Exhibit 4.20
EXECUTION COPY
AMENDED AND RESTATED
LOAN AGREEMENT
DATED 5 DECEMBER 2005
MULTICURRENCY TERM CREDIT FACILITY
BETWEEN
ELSCINT LTD.
as Borrower
AND
BANK HAPOALIM B.M.
as Bank
▇▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇▇, ▇▇▇▇▇▇
TEL: ▇▇ ▇▇▇ ▇▇▇▇
FAX: ▇▇ ▇▇▇ ▇▇▇▇
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TABLE OF CONTENTS
1. INTERPRETATION........................................................ 6
1.1 DEFINITIONS..................................................... 6
1.2 CONSTRUCTION.................................................... 20
2. FACILITY.............................................................. 22
3. PURPOSE............................................................... 22
4. CONDITIONS PRECEDENT.................................................. 23
4.1 DOCUMENTARY CONDITIONS PRECEDENT................................ 23
4.2 FURTHER CONDITIONS PRECEDENT.................................... 23
5. DRAWDOWN.............................................................. 24
5.1 COMMITMENT PERIOD............................................... 24
5.2 COMPLETION OF DRAWDOWN REQUESTS................................. 24
5.3 ADVANCE......................................................... 25
5.4 CONSOLIDATION................................................... 25
6. REPAYMENT............................................................. 25
6.1 TRANCHE A REPAYMENT............................................. 25
6.2 TRANCHE B REPAYMENT............................................. 25
6.4 TRANCHE D REPAYMENT............................................. 26
6.5 CURRENCY........................................................ 26
6.6 TRANCHE A REPAYMENT SCHEDULE.................................... 26
6.7 RE-BORROWING.................................................... 26
7. PREPAYMENT AND CANCELLATION........................................... 26
7.1 VOLUNTARY PREPAYMENT............................................ 26
7.2 VOLUNTARY CANCELLATION.......................................... 26
7.3 MANDATORY PREPAYMENT............................................ 26
7.4 REPAYMENT INTO LOAN ACCOUNT..................................... 28
7.5 MISCELLANEOUS PROVISIONS........................................ 28
8. INTEREST PERIODS...................................................... 28
8.1 SELECTION....................................................... 28
8.2 NON-BUSINESS DAYS............................................... 28
9. INTEREST.............................................................. 28
9.1 INTEREST RATE................................................... 29
9.2 DUE DATES....................................................... 29
9.3 DEFAULT INTEREST................................................ 29
10. SELECTION OF AVAILABLE CURRENCIES..................................... 29
10.1 SELECTION....................................................... 29
10.2 REVOCATION OF CURRENCY.......................................... 29
11. AMOUNT OF AVAILABLE CURRENCIES........................................ 30
11.1 DRAWDOWNS....................................................... 30
11.2 PREPAYMENTS AND REPAYMENTS...................................... 30
12. PAYMENTS.............................................................. 31
12.1 PLACE........................................................... 31
12.2 FUNDS........................................................... 31
3
12.3 APPLICATION..................................................... 31
12.4 CURRENCY........................................................ 31
12.5 SET-OFF AND COUNTERCLAIM........................................ 31
12.6 NON-BUSINESS DAYS............................................... 31
12.7 PARTIAL PAYMENTS................................................ 31
13. TAXES................................................................. 32
14. MARKET DISRUPTION..................................................... 32
14.1 ABSENCE OF QUOTATIONS........................................... 32
14.2 MARKET DISRUPTION............................................... 32
14.3 SUSPENSION OF DRAWDOWNS......................................... 33
14.4 ALTERNATIVE BASIS FOR OUTSTANDING ADVANCES...................... 33
15. INCREASED COSTS....................................................... 33
15.1 INCREASED COSTS................................................. 33
15.2 EXCEPTIONS...................................................... 34
16. ILLEGALITY............................................................ 34
17. REPRESENTATIONS AND WARRANTIES........................................ 35
17.1 REPRESENTATIONS AND WARRANTIES.................................. 35
17.2 STATUS.......................................................... 35
17.3 POWERS AND AUTHORITY............................................ 35
17.4 LEGAL VALIDITY.................................................. 35
17.5 NON-CONFLICT.................................................... 35
17.6 NO DEFAULT...................................................... 35
17.7 AUTHORIZATIONS.................................................. 36
17.8 LITIGATION...................................................... 36
17.9 INFORMATION..................................................... 36
17.10 FINANCIAL STATEMENTS............................................ 36
17.11 COMPLIANCE...................................................... 36
17.12 INSURANCES...................................................... 36
17.13 TITLE AND OWNERSHIP............................................. 37
17.14 STATUS OF SECURITY.............................................. 37
17.15 PARI PASSU RANKING.............................................. 37
17.16 INDEBTEDNESS.................................................... 37
17.17 TAXES ON PAYMENTS............................................... 37
17.18 STAMP DUTIES.................................................... 37
17.19 IMMUNITY........................................................ 38
17.20 JURISDICTION/GOVERNING LAW...................................... 38
17.21 MANGO ISRAEL.................................................... 38
17.22 NO OTHER BUSINESS............................................... 38
17.23 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES................. 38
18. UNDERTAKINGS.......................................................... 39
18.1 DURATION........................................................ 39
18.2 FINANCIAL INFORMATION........................................... 39
18.3 OTHER INFORMATION............................................... 40
18.4 NOTIFICATION OF DEFAULT......................................... 40
18.5 COMPLIANCE CERTIFICATES......................................... 41
18.6 AUTHORISATIONS.................................................. 41
18.7 PARI PASSU RANKING.............................................. 41
18.8 NEGATIVE PLEDGE................................................. 41
4
18.9 TRANSACTIONS SIMILAR TO SECURITY................................ 41
18.10 BORROWINGS...................................................... 42
18.11 DISPOSALS....................................................... 42
18.12 MERGERS AND ACQUISITIONS........................................ 42
18.13 COMPLIANCE WITH LAWS AND PAYMENT OF TAXES....................... 42
18.14 CHANGE OF BUSINESS.............................................. 43
18.15 SHARE CAPITAL................................................... 43
18.16 DISTRIBUTIONS................................................... 43
18.17 INSURANCES...................................................... 43
18.18 CONDUCT OF BUSINESS............................................. 44
18.19 USE OF PROCEEDS................................................. 44
18.20 AMENDMENTS AND AGREEMENTS....................................... 44
18.21 FINANCIAL COVENANTS............................................. 44
19. DEFAULT............................................................... 45
19.1 EVENTS OF DEFAULT............................................... 45
19.2 NON-PAYMENT..................................................... 46
19.3 BREACH OF OTHER OBLIGATIONS..................................... 46
19.4 MISREPRESENTATION............................................... 46
19.5 LEGAL VALIDITY.................................................. 46
19.6 CROSS-DEFAULT................................................... 46
19.7 INSOLVENCY...................................................... 47
19.8 INSOLVENCY PROCEEDINGS.......................................... 47
19.9 APPOINTMENT OF RECEIVERS AND MANAGERS........................... 48
19.10 CREDITORS' PROCESS.............................................. 48
19.11 CESSATION OF BUSINESS........................................... 48
(A) THE BORROWER OR A HOLDING SUBSIDIARY CEASES, OR THREATENS TO
CEASE, TO CARRY ON ALL OR A SUBSTANTIAL PART OF ITS BUSINESS.... 48
19.12 ILLEGALITY...................................................... 48
19.13 EFFECTIVENESS OF SECURITY....................................... 49
19.14 CHANGE IN CONTROL............................................... 49
19.15 ABANDONMENT OR NATIONALISATION.................................. 49
19.16 MATERIAL ADVERSE EFFECT......................................... 49
19.17 MANGO ISRAEL.................................................... 49
19.18 ACCELERATION.................................................... 49
20. ACCOUNTS.............................................................. 50
20.1 OPENING OF ACCOUNTS............................................. 50
20.2 LOAN ACCOUNT.................................................... 51
20.3 REVENUE ACCOUNT................................................. 51
20.4 GENERAL PROVISIONS RELATING TO ACCOUNTS......................... 51
21. SECURITY.............................................................. 53
21.1 EFFECTIVE DATE.................................................. 53
21.2 SECURITY........................................................ 53
22. FEES AND EXPENSES..................................................... 53
22.1 ARRANGEMENT FEE................................................. 53
22.2 INITIAL AND SPECIAL COSTS....................................... 53
22.3 ENFORCEMENT COSTS............................................... 54
22.4 RETENTION....................................................... 54
22.5 VAT............................................................. 54
23. STAMP DUTIES.......................................................... 54
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24. INDEMNITIES........................................................... 54
24.1 CURRENCY INDEMNITY.............................................. 54
24.2 OTHER INDEMNITIES............................................... 55
25. EVIDENCE AND CALCULATIONS............................................. 55
25.1 ACCOUNTS........................................................ 55
25.2 CERTIFICATES AND DETERMINATIONS................................. 55
25.3 INTEREST CALCULATIONS........................................... 55
26. AMENDMENTS AND WAIVERS................................................ 55
26.1 AMENDMENTS...................................................... 55
26.2 WAIVERS AND REMEDIES CUMULATIVE................................. 56
27. CHANGES TO THE PARTIES................................................ 56
27.1 TRANSFERS BY BORROWER........................................... 56
27.2 TRANSFERS BY BANK............................................... 56
27.3 REFERENCE BANKS................................................. 56
28. DISCLOSURE OF INFORMATION............................................. 56
29. SET-OFF............................................................... 57
30. SEVERABILITY.......................................................... 57
31. COUNTERPARTS.......................................................... 57
32. NOTICES............................................................... 57
32.1 GIVING OF NOTICES............................................... 57
32.2 ADDRESSES FOR NOTICES........................................... 58
33. JURISDICTION.......................................................... 58
34. WAIVER OF IMMUNITY.................................................... 58
35. GOVERNING LAW......................................................... 59
36. THIRD PARTIES......................................................... 59
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THIS LOAN AGREEMENT is dated this 5thday of December 2005 between:
(1) ELSCINT LTD. a private company (with company number 52-003883-7) organised
and existing under the laws of the State of Israel, having its registered
office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, as borrower (the "BORROWER");
and
(2) BANK HAPOALIM B.M, a banking corporation incorporated in the State of
Israel, acting through its Main Tel Aviv branch, whose address is at ▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, as Bank (the "BANK"),
and amends and restates the Letter of Undertaking (as defined below).
WHEREAS the Borrower entered into a Letter of Undertaking in favour of the
Bank dated 23 October 2000, as amended from time to time ("LETTER OF
UNDERTAKING"), pursuant to which the Bank provided a credit facility
in two tranches to the Borrower in the aggregate amount of
US$100,000,000;
WHEREAS the Borrower has borrowed amounts of the facility provided under the
Letter of Undertaking and has repaid a certain amount of the total
outstandings borrowed under the Letter of Undertaking such that the
total amounts outstanding are, on the date hereof, the amounts set out
in Schedule 1 (Commitment), such amounts being divided between the
Tranche A Commitment and Tranche B Commitment hereunder. Any remaining
commitment under the Letter of Undertaking is cancelled in accordance
with the terms of this Agreement; and
WHEREAS the Bank has provided the Borrower with additional facilities in the
aggregate amount of US$12,000,000; and
WHEREAS the parties wish to amend and restate the terms of the credit facility
provided under the Letter of Undertaking and thereafter and the
security granted in favour of the Bank pursuant to the Letter of
Undertaking and thereafter, all subject to and in accordance with the
terms and conditions set out herein.
NOW, THEREFORE, IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
ACCOUNTS (a) the Loan Account; and
(b) the Revenue Account.
ADVANCE The principal amount of loans advanced hereunder
by the Bank, or the principal amount of such
advances which are from time to time outstanding,
as the case may be.
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AFFILIATE A Subsidiary or a Holding Company of the Bank or
any other Subsidiary of that Holding Company.
AGENCY Includes, in relation to a state or supranational
organisation, any agency, authority, central bank,
department, government, legislature, ministry,
official or public person (whether autonomous or
not) of, or of the government of, that state or
supranational organisation.
AGREEMENT This agreement.
ASTRID PLAZA COMPLEX The Astrid Plaza Complex, including inter alia,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, Belgium.
ASTRID PLAZA VALUATION Has the meaning given to such term in Clause
4.1(a) (Conditions Precedent) below.
AVAILABLE CURRENCY Euros, Dollars, Pounds Sterling, and, in the case
of Tranche D Advances only, Euros, Dollars, Pounds
Sterling and NIS.
BANK'S SPOT RATE OF The Bank's spot rate of exchange for the purchase
EXCHANGE of the relevant Available Currency in the London
foreign exchange market at or about 11.00a.m. on a
particular day.
BEA HOTELS BEA Hotels N.V., a company organized and existing
in the Netherlands with its registered office at
241 Keizerstracht, EA1016, Amsterdam.
BEA HOTELS LOANS Any loan made by the Borrower or a Holding
Subsidiary (other than BEA Hotels) to BEA Hotels
and that remains outstanding from time to time.
BORROWER FUNDED SUBSIDIARY The companies listed in Schedule 2, Part I as at
the date hereof and any other Subsidiary of the
Borrower engaged in the Business, where the Equity
Contributions of the Borrower in such Subsidiary
have been funded or refinanced, in whole or in
part, by the proceeds of the Facility.
BUSINESS The hotel business in Western and Central Europe,
including the development, acquisition,
refurbishment, conversion, extension and
construction of hotels, whether directly or
indirectly by the Borrower, or via its Borrower
Funded Subsidiaries and whether by way of direct
acquisition of rights in real estate or acting
through any other legal entity and, for the
purposes of Tranche C and Tranche D, the
acquisition and purchase of the business of Mango
Israel.
BUSINESS DAY A day (other than a Saturday or a Sunday) on which
banks are open for business in London, Tel-Aviv
and New York.
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BUSINESS GROUP The Borrower, the Holding Subsidiaries and the
Borrower Funded Subsidiaries.
CHARGE OVER ACCOUNTS The charge dated the date hereof executed by the
Borrower in favour of the Bank over the Accounts.
COMMITMENT PERIOD The period from the date of this Agreement to the
Term Date.
COST BASE (a) in relation to an Advance in Euros, EURIBOR;
(b) in relation to an Advance in Dollars or
Pounds Sterling, LIBOR; and
(c) in relation to an Advance in NIS, the Bank's
Wholesale Rate.
DEBT SERVICE In respect of a period, the aggregate amount of:
(a) all Finance Charges accrued or to be accrued
during that period; and
(b) all repayments and/or prepayments of
Financing Principal that fall due during
that period.
DEBT SERVICE COVER RATIO In respect of any period, the ratio of A:B where:
A Operating Profit for that period; and
B Debt Service for that period.
DEFAULT An Event of Default or an event or circumstance
which but for the giving of notice, passage of
time, the making of any determination or
fulfillment of any other applicable condition (or
any combination of the foregoing) would constitute
an Event of Default.
DISBURSEMENT REQUEST A disbursement request made by the Borrower,
substantially in the form of Schedule 6 (Form of
Disbursement Request).
DISTRIBUTION Any monies received from and/or transfers made by
any Borrower Funded Subsidiary deriving from the
Business which are made in respect of and/or
deriving from dividends, returns on capital,
repayments of share premium, payments with respect
to repayment of shareholder loans, award of loans
made to the Borrower by any Borrower Funded
Subsidiary, redemption, and/or any other
distribution of any kind or description
constituting a repayment or return on investment,
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in all cases net of bank charges, reasonable
brokerage fees and withholding taxes, but,
excluding Free Funds.
DOLLARS, USD, US DOLLARS The lawful currency for the time being of the
OR $ United States of America.
DRAWDOWN DATE A Business Day upon which any Advance is to be
made.
DRAWDOWN REQUEST A request made by the Borrower for an Advance,
substantially in the form of Schedule 5 (Form of
Drawdown Request).
EQUITY CONTRIBUTIONS The amounts specified in Schedule 2, Part II as at
the date hereof, and all other investments
(whether in the form of shareholder loans or as
equity investment) made, subject to the consent of
the Bank, by the Borrower (directly or indirectly
through a Holding Subsidiary) to each Borrower
Funded Subsidiary, with respect to a Project (as
amended by the Bank from time to time, upon a
prepayment in accordance with Clause 7.3
(Prepayment and Cancellation)).
EURO or EUROS or E The single currency of the Participating Member
States;
EURIBOR In relation to an Advance or unpaid sum
denominated in Euro for an Interest Period:
(a) the rate per annum equal to the rate for
deposits in Euro determined by the Banking
Federation of the European Union for the
relevant period, displayed on the Telerate
Screen page 248 or any equivalent successor
to that page or other page as appropriate
(as reasonably determined by the Bank) (for
the purposes of this definition, the
"Telerate Screen"); or
(b) if the relevant rates do not appear on the
Telerate Screen for the purposes of
paragraph (a) above, or the Bank reasonably
determines that no rate for a period of
comparable duration to the relevant Interest
Period appears on the Telerate Screen) the
arithmetic mean (rounded upwards to five
decimal places) of the rates, as supplied to
the Bank at its request, quoted by the
Reference Banks to leading banks in the
European Interbank Market,
at or about 11.00 a.m. on the relevant Rate
Fixing Day for the offering of deposits in Euro
for a period comparable to the relevant Interest
Period or relevant period in respect of any
unpaid sum.
EVENT OF DEFAULT An event specified as such in Clause 19.1 (Events
of Default).
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FACILITY Any of the facilities made available under this
Agreement as described in Clause 2 (Facility).
FACILITY OFFICE The main Tel Aviv branch of the Bank or such
other branch in Israel as may be designated by
the Bank by written notice to the Borrower at
least fifteen (15) days in advance.
FACILITY PERIOD The period commencing on the date of this
Agreement and ending on the Final Maturity Date.
FINAL MATURITY DATE (a) in respect of Tranche A and Tranche B, 31st
December, 2015;
(b) in respect of Tranche C, 31st December 2012;
and
(c) in respect of Tranche D, 31st December, 2010.
FINANCE CHARGES (a) interest, commissions, fees and costs
payable by the Borrower under the Finance
Documents;
(b) amounts ascertained as being payable by the
Borrower under Clause 13 (Taxes), Clause 15
(Increased Costs), Clause 23 (Stamp Duties)
and Clause 24 (Indemnities) of this
Agreement; and
(c) any value added or other taxes payable by
the Borrower in respect of the above,
but excluding Financing Principal.
FINANCE DOCUMENTS (a) this Agreement;
(b) each Security Document;
(c) the documentation required to open or
operate the Accounts,
and any other document designated as such by the
Bank and the Borrower.
FINANCIAL INDEBTEDNESS any indebtedness in respect of:
(a) moneys borrowed or debit balances at banks
and other financial institutions;
(b) any charge, bond, note, loan stock or other
security;
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(c) any acceptance or documentary credit;
(d) receivables sold or discounted (otherwise
than on a non-recourse basis);
(e) the acquisition cost of any asset to the
extent payable before or after the time of
acquisition or possession by the party
liable where the advance or deferred payment
is arranged primarily as a method of raising
finance or financing the acquisition of that
asset;
(f) any lease entered into primarily as a method
of raising finance or financing the
acquisition of the asset leased;
(g) any currency swap or interest swap, cap or
collar arrangement or any other derivative
instrument;
(h) any amount raised under any other
transaction having the commercial effect of
a borrowing or raising of money; or
(i) any guarantee, indemnity or similar
assurance against financial loss of any
person.
FINANCING PRINCIPAL Principal amounts outstanding from time to time
under this Agreement.
FREE FUNDS Any cash attributable to operating profits
generated by a Project which may become available
to the relevant Borrower Funded Subsidiary after
all debt service reserve and other retention and
security obligations of such Borrower Funded
Subsidiary have been satisfied or waived in
accordance with the terms of its senior credit
facility entered into for the purpose of the
relevant Project.
GAAP (a) in relation to the Borrower, the Israeli
accounting standards promulgated from time
to time by the Israeli Accounting Standards
Board (or equivalent body); and
(b) in relation to BEA Hotels, the international
accounting standards promulgated from time
to time by the International Accounting
Standards Committee.
GROUP At any time, the Borrower and its Subsidiaries at
that time.
GUARANTEE The guarantee entered into by Bea Hotels in
favour of the Bank, dated the date hereof, in
which Bea Hotels guarantees the obligations of
the Borrower pursuant to this Agreement in the
form and text attached as Schedule 8 (Form of
Guarantee).
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HOLDING COMPANY In relation to a person, means an entity of which
that person is a Subsidiary.
HOLDING SUBSIDIARY Each of:
(a) PEP Trust Ltd;
(b) Elscint Holdings & Investments N.V.; and
(c) BEA Hotels.
INSURANCE PROCEEDS All proceeds of Insurances payable, to or for the
account of, the Borrower whether by way of
claims, return of premiums or otherwise.
INSURANCES All contracts and policies of insurance and
re-insurance of any kind:
(a) pertaining to the Business and taken out by
or on behalf of any member of the Business
Group in accordance with the terms of the
Finance Documents; or
(b) in which the Borrower has an interest (to
the extent of its interest only).
INTEREST PERIOD Each period determined in accordance with Clause
8 (Interest Periods) by reference to which
interest on an Advance or an overdue amount is
calculated.
LIBOR With respect to any Interest Period, the rate of
interest on each respective Rate Fixing Day for 6
months deposits in Dollars or Pounds Sterling
with respect to such Interest Period (except for
the first Interest Period of each Advance which
might be of a shorter duration; such Interest
Period called for the purposes of this definition
"Special Interest Period"; which rate shall be
determined by the Bank in accordance with the
actual length of the respective Special Interest
Period) quoted on the display designated as page
"LIBOR 01" to subscribers of the "Reuters Money
Market", at or about 11:00 a.m. London time and,
rounded upward, if necessary to the nearest whole
multiple of one sixteenth of one per cent (1/16%).
LOAN ACCOUNT The account held at the Facility Office in the
name of the Borrower with account number 662960
so designated to be maintained in accordance with
this Agreement.
LOAN ASSIGNMENT The assignment by way of security dated the date
hereof entered into by the Borrower in favour of
the Bank in relation to the BEA Hotels Loans, in
the form attached hereto as
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Schedule 10 (Form of Loan Assignment).
MANGO ISRAEL Mango Israel Clothing & Footwear Ltd a company
(with registration number 51-255705-9) organised
and existing under the laws of the State of
Israel, having its registered office at ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇.
MANGO ISRAEL FACILITY The credit facility dated 5 May 2005 provided by
the Bank in favour of Mango Israel.
MANGO ISRAEL GUARANTEE The guarantee dated 4 May 2005 provided by the
Borrower in favour of the Bank pursuant to which
the Borrower guarantees all of Mango Israel's
financial obligations towards the Bank
(including, but not limited to, its obligations
under the Mango Israel Facility).
MARGIN 2.85% (two and eighty-five hundredths of one
percent) per annum, other than in relation to a
Tranche D Advance denominated in NIS, in which
case the Margin shall be 2.25% (two and one
quarter of one percent) per annum.
MATERIAL ADVERSE EFFECT Any effect which, in the opinion of the Bank:
(a) is or is likely to be materially adverse to
the ability of the Borrower to perform or
comply with its obligations under the
Finance Documents (including any of its
payment obligations under the Finance
Documents) in a timely manner; or
(b) is or is likely to be materially prejudicial
to:
(i) the interests of the Bank under the
Finance Documents; or
(ii) the business, operations or financial
condition of the Borrower.
OPERATING PROFIT The combined gross operating profit of the Astrid
Plaza Hotel before tax, plus amortisation and
depreciation calculated, in each case, in
accordance with GAAP and:
(a) in the case of a calculation with respect to
a year ending on 30 June in any year, as
shown in the two sets of half yearly
financial statements relating to that year
delivered to the Bank pursuant to this
Agreement and with reference to the
operating accounts for the ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇
Hotel for such period supplied pursuant to
this Agreement.
(b) in the case of a calculation with respect to
a year ending on 31 December in any year, as
shown in the financial statements relating
to that year delivered to the Bank pursuant
to and with reference to the operating
accounts for the Astrid Plaza Hotel for such
period supplied pursuant to this Agreement.
ORIGINAL DOLLAR AMOUNT In relation to an Advance, means:
(a) for an Advance denominated in U.S. Dollars,
its amount; or
(b) for an Advance denominated in an Available
Currency other than U.S. Dollars, the
equivalent in U.S. Dollars of the amount of
that Advance, calculated on the basis of the
Bank's Spot Rate of Exchange on the Rate
Fixing Day for such Advance.
ORIGINAL GROUP ACCOUNTS The audited and consolidated financial statements
of each of the Borrower and BEA Hotels for the
financial year ended 31st December, 2004.
PARTICIPATING MEMBER STATE A member state of the European Union that has
adopted the single currency as its lawful
currency under the legislation of the European
Union for European Monetary Union.
PARTY A party to this Agreement.
PERMITTED FINANCIAL Any Financial Indebtedness:
INDEBTEDNESS
(a) incurred under the Finance Documents
(including, but not limited to, the Mango
Israel Guarantee);
(b) of the Borrower or a Borrower Funded
Subsidiary incurred before the date hereof,
in favour of a financial institution in
respect of an existing Project;
(c) of the Borrower or a Borrower Funded
Subsidiary incurred on or after the date
hereof, in favour of a financial institution
in respect of a Refinancing or financing
(subject to the prior written consent of the
Bank); and
(d) (other than those set out above) of the
Borrower or a Borrower Funded Subsidiary
after the date hereof,
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incurred in favour of a financial institution
in respect of the purchase of a new asset
and/or in respect of the development and
construction of a new Project (subject to the
prior written consent of the Bank).
PERMITTED SECURITY INTEREST Any Security Interest:
(a) arising under the Security Documents;
(b) created by the Borrower or a Borrower Funded
Subsidiary before the date hereof, to a
financial institution in respect of an
existing Project (as referred to in Schedule
11 (Permitted Security Interests));
(c) created by the Borrower or a Borrower Funded
Subsidiary on or after the date hereof, to a
financial institution in respect of a
Refinancing (subject to the prior written
consent of the Bank); and
(d) (other than those set out above) created by
the Borrower or a Borrower Funded Subsidiary
after the date hereof, to a financial
institution in respect of the purchase of a
new asset and/or in respect of the
development and construction of a new
Project (subject to the prior written
consent of the Bank) provided that the
financial institution is funding such new
asset or Project,
provided that no Security Interest created by the
Borrower or any Borrower Funded Subsidiary after
the date hereof shall impair or rank ahead of any
Security Interest arising under the Security
Documents.
PLEDGES Each of the following pledges in favour of the
Bank:
(a) share pledge (first ranking) dated on or
about the date hereof, executed by the
Borrower over its shares in PEP Trust Ltd
(Israel);
(b) share pledge (first ranking) dated on or
about the date hereof, executed by PEP Trust
Ltd (Israel) over its shares in Elscint
Holdings and Investments N.V.;
(c) share pledge (first ranking) dated 1 August
2002, executed by Elscint Holdings and
Investments N.V. over its shares in Bea
Hotels;
(d) share pledge executed by Bea Hotels over its
shares in each of:
16
(i) Victory Enterprises II B.V., on or about
the date hereof (second ranking);
(ii) Grandis Hotel Holding B.V., dated 5
November 2002 (second ranking);
(iii) Victoria Hotel Holding B.V., dated 31
March 2003 (second ranking);
(iv) Riverbank Hotel Holding B.V., dated 31
March 2003 (second ranking); and
(v) Africana Holding B.V. (second ranking),
dated 5 November 2002;
(e) law lien agreement, dated on or about the
date hereof, executed by Bea Hotels over its
shares in Andrassy, 25 Kft (first ranking);
(f) share pledge dated on or about the date
hereof, executed by Victory Enterprises II
B.V. over its shares in Astrid Hotel
Holdings B.V. (first ranking) and Victoria
Hotel and Restaurant Investments B.V.
(second ranking);
(g) share pledge, dated on or about the date
hereof, executed by Astrid Hotel Holdings
B.V. in favour of the Bank over its shares
in Astridplaza N.V. (first ranking);
(h) mortgage dated on or about the date hereof,
executed by Astridplaza N.V and the Bank
over the ▇▇▇▇▇▇ ▇▇▇▇ Plaza Hotel (first
ranking); and
(i) share pledge dated on or about the date
hereof, executed by the Borrower over its
shares in Mango Israel (first ranking).
POUNDS STERLING, L or GBP The lawful currency for the time being of the
United Kingdom.
PROJECT Each project comprising the Business which has
been and/or shall be carried out by a Borrower
Funded Subsidiary.
PROJECT REQUEST A letter of request, substantially in the form
set out in Schedule 4, Part I (Form of Project
Request) pursuant to which the Borrower requests
approval of the Bank, in principle, to make an
Equity Contribution to a specific Project.
PROJECT CONSENT A letter of consent, substantially in the form
set out in
17
Schedule 4, Part II (Form of Project Consent),
pursuant to which the Bank agrees, in principle,
to the Borrower making an Equity Contribution to a
specific Project, as requested by the Borrower in
the relevant Project Request.
RATE FIXING DAY The second Business Day before the first day of
an Interest Period for an Advance (or such other
day as is generally treated as the rate fixing
day by market practice in the London interbank
market).
REFERENCE BANKS Subject to Clause 27.3 (Reference Banks), HSBC
plc, Citibank, The Royal Bank of Scotland and
Barclays Bank.
REFINANCING Any loan facility provided in favour of the
Borrower and/or a Borrower Funded Subsidiary in
respect of a Project, the proceeds of which are
applied in whole or in part to the repayment of
either:
(a) the construction loan facility in favour of
such Borrower Funded Subsidiary in respect
of the development of the relevant Project;
or
(b) any previous refinancing loan facility in
favour of such Borrower Funded Subsidiary in
respect of the relevant Project.
REVENUE ACCOUNT The account held at the Facility Office in the
name of the Borrower with account number 615520,
so designated to be maintained in accordance with
this Agreement.
REVENUES All amounts payable to and/or received by the
Borrower or a Borrower Funded Subsidiary and/or
to their account pertaining to the Business
including, without limitation:
(a) all revenues, loan repayments and
Distributions received from any Borrower
Funded Subsidiary;
(b) interest and other income earned on balances
standing to the credit of any bank accounts
held by (i) the Borrower in respect of the
Business; and (ii) Borrower Funded Subsidiary
(to the extent that such amounts are not
subject to a Security Interest in terms of
the senior debt facility taken out by that
Borrower Funded Subsidiary);
(c) all Insurance Proceeds; and
(d) all proceeds received upon a Refinancing,
sale, public offering or private placement.
18
SECURITY ASSET Any asset which is the subject of any Security
Interest under the Security Documents.
SECURITY DOCUMENTS (a) the Pledges;
(b) the Charges over Accounts;
(c) the Subordination Agreements;
(d) the Guarantee;
(e) the Mango Israel Guarantee; and
(f) the Loan Assignments,
and any other document evidencing or creating any
Security Interest over any asset of the Borrower
or Holding Subsidiary to secure any obligations
of the Borrower to the Bank under the Finance
Documents.
SECURITY INTEREST Any mortgage, pledge, lien, charge, assignment,
hypothecation or security interest or any other
agreement or arrangement having the effect of
conferring security.
SEMI-ANNUAL DATE 30th June and 31st December of each year.
SHAREHOLDER Elbit Medical Imaging Ltd., a company
incorporated and existing under the laws of the
State of Israel, with company number ▇▇-▇▇▇▇▇▇-▇.
SUBORDINATED CREDITOR Any Subsidiary or Holding Company of the Borrower
that provides debt funding to the Borrower, from
time to time.
SUBORDINATION AGREEMENTS (a) the subordination agreement dated the date
hereof between the Bank, the Borrower and
Elbit Medical Imaging Ltd; and
(b) each subordination agreement to be entered
into from time to time (substantially in the
form of Schedule 9 (Form of Subordination
Agreement)) in accordance with the terms of
Clause 18.10 (c).
SUBSIDIARY An entity from time to time of which a person has
direct or indirect control, or owns directly or
indirectly more than twenty five per cent. (25%)
of the share capital or similar right of
ownership.
TAXES Includes all present and future income and other
taxes, levies, imposts, deductions, charges and
withholdings in the nature of
19
taxes whatsoever together with interest thereon
and penalties with respect thereto, if any, and
any payments made on or in respect thereof and
"TAXATION" shall be construed accordingly.
TERM DATE The first anniversary of the date of this
Agreement.
TOTAL COMMITMENT The aggregate of the Tranche A Commitment, the
Tranche B Commitment, the Tranche C Commitment,
Tranche D Commitment and the Mango Israel
Facility.
TRANCHE A, TRANCHE B, Have the meaning given to such terms in Clause 2
TRANCHE C and TRANCHE D (Facility).
TRANCHE A ADVANCE Any Advance made under Tranche A.
TRANCHE A COMMITMENT The Euro amount set out in the "TRANCHE A
COMMITMENT" column in Schedule 1 (Commitment), to
the extent not cancelled, transferred or reduced
under this Agreement.
TRANCHE A REPAYMENT The schedule of principal amounts to be repaid by
SCHEDULE the Borrower on the last day of each Interest
Period up to and including the Final Maturity
Date, as specified in Schedule 7 (Tranche A
Repayment Schedule) on the basis of the
outstanding Tranche A Advances on the date hereof
and as may be amended from time to time in
accordance with Clause 6.4 (Tranche A Repayment
Schedule).
TRANCHE B ADVANCE Any Advance made under Tranche B.
TRANCHE B COMMITMENT The aggregate of the Euro, US Dollar and Pounds
Sterling amounts set out in the "TRANCHE B
COMMITMENT" column in Schedule 1 (Commitment), to
the extent not cancelled, transferred or reduced
under this Agreement.
TRANCHE C ADVANCE Any Advance made under Tranche C.
TRANCHE C COMMITMENT The aggregate of the Euro, US Dollar and Pounds
Sterling amounts set out in the "TRANCHE C
COMMITMENT" column in Schedule 1 (Commitment), to
the extent not cancelled, transferred or reduced
under this Agreement.
TRANCHE D ADVANCE Any Advance made under Tranche D.
TRIGGER EVENT Has the meaning ascribed to such term in Clause
7.4(b)(Mandatory Prepayment).
WHOLESALE RATE The rate per annum determined from time to time
by the Bank, to be the basic rate, before the
application of any margin, at
20
which the Bank is willing to grant to its
customers in general loans in NIS for a similar
term as each Advance, as published internally by
the Bank from time to time, such rate being
generally applicable to all branches of the Bank
in Israel.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) an "AMENDMENT" includes a supplement, novation or re-enactment and
"AMENDED" is to be construed accordingly;
"ASSETS" includes properties, revenues and rights of every
description;
an "AUTHORISATION" includes an authorisation, consent, approval,
resolution, licence, exemption, filing and registration;
"CONTROL" means the power to direct the management and policies of an
entity, whether through the ownership of voting capital, by contract
or otherwise;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the day before the numerically corresponding day
in the next calendar month, except that if there is no numerically
corresponding day in the month in which that period ends, that period
shall end on the last day in that calendar month;
a "PERSON" includes any person, firm, company, corporation,
partnership, association, government, state, Agency or other entity or
one or more of them;
a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of any
governmental, inter-governmental or supranational body, Agency,
department or regulatory, self-regulatory or other authority or
organisation;
a "SCREEN" or a "PAGE" on a "Screen" in the definition of "LIBOR" and
"EURIBOR" includes any replacement screen or page nominated by the
British Bankers Association as the information vendor for the purpose
of displaying British Bankers Association Interest Settlement Rates
for deposits in various currencies;
(ii) a provision of law is a reference to that provision as amended or
re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a schedule to
this Agreement;
(iv) a person includes its successors and/or assigns;
21
(v) a Finance Document or another document is a reference to that Finance
Document or other document as amended, subject to compliance with the
terms of this Agreement;
(vi) a time of day is a reference to Tel Aviv time; and
(vii) any representation by the Borrower, being to the best of its
knowledge shall be deemed to be to the best of such person's knowledge
after due inquiry.
(b) Unless the contrary intention appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.
(c) The index to and the headings in this Agreement are for convenience only
and are to be ignored in construing this Agreement.
(d) In this Agreement, words denoting the singular include the plural and vice
versa; words denoting any gender include all genders.
1.3 RESTATEMENT AND AMENDMENT
(a) With effect from the date hereof:
(i) Other than as set out in paragraph (iv) below, the Letter of
Undertaking will be replaced in its entirety by the terms and
conditions set out in this Agreement, and, accordingly, the rights and
obligations of the parties relating to their future performance under
the Letter of Undertaking will be governed by, and construed solely in
accordance with the terms and conditions set out in this Agreement.
(ii) the Parties acknowledge that certain amounts borrowed under the Letter
of Undertaking have been repaid, and that neither Party has any claim
against the other with respect to the advance and repayment of such
amounts.
(iii) all commitment of the Bank under the Letter of Undertaking, other
than an amount equal to the aggregate of the Tranche A Commitment and
Tranche B Commitment, is hereby cancelled.
(iv) the Borrower confirms and acknowledges that, subject to paragraphs
(ii) and (iii) above:
(A) its outstanding liabilities under the Letter of Undertaking and
this Agreement shall, with effect from and including the date
hereof, continue in full force and effect; and
(B) it is not (and shall not be treated as being) exonerated or
discharged in any way whatsoever and howsoever arising from the
whole or any part of its outstanding liabilities under the Letter
of Undertaking and this Agreement, nor shall its outstanding
liabilities under the Letter of Undertaking and this Agreement be
in any way determined, lessened,
22
impaired or affected by virtue of any provisions of this
Agreement and/or the amendment, modification and restatement of
the Letter of Undertaking provided for herein or by any other
means whatsoever and howsoever arising which, but for this
confirmation, would or might operate to exonerate or discharge
the Borrower from the whole or any part of its outstanding
liabilities or otherwise affect any of the same under the Letter
of Undertaking and this Agreement.
(b) For the avoidance of doubt, interest, fees and other amounts accrued under
this Agreement prior to the date hereof shall be calculated in accordance
with the Letter of Undertaking.
2. FACILITY
(a) Subject to the terms of this Agreement, the Bank shall continue to make
available to the Borrower during the Facility Period, the following
facilities:
(i) a term loan facility in an aggregate amount equal to the Tranche A
Commitment, to be designated as Tranche A;
(ii) a term loan facility in an aggregate amount equal to the Tranche B
Commitment, to be designated as Tranche B;
(iii) a term loan facility in an aggregate amount equal to the Tranche C
Commitment, to be designated as Tranche C; and
(iv) a term loan facility in an amount which, when aggregated the Mango
Israel Facility, does not exceed US$4,021,000 (four million and
twenty one thousand US Dollars), to be designated as Tranche D,
provided that the parties acknowledge that Tranche D is fully drawn at
the date hereof.
(b) The Bank shall only be obliged to lend if the conditions precedent under
Clause 4 (Conditions Precedent) have been satisfied in accordance with the
terms of that Clause.
3. PURPOSE
3.1 TRANCHE A ADVANCES
The Tranche A Advance is solely to fund (whether directly, indirectly
and/or by the refinancing of any BEA Hotels Loans) the acquisition,
construction and development of the Astrid Plaza Complex.
3.2 TRANCHE B ADVANCES
The Tranche B Advance is solely to fund the Borrower's Equity Contributions
to the Borrower Funded Subsidiaries with respect to Projects approved by
the Bank carried out by such Borrower Funded Subsidiaries.
3.3 TRANCHE C ADVANCES
23
Each Tranche C Advance is solely to fund the acquisition by the Borrower of
100% of the equity and voting rights of Mango Israel.
(
3.4 TRANCHE D ADVANCES
Each Tranche D Advance is solely to fund the operation of Mango Israel.
3.5 NO OBLIGATION TO MONITOR
Without affecting the obligations of the Borrower in any way, the Bank has
no duty to monitor or verify the application of any Advance.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
The obligations of the Bank to the Borrower under this Agreement are
subject to the condition precedent that the Bank has received:
(a) an original letter addressed to the Bank setting out the valuation of
the Astrid Plaza Complex (the "ASTRID PLAZA VALUATION"), such
valuation to be carried out by an independent surveyor chosen by the
Borrower to the satisfaction of the Bank; and
(b) originals, or where appropriate, copies certified as true, complete
and up-to-date by an authorised signatory of all of the documents set
out in Schedule 3 (Conditions Precedent Documents) in form and
substance satisfactory to the Bank.
4.2 FURTHER CONDITIONS PRECEDENT
The obligation of the Bank to make any Advance under Clause 5.3 (Advances)
or Clause 11 (Amount of Available Currencies) is subject to the further
conditions precedent that:
(a) the amount of such Tranche D Advance does not, when added to the
aggregate of all outstanding Tranche D Advances and all outstanding
amounts under the Mango Israel Facility, exceed US$4,021,000 (four
million and twenty one thousand US Dollars);
(b) the amount of such Advance does not, when added to the aggregate of
all outstanding Advances, exceed the Total Commitment;
(c) on both the date of the Drawdown Request and the Drawdown Date:
(i) the representations and warranties in Clause 17 (Representations
and Warranties) to be repeated on those dates are correct and
will be correct immediately after the Advance is made; and
(ii) no Default is outstanding or would be likely to result from the
Advance;
24
(d) the Borrower has submitted a Project Request to the Bank in respect of
the Project to which the Advance relates;
(e) the Borrower has received a Project Consent from the Bank in respect
of the Project to which the Advance relates; and
(f) with respect to a Tranche C Advance for the purpose described in
Clause 3.1(ii) above, the Borrower has entered into the Security
Document described in paragraph (f) of the definition of Security
Document.
5. DRAWDOWN
5.1 COMMITMENT PERIOD
(a) The Borrower may borrow an Advance during the Commitment Period if the Bank
receives, not later than 11.00 a.m., ten Business Days before the proposed
Drawdown Date, a duly completed Drawdown Request. Each Drawdown Request is
irrevocable.
(b) The undrawn amount of the Facility shall be automatically cancelled at
close of business on the Term Date.
5.2 COMPLETION OF DRAWDOWN REQUESTS
A Drawdown Request will not be regarded as having been duly completed
unless:-
(a) it identifies the Project to which the Advance relates and whether the
Advance is to be a Tranche C Advance or a Tranche D Advance;
(b) the Drawdown Date is a Business Day falling on or before the last day of
the Commitment Period;
(c) the amount of the Advance is:
(i) at least US$100,000 (or its equivalent in accordance with Clause 11
(Amount of Available Currencies)); or
(ii) the maximum undrawn amount available under the Facility on the
proposed Drawdown Date; or
(iii) such other amount as the Bank may agree in writing; and
(d) each Drawdown Request must specify one Advance only, but the Borrower may,
subject to the other terms of this Agreement, deliver more than one
Drawdown Request on any one day;
25
5.3 ADVANCE
(a) Subject to the terms of this Agreement, the Bank shall make each Advance
available to the Borrower on the relevant Drawdown Date pursuant to the
relevant Drawdown Request.
(b) The entire amount of the Advance shall be deposited in the Loan Account
from which withdrawals may only subsequently be made for the purposes
specified in Clause 3 and in accordance with the procedures set out in
Clause 20 (Accounts and Cashflow Priorities).
5.4 CONSOLIDATION
(a) All outstanding Advances on the date of this Agreement shall be
consolidated, to form one single Tranche A Advance in the amount of the
Tranche A Commitment and one single Tranche B Advance per currency in the
amount of the Tranche B Commitment.
(b) All outstanding Tranche C Advances and Tranche D Advances on the Term Date
shall be consolidated to form one Tranche C Advance per currency and one
Tranche D Advance per currency, respectively.
6. REPAYMENT
6.1 TRANCHE A REPAYMENT
The Borrower shall repay the outstanding Tranche A Advances in accordance
with the Tranche A Repayment Schedule.
6.2 TRANCHE B REPAYMENT
The Borrower shall repay the outstanding Tranche B Advances in accordance
with Clause 7.3 (Mandatory Prepayment), and in any event as follows:
(a) 50% of the outstanding Tranche B Advances shall be repaid no later
than 31st December, 2010; and
(b) the remaining 50% of the outstanding Tranche B Advances shall be
repaid on the Final Maturity Date.
In the event that the Borrower is required to repay amounts in accordance
with paragraph (a) above, such repaid amounts shall be attributed pro rata
to the Equity Contributions outstanding at such time.
6.3 TRANCHE C REPAYMENT
The Borrower shall repay the outstanding Tranche C Advances in ten equal
semi-annual installments, with the first installment due and payable pay on
the second anniversary of the date of the Agreement.
26
6.4 TRANCHE D REPAYMENT
The Borrower shall repay all outstanding Tranche D Advances on the Final
Maturity Date.
6.5 CURRENCY
Each Advance shall be repaid in the Available Currency in which such
Advance was borrowed.
6.6 TRANCHE A REPAYMENT SCHEDULE
In the event that any Tranche A Advance is prepaid by the Borrower in whole
or in part in accordance with any of Clauses 7.1 (Voluntary Prepayment) to
7.3 (Mandatory Prepayment) inclusive below, the amount of such prepayment
shall be applied pro rata against all future repayment installments, and
the Tranche A Repayment Schedule amended accordingly.
6.7 RE-BORROWING
No amounts repaid or prepaid by the Borrower to the Bank with respect to
Tranche A, Tranche B, Tranche C or Tranche D may be re-borrowed.
7. PREPAYMENT AND CANCELLATION
7.1 VOLUNTARY PREPAYMENT
(a) The Borrower may, by giving not less than 30 days' prior notice to the
Bank, prepay any Advance in whole or in part (but if in part, at least the
equivalent of E100,000) provided that the prepayment is made on the last
day of an Interest Period for that Advance.
(b) Subject to Clause 7A.1 (Request to convert Available Currency), no prepaid
amount may be reborrowed after the Commitment Period.
7.2 VOLUNTARY CANCELLATION
The Borrower may, by giving not less than 30 days' prior notice to the
Bank, cancel the undrawn amount of the Facility (if any) in whole or in
part (but if in part in a minimum amount of E1,000,000 and an integral
multiple of E100,000) at any time without premium or penalty. No amount of
the Facility cancelled may subsequently be redrawn or reinstated.
7.3 MANDATORY PREPAYMENT
(a) The Borrower shall, upon the occurrence of any Trigger Event (as such term
is defined in sub-clause (b) of this Clause 7.3) deposit all Revenues
arising from such Trigger Event in the Revenue Account immediately upon
receipt thereof. On the last day of the Interest Period in which the
Revenues deriving from a Trigger Event have been deposited into the
27
Revenue Account as aforesaid, the Bank shall apply the balance of the
Revenue Account as follows:
(i) Revenues deriving from a Trigger Event in connection with the Astrid
Plaza Complex Project shall be applied in prepayment of outstanding
Tranche A Advances;
(ii) Revenues deriving from a Trigger Event in connection with a Project
funded by a Tranche B Advance or, as the case may be, Tranche C
Advance, shall be applied in prepayment of outstanding Tranche B
Advances or, as the case may be, outstanding Tranche C Advances, to
the extent only of the Equity Contribution made by the Borrower in
relation to such Project;
(iii) Revenues deriving from a Trigger Event in connection with Mango
Israel shall be applied in prepayment of outstanding Tranche D
Advances; and
(iv) Revenues deriving from a Trigger Event in connection with Bea Hotels
shall be applied, first, in prepayment of outstanding Tranche B
Advances and, thereafter, in prepayment of outstanding Tranche A
Advances.
(b) For the purposes of this Clause 7.3 (Mandatory Prepayment) each of the
following events constitutes a Trigger Event:
(i) any public offering or private placement of any securities of the
Borrower or any Borrower Funded Subsidiary;
(ii) a merger or consolidation of the Borrower or any Borrower Funded
Subsidiary with any other entity (other than in relation to those
corporate events set out in the letter of consent from the Bank to the
Borrower, dated 1 November 2005);
(iii) a sale, assignment, lease, or other disposal of (whether in one
transaction or a series of transactions) any of the assets (whether in
whole or in part) of the Borrower or any Borrower Funded Subsidiary,
including any shareholdings in any such Borrower Funded Subsidiary and
any intellectual property to any person or entity;
(iv) a refinancing of any debt of the Borrower;
(v) a Refinancing of any debt of any Borrower Funded Subsidiary; or
(vi) the receipt by the Borrower of any Distributions.
(c) In the event that any Advance is prepaid by the Borrower (whether in whole
or in part) in accordance with this Clause 7.3, the amount of the Equity
Contribution relating to the Project which is the subject of the Trigger
Event that occurred, shall be reduced by the amount of such prepayment, and
Schedule 2, Part II (Equity Contributions) shall be amended by the Bank
accordingly.
28
7.4 REPAYMENT INTO LOAN ACCOUNT
Unless otherwise directed by the Bank, all repayments and prepayments of
amounts outstanding under this Agreement, shall be made into the Loan
Account.
7.5 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment or cancellation under this Agreement is
irrevocable.
(b) Any partial prepayment shall be applied, in equal shares to all future
principal repayment installments.
(c) Any prepayments under this Agreement shall be made together with accrued
interest and all other amounts accrued under the Finance Documents
(including, without limitation pursuant to Clause 24 (Indemnities)).
(d) No prepayment or cancellation is permitted except in accordance with the
express terms of this Agreement.
(e) To the extent that the payment of amounts to the Revenue Account after any
of the Trigger Events set out in Clause 7.3 (Mandatory Prepayment) is
dependent upon a distribution being made by a Borrower Funded Subsidiary
and/or by a Holding Subsidiary, the Borrower shall procure that such
distributions are made in order that such amounts may be paid by the
Borrower into the Revenue Account in accordance with Clause 7.3 (Mandatory
Prepayment).
(f) No prepayment penalties shall be imposed upon a prepayment in accordance
with the provisions of this Clause 7.
8. INTEREST PERIODS
8.1 SELECTION
(a) Each Advance has successive Interest Periods.
(b) Each Interest Period shall be a six-month period provided, however, that:
(i) the first Interest Period of each Advance shall commence on the date
of such Advance and shall end on the next Semi-annual Date; and
(ii) the final Interest Period shall end upon the Final Maturity Date.
8.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period shall instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
9. INTEREST
29
9.1 INTEREST RATE
The rate of interest on each Advance for each of its Interest Periods is
the rate per annum determined by the Bank to be the aggregate of:
(a) the Cost Base; and
(b) the Margin.
9.2 DUE DATES
Accrued interest on each Advance is payable by the Borrower on the last day
of each Interest Period for that Advance.
9.3 DEFAULT INTEREST
(a) If the Borrower fails to pay any amount payable by it under the Finance
Documents, it shall, forthwith on demand by the Bank, pay interest on the
overdue amount from the due date up to the date of actual payment, after as
well as before judgment, at the default rate of interest customary at the
Bank at such time for loans in the Available Currency, provided that the
default rate shall, in no event, be lower than 5.5% (five and one-half
percent) above the interest rate due to be paid on the overdue amount in
accordance with Clause 9.1 (Interest Rate).
(b) If the Bank determines that deposits in the currency of the overdue amount
are not at the relevant time being made available by the Reference Banks to
leading banks in the London interbank market, the default rate will be
determined by reference to the cost of funds to the Bank from whatever
sources it may select.
(c) Default interest shall be due and payable on demand and shall be compounded
periodically, as customary in the Bank from time to time.
9.4 NOTIFICATION
The Bank shall promptly notify the Borrower of the determination of a rate
of interest under this Agreement.
10. SELECTION OF AVAILABLE CURRENCIES
10.1 SELECTION
(a) The Borrower may select the Available Currency of a Tranche D Advance, in
the relevant Drawdown Request.
(b) Each part of a Tranche D Advance, which is to be denominated in a different
currency from any other part of that Advance will be treated as a separate
Tranche D Advance.
10.2 REVOCATION OF CURRENCY
If before 9.30 a.m. on any Rate Fixing Day:
30
(a) it is impracticable for the Bank to fund the Tranche D Advance, in the
relevant Available Currency during that Interest Period in the ordinary
course of business in the London interbank market; and/or
(b) the use of the proposed Available Currency might contravene any law or
regulation,
the Bank shall give notice to the Borrower to that effect before 11.00 a.m.
on that day. In this event:
(i) the Borrower and the Bank may agree that the drawdown will not be
made; or
(ii) in the absence of agreement and in any other case:
(1) the Advance shall be treated as a separate Tranche D Advance,
during the relevant Interest Period;
(2) in the definition of "LIBOR" or "EURIBOR" (insofar as it applies
to that Advance) in Clause 1.1 (Definitions):
(A) there shall be substituted for the time "11.00 a.m." the
time "1.00 p.m."; and
(B) paragraph (b) of that definition shall apply to the extent
applicable.
11. AMOUNT OF AVAILABLE CURRENCIES
11.1 DRAWDOWNS
If a Tranche D Advance, is to be drawn down in or, as the case may be, is
to be converted into an Available Currency (other than US Dollars), the
amount of that Tranche D Advance, will be determined by converting into
that Available Currency the Original Dollar Amount of that Tranche D
Advance, on the basis of the Bank's Spot Rate of Exchange three Business
Days before its Drawdown Date.
11.2 PREPAYMENTS AND REPAYMENTS
Any Tranche D Advance in an Available Currency, as well as any interest
payable thereon, shall be repaid or prepaid in the same Available Currency
as such Tranche D Advance.
11.3 FACILITY AMOUNT
If, on the last day of an Interest Period, the Tranche D Advances when
converted into US Dollars on the basis of the Bank's Spot Rate of Exchange
exceed the Total Commitment, the Borrower shall prepay such excess amount
within 3 Business Days.
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12. PAYMENTS
12.1 PLACE
All payments by the Borrower under the Finance Documents shall be made to
the Bank to its account at the Facility Office or such other place as the
Bank may notify to the Borrower for this purpose five (5) Business Days in
advance.
12.2 FUNDS
Payments under the Finance Documents to the Bank shall be made for value on
the due date at such times and in such manner as the Bank may specify to
the Borrower as being customary at the time for the settlement of
transactions in the currency of the relevant Advance.
12.3 APPLICATION
The Bank may apply any amount received by it for the Borrower in or towards
payment (on the date and in the currency and funds of receipt) of any
amount due from the Borrower under the Finance Documents or in or towards
the purchase of any amount of any currency to be so applied.
12.4 CURRENCY
(a) Amounts payable in respect of costs, expenses and Taxes and the like are
payable in the currency in which they are incurred.
(b) Any other amount payable under the Finance Documents is, except as
otherwise provided in the Finance Documents, payable in Euros.
12.5 SET-OFF AND COUNTERCLAIM
All payments made by the Borrower under the Finance Documents shall be made
without set-off or counterclaim.
12.6 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under the
Finance Documents, interest is payable on that principal at the rate
prevailing on the original due date.
12.7 PARTIAL PAYMENTS
(a) If the Bank receives a payment insufficient to discharge all the amounts
then due and payable by the Borrower under the Finance Documents, the Bank
shall apply that
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payment towards the obligations of the Borrower under the Finance Documents
in the following order:
(i) FIRST, in or towards payment of any unpaid fees, costs and expenses of
the Bank;
(ii) SECONDLY, in or towards payment of any Finance Charges due but unpaid
under this Agreement;
(iii) THIRDLY, in or towards payment of any Financing Principal due but
unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment of any other sum due but unpaid under
the Finance Documents.
(b) Paragraph (a) above shall override any appropriation made by the Borrower.
13. TAXES
All payments by the Borrower under the Finance Documents shall be made
without any deduction and free and clear of and without deduction for or on
account of any Taxes, except to the extent that the Borrower is required by
law to make payment subject to any Taxes. If any Tax or amounts in respect
of Tax must be deducted, or any other deductions must be made, from any
amounts payable or paid by the Borrower, or paid or payable by the Bank
under the Finance Documents, the Borrower shall pay such additional amounts
as may be necessary to ensure that the Bank receives a net amount equal to
the full amount which it would have received had payment not been made
subject to Tax or other deduction.
14. MARKET DISRUPTION
14.1 ABSENCE OF QUOTATIONS
If a Reference Bank does not supply an offered rate by 1.00 p.m. two
Business Days before the first day of an Interest Period, the applicable
LIBOR or, as the case may be, EURIBOR shall, subject to Clause 14.2 (Market
disruption), be determined on the basis of the quotations of the remaining
Reference Banks.
14.2 MARKET DISRUPTION
If in relation to any Interest Period the Bank determines (which
determination shall be conclusive and binding) that:
(a) by reason of circumstances affecting the London interbank market generally,
adequate and fair means do not exist for ascertaining LIBOR or EURIBOR for
that Interest Period; or
(b) deposits in Euros or Dollars in the amount required for that Interest
Period are not available to the bank in the London interbank market,
33
the Bank shall promptly notify the Borrower accordingly, and no Advance or
further Advance (as the case may be) shall be made, unless and until an
alternative basis is agreed in accordance with Clause 14.4 (Alternative
basis for outstanding loans) below or unless or until the Bank notifies the
Borrower that such circumstances no longer exist.
14.3 SUSPENSION OF DRAWDOWNS
If a notification under Clause 14.2 (Market Disruption) applies to an
Advance which has not been made, that Advance shall not be made. However,
within five Business Days of receipt of the notification, the Borrower and
the Bank shall enter into negotiations for a period of not more than 30
days with a view to agreeing to an alternative basis for the borrowing of
that and any future Advance.
14.4 ALTERNATIVE BASIS FOR OUTSTANDING ADVANCES
If a notification under Clause 14.2 (Market Disruption) applies to an
Advance which is outstanding, then, notwithstanding any other provision of
this Agreement:
(a) within five Business Days of receipt of the notification, the Borrower and
the Bank shall enter into negotiations for a period of not more than 30
days with a view to agreeing to an alternative basis for determining the
rate of interest or funding or both applicable to that Advance or any other
Advances;
(b) any alternative basis agreed under paragraph (a) above shall be binding on
the Parties;
(c) if no alternative basis is agreed, the Bank shall certify, on or before the
last day of the Interest Period to which the notification relates, an
alternative basis for maintaining the Advance;
(d) any such alternative basis may include an alternative method of fixing the
interest rate, alternative Interest Periods or alternative currencies but
it must reflect the cost to the Bank of funding its participation in the
Advance from whatever sources it may select plus the Margin; and
(e) each alternative basis so certified shall be binding on the Borrower and
the Bank and treated as part of this Agreement.
15. INCREASED COSTS
15.1 INCREASED COSTS
(a) Subject to Clause 15.2 (Exceptions), the Borrower shall forthwith on demand
by the Bank, providing a computation of the relevant amount in reasonable
detail, pay to the Bank the amount of any increased cost incurred by it or
any of its Affiliates as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of, any law or banking regulation; or
(ii) compliance with any regulation made,
34
after the date of this Agreement,
(including any law or regulation relating to taxation (excluding income
tax), monetary union, or reserve asset, special deposit, cash ratio,
liquidity or capital adequacy requirements or any other form of banking or
monetary control).
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by the Bank or any of its Affiliates as a
result of it having entered into, or performing, maintaining or
funding its obligations under, any Finance Document;
(ii) that portion of any additional cost incurred by the Bank or any of its
Affiliates in making, funding or maintaining all or any advances
comprised in a class of advances formed by or including the Bank's
participations in any Advance made or to be made under this Agreement
as is attributable to the Bank making, funding or maintaining those
participations; and
(iii) the amount of any payment made by the Bank or any of its Affiliates,
or the amount of any interest or other return foregone by the Bank or
any of its Affiliates, calculated by reference to any amount received
or receivable by the Bank or any of its Affiliates from any other
Party under this Agreement.
15.2 EXCEPTIONS
Clause 15.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the operation of Clause 13 (Taxes); or
(b) attributable to any change in the rate of, or change in the basis of
calculating, Tax on the overall net income of the Bank (or the overall net
income of a division or branch of the Bank) imposed in the jurisdiction in
which its principal office or Facility Office is situate.
16. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for the Bank to give
effect to any of its obligations as contemplated by this Agreement or to
fund or maintain any Advance, then:
(a) the Bank may notify the Borrower accordingly; and
(b) (i) the Borrower shall forthwith prepay that Advance together with all
other amounts payable by it to the Bank under the Finance Documents
(including, without limitation, pursuant to Clause 24 (Indemnities));
and
(ii) the Bank's undrawn Facility will forthwith be cancelled.
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17. REPRESENTATIONS AND WARRANTIES
17.1 REPRESENTATIONS AND WARRANTIES
The Borrower makes the representations and warranties set out in this
Clause 17 (Representations and Warranties) to the Bank, in reliance on
which the Bank has entered into the Agreement.
17.2 STATUS
(a) It is a private company, duly organised and validly existing under the laws
of the State of Israel;
(b) each member of the Business Group is a company, duly organized and validly
existing under the laws of the country of its incorporation; and
(c) each member of the Group has the power to own its assets and carry on its
business as it is being conducted.
17.3 POWERS AND AUTHORITY
It, and each member of the Business Group, has the power to enter into and
perform, and has taken all necessary action to authorise the entry into,
performance and delivery of, the Finance Documents to which it is or will
be a party and the transactions contemplated by those Finance Documents.
17.4 LEGAL VALIDITY
Each Finance Document to which it, or each member of the Business Group, is
or will be a party constitutes, or when executed in accordance with its
terms will constitute, its legal, valid and binding obligation enforceable
in accordance with its terms.
17.5 NON-CONFLICT
The entry into and performance by it, and each member of the Business
Group, of, and the transactions contemplated by, the Finance Documents do
not and will not:-
(a) conflict with any law or regulation or judicial or official order; or
(b) conflict with the constitutional documents of any member of the Group; or
(c) conflict with any document which is binding upon any member of the Group or
any asset of any member of the Group.
17.6 NO DEFAULT
(a) No Default is outstanding or might result from the making of any Advance;
and
(b) no other event is outstanding which constitutes (or with the giving of
notice, passage of time, the making of any determination or fulfillment of
any other applicable condition or
36
any combination of the foregoing, might constitute) a default under any
document which is binding on the Borrower or any member of the Group or any
asset of the Borrower or any member of the Group.
17.7 AUTHORIZATIONS
All authorizations required in connection with the entry into, performance,
validity and enforceability of the Finance Documents and the transactions
contemplated by the Finance Documents have been obtained or effected and
are in full force and effect.
17.8 LITIGATION
No material litigation, arbitration or administrative proceedings are
current or, to the best of its knowledge, pending or threatened, which
might, if adversely determined, have a Material Adverse Effect, which are
not reflected in the Original Group Accounts.
17.9 INFORMATION
(a) All information provided or delivered by it to the Bank was true, correct
and complete in all material respects and not misleading in any material
respect as of the date that it was delivered; and
(b) all information provided or delivered by it to the Bank did not omit, as at
the date that it was delivered, any information which, if disclosed, might
adversely affect the decision of a financial institution considering
whether to enter into this Agreement.
17.10 FINANCIAL STATEMENTS
The audited and consolidated financial statements or the reviewed financial
statements (as the case may be) of the Borrower, BEA Hotels and the
Borrower Funded Subsidiaries most recently delivered to the Bank (which, at
the date of this Agreement, are the Original Group Accounts):
(a) have been prepared in accordance with GAAP, consistently applied; and
(b) give a true and fair view of the financial condition of the Borrower
and BEA Hotels as of the date to which they were drawn up,
and there has been no material adverse change in the financial condition of
the Borrower, BEA Hotels and each of the Borrower Funded Subsidiaries since
the date on which those financial statements were drawn up.
17.11 COMPLIANCE
It, and each member of the Business Group, is currently complying with
applicable laws and regulations in all material respects and there is no
event or circumstance which would be likely to cause it to cease to comply
with such laws and regulations in any material respect.
17.12 INSURANCES
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All Insurances are or, at the time they are required to be maintained or
effected, will be, in full force and effect and so far as it is aware no
event or circumstance has occurred, nor has there been any omission to
disclose a fact, which would in either case entitle any insurer to avoid or
otherwise reduce its liability under any policy relating to the Insurances.
17.13 TITLE AND OWNERSHIP
The Borrower and each member of the Business Group has good and marketable
title to its assets (including without limitation, in the case of the
Borrower, to any securities held by it, directly or indirectly, in any
Borrower Funded Subsidiary) free and clear of all Security Interests (other
than Permitted Security Interests).
17.14 STATUS OF SECURITY
Each Security Document confers the Security Interests it purports to confer
over all of the assets referred to in it and those Security Interests:
(a) are not subject to any prior or higher ranking or pari passu Security
Interests (other than any Permitted Security Interests); and
(b) are not void or liable to avoidance, due to the insolvency of the Borrower
on the date of execution of the relevant Security Document, on liquidation
or bankruptcy, composition or any other similar insolvency proceedings.
17.15 PARI PASSU RANKING
The Borrower's obligations under the Finance Documents rank and will rank
at least pari passu with all its other unsecured obligations, except for
obligations mandatorily preferred by law applying to companies generally.
17.16 INDEBTEDNESS
The Borrower does not have any outstanding indebtedness to:
(a) any of its shareholders, to any holding company of it shareholders or
to any other member of the Group (other than as approved in writing by
the Bank); or
(b) any person outside the Group, other than the Permitted Financial
Indebtedness.
17.17 TAXES ON PAYMENTS
All amounts payable by the Borrower under the Finance Documents shall be
made free and clear of, and without deduction for, or on account of, any
Tax.
17.18 STAMP DUTIES
The Borrower or, as the case may be, each member of the Business Group,
shall bear and pay all stamp or registration duty or similar taxes or
charges which shall be payable in respect of any Finance Document.
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17.19 IMMUNITY
(a) The execution by the Borrower of each Finance Document constitutes, and its
exercise of its rights and performance of its obligations under each
Finance Document will constitute, private and commercial acts done and
performed for private and commercial purposes; and
(b) the Borrower will not be entitled to claim immunity from suit, execution,
attachment or other legal process in any proceedings taken in the State of
Israel or any other jurisdiction in relation to any Finance Document.
17.20 JURISDICTION/GOVERNING LAW
The Borrower's:
(a) irrevocable submission under Clause 33 (Jurisdiction) to the
jurisdiction of the courts of Israel;
(b) agreement that this Agreement is governed by Israeli law; and
(c) agreement not to claim any immunity to which it or its assets may be
entitled,
are legal, valid and binding under the laws of Israel.
17.21 MANGO ISRAEL
The Borrower has completed the purchase of 100% of the equity and voting
rights in Mango Israel.
17.22 NO OTHER BUSINESS
The Borrower shall procure that Astridplaza N.V. has not engaged in any
business or activities, either alone or in partnership or joint venture
other than the design, development, construction, financing, ownership (to
the extent relevant), use, operation and maintenance of the Astrid Plaza
Complex.
17.23 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Clause 17:
(a) are made by the Borrower on the date of this Agreement; and
(b) are deemed to be repeated by the Borrower on each day thereafter with
reference to the facts and circumstances then existing.
39
18. UNDERTAKINGS
18.1 DURATION
The undertakings in this Clause 18 (Undertakings) remain in force from the
date of this Agreement for so long as any amount is or may be outstanding
under this Agreement or the Facility is in force. All of those undertakings
(and any undertakings or restrictions in any other clause of the Finance
Documents) are cumulative, and accordingly none of them shall (except to
the extent expressly stated) be limited by any exception to any other
undertaking or by implication from the terms of any other undertaking.
18.2 FINANCIAL INFORMATION
(a) The Borrower shall supply to the Bank:
(i) as soon as the same are available (and in any event within 90 days of
the end of each of its financial years), the audited consolidated
accounts and financial reports of the Borrower and the audited
financial statements of BEA Hotels and Astridplaza N.V. and each
Borrower Funded Subsidiary, for that financial year.
(ii) as soon as the same are available (and in any event within 60 days of
the end of the each quarter of each of its financial years) reviewed
management accounts of the Borrower for that quarter, such management
accounts being those used for the purpose of consolidation of the
financial statements of Elbit Medical Imaging Ltd.
(iii) as soon as the same are available (and in any event within 60 days of
the end of each quarter) reviewed financial statements for that
quarter of BEA Hotels, Astridplaza N.V. and each Borrower Funded
Subsidiary, (including a balance sheet, statements of income and cash
flow);
(iv) as soon as the same are available (and in any event within 90 days of
the end of each financial year), the audited financial statements of
BEA Hotels, Astridplaza N.V. and each Borrower Funded Subsidiary, each
financial year.
(v) as soon as the same are available (and in any event within 30 days of
the end of each quarter) quarterly progress reports on the development
and/or operation of all Pojects.
(vi) together with the accounts specified in paragraph (a) and (b) above, a
certificate from the auditors of the Borrower:
(A) establishing compliance with Clause 18.21 (Financial covenants)
which certificate shall, if the Bank requests, also set out in
reasonable detail computations establishing such compliance; and
(B) confirming that the accounts have been prepared in accordance
with GAAP and Securities Laws Regulations.
40
(vii) within 60 days of a written request by the Bank (which shall be
delivered not more than once in any two consecutive calendar years,
unless the Bank considers that an event has occurred requiring a
greater frequency), a valuation addressed to the bank (produced by a
third party acceptable to the Bank) of the assets of the Borrower.
(b) The Borrower shall procure that Astridplaza N.V. supply to the Bank, as
soon as they are available but in any event within 15 days after the end of
each calendar month, one copy of the monthly hotel operating accounts of
Astridplaza N.V..
18.3 OTHER INFORMATION
(a) The Borrower shall supply to the Bank:
(i) all documents despatched by it to its shareholders (or any class of
them) or by it to its creditors (or any class of them) at the same
time as they are despatched;
(ii) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings of a material nature
relating to it, BEA Hotels or Astridplaza N.V. which are current,
threatened or pending, and, together, in each case, with details of
how it proposes to conduct the litigation, arbitration or proceedings
or otherwise resolve the dispute in question;
(iii) reasonably promptly, and in any case, within 20 Business Days such
further information in the possession or control of the Group
regarding its financial condition and operations as the Bank may
reasonably request;
(iv) forthwith, details of any event of which it is aware which may have a
Material Adverse Effect; and
(v) promptly, upon the earlier of:
(A) the signing of a term sheet for a Refinancing by a Borrower
Funded Subsidiary or any other event constituting a Trigger
Event; or
(B) the finalisation of commercial terms for such Refinancing by a
Borrower Funded Subsidiary (such notification, for the avoidance
of doubt, shall not in itself constitute a Trigger Event) or such
other Trigger Event,
all documents and details related thereto.
(b) In the event that an Event of Default has occurred, the Borrower shall
allow the Bank appropriate and reasonable access to its records and
accounts.
18.4 NOTIFICATION OF DEFAULT
The Borrower shall notify the Bank of:
(a) any Default (and the steps, if any, being taken to remedy it); and
41
(b) any event of default or potential event of default arising under any
loan agreement entered into by any Subsidiary,
immediately upon it becoming aware thereof.
18.5 COMPLIANCE CERTIFICATES
The Borrower shall supply to the Bank promptly at any time, if the Bank so
requests, a certificate signed by two if its senior officers certifying
that no Default is outstanding or, if a Default is outstanding, specifying
the Default and the steps, if any, being taken to remedy it.
18.6 AUTHORISATIONS
The Borrower shall promptly obtain, maintain and comply with the terms of
any authorisation required at the relevant time under any law or regulation
to enable it to perform its obligations under, or for the validity or
enforceability of, any Finance Document.
18.7 PARI PASSU RANKING
The Borrower shall procure that its obligations under the Finance Documents
do and will rank at least pari passu with all its other present and future
unsecured obligations, except for obligations mandatorily preferred by law
applying to companies generally.
18.8 NEGATIVE PLEDGE
(a) The Borrower shall not and shall procure that no member of the Business
Group shall create or permit to subsist any Security Interest on any of its
present or future assets.
(b) Paragraph (a) does not apply to any Permitted Security Interest.
(c) If the Borrower creates or permits to subsist any Security Interest on any
of its assets contrary to paragraph (a) above, all of the obligations of
the Borrower under this Agreement shall, to the extent permissible under
applicable law, automatically and immediately be secured upon the same
assets, ranking at least pari passu with the other obligations secured on
those assets.
18.9 TRANSACTIONS SIMILAR TO SECURITY
(a) The Borrower shall not, and shall procure that no member of the Business
Group shall, without the prior consent of the Bank:
(i) sell, transfer or otherwise dispose of any of its assets on terms
whereby it is or may be leased to or re-acquired or acquired by a
member of the Group or any of its related entities; or
(ii) sell, transfer or otherwise dispose of any of its receivables on
recourse terms, except for the discounting of bills or notes in the
ordinary course of trading,
42
in circumstances where the transaction is entered into primarily as a
method of raising finance.
(b) Paragraph (a) does not apply to Permitted Security Interests.
18.10 BORROWINGS
The Borrower shall not, and shall procure that no member of the Business
Group shall,
(a) incur any Financial Indebtedness other than the Permitted Financial
Indebtedness; or
(b) incur any Financial Indebtedness to any Subsidiary unless such
Subsidiary has first signed a Subordination Agreement in favour of the
Bank, substantially in the form of Schedule 9 (Form of Subordination
Agreement).
18.11 DISPOSALS
(a) The Borrower shall not, and shall procure that no member of the Business
Group shall, either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or involuntarily, sell,
transfer, grant or lease or otherwise dispose of all or any substantial
part of the assets of the Business (including tax losses).
(b) Paragraph (a) does not apply to:
(i) disposals made in the ordinary course of business of the disposing
entity; or
(ii) disposals of assets in exchange for other assets comparable or
superior as to type, value and quality;
(iii) disposals of obsolete or surplus assets no longer required for the
relevant business;
(iv) the payment of cash as consideration for the acquisition of any asset
or service;
(v) Permitted Security Interests; or
(vi) any other disposal approved by the Bank (such approval not to be
unreasonably withheld).
18.12 MERGERS AND ACQUISITIONS
The Borrower shall not, and shall procure that no other member of the
Business Group will enter into any amalgamation, demerger, merger or
reconstruction.
18.13 COMPLIANCE WITH LAWS AND PAYMENT OF TAXES
43
(a) The Borrower shall comply (and shall procure that each other member of the
Group complies) with all laws and regulations applicable to it to the
extent that failure to do so would have a Material Adverse Effect.
(b) The Borrower shall, and shall procure that each member of the Business
Group shall:
(i) file, or procure the filing of, all tax and informational returns that
are required to be filed by it in any jurisdiction; or
(ii) pay all its taxes when due, except to the extent the taxes are
contested in good faith and by appropriate means, and a reserve
reasonably regarded as adequate has been set aside for payment of
those taxes.
18.14 CHANGE OF BUSINESS
The Borrower shall not, and shall procure that no other member of the
Business Group shall engage in any business or activities other than the
Business and any business incidental to its implementation, other than with
the approval of the Bank (such approval not to be unreasonably withheld).
18.15 SHARE CAPITAL
The Borrower shall not, and shall procure that no member of the Business
Group shall, without the prior consent of the Bank:
(a) purchase, cancel or redeem any of its share capital or that of BEA
Hotels; or
(b) issue any further securities if as a result of such the Shareholder
would hold, directly or indirectly, less than 50.1% (fifty and
one-tenth of one percent) of the issued share capital of the Borrower.
18.16 DISTRIBUTIONS
(a) Except as required by law, the Borrower shall not allow, nor shall it allow
any member of the Business Group to allow, any restriction to be placed on
the ability of any member of the Business Group (other than the Borrower)
to declare or pay any Distribution, other than pursuant to the terms of
senior construction facilities taken by any subsidiary in relation to a
Project, without the prior written consent of the Bank.
(b) Provided that no Event of Default has occurred, Borrower shall not be
obliged to Distribute any Free Funds generated by the Projects and/or the
Business.
18.17 INSURANCES
The Borrower shall, and shall procure that each member of the Group shall,
maintain insurance with financially sound and reputable insurers with
respect to its assets of an insurable nature against such risks and in such
amounts as are normally maintained by persons carrying on the same or a
similar class of business.
44
18.18 CONDUCT OF BUSINESS
The Borrower shall:
(a) in all material respects conduct its business in a reasonable and
prudent manner in accordance with all applicable laws and regulations
and the terms of the Finance Documents; and
(b) meet all of its material obligations as they fall due; and
(c) promptly perform its material obligations, and enforce its material
rights under each agreement to which it is a party, to the extent that
failure to do so would have Material Adverse Effect.
18.19 USE OF PROCEEDS
The Borrower shall apply the proceeds of the Advances wholly and
exclusively for the purposes set out in Clause 3 (Purpose).
18.20 AMENDMENTS AND AGREEMENTS
(a) The Borrower shall not, directly or indirectly, terminate, cancel or
suspend, or permit or consent to any termination, cancellation or
suspension of, or enter into or consent to or permit an assignment of the
rights or obligations of any party to, any material agreement pertaining to
the Business to which it is a party without receiving the prior written
consent of the Bank.
(b) The Borrower shall not, directly or indirectly, amend, modify, supplement
or waive, or permit or consent to the amendment, modification, supplement
or waiver of, any of the provisions of, or give any consent under, any
material agreement pertaining to the Business to which it is a party
without receiving the prior written consent of the Bank.
18.21 FINANCIAL COVENANTS
(a) The Borrower shall procure that
(i) the ratio of Shareholder's Equity to Balance Sheet Value is at all
times greater than 1:4;
(ii) on the last day of each Interest Period, the actual Debt Service Cover
Ratio for the preceding twelve (12) month period ending on the
previous 30 June or 31 December is no less than 1.2;
(iii) the RevPar will be not less than:
(A) Euro 52, for the financial year 2006
(B) Euro 56, for the financial year 2007; and
(C) Euro 60, for the financial year 2008 and thereafter.
45
(b) In this Clause 18.21:
"REVPAR" means the total revenue earned from room income per total
available rooms for any given period, to be calculated by multiplying
average room rate achieved in relation to the Astrid Plaza Hotel (forming
part of the Astrid Plaza Complex) for any given period by the average room
occupancy rate at the Astrid Plaza Hotel for that given period.
"SHAREHOLDERS EQUITY" shall be calculated in accordance with GAAP.
"BALANCE SHEET VALUE" means the total sum of the balance sheet as shown in
the latest published audited consolidated balance sheet of the Group.
(c) This covenant shall be calculated on the basis of the latest audited or
reviewed consolidated balance sheet of the Borrower provided to the Bank
pursuant to this Agreement.
(d) The undertaking specified in paragraph (a)(ii) above shall be calculated
for each successive 12 month period.
18.22 MANAGEMENT FEES
The Borrower shall procure that any management fees paid by any member of
the Business Group to any entity other than:
(a) a Holding Subsidiary or any of its Subsidiaries;
(b) the Borrower or any of its Subsidiaries; or
(c) a Holding Company of the Borrower or any of its Subsidiaries,
shall be reasonable and in any event shall be in an amount not exceeding 5%
(five per cent) of: (a) the development, financing and construction costs
of any Project prior to completion which is being executed by such member
of the Business Group; or (b) the gross revenues of such member of the
Business Group.
18.23 MANGO ISRAEL
(a) The Borrower shall maintain ownership of 100% of the shares in Mango
Israel.
(b) The Borrower shall procure that Mango Israel shall maintain all of the
franchise rights to sell and distribute MANGO-branded clothing and footwear
in Israel.
19. DEFAULT
19.1 EVENTS OF DEFAULT
46
Each of the events set out in Clauses 19.2 to 19.17 (inclusive) of this
Clause 19 is an Event of Default (whether or not caused by any reason
whatsoever outside the control of the Group or any other person).
19.2 NON-PAYMENT
The Borrower does not within three (3) Business Days of the due date pay
any amount payable by it under the Finance Documents at the place and in
the currency in which it is expressed to be payable.
19.3 BREACH OF OTHER OBLIGATIONS
(a) The Borrower or, where applicable, any member of the Business Group does
not comply with any provision under any of Clauses 18.4 (Notification of
Default), 18.7 (Pari Passu Ranking), 18.8 (Negative Pledge), 18.9
(Transactions Similar to Security), 18.10 (Borrowings), 18.11 (Disposals),
18.12 (Mergers and acquisitions), 18.14 (Change of Business), 18.16
(Distributions) or 18.21 (Financial Covenants).
(b) Any member of the Business Group does not comply with any provision of the
Finance Documents (other than those referred to in Clauses 19.2 and
19.3(a)) and, if capable of remedy, that breach is not remedied within 10
(ten) days of the earlier of receipt of notice from the Bank specifying the
breach and the member of the Business Group first becoming aware of the
failure.
19.4 MISREPRESENTATION
A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by or on
behalf of any member of the Group under or in connection with any Finance
Document is incorrect in any material respect when made or deemed to be
made or repeated and shall continue to be incorrect for a period of ten
(10) days from the date such representation or warranty is or is deemed to
have been made or repeated.
19.5 LEGAL VALIDITY
Any Finance Document is not or ceases to be a valid, binding and
enforceable obligation of, or is repudiated by, any member of the Business
Group or becomes void or unenforceable.
19.6 CROSS-DEFAULT
(a) (i) Any Financial Indebtedness of the Business Group is not paid when due
or within the lesser of:
(A) any originally applicable grace period; and
(B) seven (7) Business Days;
(ii) an event of default howsoever described (or any event which with the
giving of notice, lapse of time, determination of materiality or
fulfilment of any other applicable condition or any combination of the
foregoing, would constitute such
47
an event of default) occurs under any document relating to such
Financial Indebtedness of the Business Group;
(iii) any Financial Indebtedness of the Business Group becomes prematurely
due and payable or is placed on demand as a result of an event of
default (howsoever described) under the document relating to that
Financial Indebtedness;
(iv) any commitment for, or underwriting of, any such Financial
Indebtedness of the Business Group is cancelled or suspended as a
result of an event of default (howsoever described) under the document
relating to that Financial Indebtedness;
(v) any Security Interest securing any Financial Indebtedness over any
asset of the Business Group becomes enforceable.
provided that where such event relates to a member of the Business Group
(other than the Borrower or a Holding Subsidiary) such event shall only
constitute an Event of Default if it has a Material Adverse Effect.
19.7 INSOLVENCY
In the event that any member of the Business Group:
(i) is, or is deemed unable to pay its debts as they fall due;
(ii) is insolvent or admits inability to pay its debts as they fall due;
(iii) suspends making payments on all or any class of its debts or announces an
intention to do so;
(iv) a moratorium is declared in respect of any of its indebtedness; or
(v) by reason of financial difficulties, begins negotiations with one or more
of its creditors with a view to the readjustment or rescheduling of any of
its indebtedness.
provided that where such event relates to a member of the Group other than the
Borrower or a Holding Subsidiary, such event shall only constitute an Event of
Default if it has a Material Adverse Effect.
19.8 INSOLVENCY PROCEEDINGS
(a) Any step (including petition, proposal or convening a meeting) is taken
with a view to a composition, assignment or arrangement with any creditors
of the Group; or
(b) a meeting of members of any member of the Group is convened for the purpose
of considering any resolution for (or to petition for) its winding-up or
for its administration or any such resolution is passed; or
(c) any person presents a petition for the winding-up or for the administration
of any member of the Group which is not withdrawn or set aside within
twenty one (21) days; or
48
(d) an order for the winding-up or administration of any member of the Group is
made;
provided that where such event relates to a member of the Group other than the
Borrower or a Holding Subsidiary such event shall only constitute an Event of
Default if it has a Material Adverse Effect.
19.9 APPOINTMENT OF RECEIVERS AND MANAGERS
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the like is
appointed in respect of any member of the Group or any material part of its
assets which is not withdrawn or set aside within twenty one (21) days; or
(b) the directors of any member of the Group request the appointment of a
liquidator, trustee in bankruptcy, judicial custodian, compulsory manager,
receiver, administrative receiver, administrator or the like; or
(c) any other steps are taken to enforce any Security Interest over any
material part of the assets of any member of the Group;
provided that where such event relates to a member of the Group other than the
Borrower or a Holding Subsidiary such event shall only constitute an Event of
Default if it has a Material Adverse Effect.
19.10 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affecting any material
asset of any member of the Group is issued and not discharged within ninety
(90) days or such shorter period as may render such asset liable to
forfeiture, seizure or sale provided that where such event relates to a
member of the Group (other than the Borrower or a Holding Subsidiary) such
event shall only constitute an Event of Default if it has a Material
Adverse Effect.
19.11 CESSATION OF BUSINESS
(a) The Borrower or a Holding Subsidiary ceases, or threatens to cease, to
carry on all or a substantial part of its business.
(b) Any member of the Group (other than the Borrower or a Holding
Subsidiary) ceases, or threatens to cease, to carry on all or a
substantial part of its business, provided that such event shall only
constitute an Event of Default if it has a Material Adverse Effect.
19.12 ILLEGALITY
It becomes unlawful for any member of the Group to perform any of its
obligations under the Finance Documents.
49
19.13 EFFECTIVENESS OF SECURITY
Any Security Document entered into by any member of the Group is not or
ceases to be effective or is alleged by any such person to be ineffective
for any reason.
19.14 CHANGE IN CONTROL
There is a change of control without the prior written consent of the Bank,
as a result of which:
(a) the Shareholder holds, directly or indirectly, less than fifty and
one-tenth percent (50.1%) of the issued share capital of the Borrower;
or
(b) the Borrower holds, directly or indirectly, less than one hundred
percent (100%) of the issued share capital of any Holding Subsidiary.
19.15 ABANDONMENT OR NATIONALISATION
(a) The Group abandons any of its material assets.
(b) Any government or any Agency of that government takes, or states officially
that it proposes to take, any step with a view to the seizure,
expropriation, nationalisation or acquisition (whether compulsory or
otherwise, in whole or in part, and whether or not for fair compensation)
of any member of the Group or any of its assets, in a manner or to an
extent that has a Material Adverse Effect.
19.16 MATERIAL ADVERSE EFFECT
Any event or series of events occurs, which, in the opinion of the Bank, is
likely to have a Material Adverse Effect.
19.17 MANGO ISRAEL
(a) The Borrower fails to maintain ownership of 100% of the shares in Mango
Israel.
(b) Mango Israel fails to maintain all of the franchise rights to sell and
distribute MANGO-branded clothing and footwear in Israel.
19.18 ACCELERATION
On and at any time after the occurrence of an Event of Default the Bank may, by
notice to the Borrower:
(a) cancel the Total Commitment; and/or
(b) demand that all or part of the outstanding Advances, together with accrued
interest and all other amounts accrued under the Finance Documents
(including without limitation
50
pursuant to Clause 24 (Indemnities)) be immediately due and payable,
whereupon they shall become immediately due and payable;
(c) demand that all or part of the outstanding Advances together with accrued
interest and all other amounts accrued under the Finance Documents
(including without limitation pursuant to Clause 24 (Indemnities)) be
payable on demand, whereupon they shall immediately become payable on
demand by the Bank; and/or
(d) require the Borrower to procure that all BEA Hotels Loans are forgiven and
that BEA Hotels has no further obligations or liabilities thereunder.
20. ACCOUNTS
20.1 OPENING OF ACCOUNTS
(a) So long as the Facility remains in force or any Advance is outstanding, the
Borrower shall maintain in its own name at the relevant branch of the Bank
the following accounts, which shall be charged by way of a first ranking
fixed charge in favour of the Bank as security:
(i) the Loan Account; and
(ii) the Revenue Account.
(b) The relevant branch of the Bank is, at the date of this Agreement, for the
Loan Account, the Debt Service Reserve Account and the Revenue Account, the
Facility Office. The Bank may change the place of the relevant branch (or
the relevant branch to apply to a particular Account) by notice to the
Borrower and any other party that is required to pay sums into such
Account.
(c) The following provisions of this Clause shall govern the operation of the
Accounts, provided that:
(i) the Borrower shall also complete the Bank's standard account mandate
form for each Account; and
(ii) the Bank's standard terms and conditions, if any, applicable to
similar accounts maintained with the Bank and in force from time to
time shall apply to the operation of the Accounts and the rights and
obligations of the Bank and the Borrower in relation thereto (subject
to any exceptions specifically agreed, in writing between Borrower and
the Bank).
Should there be any conflict between the provisions of this Agreement and
such standard terms and conditions, then this Agreement shall prevail. The
Bank shall send the Borrower a copy of any new set of standard terms and
conditions promptly following their issuance.
(d) The Bank and the Borrower may agree that a further account(s) is/are
required to deal with any category of payments or receipts not contemplated
by the following provisions of this Clause 20 (Accounts). In such case, the
Bank and the Borrower shall agree upon
51
procedures and rules to govern the operation of such further account or
accounts in a supplement to this Clause and, once agreed, such supplement
shall be deemed to form part of this Clause 20 (Accounts). The Bank shall
send a copy of any such supplement to the Borrower.
20.2 LOAN ACCOUNT
(a) The Borrower directs the Bank to pay the proceeds of each Advance (other
than any Advance drawn down for the purposes of paying Finance Charges)
into the Loan Account on the Drawdown Date relating thereto and the Bank
shall comply with this instruction. Except as otherwise specified in this
Clause, no other sums shall be paid into the Loan Account without the prior
agreement of the Bank.
(b) Whenever the Borrower requires to make a withdrawal from the Loan Account,
it shall give to the Bank not less than three (3) Business Days' notice of
such withdrawal in the form of the Disbursement Request (or in such other
form as the Bank shall require). Any such withdrawal may only be for the
purposes of:
(i) funding Equity Contributions in terms of Clause 3 above; or
(ii) as the Bank may otherwise permit in writing.
(c) Each Disbursement Request shall specify the bank and account number of the
payee to whom such payment is made and the Bank shall transfer the sum in
question to such account.
20.3 REVENUE ACCOUNT
The Borrower shall procure that all Revenues which are required in order to
execute a mandatory prepayment (in accordance with the terms of Clause 7.3
(Mandatory Prepayment) above) are paid directly to the Revenue Account.
20.4 GENERAL PROVISIONS RELATING TO ACCOUNTS
(a) The Borrower undertakes to ensure that no Account is closed without the
prior written consent of the Bank.
(b) Without prejudice to any other rights of the Bank under the Financing
Documents, if at any time a Default has occurred or is continuing, the
Borrower shall not make any withdrawals from the Accounts (other than in
order to repay principal amounts outstanding under the Facility or
Financing Charges due to the Bank), without the prior written consent of
the Bank.
(c) Each Account shall earn interest at such rate(s) as may be agreed from time
to time by the Borrower and the Bank. All interest earned on the balance
standing to the credit of an Account shall be credited to the Account in
question and the Bank is irrevocably authorised and instructed so to credit
such interest.
(d) No Account may go into overdraft and the Borrower shall not issue an
instruction with respect to an Account, and the Bank shall not comply with
an instruction, to the extent that it would cause the relevant Account to
go into overdraft.
52
(e) The Borrower shall not create or permit to subsist any Security Interest on
all or any part of the Accounts, other than any Security Interests created
by the Security Documents, nor assign transfer or otherwise dispose of all
or any part of its right or title to or interest in the Accounts.
(f) The Borrower irrevocably and unconditionally authorises and instructs the
Bank to act upon instructions received by it from the Borrower and to make
any other appropriations, payments and transfers into or between any of the
Accounts which this Agreement expressly provides should be made by the
Bank.
(g) To the extent that the Borrower gives any instructions (but only to this
extent), the Bank acts as agent for the Borrower.
(h) No person other than the Bank and/or the Borrower may give any instructions
or requests to the Bank for any payments, transfers or withdrawals from any
of the Accounts.
(i) No amounts may be withdrawn or transferred from any of the Accounts, and
the Borrower may not give any instructions in relation to any of the
Accounts, except in accordance with the express terms of this Agreement.
(j) The Borrower shall ensure that all moneys paid to it from an Account in
response to any instructions given by it are applied only in discharging
the obligations in respect of which they were paid from the relevant
Account (or as otherwise permitted under this Agreement).
(k) The Bank:
(i) shall be entitled to act in reliance on any certificate or document
delivered to it in support of any of the matters contemplated by this
Clause 20 (Accounts); and
(ii) shall not be obliged to enquire into any of the underlying
transactions or to verify any of the contents of any such certificate
or document.
(l) The Borrower acknowledges that neither any insufficiency of funds in the
Accounts (or any of them), nor any inability to apply any funds in the
Accounts (or any of them) against any or all amounts owing under this
Agreement, shall at any time limit, reduce or otherwise affect the
Borrower's payment obligations under this Agreement.
(m) If on any date the Bank is requested or required to make one or more
payments from any of the Accounts (not being a sum payable to the Bank) and
there is an insufficient balance on that Account to meet those payments in
full, then the Bank may select in which order and to what extent such
payments shall be made, but without liability or responsibility as a
consequence of such application.
53
21. SECURITY
21.1 EFFECTIVE DATE
The Borrower shall ensure that the security arrangements set forth in this
Clause 21 (Security) are in effect and enforceable on the date of signing
of this Agreement, unless otherwise agreed in writing by the Bank.
21.2 SECURITY
The Pledges and Charges over Accounts shall serve as security for the
obligations of the Borrower under this Agreement, however, the recourse of
the Bank shall not be limited to such security.
22. FEES AND EXPENSES
22.1 ARRANGEMENT FEE
The Borrower shall pay to the Bank an arrangement fee (which shall not be
paid out of Advances) in the amount of US$450,000 (four hundred and fifty
thousand US Dollars) payable in three equal installments on the 31st June,
2005, 31st September, 2005 and 31st December 2005. The parties acknowledge
that, as of the date hereof, the first two installments (due on 31st June,
2005 and 31 September, 2005) have been paid by the Borrower and duly
received by the Bank.
22.2 INITIAL AND SPECIAL COSTS
The Borrower shall forthwith on demand pay the Bank the amount of all
reasonable costs and expenses (including legal fees in a pre-agreed amount)
incurred by the Bank in connection with:
(a) the drafting, negotiation and closing of:
(i) the Finance Documents and any other documents referred to in this
Agreement; and
(ii) any other Finance Document executed after the date of this Agreement;
and
(b) the examination of any future Project in respect of which an Equity
Contribution is to be made; and
(c) any amendment, waiver, consent or suspension of rights (or any proposal for
any of the foregoing) requested by or on behalf of the Borrower and
relating to a Finance Document or a document referred to in any Finance
Document.
54
22.3 ENFORCEMENT COSTS
The Borrower shall forthwith on demand pay to the Bank the amount of all
costs and expenses (including legal fees) incurred by it in connection with
the enforcement of, or the preservation of any rights under, any Finance
Document.
22.4 RETENTION
The Bank may:
(a) retain sums from the amount of any Advance advanced on a Drawdown Date; or
(b) apply amounts held in any Account,
toward payment in full of any fees, costs and expenses referred to in this
Clause 22 (Fees and Expenses).
22.5 VAT
Any fee or expense referred to in this Clause 22 (Fees and Expenses) is
exclusive of any applicable value added tax or any other tax which might be
chargeable in connection with that fee or expense. If any value added tax
or other tax is so chargeable, it shall be paid by the Borrower at the same
time as it pays the relevant fee or expense.
23. STAMP DUTIES
The Borrower shall pay, and forthwith on demand indemnify the Bank against
any liability it incurs in respect of, any stamp, registration or similar
tax which is or becomes payable in connection with the entry into,
registration, recording, performance or enforcement of any Finance Document
and any ancillary documentation relating thereto.
24. INDEMNITIES
24.1 CURRENCY INDEMNITY
(a) If the Bank receives an amount in respect of the Borrower's liability under
the Finance Documents or if that liability is converted into a claim,
proof, judgment or order in a currency other than the currency (the
"CONTRACTUAL CURRENCY") in which the amount is expressed to be payable
under the relevant Finance Document:
(i) the Borrower shall indemnify the Bank as an independent obligation
against any loss or liability arising out of or as a result of the
conversion;
(ii) if the amount received by the Bank, when converted into the
contractual currency at a market rate in the usual course of its
business is less than the amount owed in the contractual currency, the
Borrower shall forthwith on demand pay to the Bank an amount in the
contractual currency equal to the deficit; and
(iii) the Borrower shall forthwith on demand pay to the Bank any exchange
costs and taxes payable in connection with any such conversion.
55
(b) The Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency other than that in which
it is expressed to be payable.
24.2 OTHER INDEMNITIES
The Borrower shall forthwith on demand indemnify the Bank against any loss
or liability which the Bank incurs as a consequence of:
(a) the occurrence of any Default;
(b) the operation of Clause 19.21 (Acceleration);
(c) any payment of principal or an overdue amount being received from any
source otherwise than on the last day of a relevant Interest Period or
other Interest Period provided for in Clause 9.3 (Default Interest)
relative to the amount so received; or
(d) (other than by reason of negligence or default by the Bank) an Advance not
being made after the Borrower has delivered a request for the Advance, or
an Advance (or part of the Advance) not being prepaid in accordance with a
notice of prepayment.
The Borrower's liability in each case includes any loss of margin or other
loss or expense on account of funds borrowed, contracted for or utilised to
fund any amount payable under any Finance Document, any amount repaid or
prepaid or any Advance.
25. EVIDENCE AND CALCULATIONS
25.1 ACCOUNTS
Accounts maintained by the Bank in connection with this Agreement are prima
facie evidence of the matters to which they relate.
25.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by the Bank of a rate or amount under
the Finance Documents is, in the absence of manifest error, prima facie
evidence of the matters to which it relates.
25.3 INTEREST CALCULATIONS
Interest accrues from day to day and is calculated on the basis of the
actual number of days elapsed and a year of 360 days.
26. AMENDMENTS AND WAIVERS
26.1 AMENDMENTS
Any term of the Finance Documents may be amended or waived with the
agreement of the Borrower and the Bank.
56
26.2 WAIVERS AND REMEDIES CUMULATIVE
The rights of the Bank under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
27. CHANGES TO THE PARTIES
27.1 TRANSFERS BY BORROWER
The Borrower may not assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Finance Documents,
other than with the prior written consent of the Bank.
27.2 TRANSFERS BY BANK
(a) The Bank may at any time, at its sole discretion and without the need for
consent from the Borrower, assign, transfer, sell or novate ("TRANSFER")
all or any part of the Facility and/or all or any of its rights and/or
obligations under this Agreement and/or the Security Documents to any other
person or entity (whether Israeli or from outside Israel) ("ASSIGNEE
LENDER").
(b) The Borrower shall execute and do all such transfers, assignments,
novations, assurances, acts and things as the Bank may require for
perfecting and completing any such assignment, transfer or novation, and
releasing the Bank from and imposing on the Assignee Lender the Bank's
obligations under this Agreement to the extent the same are transferred,
assigned or novated. All agreements, representations and warranties made in
this agreement shall survive any assignment made pursuant to this clause
and shall also inure to the benefit of all Assignee Lenders.
27.3 REFERENCE BANKS
If a Reference Bank ceases to exist, the Bank shall (in consultation with
the Borrower) appoint another bank or financial institution to replace that
Reference Bank.
28. DISCLOSURE OF INFORMATION
Subject to all applicable laws and regulations and the execution by such
party of a confidentiality agreement in form and substance satisfactory to
the Bank, the Bank may at any time, disclose to its Affiliates, any
Assignee Lender, any person with whom it is proposing to enter, or has
entered into negotiations with respect to any kind of transfer,
participation or other agreement in relation to this Agreement, or any
professional advisor of such person, or rating agency:
57
(a) a copy of any Finance Document; and
(b) any information which the Bank has acquired under or in connection
with any Finance Document which it deems relevant to transfer in
connection with a proposed Transfer.
29. SET-OFF
The Bank may set off any matured obligation owed by the Borrower under the
Finance Documents (to the extent beneficially owned by the Bank) against
any obligation (whether or not matured) owed by the Bank to the Borrower,
regardless of the place of payment, booking branch or currency of either
obligation. If the obligations are in different currencies, the Bank may
convert either obligation at a market rate of exchange in its usual course
of business for the purpose of the set-off. If either obligation is
unliquidated or unascertained, the Bank may set off an amount estimated by
it in good faith to be the amount of that obligation.
30. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other provision
of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or any other
provision of the Finance Documents.
31. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
32. NOTICES
32.1 GIVING OF NOTICES
All notices or other communications under or in connection with the Finance
Documents shall be given in writing and, unless otherwise stated may be
made by letter or facsimile. Any such notice will be deemed to be given as
follows:
(a) if by letter, when delivered personally or on actual receipt; and
(b) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
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32.2 ADDRESSES FOR NOTICES
(a) The address and facsimile number of the Borrower are:
Elscint Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Facsimile: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
or such other as the Borrower may notify to the Bank by not less than five
Business Days' notice.
(b) The address and facsimile number of the Bank are:
Bank Hapoalim B.M.
Head Office, Corporate Business Division
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇-▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇
Facsimile: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: Manager of the Infrastructure, Tourism and Capital Markets
with a copy to:
▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇▇-▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
or such other as the Bank may notify to the Borrower by not less than five
Business Days' notice.
33. JURISDICTION
33.1 SUBMISSION
The Borrower irrevocably agrees for the benefit of the Bank that any legal
action arising out of or relating to any Finance Document may be brought in
the courts of Tel-Aviv Jaffa and irrevocably submits to the non-exclusive
jurisdiction of such courts and, without prejudice to the foregoing,
further submits to the non-exclusive jurisdiction of such other courts as
shall be designated by the Bank as being an appropriate forum.
34. WAIVER OF IMMUNITY
59
The Borrower irrevocably and unconditionally:
(a) agrees that if the Bank brings proceedings against it or its assets in
relation to a Finance Document, no immunity from those proceedings
(including, without limitation, suit, attachment prior to judgment, other
attachment, the obtaining or judgement, execution or other enforcement)
will be claimed by or on behalf of itself with respect to its assets;
(b) waives any such right of immunity which it or its assets now has or may
subsequently acquire; and
(c) consents generally in respect of any such proceedings to the giving of any
relief or the issue of any process in connection with those proceedings,
including, without limitation, the making, enforcement or execution against
any assets whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in those proceedings.
35. GOVERNING LAW
This Agreement is governed by the laws of the State of Israel.
36. THIRD PARTIES
The parties intend that no term of the Agreement may be enforced by any
person who is not a party to the Agreement.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
COMMITMENT
TRANCHE A COMMITMENT
EURO 20,000,000
TRANCHE B COMMITMENT
EURO 9,609,286
GBP 17,439,402
TRANCHE C COMMITMENT
EURO 2,392,439
TRANCHE D COMMITMENT
NIS 11,220,000
EURO 1,370,000
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SCHEDULE 2
PART I
BORROWER FUNDED SUBSIDIARIES
PART II
EQUITY CONTRIBUTIONS
AMOUNT OF EQUITY
BORROWER FUNDED SUBSIDIARY PROJECT CONTRIBUTION
-------------------------- ------------------ ----------------
ANDRASSY, 25 KFT. ANDRASSY 25 E1,869,511
VICTORY ENTERPRISES II BV VICTORIA AMSTERDAM E6,244,166
VICTORY ENTERPRISES II BV UTRECHT E1,495,609
VICTORIA HOTEL HOLDING BV ALORA (VICTORIA) L6,086,228
GRANDIS HOTEL HOLDING BV GRANDIS L1,642,602
RIVERBANK HOTEL HOLDING BV ▇▇▇▇▇▇ (RIVERBANK) L8,977,718
▇▇▇▇ HOTEL HOLDING BV ▇▇▇▇ L 732,853
62
SCHEDULE 3
CONDITIONS PRECEDENT
1. CONSTITUTIONAL DOCUMENTS
A copy of the constitutional documents of the Borrower and each Holding
Subsidiary.
2. BORROWER CORPORATE AUTHORIZATIONS
(a) an approval from counsel to the Borrower confirming which persons are
authorised to sign the Finance Documents on behalf of the Borrower and to
sign and/or despatch all documents and notices to be signed and/or
despatched by the Borrower under or in connection with the Finance
Documents; and
(b) a certificate of the Borrower confirming that the borrowing of the Facility
in full would not cause any borrowing limit binding on the Borrower to be
exceeded.
3. FINANCE DOCUMENTS AND RELATED DOCUMENTS
Originals of the following duly executed by all parties to them:
(a) this Agreement;
(b) each Security Document; and
(c) all documentation required to open or operate the Accounts.
4. AUTHORISATIONS
A copy of any specific licenses or consents required for the consummation
of the transactions contemplated under the Agreement.
5. SECURITY MATTERS
Evidence that the Security Documents have been duly executed by the
Borrower and have been perfected and registered at any relevant companies'
or other register.
6. ACCOUNTS
Evidence that each of the Accounts has been opened in accordance with the
Agreement.
7. LEGAL OPINIONS
(a) From ▇▇▇▇ ▇▇▇▇▇▇, Israeli in-house legal adviser to the Borrower,
addressed to the Bank;
63
(b) From Bird and Bird, Dutch legal adviser to the Borrower, addressed to
the Bank; and
(c) From ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Belgian legal adviser to the Bank addressed to
the Bank.
8. FEES
Receipt of evidence that the Borrower has paid all fees, costs and expenses
of the Bank and its advisers in accordance with the Agreement.
9. VALUATION
Within 90 days of signing this Agreement, a valuation (produced by a third
party valuer acceptable to the Bank) of the assets of BEA Hotels (held by
the Borrower Funded Subsidiaries).
10. LOAN REPAYMENT UNDERTAKING
An undertaking from BEA Hotels that any repayment by it of loans to the
Borrower shall be made to the Revenue Account.
11. GROUP STRUCTURE
A group structure chart showing each Borrower Subsidiary and the holding
structure of the Borrower by the Shareholder.
12. MANGO ISRAEL
Copies of all documentation evidencing:
(a) the acquisition by the Borrower of 100% of the equity and voting
rights in Mango Israel; and
(b) Mango Israel's exclusive ownership of the distribution rights with
respect to the sale and distribution of MANGO-branded clothing and
footwear in Israel.
64
SCHEDULE 4
PART I
FORM OF PROJECT REQUEST
65
SCHEDULE 4
PART II
FORM OF PROJECT CONSENT
Elscint Ltd.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
Date: [_____]
Dear Sirs,
ELSCINT LTD.
LOAN AGREEMENT DATED 5 DECEMBER, 2005 (THE "AGREEMENT")
We refer to your request (the "Project Request") dated [_____] (a copy of which
is attached hereto as Annex I) in which you requested us to provide our
approval, in principle, for you to make an Equity Contribution in respect of the
project described in your request (the "Project").
In reliance upon the details and information provided by you in the Project
Request (including without limitation, the budget, forecasts, detailed breakdown
of the costs and estimated drawing requirements under the Agreement in order to
fund the Equity Contribution for the Project) as well as the supplementary
information you have provided to us at our request subsequent to the date of the
Project Request, we hereby grant our approval, in principal, to you making an
Equity Contribution in respect of the Project in an amount of up to
[U.S.$_____]. The foregoing approval is subject to the terms and conditions of
the Agreement, including without limitation, the terms and conditions contained
therein for the making of any Advances. The foregoing approval is also subject
to there having been no material change in any of the information upon which we
relied when issuing this Project Consent which might have any adverse impact on
the Project, including, without limitation the timetable and budget for
completion of the Project and the estimated Equity Contribution required to be
provided by you for such to occur.
Terms used in this letter but not defined herein shall have the meanings
ascribed to such terms in the Agreement.
This letter shall be governed by the laws of the State of Israel.
Yours sincerely,
Bank Hapoalim B.M.
66
SCHEDULE 5
FORM OF DRAWDOWN REQUEST
To: BANK HAPOALIM B.M.
Head Office, Corporate Business Division
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇-▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇
Facsimile: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: Manager of the Infrastructure, Tourism and Capital Markets
From: ELSCINT LTD.
Date: [_____]
ELSCINT LTD.
LOAN AGREEMENT DATED 5 DECEMBER, 2005
1. We wish to borrow an Advance as follows:-
(a) Drawdown Date: [_____]
(b) Original Euro Amount: [_____]
(c) Currency: [_____]
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Drawdown Request.
3. We certify that:
(a) the proceeds of the requested Advance shall be applied wholly and
exclusively to fund Equity Contributions for the project (the
"Project") described in our request dated [_____] (the "Project
Request") in respect of which your prior written consent has been
received (a copy of which consent is attached hereto) (the "Project
Consent"); and
(b) there has not been any material change in any of the information upon
which you relied when issuing the Project Consent which might have any
adverse impact on the Project, including, without limitation the
timetable and budget for completion of the Project and the estimated
Equity Contribution required to be provided by us for such to occur.
4. Terms used in this letter but not defined herein shall have the meanings
ascribed to such terms in the Agreement.
5. This letter shall be governed by Israeli law.
67
6. This Drawdown Request shall constitute a Finance Document.
By:
---------------------------------
ELSCINT LTD.
AUTHORISED SIGNATORY
Approved:
BANK HAPOALIM B.M.
68
SCHEDULE 6
FORM OF DISBURSEMENT REQUEST
To: BANK HAPOALIM B.M.
Head Office, Corporate Business Division
▇▇-▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇-▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇
Facsimile: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: Manager of the Infrastructure, Tourism and Capital Markets Sector
From: ELSCINT LTD.
Date: [_____]
DISBURSEMENT REQUEST NO. [_____]
We refer to the loan agreement dated [_____] (the "AGREEMENT") between Elscint
Ltd. (the "BORROWER") and Bank Hapoalim B.M. (the "BANK").
Save as expressly defined in this Disbursement Request, capitalised terms
defined in the Agreement shall have the same meaning in this Disbursement
Request.
We hereby irrevocably request a disbursement (the "REQUESTED DISBURSEMENT") from
the Loan Account as follows:
1. Amount of Requested Disbursement:
[_____]
2. Date of Requested Disbursement: [_____] (the "REQUESTED DISBURSEMENT DATE")
3. Details of payee: [_____]
The Borrower hereby confirms that no Default has occurred and is continuing as
at the date hereof.
The Borrower hereby certifies that the proceeds of the Requested Disbursement
shall be applied solely toward the purposes permitted under the Agreement, as
set out in Annex I to this Disbursement Request.
This Disbursement Request shall be governed by Israeli law.
This is designated as a Finance Document.
69
By:
---------------------------------
ELSCINT LTD.
AUTHORISED SIGNATORY
Approved:
BANK HAPOALIM B.M.
70
ANNEX I
DESCRIPTION AND BREAKDOWN OF APPLICATION OF PROCEEDS OF REQUESTED DISBURSEMENT
Description of Work Already Funded for each Line Item of Project Budget:
Breakdown of Application of Proceeds by Line Item of Project Budget:
Total Disbursement Requested: [____]
71
SCHEDULE 7
TRANCHE A REPAYMENT SCHEDULE
DATE REPAYMENT AMOUNT
---- ----------------
30/06/2006 E 396,000
31/12/2006 E 396,000
30/06/2007 E 416,000
31/12/2007 E 416,000
30/06/2008 E 436,000
31/12/2008 E 436,000
30/06/2009 E 460,000
31/12/2009 E 460,000
30/06/2010 E 482,000
31/12/2010 E 482,000
30/06/2011 E 508,000
31/12/2011 E 508,000
30/06/2012 E 532,000
31/12/2012 E 532,000
30/06/2013 E 560,000
31/12/2013 E 560,000
30/06/2014 E 590,000
31/12/2014 E 590,000
30/06/2015 E 620,000
31/12/2015 E 620,000
31/12/2015 E10,000,000
TOTAL E20,000,000
72
SCHEDULE 8
FORM OF GUARANTEE
73
SCHEDULE 9
SUBORDINATION AGREEMENT
74
SCHEDULE 10
FORM OF LOAN ASSIGNMENT
75
SCHEDULE 11
PERMITTED SECURITY INTERESTS
None.
76
SIGNATORIES
BANK
BANK HAPOALIM B.M.
By:
------------------------------------
BORROWER
ELSCINT LTD.
By:
------------------------------------
