
case the amount of such cost, loss or liability shall be equal to the amount
which that Finance Party would otherwise have been entitled to recover or
receive.
| 17.2 |
Continuing
guarantee
|
This
guarantee is a continuing guarantee and will extend to the ultimate balance
of
sums payable by any of the Borrowers under the Finance Documents, regardless
of
any intermediate payment or discharge in whole or in part.
| 17.3 |
Reinstatement
|
If
any
payment by or recovery from an Obligor or any discharge given by a Finance
Party
(whether in respect of the obligations of any Obligor or any security for
those
obligations or otherwise) is avoided, reduced or liable to be refunded for
any
reason including, without limitation, as a result of insolvency, breach of
fiduciary or statutory duties or any other reason:
| (a) |
the
liability of each Obligor shall continue as if that payment, recovery
or
discharge had not occurred; and
|
| (b) |
each
Finance Party shall be entitled to recover the value or amount
of that
payment or recovery (and any security) from the Obligors, as if
that
payment, recovery or discharge had not
occurred.
|
| 17.4 |
Waiver
of defences
|
The
obligations of each Obligor under this Clause 17 will not be affected by
an act,
omission, matter or thing which, but for this Clause, would reduce, release
or
prejudice any of its obligations under this Clause 17 (without limitation
and
whether or not known to it or any Finance Party) including:
| (a) |
any
time, waiver or consent granted to, or composition with, any other
Obligor
or other person;
|
| (b) |
the
release of any other Obligor or any other person under the terms
of any
composition or arrangement with any creditor of any member of the
Group;
|
| (c) |
the
taking, variation, compromise, exchange, renewal or release of,
or refusal
or neglect to perfect, execute, take up or enforce, any rights
against, or
security over assets of, any other Obligor or other person or any
non-presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full
value of
any security;
|
| (d) |
any
incapacity or lack of power, authority or legal personality of
or
dissolution or change in the members or status of any other Obligor
or any
other person;
|
| (e) |
any
amendment (however fundamental) or replacement of a Finance Document
or
any other document or security;
|
| (f) |
any
unenforceability, illegality or invalidity of any obligation of
any person
under any Finance Document or any other document or security;
|
| (g) |
any
insolvency or similar proceedings;
or
|
| (h) |
this
Agreement or any other Finance Document not being executed by or
binding
against any person.
|
| 17.5 |
Immediate
recourse
|
Each
Obligor waives any right it may have of first requiring any Finance Party
(or
any trustee or agent on its behalf) to proceed against or enforce any other
rights or security or claim payment from any person before claiming from
that
Obligor under this Clause 17. This waiver applies irrespective of any law
or any
provision of a Finance Document to the contrary.
| 17.6 |
Appropriations
|
Until
all
amounts which may be or become payable by any or all of the Obligors under
or in
connection with the Finance Documents have been irrevocably paid in full
and no
Finance Party is under any further obligation (whether actual or contingent)
to
provide any further advance or financial accommodation to any Obligor under
any
Finance Document, each Finance Party (or any trustee or agent on its behalf)
may:
| (a) |
refrain
from applying or enforcing any other moneys, security or rights
held,
received or recovered by that Finance Party (or any trustee or
agent on
its behalf) in respect of those first-mentioned amounts, or apply
and
enforce the same in such manner and order as it sees fit (whether
against
those first-mentioned amounts or otherwise) and none of the Obligors
shall
be entitled to the benefit of the same;
and
|
| (b) |
hold
in an interest-bearing suspense account any moneys received or
recovered
from any Obligor or on account of any Obligor's liability under
this
Clause 17.
|
| 17.7 |
Deferral
of the Obligors’ rights
|
Until
all
amounts which may be or become payable by any or all of the Obligors under
or in
connection with the Finance Documents have been irrevocably paid in full
and no
Finance Party is under any further obligation (whether actual or contingent)
to
provide any further advance or financial accommodation to any Obligor under
any
Finance Document, none of the Obligors will, unless the Agent otherwise directs,
exercise any rights which it may have by reason of performance by it of its
obligations under the Finance Documents:
| (a) |
to
be indemnified by any other
Obligor;
|
| (b) |
to
claim any contribution from any other guarantor of, or provider
of
Security or any other assurance for, any of the other Obligors’
obligations under the Finance Documents;
and/or
|
| (c) |
to
take the benefit (in whole or in part and whether by way of subrogation
or
otherwise) of any rights of the Finance Parties under the Finance
Documents or of any other guarantee or security taken pursuant
to, or in
connection with, any Finance Documents by any Finance
Party,
|
provided
that, until such time as the US Facility ceases to be in effect, the foregoing
shall not prohibit an Obligor from receiving payment of any obligation owed
to
it by another Obligor for so long as the guarantees and indemnities given
by the
Obligors in this Clause 17 remain in effect.
| 17.8 |
Additional
security
|
This
guarantee is in addition to and is not in any way prejudiced by any other
guarantee or security now or subsequently held by any Finance
Party.
| 17.9 |
Benefits
|
| (a) |
Each
Obligor acknowledges that:
|
| (i) |
it
will receive valuable direct or indirect benefits as a result of
the
transactions financed by the Finance Documents and entering into
the
Finance Documents to which it is a party is for its commercial
benefit;
|
| (ii) |
those
benefits will constitute reasonably equivalent value and/or fair
consideration for the purpose of any applicable
law;
|
| (iii) |
but
for the agreement by that Obligor to execute and deliver this Agreement,
the Agent and the Lenders would not have made available the Facility
on
the terms set forth in this
Agreement;
|
| (iv) |
each
Finance Party has acted in good faith in connection with the guarantee
given by that Obligor and the transactions contemplated by the
Finance
Documents; and
|
| (v) |
it
has not incurred and does not intend to incur debts beyond its
ability to
pay as they mature.
|
| (b) |
The
Guarantor represents and warrants that, and shall ensure that at
all
times:
|
| (i) |
the
aggregate value (calculated as the lesser of fair valuation and
present
saleable value) of its assets is greater than the aggregate amount
of its
debts (including its obligations under the Finance Documents) and
any
amount that will be required to pay the probable liabilities in
respect of
those debts;
|
| (ii) |
its
capital is not unreasonably small to carry on its business as conducted
or
proposed to be conducted; and
|
| (iii) |
it
has not made a transfer or incurred any obligation under any Finance
Document with the intent to hinder, delay or defraud any of its
present or
future creditors.
|
| (c) |
Without
limiting the generality of the foregoing, with respect to any obligation
guaranteed under this Clause 17 that, in accordance with the original
express terms of the Finance Document pursuant to which such obligation
was created, was denominated (or expressed to be denominated) in
US
Dollars or Singapore Dollars, each Obligor affirms its guarantee,
as a
primary obligation, to pay the Agent (for the benefit of the Finance
Parties) strictly in accordance with the terms of that Finance
Document,
including all amounts and in the currency expressly agreed to under
that
Finance Document.
|
| 17.10 |
Currency
Conversions
|
| (a) |
Subject
to paragraph (c) of Clause 17.9 (Benefits),
each Obligor's liability under this Agreement shall be to pay the
Agent
(for the benefit of the Finance Parties) the full amount of the
Obligors’
obligations pursuant to the Finance Documents in each currency
in which
they are for the time being denominated or expressed to be denominated
(“Contractual
Currency”),
regardless of any law, regulation or administrative procedures
made after
the date of this Agreement, provided that (i) if and to the extent
that
such first-mentioned Obligor does not pay any such amount in such
Contractual Currency the Agent may accept payment of all or part
of such
amount in any other currency and/or (ii) the Agent, wheresoever
incorporated, may require the first-mentioned Obligor, in substitution
for
its liability to pay any such amount in such Contractual Currency,
to pay
an amount in US Dollars or Singapore Dollars (as specified by the
Agent)
which is equivalent to such amount of such Contractual Currency
remaining
unpaid (and in either case the provisions of paragraph (b) below
shall
apply) to an account specified by the
Agent.
|
| (b) |
The
equivalent on any day in one currency of any amount denominated
in another
currency shall be an amount in the first currency equal to the
amount
which the Agent would have received if the Agent had on such day
(or, if
such day shall not be a Business Day, on the next succeeding Business
Day)
made a purchase of the first currency with such amount of such
other
currency at the Agent's Spot Rate of Exchange less all costs, charges
and
expenses normally incurred by the Agent or on its behalf in connection
with such a purchase.
|
| 17.11 |
Third
Party Rights
|
The
provisions in this Clause 17 (Guarantee
and indemnity)
shall
be for the benefit of each Hedging Bank, and each Hedging Bank shall be deemed
to be a Finance Party for the purpose of this Clause 17. Accordingly, subject
to
paragraph (b) of Clause 1.3 (Third
Party Rights),
any
Hedging Bank not party to this Agreement may enjoy the benefit of or enforce
the
terms of this Clause 17 in accordance with the provisions of the Third Parties
Act as if it were a Finance Party for the purposes of this Clause
17.
REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT
| 18. |
REPRESENTATIONS
|
Each
Obligor makes the representations and warranties set out in this Clause 18
to
each Finance Party on the date of this Agreement.
| 18.1 |
Status
|
| (a) |
Each
of it and its Subsidiaries is a corporation, limited liability
company,
partnership or other commercial entity, duly incorporated or organised,
validly existing and in good standing under the law of its jurisdiction
of
incorporation.
|
| (b) |
Each
of it and its Subsidiaries has the power to own and operate its
assets and
carry on its business as it is being, and is proposed to be,
conducted.
|
| (c) |
Each
of it and its Subsidiaries is duly qualified to do business as
a foreign
entity and is in good standing under the laws of each jurisdiction
(other
than its jurisdictions of incorporation) in which it does business
and in
which failure to be so qualified and in good standing could reasonably
be
expected to have a Material Adverse
Effect.
|
| 18.2 |
Binding
obligations
|
The
obligations expressed to be assumed by it in each Finance Document are, subject
to any general principles of law limiting its obligations which are specifically
referred to in any legal opinion accepted pursuant to Clause 4 (Conditions
of Utilisation),
legal,
valid, binding and enforceable obligations.
| 18.3 |
Non-conflict
with other obligations
|
The
entry
into, delivery and performance by it of, and the transactions contemplated
by,
the Finance Documents do not and will not:
| (a) |
conflict
with
|
| (i) |
any
law or regulation applicable to it;
|
| (ii) |
its
or any of its Subsidiaries' constitutional documents;
or
|
| (iii) |
any
agreement or instrument binding upon it or any of its Subsidiaries
or any
of its or any of its Subsidiaries’ assets, except to the extent such
conflict could not reasonably be expected to have a Material Adverse
Effect; and
|
| (b) |
result
in or require the creation or imposition of any Security whatsoever
upon
any of the assets of an Obligor.
|
| 18.4 |
Power
and authority
|
It
has
the requisite power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the
Finance Documents to which it is a party and the transactions contemplated
by
those Finance Documents.
| 18.5 |
Validity
and admissibility in
evidence
|
All
Authorisations required or desirable:
| (a) |
to
enable it lawfully to enter into, deliver, exercise its rights
and perform
and comply with its obligations in the Finance Documents to which
it is a
party; and/or
|
| (b) |
to
make the Finance Documents to which it is a party admissible in
evidence
in its jurisdiction of
incorporation,
|
have
been
obtained or effected and are in full force and effect.
| 18.6 |
Governing
law and enforcement
|
| (a) |
Subject
to any matters specifically referred to in any legal opinion accepted
pursuant to Clause 4 (Conditions
of Utilisation),
the choice of English law as the governing law of the Finance Documents
will be recognised and enforced in its jurisdiction of
incorporation.
|
| (b) |
Subject
to any matters specifically referred to in any legal opinion accepted
pursuant to Clause 4 (Conditions
of Utilisation),
any judgment obtained in England in relation to a Finance Document
will be
recognised and enforced in its jurisdiction of
incorporation.
|
| 18.7 |
Deduction
of Tax
|
Subject
to any matters specifically referred to in any legal opinion accepted pursuant
to Clause 4 (Conditions
of Utilisation),
it is
not required under the law applicable where it is incorporated or resident
or at
its address for the purpose of this Agreement to make any deduction for or
on
account of Tax from any payment it may make under any Finance
Document.
| 18.8 |
No
filing or stamp taxes
|
Under
the
law of its jurisdiction of incorporation it is not necessary that the Finance
Documents or any of them be filed, recorded or enrolled with any court or
other
authority in that jurisdiction or that any stamp, registration or similar
tax be
paid on or in relation to the Finance Documents or any of them or the
transactions contemplated by the Finance Documents or any of them.
| 18.9 |
Tax
Examinations
|
| (a) |
All
deficiencies which have been asserted against it or any of its
Subsidiaries as a result of any federal, state, local or foreign
Tax
examination for each taxable year in respect of which an examination
has
been conducted have been fully paid or finally settled or are being
contested in good faith, and no issue has been raised by any taxing
authority in any such examination which, by application of similar
principles, reasonably can be expected to result in assertion by
such
taxing authority of a material deficiency for any other year not
so
examined which has not been reserved for in its audited financial
statements to the extent, if any, required by Agreement Accounting
Principles.
|
| (b) |
Except
as permitted pursuant to Clause 21.7 (Payment
of Taxes and claims; Tax consolidation),
neither it nor any of its Subsidiaries anticipates any material
Tax
liability with respect to the years for which a Tax examination
has not
been closed pursuant to applicable
law.
|
| 18.10 |
Payment
of Taxes
|
| (a) |
Each
member of the Group has paid when due all Taxes required to be
paid by it
other than any Taxes:
|
| (i) |
being
contested by it in good faith;
|
| (ii) |
for
which adequate reserves are being maintained in accordance with
Agreement
Accounting Principles; and
|
| (iii) |
where
payment can be lawfully withheld and will not result in the imposition
of
any penalty nor in any Security ranking in priority to the claims
of any
Finance Party under any Finance
Document.
|
| (b) |
It
has no knowledge of any proposed Tax assessment against it or any
of its
Subsidiaries that, if made, will have or could reasonably be expected
to
have a Material Adverse Effect.
|
| 18.11 |
No
default
|
| (a) |
No
Default is continuing or might reasonably be expected to result
from the
making of any Utilisation.
|
| (b) |
No
other event or circumstance is outstanding which constitutes (or
which
would, with the lapse of time, the giving of notice, the making
of any
determination under the relevant document or any combination of
the
foregoing, constitute) a default under any other agreement or instrument
which is binding on it or any of its Subsidiaries or to which any
of its
or any of its Subsidiaries’ assets is subject which could reasonably be
expected to have a Material Adverse
Effect.
|
| 18.12 |
No
misleading information
|
Any
factual information provided by or on behalf of any member of the Group (whether
for the purposes of the Information Memorandum or otherwise in connection
with
the Facility), taken as a whole, does not contain, as of the date furnished,
any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements contained therein, in light of the circumstances
under which they were made, not misleading.
| 18.13 |
Financial
statements
|
| (a) |
Its
Original Financial Statements (if any) were prepared in accordance
with
Agreement Accounting Principles consistently
applied.
|
| (b) |
Its
Original Financial Statements (if any) fairly represent its financial
condition and operations (consolidated in the case of the Guarantor
and
unconsolidated in the case of each of the Borrowers) as at the
end of and
for the financial year to which such Original Financial Statements
relate.
|
| (c) |
There
is no material loss contingency (of it or, where relevant, any
of its
Subsidiaries) within the meaning of Agreement Accounting Principles
which
has not been reflected in its Original Financial Statements (if
any) or in
any of its other financial statements prepared and delivered pursuant
to
this Agreement for the financial period during which such material
loss
contingency was incurred.
|
| (d) |
There
has been no material adverse change in its condition (financial
or
otherwise), assets, operations, prospects or business (or in the
consolidated condition (financial or otherwise), assets, operations,
prospects or business of the Guarantor, the Group or the Borrowers)
since
30 September 2004 or any other event which has had or would reasonably
be
expected to have a Material Adverse
Effect.
|
| 18.14 |
Pari
passu ranking
|
Its
payment obligations under the Finance Documents rank at least pari
passu
with the
claims of all its other unsecured and unsubordinated creditors, except for
obligations mandatorily preferred by law in its place of incorporation applying
to companies generally.
| 18.15 |
No
proceedings pending or
threatened
|
| (a) |
Except
as set forth in Schedule 8 (Litigation)
(the "Disclosed
Litigation"),
as of the date hereof, there is no material action, suit, proceeding,
arbitration or, to the knowledge of any member of the Senior Management
Team, investigation before or by any Governmental Agency or private
arbitrator pending or to the knowledge of any member of the Senior
Management Team, threatened against any Obligor, any of their Subsidiaries
or any property of any of them. Neither (a) any of the Disclosed
Litigation nor (b) from and after the date hereof, any other action,
suit,
proceeding, arbitration or, to the knowledge of any member of the
Senior
Management Team, investigation before or by any Governmental Agency
or
private arbitrator pending or, to the knowledge of any member of
the
Senior Management Team, threatened against any Obligor, any of
their
Subsidiaries or any property of any of them (i) challenges the
validity or
the enforceability of any material provision of the Finance Documents
or
(ii) has had or could reasonably be expected to have a Material
Adverse
Effect.
|
| (b) |
No
litigation, arbitration, administrative or, to its knowledge,
investigative proceeding of or before any court, arbitral body
or agency
(including any arising from or relating to Environmental Law) which,
if
adversely determined, could reasonably be expected to have a Material
Adverse Effect have (to the best of its knowledge and belief) been
started
or threatened against it or any of its Subsidiaries or its or their
assets.
|
| (c) |
No
attempt to organise its or any of its Subsidiaries’ employees and no
labour disputes are pending or, to its knowledge, threatened, planned
or
contemplated, which could reasonably be expected to have a Material
Adverse Effect.
|
| (d) |
Neither
it nor any of its Subsidiaries is:
|
| (i) |
in
violation of any law or regulation applicable to it or any of its
assets
which violation will have or could reasonably be expected to have
a
Material Adverse Effect; or
|
| (ii) |
subject
to or in default with respect to any final judgment, writ, injunction,
restraining order or order of any nature, decree, rule or regulation
of
any court, agency or Governmental Agency which will have or could
reasonably be expected to have a Material Adverse
Effect.
|
| 18.16 |
Environmental
laws, licences and
releases
|
| (a) |
Each
of it and its Subsidiaries has:
|
| (i) |
complied
in all material respects with all Environmental Laws to which it
may be
subject;
|
| (ii) |
obtained
all material Environmental Licences required or desirable in connection
with its business; and
|
| (iii) |
complied
in all material respects with the terms of those Environmental
Licences.
|
| (b) |
No:
|
| (a) |
property
currently or previously owned, leased, occupied or controlled by
it or any
of its Subsidiaries (including any offsite waste management or
disposal
location utilised by it or any of its Subsidiaries) is contaminated
with
any Hazardous Substance; and
|
| (b) |
discharge,
release, leaching, migration or escape of any Hazardous Substance
into the
Environment has occurred or is occurring on, under or from that
property,
|
in
each
case in circumstances where that would result in material remediation costs
or
material penalties to any member of the Group or give rise to any material
Contingent Obligation.
| (c) |
For
the purposes of this Clause 18.16, "material"
means any non-compliance or other basis for liability which could
reasonably be likely to subject any member of the Group to liability,
individually or in the aggregate (for all members of the Group)
with each
basis for liability under this Clause 18.16, in excess of US$30,000,000
(or the equivalent in any other currency or
currencies).
|
| 18.17 |
Authorised
signatories
|
Each
person specified as its authorised signatory in any document accepted by
the
Agent pursuant to paragraph 1(c) of Schedule 2 (Conditions
precedent)
or
delivered to the Agent pursuant to paragraph (h) of Clause 19.4 (Information:
miscellaneous)
is,
subject to any notice to the contrary delivered to the Agent pursuant to
Clause
19.4, authorised to sign all Finance Documents and all Utilisation Requests
and
other notices on its behalf under or in connection with the Finance
Documents.
| 18.18 |
Subsidiaries
|
| (a) |
Schedule
9 (Subsidiaries)
identifies all Subsidiaries of the Guarantor, both direct and indirect,
and indicates the respective holdings of each as of the date of
this
Agreement and, except as notified to the Agent in writing following
the
date of this Agreement, as of each Utilisation Date.
|
| (b) |
Each
of the Borrowers is directly or indirectly, a wholly-owned (beneficially)
and controlled Subsidiary of the
Guarantor.
|
| 18.19 |
ERISA
|
| (a) |
No
Benefit Plan has incurred any material accumulated funding deficiency
(as
defined in Sections 302(a)(2) of ERISA and 412(a) of the Internal
Revenue
Code) whether or not waived.
|
| (b) |
No
Obligor nor any ERISA Affiliate has incurred any material liability
to the
PBGC which remains outstanding other than the payment of premiums.
|
| (c) |
As
of the last day of the most recent prior plan year, the market
value of
assets under each Benefit Plan, other than any Multiemployer Plan,
was not
by a material amount less than the present value of benefit liabilities
thereunder (determined in accordance with the actuarial valuation
assumptions described therein).
|
| (d) |
No
Obligor nor any ERISA Affiliate has:
|
| (i) |
failed
to make a required contribution or payment to a Multiemployer Plan
of a
material amount; or
|
| (ii) |
incurred
a material complete or partial withdrawal under Section 4203 or
Section
4205 of ERISA from a Multiemployer
Plan.
|
| (e) |
No
Obligor nor any ERISA Affiliate has failed to make an instalment
or any
other payment of a material amount required under Section 412 of
the
Internal Revenue Code on or before the due date for such instalment
or
other payment.
|
| (f) |
Each
Plan, Foreign Employee Benefit Plan and Non-ERISA Commitment complies
in
all material respects in form, and has been administered in all
material
respects in accordance with its terms and, in accordance with all
applicable laws and regulations, including but not limited to ERISA
and
the Internal Revenue Code.
|
| (g) |
There
have been no and there is no prohibited transaction described in
Section
406 of ERISA or Section 4975 of the Internal Revenue Code with
respect to
any Plan for which a statutory or administrative exemption does
not exist
which could reasonably be expected to subject an Obligor or an
ERISA
Affiliate to material liability.
|
| (h) |
No
Obligor nor any ERISA Affiliate has taken or failed to take any
action
which would constitute or result in an ERISA Event, which action
or
inaction could reasonably be expected to subject an Obligor or
an ERISA
Affiliate to material liability.
|
| (i) |
No
Obligor nor any ERISA Affiliate is subject to any material liability
under, or has any potential material liability under, Sections
4063, 4064,
4069, 4204 or 4212(c) of ERISA.
|
| (j) |
The
present value of the aggregate liabilities to provide all of the
accrued
benefits under any Foreign Pension Plan do not exceed the current
fair
market value of the assets held in trust or other funding vehicle
for such
plan by a material amount.
|
| (k) |
With
respect to any Foreign Employee Benefit Plan other than a Foreign
Pension
Plan, reasonable reserves have been established in accordance with
prudent
business practice or where required by ordinary accounting practices
in
the jurisdiction in which such plan is maintained.
|
| (l) |
In
this Clause 18.19, "material"
means any amount, non-compliance or other basis for liability which
could
reasonably be expected to subject any member of the Group to liability,
individually or in the aggregate (for all members of the Group)
with each
basis for liability under this Clause 18.19, in excess of US$30,000,000
(or the equivalent thereof in any other currency or
currencies).
|
| 18.20 |
Securities
Activities
|
| (a) |
None
of the proceeds of the Loans will be used, directly or indirectly,
in
whole or in part, for "purchasing" or "carrying" Margin Stock or
for any
purpose which might (whether immediately, incidentally or ultimately)
cause all or any part of the Loans to be a "purpose credit" within
the
meaning of Regulation U or Regulation X and no member of the Group
is
engaged in the business of extending credit for the purpose of
"purchasing" or "carrying" Margin
Stock.
|
| (b) |
Following
the application of the proceeds of each Loan, not more than 25
per cent.
of the value of the assets of the Group (on a consolidated basis)
will be
invested in Margin Stock.
|
| (c) |
Neither
any Obligor nor any agent acting on its behalf has taken or will
take any
action which might cause any Finance Document or any document delivered
under or in connection with any Finance Document to violate any
regulation
of the Board of Governors (including Regulation T, U or X) or violate
the
United States Securities Exchange Act of 1934 or any applicable
US federal
or state securities law.
|
| 18.21 |
Material
Agreements
|
| (a) |
Neither
it nor any of its Subsidiaries is a party to or otherwise bound
by any
agreement, arrangement or instrument or subject to any charter
or other
corporate or similar obligation or liability which individually
or in the
aggregate will have or could reasonably be expected to have a Material
Adverse Effect.
|
| (b) |
Neither
it nor any of its Subsidiaries has received notice of or has knowledge
that:
|
| (i) |
it
is in default in the performance, observance or fulfilment of any
of the
obligations, covenants or conditions contained in any agreement,
arrangement or instrument applicable to it; or
|
| (ii) |
any
condition exists which, with the giving of notice or the lapse
of time or
both, would constitute a default with respect to any such agreement,
arrangement or instrument,
|
in
each
case, except where such default or defaults, if any, individually or in the
aggregate will not have or could not reasonably be expected to have a Material
Adverse Effect.
| 18.22 |
Assets
and Properties
|
| (a) |
Each
of it and other members of the Group has good and marketable title
to, or
valid leases and licences of or is otherwise entitled to use, all
material
assets necessary or desirable for it to carry on its business as
it is
being or is proposed to be conducted, (except insofar as marketability
may
be limited by any laws or regulations of any agency or Governmental
Agency
affecting such assets).
|
| (b) |
Substantially
all of its assets and each of its Subsidiaries' assets are in adequate
operating condition and repair, ordinary wear and tear expected.
|
| (c) |
Neither
any Finance Document nor any transaction contemplated by any Finance
Document will affect any right, title or interest of it or its
Subsidiaries in and to any of its assets in a manner that has or
could
reasonably be expected to have a Material Adverse Effect.
|
| 18.23 |
US
Statutory Indebtedness
Restrictions
|
No
member
of the Group is:
| (a) |
a
"holding company", an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company" within the meaning of, or subject
to
regulation under, the United States Public Utility Holding Company
Act of
1935;
|
| (b) |
a
"public utility" within the meaning of, or subject to regulation
under,
the United States Federal Power Act of
1920;
|
| (c) |
an
"investment company" or a company "controlled" by an "investment
company"
within the meaning of the United States Investment Company Act
of 1940;
or
|
| (d) |
subject
to regulation under any United States federal or state law or regulation
that limits its ability to incur or guarantee
indebtedness.
|
| 18.24 |
Insurance
|
| (a) |
The
insurances required by Clause 21.5 (Insurance)
are in full force and effect as required by this
Agreement.
|
| (b) |
No
event or circumstance has occurred, and there has been no failure
to
disclose a material fact, which would entitle any insurer to reduce
or
avoid its liability under any such
insurance.
|
| 18.25 |
Repetition
|
The
Repeating Representations are deemed to be made by each Obligor by reference
to
the facts and circumstances then existing on the date of each Utilisation
Request and the first day of each Interest Period.
| 19. |
INFORMATION
UNDERTAKINGS
|
The
undertakings in this Clause 19 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
| 19.1 |
Financial
statements
|
Each
Obligor shall supply to the Agent in sufficient copies for all the
Lenders:
| (a) |
as
soon as the same become available, but in any event within 90 days
after
the end of each of its financial
years:
|
| (i) |
its
audited consolidated financial statements for that financial year;
and
|
| (ii) |
(in
the case of each of the Borrowers) its audited unconsolidated financial
statements for that financial year;
and
|
| (b) |
as
soon as the same become available, but in any event within 45 days
after
the end of each quarter (other than the last quarter) of each of
its
financial years:
|
| (i) |
its
consolidated financial statements for that financial quarter;
and
|
| (ii) |
(in
the case of each of the Borrowers) its unconsolidated financial
statements
for that financial quarter.
|
| 19.2 |
Compliance
Certificate
|
| (a) |
The
Guarantor shall supply to the Agent, with each set of financial
statements
delivered pursuant to paragraph (a)(i) or (b)(i) of Clause 19.1
(Financial
statements),
a Compliance Certificate:
|
| (i) |
setting
out (in reasonable detail) computations as to compliance with Clause
20
(Financial
covenants)
as at the date as at which those financial statements were drawn
up;
|
| (ii) |
certifying
that the financial statements delivered with that Compliance Certificate
fairly represent the consolidated financial position of the Group
as at
the dates indicated and the results of their operations and cash
flows for
the periods indicated in accordance with Agreement Accounting Principles,
subject (save in the case of financial statements delivered pursuant
to
paragraph (a) of Clause 19.1 (Financial
statements))
to normal year-end audit adjustments and the absence of footnotes;
and
|
| (iii) |
stating
that the Repeating Representations are true and correct in all
material
respects and no Default exists (or if a Default does exist, stating
the
nature and status thereof) as of the date of such Compliance
Certificate.
|
| (b) |
Each
Compliance Certificate shall be signed by the chief financial officer
or
treasurer of the Guarantor.
|
| 19.3 |
Requirements
as to financial statements
|
| (a) |
Each
Obligor shall ensure that each set of financial statements delivered
in
respect of it (or it and its Subsidiaries) (other than the Guarantor)
pursuant to paragraph (a) of Clause 19.1 (Financial
statements)
shall be certified by one of its directors as fairly representing,
in
accordance with Agreement Accounting Principles, its (or, as the
case may
be, its consolidated) financial condition and operations as at
the end of
and for the period in relation to which those financial statements
were
drawn up.
|
| (b) |
Each
Obligor shall ensure that each set of financial statements delivered
by
the Guarantor pursuant to paragraph (a) of Clause 19.1 (Financial
statements)
or by any Obligor pursuant to paragraph (b) of Clause 19.1 (Financial
statements)
shall be certified by the Chief Financial Officer or Treasurer
of the
Guarantor as fairly representing, in accordance with Agreement
Accounting
Principles, its (or, as the case may be, its consolidated or the
relevant
Obligor's consolidated or unconsolidated) financial condition and
operations as at the end of and for the period in relation to which
those
financial statements were drawn up.
|
| (c) |
Each
Obligor shall procure that each set of its financial statements
delivered
pursuant to Clause 19.1 (Financial
statements)
is prepared using Agreement Accounting Principles, and accounting
practices and financial reference periods consistent with those
applied in
the preparation of the Original Financial Statements provided that
if any
changes in generally accepted accounting principles in the United
States
as at the date of this Agreement are required or permitted after
the date
of this Agreement and are adopted by the Guarantor or any of its
Subsidiaries with the agreement of its independent auditors and
such
changes result in a change in the method of calculation of any
of the
financial covenants, tests, restrictions or standards in this Agreement
or
in the related definitions or terms used in this Agreement ("Accounting
Changes"),
the Parties agree, at the Guarantor's request, to enter into negotiations,
in good faith, in order to amend the provisions of this Agreement
in a
credit neutral manner so as to reflect equitably such changes with
the
desired result that the criteria for evaluating the financial condition
of
the Guarantor and its Subsidiaries shall be the same after such
changes as
if such changes had not been made. Until such provisions are amended
in a
manner reasonably satisfactory to the Majority Lenders, no Accounting
Change shall be given effect in such calculations and all financial
statements and reports required to be delivered under this Agreement
shall
be prepared in accordance with Agreement Accounting Principles
without
taking into account such Accounting Changes. In the event such
amendment
is entered into, all references in this Agreement to Agreement
Accounting
Principles as of the date of this Agreement shall mean generally
accepted
accounting principles as in effect in the United States as of the
date of
such amendment.
|
| 19.4 |
Information:
miscellaneous
|
Each
Obligor shall supply to the Agent (in sufficient copies for all the Lenders,
if
the Agent so requests):
| (a) |
copies
of all financial statements, reports and notices, if any, sent
by the
Guarantor to its securities holders or filed with the US Securities
and
Exchange Commission by the Guarantor (other than Reports on Form
8-K which
contain only information furnished pursuant to Item 12 thereof)
promptly
after they are dispatched or filed;
|
| (b) |
all
documents dispatched by any Obligor other than the Guarantor to
its
creditors generally or required to be dispatched to any shareholder
pursuant to applicable law or regulation promptly after they are
dispatched;
|
| (c) |
promptly
upon becoming aware of them, the details of any litigation, arbitration
or
administrative proceedings which are current, threatened or pending
against any member of the Group, and which might, if adversely
determined,
have a Material Adverse Effect;
|
| (d) |
promptly
upon becoming aware of them, the details of any material labour
dispute
affecting any member of the Group;
|
| (e) |
promptly
upon becoming aware of the addition or removal of a Subsidiary
as a
Material Subsidiary (as compared with the list of Material Subsidiaries
delivered pursuant to Clause 4.1 (Initial
conditions precedent)),
an updated list of its Material
Subsidiaries;
|
| (f) |
promptly
upon becoming aware of them and within 10 days of receipt by it,
the
details of any claim, notice or other communication received by
it in
respect of (i) any actual or alleged breach of or liability under
Environmental Law and/or (ii) any actual or alleged liability as
a result
of discharge, release, leaching, migration or escape of any Hazardous
Substance which, if substantiated, in the case of any member of
the Group,
could reasonably be expected to result in liabilities of, and/or
expenditure by, one or more members of the Group in excess of
US$25,000,000 (or its equivalent in another currency or currencies)
individually or in aggregate or, in the case of any of the Borrowers
otherwise could reasonably be expected to have a Material Adverse
Effect;
|
| (g) |
promptly,
such further information regarding the financial condition, business
and
operations of any member of the Group as any Finance Party (through
the
Agent) may reasonably request; and
|
| (h) |
promptly,
notice of any change in the authorised signatories of any Obligor,
signed
by a director or authorised officer or the secretary of that Obligor
whose
specimen signature has previously been provided to the Agent, accompanied
(where relevant) by a specimen signature of each new
signatory.
|
| 19.5 |
Notification
of default
|
Each
Obligor shall notify the Agent of:
| (a) |
any
Default (specifying its nature and the steps, if any, being taken
to
remedy it); and
|
| (b) |
any
other development, financial or otherwise, which could reasonably
be
expected to have a Material Adverse Effect (specifying its nature
and the
steps if any being taken to remedy
it),
|
promptly
upon becoming aware of its occurrence (unless that Obligor is aware that
a
notification has already been provided by another Obligor).
| 19.6 |
ERISA
Notices
|
The
Guarantor shall deliver or cause to be delivered to the Agent and the Lenders,
at its expense, the following information and notices as soon as reasonably
possible, and in any event:
| (a) |
within
ten (10) Business Days after any Obligor or any ERISA Affiliate
obtains
knowledge that an ERISA Event has occurred which could reasonably
be
expected to subject the Guarantor to liability individually or
in the
aggregate in excess of US$20,000,000 (or the equivalent thereof
in any
other currency or currencies), a written statement of the chief
financial
officer or the treasurer of the Guarantor describing such ERISA
Event and
the action, if any, which that Obligor or ERISA Affiliate has taken,
is
taking or proposes to take with respect thereto, and when known,
any
action taken or threatened by the IRS, DOL or PBGC with respect
thereto;
|
| (b) |
within
ten (10) Business Days after the filing of any funding waiver request
with
the IRS, a copy of such funding waiver request and thereafter all
communications received by an Obligor or an ERISA Affiliate with
respect
to such request within ten (10) Business Days after such communication
is
received; and
|
| (c) |
within
ten (10) Business Days after an Obligor or an ERISA Affiliate knows
or has
reason to know that:
|
| (i) |
a
Benefit Plan or a Multiemployer Plan has been
terminated;
|
| (ii) |
the
administrator or plan sponsor of a Benefit Plan or a Multiemployer
Plan
intends to terminate a Multiemployer Plan;
or
|
| (iii) |
the
PBGC has instituted or will institute proceedings to terminate
a Benefit
Plan or a Multiemployer Plan,
|
a
notice
describing such matter.
For
purposes of this Clause 19.6, an Obligor and an ERISA Affiliate shall be
deemed
to know all facts known by the administrator of any Plan of which such Obligor
or ERISA Affiliate is the plan sponsor.
| 19.7 |
Use
of websites
|
| (a) |
Each
Obligor may satisfy its obligation under this Agreement to deliver
any
information in relation to those Lenders (the "Website
Lenders")
who accept this method of communication by posting this information
onto
an electronic website designated by the Relevant Borrower and the
Agent
(the "Designated
Website")
if:
|
| (i) |
the
Agent expressly agrees (after consultation with each of the Lenders)
that
it will accept communication of the information by this
method;
|
| (ii) |
both
the Relevant Borrower and the Agent are aware of the address of
and any
relevant password specifications for the Designated Website;
and
|
| (iii) |
the
information is in a format previously agreed between the Relevant
Borrower
and the Agent.
|
If
any
Lender (a "Paper
Form Lender")
does
not agree to the delivery of information electronically then the Agent shall
notify the Relevant Borrower accordingly and each Obligor shall supply the
information to the Agent (in sufficient copies for each Paper Form Lender)
in
paper form. In any event each Obligor shall supply the Agent with at least
one
copy in paper form of any information required to be provided by
it.
| (b) |
The
Agent shall supply each Website Lender with the address of and
any
relevant password specifications for the Designated Website following
designation of that website by the Relevant Borrower and the
Agent.
|
| (c) |
Each
Obligor shall promptly upon becoming aware of its occurrence notify
the
Agent if:
|
| (i) |
the
Designated Website cannot be accessed due to technical
failure;
|
| (ii) |
the
password specifications for the Designated Website
change;
|
| (iii) |
any
new information which is required to be provided under this Agreement
is
posted onto the Designated Website;
|
| (iv) |
any
existing information which has been provided under this Agreement
and
posted onto the Designated Website is amended;
or
|
| (v) |
any
of the Obligors becomes aware that the Designated Website or any
information posted onto the Designated Website is or has been infected
by
any electronic virus or similar software.
|
If
an
Obligor notifies the Agent under paragraph (c)(i) or paragraph (c)(v) above,
all
information to be provided by an Obligor under this Agreement after the date
of
that notice shall be supplied in paper form unless and until each of the
Agent
and the Website Lenders is satisfied that the circumstances giving rise to
that
notification are no longer continuing.
| (d) |
Any
Website Lender may request, through the Agent, one paper copy of
any
information required to be provided under this Agreement by any
Obligor
which is posted onto the Designated Website. The relevant Obligor
shall
comply with any such request within ten Business
Days.
|
| 19.8 |
Access
to books, premises and
records
|
| (a) |
Each
Obligor shall (and shall ensure that each member of the Group
will):
|
| (i) |
keep
books and records which accurately reflect in all material respects
all of
its business, affairs and transactions;
and
|
| (ii) |
permit
any Finance Party or any of its representatives, professional advisers
or
contractors, at reasonable times and intervals, and upon reasonable
notice, to visit any of its offices or premises (including, without
limitation, in connection with environmental compliance, hazards
or
liabilities), to inspect any of its books and records and to discuss
its
financial matters with its officers and auditors.
|
| (b) |
Each
Obligor hereby authorises its auditors to discuss any of the Group's
affairs, finances and accounts with the officers and independent
certified
public accountants of any Finance Party or any of its representatives,
all
upon reasonable notice and at such reasonable times during normal
business
hours, as often as may be reasonably requested (provided that an
officer
of the Group may, if it so desires, be present at and participate
in any
such discussion), and to inspect any of its books and records.
|
| (c) |
Each
Obligor hereby authorises each firm which prepared any report delivered
to
any Finance Party in connection with the Finance Documents to discuss
such
report with any Finance Party.
|
| (d) |
If
an Event of Default has occurred and is continuing, each Obligor
shall,
upon request by the Agent, turn over copies of any of its books
and
records to the Agent or its
representatives.
|
| 19.9 |
Know
your customer
|
If:
| (i) |
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of
this
Agreement;
|
| (ii) |
any
change in the status of any Obligor or the composition of the holders
of
shares or equity interests in any Obligor after the date of this
Agreement; or
|
| (iii) |
any
proposed assignment or transfer by a Lender of any of its rights
and/or
obligations under this Agreement to any
person,
|
obliges
the Agent or any Lender (or, in the case of paragraph (iii) above, any
prospective assignee or transferee of any Lender) to comply with “know your
customer”, anti-money laundering or similar identification procedures in
circumstances where the necessary information is not readily available to
it,
each Obligor shall promptly upon the request of the Agent or any Lender supply,
or procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself or on behalf of any Lender) or any Lender
(for itself or, in the case of paragraph (iii) above, on behalf of any
prospective assignee or transferee of such Lender) in order for the Agent,
such
Lender or, the case of paragraph (iii) above, any prospective assignee or
transferee of such Lender to carry out and be satisfied with the results
of all
necessary “know your customer”, anti-money laundering or other similar checks
under all applicable laws and regulations in connection with the Finance
Documents and/or the transactions contemplated thereunder.
| 20. |
FINANCIAL
COVENANTS
|
The
undertakings in this Clause 20 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
| 20.1 |
Maximum
Leverage Ratio
|
| (a) |
The
Guarantor shall ensure that at all times the ratio (the "Leverage
Ratio")
of (i) Total Borrowings to (ii) EBITDA shall not be greater than
3.50 to
1.00.
|
| (b) |
The
Leverage Ratio shall be calculated and in each case determined
as of the
last day of each financial quarter based
upon:
|
| (i) |
for
Total Borrowings, Total Borrowings as of the last day of such financial
quarter; and
|
| (ii) |
for
EBITDA, the actual amount for the four-quarter period ending on
such day,
calculated, with respect to any Permitted Acquisition, on a pro
forma basis
in
accordance with the Agreement Accounting Principles and using
unadjusted historical audited and reviewed unaudited financial
statements
in respect of the business or entity the subject of such Permitted
Acquisition obtained from the seller of such business or entity
(with the
EBITDA component thereof broken down by fiscal quarters in the
Guarantor's
reasonable judgment).
|
| 20.2 |
Minimum
Interest Expense Coverage
Ratio
|
| (a) |
The
Guarantor shall ensure that the ratio (the "Interest
Expense Coverage Ratio")
for any applicable period of (i) EBIT for such period to (ii) Interest
Expense for such period is greater than 3.00 to 1.00 for each financial
quarter.
|
| (b) |
The
Interest Expense Coverage Ratio shall be calculated, as of the
last day of
each financial quarter for the four-quarter period ending on such
day
calculated, with respect to Permitted Acquisitions, on a pro forma
basis
in accordance with the Agreement Accounting Principles and using
unadjusted historical audited and reviewed unaudited financial
statements
in respect of the business or entity the subject of such Permitted
Acquisition obtained from the seller of such business or entity
(with the
EBITDA component thereof broken down by financial quarter in the
reasonable judgement of the
Guarantor).
|
| 20.3 |
Definitions
|
In
this
Clause 20 (Financial
covenants):
"EBIT"
means,
for any period, on a consolidated basis for the Group, the sum of the amounts
for such period, without double-counting, of (i) Net Income, plus (ii) Interest
Expense to the extent deducted in computing Net Income, plus (iii) charges
against income for foreign, federal, state and local Taxes to the extent
deducted in computing Net Income, plus (iv) any additional non-cash charges
(except any non-cash charges that require accrual of a reserve for anticipated
future cash payments for any period) to the extent deducted in computing
Net
Income, plus (v) other extraordinary non-cash charges to the extent deducted
in
computing Net Income minus (vi) extraordinary gains to the extent added in
computing Net Income.
"EBITDA"
means,
for any period, on a consolidated basis for the Group, the sum of the amounts
for such period, without duplication, of (i) EBIT, plus (ii) depreciation
expenses to the extent deducted in computing Net Income, plus (iii) amortisation
expenses, including, without limitation, amortisation of goodwill and other
intangible assets, to the extent deducted in computing Net Income.
"Interest
Expense"
means,
for any period, the total interest expense of the Group, whether paid or
accrued, including, without duplication, Off-Balance Sheet Liabilities
(including Receivables Facility Financing Costs) and the interest component
of
Capitalised Leases, all as determined in conformity with Agreement Accounting
Principles.
"Net
Income"
means,
for any period, the net earnings (or loss) after taxes of the Guarantor and
its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period determined in conformity with Agreement Accounting
Principles.
"Total
Borrowings"
means
the sum of all Indebtedness of the Guarantor and its Subsidiaries as determined
in conformity with Agreement Accounting Principles.
| 21. |
GENERAL
UNDERTAKINGS
|
The
undertakings in this Clause 21 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
| 21.1 |
Corporate
existence, etc
|
Except
as
permitted pursuant to Clause 22.9 (Restrictions
on fundamental changes),
each
Obligor shall, and shall cause each of its Subsidiaries to, at all times
maintain its existence and preserve and keep, or cause to be preserved and
kept,
in full force and effect its rights and franchises material to its
businesses.
| 21.2 |
Authorisations
|
Each
Obligor shall promptly:
| (a) |
obtain,
comply with and do all that is necessary to maintain in full force
and
effect; and
|
| (b) |
supply
certified copies to the Agent of,
|
any
Authorisation required under any law or regulation of its jurisdiction of
incorporation to enable it to perform its obligations under any or all of
the
Finance Documents and/or to ensure the legality, validity, enforceability
or
admissibility in evidence in its jurisdiction of incorporation of any Finance
Document or (in the case of paragraph (a) above only) otherwise required
for a
purpose specified in Clause 18.5 (Validity
and admissibility in evidence).
| 21.3 |
Corporate
powers; conduct of
business
|
| (a) |
Each
Obligor shall, and shall cause each of its Material Subsidiaries
to,
qualify and remain qualified to do business in each jurisdiction
in which
the nature of its business requires it to be so qualified and where
the
failure to be so qualified would have or could reasonably be expected
to
have a Material Adverse Effect.
|
| (b) |
Except
as expressly provided in paragraph (b) of the definition of "Permitted
Acquisition" set out in Clause 22.4 (Acquisitions
and Investments),
the Guarantor shall, and will cause each of its Material Subsidiaries
to,
carry on and conduct its business in substantially the same manner
and in
substantially the same fields of enterprise as it is presently
conducted
at the date of this Agreement unless (in the case of a Material
Subsidiary) the failure of its Material Subsidiaries to carry on
and
conduct its business as so described could not reasonably be expected
to
have a Material Adverse Effect.
|
| (c) |
Each
Obligor shall procure that each SPV will not at any time carry
on any
business or undertake any activity (whether now or in the future)
other
than purchasing receivables in connection with a receivables
securitisation transaction permitted under the terms of this
Agreement.
|
| (d) |
The
Guarantor may create, acquire in a Permitted Acquisition or capitalise
any
Subsidiary (a "New
Subsidiary")
after the date hereof if no Default shall have occurred and be
continuing
or would result therefrom.
|
| 21.4 |
Compliance
with laws
|
Each
Obligor shall (and shall ensure that its Subsidiaries will) comply in all
respects with all laws to which it may be subject, if failure so to comply
would
materially impair its ability to perform its obligations under the Finance
Documents.
| 21.5 |
Insurance
|
Each
Obligor shall (and shall ensure that each of its Subsidiaries will) maintain
in
full force and effect insurances on and in relation to its business and assets
with reputable underwriters or insurance companies against those risks, and
to
the extent, usually insured against by prudent companies located in the same
or
a similar location and carrying on a similar business.
| 21.6 |
Environmental
undertakings
|
Each
Obligor shall (and shall ensure that its Subsidiaries will):
| (a) |
comply
with all Environmental Laws to which it may be
subject;
|
| (b) |
obtain
all Environmental Licences required or desirable in connection
with its
business; and
|
| (c) |
comply
with the terms of all those Environmental
Licences,
|
except
where failure to do so will not have or is not reasonably likely to subject
the
Guarantor or any of its Subsidiaries, individually or in aggregate (for all
members of the Group), to liability in excess of US$30,000,000 (or the
equivalent thereof in any other currency or currencies).
| 21.7 |
Payment
of Taxes and claims; Tax
consolidation
|
Each
Obligor shall pay, and cause each of its Subsidiaries to pay:
| (a) |
all
Taxes, assessments and other governmental charges imposed upon
it or on
any of its properties or assets or in respect of any of its franchises,
business, income or assets before any penalty or interest accrues
thereon;
and
|
| (b) |
all
claims (including, without limitation, claims for labour, services,
materials and supplies) for sums which have become due and payable
and
which by law have or may become secured by a Security and/or Lien
(other
than a Security or Lien permitted by Clause 22.2 (Liens))
upon any of its or such Subsidiary's assets, prior to the time
when any
penalty or fine shall be incurred with respect thereto,
|
provided
however,
that no
such Taxes, assessments and governmental charges referred to in paragraph
(a)
above or claims referred to in paragraph (b) above (and interest, penalties
or
fines relating thereto) need be paid if being contested in good faith by
appropriate proceedings diligently instituted and conducted and if such reserve
or other appropriate provision, if any, as shall be required in conformity
with
Agreement Accounting Principles shall have been made therefor.
| 21.8 |
ERISA
compliance
|
The
Guarantor shall, and shall cause each of its Subsidiaries to, establish,
maintain and operate all Plans to comply in all material respects with the
provisions of ERISA and shall operate all Plans and Non-ERISA Commitments
to
comply in all material respects with the applicable provisions of the Internal
Revenue Code, all other applicable laws, and the regulations and interpretations
thereunder and the respective requirements of the governing documents for
such
Plans and Non-ERISA Commitments, except for any non-compliance which,
individually or in the aggregate, could not reasonably be expected to have
a
Material Adverse Effect.
| 21.9 |
Maintenance
of assets
|
Each
Obligor shall cause all assets necessary for the conduct of its business
or the
business of any of its Subsidiaries to be maintained and kept in good condition,
repair and working order and shall supply all necessary equipment and shall
cause to be made all necessary repairs, renewals, replacements, betterments
and
improvements to such assets or equipment, all as in its judgment may be
necessary for the conduct of its or any of its Subsidiaries' business; provided,
however,
that
nothing in this Clause 21.9 shall prevent any member of the Group from
discontinuing the operation or maintenance of any such asset or equipment
if
such discontinuance is, in its judgment, desirable in the conduct of its
business or the business of any of its Subsidiaries and not disadvantageous
in
the reasonable opinion of the Guarantor in any material respect to the Finance
Parties.
| 21.10 |
Use
of proceeds
|
Each
of
the Borrowers shall use the proceeds of the Loans in accordance with Clause
3.1
(Purpose)
provided that it shall not lend or otherwise make available by financial
accommodation or otherwise, directly or indirectly, to any Subsidiary of
the
Guarantor which is a guarantor of the Guarantor's obligations under the US
Facility, any proceeds of any Loan in circumstances where the right to repayment
of such amount would be subordinated (or otherwise subject to restrictions
on
repayment) to the rights of any person to whom the Guarantor's obligations
under
the US Facility are owed.
| 21.11 |
Subordination
|
The
Guarantor shall procure that any loan or other financial accommodation made
by
it to another member of the Group, directly or indirectly, which is not a
guarantor of the Guarantor's obligations under the US Facility is not
subordinated (or otherwise subject to restrictions on repayment) to the rights
of any person to whom the Guarantor's obligations under the US Facility are
owed.
| 21.12 |
Pari
passu
|
Each
Obligor shall ensure that its obligations under the Finance Documents rank
at
all times at least pari
passu
in right
of priority and payment with the claims of all its other unsecured and
unsubordinated creditors, except for obligations mandatorily preferred by
law
applying to companies generally.
| 22. |
NEGATIVE
UNDERTAKINGS
|
The
undertakings in this Clause 22 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
| 22.1 |
Indebtedness
|
Each
Borrower shall not, and the Guarantor shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or otherwise become or
remain
directly or indirectly liable with respect to any Indebtedness,
except:
| (a) |
Indebtedness
of the Obligors under Clause 17 (Guarantee
and indemnity);
|
| (b) |
Indebtedness
in respect of guarantees executed by any member of the Group with
respect
to any Indebtedness of the Guarantor, provided such Indebtedness
is not
incurred by the Guarantor in violation of this
Agreement;
|
| (c) |
Indebtedness
secured by Customary Permitted
Liens;
|
| (d) |
Indebtedness
constituting Contingent Obligations permitted by Clause 22.5 (Contingent
Obligations);
|
| (e) |
Indebtedness
arising from loans (a) from any Subsidiary of the Guarantor to
any
wholly-owned Subsidiary of the Guarantor or (b) from the Guarantor
to any
wholly-owned Subsidiary;
provided that if any Obligor is the obligor on such Indebtedness,
such
Indebtedness shall, in respect of such Obligor, be expressly subordinate
to the payment in full in cash of amounts due from such Obligor
under the
Finance Documents on terms satisfactory to the
Agent;
|
| (f) |
Indebtedness
in respect of Permitted Hedging
Arrangements;
|
| (g) |
Indebtedness
with respect to surety, appeal and performance bonds obtained by
any
member of the Group (other than the Guarantor) in the ordinary
course of
business;
|
| (h) |
Indebtedness
incurred in connection with the Receivables Purchase Documents,
provided,
that Receivables Facility Attributed Indebtedness in connection
therewith
does not exceed US$250,000,000 in the aggregate (for all members
of the
Group) at any time;
|
| (i) |
outstanding
Indebtedness under the Existing Facility, provided that all of
such
outstanding Indebtedness shall be repaid and discharged in full
on or
before the date falling 2 Business Days after the first Utilisation
Date;
or
|
| (j) |
other
Indebtedness in addition to that referred to elsewhere in this
Clause 22.1
incurred by any Subsidiary of the Guarantor; provided that no Default
shall have occurred and be continuing at the date of such incurrence
or
would result therefrom and provided further that the aggregate
outstanding
amount of all Indebtedness incurred by any and all such Subsidiaries
(other than Indebtedness incurred pursuant to paragraphs (a), (b),
(e),
(f), (h) and (i)) of this Clause 22.1) shall not at any time exceed
20 per
cent. of Consolidated Total
Capitalisation.
|
| 22.2 |
Liens
|
| (a) |
No
member of the Group shall (and each of the Borrowers and the Guarantor
shall procure that none of its Subsidiaries will) directly or indirectly
create, incur, assume or permit to exist any Lien on or with respect
to
any of their respective property or assets
except:
|
| (i) |
Liens,
if any, created by, or in connection with, the US Facility or otherwise
securing the obligations under the US
Facility;
|
| (ii) |
Customary
Permitted Liens;
|
| (iii) |
Liens
arising under the Receivables Purchase Documents over the Receivables
the
subject of such Receivables Purchase Documents;
and
|
| (iv) |
other
Liens, including any Liens listed in Part 1 of Schedule 6 (Existing
Security, Contingent Obligations and Investments),
(1) securing Indebtedness of the Guarantor and/or (2) securing
Indebtedness of the Guarantor's Subsidiaries as permitted pursuant
to
Clause 22.1 (Indebtedness),
all of which, when taken together, secure Indebtedness in an aggregate
outstanding principal amount not exceeding five per cent. of Consolidated
Assets at any time.
|
In
addition, the Guarantor shall not (and shall ensure that none of its
Subsidiaries shall) become a party to any agreement, note, indenture or other
instrument, or take any other action, which would prohibit the creation of
a
Lien on any of its properties or other assets in favour of the Agent for
the
benefit of itself and the Lenders, as collateral for the Loans; provided
that
any agreement, note, indenture or other instrument in connection with purchase
money indebtedness (including Capitalised Leases) may prohibit the creation
of a
Lien in favour of the Agent for the benefit of itself and the Lenders on
the
items of property obtained with the proceeds of such purchase money
indebtedness; provided further that (x) the Senior Note Purchase Agreements
in
connection with the Senior Notes may prohibit the creation of a Lien in favour
of the Agent for the benefit of itself and the Lenders, as collateral for
the
Loans; and (y) the Receivables Purchase Documents may prohibit the creation
of a
Lien with respect to all of the assets of the SPV (party to such Receivables
Purchase Documents) and with respect to the Receivables and Related Security
(relevant to such Receivables Purchase Documents) of any of the Originators
in
favour of the Agent for the benefit of itself and the Lenders, as collateral
for
the Loans.
| (b) |
Each
of the Borrowers and the Guarantor shall not (and shall procure
that none
of its Subsidiaries will) become liable, directly, by assumption
or by
Contingent Obligation, with respect to any lease, whether an operating
lease or a Capitalised Lease, of any property (whether real or
personal or
mixed):
|
| (i) |
which
it or one of its Subsidiaries sold or transferred or is to sell
or
transfer to any other person; or
|
| (ii) |
which
it or one of its Subsidiaries intends to use for substantially
the same
purposes as any other property which has been or is to be sold
or
transferred by it or one of its Subsidiaries to any other person
in
connection with such lease,
|
unless
in
either case the sale or transfer involved is not prohibited under Clause
22.3
(Disposals)
(for
this purpose assuming that paragraph (b)(iv) of Clause 22.3 (Disposals)
does
not apply) and the lease involved is not prohibited under Clause 22.1
(Indebtedness).
| 22.3 |
Disposals
|
| (a) |
Subject
to paragraph (b) below, no member of the Group shall (and each
of the
Borrowers and the Guarantor shall ensure that none of its Subsidiaries
will) enter into a single transaction or a series of transactions
(whether
related or not and whether voluntary or involuntary) to sell, lease,
transfer or otherwise dispose of any asset, whether now owned or
hereafter
acquired, or any income or profits therefrom, or enter into any
agreement
to do so.
|
| (b) |
Paragraph
(a) above does not apply to any sale, lease, transfer or other
disposal:
|
| (i) |
of
Inventory made in the ordinary course of trading of the disposing
entity;
|
| (ii) |
of
any equipment that is obsolete, excess or no longer used or useful
in the
ordinary course of trading;
|
| (iii) |
in
exchange for other assets comparable or superior as to type, value
and
quality and for a similar purpose;
|
| (iv) |
permitted
under paragraph (b) of Clause 22.2(Liens);
|
| (v) |
any
transfer of an interest in Receivables, Receivables and Related
Security,
accounts or notes receivable on a limited recourse basis under
the
Receivables Purchase Documents, provided such transfer qualifies
as a
legal sale and as a sale under Agreement Accounting Principles
and that
the aggregate amount of Receivables Facility Attributable Indebtedness
(in
respect of any and all such transfers, Receivables, Receivables
and
Related Security and accounts or notes receivable for all members
of the
Group) does not exceed US$250,000,000 (or the equivalent thereof
in any
other currency or currencies) at any one time outstanding;
or
|
| (vi) |
where
the transaction is for not less than fair market value and, when
aggregated with any and all other sales, leases, transfers and
other
disposals by any or all members of the Group (each such transaction
being
valued at book value), other than any permitted under paragraphs
(b)(i) to
(v) above, occurring during the financial year in which such
first-mentioned transaction occurs, does not exceed 15 per cent.
of the
Consolidated Assets (such Consolidated Assets being as calculated
as at
the end of the financial year immediately preceding that in which
such
first-mentioned transaction is or is to be entered
into).
|
| 22.4 |
Acquisitions
and Investments
|
| (a) |
Except
to the extent permitted pursuant to Clause 22.8(Arm's
length dealings)
below, no member of the Group shall (and each of the Borrowers
and the
Guarantor shall ensure that none of its Subsidiaries will) directly
or
indirectly make or own any Investment
except:
|
| (i) |
Investments
in cash and Cash Equivalents;
|
| (ii) |
any
Investments listed in Part II of Schedule 6 (Existing
Security, Contingent Obligations and Investments)
except to the extent the amount of such Investment exceeds the
amount
stated in that Schedule
|
| (iii) |
Investments
in trade receivables or received in connection with the bankruptcy
or
reorganisation of suppliers and customers and in settlement of
delinquent
obligations of, and other disputes with, customers and suppliers
arising
in the ordinary course of business;
|
| (iv) |
Investments
consisting of deposit accounts maintained by the Guarantor or its
Subsidiaries;
|
| (v) |
Investments
consisting of non-cash consideration from a sale, assignment, transfer,
lease, conveyance or other disposition of property permitted by
Clause
22.3 (Disposals);
|
| (vi) |
Investments
in any consolidated Subsidiaries (other than joint ventures);
|
| (vii) |
Investments
in joint ventures and non-consolidated Subsidiaries in an aggregate
amount
not exceeding US$50,000,000 or the equivalent thereof in any other
currency or currencies (such aggregate amount being the aggregate
for all
members of the Group for all times since the date of this
Agreement);
|
| (viii) |
Investments
constituting Permitted
Acquisitions;
|
| (ix) |
Investments
constituting Financial Indebtedness permitted by Clause 22.1(Indebtedness)
or Contingent Obligations permitted by Clause 22.5 (Contingent
Obligations);
|
| (x) |
Investments
in the SPVs that (a) are required in connection with the Receivables
Purchase Documents and (b) result from and are constituted by the
transfers permitted by sub-paragraph (b)(v) of Clause 22.3 (Disposals);
|
| (xi) |
Investments
permitted pursuant to Clause 22.6 (Loans
and guarantees);
and
|
| (xii) |
Investments
in addition to those referred to elsewhere in this paragraph (a)
in an
aggregate amount not exceeding US$50,000,000 or the equivalent
thereof in
any other currency or currencies (such aggregate amount being the
aggregate for all members of the Group for all times since the
date of
this Agreement).
|
| (b) |
Without
in any way limiting Clause 21.3 (Corporate
powers, conduct of business)
and any other provisions of this Clause 22, each of the Borrowers
and the
Guarantor shall not (and shall procure that none of its Subsidiaries
will)
make any Acquisitions, other than Acquisitions meeting the following
requirements or otherwise approved by the Majority Lenders (each
such
Acquisition constituting a "Permitted
Acquisition"):
|
| (i) |
no
Default shall have occurred and be continuing or would result from
such
Acquisition or the incurrence of any Indebtedness in connection
therewith,
and all of the representations and warranties contained herein
shall be
true and correct on and as of the date of such Acquisition with
the same
effect as though made on and as of such
date;
|
| (ii) |
the
Acquisition is consummated pursuant to a negotiated acquisition
agreement
on a non-hostile basis pursuant to an acquisition agreement approved
by
the board of directors or other applicable governing body of the
seller
prior to the commencement thereof;
|
| (iii) |
the
businesses or entities being acquired shall be consumer product
companies
or other businesses that are in substantially the same fields of
enterprise or related or incidental to the businesses or activities
engaged in by the Guarantor and its Subsidiaries as of the date
of this
Agreement (or which each member of the Group may engage in accordance
with
the terms of this Agreement), as well as suppliers to or distributors
of
products similar to those of the Guarantor and its Subsidiaries;
provided,
however, that the Guarantor and its Subsidiaries shall be permitted
to
acquire businesses that do not satisfy the foregoing criteria in
this
paragraph (iii) so long as the aggregate purchase consideration
for all
such Acquisitions (by any or all members of the Group that do not
so
satisfy the foregoing criteria since the date of this Agreement)
does not
exceed 5 per cent. of the Guarantor's consolidated tangible net
assets (on
a pro forma basis in accordance with the Agreement Accounting Principles)
as of the date of the consummation of each such Acquisition;
and
|
| (iv) |
prior
to each such Acquisition, the Guarantor shall determine that after
giving
effect to such Acquisition and the incurrence of any Indebtedness
by the
Guarantor or any of its Subsidiaries, to the extent permitted by
Clause
22.1(Indebtedness),
in connection therewith, on a pro forma basis in
accordance with the Agreement Accounting Principles using
historical audited and reviewed unaudited financial statements
obtained
from the seller in respect of such Acquisition, broken down by
financial
quarters in the Guarantor's reasonable judgment, as if such Acquisition
and such incurrence of Financial Indebtedness relating thereto
had
occurred on the first day of the twelve Month period ending on
the last
day of the Guarantor's most recently completed financial quarter,
the
Guarantor would have been in compliance with the financial covenants
in
Clause 20 (Financial
covenants)
and not otherwise in Default.
|
| 22.5 |
Contingent
Obligations
|
Each
of
the Borrowers and the Guarantor shall ensure that none of its Subsidiaries
will
directly or indirectly create or become or be liable with respect to any
Contingent Obligation, except:
| (a) |
recourse
obligations resulting from endorsements of negotiable instruments
for
collection in the ordinary course of
business;
|
| (b) |
any
Contingent Obligations listed in Part III of Schedule 6 (Existing
Security, Contingent Obligations and Investments) except
to the extent the amount of such Contingent Obligations exceeds
the amount
stated in that Schedule;
|
| (c) |
obligations,
warranties, and indemnities, not relating to Indebtedness of any
person,
which have been or are undertaken or made in the ordinary course
of
business and not for the benefit of or in favour of an Affiliate
of the
Guarantor or such Subsidiary;
|
| (d) |
Contingent
Obligations with respect to surety, appeal and performance bonds
obtained
by the Guarantor or any Subsidiary in the ordinary course of
business;
|
| (e) |
Contingent
Obligations of the Obligors under the Finance
Documents;
|
| (f) |
Contingent
Obligations of Subsidiaries which are guarantors under a guarantee
of the
Indebtedness evidenced by the Senior Notes, the Senior Note Purchase
Agreements or the US Facility;
|
| (g) |
Contingent
Obligations of the Guarantor or any of its Subsidiaries arising
under the
Receivables Purchase Documents;
|
| (h) |
Contingent
Obligations of non-US Subsidiaries of the Guarantor represented
by
guarantees of obligations of non-US Subsidiaries;
|
| (i) |
Contingent
Obligations incurred in the ordinary course of business by any
of the
Guarantor's Subsidiaries in respect of obligations of any Subsidiary
of
the Guarantor; and
|
| (j) |
outstanding
Indebtedness under the Existing Facility, provided that all of
such
outstanding Indebtedness shall be repaid and discharged in full
on or
before the date falling 2 Business Days after the first Utilisation
Date.
|
| 22.6 |
Loans
and guarantees
|
| (a) |
None
of the Borrowers shall:
|
| (i) |
make
any loan, or provide any form of credit or financial accommodation,
to any
other person; or
|
| (ii) |
give
or issue any guarantee, indemnity, bond or letter of credit to
or for the
benefit of any person; or
|
| (iii) |
permit
to subsist any guarantee of any Financial Indebtedness of any of
its
Subsidiaries.
|
| (b) |
Paragraph
(a) above does not apply to:
|
| (i) |
any
guarantee or indemnity given pursuant to the Finance Documents;
|
| (ii) |
trade
credit given in the ordinary course of trading on normal commercial
terms;
|
| (iii) |
loans
made to employees as part of their terms of employment;
or
|
| (iv) |
any
loan, credit or financial accommodation made or provided to, or
any
guarantee, indemnity, bond or letter of credit given or issued
to, or for
the benefit of, any wholly-owned, direct or indirect, Subsidiary
of the
Guarantor, provided that each Borrower shall, at the time such
loan,
credit or financial accommodation is made or provided or such guarantee,
indemnity, bond or letter of credit is given or issued, be deemed
to
represent and warrant to the Finance Parties that, taking into
account its
future liabilities and revenues, it is able to, and will remain
able to,
pay all amounts owed by it under the Finance Documents as such
amounts
fall due, notwithstanding the making or provision of such loan,
credit or
financial accommodation or the giving or issue of such guarantee,
bond,
indemnity or letter of credit, as the case may
be.
|
| 22.7 |
Change
of business
|
| (a) |
Each
Borrower shall procure that no material change is made to the general
nature of the business of any of the Borrowers or all the Borrowers
taken
as a whole from that carried on at the date of this
Agreement.
|
| (b) |
Each
Borrower shall carry on and conduct its business in substantially
the same
manner and in substantially the same fields of enterprise as it
is
presently conducted at the date of this
Agreement.
|
| 22.8 |
Arm's
length dealings
|
Except
for:
| (a) |
the
transactions set forth in Part IV of Schedule 6 (Existing Security,
Contingent Obligations and Investments),
|
| (b) |
Permitted
Receivables Transfers; and
|
| (c) |
Investments
permitted by Clause 22.4(a),
|
each
of
the Borrowers and the Guarantor shall not (and shall procure that none of
its
Subsidiaries will) directly or indirectly enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any asset or the rendering of any service) with any holder or
holders of any of the Equity Interests of any of the Borrowers or the Guarantor,
or with any Affiliate of any of the Borrowers or the Guarantor which is not
its
Subsidiary, on terms that are less favourable to such Borrower or the Guarantor
or any of their Subsidiaries, as applicable, than those that might be obtained
in an arm's length transaction at the time from persons who are not such
a
holder or Affiliate.
| 22.9 |
Restriction
on fundamental changes
|
| (a) |
The
Guarantor shall not (and shall procure that its Subsidiaries do
not) enter
into any merger or consolidation, or liquidate, wind-up or dissolve
(or
suffer any liquidation or dissolution), or convey, lease, sell,
transfer
or otherwise dispose of, in one transaction or series of transactions,
all
or substantially all of the Guarantor's or any such Subsidiary's
business
or property, whether now or hereafter acquired,
except:
|
| (i) |
transactions
permitted under Clauses 22.3 (Disposals)
or paragraph (b) of Clause 22.4(Acquisitions
and Investments);
and
|
| (ii) |
a
Subsidiary of the Guarantor (other than any Borrower) may be merged
into
or consolidated with the Guarantor (in which case the Guarantor
shall be
the surviving corporation) or any wholly-owned Subsidiary of the
Guarantor.
|
| (b) |
The
application of any exception under paragraph (a) above to a Borrower
shall
be subject to the further requirement that each Borrower shall
not enter
into any amalgamation, demerger, merger or corporate reconstruction,
except that a Borrower may be merged into or consolidated with
another
Borrower or any wholly-owned Subsidiary of the
Guarantor.
|
| 22.10 |
Margin
Regulations
|
None
of
the Obligors shall, and each Obligor shall ensure that none of its Subsidiaries
shall, use all or any portion of the proceeds of any credit extended under
this
Agreement to purchase or carry Margin Stock.
| 22.11 |
ERISA
|
None
of
the Obligors shall:
| (a) |
permit
to exist any accumulated funding deficiency (as defined in Sections
302 of
ERISA and 412 of the Code), with respect to any Benefit Plan, whether
or
not waived;
|
| (b) |
terminate,
or permit any ERISA Affiliate to terminate, any Benefit Plan which
would
result in liability of Energizer or any Group member under Title
IV of
ERISA;
|
| (c) |
fail,
or permit any ERISA Affiliate to fail, to pay any required instalment
or
any other payment required under Section 412 of the Internal Revenue
Code
on or before the due date for such instalment or other payment;
or
|
| (d) |
permit
any unfunded liabilities with respect to any Foreign Pension Plan,
except
as disclosed in the Original Financial
Statements,
|
except
where such transactions, events, circumstances, or failures are not,
individually or in the aggregate, reasonably expected to result in liability
individually or in the aggregate (for all members of the Group) in excess
of
US$25,000,000 (or the equivalent thereof in any other currency or currencies)
or
have a Material Adverse Effect.
| 22.12 |
Corporate
Documents
|
The
Guarantor shall not (and shall procure that each of its Subsidiaries will
not)
amend, modify or otherwise change any of the terms or provisions in any of
their
respective constituent documents as in effect on the date of this Agreement
in
any manner adverse to the interests of the Lenders, without the prior written
consent of the Majority Lenders.
| 22.13 |
Financial
Year
|
The
Guarantor shall not, and shall procure that none of its consolidated
Subsidiaries shall, change its fiscal year for accounting or tax purposes
from
that used at the date of this Agreement.
| 22.14 |
Hedging
Obligations
|
The
Guarantor shall not, and shall ensure that none of its Subsidiaries will,
enter
into any Hedging Arrangements other than Permitted Hedging
Arrangements.
| 22.15 |
Issuance
of Disqualified Stock
|
The
Guarantor shall not, and shall ensure that none any of its Subsidiaries shall,
issue any Disqualified Stock.
| 22.16 |
Subsidiary
Covenants
|
The
Guarantor will not, and will not permit any of its Subsidiaries to, create
or
otherwise cause to become effective any consensual encumbrance or restriction
of
any kind on the ability of any Subsidiary of the Guarantor to pay dividends
or
make any other distribution on its stock, redeem or repurchase its stock,
make
any other similar payment or distribution, pay any Indebtedness or other
Loans
owed to the Guarantor or any other Subsidiary of the Guarantor, make loans
or
advances to or other Investments in the Guarantor or any other Subsidiary
of the
Guarantor, sell, transfer or otherwise convey any of its property to the
Guarantor or any other Subsidiary of the Guarantor or merge, consolidate
with or
liquidate into the Guarantor or any other Subsidiary of the Guarantor other
than
pursuant to (i) this Agreement, and (ii) the Receivables Purchase
Documents.
| 23. |
EVENTS
OF DEFAULT
|
Each
of
the events or circumstances set out in Clauses 23.1 (Non-payment)
to
23.17 (Receivables
Purchase Document Events)
is an
Event of Default.
| 23.1 |
Non-payment
|
| (a) |
An
Obligor does not pay on the due date any amount of principal of
a Loan at
the place at and in the currency in which it is expressed to be
payable.
|
| (b) |
An
Obligor does not pay within 5 Business Days of the due date any
other
amount payable pursuant to a Finance Document at the place at and
in the
currency in which it is expressed to be
payable.
|
| 23.2 |
Financial
and negative covenants
|
Any
requirement of Clause 20 (Financial
covenants)
and
Clause 22 (Negative
Undertakings)
is not
satisfied.
| 23.3 |
Other
obligations
|
| (a) |
An
Obligor does not comply with any provision of the Finance Documents
(other
than those referred to in Clause 23.1 (Non-payment)
and Clause 23.2 (Financial
and negative covenants)).
|
| (b) |
No
Event of Default will occur under paragraph (a) above with respect
to a
failure to comply with any provision of the Finance Documents if
such
failure to comply is capable of remedy and is remedied within 30
days of
the earlier to occur of the Agent or any Lender giving notice thereof
to
the Relevant Borrower or the date on which a member of the Senior
Management Team of an Obligor becomes aware of such failure to
comply or
should have known of such failure to
comply.
|
| 23.4 |
Misrepresentation
|
Any
representation or statement made or deemed to be made by an Obligor in any
Finance Document or any other document delivered by or on behalf of any Obligor
under or in connection with any Finance Document is or proves to have been
incorrect or misleading in any material respect when made or deemed to be
made.
| 23.5 |
Cross
default
|
Any:
| (i) |
Indebtedness
of any member of the Group or Financial Indebtedness of any of
the
Borrowers is not paid when due nor within any originally applicable
grace
period;
|
| (ii) |
Indebtedness
of any member of the Group or Financial Indebtedness of any of
the
Borrowers is declared to be or otherwise becomes due and payable
(or
otherwise redeemable or repurchaseable) prior to its specified
maturity as
a result of any actual or potential default, event of default,
credit
review event or any similar event (however described);
or
|
| (iii) |
creditor
of any member of the Group or any of the Borrowers becomes entitled
to
declare any Indebtedness of any member of the Group or any Financial
Indebtedness of any of the Borrowers due and payable (or otherwise
redeemable or repurchaseable) prior to its specified maturity as
a result
of any actual or potential default, event of default, credit review
event
or any similar event (however
described),
|
provided
that no Event of Default will occur under this Clause 23.5 if the aggregate
amount, without double counting, of all Indebtedness (in the case of members
of
the Group) and all Financial Indebtedness (in the case of the Borrowers)
falling
within paragraphs (i) to (iii) above is less than (or the equivalent thereof
in
US$ is less than) US$30,000,000.
| 23.6 |
Insolvency
|
| (a) |
Any
of the Borrowers is unable to, or is presumed or deemed to be unable
to or
admits its inability to pay its debts, suspends making payments
on any of
its debts or, by reason of actual or anticipated financial difficulties,
commences negotiations with one or more of its creditors with a
view to
rescheduling any of its indebtedness;
or
|
| (b) |
the
value of the assets of any of the Borrowers is less than its liabilities
(taking into account contingent and prospective liabilities);
or
|
| (c) |
a
moratorium is declared in respect of any indebtedness of any of
the
Borrowers.
|
| 23.7 |
Insolvency
proceedings
|
Any
corporate action, legal proceedings or other procedure or step is taken in
relation to:
| (a) |
the
suspension of payments, a moratorium of any indebtedness, winding-up,
dissolution, administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any of the
Borrowers;
|
| (b) |
a
composition, assignment or arrangement with any creditor of any
of the
Borrowers;
|
| (c) |
the
appointment of a liquidator, Judicial Manager, receiver, administrator,
administrative receiver, compulsory manager or other similar officer
in
respect of any of the Borrowers or any of its assets;
or
|
| (d) |
enforcement
of any Security over any assets of any of the
Borrowers,
|
or
any
analogous procedure or step is taken in any jurisdiction unless, in each
case,
such procedure or step is frivolous or vexatious and is discharged within
10
days of being taken.
| 23.8 |
US
Involuntary Bankruptcy; Appointment of Receiver,
Etc.
|
| (a) |
An
involuntary case shall be commenced against the Guarantor or any
of its
Material Subsidiaries and the petition shall not be dismissed,
stayed,
bonded or discharged within sixty (60) days after commencement
of the
case; or a court having jurisdiction in the premises shall enter
a decree
or order for relief in respect of the Guarantor or any of its Material
Subsidiaries in an involuntary case, under any applicable bankruptcy,
insolvency or other similar law now or hereinafter in effect; or
any other
similar relief shall be granted under any applicable federal, state,
local
or foreign law.
|
| (b) |
A
decree or order of a court having jurisdiction in the premises
for the
appointment of a receiver, liquidator, sequestrator, trustee, custodian
or
other officer having similar powers over the Guarantor or any of
its
Material Subsidiaries or over all or a substantial part of the
assets of
the Guarantor or any of its Material Subsidiaries shall be entered;
or an
interim receiver, trustee or other custodian of the Guarantor or
any of
its Material Subsidiaries or of all or a substantial part of the
assets of
the Guarantor or any of its Material Subsidiaries shall be appointed
or a
warrant of attachment, execution or similar process against any
substantial part of the assets of the Guarantor of its or any of
its
Material Subsidiaries shall be issued and any such event shall
not be
stayed, dismissed, bonded or discharged within sixty (60) days
after
entry, appointment or issuance or any order, judgment or decree
shall be
entered against the Guarantor decreeing its involuntary dissolution
or
split up and such order shall remain undischarged and unstayed
for a
period in excess of sixty (60) days or the Guarantor shall otherwise
dissolve or cease to exist.
|
| 23.9 |
US
Voluntary Bankruptcy; Appointment of Receiver,
Etc.
|
The
Guarantor or any of its Material Subsidiaries shall (i) commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now
or
hereafter in effect, (ii) consent to the entry of an order for relief in
an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, (iii) consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property, (iv) make any assignment for the benefit of creditors,
(v)
take any corporate action to authorise any of the foregoing or (vi) is generally
not paying, or admits in writing its inability to pay, its debts as they
become
due.
| 23.10 |
Judgments,
creditors' process
|
| (a) |
Any
money judgment (other than a money judgment covered by insurance
as to
which the insurance company has not disclaimed or reserved the
right to
disclaim coverage) made or given by any court of competent jurisdiction
against a member of the Group or its assets involving in any single
case
or in the aggregate an amount in excess of US$30,000,000 or its
equivalent
(such aggregate being the aggregate for all such judgments for
all members
of the Group) shall remain undischarged, unvacated, unbonded or
unstayed
for a period of 60 days or, if earlier, by the date 15 days prior
to the
date of any proposed sale or disposition
thereunder.
|
| (b) |
Any
expropriation, attachment, sequestration, distress or execution
affects
any asset or assets of a member of the Group having in any single
case or
in the aggregate a value of US$30,000,000 or its equivalent (such
aggregate being the aggregate for all such events or circumstances
for all
members of the Group) and is not discharged within 60 days or,
if earlier,
by the date 15 days prior to the date of any proposed sale or disposition
thereunder.
|
| 23.11 |
Declared
company
|
An
Obligor is declared by the Minister of Finance of Singapore to be a company
to
which Part IX of the Companies Act applies.
| 23.12 |
Unlawfulness
|
It
is or
becomes unlawful for an Obligor to perform any of its obligations under the
Finance Documents.
| 23.13 |
Repudiation
|
An
Obligor repudiates a Finance Document or evidences an intention to repudiate
a
Finance Document or any Finance Document ceases to be in full force and
effect.
| 23.14 |
ERISA
Event
|
Any
ERISA
Event occurs which the Majority Lenders believe is reasonably likely to subject
any member of the Group to liability individually or in the aggregate in
excess
of US$30,000,000 or the equivalent thereof (such aggregate being the aggregate
for all members of the Group).
| 23.15 |
Waiver
of Minimum Funding
Standard
|
If
the
plan administrator of any Plan applies under Section 412(d) of the Internal
Revenue Code for a waiver of the minimum funding standards of Section 412(a)
of
the Internal Revenue Code and the Majority Lenders believe the substantial
business hardship upon which the application for the waiver is based could
reasonably be expected to subject any member of the Group to liability
individually or in the aggregate in excess of US$30,000,000 or the equivalent
thereof (such aggregate being the aggregate for all members of the
Group).
| 23.16 |
Environmental
Matters
|
Any
member of the Group shall be the subject of any proceeding or investigation
pertaining to:
| (a) |
the
release by any Borrower or any of its Subsidiaries of any Hazardous
Substance into the Environment;
|
| (b) |
the
liability of any Borrower or any of its Subsidiaries arising from
the
release by any other person of any Hazardous Substance into the
Environment; or
|
| (c) |
any
violation of any Environmental Law or Environmental Licence by
any member
of the Group,
|
which
has
or is reasonably likely to subject any member of the Group to liability
individually or in the aggregate in excess of US$30,000,000 or the equivalent
thereof (such aggregate being the aggregate for all members of the
Group).
| 23.17 |
Receivables
Purchase Document Events
|
A
"Termination Event" (as defined in the 2000 Receivables Sale Agreement),
an
"Amortization Event" (as defined in the 2000 Receivables Purchase Agreement)
or
any other breach or event of like import under any Receivables Purchase Document
permitted hereby (any such event, a "Receivables
Facility Trigger Event")
shall:
| (a) |
occur
with respect to the conduct or performance of (i) any member of
the Group
party to such Receivables Purchase Document, (ii) any servicer
of any
Receivables (so long as such servicer is the Guarantor or a Subsidiary
thereof) under any Receivables Purchase Document, (iii) any guarantor
of
the obligations of any member of the Group party to such Receivables
Purchase Document or servicer under any Receivables Purchase Document
or
(iv) any of their respective Subsidiaries other than an SPV;
and
|
| (b) |
result
in the termination of reinvestments of collections or proceeds
of
Receivables and Related Security under any Receivables Purchase
Document
or any agreement evidencing Receivables Facility Attributed
Indebtedness,
|
it
being
understood and agreed that the occurrence of a Receivables Facility Trigger
Event resulting solely from (i) the conduct or performance of an SPV and/or
(ii)
the performance or quality of the Receivables securing the obligations under
the
Receivables Purchase Documents, taken together with the circumstances described
in paragraph (b) above shall not give rise to an Event of Default under this
Clause 23.17.
| 23.18 |
Acceleration
|
On
and at
any time after the occurrence of an Event of Default the Agent may, and shall
if
so directed by the Majority Lenders, by notice to the Relevant
Borrower:
| (a) |
cancel
the Total Commitments whereupon they (and the Commitment of each
Lender)
shall immediately be cancelled;
|
| (b) |
declare
that all or part of the Loans, together with accrued interest,
and all
other amounts accrued or outstanding under the Finance Documents
be
immediately due and payable, whereupon they shall become immediately
due
and payable; and/or
|
| (c) |
declare
that all or part of the Loans be payable on demand, whereupon they
shall
immediately become payable on demand by the Agent on the instructions
of
the Majority Lenders.
|
| 23.19 |
Automatic
Acceleration
|
If
an
Event of Default occurs under Clause 23.8 (US
Involuntary Bankruptcy; Appointment of Receiver, Etc.)
or
Clause 23.9 (US
Voluntary Bankruptcy; Appointment of Receiver, Etc.)
in
relation to the Guarantor, each amount expressed by Clause 17 (Guarantee
and indemnity)
to be
payable by the Guarantor on demand shall, after that Event of Default has
occurred, be immediately due and payable by the Guarantor without the need
for
any demand or other claim on the Guarantor.
CHANGES
TO PARTIES
| 24. |
CHANGES
TO THE LENDERS
|
| 24.1 |
Assignments
and transfers by the
Lenders
|
Subject
to this Clause 24, a Lender (the "Existing
Lender")
may:
| (a) |
assign
any of its rights under this Agreement;
or
|
| (b) |
transfer
by novation any of its rights and obligations under this
Agreement,
|
to
another bank or financial institution or to a trust, fund or other entity
which
is regularly engaged in or established for the purpose of making, purchasing
or
investing in loans, securities or other financial assets (the "New
Lender").
| 24.2 |
Conditions
of assignment or transfer
|
| (a) |
The
consent of the Relevant Borrower is required for an assignment
or transfer
by a Lender, unless the assignment or transfer is to another Lender
or an
Affiliate of a Lender or an Approved Fund of a Lender or a Default
is
continuing.
|
| (b) |
The
consent of the Relevant Borrower to an assignment or transfer must
not be
unreasonably withheld or delayed. The Relevant Borrower will be
deemed to
have given its consent five Business Days after any Lender has
requested
it unless such consent is expressly refused by the Relevant Borrower
within that time.
|
| (c) |
Unless
the Agent and, if the consent of the Relevant Borrower is required
pursuant to paragraph (a) above, the Relevant Borrower otherwise
agrees,
any assignment or transfer by a Lender must be in an amount (such
amount
being the sum of the Existing Lender’s participation in the Loans being so
assigned or transferred and the Existing Lender's Available Commitment
being so transferred) that is (i) not less than US$5,000,000 (and
for the
purpose of such calculations any participation in any S$ Loan shall
be
converted into US$ at the Agent's Spot Rate of Exchange at the
time of
such assignment or transfer) or (ii) equal to the Existing Lender's
participation in the Loans and the Existing Lender's Available
Commitment.
|
| (d) |
An
assignment by the Existing Lender to the New Lender will only be
effective
on receipt by the Agent of written confirmation from the New Lender
(in
form and substance satisfactory to the Agent) that the New Lender
will
assume the same obligations to the other Finance Parties as it
would have
been under if it was originally party hereto as a
Lender.
|
| (e) |
A
transfer by the Existing Lender to the New Lender will only be
effective
if the procedure set out in Clause 24.5 (Procedure
for transfer)
is complied with.
|
| (f) |
If:
|
| (i) |
an
Existing Lender assigns or transfers any of its rights or obligations
under the Finance Documents to a New Lender or a Lender changes
its
Facility Office; and
|
| (ii) |
as
a result of circumstances existing at the date such assignment,
transfer
or change occurs, an Obligor would be obliged to make a payment
to such
New Lender or (as the case may be) such Lender acting through its
new
Facility Office under Clause 12 (Tax
gross-up and indemnities)
or Clause 13 (Increased
Costs),
|
then
the
entitlement of such New Lender or (as the case may be) such Lender acting
through its new Facility Office to receive payment under those Clauses by
reference to such circumstances (or a continuation of such circumstances)
shall
be limited to the extent as the entitlement of such Existing Lender or (as
the
case may be) such Lender acting through its previous Facility Office had
such
assignment, transfer or change not occurred.
| (g) |
The
Existing Lender assigning or transferring all or part of its rights
and
obligations under this Agreement to the New Lender must
simultaneously:
|
| (i) |
assign
or transfer the same proportionate share of its participation in
each of
the Loans and (in the case of a transfer) the same proportionate
share of
its Available Commitment to the New Lender;
and
|
| (ii) |
assign
to the New Lender a portion of its rights under the other Finance
Documents as shall correspond to the rights and/or obligations
under this
Agreement so assigned or transferred by it to the New
Lender.
|
| 24.3 |
Assignment
or transfer fee
|
The
New
Lender shall, on the date upon which an assignment or transfer by the Existing
Lender to it takes effect or the Transfer Certificate is delivered to the
Agent
in accordance with Clause 24.5 (Procedure
for transfer),
pay to
the Agent (for its own account) a fee of US$1,000.
| 24.4 |
Limitation
of responsibility of Existing
Lenders
|
| (a) |
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New
Lender
for:
|
| (i) |
the
legality, validity, effectiveness, adequacy or enforceability of
the
Finance Documents or any other
documents;
|
| (ii) |
the
financial condition of any Obligor;
|
| (iii) |
the
performance and observance by any Obligor of its obligations under
the
Finance Documents or any other documents;
or
|
| (iv) |
the
accuracy of any statements (whether written or oral) made in or
in
connection with any Finance Document or any other
document,
|
and
any
representations or warranties implied by law are excluded.
| (b) |
The
New Lender confirms to the Existing Lender and the other Finance
Parties
that it:
|
| (i) |
has
made (and shall continue to make) its own independent investigation
and
assessment of the financial condition and affairs of each Obligor
and its
related entities in connection with its participation in this Agreement
and/or the other Finance Documents and has not relied exclusively
on any
information provided to it by the Existing Lender in connection
with any
Finance Document; and
|
| (ii) |
will
continue to make its own independent appraisal of the creditworthiness
of
each Obligor and its related entities whilst any amount is or may
be
outstanding under the Finance Documents or any Commitment is in
force.
|
| (c) |
Nothing
in any Finance Document obliges an Existing Lender
to:
|
| (i) |
accept
a re-assignment or re-transfer from the New Lender of any of the
rights
and/or obligations assigned or transferred under this Clause 24;
or
|
| (ii) |
support
any losses directly or indirectly incurred by the New Lender by
reason of
the non-performance by any Obligor of its obligations under the
Finance
Documents or otherwise.
|
| 24.5 |
Procedure
for transfer
|
| (a) |
Subject
to the conditions set out in Clause 24.2 (Conditions
of assignment or transfer)
a
transfer by a Lender of any or all of its rights and obligations
under
this Agreement is effected on the Transfer Date (relating to such
transfer) in accordance with paragraph (b) below. The Agent shall,
as soon
as reasonably practicable after receipt by it of a duly completed
Transfer
Certificate appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
|
| (b) |
On
the Transfer Date:
|
| (i) |
to
the extent that in the Transfer Certificate the Existing Lender
seeks to
transfer by novation its rights and obligations under this Agreement
each
of the Obligors and the Existing Lender shall be released from
further
obligations towards one another under this Agreement and their
respective
rights against one another under this Agreement shall be cancelled
(being
the "Discharged
Rights and Obligations");
|
| (ii) |
each
of the Obligors and the New Lender shall assume obligations towards
one
another and/or acquire rights against one another under this Agreement
which differ from the Discharged Rights and Obligations only insofar
as
that Obligor and the New Lender have assumed and/or acquired the
same in
place of that Obligor and the Existing
Lender;
|
| (iii) |
the
Agent, the Arranger, the New Lender and other Lenders shall acquire
the
same rights and assume the same obligations between themselves
as they
would have acquired and assumed had the New Lender been originally
party
as a Lender with the rights and/or obligations acquired or assumed
(or
expressed to be acquired or assumed) by it as a result of the transfer
(the subject of such Transfer Certificate) and to that extent the
Agent,
the Arranger and the Existing Lender shall each be released from
further
obligations to each other under this Agreement;
and
|
| (iv) |
the
New Lender shall become a Party as a
"Lender".
|
| 24.6 |
Participations
|
For
the
avoidance of doubt, nothing in this Agreement shall prevent any Lender from
entering into any sub-participation, risk participation, credit default swap
or
other similar transaction with any other person.
| 24.7 |
Replacement
of Certain Lenders
|
| (a) |
Without
in any way limiting the obligations of the Obligors under the Finance
Documents (including, without limitation, pursuant to Clauses 7.1
(Illegality)
or 13.1 (Increased
Costs)),
in the event that a Lender (an "Affected
Lender")
is entitled to repayment or prepayment pursuant to Clause 7.1
(Illegality)
or to payment of its Increased Costs pursuant to Clause 13.1 (Increased
Costs)
and such payments are not payable to any other Lender pursuant
to Clauses
7.1 (Illegality)
or 13.1 (Increased
Costs),
the Relevant Borrower may deliver a notice to such Affected Lender
(with a
copy to the Agent) requesting the Affected Lender to transfer all
of such
Affected Lender's rights and obligations under this Agreement (including,
without limitation, its Commitment) to one or more financial institutions
or other persons that comply with the provisions of this Clause
24
(Changes
to Lenders),
which the Relevant Borrower shall have engaged for such purposes
(a
"Replacement
Lender")
and notified to the Affected Lender in such notice from the Relevant
Borrower and, on receipt of such notice, such Affected Lender shall
use
its reasonable efforts to make such transfer in accordance with
the
foregoing provisions of this Clause 24 (Changes
to the Lenders)
within five (5) Business Days from the date of such notice (or
in the case
of Clause 7.1 (Illegality),
if earlier, the date specified by the Affected Lender in the notice
delivered to the Agent pursuant to sub-paragraph (a)(i) of that
Clause
7.1(Illegality)
or, if earlier, the last day of the Interest Period for any Loan
outstanding on the notification date (as defined in Clause 7.1
(Illegality)
in relation to such Affected Lender) that is the soonest to expire).
Such
transfer shall not in any way prejudice any of the accrued rights
of such
Affected Lender under the Finance
Documents.
|
| (b) |
The
Agent agrees, upon the written request of the Relevant Borrower
following
the occurrence of an event entitling the Relevant Borrower to deliver
a
notice under this Clause 24.7, to use its reasonable efforts to
help the
Relevant Borrower engage one or more financial institutions to
act as a
Replacement Lender.
|
| (c) |
For
the avoidance of doubt, an Affected Lender need not effect any
transfer
pursuant to this Clause 24.7, unless prior to (or on) such transfer
it
receives in cash, (i) all amounts due and owing to the Affected
Lender
under each Finance Document, including, without limitation, the
aggregate
outstanding principal amount of the Loans owed to such Affected
Lender
(whether or not then due and payable), together with accrued interest
thereon until the date of such transfer and (ii) Break Costs in
connection
with such transfer (calculated as if all of the amounts referred
to in (i)
were paid by the Obligors to such Affected Lender on the date of
such
transfer).
|
| 25. |
CHANGES
TO THE OBLIGORS
|
No
Obligor may assign any of its rights or transfer any of its rights or
obligations under any or all of the Finance Documents.
THE
FINANCE PARTIES
| 26. |
ROLE
OF THE AGENT AND THE
ARRANGER
|
| 26.1 |
Appointment
of the Agent
|
| (a) |
Each
of the Arranger and the Lenders appoints the Agent to act as its
agent
under and in connection with the Finance
Documents.
|
| (b) |
Each
of the Arranger and the Lenders authorises the Agent to exercise
the
rights, powers, authorities and discretions specifically given
to the
Agent under or in connection with the Finance Documents together
with any
other incidental rights, powers, authorities and
discretions.
|
| 26.2 |
Duties
of the Agent
|
| (a) |
The
Agent shall promptly forward to a Party the original or a copy
of any
document which is delivered to the Agent for that Party by any
other
Party.
|
| (b) |
Except
where a Finance Document specifically provides otherwise, the Agent
is not
obliged to review or check the adequacy, accuracy or completeness
of any
document it forwards to another
Party.
|
| (c) |
If
the Agent receives notice from a Party referring to any Finance
Document,
describing a Default and stating that the circumstance described
is a
Default, it shall promptly notify the
Lenders.
|
| (d) |
If
the Agent is aware of the non-payment of any principal, interest,
commitment fee or other fee payable to a Finance Party (other than
the
Agent or the Arranger) under any Finance Document it shall promptly
notify
the other Finance Parties.
|
| (e) |
The
Agent's duties under the Finance Documents are solely mechanical
and
administrative in nature. The Agent shall have no other duties
save as
expressly provided in the Finance Documents to which it is
party.
|
| 26.3 |
Role
of the Arranger
|
Except
as
specifically provided in the Finance Documents, the Arranger has no obligations
of any kind to any other Party under or in connection with any Finance
Document.
| 26.4 |
No
fiduciary duties
|
| (a) |
Nothing
in this Agreement constitutes the Agent or the Arranger as a trustee
or
fiduciary of any other person.
|
| (b) |
Neither
the Agent nor the Arranger shall be bound to account to any Lender
for any
sum or the profit element of any sum received by it for its own
account.
|
| 26.5 |
Business
with the Group
|
Each
of
the Agent and the Arranger may accept deposits from, lend money to and generally
engage in any kind of banking or other business with any member of the
Group.
| 26.6 |
Rights
and discretions of the
Agent
|
| (a) |
The
Agent may rely on:
|
| (i) |
any
representation, notice or document believed by it to be genuine,
correct
and appropriately authorised; and
|
| (ii) |
any
statement purportedly made by a director, authorised signatory
or employee
of any person regarding any matters which may reasonably be assumed
to be
within his knowledge or within his power to
verify.
|
| (b) |
The
Agent may assume (unless it has received notice to the contrary
in its
capacity as agent for the Lenders)
that:
|
| (i) |
no
Default has occurred (unless it has actual knowledge of a Default
arising
under Clause 23.1 (Non-payment));
|
| (ii) |
any
right, power, authority or discretion vested in any Party or the
Majority
Lenders has not been exercised; and
|
| (iii) |
any
notice or request made by an Obligor (other than a Utilisation
Request) is
made on behalf of and with the consent and knowledge of all the
Obligors.
|
| (c) |
The
Agent may engage, pay for and rely on the advice or services of
any
lawyers, accountants, surveyors or other
experts.
|
| (d) |
The
Agent may act in relation to the Finance Documents through its
personnel
and agents.
|
| (e) |
The
Agent may disclose to any other Party any information it reasonably
believes it has received as agent under any Finance Document.
|
| (f) |
Notwithstanding
any other provision of any Finance Document to the contrary, neither
the
Agent nor the Arranger is obliged to do or omit to do anything
if it would
or might in its reasonable opinion constitute a breach of any law
or
regulation or a breach of a fiduciary duty or duty of
confidentiality.
|
| 26.7 |
Majority
Lenders' instructions
|
| (a) |
Unless
a contrary indication appears in a Finance Document, the Agent
shall (i)
exercise any right, power, authority or discretion vested in it
as Agent
in accordance with any instructions given to it by the Majority
Lenders
(or, if so instructed by the Majority Lenders, refrain from exercising
any
right, power, authority or discretion vested in it as Agent) and
(ii) not
be liable for any act (or omission) if it acts (or refrains from
taking
any action) in accordance with an instruction of the Majority
Lenders.
|
| (b) |
Unless
a contrary indication appears in a Finance Document, any instructions
given by the Majority Lenders will be binding on all the Finance
Parties.
|
| (c) |
The
Agent may refrain from acting in accordance with the instructions
of the
Majority Lenders (or, if appropriate, the Lenders) or under paragraph
(d)
below until it has received such security as it may require for
any cost,
loss or liability (together with any associated Indirect Tax) which
it may
incur in complying with such
instructions.
|
| (d) |
In
the absence of instructions from the Majority Lenders (or, if appropriate,
the Lenders), the Agent may act (or refrain from taking action)
as it
considers to be in the best interest of the
Lenders.
|
| (e) |
The
Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender's consent) in any legal or arbitration proceedings
relating to any Finance Document.
|
| 26.8 |
Responsibility
for documentation
|
Neither
the Agent nor the Arranger:
| (a) |
is
responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the
Arranger,
an Obligor or any other person given in or in connection with any
Finance
Document or the Information Memorandum;
or
|
| (b) |
is
responsible for the legality, validity, effectiveness, adequacy
or
enforceability of any Finance Document or any other agreement,
arrangement
or document entered into, made or executed in anticipation of or
in
connection with any Finance
Document.
|
| 26.9 |
Exclusion
of liability
|
| (a) |
Without
limiting paragraph (b) below, the Agent will not be liable for
any action
taken by it, or for omitting to take action under or in connection
with
any Finance Document, unless directly caused by its gross negligence
or
wilful misconduct.
|
| (b) |
No
Party (other than the Agent) 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
by that
officer, employee or agent in relation to any Finance Document.
Subject to
paragraph (b) of Clause 1.3 (Third
Party Rights),
any third party referred to in this paragraph (b) may enjoy the
benefit of
or enforce the terms of this paragraph in accordance with the provisions
of the Third Parties Act.
|
| (c) |
The
Agent will not be liable for any delay (or any related consequences)
in
crediting an account with an amount required under the Finance
Documents
to be paid by the Agent if the Agent has taken all necessary steps
as soon
as reasonably practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system used
by the
Agent for that purpose.
|
| 26.10 |
Lenders'
indemnity to the Agent
|
Each
Lender shall (in the proportion borne by (a) (if no Loan is outstanding and
the
Available Facility is zero) its Commitment to the Total Commitments or, if
the
Total Commitments are then zero, such proportion immediately prior to the
reduction of the Total Commitments to zero or (b) (if any Loan or any part
thereof is outstanding or the Available Facility is greater than zero) the
sum
of (i) its share of the aggregate principal amount of the Loans and (ii)
its
Available Commitment to the sum of (i) the aggregate principal amount of
the
Loans and (ii) the Available Facility) indemnify the Agent, within three
Business Days of demand, against any cost, loss or liability incurred by
the
Agent (otherwise than by reason of the Agent's gross negligence or wilful
misconduct) in acting as Agent under the Finance Documents (unless the Agent
has
been reimbursed by an Obligor pursuant to a Finance Document) in respect
of the
same cost, loss or liability).
| 26.11 |
Resignation
of the Agent
|
| (a) |
The
Agent may resign and appoint one of its Affiliates acting through
an
office in Singapore as successor by giving notice to the other
Finance
Parties and the Relevant Borrower.
|
| (b) |
Alternatively
the Agent may resign by giving notice to the other Finance Parties
and the
Relevant Borrower, in which case the Majority Lenders (after consultation
with the Relevant Borrower) may appoint a successor
Agent.
|
| (c) |
If
the Majority Lenders have not appointed a successor Agent in accordance
with paragraph (b) above within 30 days after notice of resignation
was
given by the Agent, the Agent (after consultation with the Relevant
Borrower) may appoint a successor Agent (acting through an office
in
Singapore).
|
| (d) |
The
retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as
the
successor Agent may reasonably request for the purposes of performing
its
functions as Agent under the Finance
Documents.
|
| (e) |
The
Agent's resignation notice shall only take effect upon the appointment
of
a successor.
|
| (f) |
Upon
the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents
but shall
remain entitled to the benefit of this Clause 26. Its successor
and each
of the other Parties shall have the same rights and obligations
amongst
themselves as they would have had if such successor had been originally
party hereto as Agent.
|
| (g) |
After
consultation with the Relevant Borrower, the Majority Lenders may,
by
notice to the Agent, require it to resign in accordance with paragraph
(b)
above. In this event, the Agent shall resign in accordance with
paragraph
(b) above.
|
| 26.12 |
Confidentiality
|
| (a) |
In
acting as agent for the Finance Parties, the Agent shall be regarded
as
acting through its agency division which shall be treated as a
separate
entity from any other of its divisions or
departments.
|
| (b) |
If
information is received by another division or department of the
Agent, it
may be treated as confidential to that division or department and
the
Agent shall not be deemed to have notice of
it.
|
| (c) |
Notwithstanding
any other provision of any Finance Document to the contrary, neither
the
Agent nor the Arranger are obliged to disclose to any person (i)
any
confidential information or (ii) any other information if the disclosure
would or might in its reasonable opinion constitute a breach of
any law or
regulation or a breach of any contractual or fiduciary
duty.
|
| 26.13 |
Relationship
with the Lenders
|
The
Agent
may treat each Lender as a Lender, entitled to payments under this Agreement
and
acting through its Facility Office unless it has received not less than five
Business Days prior notice from that Lender to the contrary in accordance
with
the terms of this Agreement.
| 26.14 |
Credit
appraisal by the Lenders
|
Without
affecting the responsibility of any Obligor for information supplied by it
or on
its behalf in connection with any Finance Document, each Lender confirms
to the
Agent and the Arranger that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation of
all
risks arising under or in connection with any Finance Document including
but not
limited to:
| (a) |
the
financial condition, status and nature of each member of the
Group;
|
| (b) |
the
legality, validity, effectiveness, adequacy or enforceability of
any
Finance Document and/or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection
with any Finance Document;
|
| (c) |
whether
that Lender has recourse, and the nature and extent of that recourse,
against any party to any Finance Document or any of its respective
assets
under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of,
under or in
connection with any Finance Document;
and
|
| (d) |
the
adequacy, accuracy and/or completeness of the Information Memorandum
and
any other information provided by the Agent, any Party or by any
other
person under or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement, arrangement
or document entered into, made or executed in anticipation of,
under or in
connection with any Finance
Document.
|
| 26.15 |
Reference
Banks
|
If
a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which
it
is an Affiliate) ceases to be a Lender, the Agent shall (in consultation
with
the Relevant Borrower) appoint another Lender or an Affiliate of a Lender
or any
bank approved by the Majority Lenders to replace that Reference Bank. If
a
Reference Bank ceases generally to offer quotations for SIBOR or SOR, the
Agent
shall (in consultation with the Relevant Borrower) appoint another bank or
financial institution approved by the Majority Lenders to replace that Reference
Bank.
| 26.16 |
Agent's
management time
|
Any
amount payable to the Agent under Clause 14.3 (Indemnity
to the Agent),
Clause
16 (Costs
and expenses)
and
Clause 26.10 (Lenders'
indemnity to the Agent)
shall
include the cost of utilising the Agent's management time or other resources
and
will be calculated on the basis of such reasonable daily or hourly rates
as the
Agent may notify to the Relevant Borrower and the Lenders, and is in addition
to
any fee paid or payable to the Agent under Clause 11 (Fees).
| 26.17 |
Deduction
from amounts payable by the
Agent
|
If
any
Party owes an amount to the Agent under the Finance Documents the Agent may,
after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which the Agent would otherwise be obliged
to
make under the Finance Documents and apply the amount deducted in or towards
satisfaction of such amount owed by such Party to the Agent. For the purposes
of
the Finance Documents that Party shall be regarded as having received any
amount
so deducted.
| 26.18 |
Money
Laundering
|
Unless
mandatorily required by applicable law or regulation to which the Agent is
subject, the Agent shall not be responsible to any other Party for providing
any
certification or documents with respect to information (except in respect
of
itself) required for any anti-money laundering due diligence purpose. Such
certificates and related documents shall be provided directly by the Obligors
provided that the request for such information may be made through the Agent.
| 26.19 |
Hedging
Banks
|
Except
as
otherwise expressly stated in this Agreement, the Agent shall have no liability
under the Finance Documents whatsoever to any Hedging Bank.
| 27. |
CONDUCT
OF BUSINESS BY THE FINANCE
PARTIES
|
No
provision of this Agreement will:
| (a) |
interfere
with the right of any Finance Party to arrange its affairs (tax
or
otherwise) in whatever manner it thinks
fit;
|
| (b) |
oblige
any Finance Party to investigate or claim any credit, relief, remission
or
repayment available to it or the extent, order and manner of any
claim;
or
|
| (c) |
oblige
any Finance Party to disclose any information relating to its affairs
(tax
or otherwise) or any computations in respect of
Tax.
|
| 28. |
SHARING
AMONG THE FINANCE PARTIES
|
| 28.1 |
Payments
to Finance Parties
|
If
a
Finance Party (a "Recovering
Finance Party")
receives or recovers any amount from or in respect of an Obligor other than
in
accordance with Clause 29 (Payment
mechanics)
and
applies that amount to a payment due under the Finance Documents
then:
| (a) |
the
Recovering Finance Party shall, within three Business Days, notify
details
of the receipt or recovery to the
Agent;
|
| (b) |
the
Agent shall determine whether the receipt or recovery is in excess
of the
amount that the Recovering Finance Party would have been paid had
such
receipt or recovery been received or made by the Agent and distributed
in
accordance with Clause 29 (Payment
mechanics),
without taking account of any Tax which would be imposed on the
Agent in
relation to such receipt, recovery or distribution;
and
|
| (c) |
the
Recovering Finance Party shall, within three Business Days of demand
by
the Agent, pay to the Agent an amount (the "Sharing
Payment")
equal to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Finance Party as its
share of
any payment to be made (by reference to such receipt or recovery),
in
accordance with Clause 29.6 (Partial
payments).
|
| 28.2 |
Redistribution
of payments
|
The
Agent
shall treat the Sharing Payment as if it had been paid by the relevant Obligor
and distribute it between the Finance Parties (other than the Recovering
Finance
Party) in accordance with Clause 29.6 (Partial
payments).
| 28.3 |
Recovering
Finance Party's rights
|
| (a) |
On
a distribution by the Agent under Clause 28.2 (Redistribution
of payments),
the Recovering Finance Party will be subrogated to the rights of
the
Finance Parties which have shared in such distribution under Clause
28.2
(Redistribution
of payments).
|
| (b) |
If
and to the extent that the Recovering Finance Party is not able
to rely on
its rights under paragraph (a) above, the relevant Obligor shall
be liable
to the Recovering Finance Party for a debt equal to the Sharing
Payment
which is immediately due and
payable.
|
| 28.4 |
Reversal
of redistribution
|
If
any
part of the amount received or recovered by the Recovering Finance Party
from or
in respect of any Obligor (which amount has given rise to any Sharing Payment)
becomes repayable and is repaid by that Recovering Finance Party,
then:
| (a) |
each
Finance Party which has received a share of that Sharing Payment
pursuant
to Clause 28.2 (Redistribution
of payments)
shall, upon request of the Agent, pay to the Agent for account
of that
Recovering Finance Party an amount equal to the appropriate part
of its
share of such Sharing Payment (together with an amount as is necessary
to
reimburse that Recovering Finance Party for its proportion of any
interest
on such repayable amount which that Recovering Finance Party is
required
to pay); and
|
| (b) |
that
Recovering Finance Party's rights of subrogation in respect of
any
reimbursement shall be cancelled and the relevant Obligor will
be liable
to the reimbursing Finance Party for the amount so
reimbursed.
|
| 28.5 |
Exceptions
|
| (a) |
This
Clause 28 shall not apply to the extent that the Recovering Finance
Party
would not, after making any payment pursuant to this Clause, have
a valid
and enforceable claim against the relevant
Obligor.
|
| (b) |
A
Recovering Finance Party is not obliged to share with any other
Finance
Party any amount which the Recovering Finance Party has received
or
recovered as a result of taking legal or arbitration proceedings,
if:
|
| (i) |
it
notified that other Finance Party of those legal or arbitration
proceedings; and
|
| (ii) |
that
other Finance Party had an opportunity to participate in those
legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice and did not take separate legal
or
arbitration proceedings.
|
ADMINISTRATION
| 29. |
PAYMENT
MECHANICS
|
| 29.1 |
Payments
to the Agent
|
| (a) |
On
each date on which an Obligor or a Lender is required to make a
payment
under a Finance Document, that Obligor or Lender shall make the
same
available to the Agent (unless a contrary indication appears in
a Finance
Document) for value on the due date at the time and in such funds
specified by the Agent as being customary at the time for settlement
of
transactions in the relevant currency in the place of
payment.
|
| (b) |
Payment
shall be made to the following accounts of the
Agent:
|
For
payment in US$:
Bank : Citibank
N.A., New York
Swift : ▇▇▇▇▇▇▇▇
For
Account of : Citicorp
Investment Bank (Singapore) Limited
Account
No. : ▇▇▇▇▇▇▇▇
For
payment in S$:
Citibank
NA Singapore for the account of Citicorp Investment Bank (S) Limited account
No.
▇-▇▇▇▇▇▇-▇▇▇,
or
to
such account in the principal financial centre of the country of that currency
with such bank as the Agent specifies to the Parties after the date of this
Agreement.
| 29.2 |
Distributions
by the Agent
|
| (a) |
Each
payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 26.17 (Deduction
from amounts payable by the Agent),
Clause 29.3 (Distributions
to an Obligor)
and Clause 29.5 (Clawback)
and to paragraph (b) below, be made available by the Agent by payment
as
soon as practicable after receipt to the Party entitled to receive
payment
in accordance with this Agreement (in the case of a Lender, for
the
account of its Facility Office), to such account as that Party
may notify
to the Agent by not less than five Business Days' prior notice,
with a
bank in the principal financial centre of the country of that currency.
Any notice given to the Agent by a Party under this paragraph (a)
is only
effective when the original notice is received by the Agent signed
by an
authorised officer of that Party.
|
| (b) |
Notwithstanding
paragraph (a) above, any payment to be made under the Finance Documents
by
the Agent to a Lender in US Dollars or Singapore Dollars shall
be made in
accordance with that Lender's Standing Payment Instruction for
that
currency.
|
| 29.3 |
Distributions
to an Obligor
|
The
Agent
may (with the consent of the Obligor referred to below or in accordance with
Clause 30 (Set-off))
apply
any amount received by it for any Obligor in or towards payment (on the date
and
in the currency and funds of receipt) of any amount due from that Obligor
under
any or all of the Finance Documents or in or towards purchase of any amount
of
any currency to be so applied.
| 29.4 |
Netting
of Payments
|
Notwithstanding
Clause 6.1 (Repayment
of Loans)
or
Clauses 29.1 (Payments
to the Agent)
to 29.3
(Distributions
to an Obligor)
or any
other provision of the Finance Documents, if on any date an amount (the
"first
amount")
is to
be advanced by a Lender under this Agreement and an amount (the "second
amount")
is due
from an Obligor to that Lender under the Finance Documents in the same currency,
that Lender shall apply the first amount in or towards payment of the second
amount (and to the extent of such application the first amount shall be
considered to have been made available by such Lender to such Obligor). Such
Lender shall remain obliged to advance any excess in the first amount over
and
above the second amount (or, as the case may be, such Obligor shall remain
liable in respect of any shortfall in the second amount below the first amount)
in accordance with this Clause 29. Nothing in this Clause 29.4 shall be
effective to create a charge.
| 29.5 |
Clawback
|
| (a) |
Where
a sum is to be paid to the Agent under the Finance Documents for
another
Party, the Agent is not obliged to pay that sum to that other Party
(or to
enter into or perform any related exchange contract) until it has
been
able to establish to its satisfaction that it has actually received
that
sum.
|
| (b) |
If
the Agent pays an amount to another Party and it proves to be the
case
that the Agent had not actually received that amount, then the
Party to
whom that amount (or the proceeds of any related exchange contract)
was
paid by the Agent shall on demand refund the same to the Agent
together
with interest on that amount from the date of payment to the date
of
receipt by the Agent, calculated by the Agent to reflect its cost
of
funds.
|
| 29.6 |
Partial
payments
|
| (a) |
If
the Agent receives or recovers any amount in respect of any Obligor
under
any Finance Document that is insufficient to discharge all the
amounts
then due and payable by that Obligor under the Finance Documents,
the
Agent shall apply that payment towards the obligations of that
Obligor
under the Finance Documents in the following
order:
|
| (i) |
first,
in or towards payment pro rata of any unpaid fees, costs and expenses
of
the Agent or the Arranger under the Finance
Documents;
|
| (ii) |
secondly,
in or towards payment pro rata of any accrued interest, fee or
commission
due but unpaid under this
Agreement;
|
| (iii) |
thirdly,
in or towards payment pro rata of any principal due but unpaid
under this
Agreement; and
|
| (iv) |
fourthly,
in or towards payment pro rata of any other sum due but unpaid
under the
Finance Documents,
|
provided
that, for the avoidance of doubt, the Agent shall be entitled to assume that
no
amount is due but unpaid to any Hedging Bank under any Hedging Document unless
it has been expressly notified to the contrary by such Hedging Bank with
no less
than three Business Days’ prior written notice. The Agent shall promptly notify
the Lenders if it receives any such notification from any Hedging Bank (or
any
person purporting to be a Hedging Bank).
The
Agent
may rely on any certification by any Hedging Bank (or person purporting to
be a
Hedging Bank) as to any amount due but unpaid to such Hedging Bank (or such
person) under any Hedging Document provided that if the Majority Lenders
shall
have notified the Agent (prior to such reliance by the Agent) that they do
not
agree with such certification by such Hedging Bank (or such person) and that
they do not agree that such person is a Hedging Bank, the Agent shall be
protected in all respects if it acts in accordance with the instructions
of the
Majority Lenders.
| (b) |
The
Agent shall, if so directed by the Majority Lenders, vary the order
set
out in paragraphs (a)(ii) to (iv)
above.
|
| (c) |
Paragraphs
(a) and (b) above will override any appropriation made by an
Obligor.
|
| 29.7 |
No
set-off by Obligors
|
All
payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off
or counterclaim.
| 29.8 |
Business
Days
|
| (a) |
Any
payment which is due to be made on a day that is not a Business
Day shall
be made on the next Business Day in the same calendar month (if
there is
one) or the preceding Business Day (if there is
not).
|
| (b) |
During
any extension of the due date for payment of any principal or an
Unpaid
Sum under this Agreement interest is payable on the principal or
Unpaid
Sum at the rate payable on the original due
date.
|
| 29.9 |
Currency
of account
|
| (a) |
Subject
to paragraphs (b) to (e) below, US Dollars is the currency of account
and
payment for any sum due from an Obligor under any Finance
Document.
|
| (b) |
A
repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid
Sum shall
be made in the currency in which that Loan or Unpaid Sum is denominated
on
its due date.
|
| (c) |
Each
payment of interest shall be made in the currency in which the
sum in
respect of which the interest is payable was denominated when that
interest accrued.
|
| (d) |
Each
payment in respect of costs, expenses or Taxes shall be made in
the
currency in which the costs, expenses or Taxes are
incurred.
|
| (e) |
Any
amount expressed to be payable in a currency other than US Dollars
shall
be paid in that other currency.
|
| 30. |
SET-OFF
|
Without
prior notice to any Obligor, a Finance Party may, but is not obliged to,
set off
any matured obligation due from an Obligor under the Finance Documents (to
the
extent beneficially owned by that Finance Party) against any matured obligation
owed by that Finance Party to that Obligor (whether or not matured), 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.
| 31. |
DISCLOSURE
OF INFORMATION
|
| 31.1 |
General
|
Without
prejudice to Clause 31.2 (Tax)
or to
the rights of the Finance Parties to disclose information relating to any
Obligor, any of the Borrowers or the Group whether under the common law or
the
Banking Act, Chapter 19 of Singapore (as amended or re-enacted from time
to
time, the "Banking
Act")
or
otherwise, each Obligor consents to each Finance Party, its officers (as
defined
in the Banking Act) and agents and all persons to whom Section 47 of the
Banking
Act applies disclosing any customer information (as defined in the Banking
Act)
and any other information relating to any Obligor, the Group, any of the
Borrowers and the Finance Documents as that Finance Party shall consider
necessary for any such purposes as it thinks fit, and any other information
(including personal data) relating to the Obligors and the Obligors' account
relationship (including deposit accounts) and/or dealing relationship with
that
Finance Party, including but not limited to details of the Facility, any
Finance
Document, any security taken, transactions undertaken and balances and positions
with each Lender and any information which is in the public domain
to:
| (a) |
any
of that Finance Party's agents, contractors or third party service
providers or professional advisers who are under a duty of confidentiality
to that Finance Party and who provide administrative, telecommunications,
computer, payment, collections, security, clearing, credit reference
or
checking, or other services or facilities to that Finance Party
under or
in connection with the Facility, this Agreement or any other Finance
Document and/or the operation of that Finance Party's business,
whether in
Singapore or outside Singapore;
|
| (b) |
that
Finance Party's head office, branches, representative offices,
Subsidiaries, related corporations or Affiliates, in Singapore
or overseas
(collectively the "Related
Parties"
and each a "Related
Party")
for any database or data processing purposes or any other purposes
whatsoever, notwithstanding that a Related Party's principal place
of
business may be outside of Singapore or that such information following
disclosure may be collected, held, processed or used by any Related
Party
in whole or in part outside of
Singapore;
|
| (c) |
any
regulatory, supervisory or other authority, court of law, tribunal
or
person, in Singapore or any other jurisdiction, where such disclosure
is
required by law, regulation, judgment or order of court, order
of any
tribunal, or the rules or requirements of any regulatory, supervisory
or
other authority, or otherwise in connection with any legal proceedings
taken in connection with any of the Finance
Documents;
|
| (d) |
any
actual or potential New Lender or other assignee or transferee
of any
rights and obligations of that Finance Party or other actual or
potential
participants or sub-participants in any of its rights and/or obligations
under or relating to the Facility, this Agreement or any other
Finance
Document and any security therefor for any purposes connected with
the
actual or proposed assignment, transfer, participation or
sub-participation;
|
| (e) |
any
insurer (whether of that Finance Party or an Obligor or otherwise),
guarantor or provider of security;
|
| (f) |
any
of that Finance Party's Affiliates or any other
person:
|
| (i) |
with
(or through) whom that Finance Party enters into (or may potentially
enter
into) any sub-participation in relation to, or any other transaction
under
which payments are to be made by reference to, the Finance Documents
or
any Obligor;
|
| (ii) |
who
is a person, or who belongs to a class of persons, specified in
the second
column of the Third Schedule to the Banking Act (the "Third
Schedule")
but only for the purposes specified in the first column of the
Third
Schedule and subject always to the conditions (if any) set out
in the
third column of the Third Schedule;
and
|
| (iii) |
to
whom that Finance Party is under a duty to disclose subject, however,
to
the restrictions on any such disclosure set out in Section 47 of
the
Banking Act or in the Third
Schedule;
|
| (g) |
any
person who acquires or is proposing to acquire any interest in,
or enters
into or is proposing to enter into any merger, amalgamation or
other
similar arrangement with that Finance Party;
and/or
|
| (h) |
any
other Finance Party.
|
This
Clause 31.1 is not, and shall not be deemed to constitute, an express or
implied
agreement by any Finance Party with any Obligor for a higher degree of
confidentiality than that prescribed in Section 47 of the Banking Act and
in the
Third Schedule to the Banking Act.
| 31.2 |
Tax
|
Notwithstanding
any other term of this Agreement, confidential information shall not include,
and each Finance Party (and each employee, representative or other agent
of any
Finance Party) may disclose to any and all persons, without limitation of
any
kind, the "tax treatment" and "tax structure" (in each case, within the meaning
of US Treasury Regulation Section 1.6011-4) of the transactions contemplated
hereby and all materials of any kind (including opinions or other tax analyses)
that are or have been provided to such Finance Party relating to such tax
treatment or tax structure; provided that (unless otherwise permitted pursuant
to the terms of this Agreement) (a) this Clause is not intended to permit
disclosure of any other information to the extent not related to such tax
treatment or tax structure and (b) with respect to any document or similar
item
that in either case contains information concerning such tax treatment or
tax
structure of the transactions contemplated by this Agreement as well as other
information, this Clause shall only apply to such portions of the document
or
similar item that relate to such tax treatment or tax structure. Employees,
representatives and agents of Finance Parties may, subject to paragraph (b)
of
Clause 1.3 (Third
Party Rights),
rely
on this Clause 31.2 pursuant to the Third Parties Act.
| 32. |
NOTICES
|
| 32.1 |
Communications
in writing
|
Any
communication to be made by a Party to another Party under or in connection
with
any Finance Documents shall be made in writing and, unless otherwise stated,
may
be made by fax, letter or under Clause 32.5 (Electronic
communication)
by
email.
| 32.2 |
Addresses
|
The
address, fax number and (if applicable) email address (and the department
or
officer, if any, for whose attention the communication is to be made) of
each
Party for any communication or document to be made or delivered under or
in
connection with the Finance Documents is:
| (a) |
in
the case of each Borrower, that identified with its name
below;
|
| (b) |
in
the case of each Original Lender or any other Obligor, that identified
with its name below;
|
| (c) |
in
the case of each Lender that becomes a Party after the date of
this
Agreement, that notified in writing to the Agent on or prior to
the date
on which it becomes a Party; and
|
| (d) |
in
the case of the Agent, that identified with its name
below,
|
or
any
substitute address, fax number or department or officer as the Party may
notify
to the Agent (or the Agent may notify to the other Parties, if a change is
made
by the Agent) by not less than five Business Days' notice.
| 32.3 |
Delivery
|
| (a) |
Any
communication or document made or delivered by one Party to another
Party
under or in connection with any Finance Documents will only be
effective:
|
| (i) |
if
sent by fax before 5 p.m. (local time in the place to which it
is sent) on
a working day in that place, when sent or, if sent by fax at any
other
time, at 9 a.m. (local time in the place to which it is sent) on
the next
working day in that place, provided, in each case, that the person
sending
the fax shall have received a transmission receipt;
or
|
| (ii) |
if
by way of letter, when it has been left at the relevant address
or three
Business Days after being deposited in the post postage prepaid
in an
envelope addressed to it at that address;
or
|
| (iii) |
if
by way of email, if it complies with the rules under Clause 32.5
(Electronic
communication)
|
and,
if a
particular department or officer is specified as part of its address details
provided under Clause 32.2 (Addresses),
if
addressed to that department or officer. For this purpose, working days are
days
other than Saturdays, Sundays and bank holidays.
| (b) |
Any
communication or document to be made or delivered to the Agent
under or in
connection with any Finance Document will be effective only when
actually
received by the Agent and then only if it is expressly marked for
the
attention of the department or officer identified with the Agent's
signature below (or any substitute department or officer as the
Agent
shall specify for this purpose).
|
| (c) |
All
notices from or to an Obligor under or in connection with any Finance
Document shall be sent through the
Agent.
|
| (d) |
Any
communication or document made or delivered to the Relevant Borrower
in
accordance with this Clause will be deemed to have been made or
delivered
to each of the Obligors.
|
| 32.4 |
Notification
of address and fax number
|
Promptly
upon receipt of notification of an address, fax number and email address
or
change of address, fax number or email address pursuant to Clause 32.2
(Addresses)
or
changing its own address, fax number or email address the Agent shall notify
the
other Parties.
| 32.5 |
Electronic
communication
|
| (a) |
Any
communication to be made between the Agent and a Lender under or
in
connection with the Finance Documents may be made by electronic
mail or
other electronic means, if the Agent and that
Lender:
|
| (i) |
agree
that, unless and until notified to the contrary, this is to be
an accepted
form of communication;
|
| (ii) |
notify
each other in writing of their electronic mail address and/or any
other
information required to enable the sending and receipt of information
by
that means; and
|
| (iii) |
notify
each other of any change to their electronic mail address or any
other
such information supplied by them.
|
Any
Lender which sets out an email address as part of its "administration details"
provided by it to the Agent from time to time in connection with the Finance
Documents is deemed to agree to receiving communications from the Agent by
electronic mail to that email address.
| (b) |
Any
electronic communication made:
|
| (i) |
by
the Agent to a Lender will be effective when it is sent by the
Agent
unless the Agent receives a message indicating failed delivery;
and
|
| (ii) |
by
a Lender to the Agent will be effective only when actually received
by the
Agent and then only if it is addressed in such a manner as the
Agent shall
specify to that Lender for this
purpose.
|
| (c) |
The
Agent or a Lender shall notify any affected Parties promptly upon
becoming
aware that its electronic mail system or other electronic means
of
communication cannot be used due to technical failure (and that
failure is
or is likely to be continuing for more than 2 Business Days). Until
the
Agent or that Lender has notified the other affected Parties that
the
failure has been remedied, all notices between those parties shall
be sent
by fax or letter in accordance with this Clause 32 (Notices).
|
| (d) |
Each
Party acknowledges and agrees that the privacy and integrity of
electronic
transmissions cannot be guaranteed. To the extent that any information
relating to the Finance Documents is transmitted electronically,
each
Obligor agrees to release each Finance Party, and each Lender agrees
to
release each other Finance Party from any loss or liability incurred
in
connection with the electronic transmission of such information,
including
the unauthorised interception, alteration or fraudulent generation
and
transmission of electronic transmissions by third parties provided
that
the transmitting Party has taken all reasonable prudent precautions
to
protect the integrity of its electronic communication system.
|
| 32.6 |
Reliance
|
| (a) |
Any
notice sent under this Clause 32 can be relied on by the recipient
if the
recipient reasonably believes the notice to be genuine and if it
bears
what appears to be the signature (original or facsimile) of an
authorised
signatory of the sender or, as applicable, if it is sent from an
email
address notified for this purpose pursuant to Clause 32.5 (Electronic
communication)
(in each case without the need for further enquiry or
confirmation).
|
| (b) |
Each
Party must take reasonable care to ensure that no forged, false
or
unauthorised notices are sent to another
Party.
|
| 32.7 |
English
language
|
| (a) |
Any
notice given under or in connection with any Finance Document must
be in
English.
|
| (b) |
All
other documents provided under or in connection with any Finance
Document
must be:
|
| (i) |
in
English; or
|
| (ii) |
if
not in English, and if so required by the Agent, accompanied by
a
certified English translation and, in this case, the English translation
will prevail unless the document is a constitutional, statutory
or other
official document.
|
| 33. |
CALCULATIONS
AND CERTIFICATES
|
| 33.1 |
Accounts
|
In
any
litigation or arbitration proceedings arising out of or in connection with
a
Finance Document, the entries made in the accounts maintained by a Finance
Party
are prima facie evidence of the matters to which they relate.
| 33.2 |
Certificates
and Determinations
|
Any
certification or determination by a Finance Party of a rate or amount under
any
Finance Document is, in the absence of manifest error, conclusive evidence
of
the matters to which it relates.
| 33.3 |
Day
count convention
|
Any
interest, commission or fee accruing under a Finance Document will accrue
from
day to day and is calculated on the basis of the actual number of days elapsed
and on the basis of (in the case of any interest, commission or fee that
is
denominated in US Dollars) a year of 360 days or (in the case of interest,
commission or fee that is denominated in Singapore Dollars) a year of 365
days
or, in any case where the practice in the Relevant Interbank Market differs,
in
accordance with that market practice.
| 34. |
PARTIAL
INVALIDITY
|
If,
at
any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither
the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.
| 35. |
REMEDIES
AND WAIVERS
|
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or the exercise of any other right or remedy.
The
rights and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
| 36. |
AMENDMENTS
AND WAIVERS
|
| 36.1 |
Required
consents
|
| (a) |
Subject
to Clause 36.2 (Exceptions)
any term of a Finance Document may be amended or waived only with
the
consent of the Majority Lenders and the Obligors and any such amendment
or
waiver will be binding on all
Parties.
|
| (b) |
The
Agent may effect, on behalf of any Finance Party, any amendment
or waiver
permitted by this Clause.
|
| 36.2 |
Exceptions
|
| (a) |
An
amendment or waiver that has the effect of changing or which relates
to:
|
| (i) |
the
definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
| (ii) |
an
extension to the date of payment of any amount under the Finance
Documents;
|
| (iii) |
a
reduction in the Margin or a reduction in the amount, or change
in the
currency, of any payment of principal, interest, fees or commission
payable;
|
| (iv) |
an
increase in or an extension, or change in the currency, of any
Commitment;
|
| (v) |
a
change to any of the Borrowers or the
Guarantor;
|
| (vi) |
any
provision which expressly requires the consent of all the Lenders;
or
|
| (vii) |
Clause
2.2 (Finance
Parties' rights and obligations),
Clause 24 (Changes
to the Lenders),
Clause 28 (Sharing
among the Finance Parties),
or this Clause 36,
|
shall
not
be made without the prior consent of all the Lenders.
| (b) |
An
amendment or waiver which relates to the rights or obligations
of the
Agent or the Arranger may not be effected without the consent of
the Agent
or (as the case may be) the
Arranger.
|
| 37. |
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.
GOVERNING
LAW AND ENFORCEMENT
| 38. |
GOVERNING
LAW
|
This
Agreement is governed by English law.
| 39. |
ENFORCEMENT
|
| 39.1 |
Jurisdiction
|
| (a) |
The
courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including
a dispute
regarding the existence, validity or termination of this Agreement)
(a
"Dispute").
|
| (b) |
The
Parties agree that the courts of England are the most appropriate
and
convenient courts to settle Disputes and accordingly no Party will
argue
to the contrary.
|
| (c) |
This
Clause 39.1 is for the benefit of the Finance Parties only. As
a result,
no Finance Party shall be prevented from taking proceedings relating
to a
Dispute in any other courts with jurisdiction. To the extent allowed
by
law, the Finance Parties may take concurrent proceedings in any
number of
jurisdictions.
|
| 39.2 |
Service
of process
|
Without
prejudice to any other mode of service allowed under any relevant law, each
Obligor (other than an Obligor incorporated in England and Wales):
| (a) |
irrevocably
appoints the offices of ▇▇▇▇▇ ▇▇▇▇ LLP at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ as its agent for service of process in relation to
any
proceedings before the English courts in connection with any Finance
Document; and
|
| (b) |
agrees
that failure by a process agent to notify the relevant Obligor
of any
process will not invalidate the proceedings
concerned.
|
| 39.3 |
Waiver
of consequential damages
etc.
|
| (a) |
Each
Obligor irrevocably agrees that, in connection with the Finance
Documents
and the transactions contemplated thereby, no Finance Party nor
any of
their respective Affiliates, officers, employees or agents shall
be liable
to any Obligor or any Subsidiary of any Obligor (except to the
extent of
its own gross negligence or wilful misconduct) nor liable, on any
theory
of liability, for any special, indirect, consequential or punitive
damages
and each Obligor agrees that it will not (and agrees to ensure
that none
of its Subsidiaries will) ▇▇▇ upon any such claim for any such
damages,
whether or not accrued and whether or not known or suspected to
exist in
its favour.
|
| (b) |
Subject
to paragraph (b) of Clause 1.3 (Third
Party Rights),
any third party referred to in paragraph (a) above may enjoy the
benefit
of or enforce the terms of that paragraph in accordance with the
provisions of the Third Parties
Act.
|
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.