CONFORMED COPY
REVOLVING CREDIT
AND TERM LOAN FACILITY
DATED 30th November, 1994
BETWEEN
GAMBRO AB
as the Parent
ARRANGED BY
BNP CAPITAL MARKETS LIMITED
as Arranger
and
THE BANKS
and
BANQUE NATIONALE DE PARIS
as Agent
ALLEN & OVERY
London
INDEX
Clause
Page No.
1. Interpretation .........................................1
2. Commitments and Nature of Obligations .................11
3. Purpose ...............................................13
4. Conditions Precedent ..................................13
5. Drawdown ..............................................13
6. Repayment .............................................14
7. Prepayment and Cancellation ...........................15
8. Interest Periods ......................................16
9. Interest ..............................................18
10. Selection of Optional Currencies ......................19
11. Amount of Optional Currencies .........................20
12. Payments ..............................................21
13. Taxes .................................................23
14. Market Disruption .....................................25
15. Increased Costs .......................................27
16. Illegality ............................................28
17. Mitigation ............................................28
18. Guarantee .............................................29
19. Representations and Warranties ........................31
20. Undertakings ..........................................33
21. Default ...............................................39
22. The Agent and the Arranger ............................42
23. Fees ..................................................47
24. Expenses ..............................................47
25. Stamp Duties ..........................................48
26. Indemnities ...........................................48
27. Evidence And Calculations .............................49
28. Amendments And Waivers ................................49
29. Changes To The Parties ................................50
30. Disclosure of Information .............................53
31. Set-Off. ..............................................53
32. Pro Rata Sharing ......................................53
33. Severability ..........................................54
34. Counterparts ..........................................55
35. Notices ...............................................55
36. Language ..............................................56
37. Jurisdiction ..........................................56
38. Governing Law .........................................57
Schedules
1. Banks and Commitments ..................................58
2. Conditions Precedent Documents .........................60
3. Calculation of the MLA Cost ............................62
4. Form of Request ........................................64
5. Form of Novation Certificate ...........................65
6. Form of Deed of Accession ..............................67
7. Approved Additional Borrowers ..........................69
THIS FACILITY AGREEMENT is dated 30th November, 1994 between:-
(1) GAMBRO AB (the "Parent");
(2) BNP CAPITAL MARKETS LIMITED as Arranger (in this capacity the
"Arranger");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the
"Banks"); and
(4) BANQUE NATIONALE DE PARIS as agent (in this capacity the "Agent").
IT IS AGREED as follows:-
1. INTERPRETATION
1.1 Definitions
In this Agreement:-
"Additional Borrower"
means any entity that becomes an additional borrower by virtue of
Clauses 2.5 and 2.6.
"Affiliate"
means a subsidiary or a holding company (in each case, as defined in
Section 736 of the Companies Act 1985 of England and Wales) of a Bank
or any other subsidiary of that holding company.
"Agent's Spot Rate of Exchange"
means the Agent's spot rate of exchange for the purchase of the
relevant Optional Currency in the London foreign exchange market with
U.S. Dollars at or about 11.00 a.m. on a particular day.
"Agreed Optional Currencies"
means Deutschmarks, Dutch Guilders, French Francs, Swiss Francs,
Sterling and Yen.
"Applicable Margin"
means 0.30 per cent. per annum from the date hereof to the fifth
anniversary of the date hereof and 0.35 per cent. per annum
thereafter.
"Borrowers"
means the Parent and/or any Additional Borrower and, in relation to
any Loan, means the Borrower to whom that Loan is, or is to be, made
(each a "Borrower").
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"Borrowers' Agent"
means the Parent or such other person from time to time nominated by
the Borrowers to act on behalf of the Borrowers in relation hereto and
approved for such purpose by the Agent (whose approval shall not be
unreasonably withheld).
"Business Day"
means a day (other than a Saturday or a Sunday) on which banks are
open for business in:-
(a) London and Paris;
(b) (in relation to a transaction involving any payment in Dollars)
New York; and
(c) (in relation to a transaction involving any payment in an
Optional Currency) the principal financial centre of the country
of that Optional Currency.
"COBE"
means COBE Laboratories, Inc.
"Commitment"
means, in relation to any Bank, its Facility A Commitment and its
Facility B Commitment.
"Commitment Period"
means the period from the date of this Agreement until, in respect of
Facility A, the Final Repayment Date and, in respect of Facility B,
the Term Date.
"Consolidated Total Assets"
means the total tangible assets of the Group (excluding recorded
goodwill but including all intellectual property rights) as shown in
its latest audited consolidated accounts.
"Deed of Accession"
means a Deed of Accession in relation to an Additional Borrower
entered into pursuant to Clause 2.5.
"Default"
means an Event of Default or an event which, with the giving of notice
under this Agreement, lapse of time specified in this Agreement (or in
the case of a grace period contained in any other document which is
referred to herein, specified in that document), determination of
materiality or fulfilment of any other applicable condition (or any
combination of the foregoing), would constitute an Event of Default.
3
"Deutschmarks"
means the lawful currency for the time being of the Federal Republic
of Germany.
"Disclosure Letter"
means a letter delivered by the Parent to the Agent prior to the date
hereof relating to Clause 19 (Representations and Warranties).
"Dollars" or "$"
means the lawful currency for the time being of the United States of
America.
"Drawdown Date"
means the date of the advance of a Loan.
"Dutch Guilders"
means the lawful currency for the time being of The Netherlands.
"EIBOR"
means, in relation to a Loan denominated in Sterling:-
(a) the rate per annum of the offered quotation for deposits in
Sterling for a period comparable to the relevant Interest Period
which appears on Telerate Page 3750 at or about 11.00 a.m. on the
Rate Fixing Day; or
(b) if no such offered quotation appears on Telerate Page 3750 at or
about such time, the arithmetic mean (rounded upwards, if necessary,
to four decimal places) of the offered quotations for deposits in
Sterling for a period comparable to the relevant Interest Period which
appears on the Reuters Screen LIBP at or about 11.00 a.m. on the Rate
Fixing Day; or
(c) if no such offered quotation appears on the Telerate Page 3750
and one only or no such offered quotation appears on the LIBP Page of
the Reuters Screen at or about 11.00 a.m. on the Rate Fixing Day (or
if there is no LIBP Page on the Reuters Screen) or the Agent
determines, on the instruction of a Bank, that the rate determined in
accordance with paragraphs (a) and (b) above is not available for
deposits in Sterling domiciled outside the United Kingdom, the
arithmetic mean (rounded upwards, if necessary, to four decimal
places) of the per annum rates, as supplied to the Agent at its
request, quoted by each Reference Bank to leading banks at or about
11.00 a.m. on the Rate Fixing Day for the offering of deposits in
Sterling domiciled outside the United Kingdom in an amount comparable
to its participation in that Loan and for a period equal to the
relevant Interest Period.
For the purposes of this definition, "Telerate Page 3750" means the
display designated as "Page 3750", on the Telerate Service (or such
other page as may replace Page 3750 on that service or such other
service as may be nominated by the British Bankers' Association as the
4
information vendor for the purpose of displaying British Bankers'
Association Interest Settlement Rates for Sterling deposits).
"Event of Default"
means an event specified as such in Clause 21.1 (Events of Default).
"Facilities"
means Facility A and Facility B.
"Facility A"
means the revolving credit facility so designated, the terms of which
are set out herein.
"Facility A Commitment"
means:-
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in Dollars set opposite its name in Part I
of Schedule 1;
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of a Facility A Commitment acquired by it
under Clause 29 (Changes to the Parties),
to the extent not cancelled, reduced or transferred under this
Agreement (collectively, the "Total A Commitments").
"Facility A Loan"
means a Loan drawn down or to be drawn down under Facility A.
"Facility A Outstandings"
means, at any time, the aggregate Original Dollar Amount of all Loans
then outstanding under Facility A.
"Facility B"
means the term credit facility so designated, the terms of which are
set out herein.
"Facility B Commitment"
means:-
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in Dollars set opposite its name in Part II
of Schedule 1;
5
(b) in relation to a Bank which becomes a Bank after the date of this
Agreement, the amount of a Facility B Commitment acquired by it
under Clause 29 (Changes to the Parties),
to the extent not cancelled, reduced or transferred under this
Agreement (collectively, the "Total B Commitments").
"Facility B Loan"
means a Loan drawn down or to be drawn down under Facility B.
"Facility B Outstandings"
means, at any time, the aggregate Original Dollar Amount of all Loans
then outstanding under Facility B.
"Facility Office"
means the office(s) notified by a Bank to the Agent:-
(a) on or before the date it becomes a Bank; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"Fee Letters"
means the two letters both dated the date of this Agreement between
the Agent or the Arranger and the Parent setting out the amount of
various fees referred to in Clause 23 (Fees).
"Final Repayment Date"
means the seventh anniversary of the date of this Agreement.
"Finance Document"
means this Agreement, the Fee Letters, any Deed of Accession or any
other document designated as such by the Agent and the Borrower.
"Finance Party"
means the Arranger, a Bank or the Agent.
"Financial Indebtedness"
means (without double counting) any indebtedness in respect of:-
(a) moneys borrowed and debit balances at banks and other financial
institutions;
6
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance credit;
(d) receivables sold or discounted to the extent that there is
recourse to the seller for non-payment by the relevant debtor;
(e) the acquisition cost of any asset to the extent payable after the
time of acquisition or possession by the party liable where the
deferred payment is arranged primarily as a method of raising
finance and the deferral is for a period in excess of 180 days
(and, for the avoidance of doubt, this paragraph (e) shall not
include trade debt);
(f) leases (in relation to real estate, plant and machinery or
equipment), if and to the extent that the lessee is required
under standard accounting practices or principles applicable to
it to account for the value of the lease as an asset and the
lease payments as a liability;
(g) currency swap or interest swap, cap or collar arrangements or any
derivative instruments relating to such arrangements so far as it
constitutes the aggregate net debt position in relation thereto;
and
(h) any guarantee, indemnity or similar legally binding assurance
against financial loss of any person in each case in respect of
any of the types of obligation referred to in paragraphs (a) -
(g) above.
"French Francs"
means the lawful currency for the time being of France.
"Group"
means the Parent and its Subsidiaries.
"Interest Period"
means each period determined in accordance with Clause 8 (Interest
Periods).
"LIBOR"
means, in relation to a Loan denominated in a currency other than
Sterling:-
(a) the rate per annum of the offered quotation for deposits in the
currency of that Loan for a period comparable to the relevant
Interest Period which appears on Telerate Page 3750 or Telerate
Page 3740, as the case may be, at or about 11.00 a.m. on the Rate
Fixing Day; or
(b) if no such offered quotation appears on Telerate Page 3750 or
Telerate Page 3740, as the case may be, at or about such time,
the arithmetic mean (rounded upwards, if necessary, to four
decimal places) of the offered quotations for deposits in the
currency of that Loan for a period comparable to the relevant
Interest Period which appears on
7
the Reuters Screen LIBO (in the case of Dollars) or the relevant
page (if any) for any other currency at or about 11.00 a.m. on
the Rate Fixing Day; or
(c) if no such offered quotation appears on the Telerate Page 3750 or
Telerate Page 3740, as the case may be, or one only or no such
offered quotation appears on the relevant Page of the Reuters
Screen at or about 11.00 a.m. on the Rate Fixing Day (or if there
is no relevant Page on the Reuters Screen), the arithmetic mean
(rounded upwards, if necessary, to four decimal places) of the
per annum rates, as supplied to the Agent at its request, quoted
by each Reference Bank to leading banks in the London interbank
market at or about 11.00 a.m. on the Rate Fixing Day for the
offering of deposits in the currency of that Loan in an amount
comparable to its or its Affiliate's participation in that Loan
and for a period equal to the relevant Interest Period.
For the purposes of this definition, "Telerate Page 3750" means the
display designated as "Page 3750", and "Telerate Page 3740" means the
display designated as "Page 3740", on the Telerate Service (or such
other page as may replace Page 3750 or Page 3740, as the case may be,
on that service or such other service as may be nominated by the
British Bankers' Association as the information vendor for the purpose
of displaying British Bankers' Association Interest Settlement Rates
for deposits in the relevant currency).
"Loan"
means, subject to Clauses 8 (Interest Periods) and 11 (Amount of
Optional Currencies), the principal amount of each borrowing by the
Borrowers under this Agreement or the principal amount outstanding of
that borrowing.
"Majority Banks"
means, at any time, Banks:-
(a) whose participations in the Loans then outstanding aggregate over
50 per cent. of all the Loans then outstanding; or
(b) if there are no Loans then outstanding, whose Commitments then
aggregate over 50 per cent. of the Total Commitments; or
(c) if there are no Loans then outstanding and the Total Commitments
have been reduced to nil, whose Commitments aggregated over 50
per cent. of the Total Commitments immediately before the
reduction.
"Material Subsidiary"
means, at any time:-
(a) a member of the Group (i) whose total assets as shown in its
latest audited accounts (consolidated if it itself has
Subsidiaries) exceed ten per cent. of Consolidated Total Assets
at that time; and/or (ii) whose turnover as shown in its latest
audited accounts (consolidated if it itself has Subsidiaries)
exceeds ten per cent. of the turnover of the Group as shown in
the Parent's latest audited consolidated accounts adjusted to
reflect
8
the turnover of any company which has since become or ceased to
be a member of the Group; and/or
(b) any other Subsidiary designated as a Material Subsidiary by the
Parent (until such time as the Parent notifies the Agent in
writing that such Subsidiary shall no longer be a Material
Subsidiary).
PROVIDED THAT if, at any time, either
(i) the aggregate of the total assets of all the Material
Subsidiaries at that time is not at least 75 per cent. of
Consolidated Total Assets; or
(ii) the aggregate turnover of all the Material Subsidiaries as shown
in their latest audited accounts is not at least 75 per cent. of
the turnover of the Group
as shown in the Parent's latest audited consolidated accounts adjusted
as aforesaid,
then every member of the Group shall be a Material Subsidiary.
"MLA Cost"
means the cost imputed to a Bank whose Facility Office is in the
United Kingdom of the compliance with the Mandatory Liquid Assets
requirements of the Bank of England during an Interest Period for a
Loan maintained in Sterling, expressed as a rate per annum and
determined in accordance with Schedule 3.
"Novation Certificate"
has the meaning given to it in Clause 29.3 (Procedure for novations).
"Obligor"
means the Parent or any Borrower.
"Optional Currency"
means the Agreed Optional Currencies and any other currency with the
exception of Dollars.
"Original Dollar Amount"
in relation to a Loan, means:-
(a) if that Loan is denominated in Dollars, the amount of that Loan;
or
(b) if that Loan is denominated in an Optional Currency, the
equivalent in Dollars of the amount of that Loan if it had first
been drawn down and had remained denominated in Dollars.
9
"Original Group Accounts"
means the audited consolidated accounts of the Group for the year
ended December, 1993 and the unaudited consolidated income statements
of the Group for the six months ended 30th June, 1994.
"Party"
means a party to this Agreement.
"Rate Fixing Day"
means the second Business Day before the first day of an Interest
Period for a Loan.
"Reference Banks"
means, subject to Clause 29.4 (Reference Banks), the principal London
offices of Banque Nationale de Paris, Commerzbank Aktiengesellschaft,
Enskilda Corporate, Skandinaviska Enskilda Banken and Union Bank of
Switzerland.
"Request"
means a request made by the Borrower for a Loan, substantially in the
form of Schedule 4.
"Security Interest"
means any mortgage, pledge, lien, charge, assignment by way of
security, hypothecation or security interest or any other agreement or
arrangement having the effect of conferring security.
"Sterling"
means the lawful currency for the time being of the United Kingdom.
"Subsidiary"
means a subsidiary within the meaning of the Swedish Companies Act
(1975:1385).
"Swiss Francs"
means the lawful currency for the time being of Switzerland.
"Tax on Overall Net Income"
of a Bank shall be construed as a reference to tax (other than tax
deducted or withheld from any amounts paid or payable hereunder)
imposed on that Bank by the jurisdiction under the laws of which it
has been incorporated or in which its Facility Office is located on
(1) the net income, profits or gains of that Bank worldwide or (2)
such of the net income, profits or gains of that Bank as are
considered to arise in or to relate to or are taxable in that
jurisdiction.
10
"Term Date"
means the date falling 45 days after the date of this Agreement.
"Total A Commitments"
means the aggregate of the Facility A Commitments of all the Banks.
"Total B Commitments"
means the aggregate of the Facility B Commitments of all the Banks.
"Total Commitments"
means all the Total A Commitments and all the Total B Commitments.
"Yen"
means the lawful currency for the time being of Japan.
"1990 Agreement"
means the Revolving Credit and Term Loan Facility Agreement dated 21st
December 1990 between the Parent, COBE and the Finance Parties (as
defined therein).
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a
reference to:-
(i) "assets" includes properties, revenues and rights of every
description;
an "authorisation" includes an authorisation, consent,
approval, resolution, licence, exemption, filing and
registration;
a "month" or a period of "months" is a reference to a period
starting on one day in a calendar month and ending on the
numerically corresponding day in the relevant later calendar
month, except that if there is no numerically corresponding
day in that later month, that period shall end on the last
Business Day in that calendar month;
a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law but, if not, being of a kind with which it is
customary for companies within the relevant industry to
comply) of any governmental body, agency, department or
regulatory, self-regulatory or other authority or
organisation;
(ii) a provision of law is a reference to that provision as
amended or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a
schedule to this Agreement;
11
(iv) a person includes its successors and permitted transferees
and assigns;
(v) a Finance Document or another document is a reference to
that Finance Document or other document as amended, novated
or supplemented; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(c) The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this
Agreement.
(d) Words importing the singular shall include the plural and vice
versa.
2. COMMITMENTS AND NATURE OF OBLIGATIONS
2.1 Statement of Commitments
Subject to the terms of this Agreement, each Bank agrees:
(a) to make Facility A Loans in Dollars or an Optional Currency up to
an aggregate Original Dollar Amount not exceeding its Facility A
Commitment; and
(b) to make Facility B Loans in Dollars up to an aggregate Original
Dollar Amount not exceeding its Facility B Commitment.
2.2 Maximum Amounts
Notwithstanding any other provision of this Agreement, save as
provided in Clause 11.3(c):-
(i) the Facility A Outstandings may not, at any time, exceed the
Total A Commitments at that time; and
(ii) the Facility B Outstandings may not, at any time, exceed the
Total B Commitments at that time.
2.3 Obligations several
The obligations of each Bank under this Agreement are several. Failure
of a Bank to carry out its obligations hereunder shall not relieve any
other party hereto of any of its obligations hereunder. No Bank shall
be responsible for the obligations of any other Bank hereunder.
2.4 Rights several
The obligations of the Borrower towards the Agent and the Banks
hereunder are given to each of them as separate and independent
rights. Each Bank may, except as otherwise stated in this Agreement,
separately enforce its rights hereunder.
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2.5 Additional Borrowers
The Borrowers' Agent may, with the prior written consent of the
Majority Banks, at any time during the term of this Agreement, notify
the Agent that one of the Parent's Subsidiaries incorporated in Sweden,
the United States of America or Germany (or elsewhere, with the
consent of all the Banks) is to be designated as an Additional
Borrower guaranteed by the Parent. Such notice shall be in writing and
signed on behalf of the Borrowers' Agent and on behalf of the
Subsidiary concerned and shall take effect in accordance with its
terms provided that:
(a) the Additional Borrower enters into a Deed of Accession with the
Agent on behalf of the Banks in the form of Schedule 6 together
with such amendments as the Agent, acting in accordance with the
directions of the Majority Banks, may reasonably require; and
(b) the Additional Borrower, before entering into such a Deed of
Accession, has fulfilled all appropriate conditions precedent as
notified to the Borrowers' Agent in the Banks' written consent to
the satisfaction of the Agent or as otherwise agreed by the
Banks.
2.6 Approved Additional Borrowers
The Subsidiaries listed in Schedule 7 shall (subject to sub-paragraphs
(a) and (b) of Clause 2.5 (Additional Borrowers)) be deemed to be
approved by all the Banks as Additional Borrowers.
2.7 Borrowers' Agent
Each Borrower by its execution of this Agreement or, as the case may
be, of a Deed of Accession irrevocably authorises the Borrowers' Agent
to give all notices and instuctions and make such agreements expressed
to be capable of being given or made by the Borrowers herein
notwithstanding that they may affect such Borrower without further
reference to or the consent of such Borrower and such Borrower shall,
as regards the Agent and each Bank, be bound thereby as though such
Borrower itself had agreed such change or given such notice or made
such agreement.
2.8 Choice of Facility Office
Each Bank agrees (but without accepting any legal liability) that,
when selecting the Facility Office(s) through which it will perform
all or any of its obligations under this Agreement relating to an
Additional Borrower, it shall use reasonable efforts to minimise the
taxation and other costs for the Additional Borrower arising from such
selection PROVIDED THAT such Bank shall not be required to select a
particular Facility Office or to take any other steps if, in its bona
fide opinion, such selection or such steps would or might have an
adverse effect upon its business, operations or financial condition.
2.9 Commitment of Union Bank of Switzerland
Notwithstanding any other provisions of this Agreement, Union Bank of
Switzerland, London Branch and Union de Banques Suisses (Luxembourg)
S.A. shall be considered to be one Bank with a single Facility A
Commitment and a single Facility B Commitment for the purposes of this
Agreement but that Union Bank of Switzerland, London Branch shall be
obliged to make Loans to any Borrower (other than any Additional
Borrower incorporated in the United States
13
of America) and Union de Banques Suisses (Luxembourg) S.A. shall be
obliged to make Loans to any Additional Borrower incorporated in the
United States of America, in all cases subject to the terms of this
Agreement.
3. PURPOSE
The Borrower shall apply each Loan towards its general corporate
purposes including the refinancing of existing debt (including under
the 1990 Agreement). Without affecting the obligations of the Borrower
in any way, no Finance Party is bound to monitor or verify the
application of any Loan.
4. CONDITIONS PRECEDENT
4.1 Documentary conditions precedent
The obligations of each Finance Party to any Obligor under this
Agreement are subject to the condition precedent that the Agent has
notified the Parent and the Banks that it has received all of the
documents set out in Schedule 2 in form and substance satisfactory to
the Agent. The Agent will give the Parent such notification promptly
upon receipt of such documents.
4.2 Further conditions precedent
The obligations of each Bank to advance any amount under Clause 5.3
(Participations) or 11 (Amount of Optional Currencies) are (unless all
of the Banks otherwise agree in any particular case) subject to the
further conditions precedent that on both the date of the Request (if
applicable) and the date on which the relevant amount is to be
advanced:-
(a) the representations and warranties in Clause 19 (Representations
and warranties) to be repeated on those dates are correct and
will be correct immediately after the advance; and
(b) no Default is outstanding or would result from the advance or, in
the case where outstanding indebtedness of any Borrower under the
1990 Agreement is being refinanced by any Loan to be made
hereunder to that Borrower, no Event of Default has occurred and
is continuing.
5. DRAWDOWN
5.1 Commitment
Subject to the terms of this Agreement, Loans will be made to each
Borrower at any time during the relevant Commitment Period when
requested by the Borrower. Any amount of the Total A Commitments or
the Total B Commitments unborrowed hereunder during the relevant
Commitment Period shall automatically be cancelled at close of
business in London on the last day of that Commitment Period.
5.2 Requests
Whenever a Borrower desires a Loan to be made available to it, it
shall give a Request in writing to the Agent, appropriately completed,
to be received not later than 10.00 a.m. (London time) on the third
(in the case of a Loan to be denominated in Dollars or an Agreed
Optional
14
Currency during the first Interest Period) or the fifth (in the case
of a Loan to be denominated in a currency other than Dollars or an
Agreed Optional Currency during the first Interest Period) Business
Day prior to the proposed Drawdown Date of such Loan (or such other
time as the Borrower may agree with the Banks), specifying in respect
of such Loan:
(a) the proposed Drawdown Date (being a Business Day during the
relevant Commitment Period);
(b) whether such Loan is to be made under Facility A or Facility B;
(c) the Original Dollar Amount of such Loan which shall be in a
minimum amount of $5,000,000 and integral multiples of
$1,000,000;
(d) the currency in which a Facility A Loan is to be denominated for
the first Interest Period determined in accordance with Clause 10
(Selection of Optional Currencies);
(e) the first Interest Period for such Loan determined in accordance
with Clause 8 (Interest Periods);
(f) the payment instructions in compliance with Clause 12 (Payments).
Subject to the terms of this Agreement, each Request shall be
irrevocable and the Borrower shall be bound to accept the Loan in
accordance with the Request. The Agent shall promptly notify each Bank
of each Request and, if the Loan is to be denominated in an Agreed
Optional Currency, the Optional Currency amounts (and the applicable
Agent's Spot Rate of Exchange) in accordance with Clause 11.1 (Amount
of Optional Currencies - Drawdowns). No Borrower may serve a Request
until the Agent has confirmed to the Borrower and the Banks that the
conditions precedent set out in Clause 4.1 (Conditions Precedent) have
been satisfied. Loans may not be in more than six currencies at any
one time. Each Request must specify one Loan only, but the Borrower
may, subject to the other terms of this Agreement, deliver more than
one Request on any one day.
5.3 Participations
Subject to the terms of this Agreement, each Bank shall on the
proposed Drawdown Date make available to the Agent the amount of its
participation in the Loan concerned in the proportion its Facility A
Commitment bears to the Total A Commitments or its Facility B
Commitment bears to the Total B Commitments as the case may be.
6. REPAYMENT
6.1 Facility A Loans
Subject to Clause 7 (Prepayment and Cancellation), the Borrower shall
repay each Facility A Loan in the currency in which it is denominated
in full on the Final Repayment Date.
6.2 Facility B Loans
Subject to Clause 7 (Prepayment and Cancellation), each Facility B
Loan shall be repaid in Dollars in full on the Final Repayment Date.
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7. PREPAYMENT AND CANCELLATION
7.1 Voluntary Prepayment
The Borrower may at any time, by giving not less than five Business
Days' prior written notice to the Agent, prepay any Loan in whole or
in part (but, if in part, in an integral multiple of an Original
Dollar Amount of $5,000,000), such prepayment to be without premium or
penalty if made on the last day of an Interest Period relative thereto
but if made on a day other than the last day of an Interest Period
relative thereto the Parent shall indemnify each Bank pursuant to
Clause 26.2(c).
7.2 Voluntary Cancellation
The Borrower may, by giving not less than thirty days' prior written
notice to the Agent, cancel in whole or in part the undrawn amount of
the Total A Commitments (but, if in part, in an integral multiple of
an Original Dollar Amount of $5,000,000). Any cancellation in part
shall be applied against the Facility A Commitment of each Bank pro
rata.
7.3 Additional right of prepayment and cancellation
If:-
(a) the Borrower is required to pay to a Bank any additional amounts
under Clause 13 (Taxes); or
(b) the Borrower is required to pay to a Bank any amount under Clause
15 (Increased costs); or
(c) interest on a Bank's participation in a Loan is being calculated
in accordance with Clause 14.4(c) (Alternative basis for
outstanding Loans),
then, without prejudice to the obligations of the Borrower under those
Clauses, the Borrower may, whilst the circumstances continue or within
thirty days after receipt of notice from that Bank or the Agent of the
relevant event within paragraph (a), (b) or (c) above (whichever is
the later), serve a notice of prepayment and cancellation on that Bank
through the Agent. On the date falling five Business Days after the
date of service of the notice:-
(i) the Borrower shall prepay that Bank's participation in all the
Loans; and
(ii) that Bank's undrawn Commitment shall be cancelled.
7.4 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this Agreement
is irrevocable. The Agent shall notify the Banks promptly of
receipt of any such notice.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid and all other amounts due
and payable under this Agreement (including without limitation
under Clause 26.2(c)).
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(c) No prepayment or cancellation is permitted except in accordance
with the express terms of this Agreement.
(d) Any amount of any Facility A Loan prepaid under this Agreement
may subsequently be re-borrowed. No amount of any Facility B Loan
prepaid under this Agreement may subsequently be re-borrowed. No
amount of the Total Commitments cancelled under this Agreement
may subsequently be reinstated.
8. INTEREST PERIODS
8.1 Selection
(a) The Borrower may select an Interest Period for a Loan in either
the relevant Request or, if the Loan has been borrowed, a notice
received by the Agent not later than 10.00 a.m. on the third (in
the case of a Loan to be denominated in Dollars or an Agreed
Optional Currency during that Interest Period) or the fifth (in
the case of a Loan to be denominated in a currency other than
Dollars or an Agreed Optional Currency during that Interest
Period) Business Day before the commencement of that Interest
Period. Each Interest Period for a Loan will commence on its
Drawdown Date or the expiry of its preceding Interest Period.
(b) Subject to the following provisions of this Clause 8 (Interest
Periods), each Interest Period will be either an approved
duration or an optional duration as so selected under paragraph
(a) above.
In this Clause 8 (Interest Periods):-
"approved duration" means one, three or six months; and
"optional duration" means any period other than one, three or six
months agreed by the Banks.
(c) If the Borrower fails to select an Interest Period for an
outstanding Loan in accordance with paragraph (a) above, that
Interest Period will, subject to the other provisions of this
Clause 8 (Interest Periods), be three months.
(d) No more than six Interest Periods of one month's duration may be
selected in any calendar year.
8.2 Selection of an optional duration
(a) If the Borrower selects an Interest Period of an optional
duration, it may also select an Interest Period of an approved
duration to apply if the selection of an optional duration
becomes ineffective in accordance with paragraph (b) below.
(b) If:-
(i) the Borrower requests an Interest Period of an optional
duration; and
17
(ii) the Agent receives notice from a Bank not later than 3.00
p.m. three Business Days prior to the commencement of the
Interest Period that matching deposits are not available to
it in the ordinary course of business in the relevant
interbank market to fund its participation in the Loan for
that Interest Period,
the Interest Period for that Loan shall be the alternative period
so specified or, in the absence of any alternative selection and
subject to the following provisions of this Clause 8, three
months. In this event, the Agent shall promptly notify the
Borrower and the Banks of the new Interest Period for the Loan.
8.3 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
8.4 Consolidation and splitting
(a) The number of Interest Periods current hereunder at any time with
different expiry dates shall not exceed 10.
(b) If the number of Interest Periods current hereunder with
different expiry dates reaches 10, the first Interest Period for
any additional Loan must end on the same day as an existing
Interest Period for another Loan for the same Borrower made under
the same Facility and both such Loans shall thereafter (if in the
same currency and subject to paragraph (c) below) be
consolidated.
(c) Subject to paragraph (a) above, the Borrower may, in any Request
or any notice given pursuant to Clause 8.1(a) above, split any
Loan (including any consolidated Loan) into two or more Loans
(provided that the Original Dollar Amount of each resulting Loan
is a minimum of $5,000,000).
8.5 No overrunning
If an Interest Period in respect of a Loan would otherwise overrun the
Final Repayment Date, it shall be shortened so that it ends on the
Final Repayment Date.
8.6 Other adjustments
The Agent and the Borrowers' Agent may, with the consent of the Banks,
enter into such other arrangements as they may agree for the
adjustment of Interest Periods and the consolidation and/or splitting
of Loans.
8.7 Notification
The Agent shall notify the Borrower, the Borrowers' Agent and the
Banks of the duration of each Interest Period promptly after
ascertaining its duration.
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9. INTEREST
9.1 Interest rate
The rate of interest on each Loan for each of its Interest Periods is
the rate per annum determined by the Agent to be the aggregate of:-
(a) Applicable Margin;
(b) (i) in the case of all Loans other than a Sterling Loan,
LIBOR; or
(ii) in the case of a Sterling Loan, EIBOR; and
(c) MLA Costs when applicable to such Loan.
9.2 Due dates
Except as otherwise provided in this Agreement, accrued interest on
each Loan is payable by the Borrower on the last day of each Interest
Period for that Loan and also, if the Interest Period is longer than
six months, at six monthly intervals during that Interest Period.
9.3 Default interest
(a) If an Obligor fails to pay any amount payable by it under this
Agreement, it shall forthwith on demand by the Agent pay interest
on the overdue amount from the due date up to the date of actual
payment, as well after as before judgment, at a rate (the
"default rate") determined by the Agent to be one per cent. per
annum above:-
(i) if the overdue amount is of principal and an Interest Period
relative thereto is still current, the rate applicable to
such overdue amount under Clause 9.1 (Interest rate) during
such Interest Period; and
(ii) in any other case, the rate which would have been payable if
the overdue amount had, during the period of non-payment,
constituted a Loan in the currency of the overdue amount for
such successive Interest Periods not exceeding three months
of such duration as the Agent may determine (each a
"Designated Interest Period").
(b) The default rate will be determined by the Agent on each Business
Day or the first day of, or two Business Days before the first
day of, the relevant Designated Interest Period, as appropriate.
(c) If the Agent determines that deposits in the currency of the
overdue amount are not at the relevant time being made available
by the Reference Banks to leading banks in the London interbank
market, the default rate will be determined by reference to the
weighted average of the cost of funds to the Banks from whatever
sources they may select.
(d) Default interest will be compounded at the end of each Designated
Interest Period.
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9.4 Notification
The Agent shall promptly notify the Borrower and each Bank of the
determination of a rate of interest under this Agreement.
10. SELECTION OF OPTIONAL CURRENCIES
10.1 Availability
A Borrower may not request that a Loan be denominated in an Optional
Currency (other than an Agreed Optional Currency) unless the Agent has
confirmed to the Borrower that the Optional Currency is readily
available and freely transferable in the London foreign exchange
market.
10.2 Selection
(a) All Facility B Loans shall be denominated in Dollars.
(b) The Borrower may select the currency of a Facility A Loan for an
Interest Period in either the relevant Request or, if such Loan
is outstanding, a notice received by the Agent not later than
10.00 a.m. on the third (in the case of a Loan to be denominated
in Dollars or an Agreed Optional Currency during that Interest
Period) or the fifth (in the case of a Loan to be denominated in a
currency other than Dollars or an Agreed Optional Currency during
that Interest Period) Business Day before the commencement of
that Interest Period. The Borrower may specify in any such notice
whether that Loan is to be denominated in more than one currency,
and, if so, the amount in Dollars of each such currency (being an
integral multiple of an Original Dollar Amount of $5,000,000 or
the balance of the Loan, if more).
(c) If the Borrower fails to give a notice in respect of an
outstanding Loan in accordance with paragraph (b) above, that
Loan shall remain denominated for its next Interest Period in the
same currency in which it is then denominated.
(d) Each part of a Loan which is to be denominated in a different
currency from any other part of that Loan shall be treated as a
separate Loan.
(e) The Borrower may not choose a currency if as a result the Loans
would be denominated at any one time in more than six currencies.
(f) The Agent shall notify each Bank of the currency of each Facility
A Loan promptly after it is ascertained.
10.3 Revocation of currency
Notwithstanding Clause 10.1 (Availability), if before 10.00 a.m. on
the fourth Business Day before the commencement of an Interest Period,
the Agent receives notice from a Bank that:-
(a) it is impracticable for the Bank to fund or make its
participation in the Loan in the relevant Optional Currency
(other than an Agreed Optional Currency) during that Interest
Period; or
2O
(b) the use of the proposed Optional Currency (other than an Agreed
Optional Currency) might contravene any law or regulation,
the Agent shall give notice to the Borrower, the Borrowers' Agent and
to the Banks to that effect before 11.00 a.m. on that day and, unless
the Borrower, the Borrowers' Agent and the Banks agree otherwise, the
Loan shall be denominated in Dollars during that Interest Period.
11. AMOUNT OF OPTIONAL CURRENCIES
11.1 Drawdowns
If a Loan is to be drawn down in an Optional Currency, the amount of
each Bank's participation in Loan will be determined by converting
into that Optional Currency the Bank's participation in the Original
Dollar Amount of that Loan on the basis of the Agent's Spot Rate of
Exchange three Business Days before its Drawdown Date.
11.2 Change of currency
(a) If a Loan is to be continued during its next Interest Period in a
different currency (the "new currency") from that in which it is
then denominated, such Loan shall be repaid by the Borrower in
full at the end of its current Interest Period in the currency in
which it is then denominated and, subject to the terms of this
Agreement, shall be re-advanced by the Banks forthwith in the new
currency.
(b) If the new currency is Dollars, the amount of each Bank's
participation in that Loan will be its participation in the
Original Dollar Amount of that Loan for that Interest Period.
(c) If the new currency is an Optional Currency, the amount of each
Bank's participation in that Loan will be determined by
converting into the new currency its participation in the
Original Dollar Amount of that Loan on the basis of the Agent's
Spot Rate of Exchange three Business Days before the commencement
of that Interest Period.
11.3 Same Optional Currency
(a) If a Loan is to be continued during its next Interest Period in
the same Optional Currency as that in which it is denominated
during its current Interest Period, there shall be calculated the
difference between the amount of such Loan (in that Optional
Currency) for the current Interest Period and for the next
Interest Period. The amount of such Loan for the next Interest
Period will be determined by notionally converting into that
Optional Currency the Original Dollar Amount of such Loan on the
basis of the Agent's Spot Rate of Exchange three Business Days
before the commencement of that Interest Period.
(b) At the end of the current Interest Period (but subject always to
paragraph (c) below):-
(i) if the amount of such Loan for the next Interest Period is
less than for the preceding Interest Period, the Borrower
shall repay the difference; or
21
(ii) if the amount of such Loan for the next Interest Period is
greater, each Bank shall forthwith make available to the
Agent for the Borrower its participation in the difference.
(c) If the Agent's Spot Rate of Exchange for the next Interest Period
shows an appreciation or depreciation of the Optional Currency
against Dollars of less than five per cent. when compared with
the Original Exchange Rate, no amounts are payable in respect of
the difference. In this Clause 11 (Amount of Optional Currencies)
"Original Exchange Rate" means the Agent's Spot Rate of Exchange
used for determining the amount of the Optional Currency for the
Interest Period which is the later of the following:-
(i) the Interest Period during which such Loan was first
denominated in that Optional Currency if such Loan has since
then remained denominated in that Optional Currency; and
(ii) the most recent Interest Period immediately prior to which a
difference was required to be paid under this Clause 11.3.
11.4 Prepayments and Repayments
If a Loan is to be repaid or prepaid by reference to an Original
Dollar Amount, the amount actually to be repaid or prepaid in the
relevant Optional Currency shall be determined by applying to the
relevant part of the Original Dollar Amount to be repaid or prepaid
the Agent's Spot Rate of Exchange last used for determining the
Optional Currency amount of that Loan under Clause 11 (Amount of
Optional Currencies) or, if applicable, the Original Exchange Rate.
11.5 Notification
Except for Optional Currency amounts for a Loan to be drawn down in an
Agreed Optional Currency of which the Agent shall notify the Banks in
accordance with Clause 5.2 (Requests) the Agent shall notify the
Banks, the Borrower and the Borrowers' Agent of Optional Currency
amounts (and the applicable Agent's Spot Rate of Exchange) promptly
after they are ascertained.
12. PAYMENTS
12.1 Place
All payments by an Obligor or a Bank under this Agreement shall be
made to the Agent to its account at such office or bank as it may, at
least three Business Days prior to the due date of such payment,
notify to that Obligor or Bank for this purpose.
12.2 Funds
Payments under this Agreement to the Agent shall be made for value on
the due date at such times and in such funds as are customary at the
time for the settlement of transactions in the relevant currency in
the place for payment.
22
12.3 Distribution
(a) Each payment received by the Agent under this Agreement for
another Party shall, subject to paragraphs (b) and (c) below, be
made available by the Agent to that Party by payment (on the date
and in the currency and funds of receipt) to its account with
such office or bank in the principal financial centre of the
country of the relevant currency as it may notify to the Agent
for this purpose by not less than five Business Days' prior
notice.
(b) The Agent may apply any amount received by it for the Borrower
in or towards payment (on the date and in the currency and funds
of receipt) of any amount due from the Borrower under this
Agreement or in or towards the purchase of any amount of any
currency to be so applied.
(c) Where a sum is to be paid to the Agent under this Agreement for
another Party, the Agent is not obliged to pay that sum to that
Party until it has established that it has actually received that
sum. The Agent may, however, assume that the sum has been paid to
it in accordance with this Agreement, and, in reliance on that
assumption, make available to that Party a corresponding amount.
If the sum has not been made available but the Agent has paid a
corresponding amount to another Party, that Party shall forthwith
on demand by the Agent refund the corresponding amount together
with interest on that amount from the date of payment to the date
of receipt, calculated at a rate determined by the Agent to
reflect its cost of funds.
12.4 Currency
(a) A repayment or prepayment of a Loan or any part of a Loan is
payable in the currency in which the Loan is denominated on its
due date.
(b) Interest is payable in the currency in which the relevant amount
in respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses and taxes and the
like are payable in the currency in which they are incurred.
(d) Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in Dollars.
12.5 Set-off and counterclaim
All payments made by an Obligor under this Agreement shall be made
without set-off or counterclaim.
12.6 Non-Business Days
(a) If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall instead be the
next Business Day in the same calendar month (if there is one) or
the preceding Business Day (if there is not).
23
(b) During any extension of the due date for payment of any principal
under this Agreement interest is payable on that principal at the
rate payable on the original due date.
12.7 Partial payments
(a) If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Obligors under this
Agreement, the Agent shall apply that payment towards the
obligations of the Obligors under this Agreement in the following
order:-
(i) first, in or towards payment pro rata of any unpaid costs
and expenses of the Agent under this Agreement;
(ii) secondly, in or towards payment pro rata of any accrued
interest due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal
due but unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due but
unpaid under this Agreement.
(b) The Agent shall, if so directed by all the Banks, vary the order
set out in sub-paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above shall override any appropriation
made by an Obligor.
13. TAXES
13.1 Gross-up
All payments by an Obligor under the Finance Documents shall be made
without any deduction and free and clear of and without deduction for
or on account of any taxes (other than Taxes on Overall Net Income),
except to the extent that the Obligor is required by law to make
payment subject to any taxes. If any tax or amounts in respect of tax
must be deducted, or any other deductions for or on account of any
taxes must be made, from any amounts payable or paid by an Obligor, or
paid or payable by the Agent to a Bank, under the Finance Documents
(other than Taxes on Overall Net Income), the Obligor shall (subject to
Clause 13.2(c)) pay such additional amounts as may be necessary to
ensure that the relevant Bank receives a net amount equal to the full
amount which it would have received had payment not been made subject
to tax.
13.2 Forms
(a) To the extent that at that time any Bank is entitled to complete
or partial, as the case may be, exemption from deduction or
withholding for or on account of any taxes with respect to all
payments to be made by any Obligor under the Finance Documents
merely by completing certain forms, that Bank agrees, upon request
by such Obligor, to execute and deliver to such Obligor, such
forms, if they are required by law or are such as the Obligor may
reasonably request. Further, if COBE becomes an Additional
24
Borrower, each Bank which is organised under the laws of a
jurisdiction outside the US hereby agrees (insofar as it can
lawfully do so):
(i) within 10 days after the date on which COBE becomes an
Additional Borrower to deliver to COBE and the Agent:-
(aa) for the office, if any, identified with such Bank's
signature which is located in the United States of
America, two accurate and complete, original signed
copies of Internal Revenue Service Form 4224 or any
successor thereto ("Form 4224"); or
(bb) for the office, if any, identified with such Bank's
signature below which is located outside the United
States of America, two accurate and complete, original
signed copies of Internal Revenue Service Form 1001 or
any successor thereto ("Form 1001"),
in each case indicating that such Bank is on the date hereof
entitled to receive all payments under this Agreement
through such office free from withholding of US federal
income tax; and
(ii) before or promptly after the occurrence of any event
(including the passage of time or the designation of an
Additional Borrower) requiring the delivery of an additional
or replacement Form 4224 or 1001 to deliver to COBE and the
Parent, upon the request of COBE, the Parent or the Agent,
(if delivery of the same be lawful under then applicable
law), two accurate and original signed copies of Form 4224
or 1001 in addition to or replacement for the forms
previously delivered by such Bank claiming an exemption from
withholding tax or the greatest reduction of withholding tax
available under then applicable law.
(b) Each Bank agrees that, to the extent any form claiming or
otherwise establishing complete or partial exemption from
withholding and deduction of taxes delivered under this Agreement
is incomplete or incorrect in any material respect when delivered
or thereafter, such Bank shall execute and deliver complete and
correct replacement forms.
(c) If a Bank fails to comply with paragraph (a) above, such Obligor
shall not be obliged to pay additional amounts under Clause 13.1
(Gross-up) in respect of any deduction for or on account of taxes
that would not have been made had such Bank complied.
13.3 Tax receipts
All taxes required by law to be deducted or withheld by an Obligor
from any amounts paid or payable under the Finance Documents shall be
paid by the relevant Obligor when due and the Obligor shall, as soon
as reasonably practicable after the payment is made, deliver to the
Agent for the relevant Bank evidence satisfactory to that Bank
(including all relevant tax receipts (or similar evidence) or copies
thereof) that the payment has been duly remitted to the appropriate
authority.
25
13.4 Tax credits
(a) If, following the payment by any Obligor of any additional
amounts under Clause 13.1 (Gross-up), the Agent or any Bank shall
determine that it has received or been granted a credit against
or remission for any taxes payable by it, the Agent or such Bank
shall reimburse such Obligor with such amount as the Agent or
such Bank shall in its absolute discretion certify to be the
proportion of such credit or remission (if any) as will leave the
Agent or such Bank (after such reimbursement) in no worse
position than it would have been in had the relevant deduction or
withholding not been made. Such reimbursement shall be made
promptly upon the Agent or such Bank making any such
determination.
(b) Nothing in paragraph (a) above shall:
(i) require the Agent or any Bank to disclose to any Obligor any
details of its tax affairs;
(ii) interfere with the right of the Agent or any Bank to arrange
its tax affairs in whatever manner it thinks fit; and
(iii) neither the Agent nor any Bank shall be under any
obligation to claim relief in respect of any payment
under Clause 13.1 in priority to any other reliefs,
claims or credits available to it.
14. MARKET DISRUPTION
14.1 Absence of quotations
If the Agent requests a quotation from the Reference Banks and a
Reference Bank does not supply an offered rate by 1.00 p.m. on a Rate
Fixing Day, the applicable LIBOR or EIBOR (as the case may be) shall,
subject to Clause 14.2 (Market disruption), be determined on the basis
of the quotation of the other Reference Banks.
14.2 Market disruption
If, on or prior to a Rate Fixing Day:-
(a) the Agent requests a quotation from the Reference Banks and two
Reference Banks do not supply an offered rate by 1.00 p.m. on a
Rate Fixing Day; or
(b) the Agent determines that adequate and fair means do not exist
for ascertaining LIBOR or EIBOR (as the case may be); or
(c) the Agent receives notification from Banks whose participations
in a Loan exceed 50 per cent. of that Loan that, in their
opinion:-
(i) matching deposits are not available to them in the relevant
interbank market in the ordinary course of business to fund
their participations in that Loan for the relevant Interest
Period; or
26
(ii) the cost to them of obtaining matching deposits in the
relevant interbank market would be in excess of LIBOR or
EIBOR (as the case may be) for the relevant Interest Period,
the Agent shall promptly notify the Borrower and the Banks of the fact and
that this Clause 14 (Market Disruption) is in operation.
For the purposes of this Clause, "relevant interbank market" means:
(1) in the case of all Loans other than a Sterling Loan, London; and
(2) in the case of a Sterling Loan, such interbank market outside the
United Kingdom as a Bank may reasonably select for the purpose of
funding its participation.
14.3 Suspension of drawdowns
If a notification under Clause 14.2 (Market disruption) applies to a
Loan which has not been made, the Borrowers' Agent may (by notice to
the Agent) elect that the Loan shall not be made. If the Borrowers'
Agent does not so elect and such Loan is made, Clause 14.4 shall apply
thereto. If the Borrowers' Agent does so elect, the Borrower's Agent
and the Agent shall, within five Business Days of the relevant Rate
Fixing Day, enter into negotiations for a period of not more than 30
days with a view to agreeing an alternative basis for the borrowing of
that and any future Loan made while such circumstances continue. Any
alternative basis agreed shall be, with the prior consent of all the
Banks, binding on all the Parties.
14.4 Alternative basis for outstanding Loans
If a notification under Clause 14.2 (Market disruption) applies to a
Loan which is (or, by virtue of the Borrower's Agent not making an
election under Clause 14.3 (Suspension of drawdowns), which has
become) outstanding, then, notwithstanding any other provision of this
Agreement:-
(a) within five Business Days of receipt of the notification, the
Borrowers' Agent and the Agent shall enter into negotiations for
a period of not more than 30 days with a view to agreeing an
alternative basis for determining the rate of interest and/or
funding applicable to that Loan and/or any other Loans
denominated or to be denominated in the currency of that Loan;
(b) any alternative basis agreed under paragraph (a) above shall be,
with the prior consent of all the Banks, binding on all the
Parties;
(c) if no alternative basis is agreed, each Bank shall (through the
Agent) certify on or before the last day of the Interest Period
to which the notification relates an alternative basis for
maintaining its participation in that Loan;
(d) any such alternative basis may include an alternative method of
fixing the interest rate, alternative Interest Periods or
alternative currencies but it must reflect the cost to the Bank
of funding its participation in the Loan from whatever sources it
may reasonably select plus the Applicable Margin plus any
applicable MLA Costs; and
27
(e) each alternative basis so certified shall be binding on the
Borrower, the Borrowers' Agent and the certifying Bank and
treated as part of this Agreement.
(f) Any alternative basis for the borrowing of any Loan shall cease
as soon as reasonably practicable (as determined by the Agent)
after the relevant circumstances have ceased to apply and the
normal provisions of this Agreement shall apply thereafter.
15. INCREASED COSTS
15.1 Increased costs
(a) Subject to Clause 15.2 (Exceptions), the relevant Borrower or,
where the increased cost cannot be attributed to a particular
Loan, the Borrowers' Agent, shall within 5 Business Days of
demand by a Finance Party to the Borrowers' Agent pay to that
Finance Party the amount of any increased cost incurred by it as
a result of:-
(i) any change after the date of this Agreement in, or in the
official interpretation or application of, any law or
regulation; or
(ii) compliance with any regulation made after the date of this
Agreement,
(including any law or regulation relating to reserve asset,
special deposit, cash ratio, liquidity or capital adequacy
requirements or any other form of banking or monetary control).
(b) In this Agreement "increased cost" means:-
(i) an additional cost incurred by a Finance Party as a result
of it having entered into, or performing, maintaining or
funding its obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by a Finance
Party in making, funding or maintaining all or any advances
comprised in a class of advances formed by or including its
participations in the Loans made or to be made under this
Agreement as is attributable to it making, funding or
maintaining those participations; or
(iii) a reduction in any amount payable to a Finance Party or
in the effective return to a Finance Party under this
Agreement on its capital; or
(iv) the amount of any payment made by a Finance Party, or the
amount of any interest or other return foregone by a Finance
Party, on or in relation to any amount received or
receivable by that Finance Party from the Agent or an
Obligor under this Agreement.
(c) A Finance Party intending to make a claim under paragraph (a)
above shall, promptly upon its Facility Office becoming aware of
an event by reason of which it is entitled to do so and the
possible results thereof, notify the Agent, and the Agent shall
promptly notify the Borrower and the Borrowers' Agent of such
event. For the purpose of this
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Clause 15.1 each Bank may in good faith allocate or spread costs
and/or losses among its assets and liabilities (or any class
thereof) on such basis as it considers appropriate.
15.2 Exceptions
Clause 15.1 (Increased costs) does not apply to any increased cost:-
(a) compensated for by the payment of any MLA Costs;
(b) provided for by the operation of Clause 13 (Taxes); or
(c) attributable to any change in the rate or basis of calculation of
Tax on Overall Net Income of a Bank (or tax on the overall net
income of a division or branch of the Bank); or
(d) incurred or suffered by a Bank as a consequence of the
implementation of the matters set out in the report of the Basle
Committee on Banking Regulations and Supervisory Practices dated
July 1988 and entitled "International Convergence of Capital
Measurement and Capital Standards" (as that report is in effect
on the date of this Agreement).
16. ILLEGALITY
If it becomes unlawful in any jurisdiction for a Bank to give effect
to any of its obligations as contemplated by this Agreement or to fund
or maintain its participation in any Loan, then:-
(a) that Bank may notify the Borrowers' Agent through the Agent
accordingly; and
(b) (i) if so requested by that Bank through the Agent, the Borrower
shall forthwith prepay that Bank's participation in all
Loans made to it together with all other amounts payable by
it to that Bank under this Agreement; and
(ii) the Bank's undrawn Commitment shall forthwith be cancelled.
17. MITIGATION
If, in respect of any Finance Party, circumstances arise which would
or would upon the giving of notice result in:
(i) the prepayment of its share of any outstanding Loans and the
cancellation of its Commitment pursuant to Clause 16
(Illegality); or
(ii) the payment of additional amounts for its account pursuant to
Clause 13.1 (Gross-up); or
(iii) a claim for payment pursuant to Clause 15.1 (Increased
costs),
or if payments are being made to a Finance Party pursuant to Clauses
13.1 (Gross-up) and 15.1 (Increased costs), then, without in any way
limiting, reducing or otherwise qualifying the Obligors' obligations
hereunder (and, in particular, the Borrower's obligations under any of
the
29
Clauses referred to in sub-paragraphs (i), (ii), and (iii) above), such
Finance Party shall take such steps as such Finance Party in its bona
fide opinion considers appropriate to mitigate the effects of such
circumstances including (if such Bank considers it so appropriate) the
transfer of its Facility Office to another jurisdiction or the
transfer of its rights and obligations hereunder to another financial
institution willing to participate herein PROVIDED THAT such Finance
Party shall be under no obligation to take any such steps if, in its
bona fide opinion, such steps would have an adverse effect upon its
business, operations or financial condition.
18. GUARANTEE
18.1 Guarantee
The Parent irrevocably and unconditionally:-
(a) as principal obligor guarantees to each Finance Party prompt
payment by each Borrower (other than the Parent) of all amounts
payable by that Borrower under the Finance Documents;
(b) undertakes with each Finance Party that whenever a Borrower
(other than the Parent) does not pay any amount when due under or
in connection with any Finance Document, the Parent shall
forthwith on demand by the Agent pay that amount as if the Parent
instead of the relevant Borrower were expressed to be the
principal obligor; and
(c) agrees to indemnify each Finance Party on demand against any loss
or liability suffered by it if any obligation guaranteed by the
Parent is or becomes unenforceable, invalid or illegal.
18.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Borrowers (other than the
Parent) under the Finance Documents, regardless of any intermediate
payment or discharge in whole or in part.
18.3 Reinstatement
(a) Where any discharge (whether in respect of the obligations of any
Borrower or any security for those obligations or otherwise) is
made in whole or in part or any arrangement is made on the faith
of any payment, security or other disposition which is avoided or
must be restored on insolvency, liquidation or otherwise without
limitation, the liability of the Parent under this Clause 18
(Guarantee) shall continue as if the discharge or arrangement had
not occurred.
(b) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
18.4 Waiver of defences
The obligations of the Parent under this Clause 18 (Guarantee) will
not be affected by any act, omission, matter or thing which, but for
this provision, would reduce, release or prejudice any
30
of its obligations under this Clause 18 (Guarantee) or prejudice or
diminish those obligations in whole or in part, including (whether or
not known to it or any Finance Party):-
(a) any time or waiver granted to, or composition with, any Borrower
(other than the Parent) or other person;
(b) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Borrower (other
than the Parent) or other person or any non-presentation or
non-observance of any formality or other requirement in respect
of any instrument or any failure to realise the full value of any
security;
(c) any incapacity or lack of powers, authority or legal personality
of or dissolution or change in the members or status of a
Borrower or any other person;
(d) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to
that Finance Document in this Clause 18 (Guarantee) shall include
each variation or replacement;
(e) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security, to the intent that the Parent's obligations under this
Clause 18 (Guarantee) shall remain in full force and its
guarantee be construed accordingly, as if there were no
unenforceability, illegality or invalidity; or
(f) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Borrower
(other than the Parent) under a Finance Document resulting from
any insolvency, liquidation or dissolution proceedings or from
any law, regulation or order so that each such obligation shall
for the purposes of the Parent's obligations under this Clause 18
(Guarantee) be construed as if there were no such circumstance.
18.5 Immediate recourse
The Parent waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person
before claiming from the Parent under this Clause 18 (Guarantee).
18.6 Appropriations
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or agent
on its behalf) may, after an Event of Default which is continuing:-
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and neither the Parent nor
any Borrower shall be entitled to the benefit of the same; and
31
(b) hold in a suspense account any moneys received from the Parent or
on account of the Parent's liability under this Clause 18
(Guarantee), which shall bear interest at such Finance Party's
best rate for comparable commercial deposits.
18.7 Non-competition
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been irrevocably
paid in full, the Parent shall not, by virtue of any payment or
performance by it under this Clause 18 (Guarantee):-
(a) exercise any right to be subrogated to any rights, security or
moneys held, received or receivable by any Finance Party (or any
trustee or agent on its behalf) or exercise any right of
contribution or indemnity in respect of any payment made or
moneys received on account of the Parent's liability under this
Clause 18 (Guarantee);
(b) claim, rank, prove or vote as a creditor of any Borrower (other
than the Parent) or its estate in competition with any Finance
Party (or any trustee or agent on its behalf); or
(c) receive or exercise the right to claim any payment, distribution
or security from or on account of any Borrower (other than the
Parent), or exercise any right of set-off as against any such
Borrower.
The Parent shall hold in trust for and forthwith pay or transfer to
the Agent for the Finance Parties any payment or distribution or
benefit of security received by it contrary to this Clause 18.7.
18.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by
any other security now or subsequently held by any Finance Party.
19. REPRESENTATIONS AND WARRANTIES
19.1 Representations and warranties
Each Obligor makes the representations and warranties set out in this
Clause 19 (Representations and warranties) to each Finance Party
(subject in each case however, to any qualifications as to matters of
law set out in any legal opinion delivered pursuant to this
Agreement).
19.2 Status
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation;
and
(b) It has (as a matter of corporate capacity) the power to own its
assets and carry on its business as it is being conducted.
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19.3 Powers and authority
It has the power to enter into and perform, and has taken all
necessary action to authorise the entry into, performance and delivery
of, the Finance Documents to which it is or will be a party and the
transactions contemplated by those Finance Documents.
19.4 Legal validity
Each Finance Document to which it is or will be a party constitutes, or
when executed in accordance with its terms will constitute, its legal,
valid and binding obligation enforceable in accordance with its terms
subject, however, to any limitations due to bankruptcy, insolvency,
liquidation, re-organisation, limitation and other laws of general
application regarding or affecting the rights of creditors and to
general equitable principles.
19.5 Non-conflict
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not:-
(a) conflict with any law or regulation or judicial or official
order; or
(b) conflict with its Articles of Association; or
(c) conflict with any document which is, to a material extent,
binding upon it or any of its assets.
19.6 No default
(a) No Default is outstanding or would result from the making of any
Loan; and
(b) no other event is outstanding which constitutes (or with the
giving of notice, lapse of time, determination of materiality or
the fulfilment of any other applicable condition or any
combination of the foregoing, might constitute) a default under
any document which is binding on it or any of its assets to an
extent or in a manner which would be likely to have a material
adverse effect on its ability to perform its obligations which
(in the sole opinion of the Majority Banks) are material under
this Agreement or on the business or financial condition of the
Group as a whole.
19.7 Authorisations
All authorisations required in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, the Finance Documents have been obtained or effected
(as appropriate) and are in full force and effect.
19.8 Accounts
In the case of the Parent, the audited consolidated accounts of the
Group and the unaudited consolidated income statement of the Group
most recently delivered to the Agent (which, at the date of this
Agreement, are the Original Group Accounts):-
33
(i) have been prepared in accordance with accounting principles and
practices generally accepted in Sweden consistently applied and,
in the case of the audited consolidated accounts, audited by an
internationally recognised firm of accountants or by Swedish
public authorised accountants; and
(ii) fairly represent the consolidated financial condition of the
Group as at the date to which they were drawn up,
and there has been no material adverse change in the consolidated
financial condition of the Group, taken as a whole, since the date to
which those accounts were drawn up.
19.9 Litigation
Except as set out in the Disclosure Letter, no litigation, arbitration
or administrative proceedings (other than any frivolous or vexatious
claims which are being contested by appropriate proceedings) are
current or, to its knowledge, pending or threatened, which would, if
adversely determined, have a material adverse effect on the ability of
any Obligor to perform its obligations under this Agreement or the
business or financial condition of the Group as a whole.
19.10 Times for making representations and warranties
The representations and warranties set out in this Clause 19
(Representations and warranties) are made by each Obligor or the
Parent, as the case may be, on the date of this Agreement and (with
the exception of Clauses 19.6 (No default), 19.8 (Accounts) and 19.9
(Litigation)) are deemed to be repeated by each Obligor on the date of
each Request, each Drawdown Date and on the first day of each Interest
Period and by each Additional Borrower, on the date on which it enters
into a Deed of Accession, with reference to the facts and
circumstances then existing.
20. UNDERTAKINGS
20.1 Duration
The undertakings in this Clause 20 (Undertakings) remain in force from
the date of this Agreement for so long as any amount is or may be
outstanding under this Agreement or any Commitment is in force.
20.2 Financial Information
The Parent shall supply to the Agent in sufficient copies for all the
Banks:-
(a) as soon as the same are available (and in any event within 180
days of the end of each of its financial years), the audited
consolidated accounts of the Group for that financial year;
(b) as soon as the same are available (and in any event within 120
days of the end of the first half-year of each of its financial
years), the unaudited consolidated income statement of the Group
for that half-year;
(c) together with the accounts specified in paragraphs (a) and (b)
above, a certificate signed by two of its senior officers on its
behalf setting out in reasonable detail
34
computations establishing compliance with Clause 20.12 (Financial
covenants) as at the date to which those accounts were drawn-up;
and
(d) such a certificate stating which members of the Group are
Material Subsidiaries whenever there is a change in such Material
Subsidiaries and in any event at least once in each financial
year together with the accounts specified in paragraph (a) above.
20.3 Information - Miscellaneous
The Parent shall (save to the extent that it considers that to do so
would be in violation of the applicable rules or requirements of the
Stockholm Stock Exchange or any other exchange on which its equity or
debt securities are listed) supply to the Agent:-
(a) all documents despatched by it to its shareholders or creditors
generally at the same time as they are despatched;
(b) promptly upon becoming aware of them, reasonable details of any
litigation, arbitration or admininistrative proceedings (other
than any frivolous or vexatious claims, which are being contested
by appropriate proceedings) which are current, threatened or
pending, and which would, if adversely determined, have a
material adverse effect on the ability of any Obligor to perform
its obligations which (in the sole opinion of the Majority Banks)
are material under this Agreement or on the business or financial
condition of the Group as a whole; and
(c) promptly, such further information in the possession or control
of the Parent regarding its financial condition and operations
(or the financial condition and operations of any member of the
Group) as the Agent, or any Bank through the Agent, may
reasonably request,
in sufficient copies for all of the Banks, if the Agent so requests.
20.4 Notification of Default
The Parent shall notify the Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon any Obligor becoming
aware of the same.
20.5 Compliance certificates
The Parent shall supply to the Agent:-
(a) together with the accounts specified in Clause 20.2(a) (Financial
information); and
(b) promptly at any other time, if the Agent so reasonably requests,
a certificate signed by two of its senior officers on its behalf
certifying that no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps, if any, being taken
to remedy it.
35
20.6 Authorisations
Each Obligor shall promptly obtain, maintain and comply with the terms
of any authorisation required under any law or regulation to enable it
to perform its obligations under, or for the validity or
enforceability of, any Finance Document.
20.7 Pari passu ranking
Each Obligor shall procure that its obligations under the Finance
Documents do and will rank at least pari passu with all its other
present and future unsecured and unsubordinated obligations, except
for obligations which are mandatorily preferred by law.
20.8 Negative pledge
(a) No Obligor shall, and the Parent shall procure that no other
member of the Group will, create or permit to subsist any Security
Interest on any of its assets.
(b) Paragraph (a) does not apply to:-
(i) any lien arising by operation of law in the ordinary course
of business and securing amounts not more than 60 days
overdue or being contested in good faith by appropriate
proceedings;
(ii) any Security Interest created in connection with any loan or
credit granted, or guaranteed wholly or partially, by the
Swedish Export Credit Corporation or the Swedish Export
Credit Board or any other export credit or similar public
institution;
(iii) any Security Interest created in connection with any
loan, debt or other obligation (including an obligation
under a guarantee) of a member of the Group in respect
of borrowed money where the borrowed money is by its
terms repayable not more than 12 months after the date
on which the member of the Group assumes liability in
respect thereof and the purpose of the borrowed money
is to meet the funding requirements of that company in
the ordinary course of business;
(iv) any Security Interest over an asset acquired after the date
hereof which was not created in contemplation of such
acquisition and so long as the outstanding principal amount
secured thereby is not increased on or after the date of
that acquisition;
(v) any Security Interest created prior to the date of its
acquisition by a company which becomes a member of the Group
after the date hereof provided that such Security Interest
only secures Financial Indebtedness up to a stated maximum
principal amount and was not created in contemplation of
such acquisition and so long as the principal committed
amount (whether drawn or not) is not increased on or after
the date of that acquisition;
(vi) any Security Interest created in favour of persons providing
tender, performance, bid or similar bonds or guarantees
relating to or arising out of
36
contracts undertaken in the normal course of business by any
members of the Group to secure amounts which may become
payable by those persons pursuant to those bonds or
guarantees (but not where those bonds or guarantees are
issued to facilitate the incurrence of any Financial
Indebtedness);
(vii) any Security Interest created (a) in connection with
any loan, debt or other obligation (including an
obligation under a guarantee but in each case not
having a maturity of longer than twelve months from the
date of its creation) of a member of the Group in order
to take advantage of interest arbitrage and hedging
opportunities where the assets secured comprise cash or
debt securities or (b) in the ordinary course of business
over cash or debt securities provided as collateral to
any bank, financial institution, stock exchange or
clearing house for back to back, foreign exchange,
swaps or other derivatives transactions;
(viii) any Security Interest created on any asset acquired or
developed by it after the date of this Agreement for
the sole purpose of financing that acquisition or
development and securing principal monies not exceeding
the cost of that acquisition or development;
(ix) any Security Interest created pursuant to mandatory
provisions of Swedish law securing the payment of the
purchase price by any member of the Group in favour of
minority shareholders of a company or corporation the shares
of which are subject to a compulsory sale ("tvangsinlosen")
to a member of the Group;
(x) any Security Interest created in favour of a bank over any
clearing or current account in connection with a cash
management agreement entered into between that bank and a
member of the Group;
(xi) any Security Interest created by any member of the Group
incorporated in Sweden in favour of the Swedish pension fund
to which such member of the Group makes contributions (the
"Pension Fund") as security in accordance with the Pension
Fund's requirement for loans made according to Swedish law
by the Pension Fund to that member of the Group;
(xii) any Security Interest created in connection with any
refinancing and in substitution for any Security
Interest otherwise permitted under the terms of this
Clause 20.8(b) to the extent that such Security
Interest relates to the same asset and the principal
amount secured by such Security Interest is not more
than the principal amount of the indebtedness being
refinanced;
(xiii) any Security Interest disclosed to the Agent prior to
the date hereof so long as the maximum principal amount
that could be secured thereby was approved by the Agent
and is not increased after the date hereof;
(xiv) any Security Interest consented to by the Majority Banks;
37
(xv) any Security Interest created by a member of the Group in
favour of the Parent; and
(xvi) any Security Interest over an asset which does not fall
within sub-paragraphs (i) - (xv) above up to but not
exceeding an aggregate principal amount secured thereby
of an amount equal to ten per cent. of Consolidated
Total Assets at that time;
PROVIDED THAT the aggregate amount of all claims in respect of
indebtedness for a principal sum which are, at any time,
outstanding and secured by any Security Interest (other than a
Security Interest created or existing in reliance on
sub-paragraphs (i), (vii), (x) or (xv) above) shall not exceed
twenty-five per cent. of the Consolidated Total Assets at that
time.
For the avoidance of doubt, any transaction which is permitted
under this Clause 20.8 shall be deemed not to be prohibited under
Clause 20.9 or 20.10.
20.9 Transactions similar to security
(a) No Obligor shall, and the Parent shall procure that no other
member of the Group will, except with the prior written consent
of the Majority Banks, sell, transfer or otherwise dispose of any
of its fixed assets on terms whereby any such assets are or may
be leased to or re-acquired or acquired by a member of the Group
or any of its related entities (other than in circumstances where
such transaction is not entered into primarily as a method of
raising finance).
(b) Paragraph (a) does not apply to any sales, transfers or disposals:
(i) by a member of the Group to another member of the Group, or
(ii) of fixed assets with a value not exceeding in aggregate
three per cent. of the Consolidated Total Assets (calculated
at the book value net of depreciation and other similar
allowances).
For the avoidance of doubt, any equipment produced and sold or
distributed as commercial agents in the ordinary course of
business shall not be regarded as fixed assets (notwithstanding
that it is so classified in the Group's financial statements) and
any transaction which is permitted under this Clause 20.9 shall
be deemed not to be prohibited under Clause 20.8 or 20.10.
20.10 Disposals
(a) No Obligor shall, and the Parent shall procure that no other
member of the Group will, except with the prior written consent
of the Majority Banks, either in a single transaction or in a
series of transactions, whether related or not and whether
voluntarily or involuntarily, sell, transfer, grant or lease or
otherwise dispose of all or any substantial part of its assets.
(b) Paragraph (a) does not apply to:-
38
(i) any disposal made in the ordinary course of business
(including the sale with recourse of accounts receivable
arising out of the sale of such assets);
(ii) any disposal of obsolete plant or equipment;
(iii) any disposal by one member of the Group to another
member of the Group;
(iv) any disposal made on arm's length terms representing fair
market value (which shall if so requested by the Agent be
confirmed by a valuation carried out by a valuer agreed to
by both the Parent and the Agent) (or in default of such
agreement appointed by the Agent); and
(v) any other disposal not within sub-paragraphs (i)-(iv) above
where the value of the asset disposed of (when aggregated
with the value of all other assets disposed of after the
date hereof and for so long as any Commitment or Loan is
outstanding hereunder (not within sub-paragraphs (i)-(iv)
above)) does not exceed 40 per cent. of Consolidated Total
Assets (as measured in the latest published financial
statements of the Group for the period immediately preceding
the disposal).
For the avoidance of doubt, for the purposes of paragraph (v),
the value of an asset shall be equal to its book value net of
depreciation and other similar allowances and any transaction
which is permitted under this Clause 20.10 shall be deemed not to
be prohibited under Clause 20.8 or 20.9.
20.11 Change of business
The Parent shall procure that no substantial change is made to the
general nature of the business of the Parent or the Group taken as a
whole from that carried on at the date of this Agreement.
21.12 Financial covenants
(a) In this Clause 20.12:-
"Net Interest Expense"
means, in relation to any twelve month period, consolidated
interest expense less consolidated interest income during that
period.
"Operating Income"
means, in relation to any twelve month period, consolidated
income before taxes, plus any extraordinary or exceptional
losses, less any extraordinary or exceptional gains, plus
minority expense less minority income, plus interest expense less
interest income, plus foreign exchange losses less foreign
exchange gains, plus any other financial costs less any other
financial income during that period.
39
(b) (i) All the terms used in paragraph (a) above are to be
calculated in accordance with the accounting principles
applied in connection with the Original Group Accounts.
(ii) If there is a dispute as to any interpretation of or
computation for paragraph (a) above, the interpretation
or computation of the Parent's auditors prevails.
(c) The Parent shall procure that the ratio of Operating Income to
Net Interest Expense is not, at the end of each half-year of each
financial year of the Group, less than 2.2 to 1.
20.13 Insurance
Provided that such insurance is available in the market and can be
purchased on reasonable terms and conditions, each Obligor shall
maintain with reputable insurance companies, funds or underwriters
(reasonably believed by each Obligor to be financially sound) adequate
insurance of the kinds, covering such risks and in such amounts and
with such deductibles (including captive or similar self-insuring
arrangements) and exclusions as are consistent with prudent business
practice for an entity engaged in businesses similar to those of the
Obligors.
21. DEFAULT
21.1 Events of Default
Each of the events set out in Clauses 21.2 (Non-payment) to 21.15
(Material adverse change) (inclusive) is an Event of Default (whether
or not caused by any reason whatsoever outside the control of any
Obligor or any other person).
21.2 Non-payment
Any Obligor does not pay any amount of principal payable by it under
the Finance Documents on the due date or any other amount payable by
it under the Finance Documents within three (or, if the reason
therefor is technical or administrative error, five) Business Days
after the due date, in each case at the place at and in the currency
in which it is expressed to be payable.
21.3 Breach of other obligations
Any Obligor does not comply with any of its obligations under the
Finance Documents (other than those referred to in Clause 21.2
(Non-Payment) and such non-compliance, if capable of remedy, continues
unremedied for 30 days after such Obligor received notice thereof from
the Agent or, if not capable of remedy, such non-compliance is
materially prejudicial (in the sole opinion of the Majority Banks), to
the interests of the Banks.
21.4 Misrepresentation
A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by
or on behalf of any Obligor under or in connection with any Finance
Document is incorrect in any material respect when made or deemed to
be made or repeated.
40
21.5 Cross-default
(a) Any Financial Indebtedness of an Obligor or a Material Subsidiary
is not paid when due or after the expiry of any applicable grace
period (but this paragraph (a) shall not apply to non-payment by
a member of the Group under any performance or bid bond (or
similar instrument) issued by it where there is a bona fide
dispute as to its liability); or
(b) an event of default howsoever described occurs under any document
relating to Financial Indebtedness of a member of the Group and
discussions with the relevant creditors are arranged with a view
to rescheduling or otherwise varying the terms of the Financial
Indebtedness in question or considering other remedial action; or
(c) any Financial Indebtedness of a member of the Group becomes
prematurely due and payable or is placed on demand as a result of
an event of default (howsoever described) under the document
relating to that Financial Indebtedness; or
(d) any commitment for, or underwriting of, any Financial
Indebtedness of a member of the Group is cancelled or suspended
as a result of an event of default (howsoever described) under
the document relating to that Financial Indebtedness; or
(e) steps are taken to enforce any Security Interest securing
Financial Indebtedness over any asset of a member of the Group
following the occurrence of an enforcement event howsoever
described in any relevant document.
PROVIDED THAT there shall not be an Event of Default under this
clause 21.5 unless the aggregate of all amounts at any one time
unpaid or in default as a result of events referred to above
exceed $15,000,000 (or its equivalent).
21.6 Insolvency
(a) Any Obligor or Material Subsidiary is, or is deemed for the
purposes of any law to be, unable to pay its debts as they fall
due or to be insolvent, or admits inability to pay its debts as
they fall due (unless, in the case of a Material Subsidiary, the
Parent gives a support letter satisfactory to the auditors so
that no qualification is required to be made in relation to the
accounts of the Material Subsidiary concerned); or
(b) any Obligor or Material Subsidiary suspends making payments on
all or any class of its debts or announces an intention to do so,
or a moratorium is declared in respect of any of its
indebtedness; or
(c) any Obligor or Material Subsidiary, by reason of financial
difficulties, begins negotiations with its creditors generally
with a view to the readjustment or rescheduling of any of its
indebtedness.
21.7 Insolvency proceedings
(a) Any step (including petition, proposal or convening a meeting) is
taken by any Obligor or Material Subsidiary with a view to a
composition, assignment or arrangement with any of its creditors;
or
41
(b) a meeting of any Obligor or Material Subsidiary is convened for
the purpose of considering any resolution for (or to petition
for) its winding-up or its administration or any such resolution
is passed (save where such meeting is called on frivolous or
vexatious grounds by a person other than an Obligor or a Material
Subsidiary); or
(c) any person presents a petition (other than a frivolous or
vexatious petition) for the bankruptcy, winding-up or for the
administration of any Obligor or Material Subsidiary unless the
same is discharged within 45 days; or
(d) any order for the bankruptcy, winding-up or administration of any
Obligor or Material Subsidiary is made; or
(e) any other step (including petition, proposal or convening a
meeting but excluding steps taken on frivolous or vexatious
grounds or any step taken by a person other than an Obligor or a
Material Subsidiary which is discharged within 45 days) is taken
with a view to the rehabilitation, administration, custodianship,
bankruptcy, liquidation, winding-up or dissolution of any Obligor
or Material Subsidiary or any other insolvency proceedings
involving any Obligor or Material Subsidiary,
PROVIDED THAT the solvent winding-up of a Material Subsidiary on
terms approved by the Majority Banks (whose approval shall not be
unreasonably withheld) shall not be an Event of Default under
this or any other Clause.
21.8 Appointment of receivers and managers
(a) Any liquidator, trustee in bankruptcy, judicial custodian,
compulsory manager, receiver, administrative receiver,
administrator or the like is appointed in respect of any Obligor
or Material Subsidiary or any substantial part of its assets; or
(b) the directors of any Obligor or Material Subsidiary request the
appointment of a liquidator, trustee in bankruptcy, judicial
custodian, compulsory manager, receiver, administrative receiver,
administrator or the like; or
(c) any other steps are taken to enforce any Security Interest over
any part of the assets of any Obligor or Material Subsidiary and
are followed by legal proceedings which are initiated and not
discharged within 45 days.
21.9 Creditors' process
Any attachment, sequestration, distress or execution affects any asset
of any Obligor or Material Subsidiary and is not discharged within 45
days.
21.10 Analogous proceedings
There occurs, in relation to any Obligor or Material Subsidiary, any
event in any relevant jurisdiction which is analogous to any of those
mentioned in Clauses 21.6 to 21.9 (inclusive).
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21.11 Cessation of business
Any Obligor or Material Subsidiary ceases, or threatens to cease, to
carry on all or a substantial part of its business where this would
have a material adverse effect on the business or financial condition
of the Group as a whole or on the ability of any Obligor to perform
its obligations which (in the sole opinion of the Majority Banks) are
material under this Agreement.
21.12 Unlawfulness
It is or becomes unlawful for any Obligor to perform any of its
material obligations under the Finance Documents.
21.13 Guarantee
The guarantee of the Parent is not effective or is alleged by it to be
ineffective for any reason.
21.14 Ownership of the Borrowers
Any Borrower (other than the Parent) is not or ceases to be a
Subsidiary of the Parent, unless the Majority Banks consent to the
sale of such Borrower.
21.15 Material adverse change
Any event or series of events occurs which would be likely to have a
material and adverse effect on the business or financial condition of
the Group taken as a whole or on the ability of any Obligor to comply
with its obligations which (in the sole opinion of the Majority Banks)
are material under the Finance Documents.
21.16 Acceleration
On and at any time after the occurrence of an Event of Default (for so
long as such Event of Default is continuing) the Agent may, and shall
if so directed by the Majority Banks, by notice to the Parent:-
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loans, together with accrued
interest, and all other amounts accrued under this Agreement be
immediately due and payable, whereupon they shall become
immediately due and payable; and/or
(c) demand that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand.
22. THE AGENT AND THE ARRANGER
22.1 Appointment and duties of the Agent
Each Finance Party (other than the Agent) irrevocably appoints the
Agent to act as its agent under and in connection with the Finance
Documents, and irrevocably authorises the Agent on its behalf to
perform the duties and to exercise the rights, powers and discretions
that are
43
specifically delegated to it under or in connection with the Finance
Documents, together with any other incidental rights, powers and
discretions. The Agent has only those duties which are expressly
specified in this Agreement, and those duties are solely of a
mechanical and administrative nature.
22.2 Role of the Arranger
Except as specifically provided in this Agreement, the Arranger has no
obligations of any kind to any other Party under or in connection with
any Finance Document.
22.3 Relationship
The relationship between the Agent and the other Finance Parties is
that of agent and principal only. Nothing in this Agreement
constitutes the Agent as trustee or fiduciary for any other Party or
any other person and the Agent need not hold in trust any moneys paid
to it for a Party or be liable to account for interest on those
moneys.
22.4 Majority Banks' directions
The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of
any right, power or discretion or any matter not expressly provided
for in this Agreement. Any such instructions given by the Majority
Banks will be binding on all the Banks. In the absence of such
instructions, the Agent may act as it considers to be in the best
interests of all the Banks.
22.5 Delegation
The Agent may act under the Finance Documents through its personnel
and agents whose acts shall be binding upon it.
22.6 Responsibility for documentation
Neither the Agent nor the Arranger is responsible to any other Party
for:-
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(b) the collectability of amounts payable under any Finance Document;
or
(c) the accuracy of any statements (whether written or oral) made in
or in connection with any Finance Document.
22.7 Default
(a) The Agent is not obliged to monitor or enquire as to whether or
not a Default has occurred. The Agent will not be deemed to have
knowledge of the occurrence of a Default. However, if the Agent
receives notice from a Party referring to this Agreement,
describing the Default and stating that the event is a Default, or
if the officers of the Agent actually engaged in carrying out the
agency function under this Agreement acquire actual knowledge of
a Default, it shall promptly notify the Banks.
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(b) The Agent may require the receipt of security satisfactory to it
from any other Finance Party, whether by way of payment in
advance or otherwise, against any liability or loss which it will
or may incur in taking any proceedings or action arising out of
or in connection with any Finance Document before it commences
those proceedings or takes that action.
22.8 Exoneration
(a) Without limiting paragraph (b) below, the Agent will not be
liable to any other Party for any action taken or not taken by it
under or in connection with any Finance Document, unless directly
caused by its gross negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee
or agent of the Agent in respect of any claim it might have
against the Agent or in respect of any act or omission of any
kind (including gross negligence or wilful misconduct) by that
officer, employee or agent in relation to any Finance Document.
22.9 Reliance
The Agent may:-
(a) rely on any notice or document believed by it to be genuine and
correct and to have been signed by, or with the authority of, the
proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed to
be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional advisers
selected by it (including those in the Agent's employment and
those representing a Party other than the Agent).
22.10 Credit approval and appraisal
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Bank confirms that it:-
(a) has made its own independent investigation and assessment of the
financial condition and affairs of each Obligor and its related
entities in connection with its participation in this Agreement
and has not relied exclusively on any information provided to it
by the Agent or the Arranger in connection with any Finance
Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities while
any amount is or may be outstanding under the Finance Documents
or any Commitment is in force.
22.11 Information
(a) The Agent shall promptly forward to the person concerned the
original or a copy of any document which is delivered to the
Agent by a Party for that person.
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(b) The Agent shall promptly supply a Bank with a copy of each
document received by the Agent under Clause 4 (Conditions
Precedent) upon the request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the
Agent is not obliged to review or check the accuracy or
completeness of any document it forwards to another Party,
(d) Except as provided above, the Agent has no duty:-
(i) either initially or on a continuing basis to provide any
Bank with any credit or other information concerning the
financial condition or affairs of any Obligor or any related
entity of any Obligor whether coming into its possession
before, on or after the date of this Agreement; or
(ii) unless specifically requested to do so by a Bank in
accordance with this Agreement, to request any certificates
or other documents from any Obligor.
22.12 The Agent and the Arranger
(a) If it is also a Bank, each of the Agent and the Arranger has the
same rights and powers under this Agreement as any other Bank and
may exercise those rights and powers as though it were not the
Agent or the Arranger.
(b) Each of the Agent and the Arranger may:-
(i) carry on any business with an Obligor or its related
entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, an Obligor or its related entities; and
(iii) retain any profits or remuneration in connection with
its activities under this Agreement or in relation to
any of the foregoing.
22.13 Indemnities
(a) Without limiting the liability of any Obligor under the Finance
Documents, each Bank shall forthwith on demand indemnify the Agent
for its proportion of any liability or loss incurred by the Agent
in any way relating to or arising out of its acting as the Agent,
except to the extent that the liability or loss arises directly
from the Agent's gross negligence or wilful misconduct.
(b) A Bank's proportion of the liability set out in paragraph (a)
above will be the proportion which its participation in the Loans
(if any) bears to all the Loans on the date of the demand. If,
however, there are no Loans outstanding on the date of demand,
then the proportion will be the proportion which its Commitment
bears to the Total Commitments at the date of demand or, if the
Total Commitments have then been cancelled, bore to the Total
Commitments immediately before being cancelled.
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22.14 Compliance
(a) The Agent may refrain from doing anything which might, in its
opinion, constitute a breach of any law or regulation or be
otherwise actionable at the suit of any person, and may do
anything which, in its opinion, is necessary or desirable to
comply with any law or regulation of any jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not disclose
any information relating to any Obligor or any of its related
entities if the disclosure might, in the opinion of the Agent,
constitute a breach of any law or regulation or any duty of
secrecy or confidentiality or be otherwise actionable at the suit
of any person.
22.15 Resignation of the Agent
(a) Notwithstanding its irrevocable appointment, the Agent may resign
by giving notice to the Banks and the Obligors, in which case the
Agent may forthwith appoint one of its Affiliates as successor
Agent or, failing that, the Majority Banks may appoint a
successor Agent.
(b) If the appointment of a successor Agent is to be made by the
Majority Banks but they have not, within 30 days after notice of
resignation, appointed a successor Agent which accepts the
appointment, the Agent may appoint a successor Agent.
(c) The resignation of the Agent and the appointment of any successor
Agent will both become effective only upon the successor Agent
notifying all the Parties that it accepts its appointment. On
giving the notification, the successor Agent will succeed to the
position of the Agent and the term "Agent" will mean the
successor Agent.
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of perfoming its functions as the Agent under this
Agreement.
(e) Upon its resignation becoming effective, this Clause 22 (The
Agent and the Arranger) shall continue to benefit the retiring
Agent in respect of any action taken or not taken by it under or
in connection with the Finance Documents while it was the Agent,
and, subject to paragraph (d) above, it shall have no further
obligations under any Finance Document.
(f) Any successor Agent must be acceptable to the Borrower but the
Borrower may not unreasonably withhold his acceptance.
(g) If the Majority Banks so direct, the Agent shall resign and the
Majority Banks shall appoint a successor Agent.
22.16 Banks
The Agent may treat each Bank as a Bank, entitled to payments under
this Agreement and as acting through its Facility Office(s).
47
23. FEES
23.1 Management fee
The Parent shall pay to the Agent on the earlier of the first Drawdown
Date and the date 10 days after the date hereof a management fee in
the amount agreed in the relevant Fee Letter. The management fee shall
be distributed by the Agent among the Banks in its sole discretion.
23.2 Commitment fee
(a) The Parent shall pay to the Agent for each Bank a commitment fee
computed at the rate of 0.15 per cent. per annum during the
period from the date hereof until the fifth anniversary of the
date hereof and thereafter 0.175 per cent. per annum on the
undrawn, uncancelled amount of that Bank's Facility A Commitment.
For this purpose, Facility A Loans are taken at their Original
Dollar Amount.
(b) Accrued commitment fee is payable quarterly in arrear. Accrued
commitment fee is also payable to the Agent for the relevant
Bank(s) on the cancelled amount of its Facility A Commitment.
23.3 Agent's fee
The Parent shall pay to the Agent for its own account an agency fee in
the amount agreed in the relevant Fee Letter. The agency fee is
payable annually in advance. The first payment of this fee is payable
on the date of this Agreement and each subsequent payment is payable
on each anniversary of the date of this Agreement for so long as any
amount is or may be outstanding under this Agreement or any Commitment
is in force.
23.4 VAT
Any fee referred to in this Clause 23 (Fees) is exclusive of any value
added tax or any other tax which might be chargeable in connection
with that fee. If any value added tax or other tax is so chargeable,
it shall be paid by the Parent at the same time as it pays the
relevant fee.
24. EXPENSES
24.1 Initial and special costs
The Parent shall within 5 Business Days of demand pay the Agent and
the Arranger the amount of all reasonable out-of-pocket costs and
expenses (including legal fees) incurred by either of them in
connection with:-
(a) the negotiation, preparation, printing and execution of:-
(i) this Agreement and any other documents (not being a document
referred to in Clause 29.2 or 29.3 other than in circumstances
where Clause 17 (Mitigation) applies) referred to in this
Agreement; and
(ii) any other Finance Document executed after the date of this
Agreement; and
48
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of
an Obligor and relating to a Finance Document or a document
referred to in any Finance Document.
24.2 Enforcement costs
Following a Default, the Parent shall forthwith on demand (or within 5
Business Days of demand in the case of preservation costs) pay to each
Finance Party the amount of all costs and expenses (including legal
fees) properly incurred by it in connection with the enforcement of,
or the preservation of any rights under, any Finance Document.
25. STAMP DUTIES
The Parent shall pay and forthwith on demand (in the case of
enforcement) (or otherwise within 5 Business Days of demand) indemnify
each Finance Party against any liability it incurs in respect of, any
stamp, registration and similar tax which is or becomes payable in
connection with the entry into, performance or enforcement of any
Finance Document.
26. INDEMNITIES
26.1 Currency indemnity
(a) If a Finance Party receives an amount in respect of an Obligor's
liability under the Finance Documents or if that liability is
converted into a claim, proof, judgment or order in a currency
other than the currency (the "contractual currency") in which the
amount is expressed to be payable under the relevant Finance
Document:-
(i) that Obligor shall indemnify that Finance Party as an
independent obligation against any loss or liability arising
out of or as a result of the conversion;
(ii) if the amount received by that Finance Party, when converted
into the contractual currency at a market rate in the usual
course of its business is less than the amount owed in the
contractual currency, the Obligor concerned shall forthwith
on demand pay to that Finance Party an amount in the
contractual currency equal to the deficit; and
(iii) the Obligor shall pay to the Finance Party concerned
forthwith on demand any exchange costs and taxes
payable in connection with any such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency other
than that in which it is expressed to be payable.
26.2 Other indemnities
The Parent shall forthwith on receipt of a demand following a Default
(or otherwise within 5 Business Days of demand) setting out reasonable
details of the relevant loss or liability indemnify each Finance Party
against any loss or liability which that Finance Party incurs as a
consequence of:-
(a) the occurrence of any Default;
49
(b) the operation of Clause 21.16 (Acceleration);
(c) any payment of principal or an overdue amount being received from
any source otherwise than on the last day of a relevant Interest
Period or Designated Interest Period (as defined in Clause 9.3
(Default interest)) relative to the amount so received; or
(d) (other than by reason of negligence or default by a Finance
Party) a Loan not being made after the Borrower has delivered a
Request or a Loan (or part of a Loan) not being prepaid in
accordance with a notice of prepayment.
The Parent's liability in each case includes any loss of margin (in
the case of paragraph (a) or (b) above applying) or other loss or
expense on account of funds borrowed, contracted for or utilised to
fund any amount payable under any Finance Document, any amount repaid
or prepaid or any Loan.
26.3 No restriction on Obligors
Nothing in this Agreement shall prevent any Obligor from enforcing any
rights it may have against any Finance Party which fails to fulfil its
obligations hereunder.
27. EVIDENCE AND CALCULATIONS
27.1 Accounts
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they
relate.
27.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or
amount under this Agreement is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
27.3 Calculations
Interest (including any applicable MLA Costs) and the fee payable
under Clause 23.2 (Commitment fee) accrue from day to day and are
calculated on the basis of the actual number of days elapsed and a
year of 360 days, or, in the case of interest payable on an amount
denominated in Sterling only, 365 days.
28. AMENDMENTS AND WAIVERS
28.1 Procedure
(a) Subject to Clause 28.2 (Exceptions), any term of the Finance
Documents may be amended or waived with the agreement of the
Parent, the Majority Banks and the Agent. The Agent may effect,
on behalf of the Majority Banks, an amendment or waiver to which
they have agreed.
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(b) The Agent shall promptly notify the other Parties of any
amendment or waiver effected under paragraph (a) above, and any
such amendment or waiver shall be binding on all the Parties.
28.2 Exceptions
An amendment or waiver which relates to:-
(a) the definition of "Majority Banks" in Clause 1.1;
(b) an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment under the Finance
Documents;
(c) an increase in a Bank's Commitment;
(d) a term of a Finance Document which expressly requires the consent
of each Bank; or
(e) Clause 18 (Guarantee), Clause 29.1 (Changes to the Parties),
Clause 32 (Pro rata sharing) or this Clause 28 (Amendments and
waivers),
may not be effected without the consent of each Bank.
28.3 Waivers and Remedies Cumulative
The rights of each Finance Party under the Finance Documents:-
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
29. CHANGES TO THE PARTIES
29.1 Transfers by Obligors
No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under this Agreement.
29.2 Transfers by Banks
(a) A Bank (the "Existing Bank") may, with the prior written consent
of the Borrower (such consent not to be unreasonably withheld),
at any time assign, transfer or novate any of its rights and/or
obligations under this Agreement to another bank or financial
institution (the "New Bank").
Provided that each Bank (so long as it remains a Bank hereunder)
shall, subject to the other terms of this Agreement, continue to
maintain a Commitment and/or participation
51
in the facilities in an aggregate amount at least equal to
US$10,000,000 (or its equivalent) hereunder.
(b) A transfer of obligations will be effective only if either:-
(i) the obligations are novated in accordance with Clause 29.3
(Procedure for novations); or
(ii) the New Bank confirms to the Agent and the Obligors
that it undertakes to be bound by the terms of this
Agreement as a Bank in form and substance satisfactory
to the Agent. On the transfer becoming effective in
this manner the Existing Bank shall be relieved of its
obligations under this Agreement to the extent that
they are transferred to the New Bank.
(c) Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation if that Bank remains liable under this
Agreement for that obligation.
(d) On each occasion an Existing Bank assigns, transfers or novates
any of its rights and/or obligations under this Agreement, the
New Bank shall, on the date the assignment, transfer and/or
novation takes effect, pay to the Agent for its own account a fee
of $500.
(e) An Existing Bank is not responsible to a New Bank for:-
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance
Document; or
(iii) the accuracy of any statements (whether written or
oral) made in or in connection with any Finance
Document.
(f) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:-
(i) has made its own independent investigation and assessment of
the financial condition and affairs of each Obligor and its
related entities in connection with its participation in
this Agreement and has not relied exclusively on any
information provided to it by the Existing Bank in
connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
while any amount is or may be outstanding under this
Agreement or any Commitment is in force.
(g) Nothing in any Finance Document obliges an Existing Bank to:-
(i) accept a re-transfer from a New Bank of any of the rights
and/or obligations assigned, transferred or novated under
this Clause; or
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(ii) support any losses incurred by the New Bank by reason of the
non-performance by the Borrower of its obligations under
this Agreement or otherwise.
(h) Any reference in this Agreement to a Bank includes a New Bank but
excludes a Bank if no amount is or may be owed to or by it under
this Agreement and its Commitment has been cancelled or reduced
to nil.
29.3 Procedure for novations
(a) A novation is effected if:-
(i) the Existing Bank and the New Bank deliver to the Agent a
duly completed certificate, substantially in the form of
Part I of Schedule 5 (a "Novation Certificate"); and
(ii) the Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank)
irrevocably authorises the Agent to execute any duly completed
Novation Certificate on its behalf.
(c) To the extent that they are expressed to be the subject of the
novation in the Novation Certificate:-
(i) the Existing Bank and the other Parties (the "existing
Parties") will be released from their obligations to each
other (the "discharged obligations");
(ii) the New Bank and the existing Parties will assume
obligations towards each other which (subject to Clause
29.5) differ from the discharged obligations only insofar as
they are owed to or assumed by the New Bank instead of the
Existing Bank;
(iii) the rights of the Existing Bank against the existing
Parties and vice versa (the "discharged rights") will
be cancelled; and
(iv) the New Bank and the existing Parties will acquire rights
against each other which (subject to Clause 29.5) differ
from the discharged rights only insofar as they are
exercisable by or against the New Bank instead of the
Existing Bank,
all on the date of execution of the Novation Certificate by the
Agent or, if later, the date specified in the Novation
Certificate.
29.4 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank
of which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Parent) appoint another Bank or an Affiliate of
a Bank to replace that Reference Bank.
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29.5 No extra cost
If:-
(a) any assignment or transfer of all or any part of the rights or
obligations of a Bank pursuant to Clause 29; or
(b) any change in a Bank's Facility Office,
results, as a result of laws or regulations in force or the subject of
a formal government proposal at that time, in amounts becoming due at
that time under Clauses 13.1 (Gross-up) or 15 (Increased costs), then
the assignee, transferee, New Bank or Bank, as the case may be, shall
be entitled to receive those amounts only to the extent that the
assignor, transferor, Existing Bank or Bank, as the case may be, would
have been so entitled had there been no such assignment, transfer, or
change in Facility Office.
30. DISCLOSURE OF INFORMATION
(a) A Bank may disclose to one of its Affiliates or (subject to prior
notification to the Borrower of the identity of such person) any
person with whom it is proposing to enter, or has entered into,
any kind of transfer, participation or other agreement in relation
to this Agreement:-
(i) a copy of any Finance Document; and
(ii) any information which that Bank has acquired under or in
connection with any Finance Document.
(b) A Finance Party shall keep confidential any and all information
(except information which is publicly available or in respect of
which disclosure is required by law or regulation) relating to
the Group or a member of the Group which is disclosed to the
Finance Party for the purpose of or in connection with any
Finance Document.
31. SET-OFF
A Finance Party may set off any amount due and owed by an Obligor
under this Agreement (to the extent beneficially owned by that Finance
Party) against any obligation (whether or not matured) owed by that
Finance Party to that Obligor, regardless of the place of payment,
booking branch or currency of either obligation. If the obligations
are in different currencies, the Finance Party may convert either
obligation at a market rate of exchange in its usual course of business
for the purpose of the set-off.
32. PRO RATA SHARING
32.1 Redistribution
If any amount owing by an Obligor under this Agreement to a Finance
Party (the "recovering Finance Party") is discharged by payment,
set-off or any other manner other than through the Agent in accordance
with Clause 12 (Payments) (a "recovery"), then:-
54
(a) the recovering Finance Party shall, within three Business Days,
notify details of the recovery to the Agent;
(b) the Agent shall determine whether the recovery is in excess of
the amount which the recovering Finance Party would have received
had the recovery been received by the Agent and distributed in
accordance with Clause 12 (Payments);
(c) subject to Clause 32.3 (Exception), the recovering Finance Party
shall within three Business Days of demand by the Agent pay to
the Agent an amount (the "redistribution") equal to the excess;
(d) the Agent shall treat the redistribution as if it were a payment
by the Obligor concerned under Clause 12 (Payments) and shall pay
the redistribution to the Finance Parties (other than the
recovering Finance Party) in accordance with Clause 12.7 (Partial
Payments); and
(e) after payment of the full redistribution, the recovering Finance
Party will be subrogated to the portion of the claims paid under
paragraph (d) above and that Obligor will owe the recovering
Finance Party a debt which is equal to the redistribution,
immediately payable and of the type originally discharged.
32.2 Reversal of redistribution
If under Clause 32.1 (Redistribution):-
(a) a recovering Finance Party must subsequently return a recovery,
or an amount measured by reference to a recovery, to an Obligor;
and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution
paid to that Finance Party. Thereupon, the subrogation in Clause
32.1(e) (Redistribution) will operate in reverse to the extent of the
reimbursement.
32.3 Exception
(a) A recovering Finance Party need not pay a redistribution to the
extent that it would not, after the payment, have a valid claim
against the Obligor concerned in the amount of the redistribution
pursuant to Clause 32.1(e) (Redistribution).
(b) A Finance Party is not entitled to participate in a
redistribution if the redistribution results from the proceeds of
a judicial enforcement order obtained by the recovering Finance
Party and the other Finance Party had adequate notice of and
opportunity to participate in the proceedings concerned but did
not do so.
33. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect:-
55
(a) the validity or enforceability in that jurisdiction of any other
provision of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or
any other provision of the Finance Documents.
34. COUNTERPARTS
This Agreement may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
35. NOTICES
35.1 Giving of notices
All notices or other communications under or in connection with this
Agreement shall be given in writing or by telex (as between the
Finance Parties only) or facsimile. Any such notice will be deemed to
be given as follows:-
(a) if in writing, when delivered;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and at
the end of the sender's copy of the notice; and
(c) if by facsimile, when received.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
35.2 Addresses for notices
(a) The address, telex number and facsimile number of each Party
(other than the Agent and the Parent) for all notices under or in
connection with this Agreement are:-
(i) those notified by that Party for this purpose to the Agent
on or before the date it becomes a Party; or
(ii) any other notified by that Party for this purpose to the
Agent by not less than five Business Days' notice.
(b) The address, telex number and facsimile number of the Agent are:-
Banque Nationale de Paris
59-61 Rue la Fayette
75009 Paris
France
Attention: COE Gestion des Credits Financiers
Telex: 290 181
Facsimile: (33-1) 40 14 77 85
56
or such other as the Agent may notify to the other Parties by not
less than five Business Days' notice.
(c) The address and facsimile number of the Parent are:-
Gambro AB
P.O. Box 10101
S-220 10 Lund
Sweden
Attention: Messrs. Goran Anderberg/Christer Gustavsson
Facsimile: 46 46 18 87 28
or such other as the Parent may notify to the other parties by not
less than five Business Days' notice.
(d) All notices from or to an Obligor shall be sent through the
Agent.
(e) The Agent shall, promptly upon request from any Party, give to
that Party the address, telex number or fax number of any other
Party applicable at the time for the purposes of this Clause.
36. LANGUAGE
(a) Any notice given under or in connection with any Finance Document
shall be in English.
(b) All other documents (other than the accounts and the
constitutional documents of each Obligor) provided under or in
connection with any Finance Document shall be:-
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation and, in this case, the English translation shall
prevail unless the document is a statutory or other official
document.
37. JURISDICTION
37.1 Submission to English Courts
For the benefit of each Finance Party, each Obligor irrevocably agrees
that the courts of England are to have jurisdiction to settle any
disputes which may arise out of or in connection with any Finance
Document and that, accordingly, any legal action or proceedings
arising out of or in connection with any Finance Document
("Proceedings") may be brought in those courts and each Obligor
irrevocably submits to the jurisdiction of those courts.
57
37.2 Submission to Swedish Courts
Without prejudice to Clause 37.1 each Obligor further irrevocably
agrees that any Proceedings may be brought in the courts of Sweden
and submits to the non-exclusive jurisdiction of such courts.
37.3 Service of process
Without prejudice to any other mode of service, each Obligor:-
(a) irrevocably appoints:
(i) Gambro Limited of 124 Station Road, Sidcup, Kent DA15 7AS as
its agent for service of process relating to any proceedings
before the English courts in connection with any Finance
Document;
(ii) the Parent of Magistratsvagen 16, Box 10101, S-22010 Lund as
its agent for service of process relating to any proceedings
before the courts of the Kingdom of Sweden in connection with
any Finance Document,
except where an Obligor is incorporated in the relevant
jurisdiction;
(b) agrees that failure by a process agent to notify the Obligors of
the process will not invalidate the proceedings concerned; and
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 35.2 (Addresses
for notices).
37.4 Forum convenience and enforcement abroad
Each Obligor:-
(a) waives objection to the English and Swedish courts on
grounds of inconvenient forum or otherwise as regards
proceedings in connection with a Finance Document; and
(b) agrees that a judgment or order, other than an interim
judgment or order, of an English or Swedish Court in
connection with a Finance Document is conclusive and binding
on it and may be enforced against it in the courts of any
other jurisdiction in accordance with the laws and
procedures of that jurisdiction.
37.5 Non-exclusivity
Nothing in this Clause 37 limits the right of a Finance Party to bring
proceedings against an Obligor in connection with any Finance Document
in any other court of competent jurisdiction.
38. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of
this Agreement.
58
SCHEDULE 1
PART I
BANKS AND COMMITMENTS - FACILITY A
Banks Commitments
$
Banque Nationale de Paris p.l.c. 12,500,000
Commerzbank International S.A. 12,500,000
Enskilda Corporate, Skandinaviska Enskilda Banken 12,500,000
Nordbanken 12,500,000
Sanwa International (Ireland) PLC 12,500,000
Societe Generale 12,500,000
Svenska Handelsbanken 12,500,000
Union Bank of Switzerland, London Branch/
Union de Banques Suisses (Luxembourg) S.A. 12,500,000
----------------
Total A Commitments U.S.$100,000,000
----------------
59
PART II
BANKS AND COMMITMENTS - FACILITY B
Banks Commitments
$
Banque Nationale de Paris p.l.c. 12,500,000
Commerzbank International S.A. 12,500,000
Enskilda Corporate, Skandinaviska Enskilda Banken 12,500,000
Nordbanken 12,500,000
Sanwa International (Ireland) PLC 12,500,000
Societe Generale 12,500,000
Svenska Handelsbanken 12,500,000
Union Bank of Switzerland, London Branch/
Union de Banques Suisses (Luxembourg) S.A. 12,500,000
----------------
Total B Commitments U.S.$100,000,000
----------------
60
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
1. ALL OBLIGORS
A copy of the constitutional documents of each Obligor.
2. PARENT
(a) A copy of a resolution of the board of directors of the Parent:-
(i) approving the transactions contemplated by this Agreement
and resolving that it execute this Agreement;
(ii) authorising a specified person or persons to execute this
Agreement and the Fee Letter on its behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all other documents and
notices to be signed and/or despatched by it under or in
connection with this Agreement;
(b) a power of attorney executed on behalf of the Parent by a person
or persons authorised by the resolution referred to in paragraph
(a) above;
(c) a specimen of the signature of each person authorised by the
resolution referred to in paragraph (a) above;
(d) a registration certificate not older than four months issued by
the Swedish Patent and Registration Office and certified by an
officer of the Parent to be a true copy; and
(e) a certificate of an authorised signatory of the Parent certifying
that each copy document specified in this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier
than the date of this Agreement.
3. BORROWER (OTHER THAN THE PARENT)
(a) A copy of a resolution of the board of directors of each
Borrower:-
(i) approving the transactions contemplated by this Agreement
and resolving that it accedes to this Agreement;
(ii) authorising a specified person or persons to execute a Deed
of Accession on its behalf; and
(iii) authorising a specified person or persons, on its
behalf, to sign and/or despatch all other documents and
notices to be signed and/or despatched by it under or in
connection with this Agreement;
61
(b) a power of attorney executed on behalf of the Borrower by a person
or persons authorised by the resolution referred to in paragraph
(a) above;
(c) a specimen of the signature of each person authorised by the
resolution referred to in paragraph (a) above; and
(d) a legal opinion from a law firm in the jurisdiction of the
Borrower addressed to the Finance Parties.
4. PROCESS AGENTS
Evidence of acceptance by the process agents referred to in Clause
37.3 of their appointments of that Clause.
5. OTHER DOCUMENTS
A copy of any other authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable in
connection with the entry into and performance of, and the
transactions contemplated by, any Finance Document or for the validity
and enforceability of any Finance Document.
6. LEGAL OPINION
(a) A legal opinion of Vinge, legal advisers in Sweden to the Parent,
addressed to the Finance Parties.
(b) A legal opinion of Allen & Overy, legal advisers to the Agent,
addressed to the Finance Parties.
62
SCHEDULE 3
CALCULATION OF THE MLA COST
(a) The MLA Cost for a Loan maintained in Sterling for each of
its Interest Periods is calculated in accordance with the
following formula:-
BY + L(Y - X) + S(Y - Z)
------------------------ % per annum = MLA Cost
100 - (B + S)
where on the day of application of the formula:-
B is the percentage of the Agent's eligible liabilities which
the Bank of England requires the Agent to hold on a
non-interest-bearing deposit account in accordance with its
cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the
Agent to leading banks in the London interbank market at or
about 11.00 a.m. on that day for the relevant period;
L is the percentage of eligible liabilities which the Bank of
England requires the Agent to maintain as secured money with
members of the London Discount Market Association and/or as
secured call money with certain money brokers and gilt-edged
primary market makers;
X is the rate at which secured Sterling deposits may be placed
by the Agent with members of the London Discount Market
Association and/or as secured call money with certain money
brokers and gilt-edged primary market makers at or about
11.00 a.m. on that day for the relevant period;
S is the percentage of the Agent's eligible liabilities which
the Bank of England requires the Agent to place as a special
deposit; and
Z is the interest rate per annum allowed by the Bank of
England on special deposits.
(b) For the purposes of this Schedule 3:-
(i) "eligible liabilities" and "special deposits" have the
meanings given to them at the time of application of the
formula by the Bank of England; and
(ii) "relevant period" in relation to each Interest Period,
means:-
(A) if it is 3 months or less, that Interest Period; or
(B) if it is more than 3 months, each successive period of
3 months and any necessary shorter period comprised in
that Interest Period.
63
(c) In the application of the formula, B, Y, L, X, S and Z are
included in the formula as figures and not as percentages, e.g.
if B = 0.5% and Y = 15%, BY is calculated as 0.5 x 15.
(d) (i) The formula is applied on the first day of each relevant
period comprised in the relevant Interest Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to four decimal places.
(e) If the Agent determines that a change in circumstances has
rendered, or will render, the formula inappropriate, the Agent
(after consultation with the Banks and the Borrowers' Agent)
shall notify the Banks and the Borrowers' Agent of the manner in
which the MLA Cost will subsequently be calculated. The manner of
calculation so notified by the Agent shall, in the absence of
manifest error, be binding on all the Parties.
64
SCHEDULE 4
FORMS OF REQUEST
To: BANQUE NATIONALE DE PARIS as Agent
From: [BORROWER]
Date: [ ]
GAMBRO AB
U.S.$200,000,000 Facility Agreement dated [DATE]
1. We wish to borrow a Loan as follows:-
(a) Drawdown Date: [ ]
(b) Facility: [ ]
(c) Original Dollar Amount: [ ]
(d) Currency: [ ]
(e) First Interest Period(s): [ ]/
alternative Interest Period [ ]*
(f) Payment Instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Request.
By:
[BORROWER]
Authorised Signatory
* Complete only if the requested Interest Period is of an optional
duration. The splitting of Loans is dealt with in Clause 8.4.
65
SCHEDULE 5
FORM OF NOVATION CERTIFICATE
To: BANQUE NATIONALE DE PARIS
From: [THE EXISTING BANK] and [THE NEW BANK] Date:[ ]
GAMBRO AB
U.S.$200,000,000 Facility Agreement dated [DATE]
We refer to Clause 29.3 (Procedure for novations).
1. We [ ] (the "Existing Bank") and [ ] (the "New Bank") agree to the
Existing Bank and the New Bank novating all the Existing Bank's rights
and obligations referred to in the Schedule in accordance with Clause
29.3 (Procedure for novations).
2. The specified date for the purposes of Clause 29.3(c) is [date of
novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 35.2 (Addresses for notices) are set out in the
Schedule.
4. This Novation Certificate is governed by English law.
66
THE SCHEDULE
Rights and obligations to be novated
[Details of the rights and obligations of the Existing Bank to be novated].
[Existing Bank] [New Bank]
By: By:
Date: Date:
[New Bank]
[Facility Office Address for notices]
BANQUE NATIONALE DE PARIS
By:
Date:
67
SCHEDULE 6
Form of Deed of Accession
THIS DEED OF ACCESSION dated [ ] and made between:-
(1) [ ] (the "Additional Borrower");
(2) BANQUE NATIONALE DE PARIS as agent (the "Agent") on behalf of itself
and the Banks (as defined in the Facility Agreement referred to
below);
is supplemental to the revolving credit and term loan facility agreement
dated [ ], 1994 and made between Gambro AB, BNP Capital Markets Limited as
Arranger, the Banks defined therein and the Agent (the "Facility Agreement").
NOW HIS DEED WITNESSETH:-
1. ACCESSION
In consideration of the Banks through the Agent agreeing to the
Additional Borrower becoming an additional borrower pursuant to Clause
2.5 of the Facility Agreement, the Additional Borrower hereby affirms
and ratifies the Facility Agreement and by the execution of this Deed
agrees to observe and be bound by the terms and provisions of the
Facility Agreement insofar as they apply to Borrowers as if it were an
original party to the Facility Agreement.
2. INTEGRATION
This Deed of Accession shall be read as one with the Facility
Agreement so that any reference therein to "this Agreement",
"hereunder" and similar shall include and be deemed to include this
Deed of Accession.
3. CONDITIONS PRECEDENT
The obligations of the Agent and each Bank hereunder are subject to
the condition that the Agent is satisfied that all appropriate
conditions precedent have been fulfilled by the Additional Borrower
including, without limitation, the delivery of documents equivalent to
those referred to in Schedule 2 to the Facility Agreement but relating
to the Additional Borrower and this Deed of Accession.
4. NOTICES
The Additional Borrower's address for notices and demands under the
Facility Agreement is [ ] (marked for the attention of [ ]) (Telex
No. [ ]) (Facsimile No. [ ]).
5. LAW
This Deed of Accession is governed by English law.
68
IN WITNESS whereof the parties hereto have caused this Deed of Accession to
be duly executed on the date first written above.
EXECUTED as a deed by )
[The Additional Borrower] )
acting by [NAME OF DIRECTOR] )
and [NAME OF DIRECTOR/SECRETARY] )
------------------ ---------------------
director director/secretary
BANQUE NATIONALE DE PARIS
for itself and as Agent for the
Banks
By:
-------------------------
69
SCHEDULE 7
Approved Additional Borrowers
Gambro GmbH (Germany)
Gambro SpA (Italy)
Gambro K.K. (Japan)
Gambro S.A. (France)
Sopamed AG (Switzerland)
Hogamed S.A. (France)
Hospal Industrie S.A. (France)
Hospal Dasco SpA (Italy)
COBE Laboratories, Inc. (USA)
70
SIGNATORIES
The Parent
GAMBRO AB
By: INGMAR MAGNUSSON GORAN ANDERBERG
Arranger
BNP CAPITAL MARKETS LIMITED
By: DENIS QUILLET
Agent
BANQUE NATIONALE DE PARIS
By: PHILIPPE KIRCHNER
Banks
BANQUE NATIONALE DE PARIS P.L.C.
By: DENIS QUILLET
COMMERZBANK INTERNATIONAL S.A.
By: PHILIPPE KIRCHNER
ENSKILDA CORPORATE, SKANDINAVISKA ENSKILDA BANKEN
By: PHILIPPE KIRCHNER
NORDBANKEN
By: PHILIPPE KIRCHNER
71
SANWA INTERNATIONAL (IRELAND) PLC
By: PHILIPPE KIRCHNER
SOCIETE GENERALE
By: DENIS QUILLET
SVENSKA HANDELSBANKEN
By: DENIS QUILLET
UNION BANK OF SWITZERLAND, LONDON BRANCH
By: DENIS QUILLET
UNION DE BANQUES SUISSES (LUXEMBOURG) S.A.
By: DENIS QUILLET