CLEARSTREAM BANKING, SOCIÉTÉ ANONYME CITIGROUP GLOBAL MARKETS LIMITED and COMMERZBANK AKTIENGESELLSCHAFT acting as Arrangers COMMERZBANK AG, FILIALE LUXEMBURG acting as Agent SENIOR LEAD MANAGERS as named herein AND LEAD MANAGERS as named herein AND...
Exhibit 10.63
Execution Version
10th February 2011
CLEARSTREAM BANKING, SOCIÉTÉ ANONYME
CITIGROUP GLOBAL MARKETS LIMITED and COMMERZBANK
AKTIENGESELLSCHAFT acting as Arrangers
COMMERZBANK AG, FILIALE LUXEMBURG acting as Agent
SENIOR LEAD MANAGERS
as named herein
AND
LEAD MANAGERS
as named herein
AND
OTHERS
as named herein
THIRTIETH SUPPLEMENTAL AGREEMENT
Execution Version
CONTENTS
| CLAUSE | PAGE | |||||
| 1. |
DEFINITIONS |
2 | ||||
| 2. |
INTERPRETATION |
2 | ||||
| 3. |
RETIRING BANKS |
2 | ||||
| 4. |
INCOMING NEW BANKS |
2 | ||||
| 5. |
AMENDMENT |
2 | ||||
| 6. |
REPRESENTATIONS AND WARRANTIES |
3 | ||||
| 7. |
VALIDITY OF THE AGREEMENT |
3 | ||||
| 8. |
FINANCE DOCUMENT |
3 | ||||
| 9. |
ENTIRE AGREEMENT |
3 | ||||
| 10. |
COUNTERPARTS |
3 | ||||
| 11. |
LAW |
3 | ||||
| 12. |
JURISDICTION |
3 | ||||
Execution Version
THIS THIRTIETH SUPPLEMENTAL AGREEMENT is dated 10th February 2011
BETWEEN:
| (1) | CLEARSTREAM BANKING, SOCIÉTÉ ANONYME, 42, avenue Xxxx X. Xxxxxxx, L – 1855 Luxembourg, a corporation organised under the laws of Luxembourg (the Company); |
| (2) | COMMERZBANK AG, FILIALE LUXEMBURG (the Agent); |
| (3) | CITIGROUP GLOBAL MARKETS LIMITED (“CGML”) and COMMERZBANK AKTIENGESELLSCHAFT (“COMMERZBANK”) (the Arrangers); |
| (4) | BANK OF MONTREAL, BGL BNP PARIBAS S.A., CITIBANK, N.A., LONDON BRANCH, COMMERZBANK AG, FILIALE LUXEMBURG, CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, INTESA SANPAOLO S.P.A., LONDON BRANCH, KBC BANK NV, LLOYDS TSB BANK PLC, NORDEA BANK FINLAND PLC, SUMITOMO MITSUI BANKING CORPORATION, THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., AND ZURICH INSURANCE PLC, GERMAN BRANCH, (as Senior Lead Managers); |
| (5) | DANSKE BANK A/S, DEUTSCHE BANK LUXEMBOURG S.A., DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK, ING BANK N.V., JPMORGAN CHASE BANK, N.A., UNICREDIT BANK AG, AND WESTLB AG (as Lead Managers); |
| (6) | THE BANKS as named in the L/C Agreement; and |
| (7) | BANK OF MONTREAL, ZURICH INSURANCE PLC, GERMAN BRANCH and KBC BANK NV (each a New Bank) |
WHEREAS:
| (A) | The Company entered into an agreement on 16 February 1995 with Banc of America Securities Limited as agent and arranger and with the Lead Managers and certain financial institutions named therein as Banks, to provide for the issuance of letters of credit, as such agreement was amended on 11th August 1995, 12th February 1996, 12th August 1996, 12th February 1997, 12th August 1997, 30th July 1999, 9th February 2000, 11th August 2000, 12th February 2001, 10th August 2001, 11th February 2002, 13th August 2002, 10th December 2002, 12th February 2003, 7th August 2003, 11th February 2004, 10th August 2004, 11th February 2005, 10th August 2005, 10th February 2006, 10th August 2006, 8th February 2007, 7th August 2007, 8th February 0000, 0xx Xxxxxx 0000 , 00xx February 2009, 10th August 2009, 10th February 2010 and 10th August 2010 (the L/C Agreement). |
| (B) | The parties to this Agreement have agreed by this Thirtieth Supplemental Agreement to allow each New Bank to become a Bank with effect from the Effective Date. |
Execution Version
| (C) | It has been agreed by the parties hereto that the L/C Agreement should be amended on the terms and subject to the conditions set out herein. |
NOW IT IS AGREED as follows:
| 1. | DEFINITIONS |
| 1.1 | In this Agreement: |
Amended L/C Agreement means the L/C Agreement as amended by this Agreement; and
Effective Date means 18th February 2011
| 2. | INTERPRETATION |
2.1 Unless the context otherwise requires and save as mentioned below, words and expressions defined in, or to be construed in accordance with, the L/C Agreement shall have the same meaning and construction when used in this Agreement and, for the avoidance of doubt, the provisions of clause 1.2 (Construction) and 1.3 (Third Party Rights) of the L/C Agreement shall be deemed to be incorporated into this Agreement.
2.2 References in the L/C Agreement to “this Agreement” shall, with effect on and from the Effective Date and unless the context otherwise requires, be references to the L/C Agreement as amended by this Agreement and words such as “herein”, “hereof”, “hereunder”, “hereafter”, and “hereto”, where they appear in the L/C Agreement, shall be construed accordingly in this Agreement.
| 3. | RETIRING BANKS |
With effect on and from the Effective Date, BANK OF MONTREAL IRELAND PLC and ZURICH VERSICHERUNG AG (DEUTSCHLAND) shall cease to be a Senior Lead Manager and a Bank, and SVENSKA HANDELSBANKEN AB (PUBL) LUXEMBOURG BRANCH and MIZUHO CORPORATE BANK LIMITED shall each cease to be a Bank, and shall be released from all obligations under the L/C Agreement owed to the other parties thereto, and shall release such other parties of all obligations under the L/C Agreement owed to them, except to the extent that such obligations have accrued prior to the Effective Date.
| 4. | INCOMING NEW BANKS |
With effect on and from the Effective Date each New Bank shall become a Bank under the Amended L/C Agreement and shall assume all obligations under the Amended L/C Agreement owed to other parties thereto in its capacity as a Bank.
| 5. | AMENDMENT |
With effect on and from the Effective Date, the L/C Agreement shall be amended as follows:
2
Execution Version
5.1 in paragraph (a) of clause 2.1 (The Facility) of the L/C Agreement, the figure “US$ 3,000,000,000” shall be deleted and replaced with “US$ 2,750,000,000”;
5.2 in paragraph (a) of clause 9.1 (Letter of Credit Fee) of the L/C Agreement, the figure “0.125” shall be deleted and replaced with the figure “0.11”; and
5.3 in paragraph (b) of clause 7.2 (Voluntary cancellation) of the L/C Agreement, the words “or Annex C (as applicable)” shall be inserted after the words “Annex B”.
| 6. | REPRESENTATIONS AND WARRANTIES |
The Company makes the representations and warranties in clause 15 (Representations) of the L/C Agreement to and for the benefit of each other party to this Agreement on the date hereof and, for the purposes of this Clause 6, any reference to the “Finance Documents” in clause 15 (Representations) of the L/C Agreement shall include this Agreement.
| 7. | VALIDITY OF THE AGREEMENT |
All of the terms, covenants and conditions of the L/C Agreement shall remain in full force and effect, save as expressly amended or modified by this Agreement. As hereby amended and modified, the L/C Agreement is hereby confirmed in all respects.
| 8. | FINANCE DOCUMENT |
The parties to this Agreement agree that with effect on and from the Effective Date, this Agreement will be a Finance Document (as defined in the Amended L/C Agreement).
| 9. | ENTIRE AGREEMENT |
This Agreement supersedes any prior agreements and understandings between each of the parties hereto with respect to the subject matter hereof and, together with the Amended L/C Agreement and the other Finance Documents, is the complete agreement of each of the parties hereto with respect to the subject matter hereof.
| 10. | COUNTERPARTS |
This Agreement may be signed in any number of counterparts each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument. Any party may enter into this Agreement by signing any such counterpart.
| 11. | LAW |
This Agreement shall be governed by and construed in accordance with the law of the Grand-Duchy of Luxembourg.
| 12. | JURISDICTION |
12.1 The parties to this Agreement agree that for the purposes of any legal action or proceeding arising out of or in connection with this Agreement or any Letter of Credit, they
3
Execution Version
irrevocably submit to the jurisdiction of the courts of Luxembourg, Grand-Duchy of Luxembourg and the Company agrees that any writ, judgement or other notice of legal process shall be sufficiently served on it if delivered to its address provided under clause 26.2 (Addresses) of the Amended L/C Agreement.
12.2 The submission to such jurisdiction shall not and shall not be construed so as to limit the right of the Finance Parties or any of them to take proceedings against the Company in whatsoever jurisdiction in which the Company shall have assets situated for the time being nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions whether concurrently or not.
As WITNESS the signatures of the duly authorised representatives of the parties hereto the date and year first before written.
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Execution Version
EXECUTION PAGE
| The Company |
| CLEARSTREAM BANKING, société anonyme |
| The Agent |
| COMMERZBANK AG, FILIALE LUXEMBURG | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| The Arrangers |
| CITIGROUP GLOBAL MARKETS LIMITED | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| COMMERZBANK AKTIENGESELLSCHAFT | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
Execution Version
EXECUTION PAGE
| The Company |
| CLEARSTREAM BANKING, société anonyme | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| The Agent |
| COMMERZBANK AG, FILIALE LUXEMBURG |
| The Arrangers |
| CITIGROUP GLOBAL MARKETS LIMITED |
| COMMERZBANK AKTIENGESELLSCHAFT |
Execution Version
| The Senior Lead Managers |
| BANK OF MONTREAL | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| BGL BNP PARIBAS S.A. | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| CITIBANK, N.A., LONDON BRANCH | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| COMMERZBANK AG, FILIALE LUXEMBURG | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| INTESA SANPAOLO S.P.A., LONDON BRANCH | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| KBC BANK NV | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
Execution Version
| LLOYDS TSB BANK PLC |
| NORDEA BANK FINLAND PLC |
| SUMITOMO MITSUI BANKING CORPORATION |
| ZURICH INSURANCE PLC, GERMAN BRANCH |
Execution Version
| The Lead Managers |
| DANSKE BANK A/S | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| DEUTSCHE BANK LUXEMBOURG S.A. | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| ING BANK N.V. | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| JPMORGAN CHASE BANK, N.A. | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| UNICREDIT BANK AG | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| WESTLB AG | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
Execution Version
| The Banks |
| BANCA MONTE DEI PASCHI DI SIENA S.P.A., LONDON BRANCH | ||
| By: | /s/ illegible | |
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. |
| By: | /s/ Xxxxxx Xxxxxxx | |
| Name: Xxxxxx Xxxxxxx | ||
| By: | /s/ Xxxxx Xxxxxxx | |
| Name: Xxxxx Xxxxxxx | ||
| BANK OF CHINA (HONG KONG) LIMITED |
| BANK OF MONTREAL IRELAND PLC |
| THE BANK OF TOKYO-MITSUBISHI UFJ, LIMITED |
| BANQUE ET CAISSE D’EPARGNE DE L’ETAT, LUXEMBOURG |
| BANQUE FEDERATIVE DU CREDIT MUTUEL |
| BARCLAYS BANK PLC |
Execution Version
| BGL BNP PARIBAS S.A. |
Execution Version
| The Banks |
| BANCA MONTE DEI PASCHI DI SIENA S.P.A., LONDON BRANCH |
| By: |
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. |
| By: |
| BANK OF CHINA (HONG KONG) LIMITED |
| By: |
| BANK OF MONTREAL |
| By: |
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
| By: |
| BANQUE ET CAISSE D’EPARGNE DE L’ETAT, LUXEMBOURG |
| By: |
| BANQUE FEDERATIVE DU CREDIT MUTUEL |
| By: |
| BARCLAYS BANK PLC |
| By: |
Execution Version
| BGL BNP PARIBAS S.A. |
Execution Version
| The Banks |
| BANCA MONTE DEI PASCHI DI SIENA S.P.A., LONDON BRANCH |
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. |
| BANK OF CHINA (HONG KONG) LIMITED |
| By /s/ Pong Yuon Pik Fiona Name: Pong Yuon Pik Fiona
By /s/ Chin Xxx Xxxx Name: Chin Xxx Xxxx |
| BANK OF MONTREAL |
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD. |
| BANQUE ET CAISSE D’EPARGNE DE L’ETAT, LUXEMBOURG |
| BANQUE FEDERATIVE DU CREDIT MUTUEL |
| BARCLAYS BANK PLC |
Execution Version
| BGL BNP PARIBAS S.A. |
Execution Version
| The Banks |
| BANCA MONTE DEI PASCHI DI SIENA S.P.A., LONDON BRANCH |
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. |
| BANK OF CHINA (HONG KONG) LIMITED |
| BANK OF MONTREAL | ||
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
|
BANQUE ET CAISSE D’EPARGNE DE L’ETAT, LUXEMBOURG |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| BANQUE FEDERATIVE DU CREDIT MUTUEL |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| BARCLAYS BANK PLC |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
Execution Version
| BGL BNP PARIBAS S.A. |
Execution Version
| CHINATRUST COMMERCIAL BANK CO. LTD. |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| CITIBANK, N.A., LONDON BRANCH |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| COMMERZBANK AG., FILIALE LUXEMBURG |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
|
CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| DANSKE BANK A/S |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| DEUTSCHE BANK LUXEMBOURG S.A. |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
|
DEXIA BANQUE INTERNATIONALE À LUXEMBOURG S.A. |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| DNB NOR BANK ASA |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
Execution Version
|
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| DZ PRIVATBANK S.A. |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| HSBC TRINKAUS & XXXXXXXXX XX |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| ING BANK N.V. |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| INTESA SANPAOLO S.P.A., LONDON BRANCH |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| JPMORGAN CHASE BANK, N.A. |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| KBC BANK NV |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| LLOYDS TSB BANK PLC |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
Execution Version
|
NORDDEUTSCHE LANDESBANK LUXEMBOURG S.A. |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| NORDEA BANK FINLAND PLC |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| SKANDINAVISKA ENSKILDA XXXXXX XX PUBL |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| SOCIÉTÉ GÉNÉRALE BANK AND TRUST S.A. |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| SUMITOMO MITSUI BANKING CORPORATION |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| UBS AG |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| UNICREDIT BANK AG |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| XXXXX FARGO BANK INTERNATIONAL |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
Execution Version
| WESTLB AG |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
| ZURICH INSURANCE PLC, GERMAN BRANCH |
| By: | /s/ Xxxxxx Xxxxxxxxx | |
| Name: Xxxxxx Xxxxxxxxx | ||
| Title: Director | ||
