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GDP Loan Agreement
Dated 21st
November, 2001
NATIONAL
ROAD OPERATING AND CONSTRUCTING COMPANY
LIMITED
as GPD Lender
- and -
TRANSJAMAICAN HIGHWAY LIMITED
as Borrower
INDEX
Clause Page
1. DEFINITIONS AND
INTERPRETATION 2
2. FACILITY 5
3. CONDITIONS PRECEDENT TO
DISBURSEMENTS 6
4. DISBURSEMENTS 8
5. INTEREST 8
6 TERMS 10
7 REPAYMENT AND PREPAYMENT
11
8. PAYMENTS AND TAXES 12
9. REPRESENTATIONS AND
WARRANTIES 13
10. COVENANTS 14
11. TERMINATION EVENTS 15
12. GENERAL 16
13. ASSIGNMENT AND
TRANSFER 17
14. COMMUNICATIONS 17
15. LAW AND JURISDICTION
18
THIS GPD LOAN AGREEMENT is
made this 21st day of November 2001
BETWEEN
(1) NATIONAL ROAD
OPERATING AND CONSTRUCTING COMPANY LIMITED,
a company duly incorporated under the Laws
of Jamaica with registered offices at 11a-15
Oxford Road, Kingston 5, Jamaica (as "GPD
Lender"); and
(2) TRANSJAMAICAN HIGHWAY
LIMITED, a company duly incorporated under
the Laws of Jamaica with registered offices
c/o Hart Muirhead Fatta, 2 St Lucia Avenue,
3rd floor, Kingston 5, Jamaica (as
"Borrower")
WHEREAS
(A) The GPD Lender has, on
the date hereof, entered into a Concession
Agreement with the Borrower for the design,
construction, operation, maintenance and
financing of the Highway 2000 toll road in
Jamaica.
(B) The Project is to be
implemented in Phases described as the Early
Project, Phase 1A and Phase 1B.
(C) The GPD Lender has
agreed to make available to the Borrower a
loan facility of up to US$87,500,000 without
deduction for any amount of tax to assist in
the financing of the implementation of the
Project including US$72,000,000 without
deduction for any amount of tax in respect
of the Early Project Construction Works and
US$15,500,000 without deduction for any
amount of tax in respect of the Phase 1B
Construction Works to be disbursed upon and
subject to the terms and conditions
contained in this Agreement.
(D) The parties to this
Agreement ("Parties") have agreed the
general drawdown and funding mechanism in
Clause 24A of the Concession Agreement.
WHEREBY IT IS AGREED:
1. DEFINITIONS AND
INTERPRETATION
1.1 Capitalised terms used
and not defined in this Agreement shall have
the same meanings as in the Concession
Agreement.
1.2 In addition, in this
Agreement, unless there is something in the
subject or context inconsistent therewith,
the following expressions shall have the
following meanings:
"Business Day" means a day
(other than a Saturday or Sunday) on which
Lenders and financial markets in Kingston
are open for business and, in respect of a
day on which a payment is required to be
made, in the place where that payment is to
be made in accordance with this Agreement;
"Capital Expenditure" and
"CAPEX" means expenditure as certified in a
Monthly Certificate, with respect to the
Cost Centres 1, 2, 3, 4, 5 and 6.
"Cash" in a Payment Period
means cash balances of the Developer at the
beginning of that Payment Period, plus
amounts received with respect to Toll
Revenues, plus any Compensation Amount
payable in relation to that Payment Period,
plus amounts subscribed for Equity by the
Borrower under the Shareholder Equity
Undertaking, plus amounts drawn under the
Financing Agreements, plus amounts drawn
hereunder in that Payment Period;
"Cash Available" has the
meaning given in Clause 11 hereof;
"Cash Available for GPD
and Subordinated Debt Service" has the
meaning given in Clause 11 hereof;
"Cash Available for GPD
Debt Service" has the meaning given in
Clause 11;
“Concession Agreement”
means the Agreement entered into on the date
hereof between the GPD Lender with the
Borrower for the design, construction,
operation, maintenance and financing of the
Highway 2000 toll road;
"Disbursement" means the
principal amount of each payment which the
GPD Lender shall pay to the Borrower
pursuant to Clause 4 hereof and Clause 24A
of the Concession Agreement, or the
principal amount outstanding of that
payment;
"Early Project Commitment"
has the meaning given in Clause 2 hereof;
"First Payment Period"
means the period commencing on the date
hereof and ending on 30th May 2002;
"First Repayment
Instalment Date" has the meaning set out in
Clause 7.2;
"Indebtedness" includes
any obligation for payment or repayment of
money, whether actual or contingent, present
or future, incurred as principal or as
surety;
"LIBOR" means for a Term
of any Disbursement or overdue amount the
rate quoted by a leading bank in the London
interbank market as of 11.00 a.m. on the
Rate Fixing Day for the offering of deposits
in the currency of that Disbursement or
overdue amount for a period comparable to
that Term;
"Loan" the aggregate
principal amount disbursed or outstanding
under this Agreement;
"Operating Expenditure"
and "OPEX" means expenditure as certified in
a Monthly Certificate, with respect to the
Cost Centres 7, 8 10 and 12.
"Payment Period" means the
First Payment Period, and each successive
period of six months, after the First
Payment Period, which ends on 30th November
or 30th May in any year. These dates shall
be adjusted by agreement between the Parties
to correspond to the relevant payment
periods of the Financing Agreements;
"Phase 1B Commitment" has
the meaning given in Clause 2 hereof;
"Rate Fixing Day" means
the second Business Day before the first day
of a Term or such other day as the GPD
Lender determines is generally treated as
the rate fixing day by market practice in
the relevant interbank market;
"Rate of Exchange" means
the weighted average rate of exchange for
the purchase of US Dollars in Jamaica with
Jamaican Dollars with respect to the
relevant day published by the Bank of
Jamaica (or in the event that the Bank of
Jamaica does not publish this rate, such
other rate as the Government of Jamaica may
advise the parties to this Agreement is used
for the purchase of US Dollars with Jamaican
Dollars by commercial parties, shall be
applicable) ;
"Relevant Statement of
First Payment" means a written statement of
the amount of the EFC First Payment, or a
written statement of the amount of the Phase
1B First Payment, as the case may be;
"Repayment Instalment"
means each instalment for repayment of the
Disbursements;
"Subordinated Debt
Service" means payment of amounts
outstanding under the Subordinated Debt
Agreement when such amounts are due and
payable;
"Term" has the meaning
given in Clause 6;
"Termination Event" means
any of the events referred to in Clause
12.1;
"US Dollar Amount" means
that part of a Disbursement denominated in
US Dollars; and
"Utilisation Date" means
the date a Disbursement is disbursed.
1.3 In this Agreement,
references to periods of "months" shall mean
a period beginning in one calendar month and
ending in the relevant calendar month on the
day numerically corresponding to the day of
the calendar month in which such period
started, provided that (a) if such period
started on the last Business Day in a
calendar month, or if there is no such
numerically corresponding day, such period
shall end on the last Business Day in the
relevant calendar month, and (b) if such
numerically corresponding day is not a
Business Day, such period shall end on the
next following Business Day in the same
calendar month or if there is no such
Business Day, such period shall end on the
preceding Business Day (and "month" and
"monthly" shall be construed accordingly).
1.4 In this Agreement:
(a) Clause headings are
inserted for convenience only and shall not
affect the construction of this Agreement
and unless otherwise specified, all
references to Clauses and Appendices are to
Clauses of, and Appendices to, this
Agreement;
(b) unless the context
otherwise requires, words denoting the
singular number shall include the plural and
vice versa;
(c) references to persons
include bodies corporate and unincorporate;
(d) references to assets
include property, rights and assets of every
description;
(e) references to any
document are to be construed as references
to such document as amended, supplemented or
re-stated from time to time; and
(f) references to any
enactment include re-enactments, amendments
and extensions thereof.
2. FACILITY
2.1 The Borrower shall be
entitled to receive and the GPD Lender shall
make Disbursements up to a maximum aggregate
principal amount of US$72,000,000 (Seventy
Two Million United States Dollars) without
deduction for any amount of tax with respect
to the Early Studies and the Early Project
(the "Early Project Commitment") and
(subject to the occurrence of Financial
Close 1B) a maximum aggregate principal
amount of US$15,500,000 (Fifteen Million,
Five Hundred Thousand United States Dollars)
without deduction for any amount of tax with
respect to Phase 1B (the "Phase 1B
Commitment"), subject to the terms and
conditions contained in this Agreement.
2.2 The GPD Lender will
deliver to the Borrower immediately prior to
:
(a) Early Financial Close,
the Grantor EFC Letter of Credit;
(b) Financial Close 1A,
the Grantor FC1A Letter of Credit; and
(c) Financial Close 1B,
the Grantor FC1B Letter of Credit,
each issued by a bank
rated higher than or equal to A + by
Standard & Poors or the equivalent rating by
another international rating agency.
3. CONDITIONS PRECEDENT TO
DISBURSEMENTS
3.1 Early Project
Commitment
(a) The liability of the
GPD Lender to disburse the Grantor's
Proportion of the Preliminary Payment of the
Early Project Commitment is subject to the
condition that the Borrower has complied
with the procedures set out in this
Agreement and further has, not later than 5
Business Days before the proposed date of
the Preliminary Payment delivered to the GPD
Lender a legal opinion of a lawyer qualified
to practise in Jamaica acting for the
Developer in respect of the legal capacity
of the Borrower and that all necessary steps
under its constitutional documents have been
taken to authorise the Developer to enter
into all the documents listed as Effective
Date Conditions Precedent to which it is a
party.
(b) The liability of the
GPD Lender to disburse the Grantor's
Proportion of the EFC First Payment of the
Early Project Commitment is subject to the
conditions that the Borrower has complied
with the procedures set out in Clause 24A of
the Concession Agreement and this Agreement
and further has, not later than 5 Business
Days before the proposed date of the EFC
First Payment:
(i) satisfied the EFC
Developer Conditions Subsequent; and
(ii) delivered to the GPD
Lender a legal opinion of a lawyer qualified
to practise in Jamaica acting for the
Developer in respect of the legal capacity
of the Borrower and that all necessary steps
under its constitutional documents have been
taken to authorise the Developer to enter
into all the documents listed as EFC
Developer Conditions Subsequent, EFC Joint
Conditions Subsequent and EFC Grantor
Conditions Subsequent to which it is a
party.
(c) The liability of the
GPD Lender to disburse the Grantor's
Proportion of the FC1B First Payment is
subject to the conditions that the Borrower
has complied with the procedures set out in
Clause 24A of the Concession Agreement and
this Agreement and further has, not later
than 5 Business Days before the proposed
date of the FC1B First Payment:
(i) satisfied the Phase 1B
Developer Conditions Subsequent and the
Phase 1B Joint Conditions Subsequent; and
(ii) delivered to the GPD
Lender a legal opinion of a lawyer qualified
to practise in Jamaica acting for the
Developer in respect of the legal capacity
of the Borrower and that all necessary steps
under its constitutional documents have been
taken to authorise the Developer to enter
into all the documents listed as FC1B
Developer Conditions Subsequent, FC1B Joint
Conditions Subsequent and FC1B Grantor
Conditions Subsequent to which it is a
party.
3.2 Conditions to all
Disbursements: The liabilities of the GPD
Lender under this Agreement are subject to
the further conditions that:
(a) the GPD Lender will
have received a Monthly Certificate not
later than 5 Business Days before the
proposed date of the Disbursement;
(b) no Termination Event
will have occurred or would occur as a
result of the making of the Disbursement,
and no event shall have occurred which
entitles the Grantor to issue a Grantor
Termination Notice under the Concession
Agreement;
(c) each of the
representations and warranties as stated
pursuant to Clause 9 will remain accurate at
the date of the Disbursement as if given on
that date by reference to the facts and
circumstances then subsisting;
(d) no amount payable
under the Shareholders Equity Undertaking
with respect to a previous Monthly
Certificate is due and not paid.
3.3 Unsatisfied
conditions: Notwithstanding Clauses 3.1 and
3.2, the GPD Lender may in its sole
discretion agree to make any Disbursement
before receipt by the GPD Lender of all or
any of the documents, and evidence and other
items, or before the satisfaction of all or
any of the other conditions, referred to in
Clauses 3.1, 3.2 or 3.3 in accordance with
those Clauses. If the GPD Lender does agree
to do so, the Borrower will deliver to the
GPD Lender such documents, evidence and
other items, or procure the satisfaction of
such other conditions , by such later date,
and subject to such further conditions, as
the GPD Lender may require and, without
prejudice to the generality of Clause 12.2,
the making of that Disbursement or any
further Disbursement, or any other
performance or discharge by the GPD Lender
of any of its obligations under this
Agreement will not constitute any waiver on
the part of the GPD Lender of any of those
conditions or of any of the Lender's rights,
or any of the Borrower's liabilities, under
this Agreement.
4. DISBURSEMENTS
4.1 Timing: Subject to the
terms of this Agreement, each Disbursement
will be made by the GPD Lender to the
Borrower as follows:
(a) with respect to the
Preliminary Payment, within ten (10)
Business Days after the execution of the
Concession Agreement; and
(b) with respect to the
EFC First Payment and the FC1B First
Payment, within five (5) Business Days after
the Early Financial Close and Financial
Close 1B respectively; and
(c) with respect to each
Monthly Payment, within 5 Business Days
after receipt by the GPD Lender of the
relevant Monthly Certificate.
4.2 Amount: Subject to the
terms of this Agreement, the amount of each
Disbursement shall be as determined in
accordance with Clause 24A and Schedule 19
of the Concession Agreement, but in any
event shall not when aggregated with the
previous Disbursements made with respect to
the relevant commitment be an amount which
results in a greater amount being disbursed
with respect to the Early Project than the
Early Project Commitment or which results in
a greater amount being disbursed with
respect to Phase 1B than the Phase 1B
Commitment.
4.3 Currency:
(a) Fifty per cent. (50%)
of the amount of each Disbursement shall be
paid in Jamaican Dollars and fifty per cent
(50%) of the amount of each Disbursement
shall be paid in US Dollars, save for the
Disbursement related to the Preliminary
Payment which shall be paid 100% in US
Dollars.
(b) The amount of a
Disbursement in Jamaican Dollars will be
calculated as an amount equal to the US
Dollar Amount of the Disbursement converted
to Jamaican Dollars at the Rate of Exchange,
at the Utilisation Date for that
Disbursement.
(c) A Disbursement will
remain denominated in the same currency from
the Utilisation Date for that Disbursement
until repayment in full.
5. INTEREST
5.1 Rate: Interest shall
accrue on each Disbursement and be payable
on the last day of each Term in arrears as
follows:
(a) with respect to that
part of a Disbursement which is disbursed in
Jamaican Dollars, at the rate of 5% per
annum on that part of the Disbursement,
(adjusted in accordance with subclause 5.2);
and
(b) with respect that part
of a Disbursement which is disbursed in USD
at LIBOR plus 4% per annum on that part of
the Disbursement.
5.2 Adjustment of
Principal Amount of Disbursements: For the
purposes of determining the amount of
interest payable under subclause 5.1(a), the
part of each Disbursement which has been
disbursed in Jamaican Dollars shall be
adjusted by an amount which takes into
account Inflation Compensation as described
in Clause 5.9 (Capitalisation of Inflation);
5.3 Default rate:
(a) Subject to paragraph
(b) below, if default is made on the payment
of any amount due under this Agreement
interest will accrue and shall be payable
thereon from the date of default until
payment, and that interest will be
calculated at the rate which is 1 per cent
per annum above the aggregate rate referred
to in Clause 5.1.
(b) If any amount of
interest is payable under Clause 5, but not
paid on the due date due to there being
insufficient Cash Available for GPD Debt
Service on that date, then the Borrower
shall not, for the purposes of this Clause
5, or for the purposes of Clause 12 of this
Agreement be deemed to be in default, but
the provisions of Clause 5.6 below shall
apply to the relevant amount.
5.4 Calculation of
interest: Save as otherwise provided in this
Agreement, interest will be calculated on
the basis of the actual number of days
elapsed and a year of 360 days.
5.5 Notice of rate: The
GPD Lender will notify the Borrower of each
rate of interest promptly after it has been
determined.
5.6 Capitalisation: If and
to the extent that any amount of interest
payable under this Agreement is not paid on
the due date due to there being insufficient
Cash Available for GPD Debt Service on that
date, it shall be deemed to be a
Disbursement hereunder and shall bear
interest at the rates set out in Clause 5.1
above according to whether it is denominated
in USD or Jam$.
5.7 Market disruption:
(a) If the LIBOR can not
be used due to market disruption conditions,
the rate of interest on the affected
Disbursement for the relevant Term will be
the aggregate of:
(i) 4% per annum; and
(ii) the applicable rate
to be agreed by the Parties in replacement
of LIBOR.
5.8 Alternative basis
(a) After receipt of any
notification under Clause 5.7, if the GPD
Lender or the Borrower so requires, the
Borrower and the GPD Lender must enter into
negotiations for a period of not more than
30 days with a view to agreeing an
alternative basis for determining the rate
of interest and/or funding for the affected
Disbursement and any future Disbursement.
(b) Any alternative basis
agreed will be binding on each Party.
5.9 Capitalisation of
Inflation
Inflation Compensation
accrued to any date ("Inflation
Compensation") on an amount will be
calculated by first multiplying that amount
by the Index Ratio applicable at that date
and then subtracting the original amount.
5.10 Index Ratio
For the purposes of Clause
5.9, the Index Ratio is the ratio of the
reference CPI applicable to such date ("Ref
CPI Date") divided by the reference CPI
applicable to the date of the Disbursement
("Ref CPI Base"). The reference CPI Base is
the CPI for the calendar month immediately
preceding the date of that Disbursement. The
reference CPI for any day of succeeding
calendar months is the CPI for the second
preceding calendar month. For example, the
reference CPI for January 2002 is the CPI
for November 2001. In the event of the
non-availability of the CPI for the second
preceding month, the reference CPI date
shall be the CPI for the third preceding
calendar month.
6 TERMS
6.1 Selection
(a) Each Disbursement has
successive Terms. Each Term for a
Disbursement will start on its Utilisation
Date or on the expiry of its preceding Term.
(b) Each Term shall be a
Payment Period, except for the first Term
for a Disbursement, which shall commence on
the Utilisation Date for that Disbursement
and run until 30th May or 30th November,
whichever occurs first thereafter. These
dates shall be adjusted by agreement between
the parties to correspond to the relevant
payment periods of the Financing Agreements.
6.2 No overrunning
If a Term would otherwise
overrun the end of the Concession Period, it
will be shortened so that it ends at the end
of the Concession Period.
7 REPAYMENT AND PREPAYMENT
7.1 Repayment:
The first Repayment
Instalment shall be paid on the First
Repayment Instalment Date and each Repayment
Instalment thereafter shall be paid on 30th
November and 30th May in each year
thereafter together with interest accrued
due to the date of payment in an amount
equal to the Cash Available for GPD Debt
Service for that Payment Period. These dates
shall be adjusted by agreement between the
parties to correspond to the relevant
payment periods of the Financing Agreements.
7.2 Commencement and
Subordination:
(a) The first Repayment
Instalment shall be due and payable on the
date (the "First Repayment Instalment Date")
that all amounts due under the Financing
Agreements have been paid in full, provided
that all sums payable under this Agreement
must be repaid by the Borrower by the end of
the Concession Period, subject to Clause 7.5
hereof.
(b) For the avoidance of
doubt, in no Payment Period shall amounts
paid to discharge interest or principal
under the Subordinated Debt Agreement and/or
the GPD Loan Agreement exceed 50% of the
Cash Available for that period.
(c) It is agreed that no
payment of interest or principal under this
Agreement or the Subordinated Debt Agreement
shall be paid if and to the extent that the
corresponding amount of dividend payable
under the Shareholders Equity Undertaking
may not be paid due to a restriction under
the Financing Agreements (if any). In the
event that this situation arises an amount
equal to the sum of principal or interest
which would otherwise have been paid shall
be deposited in a separate account of the
Borrower subject to such security in favour
of the GPD Lender as it may reasonably
request until the relevant restriction is
lifted and that sum shall not be used for
any other purpose.
7.3 Prepayment:
(a) The Borrower may
prepay any Disbursement without premium in
whole or in part together with all accrued
interest and all fees and other amounts
payable to the GPD Lender under this
Agreement at any time.
(b) No amount of a
Disbursement prepaid under this Agreement
may subsequently be re-borrowed.
(c) All prepayments under
this Agreement must be made with accrued
interest on the amount prepaid and any
amounts due under Clause 12.3. Subject to
the foregoing no premium or penalty is
payable in respect of any prepayment.
7.4 Consequences of
termination of the Concession Agreement:
Upon vesting of the Toll Road in the Grantor
and the other events set out in Clause 32 of
the Concession Agreement occurring after
termination of the Concession Agreement for
any reason and by any party to the
Concession Agreement, this Agreement shall
terminate forthwith and rights of the GPD
Lender accrued herein will terminate. The
GPD Lender hereby agrees that it will have
no recourse nor any indemnification right
against either the Borrower or the
Shareholders with respect to the
Disbursements or arising under this
Agreement.
8. PAYMENTS AND TAXES
8.1 Manner of payment: All
payments to be made by the Borrower under
this Agreement for the account of the GPD
Lender shall be received by the GPD Lender
no later than the due date, at such place or
in such account which the GPD Lender may
from time to time designate and shall be
made free and clear of and without deduction
or withholding for or on account of any Tax
or other deductions of any nature payable by
the GPD Lender imposed now or at any time
after the date of this Agreement, unless the
deduction or withholding is required by law,
in which event:
(i) the Borrower will
ensure that the deduction or withholding
does not exceed the minimum amount required
by law;
(ii) the Borrower will pay
to the authorities responsible for
collection, within the period for payment
permitted by the applicable law, the full
amount of the deduction or withholding
(including, but without limitation, the full
amount of any deduction or withholding from
any additional amount paid under this sub
clause (a)); and
(iii) the Borrower will
supply to the GPD Lender, within the period
for payment permitted by the applicable law,
either an official receipt of the relevant
authorities in respect of all amounts so
deducted or withheld, or (if receipts are
not issued by the relevant authorities on
payment to them of amounts so deducted or
withheld) a certificate of deduction or
equivalent evidence of the relevant
deduction or withholding.
8.2 Repayment Currency:
The currency of each Repayment Instalment
shall be:
(a) (for those amounts
disbursed in Jamaican Dollars) Jamaican
Dollars; and
(b) for those amounts
disbursed in USD either in USD or in
Jamaican Dollars at the Rate of Exchange on
the date of the Repayment Instalment.
8.3 Business Days:
Whenever any payment under this Agreement
becomes due on a day which is not a Business
Day, the due date for that payment will be
extended to the next succeeding day which is
a Business Day.
8.4 Partial payments by
the Borrower: If at any time the amount
received by the GPD Lender from the Borrower
falls short of the total amount of the
payment due to be made by the Borrower then,
without prejudice to any rights or remedies
available to the GPD Lender hereunder, the
GPD Lender will apply the amount actually
received from the Borrower in or towards
discharge of the liabilities of the Borrower
in the following order:
(a) first, in or towards
payment to the GPD Lender of any interest
which has become due but which remains
unpaid;
(b) secondly, in or
towards payment to the GPD Lender of any
Disbursement which has become due but which
remains unpaid,
and the order of
application set out in this Clause 8.4 will
prevail over any appropriation made, or
purported to be made, by the Borrower, but
may be varied by the GPD Lender with the
Borrower's prior written approval.
9. REPRESENTATIONS AND
WARRANTIES
9.1 Restatement of
Representations: The Borrower hereby
represents and warrants to the GPD Lender on
the same terms as it represents and warrants
as Developer to the GPD Lender as Grantor in
the Concession Agreement as if those
provisions were set out in full herein but
with references to "the Grantor" being
replaced with references to "the GPD Lender"
and references to "the Developer" being
replaced with references to "the Borrower".
9.2 Survival: The
representations and warranties of the
Borrower shall survive the execution of this
Agreement and the making of each
Disbursement and shall be deemed to be
repeated at the time of delivery to the GPD
Lender of each Monthly Statement, with
respect to the facts and circumstances
existing at each such time, as if made at
each such time.
10. COVENANTS
10.1 The Borrower
irrevocably and unconditionally covenants
with and undertakes to the GPD Lender as
follows:
(a) that it will:
(i) procure that its
liabilities under this Agreement rank at all
times at least pari passu with all its other
Indebtedness excepting and excluding those
due to Lenders (as defined in the Concession
Agreement) and those preferred by law.
(ii) perform all its
obligations under the Concession Agreement
and all agreements included in the EFC
Developer Conditions Precedent and notify
the GPD Lender of any failure by it or any
other party to perform any of their
obligations under the Concession Agreement
and the agreements included in the EFC
Developer Conditions Precedent as the case
may be or of any review or termination or
purported termination by it or any other
party of any such obligations;
(b) that it will not, save
where permitted under the Grantor Documents,
without the prior written consent of the GPD
Lender:
(i) create or permit to
arise or continue any encumbrance, security
interest or other third party right
affecting all or any of its property, assets
and undertaking (whether present or future)
which could adversely affect the Borrower’s
ability to perform its obligations hereunder
save and except such encumbrances, security
interests and rights created by the
Financing Agreements;
(ii) make, or permit to be
made, any change in the nature of its
business as carried on at the date of this
Agreement; or
(iii) take any action the
taking of which would be likely to result in
any impairment of the legal effect of any of
the Concession Agreement or the agreements
included in the EFC Developer Conditions
Subsequent or of any of the interests,
rights or powers granted to or created by
this Agreement in favour of the GPD Lender.
11 CASH WATERFALL
The GPD Lender and the
Borrower hereby agree that with respect to
each Payment Period, the Borrower shall
apply Cash in the following order of
priority:
(1) Capital Expenditure
with respect to the Construction Works which
is due and payable in that Payment Period;
(2). Operating Expenditure
and taxes (if any) which is due and payable
in that Payment Period;
(3) interest, principal
and other amounts under the Financing
Agreements which is due and payable in that
Payment Period;
(4) amounts required to
fund or to restore the required balance of
any debt service reserve and maintenance
reserve under the Financing Agreements and
the repayment of any amounts drawn under the
Grantor Working Capital Reserve Agreement
each of which is due and payable in that
Payment Period;
(5) Capital Expenditure
incurred with respect to Expansion Schemes
which is due and payable in that Payment
Period
To the extent that there
is any Cash left after the liabilities set
out in items (1) - (5) above have been
satisfied, ("Cash Available"), 50% will be
used to pay distributions to Shareholders of
the Borrower. The remaining 50% ("Cash
Available for GPD and Subordinated Debt
Service") is to be applied in the following
order:
(6) payment of interest
under the Subordinated Debt Agreement which
is due and payable in that Payment Period
and payment of principal under the
Subordinated Debt Agreement which is due and
payable in that Payment Period ;
and the remaining cash
("Cash Available for GPD Debt Service")
shall be applied as follows:
(7) payment of interest
under this Agreement which is due and
payable in that Payment Period and (after
repayment of the principal under the
Financing Agreements), Repayment Instalments
under this Agreement which is due and
payable in that Payment Period.
12. TERMINATION EVENTS
12.1 Events: The
termination of the Concession Agreement; the
occurrence of an Insolvency Event; to the
extend the Borrower has the funds to apply
payment towards the GDP Lender and there is
no restriction under the Financing
Agreements, the failure by the Borrower to
pay any sum expressed to be payable by it
under this Agreement at the time and
otherwise in the manner specified in this
Agreement to the extent the has money shall
each constitute a Termination Event under
this Agreement.
12.2 Consequences: Without
prejudice to Clause 7.4 hereof, immediately
on, or at any time after the occurrence of a
Termination Event, the GPD Lender may, by
written notice to the Borrower, terminate
all or any of its liabilities to the
Borrower and/or (after the First Repayment
Instalment Date) (except in the case of a
Grantor Responsibility Termination or a
Voluntary Termination under Clause 30 of the
Concession Agreement) declare all
Disbursements and all interest, fees and
other amounts payable hereunder to be due
and payable, either immediately or on the
GPD Lender's demand, and the Borrower will
pay to the GPD Lender in full, in accordance
with the GPD Lender's declaration (either
immediately or, if the GPD Lender so
specifies, on the GPD Lender's demand), an
amount equal to the Disbursements and all
interest, fees and other amounts payable
hereunder. For the avoidance of doubt, such
a repayment shall only be made from Cash
Available for GPD Debt Service.
12.3 Break Costs: Without
prejudice to Clause 5.2 but taking into
account any payments of interest made under
that Clause, the Borrower will indemnify the
GPD Lender against any loss or expense on
account of funds borrowed, contracted for or
utilised by the GPD Lender to fund any
amount payable under this Agreement, due to
any amount prepaid on a date other than the
date of Repayment Instalment on which the
relevant amount was originally due
hereunder.
13. GENERAL
13.1 Further documents:
The Borrower agrees to execute any further
documents and do all acts and things which
may be necessary from time to time in the
opinion of the GPD Lender to establish,
maintain and protect the rights of the GPD
Lender under this Agreement and generally to
carry out and procure the carrying out of
the intent hereof, provided that the
Borrower will incur neither more obligations
nor additional costs pursuant to these
further documents, acts or things.
13.2 No waiver: No failure
to exercise and no delay in exercising on
the part of the GPD Lender any right, power
or privilege under this Agreement will
operate as a waiver of such right, nor will
any single or partial exercise by the GPD
Lender of any right, power or remedy
preclude any other or further exercise of
it, or the exercise of any other right,
power or remedy.
13.3 Severable terms: If
any one or more of the provisions of this
Agreement shall be invalid, illegal, or
unenforceable in any respect the validity,
legality and enforceability of the remaining
provisions will not in any way be affected
or impaired.
14. ASSIGNMENT AND
TRANSFER
14.1 No assignment by the
Borrower: Save as otherwise provided in the
Financing Agreements, the Borrower may not
assign or transfer any of its rights or
obligations under this Agreement.
14.2 Assignment, transfer
by the Lender: The GPD Lender (the "Existing
Lender") may, with the prior written
approval of the Borrower not to be
unreasonably withheld or delayed, at any
time assign, transfer or novate to any other
GPD Lender (the "New Lender") all or any of
its rights and/or obligations hereunder,
provided that a transfer of obligations will
be effective only if the New GPD Lender
undertakes to the Existing GPD Lender and to
the Borrower, in form and substance
satisfactory to the Existing Lender and the
Borrower, to be bound by the terms hereof in
place of the Existing Lender. On the
transfer becoming effective in this manner
the Existing GPD Lender will surrender its
rights and will be released from its
obligations hereunder to the extent
specified in the transfer, and the New GPD
Lender will become a party to this
Agreement, entitled to rights and liable to
perform and observe obligations exactly
corresponding to those surrendered and
released by the Existing Lender.
14.3 Disclosure of
information: The GPD Lender may disclose to
a prospective assignee, transferee or sub
participant any information about the
Borrower which has been made available to
the Lender.
15. COMMUNICATIONS
15.1 Notices: Except as
otherwise provided for in this Agreement,
all notices or other communications under or
in respect of this Agreement to any party
hereto shall be in writing and shall be
deemed to be duly given or made when
delivered (in the case of personal delivery
or letter) or when despatched (in the case
of telex or facsimile, save that in the case
of any notice or communication sent by
facsimile such notice or communication shall
not be deemed to be given or made if the
addressee has promptly notified the party
despatching such notice or communication
that it has not received a legible copy of
such notice or communication) to it at the
address stated below (or at such other
address as such party may hereafter specify
for such purpose to the others by notice in
writing):
(a) in the case of the
Borrower: Mr Pascal Radde
c/o Hart Muirhead Fatta,
2 St Lucia Avenue, 3rd
floor Kingston 5, Jamaica
(b) in the case of the GPD
Lender: Mr Wayne Reid
11a-15 Oxford Road
Kingston 5, Jamaica
A written notice includes
a notice by telex or facsimile. A notice or
other communication received on a
non-Business day or after business hours in
the place of receipt, shall be deemed to be
served on the next following Business Day in
such place.
15.2 English language: All
communications and documents delivered
pursuant to or otherwise relating to this
Agreement shall be in English.
16. LAW AND JURISDICTION
16.1 Governing law: This
Agreement shall be governed by and construed
in accordance with the laws of Jamaica.
16.2 Waiver of immunity:
To the extent that a Party to this Agreement
has or hereafter may acquire any immunity
(sovereign or otherwise) from any legal
action, suit or proceeding, from the
jurisdictions of any court or from set-off
or any legal process (whether service of
notice, attachment prior to judgment,
attachment in aid of execution of judgment,
execution or judgment or otherwise) with
respect to itself or any of its property and
assets, that Party hereby irrevocably waives
and agrees not to plead or claim such
immunity in respect of its obligations under
this Agreement.
16.3 Disputes: The
provisions of Clauses 47 (Dispute Resolution
and Expert Determination) and 48
(Arbitration) of the Concession Agreement
are applicable, mutatis mutandis, to this
Agreement as if they were incorporated
herein in full.
16.4 Joinder: The
provisions of Clause 49 (Joinder) of the
Concession Agreement are applicable, mutatis
mutandis, to this Agreement as if they were
incorporated herein in full.
16.5 Enforcement: With
respect to any proceedings for enforcement
of an award pursuant to Clause 16.3 against
assets of either Party brought in the courts
of England:
(a) the GPD Lender
appoints the High Commissioner of Jamaica in
England at 1 Prince Consort Road, London SW7
2BZ, to receive for and on its behalf
service of process in such jurisdiction in
any such enforcement proceedings.
(b) the Borrower shall
appoint an agent (to be notified in writing
to the Grantor by not later than Early
Financial Close) to receive for and on its
behalf service of process in the United
Kingdom in any such enforcement proceedings.
(c) each Party to this
Agreement agrees to maintain in England duly
appointed process agents, notified to the
other Party, for the purpose of Clause 16.3.
(d) each Party to this
Agreement agrees that failure by any such
process agent to give notice of any process
to it shall not impair the validity of such
service or of any judgment based thereon.
IN WITNESS whereof the
parties hereto have entered into this
Agreement the date first above written
SIGNED by Mr Kingsley
Thomas and Dr. Wayne Reid
on behalf of
NATIONAL ROAD OPERATING
AND CONSTRUCTING COMPANY LIMITED
in the presence of:
Miss Candice Rochester
Witness
SIGNED by Mr. Pascal Radde
on behalf of
TRANSJAMAICAN HIGHWAY
LIMITED
in the presence of:
Mr. Thibault Cheyroud
Witness |
