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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1/A
TENDER OFFER STATEMENT
PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 3)
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PROXIMA CORPORATION
(NAME OF SUBJECT COMPANY)
BD ACQUISITION CORP.
ASK ASA
(BIDDERS)
COMMON STOCK, PAR VALUE $.001
(TITLE OF CLASS OF SECURITIES)
744287103
(CUSIP NUMBER OF CLASS OF SECURITIES)
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OLE J. FREDRIKSEN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ASK ASA
K.G. MELDAHLSVEI 9
N-1602 FREDRIKSTAD
NORWAY
(47 69) 34 0155
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDER)
COPY TO:
JOHN A. HEALY, ESQ.
ROGERS & WELLS LLP
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8000
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<PAGE>
This Amendment No. 3 amends and supplements the Tender Offer Statement on
Schedule 14D-1 originally filed with the Commission on March 13, 1998 (the
"Schedule 14D-1"), by BD Acquisition Corp. (the "Purchaser"), a Delaware
corporation and a wholly-owned subsidiary of ASK asa, a corporation organized
under the laws of the Kingdom of Norway ("Parent"), relating to the tender
offer of the Purchaser to purchase all of the outstanding shares (the "Shares")
of common stock, par value $.001 per share (the "Common Stock"), of Proxima
Corporation, a Delaware corporation, at a purchase price of $11.00 per Share,
net to the seller in cash, without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase dated March 13, 1998 (the
"Offer to Purchase"), and in the related Letter of Transmittal (which, together
with any supplements or amendments, collectively constitute the "Offer").
Unless the context otherwise requires, capitalized terms used but not defined
herein have the meanings ascribed to them in the Schedule 14D-1 and the Offer
to Purchase.
The Schedule 14D-1 is hereby supplemented and/or amended as provided
below.
Items 4(a)-(b) of the Schedule 14D-1 are hereby amended by adding to the
end of such Items the following:
"On March 20, 1998, Parent completed the sale to certain
international and Norwegian institutional investors of
approximately 3.7 million shares of capital stock of Parent for an
aggregate purchase price of approximately 336.7 NOK (or
approximately $45.3 million based on the Federal Reserve Bank's
noon buying rate in New York City of 7.43 Norwegian Kroners per
U.S. dollar on March 20, 1998). Parent expects to use all or a
significant portion of the net proceeds, which were approximately
327 million NOK (or approximately $44.0 million based on buying
rate described above), to fund the cost of the Offer and the
Merger and related fees and transaction expenses.
"On April 2, 1998, Purchaser and Parent entered into a
Facility Agreement (the "Credit Facility"), with Bankers Trust
International PLC, as Arranger ("BTI"), Bankers Trust Company, as
Agent (the "Agent") and lender, and the other lender described
therein, which supersedes the commitment letter dated March 5,
1998 from BTI to Parent. The following is a summary of the Credit
Facility, a copy of which is attached to this Schedule 14D-1 as
Exhibit (b)(2) and is incorporated by reference herein. All
references to and summaries of the Credit Facility herein are
qualified in their entirety by reference to the Credit Facility.
"Under the Credit Facility, Parent or Purchaser will be able
to borrow up to $30 million to finance the acquisition of the
Company.
"The Credit Facility will be available at the time the
Purchaser accepts the tendered Shares for payment pursuant to the
Offer and at the Effective Time. The first drawing will be
available only after Parent first has advanced $50 million from
its existing cash balance toward the cost of purchasing tendered
Shares. At April 1, 1998, Parent had cash and bank deposits
totaling approximately $65 million. Drawings under the Credit
Facility are to be applied toward the cash consideration payable
in the Offer and the Merger to holders of Shares and toward the
fees and other expenses incurred in connection with the Offer and
the Merger.
"The outstanding indebtedness under the Credit Facility will
bear interest, at Purchaser's option, at rates based on the London
interbank offered rate for one-, three-, or six-month periods plus
an interest margin of 0.50%.
Page 2 of 5
<PAGE>
"The indebtedness under the Credit Facility will be
guaranteed by Parent and the Company after it becomes a direct
wholly owned subsidiary of Parent. The Credit Facility matures on
June 30, 2000. The outstanding indebtedness under the Credit
Facility will be subject to mandatory prepayment in certain events
and to semi-annual amortization payments of $7.5 million each
commencing December 31, 1998 and ending on June 30, 2000.
"Under the Credit Facility, Parent and each of its
subsidiaries are required to comply with an interest coverage
ratio requirement and a leverage ratio requirement.
"The Credit Facility contains conditions to borrowing that
are customary for this type of transaction and include, among
other things, (i) upon the expiration of the Offer, a majority of
the Shares having been validly tendered and not subsequently
withdrawn and all other conditions to the Offer having been
satisfied (or waived with the consent of the Agent, which consent
shall not be unreasonably withheld); (ii) all necessary
regulatory, governmental and corporate consents having been
obtained; and (iii) there having occurred no breach of the
representations and warranties in the Credit Facility and no
events or potential events of default thereunder.
"If for any reason the Credit Facility were to become
unavailable, Parent would require alternative funding which it
would seek from other sources. Those sources might include bank
borrowings or sales of debt or equity securities in the capital
markets.
"Parent may elect to use some of the cash and cash
equivalents held by the Company to repay a portion of the
indebtedness. The Company represented in the Merger Agreement
that at the date of the Merger Agreement it held cash and cash
equivalents of not less than $20 million.
"Except as described above, neither Parent nor the Purchaser
has any plan or arrangement for repayment of borrowings under the
Credit Facility. Parent expects that, except as described above,
those borrowings will be repaid with internally generated funds
and from other sources which may include the proceeds of other
bank borrowings or public or private sales of debt or equity
securities, in Europe or elsewhere. Parent's decisions in this
regard will be based on Parent's review from time to time of the
advisability of particular actions, as well as prevailing interest
rates, financial and other economic conditions and other factors
Parent deems relevant."
Item 11 of the Schedule 14D-1 is amended by adding immediately after
Exhibit (b)(1) the following:
"(b)(2) Facility Agreement dated April 2, 1998, among Parent, the
Purchaser, Bankers Trust International PLC, as arranger,
Bankers Trust Company, as Agent, and the lenders described
therein."
Page 3 of 5
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
Date: April 3, 1998
BD ACQUISITION CORP.
By: /S/ OLE J. FREDRIKSEN
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Name: Ole J. Fredriksen
Title: President
ASK asa
By: /S/ OLE J. FREDRIKSEN
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Name: Ole J. Fredriksen
Title: President and Chief Executive
Officer
Page 4 of 5
<PAGE>
INDEX TO EXHIBITS
EXHIBIT
EXHIBIT
NUMBER
(a)(1) Offer to Purchase dated March 13, 1998.*
(a)(2) Letter of Transmittal.*
(a)(3) Letter for use by Brokers, Dealers, Banks, Trust Companies and Nominees
to their Clients.*
(a)(4) Letter to Clients.*
(a)(5) Notice of Guaranteed Delivery.*
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.*
(a)(7) Press Release issued by Parent, dated March 9, 1998.*
(a)(8) Press Release issued by the Company, dated March 9, 1998.*
(a)(9) Form of Summary Advertisement, dated March 13, 1998.*
(a)(10) Financial Statements of Parent for the fiscal years ended December 31,
1997, 1996 and 1995.*
(a)(11) Press Release issued by Parent, dated March 26, 1998.*
(b)(1) Commitment Letter, dated March 5, 1998, between Parent and Bankers Trust
International PLC.*
(b)(2) Facility Agreement dated April 2, 1998, among Parent, the Purchaser,
Bankers Trust International PLC, as arranger, Bankers Trust Company, as
Agent, and the lenders described therein.**
(c)(1) Agreement and Plan of Merger, dated March 8, 1998, by and among Parent,
the Purchaser and the Company.*
(c)(2) Stockholder Agreement dated March 8, 1998 by and among Parent, the
Purchaser and Certain Individuals Party thereto.*
(c)(3) Option Agreement dated March 8, 1998, by and among Parent, the Purchaser
and the Company.*
(d) None.
(e) Not applicable.
(f) None.
_________________
* Previously filed.
** Filed herewith.
Page 5 of 5
<PAGE>
Exhibit (b)(2)
DATED 2 APRIL 1998
BD ACQUISITION CORP.
AS BORROWER
ASK ASA
AS GUARANTOR
BANKERS TRUST INTERNATIONAL PLC
AS ARRANGER
BANKERS TRUST COMPANY
AS AGENT
AND
THE LENDERS DESCRIBED HEREIN
____________________________
FACILITY AGREEMENT
USD 30,000,000
____________________________
O'MELVENY & MYERS LLP
10 Finsbury Square
London EC2A 1LA
Tel: +44 171 256 8451
Fax: +44 171 638 8205
<PAGE>
TABLE OF CONTENTS
1. INTERPRETATION 3
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2. THE FACILITY 13
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3. PARTICIPATION OF LENDERS 13
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4. CONDITIONS PRECEDENT 14
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5. DRAWDOWN PROCEDURES 15
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6. REPAYMENT OF ADVANCES 16
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7. PREPAYMENT 17
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8. INTEREST 18
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9. PAYMENTS 20
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10. FEES, EXPENSES AND STAMP DUTIES 23
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11. REPRESENTATIONS AND WARRANTIES 24
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12. UNDERTAKINGS 27
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13. EVENTS OF DEFAULT 33
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14. GUARANTEE 35
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15. THE AGENT AND THE OTHER FINANCE PARTIES 37
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16. APPLICATION OF MONEYS 42
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17. PRO RATA PAYMENTS 42
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18. SET-OFF 43
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19. NOTICES 43
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20. CONFIDENTIALITY 44
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21. CHANGES TO PARTIES 45
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22. LENDER DECISIONS 46
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23. INDEMNITIES AND BREAKAGE COSTS 47
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24. JURISDICTION 48
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25. MISCELLANEOUS 48
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SCHEDULE 1 S1 - 1
Commitments and Lending Offices S1 - 1
SCHEDULE 2 S2 - 1
Repayment Schedule S2 - 1
SCHEDULE 3 S3 - 1
Form of Drawdown Request S3 - 1
SCHEDULE 4 S4 - 1
Structure of ASK Group as at the Initial Drawdown Date S4 - 1
SCHEDULE 5 S5 - 1
Form of Deed of Accession S5 - 1
SCHEDULE 6 S6 - 1
Form of Transfer Certificate S6 - 1
First Schedule to the Transfer Certificate S6 - 4
Second Schedule to the Transfer Certificate S6 - 5
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THIS AGREEMENT ("AGREEMENT") is made on April 2, 1998
AMONG:-
(1) ASK ASA, a corporation organised under the laws of Norway with its
principal place of business at K. G. Meldahlsvei 9, N-1602 Fredrikstad,
Norway ("ASK");
(2) BD ACQUISITION CORP., a corporation organised under the laws of Delaware
with its principal place of business at C/O ASK asa, K. G. Meldahlsvei 9,
N-1602 Fredrikstad, Norway ("Borrower");
(3) BANKERS TRUST INTERNATIONAL PLC, as Arranger;
(4) BANKERS TRUST COMPANY, as Agent; and
(5) THE LENDERS DESCRIBED HEREIN.
IT IS AGREED AS FOLLOWS:-
I. INTERPRETATION
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A. DEFINITIONS
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In this Agreement, unless the context requires otherwise, the following
expressions shall have the following meanings:-
"ACCOUNTING QUARTER" means, subject to Clause 12.3.6, each successive
fiscal period of the ASK Group consisting of three consecutive months;
"ACCOUNTING REFERENCE PERIOD" means each successive financial year of
the ASK Group ending on 31st December, as such ending date may be
altered in accordance with Clause 12.3.6;
"ADVANCE" means the principal amount of a borrowing made or to be made
by the Borrower on a Drawdown Date under the Facility or, as the
context requires, the principal amount thereof for the time being
outstanding;
"AGENT" means Bankers Trust Company acting in its capacity as agent for
the Lenders or such other agent for the Lenders as shall be appointed
pursuant to Clause 15.9;
"APPROVED ACCOUNTING PRINCIPLES" means generally accepted accounting
principles in the US consistently applied;
"ASK" has the meaning assigned to it in the recitals to this Agreement;
"ASK GROUP" means ASK and each direct or indirect subsidiary thereof;
"AUDITORS" means Coopers & Lybrand, or such other firm of accountants
as the ASK Group may appoint in compliance with the provisions of
Clause 12.3.3;
"AVAILABILITY PERIOD" means the period commencing on the Effective Date
and ending on the earliest of (X) the date of the consummation of the
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Merger, (Y) the date on which the Commitments are terminated in full in
accordance with the provisions of this Agreement, and (Z) July 14,
1998;
"BORROWER" means BD Acquisition Corp., a Delaware corporation;
"BUSINESS" means the business of the ASK Group as described in (i)
ASK's 1996 Annual Report and Quarterly Report with respect to its
fiscal quarter ended December 31, 1997, and (ii) Proxima's Form 10K
with respect to its fiscal year ended 30 March 1997 and Form 10Q with
respect to its fiscal quarter ended 28 December 1997;
"BUSINESS DAY" means a day (other than a Saturday, Sunday or public
holiday) which is a day on which banks are open for dealings in USD in
the London interbank market and on which banks are open for business
(and are not permitted by law to remain closed) in London, New York and
Oslo;
"CHANGE OF CONTROL" means any two or more persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934, as amended from time
to time (and any successor statute)) directly or indirectly, of the
equity securities of ASK (or other securities convertible into such
equity securities) representing 30% or more of the combined voting
power of all equity securities of ASK entitled to vote in the election
of director;
"COMMITMENT" means, in relation to the participation of any Lender in
the Facility, the amount stated opposite its name in Schedule 1 in
relation to the Facility (or, in the case of a Transferee, the amount
stated in the Schedule to the relevant Transfer Certificate as being
transferred to that Transferee), in each case as the same may be
transferred (in whole or in part), reduced, cancelled, varied or
terminated in accordance with the terms of this Agreement;
"DEED OF ACCESSION" means one or more deeds to be executed by any
obligor who becomes an Obligor after the date of this Agreement,
substantially in the form of Schedule 5, subject to variation (i) in
accordance with the laws of the jurisdiction of organisation of the
relevant Obligor which relate to the giving of guarantees and similar
undertakings, and (ii) with respect to Obligor-specific exceptions to
the representations and warranties as reasonably agreed by the Agent and
the Requisite Lenders, together with such other amendments thereto as
the Agent and the Requisite Lenders may reasonably require or permit;
"DEPOSITARY" means ChaseMellon Shareholder Services, L.L.C.;
"DRAWDOWN" means the making of the Advances hereunder; PROVIDED, that
no more than five Drawdowns shall be permitted under the Facility;
"DRAWDOWN DATE" means the date for the making of an Advance as
specified by the Borrower in the relevant Drawdown Request;
"DRAWDOWN REQUEST" means a notice requesting an Advance in the form set
out in Schedule 3;
"EBIT" means, in respect of the relevant testing period and in relation
to a person or group of persons under the applicable Approved
Accounting Principles, Net Income for that period, determined in
accordance with such Approved Accounting Principles for such person or,
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on a consolidated basis, for such persons, adding back (if previously
deducted) or, as the case may be, before any deduction (to the extent
that such deduction is made in the calculation of earnings) for or on
account of (a) Total Interest, and (b) Tax charged or credited during
the relevant testing period; PROVIDED that the effect, positive or
negative, of items which would be regarded as extraordinary or
exceptional items shall be excluded;
"EBITDA" means, in respect of the relevant testing period and in
relation to a person or group of persons under the applicable Approved
Accounting Principles, Net Income for that period, determined in
accordance with such Approved Accounting Principles for such person or,
on a consolidated basis, for such persons, adding back (if previously
deducted) or, as the case may be, before any deduction (to the extent
that such deduction is made in the calculation of earnings) for or on
account of (a) Total Interest, (b)Tax charged or credited during the
relevant testing period, (c) depreciation on fixed assets, (d)
amortisation of goodwill, acquisition costs and other intangible
assets, and (e) write-downs, write-offs, minority interests and other
non-cash charges in determining earnings of such person or persons for
that period; PROVIDED that the effect, positive or negative, of items
which would be regarded as extraordinary or exceptional items shall be
excluded;
"EFFECTIVE DATE" means the date on which each of the conditions set
forth in Clause 4.1.1 have been satisfied or waived by the Agent, which
shall in any event be a date not more than five Business Days after the
date of this Agreement;
"ENVIRONMENTAL LAW" means all present and future laws, regulations,
ordinances, permits guidance documents or other requirements having
legal effect in any jurisdiction in which any Obligor carries on
business or owns assets, or in the European Union as a whole,
concerning the protection of the environment or human health and
safety;
"EQUITY SALE" means the sale or transfer of equity securities in any
direct or indirect subsidiary of ASK, which sale or transfer dilutes
the aggregate percentage equity ownership (direct or indirect) of ASK
in such subsidiary;
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute;
"ERISA AFFILIATE", as applied to any person, means any entity required
to be treated with any US Obligor as a single employer under Section
414 (b), (c), (m) or (o) of the Internal Revenue Code;
"EVENT OF DEFAULT" means one of the events specified in Clause 13.1;
"FACILITY" means the term loan facility not in excess of the Total
Commitments granted to the Borrower hereunder (as the same may be
reduced or cancelled in accordance with the terms of this Agreement);
"FACILITY AMOUNT" means USD 30,000,000, as such amount may be reduced
or cancelled pursuant to the terms of this Agreement;
"FEES LETTER" means the letter(s) from ASK asa to Bankers Trust
International PLC, dated 9 March 1998 setting out details of the fees
payable pursuant to Clause 10.1.1;
"FINAL REPAYMENT DATE" means the earlier of (a) 30 June 2000, and (b)
the date on which the Commitments are terminated in full in accordance
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with the terms of this Agreement;
"FINANCE DOCUMENTS" means this Agreement, the Fees Letter, each
Transfer Certificate, each Deed of Accession and any other document
expressed to be made supplemental to, amending and/or modifying any of
the foregoing or entered into pursuant hereto or thereto, and "FINANCE
DOCUMENT" means any of them;
"FINANCE PARTIES" means the Arranger, the Agent and each Lender, and
"FINANCE PARTY" means any of them;
"FINANCIAL INDEBTEDNESS" means, without duplication, any indebtedness
in respect of or arising under or in connection with:-
i) moneys borrowed including any debenture, bond, note or loan stock
or other similar instrument, or any acceptance or documentary
credit;
ii) receivables sold or discounted in a transaction in respect of
which recourse exists against any Obligor;
iii) the acquisition cost of any asset to the extent payable after the
time of acquisition or possession by the person liable as
principal obligor for the payment thereof, or the sale price of
any asset to the extent paid before the time of sale or delivery
by the person liable to effect such sale or delivery, where the
deferred or advance payment is arranged primarily as a method of
raising finance or financing or refinancing the acquisition of
the asset acquired;
iv) finance leases, credit sale or conditional sale agreements;
v) the amount payable under any put option or other arrangement
whereby ASK or any of its subsidiaries is liable to purchase
share capital or other securities issued;
vi) any guarantee, indemnity or similar assurance against financial
loss of any person in respect of obligations of the type
described in the preceding paragraphs (i) to (v), including (a)
by agreement to purchase the Financial Indebtedness of any other
person, or (b) through the purchase of goods or other assets,
supplies or services, or maintenance of working capital or other
balance sheet covenants or conditions, or by way of stock
purchase, capital contribution, advance or loan;
vii) net amounts payable under any interest rate or currency swap,
collar or other similar agreement or any other hedging or
derivative instrument upon the termination thereof; or
viii) amounts raised under any other transaction having as a primary,
and not an incidental effect, the commercial effect of a
borrowing;
"GUARANTEES" means the guarantees by the Guarantors pursuant to Clause
14;
"GUARANTOR" means, together, ASK and any other guarantors acceptable to
the Lenders;
"INITIAL DRAWDOWN" means the making of the first Advance hereunder,
which Advance must in any event be an amount sufficient to discharge
all fees due and payable on the Initial Drawdown Date pursuant to
Clause 10.1.1;
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"INITIAL DRAWDOWN DATE" means the date of the Initial Drawdown, which
date shall occur on or after each of the conditions set forth in Clause
4.1.1 have been satisfied or waived by the Agent;
"INTEREST COVERAGE RATIO" means, at any time, the ratio of (X) EBIT, to
(Y) Net Interest, in each case as determined (i) in accordance Approved
Accounting Principles, (ii) in accordance with Clause 12.4.1(c), and
(iii) in respect of the ASK Group on a consolidated basis;
"INTEREST PERIOD" means a period by reference to which interest is
calculated and payable on an Advance or an overdue sum, and includes a
Default Interest Period (as defined in Clause 8.4.1);
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter;
"LENDER" and "LENDERS" means the persons identified as "Lenders" and
listed on the signature pages of this Agreement, or, as the case may
be, an assignee or Transferee therefrom to whom rights and/or
obligations are assigned or transferred in accordance with Clause 21.2
or 21.3, and includes a successor of any such person;
"LENDING OFFICE" means in relation to a Lender, the office or offices
through which it is acting for the purpose of this Agreement, which
office or offices initially are set out in Schedule 1;
"LEVERAGE RATIO" means, at any time, the ratio of (X) Total Debt, to
(Y) EBITDA, in each case as determined (i) in accordance Approved
Accounting Principles, (ii) in accordance with Clause 12.4.1(c), and
(iii) in respect of the ASK Group on a consolidated basis;
"LIBOR" means, in relation to any Advance or any overdue sum:-
(a) the rate determined by the Agent to be the arithmetic mean
(rounded upwards, if necessary, to the nearest five decimal
places) of the offered quotations for deposits in USD for a
period equal to the Interest Period relating to that Advance (or
overdue sum) which appear on the Telerate Display Screen page
number 3750 (or such other page(s) as may replace such pages from
time to time on that system) at or about 11.00 a.m. (London time)
on the relevant Rate Fixing Day; or
(b) if no such offered quotations appear on the relevant page as
aforesaid the arithmetic mean (rounded upwards, if necessary, to
the nearest five decimal places) of the respective rates, as
supplied to the Agent at its request, quoted (subject to Clause
8.1.3) by the Reference Lenders to prime lenders in the London
Interbank Market at or about 11.00 a.m. (London time) on the
relevant Rate Fixing Day for the offering of deposits in USD and
in an amount comparable to the amount of, and for a period equal
to the Interest Period relating to, that Advance (or overdue sum)
for delivery on the first day of that Interest Period;
"LOAN" means the aggregate principal amount of all Advances for the
time being outstanding under this Agreement;
"MARGIN" means 0.50%;
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"MARGIN STOCK" means margin stock within the meaning of Regulations G,
T, U and X of the Board of Governors of the Federal Reserve System of
the US;
"MATERIAL ADVERSE EFFECT" has the meaning given thereto in Clause
1.2.4;
"MATERIAL SUBSIDIARY" means any direct or indirect subsidiary of ASK
other than a subsidiary that has been designated in writing by the
Agent as a Non-Material Subsidiary; PROVIDED that upon each such
designation, ASK shall deliver a certificate signed on behalf of ASK by
two of its officers, certifying that (i) the aggregate gross turnover
of the Non- Material Subsidiaries as at such date does not exceed 10%
of the gross turnover of ASK and its subsidiaries as at such date, (ii)
the aggregate gross assets of the Non-Material Subsidiaries as at such
date does not exceed 10% of the gross assets of ASK and its
subsidiaries as at such date, and (iii) the aggregate EBITDA of the
Non-Material Subsidiaries as at such date does not exceed 10% of the
EBITDA of ASK and its subsidiaries as at such date. For this purpose:-
(1) in the case of a person which itself has subsidiaries, the
calculation shall be made by using the consolidated gross
turnover or gross assets or EBITDA of it and its subsidiaries;
and
(2) the calculation of consolidated gross turnover or gross assets or
EBITDA shall be made in a manner reasonably acceptable to the
Agent;
"MERGER" shall have the meaning set forth in Section 2.01 of the Merger
Agreement;
"MERGER AGREEMENT" means the Agreement and Plan of Merger, dated as of
8 March 1998, by and among ASK, the Borrower and Proxima;
"NET INCOME" means, in respect of any period and in relation to the ASK
Group, the profit shown on the profit and loss account on a
consolidated basis for the ASK Group for such period, determined in
accordance with the applicable Approved Accounting Principles, PROVIDED
that there shall be excluded the profit of any person accrued prior to
the date it becomes a subsidiary of any Obligor or any of their
respective subsidiaries or is merged into or consolidated with any
Obligor or any of their respective subsidiaries or that person's assets
are acquired by any Obligor or any of their respective subsidiaries;
"NET INTEREST" means, in respect of the relevant testing period, the
remainder of Total Interest LESS the sum of all interest (including
amounts in the nature of interest in connection with any interest rate
and/or currency swap, cap, floor, collar or other similar arrangement)
paid to the ASK Group during such period;
"NON-MATERIAL SUBSIDIARY" means a subsidiary of ASK that is not a
Material Subsidiary;
"OBLIGOR" means the Borrower, each Guarantor and any other member of
the ASK Group which is or becomes a party to a Finance Document;
"OFFER" shall have the meaning set forth in Section 1.01 of the Merger
Agreement;
"PARTICIPATION" means a Lender's right, title, interest and obligations
in relation to the Facility, namely (a) its right to receive its
Participation Proportion of principal and interest in respect of
outstanding Advances under the Facility; and (b) its obligation to
participate in its Participation Proportion in future Advances up to
the limit of the Facility;
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"PARTICIPATION PROPORTION" means the proportion in which a Lender has
agreed to participate in the Facility pursuant to Clause 3.1 (Basis of
Participation);
"PENSION PLAN" means any "employee pension benefit plan" as defined in
Section 3(2) of ERISA (other than a "multiemployer plan" as defined in
Section 3(37) of ERISA) which is subject to Section 412 of the Internal
Revenue Code or Section 302 of ERISA, which plan is, or was at any time
during the five year period ending on the date of this Agreement, main
tained or contributed to by any US Obligor or any of their respective
ERISA Affiliates;
"PERMITTED SECURITY INTEREST" means, in relation to the Obligors:-
(i) statutory Security Interests of landlords and Security
Interests of carriers, warehousemen, mechanics and materialmen
and other Security Interests imposed by law incurred in the
ordinary course of business for sums not yet delinquent or
being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by the
Approved Accounting Principles shall have been made therefor;
(ii) liens for Taxes not yet payable or which are being contested in
good faith, if such reserve or other appropriate provision, if
any, as shall be required by the Approved Accounting Principles
shall have been made therefor;
(iii) easements, zoning restrictions and rights of way or other
similar encumbrances on real property that do not interfere
with the ordinary use of the property;
(iv) a lien in respect of a judgement, decree or order which does
not itself constitute an Event of Default under Clause 13.1.10;
(v) Security Interests incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security, or
to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts,
trade contracts, performance and return-of-money bonds and
other similar obligations (exclusive of obligations for the
payment of borrowed money);
(vi) Security Interests granted with the consent of the Agent and
the Requisite Lenders;
(vii) liens arising and subsisting by operation of law and in the
ordinary course of business activities;
(viii) rights of set-off existing in the ordinary course of trading
activities between such Obligor and its suppliers or
customers, and rights of set-off arising by operation of law
by virtue of the provision to such person of bank clearing
facilities or overdraft facilities permitted hereunder;
(ix) any retention of title to goods supplied to such Obligor where
such retention is permitted by the relevant person in the
ordinary course of its trading activities and on customary
terms;
(x) Security Interests covering assets the subject of project
financing, equipment and finance leases, hire purchase,
conditional sale or similar arrangements entered into by such
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<PAGE>
Obligor which are permitted by this Agreement;
(xi) Security Interests arising in respect of any escrow
arrangements put into place for the purpose of a disposal or
acquisition by such Obligor permitted by this Agreement;
(xii) any Security Interest existing on any property or asset of any
Person that becomes an Obligor or subsidiary of an Obligor
after the date hereof prior to the time such Person becomes
an Obligor or a subsidiary of an Obligor; PROVIDED that (A)
such Security Interest is not created in contemplation of or
in connection with such Person becoming an Obligor or a
subsidiary of an Obligor, (B) such Security Interest shall
not extend to any other property or assets of any Obligor or
any subsidiary thereof, (C) such Security Interest shall
secure only those obligations which it secures on the date
such Person became an Obligor or a subsidiary of an Obligor;
(xiii) any Security Interest on fixed or capital assets acquired,
constructed or improved by any Obligor or any subsidiary
thereof; PROVIDED that (A) such Security Interest and the
Financial Indebtedness secured thereby are incurred prior to
or within 90 days after such acquisition or the completion of
such construction or improvement, (B) the Financial
Indebtedness secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital
assets and (C) such Security Interest shall not apply to any
other property or assets of such Obligor or any subsidiary
thereof; or
(xiv) Security Interests not falling within any other paragraph of
this definition securing Financial Indebtedness (including
interest and fees relating thereto) which does not exceed USD
100,000 (or its equivalent) at any one time;
in each case, other than any of the aforementioned imposed pursuant to
Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA;
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of
notice or the lapse of time or both or the making of any determination
or the fulfilment of any condition, will constitute an Event of
Default, provided that such notice, lapse of time, determination or
condition is in any case specified or referred to in the relevant Event
of Default as set forth in Clause 13.1;
"PROXIMA" means Proxima Corporation, a corporation organised under the
laws of the State of California with its principal place of business at
9440 Carroll Park Drive, San Diego, California, U.S.A.;
"RATE FIXING DAY" means, in relation to an Advance, the Business Day
being two Business Days prior to the Drawdown Date for that Advance
and, in relation to any Interest Period, the Business Day being two
Business Days prior to the first day of that Interest Period;
"REFERENCE LENDERS" means, subject to Clause 21.5.2, Bankers Trust
Company and Den norske Bank ASA;
"RELEVANT AMOUNTS" means, in relation to a Lender, the aggregate from
time to time of (a)(i) before the making of the initial Advances, its
Commitments or (ii) after the making of the initial Advances, all
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Advances made by it then outstanding, or (b) if the Commitments have
been terminated, all Advances made by it then outstanding;
"REPAYMENT DATES" means the semi-annual dates commencing on 31 December
1998, as detailed in Schedule 2;
"REPAYMENT SCHEDULE" means the repayment schedule for the Facility
which is set out in Schedule 2;
"REQUISITE LENDERS" means one or more Lenders, the sum of whose
Relevant Amounts equals or exceeds fifty per cent. (50%) of the
aggregate of the Relevant Amounts of all the Lenders;
"RESERVATIONS" means limitations on enforceability of legal documents
dictated by local law and used as qualifications in legal opinions
delivered to and accepted by the Agent in connection with the Initial
Drawdown or the accession of a Guarantor pursuant to a Deed of
Accession;
"SAME DAY FUNDS" means funds settled for value on the same day
throughout a clearing system relevant for USD and such other funds as
the Agent shall specify as being customary at the time for such
settlement;
"SECURITY INTEREST" means any mortgage, charge (fixed or floating),
standard security, pledge, lien, right of set-off, hypothecation,
trust, assignment by way of security, reservation of title, or any
other security interest whatsoever, howsoever created or arising or any
other agreement or arrangement (including, without limitation, a sale
and repurchase arrangement) having the practical effect of conferring
security, and any agreement to enter into, create or establish any of
the foregoing;
"TAXES" means and includes all present and future income and other
taxes, levies, assessments, imposts, deductions, charges, duties,
compulsory loans and withholdings whatsoever and wheresoever imposed
and any charges in the nature of taxation together with interest
thereon and penalties and fines with respect thereto, if any, and any
payments made on or in respect thereof; and "TAX" and "TAXATION" shall
be construed accordingly;
"TOTAL COMMITMENTS" means, together, the Lenders' Commitments;
"TOTAL DEBT" means, as at any date of determination, in respect of any
person or persons, the aggregate principal amount of Financial
Indebtedness of such person or, on a consolidated basis, persons (as
applicable), determined in accordance with the applicable Approved
Accounting Principles;
"TOTAL INTEREST" means, in respect of the relevant testing period, the
aggregate of all interest (including amounts in the nature of interest
in connection with any interest rate and/or currency swap, cap, floor,
collar or other similar arrangement), guarantee fees, commitment fees
and other costs and fees of a similar nature (not including, to the
extent otherwise included, costs of issuance of debt, equity or
warrants or amortisation of debt discount) due in respect of the
aggregate outstanding amount of all Financial Indebtedness of all
Obligors, calculated on a consolidated basis, and payable by the ASK
Group during such period;
"TRANSFER" has the meaning given to it in Clause 21.2;
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"TRANSFER CERTIFICATE" means a certificate substantially in the form
set out in Schedule 6;
"TRANSFEREE" means a bank, financial institution or other person to
which a Lender seeks to transfer or has transferred all or part of its
rights and obligations hereunder;
"UNITED STATES" or "US" means the United States of America;
"USD" means the lawful currency from time to time of the United States;
"US OBLIGOR" means any Obligor organised under the laws of any
jurisdiction within the United States;
"VAT" means value added tax imposed in any relevant jurisdiction or any
other tax of a substantially similar nature substituted therefor from
time to time;
B. CONSTRUCTION OF OTHER TERMS
In this Agreement, unless the context otherwise requires, a reference
to:-
1. "AFFILIATE" means in relation to any person (a) any person (other than
a subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with such person, or (b) any
person who is a director or officer (i) of such person, (ii) of any
subsidiary of such person or (iii) of any person described in clause
(a) above. For purposes of this definition, "control" of a person
shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such person, whether by
ownership of securities, contract, proxy or otherwise;
2. "ASSETS" means business, undertaking, property, assets (tangible or
intangible), revenues, rights and uncalled capital, wherever situated,
present, future and contingent (including uncalled share capital), and
every kind of interest in an asset, except that the word "contingent"
shall not be deemed included in this definition where the definition is
used in provisions relating to financial accounting;
3. "INDEBTEDNESS" includes any obligation (whether incurred as principal
or as surety) for the payment or repayment of money, whether present or
future, actual or contingent, except that the word "contingent" shall
not be deemed included in this definition where the definition is used
in provisions relating to financial accounting;
4. an event or matter having a "MATERIAL ADVERSE EFFECT" is to be
construed as a reference to an event or matter (a) which has or is
reasonably likely to have a material adverse effect on the prospects,
financial condition, business, assets or revenues of the ASK Group
taken as a whole such that the Obligors, taken as a whole, will be, or
are reasonably likely to be, unable to perform in a timely and diligent
manner all or any of their material obligations (including, without
limitation, payment obligations) under each of the Finance Documents
or (b) resulting in any material term of the Finance Documents not
being legal, valid and binding on and enforceable against any Obligor
party thereto, subject only to the Reservations;
5. a "MONTH" means (save where used in the expression "CALENDAR MONTH") a
period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month (or in a
subsequent calendar month in the case of the plural "months"), provided
that if:-
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(1) any such period would otherwise end on a day which is not a
Business Day, it shall end on the next Business Day in the same
calendar month, or if none, on the preceding Business Day; and
(2) a period starts on the last Business Day in a calendar month or
if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last
Business Day in that later month;
(and references to "MONTHS" shall be construed accordingly);
6. "OUTSTANDING" under the Facility means the principal amount of all
Advances outstanding under the Facility;
7. a "PERSON" includes any person, firm, company, corporation, government,
state or agency of a state or any undertaking (within the meaning of
Section 259(1) of the Companies Act 1985) or other entity or
association (whether or not having separate legal personality), or any
two or more of the foregoing;
8. "REPAYMENT" includes "PREPAYMENT" and its grammatical variations and
cognate expressions shall be construed accordingly;
9. "SUBSIDIARY" means, with respect to any person, any corporation or
other person more than fifty percent (50%) of whose securities or other
ownership interests having ordinary voting power for the election of
directors or similar representatives (other than securities having such
power only by reason of the happening of a contingency) are, as of the
date of determination thereof, directly or indirectly owned by such
person or one or more of such person's subsidiaries; and
10. "WINDING-UP" of any person includes its dissolution and/or termination
and/or any equivalent or analogous proceedings under the law of any
jurisdiction in which the relevant person is incorporated, registered,
established or carries on business or to which that person is subject.
C. OTHER PROVISIONS
Except where a contrary intention appears, in this Agreement:-
1. a reference to an Obligor or a Finance Party is, where relevant, deemed
to be a reference to or to include, as appropriate, their respective
successors or assigns;
2. references to Clauses and Schedules are references to, respectively,
clauses of and schedules to this Agreement;
3. a reference to any agreement, deed or other instrument (including the
Finance Documents) is to be construed as a reference to that agreement,
deed or other instrument as it may have been or hereafter be, from time
to time, amended, varied, supplemented, restated or novated but
excluding for this purpose any amendment, variation, supplement or
modification which is contrary to any provision of any of the Finance
Documents;
4. a reference to a statute, law, rule, regulation or statutory instrument
is to be construed as a reference to that statute as the same may have
been, or may from time to time hereafter be, amended or re-enacted;
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5. a time of day is a reference to London, England time;
6. the index to and the headings in this Agreement are inserted for
convenience only and are to be ignored in construing this Agreement;
7. references to the singular shall include the plural and VICE VERSA, and
reference by way of masculine pronoun or adjective shall include
references by way of the feminine, and VICE VERSA ; and
8. accounting terms are to be construed in accordance with the Approved
Accounting Principles.
II. THE FACILITY
------------
A. THE FACILITY
------------
1. The Lenders grant to the Borrower, upon the terms and subject to the
conditions of this Agreement, the Facility.
B. PURPOSE
-------
1. The proceeds of the Advances under the Facility shall be used by the
Borrower as follows: (i) to pay fees and other expenses payable by the
ASK Group in connection with the Offer and the Merger, (ii) to pay fees
and related expenses to certain Finance Parties in respect of the
Facility, and (iii) to pay a portion of the cash consideration relating
to the consummation of the Offer, and (iv) to pay all or a portion of
the cash consideration relating to the consummation of the Merger.
2. No amount drawn down hereunder shall be applied by an Obligor in a
manner which may be prohibited by any financial assistance or other
similar laws in any relevant jurisdiction.
III. PARTICIPATION OF LENDERS
------------------------
A. BASIS OF PARTICIPATION
----------------------
Subject to the provisions of this Agreement, each Lender will
participate in each Advance in the proportion which its Commitment as
at the Drawdown Date bears to the undrawn portion of the Total
Commitments of all Lenders as at such date.
None of the Lenders is obliged to participate in an Advance to the
extent that to do so would result in the amount outstanding to it under
the Facility exceeding its Commitment in respect of the Facility.
B. LENDING OFFICE
--------------
1. Each Lender will participate in each Advance as aforesaid through its
Lending Office.
2. If any Lender changes any Lending Office, that Lender agrees to notify
the Agent and the Borrower promptly of such change and, until it does
so, the Agent and the Borrower shall be entitled to assume that no such
change has taken place.
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C. RIGHTS AND OBLIGATIONS OF FINANCE PARTIES
-----------------------------------------
1. The rights and obligations of each of the Finance Parties under the
Finance Documents are several. Failure of any Finance Party to observe
and perform its obligations under any Finance Document shall neither
(a) result in any other Finance Party incurring any liability
whatsoever, nor (b) relieve the Borrower or any other Finance Party
from their respective obligations under the Finance Documents.
2. Notwithstanding any other provision of any Finance Document, the
interests of each Finance Party are several and the total amounts
outstanding at any time under the Finance Documents and due to each
Finance Party constitute separate and independent debts.
D. ENFORCEMENT OF RIGHTS
---------------------
Each Finance Party has the right to protect and enforce its rights
arising out of the Finance Documents and it shall not be necessary for
any other Finance Party to be joined as an additional party in any
proceedings brought for the purpose of protecting or enforcing such
rights.
IV. CONDITIONS PRECEDENT
--------------------
A. INITIAL CONDITIONS PRECEDENT
----------------------------
1. The obligations of the Lenders to make the initial Advance available to
the Borrower under this Agreement are conditioned upon the Agent and
its legal advisers having received the following documents and evidence
in all respects (except where otherwise specified) in form and
substance satisfactory to the Agent and the Requisite Lenders and their
respective legal advisers by 10:00 a.m. London time on the Initial
Drawdown Date:-
(1) a copy, certified as of the Initial Drawdown Date as true and
complete by a duly authorised representative of each Obligor
which will be an Obligor as of the date of the Initial Drawdown,
of the (i) constitutional documents of such Obligor, (ii) board
resolutions of such Obligor approving all matters contemplated by
each of the Finance Documents to which such Obligor is a party
(including specimen signatures of the signatories authorised to
sign the relevant Finance Documents), and (iii) if applicable,
any other resolutions, powers, approvals and consents necessary
or appropriate for the entry into, performance and enforceability
of the Finance Documents to which such Obligor is a party;
(2) duly executed counterparts of this Agreement;
(3) legal opinions properly addressed to the Agent and Lenders from
(i) Rogers & Wells, US legal advisers to the ASK Group, (ii)
Wikborg, Rein & Co., Norwegian legal advisers to the ASK Group,
and (iii) O'Melveny & Myers LLP, legal advisers to the Agent;
(4) a fully executed or conformed copy of the Merger Agreement
(including all schedules or other attachments thereto) and any
documents executed in connection therewith;
(5) a certificate of the Depositary certifying the number of shares
of Common Stock of Proxima tendered pursuant to the Offer as of
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the Initial Drawdown Date, which number must satisfy the Minimum
Condition (as defined in Section 1.01 of the Merger Agreement);
and an Officer's Certificate from the Borrower certifying that
each of the Offer Conditions (as defined in Section 1.01 of the
Merger Agreement), has been satisfied, unless waived in each case
with the consent of the Agent, which consent shall not be
unreasonably withheld or delayed;
(6) evidence (in the form of a copy of the payment instructions of
the bank holding the cash balances of ASK) that at least the
first USD 50,000,000 of the acquisition price relating to
consummation of the Offer will be paid from the cash balances of
ASK;
(7) evidence of discharge of any existing Security Interest(s) of any
Obligor (other than Permitted Security Interests);
(8) each of the financial statements and other materials required
pursuant to Clause 12.3.4 (Financial Statements); and
(9) evidence that the agents for service of process named in Clause
24.2 have accepted their respective appointments for the purposes
of this Agreement and the other Finance Documents.
2. In addition, the obligations of the Lenders to fund the Initial
Drawdown is subject to the following further condition precedent, that
on both the date of the Drawdown Request in relation to the Initial
Drawdown, and on the Initial Drawdown Date, unless waived by the Agent
acting in accordance with Clause 22, no Material Adverse Effect has
occurred in respect of the ASK Group as a whole since the time of the
commencement of the Offer.
3. When the Agent is satisfied that such conditions have been fulfilled,
the Agent will give notice to that effect to the Borrower and each of
the Lenders.
B. ADDITIONAL CONDITIONS PRECEDENT FOR EACH ADVANCE
------------------------------------------------
1. The obligations of the Lenders to make any Advance to the Borrower
(including the initial Advance) is subject to the following further
conditions precedent, that on both the date of the relevant Drawdown
Request and the relevant Drawdown Date, unless waived by the Agent
acting in accordance with Clause 22:-
(1) no Event of Default or Potential Event of Default has occurred
and continues unremedied or will occur as a result of the making
of the Advance; and
(2) the representations and warranties required to be made in
accordance with Clause 11 are true and accurate in all material
respects in each case by reference to the facts and circumstances
then subsisting and will remain true and accurate immediately
after the Advance is made.
2. Each Drawdown must fall on a Business Day on or before the expiry of
the Availability Period for the Facility. Any amounts not drawn on or
before the expiry of the Availability Period for the Facility shall be
cancelled.
V. DRAWDOWN PROCEDURES AND LENDERS' PARTICIPATIONS
-----------------------------------------------
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A. DRAWDOWN OF ADVANCES
--------------------
1. Whenever the Borrower wishes to borrow an Advance, the Borrower must
deliver to the Agent a duly completed Drawdown Request not later than
10.00 a.m. three Business Days prior to the proposed Drawdown Date
(except with respect to the Initial Drawdown Date, for which a
completed Drawdown Request shall be delivered no later than 10:00 a.m.
London time on the Initial Drawdown Date).
2. A Drawdown Request for an Advance delivered to the Agent must be in the
form set out in Schedule 3 and must specify each of the following:-
(1) the proposed Drawdown Date for the Advance (which must be a
Business Day falling within the Availability Period);
(2) the amount of the Advance which amount must be a minimum of
USD 1,000,000 and an integral multiple of USD 1,000,000, except
to the extent of variations from such amounts for rounding
purposes approved by the Agent;
(3) the duration of the first Interest Period applicable to the
Advance, which must comply with Clause 8.3;
(4) the account to which the proceeds of the Advance are to be paid;
and
(5) the purpose for which the Advance is requested.
3. In no event may the amount specified in a Drawdown Request be such that
the Loan would thereby exceed the then Total Commitments.
4. In no event shall there be more than five Drawdown Requests hereunder.
5. A Drawdown Request in relation to an Advance, once given, may not be
withdrawn or revoked.
B. LENDERS' PARTICIPATIONS
-----------------------
1. Subject to the provisions of this Agreement, each Lender will make
available to the Agent its Participation Proportion of the relevant
Advance on the relevant Drawdown Date in accordance with Clause 9.1.1.
2. If, prior to an Advance being made, the Lenders' Commitments have been
wholly cancelled or terminated pursuant to this Agreement, such Lender
will not participate in such Advance.
C. NOTICE TO THE LENDERS OF A PROPOSED DRAWDOWN
--------------------------------------------
Whenever the Agent receives a Drawdown Request which complies with the
requirements of Clause 5.1, the Agent will promptly give notice to each
of the Lenders of (a) the details of the requested Advance, and (b) the
amount of such Lender's participation in the relevant Advance.
VI. REPAYMENT OF ADVANCES
---------------------
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A. On each Repayment Date, the Borrower shall repay or cause the repayment
(as applicable) of the aggregate amount set forth opposite such date in
Schedule 2.
B. If any Repayment Date is not a Business Day, it will be adjusted to
fall on the next succeeding Business Day unless the result of such
adjustment would be to carry that Repayment Date into another calendar
month, in which event such Repayment Date shall be the last preceding
Business Day.
C. Any amount of the Facility repaid under this Agreement may not be
redrawn, and the Commitment shall be reduced by an amount equal to the
amount of such Loan so repaid.
VII. PREPAYMENT
----------
A. VOLUNTARY PREPAYMENTS
---------------------
1. Subject to the order of application set forth in Clause 7.3, the
Borrower may voluntarily prepay the whole or part of any Advance on the
last day of an Interest Period (or on any other Business Day subject to
payment of any breakage costs thereby incurred by any Lender in
accordance with Clause 23) relating thereto provided that the Agent has
received from the Borrower not less than five Business Days' notice of
the proposed date and the amount of the prepayment.
2. If the Loan is to be prepaid voluntarily in part, the aggregate amount
of the partial prepayment must be a minimum of USD 1,000,000 and an
integral multiple of USD 1,000,000.
3. A prepayment made in accordance with the terms of this Clause 7 may be
made without premium or penalty.
B. MANDATORY PREPAYMENTS
---------------------
1. ASSET DISPOSALS
---------------
If ASK or Proxima disposes of an asset other than a disposal permitted
by Clause 12.2.5(a), (b), (c) or (d), then ASK shall cause the net cash
proceeds (i.e., the remainder of cash proceeds arising from such
disposal after deducting (i) required repayment of Financial
Indebtedness secured by such asset and/or Financial Indebtedness
incurred to purchase such asset or business (or any refinancings
thereof), (ii) reasonable costs related to such transaction, and (iii)
reasonable provision for Taxes attributable to such transaction) of
such disposal to be applied as promptly as practicable in prepayment of
the outstandings under this Agreement in accordance with Clause 7.3
below.
2. CHANGE OF CONTROL
-----------------
Immediately upon a Change of Control, (a) the Borrower will prepay all
Advances, accrued interest thereon and all other sums payable under
this Agreement and the other Finance Documents, and (b) the unborrowed
amount of the Facility will be cancelled and the Commitment of each
Lender in respect of the Facility shall be reduced to zero.
3. INSURANCE PROCEEDS
------------------
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<PAGE>
ASK shall procure that any net insurance proceeds received by ASK or
Proxima relating to the destruction of assets owned by ASK or Proxima
be applied as promptly as practicable in prepayment of the outstandings
under this Agreement in accordance with Clause 7.3 below, unless such
insurance proceeds are used by ASK or Proxima to repair, reconstruct,
or refurbish such affected assets, or to purchase new or similar
assets, within twelve months after receipt of such proceeds.
C. PREPAYMENTS; ORDER OF APPLICATION
---------------------------------
Partial prepayments made pursuant to Clauses 7.1 and 7.2 will be
applied by the Borrower to the permanent prepayment of the Loan (to be
applied in order of maturity against the scheduled remaining repayments
thereof).
D. PREPAYMENTS DURING INTEREST PERIODS
-----------------------------------
Prepayments pursuant to Clauses 7.1, 7.2 and 7.3 applied to the
obligations of the Borrower hereunder shall be subject to payment of
any breakage costs incurred by any Finance Party, calculated in
accordance with Clause 23 (Indemnities and Breakage Costs). If
requested by the Borrower, the Agent shall deposit the proceeds of
prepayment in an interest-bearing account established on terms
(including terms as to security) in all respects satisfactory to the
Agent until the end of the Interest Period then current and apply such
funds (together with any interest accrued thereon) toward the required
prepayment on the last day of such Interest Period.
E. GENERAL
-------
1. No prepayment may be made except at the times and in the manner
expressly provided by this Agreement.
2. No amount prepaid in respect of the Facility may be subsequently re-
drawn, and upon any such prepayment, each Lender's Commitment with
respect to the relevant Facility shall be reduced proportionately.
3. All prepayments shall be made together with interest accrued on the
principal amount prepaid up to the date of prepayment and any other
amounts then due and payable under any Finance Document.
4. The Agent shall notify the Lenders promptly upon receipt by it of a
notice of prepayment.
5. All notices of prepayment given by the Borrower are irrevocable.
VIII. INTEREST
--------
A. INTEREST RATE
-------------
1. Each Advance will bear interest during each Interest Period applicable
to that Advance at the rate per annum determined by the Agent to be the
sum of (a) the Margin, and (b) LIBOR for such Interest Period.
2. Interest will be calculated on the basis of actual days elapsed and a
360-day year, and will accrue from day to day from, and including, the
first day of each Interest Period.
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<PAGE>
3. If requested to do so, each Reference Lender shall use its reasonable
endeavours to supply a quotation to the Agent for the purposes of
determining LIBOR for a particular Interest Period. If any Reference
Lender does not do so, the relevant arithmetic mean shall be determined
on the basis of the quotations supplied by the remaining Reference
Lender or Lenders.
B. PAYMENT OF INTEREST
-------------------
The Borrower will pay interest accrued on each Advance to the Agent for
the account of the Lenders in arrears on the last day of each Interest
Period applicable to that Advance, provided that where such Interest
Period is of a duration of longer than three months, accrued interest
in respect of the relevant Advance shall be paid every three months
during such Interest Period and on the last day of such Interest
Period.
C. SELECTION OF INTEREST PERIODS
-----------------------------
1. The duration of each Interest Period will be a period of one, three or
six months (or such other period as may be agreed between the Borrower
and all of the Lenders, and the first Interest Period shall be for a
period of one week if required by the Agent) as notified by the
Borrower to the Agent not later than 10.00 a.m. three Business Days
prior to the commencement of such Interest Period, provided that:-
(1) the first Interest Period in relation to an Advance will commence
on the Drawdown Date relating thereto and each subsequent
Interest Period relating to such Advance (or part thereof) will
commence on the expiry of the preceding Interest Period relating
thereto;
(2) if the Borrower fails to select an Interest Period, then, subject
as provided in this Clause 8.3, the Borrower will be deemed to
have selected an Interest Period of three months;
(3) if all or part of an Advance is required to be repaid on a
Repayment Date to ensure that the Borrower complies with its
obligations under Clause 6 (Repayment of Advances), and if an
Interest Period relative to that Advance would, but for the
operation of this sub-clause (c), extend beyond such Repayment
Date, then if necessary such Advance shall be split into two
separate Advances, one of which shall be in an amount equal to
the amount required to be repaid and having an Interest Period
commencing upon the expiry of the immediately preceding Interest
Period and expiring on the relevant Repayment Date, the other
Advance being for the balance of the amount of the original
Advance; and
(4) the Borrower will not be entitled to select more than one
concurrent Interest Period in relation to each Advance.
2. If any Interest Period would, but for this Clause 8.3.2, end on a day
which is not a Business Day, that Interest Period shall be extended to
the next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the last preceding
Business Day.
3. No Interest Period for any Advance shall expire after the Final
Repayment Date.
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<PAGE>
4. The Agent will notify (a) the Lenders of each Interest Period
applicable to each Advance promptly upon the same being determined, and
(b) the Lenders and the Borrower of the rate of interest applicable to
such Interest Period as soon as it is determined under this Agreement.
D. INTEREST ON UNPAID SUMS
-----------------------
1. If the Borrower fails to pay any sum due from it under this Agreement
or any other Finance Document on its due date (an "UNPAID SUM"), the
Borrower will pay default interest on such unpaid sum from its due date
to the date of actual payment (after as well as before judgement or
decree) at a rate (the "DEFAULT RATE") determined by the Agent to be 2
per cent per annum above:-
(1) if the unpaid sum is principal which has fallen due prior to the
expiry of the relevant Interest Period, the rate applicable to
such principal immediately prior to the date it so fell due (but
only for the period from such due date to the end of the relevant
Interest Period); or
(2) in any other case (including principal falling within (a) above
once the relevant Interest Period has expired), the rate which
would be payable if the unpaid sum was an Advance made for a
period equal to the period of non-payment divided into successive
Interest Periods of such duration as shall be selected by the
Agent (a "DEFAULT INTEREST PERIOD").
2. Default interest will be payable by the Borrower on demand by the Agent
and will be compounded at the end of each Default Interest Period.
3. The Agent will promptly notify the Borrower and the Lenders of each
determination of the Default Rate and each selection of a Default
Interest Period.
IX. PAYMENTS
--------
A. PLACE AND TIME
--------------
1. All payments to be made by any Obligor or any Lender under the Finance
Documents are to be made in full, without any deduction or withholding
for or on account of any Taxes, to the Agent not later than 11.00 a.m.
on the due date therefor to such account as the Agent specifies by
written notice for this purpose, in freely transferable Same Day Funds
in USD.
2. Subject to Clause 9.1.3, each payment received by the Agent pursuant to
Clause 9.1.1 for the account of another person will be made available
by the Agent to that person for value in freely transferable Same Day
Funds in USD at or before 1:00 pm on the same day by transfer to such
bank account as that person has previously notified to the Agent by not
less than three Business Days' prior notice.
3. Where a sum is to be paid under the Finance Documents for the account
of another person, the Agent will not be obliged to make any such sum
available to that person until it has been able to establish to its
satisfaction that it has actually received such sum, but shall be free
to do so and if it does so and it proves to be the case that it has not
actually received the sum it paid out, then such person will on request
ensure that the amount so made available is refunded to the Agent and
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<PAGE>
such person shall be liable (1) to pay to the Agent interest on the
amount in question at the rate determined by the Agent to be equal to
the cost to the Agent of funding such amount for the period from
payment out by the Agent until refund to the Agent thereof and (2) to
indemnify the Agent against any additional cost or loss it may have
suffered or incurred by reason of it having paid out such sum prior to
it having received the same.
B. NO DEDUCTIONS
-------------
Subject to Clause 9.3.1, all payments made by any Obligor under the
Finance Documents (whether of principal, interest, acceptance
commission, fees or otherwise) shall be paid in full without set-off or
counterclaim and not subject to any condition, PROVIDED HOWEVER, that
no such payment shall constitute a waiver of any rights such Obligor
may have.
C. TAXES
-----
1. All payments by the Obligors under the Finance Documents are to be made
in full without any deduction or withholding for or on account of any
Taxes unless the deduction or withholding is required by law in which
event the relevant Obligor will:-
(1) ensure that the deduction or withholding does not exceed the
minimum amount legally required;
(2) pay to the relevant Taxation or other authorities within the
period for payment permitted by the applicable law such amount as
is required to be paid in consequence of the deduction
(including, but without prejudice to the generality of the
foregoing, the full amount of any deduction from any additional
amount paid pursuant to Clause 9.3.2);
(3) deliver to the relevant Finance Parties within 30 days from the
date on which the payment of such withholding tax or deduction
was due, the documents evidencing the payment of such
aforementioned withholding tax or deductions; and
(4) indemnify each of the Finance Parties against any losses or costs
incurred by it by reason of (i) any failure on the part of such
Obligor to make any deduction or withholding or (ii) any such
additional amount not being paid on the due date for payment
thereof.
2. Subject to Clause 9.3.3, if any deduction or withholding for or on
account of Taxes or any other deduction from any payments made or to be
made by any Obligor, or by the Agent to any other Finance Party, under
any of the Finance Documents is required by law, then the relevant
Obligor shall pay to the Finance Party concerned an additional amount
being the amount required to procure that the aggregate net amount
received by that Finance Party will equal the full amount which would
have been received by it had no such deduction or withholding or other
deduction been made.
3. No additional amount will be payable to a Lender under Clause 9.3.2 in
respect of Taxes to the extent that such additional amount becomes
payable as a result only of a change in the Lending Office of the
relevant Lender, unless (A) such change is requested by the Borrower,
or (B) under the relevant Tax laws, regulations, treaties or rules in
effect at the time of the change in Lending Office, such additional
amount would not have been payable.
xxii
<PAGE>
4. If the Borrower is obliged to pay an amount under Clause 9.3.1, the
Borrower may prepay in whole (but not in part) and without penalty
(subject to Clause 23) all Advances made available to it by the
affected Lender, upon the Borrower giving not less than three Business
Days' prior written notice to the Agent and the affected Lender,
provided that such notice is given within 30 days of the Borrower
becoming aware that it would be obliged to pay such amount. The
liability of such Lender to make any further Advances or other
extensions of credit available to the Borrower (and such Lender's
Commitments) shall automatically be cancelled on the giving of such
notice.
D. EVIDENCE OF EXEMPTION FROM US WITHHOLDING TAX
---------------------------------------------
1. Each Lender that is organised under the laws of any jurisdiction other
than the US or any state or other political subdivision thereof (for
purposes of this Clause 9.4.1, a "NON-US LENDER") shall deliver to the
Agent for transmission to the Borrower, on or prior to the Drawdown
Date (in the case of each Lender listed on the signature pages hereof)
or on or prior to the date of the Transfer Certificate pursuant to
which it becomes a Lender (in the case of each other Lender), and at
such other times as may be necessary in the determination of the
Borrower or the Agent (each in the reasonable exercise of its
discretion), (1) two original copies of Internal Revenue Service Form
1001 or 4224 (or any successor forms), properly completed and duly
executed by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of US federal income tax with
respect to any payments to such Lender of principal, interest, fees or
other amounts payable under any of the Finance Documents or (2) if such
Lender is not a "bank" or other person described in Section 881(c)(3)
of the Internal Revenue Code and cannot deliver either Internal Revenue
Service Form 1001 or 4224 pursuant to clause (1) above, a Certificate
re Non-Bank Status together with two original copies of Internal
Revenue Service Form W-8 (or any successor form), properly completed
and duly executed by such Lender, together with any other certificate
or statement of exemption required under the Internal Revenue Code or
the regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of US federal income tax with
respect to any payments to such Lender of interest payable under any of
the Finance Documents.
2. Each Lender required to deliver any forms, certificates or other
evidence with respect to US federal income tax withholding matters
pursuant to Clause 9.4.1 hereby agrees, from time to time after the
initial delivery by such Lender of such forms, certificates or other
evidence, whenever a lapse in time or change in circumstances renders
such forms, certificates or other evidence obsolete or inaccurate in
any material respect, that such Lender shall promptly (1) deliver to
the Agent for transmission to the Borrower two new original copies of
Internal Revenue Service Form 1001 or 4224, or a Certificate re Non-
Bank Status and two original copies of Internal Revenue Service Form W-
8, as the case may be, properly completed and duly executed by such
Lender, together with any other certificate or statement of exemption
required in order to confirm or establish that such Lender is not
subject to deduction or withholding of US federal income tax with
respect to payments to such Lender under the Finance Documents or
(2) notify the Agent and the Borrower of its inability to deliver any
such forms, certificates or other evidence.
3. The Borrower shall not be required to pay any additional amount to any
Non-US Lender under Clause 9.3 if such Lender shall have failed to
satisfy the requirements of Clause 9.4.1 or Clause 9.4.2; PROVIDED that
if such Lender shall have satisfied the requirements of Clause 9.4.1 on
the Drawdown Date (in the case of each Lender listed on the signature
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<PAGE>
pages hereof) or on the date of the Transfer Certificate pursuant to
which it became a Lender (in the case of each other Lender), nothing in
this Clause 9.4.3 shall relieve the Borrower of its obligation to pay
any additional amounts pursuant to Clause 9.3 in the event that, as a
result of any change in any applicable law, treaty or governmental
rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer
properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender is not subject
to withholding as described in Clause 9.4.1.
E. PAYMENTS ON BUSINESS DAYS
-------------------------
Subject to Clauses 6.2 and 8.3.2, if any sum would otherwise become due
for payment pursuant to any of the Finance Documents on a day which is
not a Business Day, such sum shall become due on the next succeeding
Business Day unless that day falls in the next calendar month, in which
case the sum shall become due on the preceding Business Day and all
sums payable under any of the Finance Documents calculated by reference
to any period of time shall be recalculated on the basis of such
extension in time (or reduction thereof).
F. ACCOUNTS
--------
1. Each Lender shall maintain an account or accounts recording the amounts
from time to time lent by, owing to and paid to such Lender pursuant to
the Finance Documents, which shall, as between such Lender and the
relevant Obligor, be PRIMA FACIE evidence of such amounts save manifest
error.
2. The Agent will maintain a memorandum account showing the principal
amount of all Advances for the time being outstanding hereunder and all
payments with respect thereto made by the Obligors from time to time
pursuant to this Agreement.
G. CURRENCY
--------
A repayment or prepayment of an Advance or any part of an Advance is
payable in USD only. Interest and fees in respect of Advances are
payable in USD, and fees in respect of Commitments hereunder are
payable in USD. Amounts payable in respect of costs, expenses and
Taxes and the like are payable in the currency in which they are
incurred. Any other amount payable under this Agreement is, except as
otherwise provided in this Agreement, payable in USD.
X. FEES, EXPENSES AND STAMP DUTIES
-------------------------------
A. FEES
----
1. The Borrower will pay to the Agent for its own account or as otherwise
specified in the Fees Letter, such arrangement, agency and other fees
at the times and otherwise in accordance with the terms of the Fees
Letter.
2. All fees payable under the Finance Documents are exclusive of any VAT
or other similar tax chargeable upon or in connection with such fees.
If any VAT or other similar Tax is or becomes so chargeable, such Tax
will be paid by the Borrower at the same time as the relevant fee
itself is paid.
xxiv
<PAGE>
3. The Borrower authorises the Agent to discharge the fees due upon
Initial Drawdown under Clauses 10.1.1 from the proceeds of Advances
made upon Initial Drawdown under the Facility.
B. EXPENSES
--------
1. The Borrower will (subject to the limitations set forth in the Fees
Letter) on demand pay and reimburse to the Agent, on the basis of a
full indemnity, all reasonable costs and expenses (including reasonable
legal fees, due diligence expenses, recordation fees and other out-of-
pocket expenses and any VAT or other similar Tax thereon) incurred by
the Agent in connection with the negotiation, preparation, recordation,
execution and completion of each of the Finance Documents, and all
documents, matters and things referred to in the Finance Documents or
incidental to any of the Finance Documents.
2. The Borrower will on demand pay and reimburse to the Agent, on the
basis of a full indemnity, all reasonable costs and expenses (including
reasonable legal fees, recordation fees and other out-of-pocket
expenses and any VAT or other similar Tax thereon) incurred by the
Agent in connection with:-
(1) any variation, recordation, amendment, supplement, restatement,
waiver, consent or suspension of rights (or any proposal for any
of the same) relating to any of the Finance Documents (and
documents, matters or things referred to therein); and
(2) the investigation of any Event of Default or Potential Event of
Default, provided that the Agent had reasonable grounds to
believe that such Event of Default or Potential Event of Default
had occurred.
3. The Borrower will on demand pay and reimburse to each Finance Party, on
the basis of a full indemnity, all costs and expenses (including
reasonable legal fees, recordation fees and other out-of-pocket
expenses and any VAT or other similar Tax thereon) incurred by such
Finance Party in connection with the preservation or attempted
preservation, or from and after the occurrence and during the
continuation of an Event of Default, the enforcement or attempted
enforcement, of any Finance Document or of such Finance Party's rights
under any of the Finance Documents (and documents referred to therein).
C. STAMP DUTIES, ETC.
------------------
The Borrower will:-
(1) pay, and on demand indemnify each Finance Party from and against
any liability for, any stamp duty, documentary, registration and
other duties and Taxes (if any) which are or may hereafter become
payable in connection with the entry into, performance,
recordation, execution or enforcement of any of the Finance
Documents or to which any of the Finance Documents may otherwise
be or become subject or give rise; and
(2) on demand indemnify each of the Finance Parties from and against
any losses or liabilities which they may incur as a result of any
delay or omission by the Borrower to pay any such duties or
Taxes.
XI. REPRESENTATIONS AND WARRANTIES
------------------------------
xxv
<PAGE>
A. RELIANCE AND EFFECTIVE TIME
---------------------------
1. Each Obligor acknowledges that each Finance Party has or will have
entered into this Agreement and the other Finance Documents to which it
is a party and participated in the Advances in full reliance on
representations in the terms set out in the following provisions of
this Clause 11. Subject to Clause 11.1.2, each Obligor represents and
warrants to each Finance Party in the terms set forth in Clauses 11.2
to 11.21 inclusive with reference to itself and, where appropriate, its
subsidiaries.
2. The representations and warranties in this Clause 11 will be deemed
initially made on the date of this Agreement and repeated on the date
of delivery of each Drawdown Request, on each Drawdown Date by
reference to the facts and circumstances existing on each such day,
except that:
(1) each reference to financial statements in Clause 11 shall be
construed as a reference to the then latest available financial
statements of the relevant Obligor; and
(2) those representations and warranties which are expressly stated
to relate to an earlier date or time shall be deemed repeated
only by reference to the facts and circumstances existing at that
earlier date or time.
(3) references to ASK and its subsidiaries and the ASK Group shall
not include any reference to Proxima until such time as Proxima
shall have executed and delivered a Deed of Accession.
B. INCORPORATION
-------------
It is duly incorporated or organised and validly existing with limited
liability under the laws of the country or other jurisdiction of its
incorporation or organisation, and has the power to own its assets and
carry on its business as it is being conducted or is proposed to be
conducted.
C. POWER AND AUTHORITY
-------------------
It has all necessary power and authority to enter into and perform all
its obligations under the Finance Documents to which it is expressed to
be a party, has taken all necessary action to authorise the execution
(if appropriate, under seal or as a deed), delivery and performance by
it of each Finance Document and other document referred to therein to
which it is a party, and (in the case of the Borrower only) has taken
all necessary action to authorise the borrowings by it under this
Agreement.
D. NO CONTRAVENTION
----------------
1. The execution, delivery and performance of the Finance Documents to
which it is a party will not violate or cause a breach or default under
its organisational documents, any provision of any existing law,
regulation, judgement, order, licence or permit applicable to it or its
assets, or of any material agreement, instrument or other undertaking
to which it is party or which is binding upon it or its assets.
2. Borrowings by the Borrower under this Agreement up to and including the
maximum amount available hereunder will not cause any limit on
borrowings (whether imposed by statue, regulation, agreement or
xxvi
<PAGE>
otherwise), or on the powers of its board of directors, to be exceeded.
E. AUTHORISATIONS AND CONSENTS
---------------------------
All authorisations and consents required to be obtained by it in
connection with the entry into, validity, performance and
enforceability of each of the Finance Documents to which it is a party
have been unconditionally obtained and are in full force and effect.
F. ENFORCEABILITY; RANKING
-----------------------
Its obligations under the Finance Documents to which it is a party
constitute its legal, valid, binding and enforceable obligations and
are in full force and effect, except (in the case of enforceability) as
limited by the Reservations, and such obligations rank and will
continue to rank at all times at least PARI PASSU with all its
unsecured and unsubordinated obligations (subject to the preference of
certain obligations in the liquidation, bankruptcy or other analogous
proceedings in respect of it by mandatory operation of applicable law).
G. LITIGATION
----------
It is not involved in any pending or, to the best of its knowledge,
threatened litigation, arbitration or administrative proceeding, nor is
there subsisting any unsatisfied judgement or award given against it by
any court, board of arbitration or other body, which is reasonably
likely to result in liability to any Obligor which has or is reasonably
likely to have a Material Adverse Effect.
H. ACCOUNTS
--------
The consolidated or unconsolidated financial statements of each Obligor
most recently delivered to the Agent pursuant to Clause 4.1.1 or
12.3.4, as the case may be, including any notes thereto (i) have been
prepared in accordance with the respective Approved Accounting
Principles, (ii) give a true and fair view of the consolidated or
unconsolidated (as the case may be) financial condition of the relevant
persons as at the respective dates to which they were drawn up, and
(iii) set forth all material actual or contingent liabilities then
existing required to be set forth therein in accordance with the
Approved Accounting Principles (subject in the case of any unaudited
interim financial statements, to changes resulting from normal year-end
audit and other adjustments).
I. NO MATERIAL ADVERSE EFFECT
--------------------------
No event or matter having or likely to have a Material Adverse Effect
has occurred since 31 December, 1996 in relation to the ASK Group.
J. SECURITY INTERESTS
------------------
No Security Interest exists on the date of this Agreement on the
undertaking, property or assets, present or future, of any member of
the ASK Group other than Permitted Security Interests and other than
the negative pledge(s) granted under this Agreement.
K. NO DEFAULTS
-----------
Unless notified to the Agent under Clause 12.3.1, no Event of Default
xxvii
<PAGE>
or Potential Event of Default has occurred and is continuing.
L. COMPLIANCE WITH LAWS
--------------------
It is in compliance with all laws, Environmental Laws, regulations,
statutes, judgements, orders, licences, permits or consents applicable
to it or its assets, except any non-compliance which does not have and
is not reasonably likely to have a Material Adverse Effect.
M. TAX LIABILITIES
---------------
No claims are being or, to the best of its knowledge, are reasonably
likely to be asserted against it with respect to Taxes which would be
reasonably likely to have a Material Adverse Effect.
N. SOLVENCY
--------
Immediately prior to each Drawdown, it will be solvent within the
definition of any law applicable to it which requires as a condition to
the validity (and/or non-avoidability) of financial obligations
undertaking by it that it be solvent.
O. GROUP STRUCTURE
---------------
The structure of the ASK Group as at the Initial Drawdown Date is set
out in Schedule 4.
P. MARGIN REGULATIONS
------------------
Neither it, nor any of its subsidiaries, is engaged principally, or as
one of its important activities, in the business of extending credit
for the purpose of purchasing or carrying any Margin Stock, and after
giving effect to the Merger, not more than 25% of the value of assets
of ASK or the ASK Group on a consolidated basis will be Margin Stock.
Q. ENVIRONMENTAL WARRANTIES
------------------------
1. It has received no written notice of a breach of any Environmental Law
or any allegation, claim, action or order for the breach of any
Environmental Law, in relation to any site now or previously owned,
operated or occupied by it or any of its subsidiaries which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect.
R. LABOUR LAW AND EMPLOYEE BENEFIT PLANS
-------------------------------------
It has complied in all material respects with all applicable labour and
social security laws and instituted all employee benefit plans legally
required; these plans are in full force and effect and each such plan
is fully funded to the extent required by applicable law to meet its
expected obligations as they come due except for such failure to fund,
the liability as to which is not reasonably likely to have a Material
Adverse Effect.
S. US PENSION PLANS
----------------
(a) Each US Obligor each of their respective ERISA Affiliates are in
compliance with all applicable provisions and requirements of
ERISA and the regulations and published interpretations
xxviii
<PAGE>
thereunder with respect to each Pension Plan, and have performed
all their obligations under each Pension Plan.
(b) As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section
4001(a)(18) of ERISA), individually or in the aggregate for all
Pension Plans (excluding for purposes of such computation any
Pension Plans with respect to which assets exceed benefit
liabilities), does not exceed USD 100,000.
T. GOVERNMENTAL REGULATION
-----------------------
It is not subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Interstate Commerce Act
or the Investment Company Act of 1940 or under any other federal or
state statute or regulation which may limit its ability to incur
Financial Indebtedness or which may otherwise render all or any portion
of the obligations under the Finance Documents unenforceable.
U. MERGER AGREEMENT
----------------
The Merger Agreement has not been amended or otherwise modified since
the execution thereof on 8 March 1998.
XII. UNDERTAKINGS
------------
A. DURATION
--------
Each Obligor undertakes to each of the Finance Parties in the terms of
the provisions of Clauses 12.2 to 12.4 (inclusive), all such
undertakings to continue until the liabilities and obligations under
each of the Finance Documents have been finally discharged and no
Finance Party has any obligation to lend hereunder, unless in any case
the Agent (acting on the instructions of the Requisite Lenders) agrees
otherwise. All undertakings set forth in this Clause 12 are cumulative
such that, if more than one set of such undertakings are given by an
Obligor, such Obligor shall be bound by the aggregate of all
restrictions set forth in the undertakings given by it.
B. GENERAL UNDERTAKINGS
--------------------
1. USE OF PROCEEDS
---------------
It will procure that the proceeds of Advances be used only for the
purposes specified in Clause 2.
2. AUTHORISATIONS AND CONSENTS
---------------------------
It will, and will procure that each of its subsidiaries will, obtain
and promptly renew from time to time and maintain in full force and
effect all such authorisations and consents, and promptly make and
renew from time to time all such filings and registrations, as may be
required under any applicable law or regulation (i) to enable it to
perform its obligations under each of the Finance Documents and (ii)
for the validity and enforceability thereof, subject to the
Reservations.
xxix
<PAGE>
3. CHANGE OF BUSINESS
------------------
It will not, and will procure that none of its subsidiaries will,
engage in any material business other than the Business or any business
reasonably incidental thereto.
4. MAINTENANCE OF STATUS AND AUTHORISATIONS
----------------------------------------
It will, and will procure that each of its subsidiaries will:-
(1) do all such things as are necessary to maintain their respective
legal existences, except that any subsidiary of an Obligor may
consolidate or merge with such Obligor and any two or more
subsidiaries of an Obligor may consolidate or merge with one
another, in each case in accordance with Clause 12.2.6;
(2) ensure that it and each of its subsidiaries has the right and is
duly qualified to conduct their respective businesses as
conducted in all applicable jurisdictions, and obtain and
maintain all licences, consents, authorisations, franchises and
other rights necessary for the preservation and operation of such
businesses in all material respects, except to the extent that
the absence of any such right or qualification, or the non-
existence or non-maintenance of such licences, consents,
authorisations, franchises, property or rights would not be
reasonably likely to have a Material Adverse Effect; and
(3) comply in all material respects with all laws, regulations,
judgements, decrees, orders, licences, permits or consents
binding upon it, except where non-compliance would not be
reasonably likely to have a Material Adverse Effect.
5. DISPOSALS
---------
It will not, and will procure that its subsidiaries will not (whether
by a single transaction or a number of related or unrelated
transactions and whether at the same time or over a period of time)
sell, transfer or otherwise dispose of any of its assets (including
shares of the capital stock of any other person, or if such person is
not an incorporated entity, other ownership interests therein, and the
coverage of this undertaking is to be deemed to include any transaction
the effect of which would be to reduce the percentage of any class of
shares or interests in any person held directly or indirectly by such
Obligor) or all or any part of its undertakings, assets or revenues or
any interest therein, other than:-
(1) disposals of assets on an arm's length basis in the ordinary
course of trading;
(2) payment of cash in respect of a transaction not otherwise
prohibited by this Agreement, and exchange of cash equivalents
for cash;
(3) disposals of assets which are no longer required or desirable for
the purposes of its Business at a price not significantly less
than the market value of those assets less, if the assets would
otherwise be liquidated, the costs of the liquidation;
(4) the exchange or replacement within twelve months of assets for or
with other assets required for its trading activities of similar
or greater value than the assets exchanged or replaced, on arm's
length commercial terms; or
(5) disposals, other than disposals of shares or ownership interests
in Proxima, not falling within any other sub-clause of this
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<PAGE>
Clause 12.2.5 whose consideration does not exceed USD 10,000,000
(or its equivalent) when aggregated with all other such disposals
made by the Obligors and each of their respective subsidiaries
following the date of this Agreement.
6. MERGER, CONSOLIDATION, ETC.
---------------------------
It will not, and will procure that its subsidiaries do not, merge or
consolidate with any other person (whether by winding-up, dissolution
or other means) except:-
(a) that two or more Obligors may consolidate or merge with one
another, provided that the Agent shall have received legal
opinions in respect of the relevant merger or consolidation in
form and substance reasonably satisfactory to the Agent, which
legal opinions shall, in any event, confirm that none of the
material rights of any Finance Party or the material obligations
and liabilities to any Finance Party of any Obligor will, after
such merger or consolidation, cease to be in full force and
effect and that the person surviving or resulting from such
merger or consolidation is bound under the Finance Documents
after giving effect to such merger or consolidation to the same
extent as the other person or persons party to such transaction
were bound immediately prior thereto; or
(b) where such a merger or consolidation is approved by the Agent.
7. NEGATIVE PLEDGE
---------------
It will not, and will procure that its subsidiaries will not, create or
have outstanding any Security Interest on or over its respective
assets, other than Permitted Security Interests.
8. BLOCKAGE OF PAYMENTS, ETC.
--------------------------
It is not, and will procure that none of its subsidiaries is, a party
to any contractual or similar arrangement pursuant to which any such
subsidiary is prohibited from making any loan, payment of dividends,
distributions of income or other amounts, or transferring any
properties or assets, to it, or any condition or requirement is imposed
on any such payment or transfer except, in the case of prohibitions on
transfers of properties or assets, customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of
it or one of its subsidiaries.
9. ENVIRONMENTAL OBLIGATIONS
-------------------------
It will, and will procure that each of subsidiaries will comply with
the terms of all Environmental Laws applicable to it or any of its
subsidiaries, except for such non- compliances which individually or in
the aggregate could not reasonably be expected to have a Material
Adverse Effect.
10. ADDITIONAL GUARANTORS
---------------------
It will procure that each of its subsidiaries, which either after the
date of this Agreement becomes a Material Subsidiary (an "EXISTING
MATERIAL SUBSIDIARY") or is a person to be acquired by any Obligor
which would be a Material Subsidiary after giving effect to such
acquisition (an "ACQUIRED MATERIAL SUBSIDIARY"), executes and delivers,
except to the extent that (i) such execution and delivery is prohibited
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by law or (ii) it would, in the reasonable opinion of the Requisite
Lenders, create an unreasonable risk of liability for the directors of
such Material Subsidiary after taking into account the costs of the
contingent liability to the Material Subsidiary attributable to the
guaranteeing of obligations under the Finance Documents versus the
benefits to be derived therefrom by such Material Subsidiary, in the
case of an Existing Material Subsidiary, within 90 days of availability
to the Borrower of information demonstrating that such subsidiary has
become a Material Subsidiary and, in the case of an Acquired Material
Subsidiary, substantially contemporaneously with the consummation of
its acquisition (and in any event within 30 days thereafter), to the
Agent:-
(a) a Deed of Accession signed by such Material Subsidiary;
(b) a copy, certified as of the date of the Deed of Accession as
true and complete by a duly authorised representative of
such Material Subsidiary of the (a) constitutional documents
of such Material Subsidiary, (b) board resolutions of such
Material Subsidiary approving all matters contemplated by
each of the Finance Documents (including specimen signatures
of the signatories authorised to sign the relevant Finance
Documents), and (c) if applicable, any other resolutions,
powers, approvals and consents, necessary or appropriate for
the entry into, performance and enforceability of the
Finance Documents to which such Material Subsidiary is a
party;
(c) a legal opinion properly addressed to the Agent and Lenders
from reputable counsel acceptable to the Agent in the
jurisdiction in which such Material Subsidiary is organised
or incorporated; and
(d) such other documents as the Agent may reasonably request.
11. DOCUMENTS TO BE DELIVERED UPON CONSUMMATION OF THE MERGER
---------------------------------------------------------
ASK will procure that promptly upon consummation of the Merger, the
following documents shall be delivered to the Agent:
(1) all documents required to be delivered pursuant to Clause 12.2.10
above in relation to Proxima; and
(2) evidence that the filing of the Merger Certificate (as defined in
Section 2.02 of the Merger Agreement) and that the Effective Time
(as defined in Section 2.02 of the Merger Agreement) have
occurred.
C. INFORMATION AND ACCOUNTING UNDERTAKINGS
---------------------------------------
1. EVENTS OF DEFAULT
-----------------
It will notify the Agent of the occurrence of any Event of Default or
Potential Event of Default immediately upon becoming aware of such
occurrence and will from time to time on request deliver to the Agent a
certificate confirming that no Event of Default or Potential Event of
Default has occurred or setting out details of any Event of Default or
Potential Event of Default and the action taken or proposed to be taken
to remedy it.
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2. BOOKS OF ACCOUNT
----------------
It will, and will procure that each of its subsidiaries will, keep
proper books of account and will prepare management accounts in the
usual form and will permit the Agent or any authorised representative
of the Agent upon reasonable notice to visit it or its subsidiaries and
inspect the same during normal business hours at the place where they
are maintained and to interview such officers and employees of it or
its subsidiaries as the Agent may reasonably require, provided that
such visits and interviews may not occur more frequently than once a
year unless an Event of Default has occurred.
3. APPOINTMENT OF AUDITORS
-----------------------
It will not at any time appoint or continue to employ any auditors
other than the Auditors or other auditors of international repute
approved by the Agent, PROVIDED that nothing in this Clause 12.3.3
shall limit or otherwise affect the appointment of statutory auditors.
4. FINANCIAL STATEMENTS
--------------------
It will deliver, or cause to be delivered, to the Agent in form and
substance acceptable to the Agent for distribution to the Lenders
sufficient copies for each of the Lenders of the following:-
(1) as soon as available and in any event not later than 90 days
after the end of the relevant Accounting Reference Period, the
consolidated financial statements of ASK and its subsidiaries
audited by the Auditors as at the end of, and for, the relevant
Accounting Reference Period; and
(2) as soon as available and in any event not later than 45 days
after the end of the relevant Accounting Quarter, the unaudited
consolidated financial statements of ASK and its subsidiaries and
the relevant consolidating adjustments as at the end of, and for,
the relevant Accounting Quarter;
PROVIDED, that the financial statements provided pursuant to sub-
Clauses 12.3.4(a) and (b) shall include, without limitation, in respect
of each Accounting Quarter or Accounting Reference Period, as the case
may be, a statement of consolidated profit and loss, a consolidated
balance sheet, a consolidated cash flow statement, together with a
comparison of all such information with the information, if any such
consolidated information is available, for the corresponding period in
the preceding financial year (or part thereof following the date
hereof).
5. FINANCIAL COVENANT AND OTHER COMPLIANCE CERTIFICATES
----------------------------------------------------
Each of the financial statements delivered under sub-Clauses 12.3.4(a)
and (b) shall be accompanied by a certificate signed by the chief
financial officer of ASK certifying whether or not the ASK Group is in
compliance with each of the covenants contained in Clause 12.4 (such
certificate to contain detailed calculations reasonably acceptable to
the Agent demonstrating such determination), confirming that at the
date of such financial statement, no Event of Default or Potential
Event of Default has occurred, or if one has occurred, a description
thereof and the action taken or proposed to be taken to remedy it and,
in the case of the annual financial statements, (i) listing each
Material Subsidiary as at the date of such annual financial statements,
and (ii) accompanied by a certificate from the Auditors (in such form
and with such content as the Agent may reasonably require)
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demonstrating whether or not the ASK Group is in compliance with the
covenants contained in Clause 12.4.
6. ACCOUNTING REFERENCE PERIOD; ACCOUNTING QUARTER
-----------------------------------------------
No alteration may be made to its Accounting Reference Period or
Accounting Quarters without the prior written consent of the Agent
(which consent shall not be unreasonably withheld). The Agent may
require such changes in the financial covenants contained in this
Agreement as will fairly reflect any such change.
7. OTHER INFORMATION
-----------------
Each Obligor will promptly deliver to the Agent for distribution to the
Lenders such information as the Agent (or any other Lender through the
Agent) may from time to time reasonably request.
8. OTHER INVESTIGATIONS
--------------------
It will, and will procure that its subsidiaries will, at any time
during the occurrence of a Potential Event of Default or an Event of
Default, permit the Agent and such person or persons as the Agent shall
nominate at all reasonable times during normal business hours and on
not less than 24 hours' written notice to enter into and upon the
principal premises from which the relevant Obligor's or subsidiary's
business is being conducted to view the state and condition of such
premises.
D. FINANCIAL COVENANTS
-------------------
1. RATIOS TO BE MAINTAINED
-----------------------
(1) MAXIMUM LEVERAGE RATIO
----------------------
The ASK Group shall maintain, as at the end of each semi-annual
period commencing 31 December 1998, a maximum Leverage Ratio of
2.4:1.
(2) MINIMUM INTEREST COVERAGE RATIO
-------------------------------
The ASK Group shall maintain, for each semi-annual period
commencing 31 December 1998, a minimum Interest Coverage Ratio of
3.5:1.
(3) CALCULATION
-----------
The covenants contained in this Clause 12.4.1 will be tested on a
rolling aggregate basis (X) for the immediately preceding four
Accounting Quarters ending on the last day of the relevant
Accounting Quarter, or (Y) for the Accounting Quarters commencing
after the Initial Drawdown Date if fewer than four full
Accounting Quarters have occurred since the Initial Drawdown Date
(except that Total Debt will be tested as of the last day of the
Accounting Quarter most recently ended), in each case by
reference to the quarterly accounts delivered to the Agent
pursuant to sub- Clause 12.3.4(b) (in respect of the first three
Accounting Quarters of each Accounting Reference Period), for the
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relevant period, and by reference to the audited accounts
delivered to the Agent pursuant to sub-Clause 12.3.4(a) (in
respect of the fourth Accounting Quarter of each Accounting
Reference Period); PROVIDED that if when the audited accounts
become available they either demonstrate that the figures in any
relevant quarterly management accounts utilised for any such
calculation cannot have been substantially accurate or indicate a
material discrepancy which is prejudicial to the Finance Parties
between the aggregate figures for the management accounts for the
four relevant Accounting Quarters and the aggregate audited
figures, then the Agent shall require such adjustment to the
calculations made or to be made as it reasonably considers
appropriate to rectify such inaccuracy or discrepancy, and
compliance with the covenants in this Clause 12.4.1 will be
determined by reference to such adjusted figures.
XIII. EVENTS OF DEFAULT
-----------------
A. LIST OF EVENTS
--------------
Each of the events set out in this Clause 13.1 constitutes an Event of
Default whether or not the occurrence of the event concerned is outside
the control of the Obligors or any other person.
1. PAYMENT DEFAULT
---------------
Any Obligor fails to pay on the due date any amount payable by it under
any of the Finance Documents at the place at which, and in the currency
in which, it is expressed to be payable but, without prejudice to
Clause 23, such non-payment shall not constitute an Event of Default if
it is a non-payment in respect of interest or fees and the relevant
payment is received by the Agent within three Business Days of the due
date for payment thereof.
2. BREACH OF OTHER OBLIGATIONS
---------------------------
(1) a breach of any provision of Clause 12.4 (Financial Covenants)
occurs; or
(2) any Obligor fails to comply with any of its obligations in Clause
12 (other than Clause 12.4) or otherwise under any of the Finance
Documents and, in any such case, if such failure is, in the
reasonable opinion of the Agent, capable of remedy, it is not
remedied within twenty Business Days after such Obligor receives
notice from the Agent of such failure.
3. MISREPRESENTATION
-----------------
Any representation, warranty or statement which is made by any Obligor
in any of the Finance Documents or is contained in any certificate,
statement or notice provided under or pursuant to any of the Finance
Documents proves to be incorrect in any material respect when made (or
deemed to be repeated) unless the circumstances giving rise to that
default are, in the reasonable opinion of the Agent, remediable, and
are remedied within twenty Business Days after such Obligor receives
notice thereof from the Agent.
4. INVALIDITY, UNLAWFULNESS, ETC.
------------------------------
(1) Any material provision of any Finance Document is, or becomes,
materially invalid or unenforceable for any reason (except by
reason of the unavailability of specific performance or other
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<PAGE>
equitable remedy) or shall be repudiated or the validity or
enforceability of any provision of any Finance Document shall at
any time be contested by any Obligor party thereto, or any
Obligor shall deny the existence of any liability or obligation
on its part thereunder; or
(2) At any time it is or becomes unlawful under the laws of any
applicable jurisdiction for any Obligor (other than a Non-
Material Subsidiary) to perform any of its material obligations
under any Finance Document.
5. WINDING-UP, INSOLVENCY, RECEIVERSHIP, ADMINISTRATION ETC.
---------------------------------------------------------
6. Any steps are taken or legal proceedings are started against any
Obligor for winding-up, dissolution, re-organisation, insolvency or
bankruptcy, the enforcement of any Security Interest over its assets or
for the appointment of a receiver, liquidator, administrative receiver,
administrator, trustee, judicial factor, manager for credits, or
similar officer of such Obligor or of any or all of such Obligor's
assets or any other procedure under which such Obligor obtains
protection from any of such Obligor's creditors, or any analogous
proceedings in any relevant jurisdiction, and in the case of any
involuntary proceeding relating to a US Obligor, such proceeding is not
dismissed or effectively stayed within 60 days after the commencement
of such proceeding.
7. CESSATION OF BUSINESS
---------------------
Except as otherwise expressly permitted hereunder, any Obligor ceases,
or threatens to cease, to carry on all or a substantial part of its
business.
8. SECURITY INTERESTS
------------------
Any Security Interest securing obligations or liabilities in excess of
USD 2,000,000 (or its equivalent), affecting the business, undertaking
or any of the assets of any Obligor becomes enforceable (other than by
the exercise of a lien arising solely by operation of law in the
ordinary course of trading where the indebtedness in respect of which
that lien is being exercised (i) has been due for less than twenty days
or (ii) is being contested in good faith by appropriate means) whether
or not steps are taken to enforce the same.
9. CROSS DEFAULT
-------------
Any other Financial Indebtedness in excess of USD 2,000,000 (or its
equivalent) of any Obligor:-
(a) is not paid when due or within any applicable grace period
in any agreement relating to that Financial Indebtedness; or
(b) becomes due and payable (or presently capable of being
declared due and payable) before its normal maturity or is
placed upon demand before it is due (or any commitment for
any such indebtedness is cancelled or suspended) by reason
of a default or event of default, however described, or by
reason of any other contractual provision requiring
prepayment.
10. JUDGEMENT DEFAULT
-----------------
Any final judgement, decree or order (not covered by insurance) for the
payment of money in excess of USD 2,000,000 (or its equivalent) against
xxxvi
<PAGE>
all such persons (treating any deductibles, self-insurance or retention
as not so covered) shall be rendered against any Obligor and shall not
be discharged, and there shall be any period of 30 consecutive days
following entry of such final judgement, decree or order during which a
stay of enforcement of such final judgement, decree or order, by reason
of a pending appeal or otherwise, shall not be in effect.
B. CANCELLATION AND REPAYMENT
--------------------------
At any time after the occurrence and during the continuance of an Event
of Default the Agent may and, if so instructed by the Requisite
Lenders, will by notice to the Borrower:-
(1) cancel any unborrowed amount of the Facility (whereupon the
commitment of each Lender in respect to the Facility shall be
reduced to zero); and/or
(2) declare all Advances, accrued interest thereon and any other sum
accrued under this Agreement and any of the other Finance
Documents to be immediately due and payable, whereupon they shall
become so due and payable.
XIV. GUARANTEE
---------
A. GUARANTEE
---------
Subject to any limitations specified for the relevant Guarantor in its
Deed of Accession and subject to Clause 14.2 below, each Guarantor
irrevocably and unconditionally:-
(1) as principal obligor, waiving any benefit under applicable law,
guarantees to each Finance Party, prompt performance by each
Obligor (any reference in this Guarantee to one or more Obligors
shall not be construed to include a reference by a Guarantor to
itself in its capacity as a Guarantor), of all its respective
obligations under the Finance Documents (the "GUARANTEE
OBLIGATION"); and
(2) undertakes with each Finance Party that whenever an Obligor does
not pay any amount when due under or in connection with any
Finance Document, such Guarantor shall forthwith on demand by the
Agent pay that amount (the "PAYMENT OBLIGATION") as if such
Guarantor instead of the relevant Obligor were expressed to be
the principal obligor.
B. LIMITATION ON GUARANTEE OBLIGATIONS
-----------------------------------
Anything contained in this Clause 14 to the contrary notwithstanding,
if any Fraudulent Transfer Law (as hereinafter defined) is determined
by any United States court of competent jurisdiction to be applicable
to the obligations of any US Obligor under the Guarantee set forth in
this Clause 14, such obligations of such US Obligor hereunder shall be
limited to a maximum aggregate amount equal to the largest amount that
would not render its obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the
United States Code or any applicable provisions of comparable state
law, to the extent applicable to any respective guarantee of any US
Obligor (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case
after giving effect to all other liabilities of such US Obligor,
contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
US Obligor in respect of intercompany indebtedness to any other member
xxxvii
<PAGE>
of the ASK Group to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such US Obligor
hereunder) and after giving effect as assets to the value (as
determined under the applicable provisions of the Fraudulent Transfer
Laws) of any rights to subrogation, reimbursement, indemnification or
contribution of such US Obligor pursuant to applicable law or pursuant
to the terms of any agreement.
C. JOINT AND SEVERAL LIABILITY
---------------------------
Subject to any limitations specified for the relevant Obligor in its
Deed of Accession, if applicable, each obligation expressed under this
Agreement to be an obligation of the Obligors shall be the joint and
several obligation of each Obligor.
D. CONTINUING GUARANTEE
--------------------
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Obligors under the Finance
Documents, regardless of any intermediate payment or discharge in whole
or in part.
E. REINSTATEMENT
-------------
(1) Where any discharge (whether in respect of the obligations of any
Obligor 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 each Guarantor under this Clause 14
shall continue as if the discharge or arrangement had not
occurred; and
(2) Each Finance Party may concede or compromise any claim that any
payment, security or other disposition is liable to avoidance or
restoration.
F. WAIVER OF DEFENCES
------------------
The obligations of each Guarantor under this Clause 14 will not be
affected by, and each Guarantor waives its rights (to the fullest
extent permitted by law) in connection with, any act, omission, matter
or thing which, but for this provision, would reduce, release or
prejudice any of its obligations under this Clause 14 or prejudice or
diminish those obligations in whole or in part, including (whether or
not known to it or any Finance Party):-
(1) any time or waiver granted to, or composition with, any Obligor
or any other person;
(2) any incapacity or lack of powers, authority or legal personality
of or dissolution or change in the members or status of any
Obligor or any other person;
(3) any variation or replacement of a Finance Document or any other
document so that references to that Finance Document in this
Clause 14 shall include each variation or replacement;
(4) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document; or
xxxviii
<PAGE>
(5) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of any Obligor
under a Finance Document resulting from any insolvency,
liquidation or dissolution proceedings or from any law,
regulation or order.
G. IMMEDIATE RECOURSE
------------------
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to (i) proceed
against or enforce any other rights or security or claim payment from
any person, or (ii) pursue any other remedy in the power of any Finance
Party whatsoever, before enforcing its rights against such Guarantor
under this Clause 14.
H. APPROPRIATIONS
--------------
Until all amounts which may be or become payable by the Obligors 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
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 no Guarantor shall be entitled to the benefit of the
same.
I. NON-COMPETITION
---------------
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, each Guarantor shall not, after a claim has been made or by
virtue of any payment or performance by it under this Clause 14:-
(1) be subrogated to any rights, security or moneys held, received or
receivable by any Finance Party (or any trustee or agent on its
behalf) or be entitled to any right of contribution or indemnity
in respect of any payment made or moneys received on account of
such Guarantor's liability under this Clause 14;
(2) without the consent of the Agent, claim, rank, prove or vote as a
creditor of any Obligor or its estate in competition with any
Finance Party (or any trustee or agent on its behalf); or
(3) receive, claim or have the benefit of any payment, distribution
or security from or on account of any Obligor , or exercise any
right of set-off as against any Obligor.
Each Guarantor 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 14.9.
XV. THE AGENT AND THE OTHER FINANCE PARTIES
---------------------------------------
A. APPOINTMENT AND DUTIES OF THE AGENT AND ARRANGER
------------------------------------------------
1. Each Lender hereby appoints (i) Bankers Trust Company as Agent, to act
as its agent in connection with the Finance Documents, and (ii) Bankers
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<PAGE>
Trust International PLC to act as Arranger, under and in connection
with the Finance Documents, and irrevocably authorises Bankers Trust
Company for and on its behalf to exercise such rights, powers and
discretions as are specifically delegated to it by the terms of the
Finance Documents, together with all such rights, powers and
discretions as are incidental thereto, and to give a good discharge for
any moneys payable under the Finance Documents. The Lenders empower
the Agent on the broadest terms to take such actions and to exercise
any and all rights derived from this Agreement, including, but not
limited to (i) the enforcement of the Finance Documents, and (ii) the
sending or receiving of whatever notices or communications the Agent
may deem necessary or advisable.
2. The Agent will act solely as agent for the Lenders in carrying out its
functions as agent under the Finance Documents and will exercise the
same care as it would in dealing with a credit for its own account.
3. The relationship between the Lenders and the Agent is that of principal
and agent only. The Agent shall not have, nor be deemed to have
assumed, any obligations to, or trust or fiduciary relationship with,
the other Finance Parties or any member of the ASK Group other than
those for which specific provision is made by the Finance Documents.
B. AGENT'S DUTIES
--------------
The Agent shall:-
1. promptly send to each Lender details of each communication received by
it from any member of the ASK Group under the Finance Documents, except
that details of any communication relating to a particular Lender shall
be sent to that Lender only;
2. promptly send to each Lender a copy of any legal opinion delivered
under this Agreement or any of the other Finance Documents and of any
document or information received by it pursuant to Clause 12.3
(Information and Accounting Undertakings) or (if requested) pursuant to
Clause 4.1;
3. subject to those provisions of this Agreement which require the consent
of all the Lenders, act in accordance with any instructions from the
Requisite Lenders or, if so instructed by the Requisite Lenders,
refrain from exercising a right, power or discretion vested in it under
this Agreement or any of the Finance Documents;
4. have only those duties, obligations and responsibilities expressly
specified in the Finance Documents; and
5. without prejudice to any other clause hereof (including without
limitation sub-clauses 15.3.5, 15.4(c) and 15.6.3), promptly notify
each Lender of the occurrence of any Event of Default or Potential
Event of Default of which an officer of the Agent responsible for the
administration of this Agreement becomes aware.
C. AGENT'S RIGHTS
--------------
The Agent may:-
1. perform any of its duties, obligations and responsibilities under the
Finance Documents by or through its personnel, delegates or agents (on
the basis that the Agent may extend the benefit of any indemnity
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<PAGE>
received by it hereunder to its personnel, delegates or agents);
2. refrain from exercising any right, power or discretion vested in it
under the Finance Documents until it has received instructions from the
Requisite Lenders, or where relevant, all the Lenders;
3. unless it has received notice in writing to the contrary treat (a) the
Lender which makes available any portion of an Advance as the person
entitled to repayment of that portion and (b) the office set under a
Lender's name in Schedule 1 (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party as Transferee)
as its Lending Office;
4. refrain from doing anything which would or might in its opinion be
contrary to any law, regulation, directive, judgement or decree of any
court of any jurisdiction or otherwise render it liable to any person
and may do anything which is in its opinion necessary to comply with
any such law, regulation, judgement, decree or directive;
5. assume that no Event of Default or Potential Event of Default has
occurred unless an officer of the Agent while active on the account of
the Borrower acquires actual knowledge to the contrary;
6. refrain from taking any step (or further step) to protect or enforce
the rights of any Lender under this Agreement or any of the other
Finance Documents until it has been indemnified and/or secured to its
satisfaction against any and all costs, losses, expenses or liabilities
(including legal fees) which it would or might sustain or incur as a
result;
7. rely on any communication or document believed by it to be genuine and
correct and to have been communicated or signed by the person to whom
it purports to be communicated and signed;
8. rely as to any matter of fact which might reasonably be expected to be
within the knowledge of the Borrower on a statement by or on behalf of
the Borrower; and
9. obtain and pay for such legal or other expert advice or services as may
seem necessary to it or desirable and rely on any such advice.
D. EXONERATION OF AGENT AND ARRANGER
---------------------------------
Neither the Agent nor the Arranger nor any of their respective
personnel or agents:-
(1) shall be responsible for the adequacy, accuracy or completeness
of any representation, warranty, statement or information in any
of the Finance Documents or any notice or other document
delivered under the Finance Documents;
(2) shall be responsible for the execution, delivery, validity,
legality, adequacy, enforceability or admissibility in evidence
of any of the Finance Documents;
(3) shall be obliged to enquire as to the occurrence or continuation
of an Event of Default or a Potential Event of Default;
(4) shall be responsible for any failure of any member of the ASK
Group or any of the Lenders duly and punctually to observe and
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perform their respective obligations under the Finance Documents;
(5) shall be responsible for the consequences of relying on the
advice of any professional advisers selected by any of them in
connection with the Finance Documents;
(6) shall be liable for acting (or refraining from acting) in what it
believes to be in the best interests of the Lenders in
circumstances where it has been unable, or it is not practicable,
to obtain the instructions of the Lenders or the Requisite
Lenders (as the case may be); or
(7) shall be liable for anything done or not done by it under or in
connection with the Finance Documents save in the case of its own
negligence or wilful misconduct.
E. THE AGENT AND THE ARRANGER INDIVIDUALLY
---------------------------------------
1. If it is a Lender, each of the Agent and the Arranger shall have the
same rights and powers under the Finance Documents as any other Lender
and may exercise those rights and powers as if it were not also acting
as Agent or Arranger.
2. Each of the Agent and the Arranger may:-
(1) retain for its own benefit (and without liability to account) any
fee or other sum receivable by it for its own account; and
(2) accept deposits from, lend money to, provide any advisory, trust
or other services to or engage in any kind of banking or other
business with any party to this Agreement, or any subsidiary or
affiliate of any party (and, in each case, may do so without
liability to account).
F. COMMUNICATIONS AND INFORMATION
------------------------------
1. All communications to any member of the ASK Group are to be made by or
through the Agent. Each Finance Party will notify the Agent of, and
provide the Agent with a copy of, any communication between such
Finance Party and the relevant member of the ASK Group or any other of
the Finance Parties on any matter concerning the Facility or the
Finance Documents.
2. The Agent will not be obliged to transmit to the other Finance Parties
any information in any way relating to any of the parties to the
Finance Documents which the Agent may have acquired otherwise than in
connection with the Facility or the Finance Documents.
3. In acting as Agent for the Lenders, the Agent's banking division shall
be treated as a separate entity from any other of its divisions (or
similar unit of the Agent in any subsequent re-organisation),
subsidiaries or affiliates (the "OTHER DIVISIONS") and, in the event
that the Agent should act for any member of the ASK Group in a
corporate finance or other advisory capacity ("ADVISORY CAPACITY"), any
information given by any of them to one of the Other Divisions is to be
treated as confidential and will not be available to the Finance
Parties without the consent of the person for whom the Agent is acting
in an Advisory Capacity, provided that:-
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(1) the consent of that person shall not be required in relation to
any information which the Agent in its discretion determines
relates to an Event of Default or a Potential Event of Default or
in respect of which the Lenders have given a confidentiality
undertaking in a form satisfactory to the Agent and the Borrower
or that person; and
(2) if representatives or employees of the Agent receive information
in relation to an Event of Default or a Potential Event of
Default while acting in an Advisory Capacity they will not be
obliged to disclose such information to representatives or
employees of the Agent in their capacity as agent bank, security
agent or arranger hereunder or to any of the Lenders if to do so
would breach any rule or regulation or fiduciary duty imposed
upon such persons.
G. NON-RELIANCE ON THE AGENT OR ARRANGER
-------------------------------------
Each Lender confirms in favour of the Agent and Arranger that it is
(and will at all times continue to be) solely responsible for making
its own independent investigation and appraisal of the business,
operations, financial condition, creditworthiness, status and affairs
of the ASK Group and has not relied, and will not at any time rely on
the Agent or the Arranger:-
(a) to provide it with any information relating to the business,
operations, financial condition, creditworthiness, status and
affairs of the ASK Group, whether coming into its possession
before or after the making of any Advance, except as otherwise
specifically provided herein; or
(b) to check or enquire into the adequacy, accuracy or completeness
of any information provided by the ASK Group under or in
connection with this Agreement or any other Finance Document
(whether or not such information has been or is at any time
circulated to it by the Agent); or
(c) to assess or keep under review the business, operations,
financial condition, creditworthiness, status or affairs of the
ASK Group.
H. INDEMNITY TO AGENT AND ARRANGER
-------------------------------
1. Each Lender shall on demand fully indemnify the Agent and the Arranger
and their respective officers, employees and affiliates (collectively
the "AGENCY INDEMNITEES") in the proportion which its Relevant Amount
bears to the Relevant Amounts of all the Lenders at the relevant time
against any cost, expense or liability sustained or incurred by any of
the Agency Indemnitees in their respective capacities as Agent and
Arranger as a consequence of or in connection with complying with any
instructions from the Lenders or the Requisite Lenders (as the case may
be) or otherwise sustained or incurred in their respective capacities
as Agent and Arranger in connection with the Finance Documents or its
respective duties, obligations and responsibilities under the Finance
Documents, except to the extent that they are sustained or incurred
principally as a result of the negligence or wilful misconduct of such
Agency Indemnitee as finally determined by a court having jurisdiction
(the determination not being subject to appeal).
2. The provisions of Clause 15.8.1 are without prejudice to the
obligations of the Borrower to indemnify the Agency Indemnitees
pursuant to Clause 23 and the Borrower will reimburse each Lender on
demand for any payment made by that Lender pursuant to Clause 15.8.1.
xliii
<PAGE>
I. TERMINATION AND RESIGNATION OF AGENCY: APPOINTMENT OF SUCCESSOR
---------------------------------------------------------------
1. The Agent may resign its appointment at any time by giving not less
than 30 days' notice to the Lenders and the Borrower.
2. A successor Agent shall be selected:-
(1) by the retiring Agent (following consultation with the Borrower)
nominating one of its subsidiaries or affiliates as successor
Agent in its notice of resignation; or
(2) if the retiring Agent makes no such nomination, by the Requisite
Lenders nominating one of the Lenders as successor Agent
(following consultation with the Borrower); or
(3) if the Requisite Lenders have failed to nominate a successor
Agent within 30 days of the date of the retiring Agent's notice
of resignation, by the retiring Agent nominating , with the
consent of the Borrower, which consent shall not be unreasonably
withheld, a financial institution of good standing to be the
successor Agent.
3. The resignation of the retiring Agent and the appointment of the
successor Agent will only become effective upon the successor Agent
accepting its appointment as Agent in writing at which time:-
(1) the successor Agent will become bound by all the obligations of
the Agent and become entitled to all the rights, privileges,
powers, authorities and discretions of the Agent hereunder;
(2) the agency of the retiring Agent will terminate but without
prejudice to any liabilities which the retiring Agent may have
incurred or the indemnities to which the retiring Agent may be
entitled prior to the termination of its agency; and
(3) the retiring Agent will be discharged from any further liability
or obligation under or in connection with the Finance Documents
(save that the outgoing Agent shall pay to the successor a pro
rata proportion of the agency fee paid under Clause 10.1.1).
4. The retiring Agent will co-operate with the successor Agent in order to
ensure that its functions are transferred to the successor Agent
without disruption to the service provided to the ASK Group and the
Lenders and will promptly make available to the successor Agent such
documents and records as have been maintained in connection with this
Agreement in order that the successor Agent is able to discharge its
functions.
5. The provisions of this Agreement will continue in effect for the
benefit of any retiring Agent in respect of any actions taken or
omitted to be taken by it or any event occurring before the termination
of its agency.
J. PAYMENTS TO FINANCE PARTIES
---------------------------
1. The Agent will account to the other Finance Parties for their due
proportion of all sums received by the Agent for such Finance Parties,
whether by way of repayment of principal or payment of interest,
commitment commission, fees or otherwise.
xliv
<PAGE>
2. Save as otherwise specifically agreed between the Agent and the other
Finance Parties in the case of any arrangement fee, the Agent may
retain for its own use and benefit, and shall not be liable to account
to the other Finance Parties for all or any part of, any sums received
by it in its capacity as Agent by way of agency fee or any other fee or
by way of reimbursement of expenses incurred by it.
K. CHANGE OF OFFICE OF AGENT OR ARRANGER
-------------------------------------
The Agent or the Arranger may at any time and from time to time in
their respective sole discretion by written notice to the Borrower and
each of the other Finance Parties designate a different office from
which their respective duties as Agent or Arranger will thereafter be
performed.
XVI. APPLICATION OF MONEYS
---------------------
If any sum paid or recovered in respect of the liabilities of the
Obligors under any of the Finance Documents is less than the amount
then due, the Agent shall apply that sum in the following order:-
(1) first to any unpaid fees and reimbursement of unpaid expenses of
the Agent;
(2) secondly to any unpaid fees and reimbursement of unpaid expenses
of the Lenders;
(3) thirdly to unpaid interest;
(4) fourthly to unpaid principal; and
(5) fifthly to other amounts due under the Finance Documents;
in each case PRO RATA to the outstanding amounts owing to the Finance
Parties under the Finance Documents taking into account any
applications under this Clause 16.
XVII. PRO RATA PAYMENTS
-----------------
A. If any amount owing by any Obligor under any Finance Document to a
Lender (the "RECOVERING LENDER") is discharged by payment, set-off, use
of cash collateral or any other manner other than through the Agent in
accordance with Clause 9.1.1 (such amount being referred to in this
Clause 17.1 as the "RECOVERY"), then:-
(1) within two Business Days of receipt of the Recovery, the
Recovering Lender shall pay to the Agent an amount equal (or
equivalent) to such Recovery;
(2) the Agent shall treat such payment as if it were part of the
payment to be made by the Borrower to the Lenders rateably in
accordance with their respective Commitments; and
(3) save for any receipt by the Recovering Lender as a result of the
operation of sub-clause (b) above, as between the members of the
ASK Group and the Recovering Lender the Recovery shall be treated
and deemed as not having been paid.
xlv
<PAGE>
B. Each Lender shall notify the Agent promptly of any such Recovery by
that Lender other than by payment through the Agent. If any Recovery
subsequently has to be wholly or partly refunded by the Recovering
Lender which paid an amount equal thereto to the Agent under sub-clause
17.1(a), each Lender to which any part of that amount was distributed
shall, on request from the Recovering Lender, repay to the Recovering
Lender such Lender's pro rata share of the amount which has to be
refunded by the Recovering Lender.
C. Each Lender shall on request supply to the Agent such information as
the Agent may from time to time request for the purpose of this Clause
17. Notwithstanding the foregoing provisions of this Clause 17, no
Recovering Lender shall be obliged to share with another person any
Recovery which it receives pursuant to legal proceedings taken by it to
recover any sums owing to it under the Finance Documents where such
other person has a legal right to, but does not, either join in such
proceedings or commence and diligently pursue separate proceedings to
enforce its rights in the same or another court (unless the proceedings
instituted by the Recovering Lender are instituted by it without prior
notice having been given to such other person through the Agent).
D. Failure by any Recovering Lender to comply with any of the provisions
of this Clause 17 shall not release any other Recovering Lender from
any of its obligations or liabilities under this Clause 17.
E. Each Finance Party agrees to take all steps required of it pursuant to
Clause 17.1, and to use its reasonable endeavours to obtain any
consents or authorisations which may at any relevant time be required,
for any payment by it pursuant to this Clause 17.
F. The provisions of this Clause 17 shall not, and shall not be construed
so as to, constitute a charge by a Lender over all or any part of a sum
received or recovered by it in the circumstances mentioned in this
Clause 17.
XVIII. SET-OFF
-------
Any Finance Party may without notice to any members of the ASK Group,
following the giving of notice by the Agent pursuant to Clause 13.2,
combine, consolidate or merge all or any of the accounts of any member
of the ASK Group with, and liabilities to, that Finance Party and may
set off or otherwise retain or transfer any sum standing to the credit
of any such accounts in or towards the satisfaction of any of the
liabilities of such member of the ASK Group to that Finance Party under
the Finance Documents (whether or not such liabilities are then due for
payment), and may do so notwithstanding that the balances on such
accounts and the liabilities may not be expressed in the same currency,
and each Finance Party is hereby authorised to effect any necessary
conversions at the Agent's spot rate of exchange then prevailing.
XIX. NOTICES
-------
A. Save as specifically otherwise provided in this Agreement or agreed
with the Agent any notice, demand or other communication to be served
under this Agreement may be served upon any party hereto only by
posting by first class (or air mail) post or by delivering the same in
person or by courier or sending the same by facsimile transmission to
the party to be served at its address or facsimile number given in the
relevant Finance Document or at such other address or number as it may
xlvi
<PAGE>
from time to time notify in writing to the other parties hereto. Any
notice, demand or other communication to be served upon the initial
parties to this Agreement shall be served as follows:
If to any member of the ASK Group:
c/o ASK asa
K.G. Meldahlsvei 9
N-1602 Fredrikstad
Facsimile: + 47 69 34 06 32
Attn: the President
If to Bankers Trust International PLC or Bankers Trust Company:
1 Appold Street
London EC2A 2HE
Facsimile: 982 3380
Attention: Barry Jefferies
B. A notice or demand served by first class (or air mail) post shall be
deemed duly served upon receipt, a notice or demand served in person or
by courier shall be deemed duly served when delivered and a notice or
demand sent by facsimile transmission shall be deemed to have been
served at the time of transmission unless served on a non-Business Day
or after 5.00 p.m. at the place in which the recipient is located in
which case it will be deemed served at 9.00 a.m. at the place in which
the recipient is located on the following Business Day.
C. In proving service of any notice or demand it will be sufficient to
prove, in the case of a letter, that such letter was properly stamped
or franked first class (or with appropriate air mail postage),
addressed and placed in the post, in the case of a notice or demand
served by courier that it was delivered by the courier company and, in
the case of a facsimile transmission, that such facsimile was duly
transmitted to a current facsimile number of the addressee at the
address referred to above and the transmission report indicates that it
was correctly sent and received.
XX. CONFIDENTIALITY
---------------
A. Each of the Finance Parties agrees with the ASK Group to hold
confidential all information which they acquire under or in connection
with the Finance Documents save to the extent they are required by law
or regulation, or are requested by any regulator with jurisdiction
over, or over any business of, the relevant Finance Party or any of its
subsidiaries or affiliates, or where necessary in connection with
litigation, to disclose the same or the same comes into the public
domain (otherwise than as a result of a breach of this Clause 20).
B. Nothing in Clause 20.1 shall restrict any Finance Party from disclosing
information in accordance with Clause 21.4 (Disclosure of Information).
C. Except to the extent required by law, all public announcements in
relation to this Agreement shall be made through the Agent. The Agent
will not make any written public announcement in relation to this
xlvii
<PAGE>
Agreement without first having the text of the announcement approved by
ASK (such approval not to be unreasonably withheld or delayed).
XXI. CHANGES TO PARTIES
------------------
A. NO ASSIGNMENT BY THE ASK GROUP
------------------------------
None of the members of the ASK Group may assign or transfer all or part
of their rights or obligations under this Agreement or any of the other
Finance Documents.
B. LENDERS
-------
1. A Lender (a "TRANSFEROR") may at any time, with the consent of the
Borrower, which consent shall not be unreasonably withheld or delayed,
assign or otherwise transfer (together, "TRANSFER") all or any part of
its rights or obligations under the Finance Documents to any financial
institution carrying on a banking undertaking that has complied with
Clause 9.4 (Evidence of Exemption from US Withholding Tax) (a
"TRANSFEREE"), subject to the other terms of this Clause 21, PROVIDED
that unless the Borrower and the Agent otherwise agree, any Transfer
shall be for the same proportion of the Transferor's rights and
obligations in the Facility.
2. A Transfer of obligations of the Lenders shall only be effective if
made in accordance with Clause 21.3 (Substitution Provisions) or if the
Transferee has, prior to the Transfer taking effect, confirmed in
writing to the Agent (acting on behalf of all the other Lenders) and to
the Borrower that it undertakes to be bound by the terms of each of the
Finance Documents binding upon it as a Lender in form and substance
satisfactory to the Agent. On any such Transfer being made, the
Transferor shall be relieved of its obligations to the extent that they
are transferred to the Transferee.
C. SUBSTITUTION PROVISIONS
-----------------------
1. A Transferor may transfer, upon notice being given by the Agent to the
other parties hereto as provided below, all or any of its rights and
obligations under the Finance Documents to a Transferee by means of a
novation effected by the Agent executing a Transfer Certificate which
has been duly completed and signed on behalf of both the Transferee and
the Transferor. For the avoidance of doubt, the Agent shall not be
obliged to execute a Transfer Certificate unless the identity of the
Transferee named therein is satisfactory to the Agent, and nothing in
this Clause 21.3.1 shall be deemed to authorise the Agent to sign a
Transfer Certificate which has not been signed on behalf of a
Transferee and Transferor.
2. On the later of (i) the date specified in the Transfer Certificate as
being the date on or as from which the substitution under this Clause
21.3 is to take effect and (ii) the date on which the Agent executes
the Transfer Certificate, the following shall occur:-
(1) to the extent that in the Transfer Certificate the Transferor
seeks to transfer its rights and obligations under the Finance
Documents, the members of the ASK Group and the Transferor shall
each be released from further obligations to each other under the
Finance Documents (and the appropriate reduction shall be made to
the Commitment of the Transferor) and their respective rights
against each other shall be cancelled (such rights and
obligations beings referred to in this Clause 21.3.2 as
xlviii
<PAGE>
"DISCHARGED RIGHTS AND OBLIGATIONS") and the members of the ASK
Group and the Transferee shall each assume obligations towards
each other and acquire rights against each other which are
identical to the Discharged Rights and Obligations;
(2) the members of the ASK Group and the Transferee shall each assume
obligations towards each other and acquire rights against each
other which differ from the Discharged Rights and Obligations
only in so far as the members of the ASK Group and such
Transferee have specifically assumed and acquired the same in
place of the members of the ASK Group and the Transferor;
(3) the Agent the Arranger, the Transferee and the other Lenders
shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had
the Transferee been an original party hereto as a Lender with the
rights and obligations acquired or assumed by it as a result of
the novation; and
(4) on the date upon which such transfer takes effect, the Transferee
shall pay to the Agent for its own account a transfer fee of GBP
500, except that no fee shall be payable in respect of a transfer
which occurs not later than six months after the Initial Drawdown
Date.
3. Nothing in this Agreement or any other Finance Document shall oblige a
Transferor or cause a Transferor to be liable:-
(1) to accept a re-assignment or re-transfer from a Transferee of any
of the rights or obligations assigned, transferred or novated
pursuant to this Clause 21; or
(2) to support any losses incurred by a Transferee by reason of the
non-performance by any member of the ASK Group of their
obligations under any of the Finance Documents.
4. Each of the parties hereto (other than the Transferor and the
Transferee) authorises the Agent to execute on its behalf any Transfer
Certificate which has been duly completed in accordance with this
Clause 21.3 and executed on behalf of each of the Transferor and the
Transferee.
5. The Agent shall promptly notify the other parties hereto of the receipt
and execution by it on their behalf of any Transfer Certificate and
shall supply a copy of the Transfer Certificate to the Borrower.
D. DISCLOSURE OF INFORMATION
-------------------------
Each Lender may disclose to a proposed assignee or transferee or any
sub-participant, risk participant or other participant proposing to
enter or having entered into a contract with such Lender regarding the
Finance Documents any information in the possession of such Lender
relating to the ASK Group (and any member of it) as it sees fit subject
to such person agreeing in writing to be bound by the confidentiality
provisions set out in Clause 20.
E. THE AGENT AND THE REFERENCE LENDERS
-----------------------------------
1. Changes to the Agent and the office through which the Agent acts may be
xlix
<PAGE>
effected pursuant to Clause 15.9.
2. If a Reference Lender ceases to be one of the Lenders or, if a
Reference Lender is not itself a Lender but an affiliate of a Lender
and such Lender ceases to be one of the Lenders, then (a) the Lender
or, as the case may be, affiliate of the Lender concerned shall cease
to be a Reference Lender, and (b) the Agent shall in consultation with
the Borrower appoint another Lender or an affiliate of another Lender
to be a Reference Lender.
XXII. LENDER DECISIONS
----------------
A. Subject to Clauses 22.2 and 22.3, any provision of this Agreement or
any of the other Finance Documents may be amended, waived, varied or
modified with the agreement of the Requisite Lenders.
B. The following matters shall require the unanimous agreement of all of
the Lenders:-
(a) any increase in any Commitment of any Lender;
(b) any extension of any scheduled date for payment of any sum due,
owing or payable to any Lender;
(c) any reduction in the amount, or change in currency, of any
payment of principal, interest (including the Margin), fees or
commissions or other amounts payable hereunder by any party;
(d) any amendment, variation or modification of this Clause 22,
Clause 17 (Pro Rata Payments), Clause 18 (Set-off), Clause 21.1
(Assignment by the Borrower, Etc.) or to the definition of
Requisite Lenders;
(e) any matter which, by the terms of this Agreement as at the date
hereof, is stated to be subject to the consent of all Lenders;
C. Any amendment, waiver, variation or modification of Clause 15 (The
Agent and the Other Finance Parties) may not be effected without the
agreement of the Agent.
XXIII. INDEMNITIES AND BREAKAGE COSTS
------------------------------
The Borrower will fully indemnify each of the Finance Parties, and
their respective officers, employees, subsidiaries and affiliates
(collectively the "FINANCE INDEMNITEES") from and against any expense,
loss, damage or liability which any of the Finance Indemnitees may
incur as a consequence of or in connection with (i) the provision of
the Facility or the use of proceeds thereof, or (ii) the execution,
delivery or performance of any of the Finance Documents, other than, in
the case of a Finance Indemnitee, any such expense, loss, damage or
liability which is finally determined by a court having jurisdiction
(the determination not being subject to appeal) to have resulted
principally from the negligence or wilful misconduct of such Finance
Indemnitee or which is otherwise reimbursed by a member of the ASK
Group under the Finance Documents. The Borrower will further fully
indemnify each of the Finance Parties from and against any expense,
loss, damage or liability which they may incur as a consequence of any
failure to pay any sum due pursuant to the Finance Documents when due,
or any failure to borrow when obliged to do so in accordance with this
Agreement (including without limitation failure to satisfy any
conditions precedent to such borrowing) or repaying an Advance
otherwise than on the last day of an Interest Period or otherwise in
connection with a breach by any member of the ASK Group of this
Agreement or of any Finance Document, except where it is otherwise
reimbursed by a member of the ASK Group under the Finance Documents.
Without prejudice to its generality, the indemnity in the preceding
sentence extends to any interest, fees or other sums whatsoever paid or
payable on account of any funds borrowed in order to carry any amount
which a member of the ASK Group fails to pay in breach of this
Agreement and to any loss, premium, penalty or expenses which may be
incurred in liquidating or employing deposits from third parties
acquired to make, maintain or fund outstanding Advances or any other
amount due or to become due under this Agreement.
XXIV. JURISDICTION
------------
A. SUBMISSION
----------
For the benefit of each Finance Party, each Obligor agrees that the
courts of England shall have jurisdiction to settle any disputes in
connection with any Finance Documents and accordingly submits to the
jurisdiction of the English courts.
B. SERVICE OF PROCESS
------------------
Without prejudice to any other mode of service, each Obligor:-
(1) irrevocably appoints ASK as its agent for service of process
relating to any proceedings before the English courts in
connection with any Finance Document;
(2) agrees that failure by a process agent to notify it of the
process will not invalidate the proceedings concerned; and
(3) (without prejudice to other forms of service permitted by law)
consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for notices to it from time to time under Clause 19
(Notices).
(4) ASK irrevocably accepts its appointment as agent for service of
process under the Finance Documents as set forth in sub-clause
(a).
C. FORUM CONVENIENCE AND ENFORCEMENT ABROAD
----------------------------------------
Each Obligor:-
(1) waives objection to the English courts on grounds of inconvenient
forum or otherwise as regards proceedings in connection with a
Finance Document; and
(2) agrees that a judgement, decree or order of an English court or
other court in connection with a Finance Document is (subject to
rights of appeal before the English courts or such other courts)
conclusive and binding on it and may be enforced against it in
the courts of any other jurisdiction.
D. NON-EXCLUSIVITY
---------------
li
<PAGE>
Nothing in this Clause 24 limits the right of a Finance Party to bring
proceedings against any Obligor in connection with any Finance Document
in any other court of competent jurisdiction or concurrently in more
than one jurisdiction.
XXV. MISCELLANEOUS
-------------
A. COUNTERPARTS
------------
This Agreement may be executed in any number of counterparts and all of
such counterparts taken together shall be deemed to constitute one and
the same instrument.
B. CERTIFICATES CONCLUSIVE
-----------------------
A certificate, determination, notification or opinion of a Finance
Party, the Requisite Lenders or any Lender provided for in any Finance
Document shall be conclusive save in the case of manifest error.
C. GOVERNING LAW
-------------
This Agreement shall be governed by and construed in accordance with
the laws of England.
D. NO IMPLIED WAIVERS; CUMULATIVE REMEDIES
---------------------------------------
No failure or delay by the Agent or the Arranger or any other Finance
Party in exercising any right, power or privilege under any of the
Finance Documents shall operate as a waiver thereof. The rights and
remedies provided in the Finance Documents are cumulative and not
exclusive of any rights and remedies provided by law and all such
rights and remedies howsoever arising will, save where expressly
provided to the contrary therein, be available to the Finance Parties
severally and any Finance Party shall be entitled to commence
proceedings in connection therewith in its own name.
E. INVALIDITY
----------
If any of the provisions of this Agreement become invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
[Remainder of page intentionally left blank]
lii
<PAGE>
ASK ASA, in its capacity as Guarantor
By: /s/ Ole J. Fredriksen
_______________________________
Print Name: Ole J. Fredriksen
_______________________
Title: President
_____________________________
BD ACQUISITION CORP., in its capacity as Borrower
By: /s/ Ole J. Fredriksen
_______________________________
Print Name: Ole J. Fredriksen
_______________________
Title: President
_____________________________
<PAGE>
BANKERS TRUST INTERNATIONAL PLC, in its capacity as Arranger
By: /s/ J.H. Courtenay
_______________________________
Print Name: J.H. Courtenay
_______________________
Title: Managing Director
____________________________
BANKERS TRUST COMPANY, in its capacities as Agent and a Lender
By: /s/ J.H. Courtenay
_______________________________
Print Name: J.H. Courtenay
_______________________
Title: Managing Director
____________________________
DEN NORSKE BANK ASA, in its capacity as a Lender
By: /s/ Oivind Aspeng
_______________________________
Print Name: Oivind Aspeng
_______________________
Title: Managing Director
____________________________
<PAGE>
SCHEDULE 1
----------
COMMITMENTS AND LENDING OFFICES
-------------------------------
Names and Addresses of
INITIAL LENDERS COMMITMENT
---------------------- ---------------
USD
BANKERS TRUST COMPANY USD 15,000,000
1 Appold Street
London EC2A 1HE
Attn. Barry Jefferies
Tel: +44 171 982 2500
Fax: +44 171 982 2271
DEN NORSKE BANK ASA USD 15,000,000
Region Ostfold
P.O. Box 117
1601 Fredrikstad, Norway
Attn: Bedriftskundedivisjonen /
Laneadministrasjonen
Tel: +47 69 39 41 00
Fax: +47 69 39 42 06
<PAGE>
SCHEDULE 2
----------
REPAYMENT SCHEDULE
------------------
REPAYMENT DATE AMOUNT (USD)
-------------- ------------
31/12/98 7,500,000
30/06/99 7,500,000
31/12/99 7,500,000
30/06/00 7,500,000
__________
30,000,000
<PAGE>
SCHEDULE 3
----------
FORM OF DRAWDOWN REQUEST
------------------------
To: [Insert details of Agent's administrations department]
Attn: [ ]
USD 30,000,000 FACILITY AGREEMENT DATED [ ], 1998
- ---------------------------------------------------------------------------
We refer to the above agreement between, inter alia, ourselves, the Arranger,
the Lenders described therein and yourselves as Agent (as heretofore amended,
the "Facility Agreement", which expression includes any amendments or
supplements thereto or restatements thereof). Terms defined in the Facility
Agreement have the same meaning in this notice.
Pursuant to Clause 5.1 of the Facility Agreement, we hereby give you notice of
the following proposed drawing of an Advance under the Facility:
(a) Proposed Drawdown Date (a Business Day):
(b) Amount:
(c) Duration of First Interest Period:
(d) Payment Instructions:
(e) Purpose:
We confirm that no Event of Default or Potential Event of Default has occurred
and is continuing unremedied or unwaived or will occur as a result of making
this Advance and that each of the representations and warranties required to be
made in accordance with Clause 11 of the Facility Agreement is true and
accurate on the date hereof in all material respects, in each case by reference
to the facts and circumstances now subsisting, and will remain true and
accurate immediately after the Advance is made.
Dated: _____________
[BORROWER]
By: ________________________
Its: ________________________
NOTES
(1) Currencies other than USD may not be requested.
(3) These notes are included for convenience only and are to be ignored in
construing the Facility Agreement.
<PAGE>
SCHEDULE 4
----------
STRUCTURE OF ASK GROUP AS AT THE INITIAL DRAWDOWN DATE
------------------------------------------------------
<PAGE>
SCHEDULE 5
----------
FORM OF DEED OF ACCESSION
-------------------------
THIS DEED is made this [ ] day of __________, by [ ],
as Guarantor, IN FAVOUR OF:
(1) BD ACQUISITION CORP. as Borrower (the "Borrower");
(2) BANKERS TRUST INTERNATIONAL PLC as Arranger;
(3) BANKERS TRUST COMPANY, as Agent (the "Agent");
(4) THE LENDERS PARTY TO THE FACILITY AGREEMENT DESCRIBED BELOW; and
(5) THE OBLIGORS PARTY TO THE FACILITY AGREEMENT DESCRIBED BELOW.
WHEREAS:
(A) This Deed is supplemental to a facility agreement (the "FACILITY
AGREEMENT", which expression includes any amendments or supplements
thereto or restatements thereof) dated __________ made among the parties
referred to in paragraphs (1) to (5) above.
(B) [insert name of party] wishes to accede to the Facility Agreement as a
Guarantor.
NOW THIS DEED WITNESSETH AS FOLLOWS:
(1) Words and expressions defined in the Facility Agreement shall have the
same meanings when used herein.
(2) [insert name of Guarantor] hereby:
(a) agrees to be bound by all the terms and conditions of the Facility
Agreement insofar as they relate to a Guarantor (including without
limitation Clause 14 (Guarantee) and Clause 24 (Jurisdiction) of the
Facility Agreement) as if it were a party to the Facility Agreement
in such capacity; and
(b) represents and warrants to the Agent and the other Finance Parties
in the terms of the Facility Agreement [DESCRIBE RELEVANT OBLIGOR-
SPECIFIC EXCEPTIONS, IF ANY].
(3) The undersigned Guarantor agrees to be bound by all the terms and
conditions of the Facility Agreement insofar as they relate to an Obligor
as if it were a party to the Facility Agreement in such capacity.
[(4) The foregoing notwithstanding, the obligations of the undersigned
Guarantors under the foregoing shall be limited as follows:
DESCRIBE LIMITATIONS TO GUARANTEES, IF NOT ALREADY IN THE FACILITY
AGREEMENT, TO THE EXTENT REQUIRED BY APPLICABLE LAW]
(5) The undersigned Guarantor confirms that its address for the purposes of
Clause 19 (Notices) of the Facility Agreement is set out under its name
<PAGE>
as follows:
[Name]
[Address]
Attention: [ ]
Facsimile: [ ]
(6) Each of the undersigned hereby agrees that [insert name of Guarantor]
shall, from the date of the later of (i) the execution by Agent of this
Deed and (ii) the execution by the Borrower of this Deed, accede to the
Facility Agreement as if it were a Guarantor and an Obligor named therein
and a party thereto.
(7) This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the
same instrument.
(8) This Deed shall be governed by and construed in accordance with the laws
of England.
IN WITNESS WHEREOF the undersigned have caused this Deed to be duly executed
and delivered the day and year first above written.
EXECUTED and DELIVERED )
as a deed )
for and on behalf of )
[ ] )
by )
in the presence of )
EXECUTED and DELIVERED )
as a deed )
for and on behalf of )
[ ] )
as the Borrower )
by [ ] )
in the presence of: )
EXECUTED and DELIVERED )
as a deed )
for and on behalf of )
[ ] )
as the Borrower )
by [ ] )
in the presence of: )
SIGNED by
<PAGE>
for and on behalf of
BANKERS TRUST COMPANY,
as Agent
.........................................
Date:
<PAGE>
SCHEDULE 6
----------
FORM OF TRANSFER CERTIFICATE
-----------------------------
[Note: The Transferor and Transferee should ensure that all regulatory
requirements (in particular compliance with the Financial Services Act of 1986
and any regulations made thereunder) are satisfied in connection with their
entry into of this Transfer Certificate.]
TRANSFER CERTIFICATE
- --------------------
To: [name of Agent]
for and on behalf of the Borrower, the other Obligors, the Lenders
and the other Finance Parties (each as defined in the Facility
Agreement referred to below).
From: [insert name of Transferor] (the "Transferor")
[insert name of Transferee] (the "Transferee")
This transfer certificate (this "Certificate") relates to a Facility Agreement
dated ____________, 1998, and made among Bankers Trust Company, as Agent and
the Lenders and Arrangers, described therein (the "Facility Agreement", which
expression includes any amendments or supplements thereto or restatements
thereof). Terms defined in the Facility Agreement shall, unless otherwise
defined in this Certificate, have the same meanings when used in this
Certificate.
(1) The Transferor by its execution of this Certificate:-
(a) confirms that the details which appear in column II of the
First Schedule of this Certificate accurately state,
respectively, the amount of the Transferor's Commitment and the
Transferor's participation in Advances as at the date of this
Certificate;
(b) requests the Transferee to accept and procure, in accordance
with Clause 21.3 of the Facility Agreement, transfer to the
Transferee of the portion of the Transferor's participation in
the Facility specified in column III of the First Schedule of
this Certificate by counter-signing this Certificate and
delivering it to the Agent at its address for the giving of
notices under the Facility Agreement so as to take effect on
the date specified in the Second Schedule of this Certificate
(the "Transfer Date").
(2) The Transferee by its execution of this Certificate requests the
Obligors, the Lenders, the Agent and the other Finance Parties to
accept this Certificate as being delivered under and for the
purposes of Clause 21.3 of the Facility Agreement so as to take
effect in accordance with the terms of that Clause on the Transfer
Date.
[(3) The Transferee undertakes to pay to the Agent for the Agent's own
account a transfer fee of GBP 500 as provided in Clause 21.3.2(d) of
the Facility Agreement.]
(4) The Transferee hereby:
(a) confirms that it has received from the Transferor a copy of the
Facility Agreement together with such other documents and
information as it has requested in connection with this
<PAGE>
transaction;
(b) confirms that it has not relied, and will not hereafter rely,
on the Transferor or any other Finance Party to the Facility
Agreement or any of the other Finance Documents to check or
enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such
documents or information;
(c) agrees that it has not relied, and will not hereafter rely, on
the Transferor or any other Finance Party to the Facility
Agreement or any of the other Finance Documents to assess or
keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the
Borrower, the other Obligors or any other party to the Facility
Agreement or the other Finance Documents; and
(d) represents and warrants to the Transferor and all other parties
to the Facility Agreement that it (i) has power to become a
party to the Facility Agreement as a "Lender" on the terms
herein and therein set out, (ii) has taken all necessary steps
to authorise execution and delivery of this Certificate; (iii)
has complied with the requirements set forth in Clause 9.4
(Evidence of Exemption from US Withholding Tax) of the Facility
Agreement; and (iv) is carrying on a banking undertaking.
(5) Neither the Transferor nor any other Finance Party to the Facility
Agreement makes any representation or warranty nor assumes any
responsibility with respect to the legality, validity,
effectiveness, adequacy or enforceability of the Finance Documents
and assumes no responsibility for the financial condition of the
Borrower, the other Obligors or any other party to the Finance
Documents or for the performance and observance by the Borrower or
any other Obligor of any of its obligations under the Finance
Documents and any and all such representations and warranties and
responsibility, whether express or implied by law or otherwise, are
hereby excluded.
(6) On execution of this Certificate by the Agent for itself and on
behalf of the Obligors, the Lenders (other than the Transferor) and
the other Finance Parties, each of them accepts the Transferee on
and with effect from the Transfer Date as a party in substitution
for the Transferor with respect to all those rights and obligations
which by the terms of the Facility Agreement, the other Finance
Documents and this Certificate are assumed by the Transferee.
(7) By its execution hereof, the Transferee confirms the appointment of
[INSERT NAME OF AGENT] to act as its agent under and in connection
with the Finance Documents and irrevocably authorises the Agent and
for and on its behalf to exercise such rights, powers and
discretions as are delegated to it by the terms of the Finance
Documents, together with all such rights, powers and discretions as
are incidental thereto, and to give a good discharge for any moneys
payable under the Finance Documents.
(8) This Certificate and the rights and obligations of the parties
hereto shall be governed by and construed in accordance with English
law.
AS WITNESS the hands of authorised signatories for and on behalf of the
Transferor, the Transferee and the Agent on the respective dates appearing
below.
<PAGE>
FIRST SCHEDULE TO THE TRANSFER CERTIFICATE
------------------------------------------
I II III
- -- ---
FACILITY DETAILS TRANSFEROR POSITION POSITION TO BE
- ---------------- ------------------- --------------
TO TRANSFEREE PRIOR TO TRANSFER TRANSFERRED
------------- ----------------- -----------
[ ] [ ] [ ]
[ ] [ ] [ ]
[ ] [ ] [ ]
<PAGE>
SECOND SCHEDULE TO THE TRANSFER CERTIFICATE
-------------------------------------------
PARTICULARS RELATING TO THE TRANSFEREE
Transfer Date :
Lending Office :
Contact Name :
Account for Payments :
Telephone :
Facsimile :
[Transferor] [Transferee]
By:.............................. By:..............................
Date: [ ] Date: [ ]
[Agent]
By:..............................
Date: [ ]
<PAGE>
