Exhibit 10.1
FACILITIES AGREEMENT
DATED 13th November, 2000
US$850,000,000
FOR
AUTOLIV, INC.
AUTOLIV ASP, INC.
and
AUTOLIV AB
ARRANGED BY
BANK ONE, NA
and
SEB MERCHANT BANKING
XXXXX & XXXXX
London
INDEX
Clause Page
1. Interpretation...............................................1
2. The Facility................................................15
3. Purpose.....................................................18
4. Conditions Precedent........................................19
5. Revolving Loans.............................................19
6. Swingline Loans.............................................20
7. Repayment...................................................21
8. Prepayment and Cancellation.................................22
9. Interest Periods............................................23
10. Interest....................................................24
11. Optional Currencies.........................................27
12. Payments....................................................28
13. Taxes.......................................................30
14. Market Disruption...........................................32
15. Increased Costs.............................................33
16. Illegality..................................................34
17. Guarantee...................................................34
18. Representations and Warranties..............................37
19. Undertakings................................................42
20. Default.....................................................51
21. The Agents and the Arrangers................................54
22. Fees........................................................59
23. Expenses....................................................60
24. Stamp Duties................................................61
25. Indemnities.................................................61
26. Evidence and Calculations...................................62
27. Amendments and Waivers......................................62
28. Changes to the Parties......................................63
29. Disclosure of Information...................................66
30. Set-Off.....................................................66
31. Pro Rata Sharing............................................67
32. Severability................................................68
33. Counterparts................................................68
34. Notices.....................................................68
35. Language....................................................70
36. Jurisdiction................................................71
37. Governing Law...............................................72
38. Integration.................................................72
39. Waiver of Jury Trial........................................72
Schedules
1. Various Parties.............................................73
2. Conditions Precedent Documents..............................76
3. Calculation of the Mandatory Cost...........................78
4. Form of Request.............................................80
5. Form of Novation Certificate................................81
Signatories..........................................................82
THIS AGREEMENT is dated 13 November, 2000 between:
(1) AUTOLIV, INC. (incorporated under the laws of the State of
Delaware, U.S.A.) (in this capacity, the "Parent");
(2) AUTOLIV, INC. (incorporated under the laws of the State of
Delaware, U.S.A.), AUTOLIV ASP, INC. (incorporated under the laws
of the State of Indiana, U.S.A.) and AUTOLIV AB (incorporated
under the laws of Sweden) (each a "Borrower" and together, the
"Borrowers");
(3) BANK ONE, NA and SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA
XXXXXX XX (publ) as arrangers (the "Arrangers");
(4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the
"Banks");
(5) SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA XXXXXX XX (publ) as
facility agent (the "Facility Agent"); and
(6) BANK ONE, NA as swingline agent (the "Swingline Agent").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"Affiliate"
means a Subsidiary or a holding company of a person or any other
Subsidiary of that holding company.
"Affiliated Bank"
means a Bank which is an Affiliate of another Bank.
"Agent"
means the Facility Agent or the Swingline Agent.
"Bank"
means a Revolving Credit Bank or a Swingline Bank.
"Board"
means the Board of Governors of the Federal Reserve System of the
United States of America or any successor thereof.
"Business Day"
means a day (other than a Saturday or a Sunday):
(a) on which banks are open for general business in:
(i) London;
(ii) New York; and
(iii) in relation to a transaction involving an
Optional Currency other than Sterling, the
principal financial centre of the jurisdiction
of that Optional Currency; and
(b) in relation to a transaction involving Euros, which is a
TARGET Day.
"Code"
means the United States Internal Revenue Code of 1986 and any rule
or regulation issued thereunder from time to time in effect.
"Commitment"
means, in relation to a Bank, its Facility A Commitment or its
Facility B Commitment.
"Dangerous Substance"
means any radioactive emissions and any natural or artificial
substance (whether in solid or liquid form or in the form of a gas
or vapour and whether alone or in combination with any other
substance) capable of causing harm to man or any other living
organism or damaging the environment or public health or welfare
including but not limited to any controlled, special, hazardous,
toxic, radioactive or dangerous waste.
"Default"
means an Event of Default or an 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 an Event of Default.
"Drawdown Date"
means the date of the advance of a Loan.
"Environmental Claim"
means any claim by any person as a result of or in connection with
any violation of Environmental Law or any Environmental
Contamination which could give rise to any remedy or penalty
(whether interim or final) or liability for any Obligor or any
Finance Party which might have a material adverse effect.
"Environmental Contamination"
means each of the following and their consequences:
(a) any release, emission, leakage, or spillage of any
Dangerous Substance into any part of the environment; or
(b) any accident, fire, explosion or sudden event which is
directly or indirectly caused by or attributable to any
Dangerous Substance; or
(c) any other pollution of the environment.
"Environmental Law"
means any national or supranational law, regulation or directive
concerning the protection of human health or the environmental or
concerning Dangerous Substances.
"Environmental License"
means any authorization by any Environmental Law.
"ERISA"
means the United States Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate"
means each trade or business, whether or not incorporated, that
would be treated as a single employer with any Obligor under
section 414 of the United States Internal Revenue Code of 1986, as
amended. When any provision of this Agreement relates to a past
event, the term "ERISA Affiliate" includes any person that was an
ERISA Affiliate of an Obligor at the time of that past event.
"Euro" or "(euro)"
means the single currency of the Participating Member States.
"Event of Default"
means an event specified as such in Clause 20.1 (Events of Default).
"Existing Indebtedness"
means:
(a) the US$850,000,000 revolving credit facility dated 24th
April, 1997 between, inter alia, the Parent and Citicorp
USA, Inc. as administrative agent; and
(b) the US$300,000,000 bridge facility dated 22nd March, 2000
between Autoliv ASP, Inc., the Parent and the Facility
Agent.
"Facility"
means Facility A or Facility B.
"Facility A"
means the multi-currency revolving credit facility with renewal
option referred to in Clause 2.1(a) (Facilities).
"Facility A Commitment"
means:
(a) in relation to a Bank which is a bank on the date of this
Agreement, the amount in US Dollars set opposite its name
in Part I of Schedule 1 and the amount of any other
Bank's Facility A Commitment acquired by it under Clause
28 (Changes to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date
of this Agreement, the amount of any other Bank's
Facility A Commitment acquired by it under Clause 28
(Changes to the Parties),
to the extent not cancelled, reduced or transferred under this
Agreement.
"Facility A Loan"
means a Loan drawn down, or to be drawn down, under Facility A.
"Facility A Maturity Date"
means:
(a) subject to Clause 2.7 (Renewal Option), the date falling
a year less a day after the date of this Agreement; or
(b) such later date as may be agreed under Clause 2.7
(Renewal Option).
"Facility Agent's Spot Rate of Exchange"
means the Facility Agent's spot rate of exchange for the purchase
of the relevant Optional Currency in the London foreign exchange
market with US Dollars at or about 11.00 a.m. on a particular day.
"Facility B"
means the multi-currency revolving credit and US Dollar swingline
facilities referred to in Clause 2.1(b) (Facilities).
"Facility B Commitment"
means:
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in US Dollars set opposite its name
in Part II of Schedule 1 and the amount of any other
Bank's Facility B Commitment acquired by it under Clause
28 (Changes to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date
of this Agreement, the amount of any other Bank's
Facility B Commitment acquired by it under Clause 28
(Changes to the Parties),
to the extent not cancelled, reduced or transferred under this
Agreement.
"Facility B Loan"
means a Loan drawn down, or to be drawn down, under Facility B.
"Facility B Maturity Date"
means the fifth anniversary of the date of this Agreement.
"Facility Office"
means the office(s) notified by a Bank to the Facility Agent:
(a) on or before the date it becomes a Bank; or
(b) by not less than five Business Days' notice, as the
office(s) through which it will perform all or any of its
obligations under this Agreement.
"Federal Funds Rate"
means, on any day, the rate per annum determined by the Swingline
Agent to be the Federal Funds Rate (as published by the Federal
Reserve Bank of New York) at or about 1.00 p.m. (New York City
time) on that day.
"Fee Letters"
means the letter from the Arrangers to the Obligors and the
letters from the Agents to the Obligors, each dated on or about
the date of this Agreement and setting out (among other matters)
the amount of the fees referred to in Clause 22 (Fees).
"Final Maturity Date"
means the fifth anniversary of the date of this Agreement.
"Finance Document"
means this Agreement, the Fee Letters, a Novation Certificate or
any other document designated as such by the Facility Agent and
the Obligors' Agent.
"Finance Party"
means an Agent, an Arranger or a Bank.
"Financial Indebtedness"
means any indebtedness in respect of:
(a) moneys borrowed;
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance 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 other derivative instrument (and when
calculating the value of any such transaction, only the
marked-to-market value shall be taken into account);
(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.
"Group"
means the Parent and its Subsidiaries.
"Information Memorandum"
means the information memorandum prepared by the Obligors in
connection with this Agreement and dated September, 2000.
"Interest Period"
means each period determined in accordance with Clause 9 (Interest
Periods).
"LIBOR"
means:-
(a) the rate per annum which appears on the appropriate page
of the Reuters Screen; or
(b) if no such rate appears on the Reuters Screen at the
relevant time, the arithmetic mean (rounded upward if
necessary to the nearest four decimal places) of the
rates per annum as supplied to the Facility Agent at its
request, quoted by the Reference Banks to leading banks
in the London interbank market,
at or about 11.00 a.m. on the applicable Rate Fixing Day for the
offering of deposits in the currency of the relevant Loan for a
period comparable to the relevant Interest Period.
"Loan"
means, subject to Clause 9 (Interest Periods), the principal
amount of each borrowing by a Borrower under this Agreement or the
principal amount outstanding of that borrowing.
"Majority Banks"
means, at any time, Banks:
(a) whose participations in the Loans then outstanding
aggregate more than 66 2/3 per cent. of all the Loans then
outstanding; or
(b) if there are no Loans then outstanding, whose Commitments
then aggregate more than 66 2/3 per cent. of the Total
Commitments; or
(c) if there are no Loans then outstanding and the Total
Commitments have been reduced to nil, whose Commitments
aggregated more than 662/3 per cent. of the Total
Commitments immediately before the reduction.
"Mandatory Cost"
means, in relation to each Bank which notifies the Facility Agent
that it is incurring such costs, the cost imputed to the Bank of
compliance with:
(a) the cash ratio and special deposit requirements of the
Bank of England and/or the banking supervision or other
costs imposed by the Financial Services Authority; and
(b) any reserve asset requirements of the European Central
Bank notified by each Bank to the Facility Agent as the
costs incurred by them of complying with such
requirements,
in each case as determined in accordance with Schedule 3.
"Margin"
means, subject to Clause 10.2 (Adjustment of Margin), 0.40 per
cent. per annum.
"Margin Stock"
has the meaning assigned to such term in Regulation U of the Board.
"Material Subsidiary"
means any Subsidiary of the Parent:
(a) (i) the book value of whose assets (consolidated
if it itself has Subsidiaries) equals or exceeds
10 per cent. of the book value of the
consolidated total assets of the Group; or
(ii) whose revenues (consolidated if it itself has
Subsidiaries) equal or exceed 10 per cent. of
the revenues of the Group taken as a whole; or
(iii) whose trading profits (consolidated if it itself
has Subsidiaries) before interest and tax equal
or exceed 10 per cent. of the trading profits
before interest and tax of the Group as a whole,
as determined by reference to the most recent accounts of
the Subsidiary and the most recent consolidated accounts
of the Group; or
(b) any Subsidiary of the Parent which becomes a member of
the Group after the date of the latest consolidated
accounts of the Group at the time of determination and
which would fulfil any of the tests in (a)(i), (ii) or
(iii) above if tested on the basis of its latest accounts
(consolidated if it itself has Subsidiaries) and those
latest accounts of the Group; or
(c) prior to the delivery of each set of accounts pursuant to
Clause 19.2 (Financial information), any Subsidiary of
the Parent to which has been transferred (whether by one
transaction or a series of transactions, related or not)
the whole or substantially the whole of the assets of a
Subsidiary which immediately prior to such transaction or
any of such transactions was a Material Subsidiary.
"Maturity Date"
means the Facility A Maturity Date or the Facility B Maturity Date.
"Moody's"
means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan"
means a "multiemployer plan" within the meaning of section 3(37)
or 4001(a)(3) of ERISA.
"National Currency Unit"
means the unit of currency of a Participating Member State other
than the euro unit.
"Novation Certificate"
has the meaning given to it in Clause 28.3 (Procedure for
novations).
"Obligor"
means the Parent and each Borrower.
"Obligors' Agent"
means the Parent, or such other Obligor from time to time
nominated by the Obligors' Agent to replace it as Obligors' Agent
and approved for such purpose by the Facility Agent.
"Optional Currency"
means any currency (other than US Dollars) which is freely
available and convertible into US Dollars, and deposits of which
are readily available in the London interbank market.
"Original Dollar Amount"
in relation to a Loan, means:
(a) if that Loan is denominated in US Dollars, the amount of
that Loan; or
(b) if that Loan is denominated in an Optional Currency, the
equivalent in US dollars of the amount of that Loan,
calculated at the Facility Agent's Spot Rate of Exchange
three Business Days before its Drawdown Date.
"Original Group Accounts"
means the audited consolidated accounts of the Group for the year
ended 31st December, 1999.
"Participating Member State"
means a member state of the European Union that adopts a single
currency in accordance with the legislation of the European Union
relating to European Economic and Monetary Union.
"Party"
means a party to this Agreement.
"Plan"
means an "employee benefit plan" within the meaning of section
3(3) of ERISA maintained by the Borrower or any ERISA Affiliate
currently or at any time within the last five years, or to which
the Borrower or any ERISA Affiliate is required to make payments
or contributions or has made payments or contributions within the
past five years.
"Prime Rate"
means the prime commercial lending rate in US Dollars from time to
time announced by the Swingline Agent; each change in the interest
rate on a Swingline Loan which results from a change in the Prime
Rate becomes effective on the day on which the change in the Prime
Rate becomes effective.
"Rate Fixing Day"
means:
(a) the second Business Day before the first day of an
Interest Period for a Revolving Loan denominated in any
currency other than Sterling; or
(b) in the case of a Revolving Loan denominated in Sterling
only, the first day of the Interest Period for that Loan,
or such other day as is generally treated as the rate fixing day
by market practice in the London interbank market for leading
banks to give quotations for deposits in the relevant currency for
delivery on the first day of the relevant Interest Period, as
determined by the Facility Agent.
"Rating Agency"
means Moody's or Standard & Poor's.
"Reference Banks"
means, subject to Clause 28.4 (Reference Banks), the Facility
Agent, Bank One, NA and Societe Generale.
"Renewal Option"
means the option of the Obligors' Agent to request an extension of
the Facility A Maturity Date under Clause 2.7 (Renewal Option).
"Reportable Event"
means any of the events set forth in section 4043 of ERISA or the
related regulations.
"Request"
means a request made by the Obligors' Agent for a Loan,
substantially in the form of Schedule 4.
"Restricted Margin Stock"
means Margin Stock owned by any Obligor or any member of the
Group, which represents not more than 331/3 per cent of the
aggregate value (determined in accordance with Regulation U), on a
consolidated basis, of the assets of each Obligor and all members
of the Group (other than Margin Stock) that are subject to the
provisions of Clause 19 (Undertakings) (including, without
limitation, Clauses 19.8 (Negative pledge) and 19.9 (Transactions
similar to security)).
"Revolving Credit Bank"
means, subject to Clause 28 (Changes to the Parties), a bank or
financial institution listed in Part I and/or Part II of Schedule
1 in its capacity as a provider of Revolving Loans.
"Revolving Credit Commitment"
means:-
(a) in relation to a Revolving Credit Bank which is a
Revolving Credit Bank on the date of this Agreement, the
aggregate of the amounts in US Dollars set opposite its
name in Parts I and II of Schedule 1 and the amount of
any other Bank's Revolving Credit Commitment acquired by
it under Clause 28 (Changes to the Parties); and
(b) in relation to a Revolving Credit Bank which becomes a
Revolving Credit Bank after the date of this Agreement,
the amount of any other Bank's Revolving Credit
Commitment acquired by it under Clause 28 (Changes to the
Parties),
to the extent not cancelled, reduced or transferred under this
Agreement.
"Revolving Loan"
means, subject to Clause 11 (Optional Currencies), the principal
amount of a borrowing by a Borrower:
(a) under Facility A; or
(b) provided by the Revolving Credit Banks under Facility B
by means of a revolving loan, as set out in Clause
2.1(b)(i) (Facilities).
"Security Interest"
means any mortgage, pledge, lien, charge, assignment,
hypothecation or security interest or any other agreement or
arrangement having the effect of conferring security.
"Standard & Poor's"
means Standard & Poor's Rating Group, a division of XxXxxx-Xxxx
Companies, Inc.
"Subsidiary"
means an entity from time to time of which a person has direct or
indirect control or owns directly or indirectly more than fifty
per cent. (50%) of the share capital or similar right of
ownership.
"Swingline Bank"
means, subject to Clause 28 (Changes to Parties), a bank or
financial institution listed in Part III of Schedule 1 in its
capacity as a participant in the Swingline Facility.
"Swingline Commitment"
means:
(a) in relation to a Swingline Bank, and subject to Clause
8.2 (Voluntary cancellation) and to Clause 28 (Changes to
Parties), the obligation of such Swingline Bank to
contribute to Swingline Loans hereunder up to the
aggregate principal amount in US Dollars set opposite its
name in part III of Schedule 1; or
(b) in relation to a Bank which becomes a Swingline Bank
after the date of this Agreement, the amount of any other
Swingline Bank's Swingline Commitment acquired by it
under Clause 28 (Changes to the Parties),
to the extent not transferred, cancelled or reduced hereunder.
"Swingline Facility"
means the US Dollar swingline facility referred to in Clause
2.1(b)(ii) (Facilities).
"Swingline Loan"
means the principal amount of a borrowing by a Borrower under the
Swingline Facility or (as the context requires) the principal
amount thereof from time to time outstanding (together the
"Swingline Loans").
"Swingline Rate"
means, on any day, the higher of:
(a) the Prime Rate; and
(b) the aggregate of the Federal Funds Rate and 0.50 per
cent. per annum.
"TARGET Day"
means a day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is open.
"Total Commitments"
means the aggregate of the Total Facility A Commitments and the
Total Facility B Commitments.
"Total Facility A Commitments"
means the aggregate of the Facility A Commitments of all the
Banks, being US$320,000,000 at the date of this Agreement.
"Total Facility B Commitments"
means the aggregate of the Facility B Commitments of all the Banks
(including the Total Swingline Commitments of the Swingline
Banks), being US$530,000,000 at the date of this Agreement.
"Total Revolving Credit Commitments"
means the aggregate for the time being of the Revolving Credit
Commitments, being US$850,000,000 at the date of this Agreement.
"Total Swingline Commitments"
means the aggregate for the time being of the Swingline
Commitments, being US$200,000,000 at the date of this Agreement.
"Unrestricted Margin Stock"
means any Margin Stock owned by either Obligor or any member of
the Group which is not Restricted Margin Stock.
"U.S.A."
means the United States of America.
"US Dollars" and "US$"
means the currency for the time being of the U.S.A.
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 present and future properties,
revenues and rights of every description;
an "authorization" includes an authorization,
consent, approval, resolution, licence,
exemption, filing, registration and
notarization;
"control" means the power to direct the
management and policies of an entity by
controlling 50 per cent. or more of voting
capital, whether through the ownership of voting
capital, by contract or otherwise;
a "material adverse effect" means:
(1) a material adverse effect on the
business or financial condition of the
Parent or the Group as a whole; or
(2) a material adverse effect on the
ability of any Obligor to perform its
obligations under any of the Finance
Documents.
a "month" is a reference to a period starting on
one day in a calendar month and ending on the
numerically corresponding day in the next
calendar month, except that:
(1) if there is no numerically
corresponding day in the month in which
that period ends, that period shall end
on the last Business Day in that
calendar month; or
(2) if an Interest Period commences on the
last Business Day of a calendar month,
that Interest Period shall end on the
last Business Day in the calendar month
in which it is to end;
a "person" includes any individual, company,
unincorporated association or body of persons
(including a partnership, joint venture or
consortium), government, state, agency,
international organisation or other entity;
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" 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;
"winding up" also includes amalgamation,
reconstruction, reorganisation, administration,
dissolution, liquidation, merger or
consolidation and any equivalent or analogous
procedure under the law of any jurisdiction
(but, for the avoidance of doubt,
"reorganisation" does not include a mere
transfer of assets from one member of the Group
to another whether the transferor continues to
exist);
(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, transferees
and assigns;
(v) a Finance Document or another document is a
reference to that Finance Document or other
document as amended; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any
other Finance Document or in any notice given under or in
connection with any Finance Document has the same meaning
in that Finance Document or notice as in this Agreement.
(c) The index to and the headings in this Agreement are for
convenience only and are to be ignored in construing this
Agreement.
(d) (i) Unless expressly provided to the contrary in
a Finance Document, a person who is not a party
to a Finance Document may not enforce any of its
terms under the Contracts (Rights of Third
Parties) Xxx 0000; and
(ii) notwithstanding any term of any Finance
Document, the consent of any third party is not
required for any variation (including any
release or compromise of any liability order) or
termination of that Finance Document.
2. THE FACILITY
2.1 Facilities
Subject to the terms of this Agreement, the Xxxxx xxxxx to the
Borrowers:
(a) a multicurrency revolving credit facility under which the
Revolving Credit Banks will make Loans to a Borrower
denominated in US Dollars or Optional Currencies
("Facility A"); and
(b) (i) a multicurrency revolving credit facility
under which the Revolving Credit Banks will make
Loans to a Borrower denominated in US Dollars or
Optional Currencies; and
(ii) a US Dollar swingline facility under which the
Swingline Banks will make Swingline Loans to a
Borrower denominated in US Dollars,
(together, "Facility B").
2.2 Facility Limits
(a) The aggregate Original Dollar Amount of all outstanding
Facility A Loans shall not at any time exceed the Total
Facility A Commitments;
(b) The Swingline Facility is a part of Facility B and is not
independent of the Facility B multicurrency revolving
credit facility as set out in Clause 2.1(b)(i) above. The
aggregate Original Dollar Amount of all outstanding
Facility B Loans (including Swingline Loans) shall not at
any time exceed the Total Facility B Commitments.
(c) The aggregate Original Dollar Amount of all outstanding
Swingline Loans shall not, at any time, exceed the Total
Swingline Commitments.
(d) The aggregate Original Dollar Amount of all outstanding
Loans shall not, at any time, exceed the Total
Commitments.
2.3 A Bank's individual limit
(a) A Bank is not obliged to participate in a Loan if it
would cause its applicable Outstandings to exceed its
Overall Commitment.
(b) For the purpose of this Clause 2.3:
(i) the "applicable Outstandings" of a Bank on any
Drawdown Date means the aggregate Original
Dollar Amount of the participations of that Bank
and its Affiliates in all outstanding Loans
which would be outstanding on that Drawdown
Date, if:
(1) all outstanding Loans having Repayment
Dates which fall on or before that
Drawdown Date are repaid; and
(2) all Loans to be made on or before that
Drawdown Date and in respect of which a
Request has been received by an Agent
are made;
and
(ii) the "Overall Commitment" of a Bank means, in the
case of a Bank which is a Revolving Credit Bank,
its Revolving Credit Commitment or, in the case
of a Swingline Bank which is not a Revolving
Credit Bank, the Revolving Credit Commitment of
its Affiliate which is a Revolving Credit Bank.
(c) If the operation of Clauses 5.3 (Advance of Revolving
Loans) or of Clauses 6.3 (Advance of Swingline Loans)
would cause the applicable Outstandings of a Bank (the
"affected Bank") to exceed its Overall Commitment, then:
(i) the affected Bank will participate in the
relevant Loan only to the extent that its
applicable Outstandings will not exceed its
Overall Commitment;
(ii) each other Bank's participation in the Loan
under the Clauses referred to above will be
re-calculated in accordance with those Clauses,
but for the purpose of the recalculation the
affected Bank's Commitment will be deducted from
the Total Revolving Credit Commitments or the
Total Swingline Commitments (as appropriate) and
the amount of the affected Bank's participation
in that Loan (if any) will be deducted from the
requested amount of the Loan; and
(iii) the calculation in sub-paragraph (ii) above will
be applied to each Bank in turn until the amount
of its participation in the Loan under that
Clause is determined.
2.4 Obligations several
The obligations of each Bank under this Agreement are several.
Failure of a Bank to carry out its obligations hereunder shall not
relieve any other Party of any of its obligations under the
Finance Documents. No Finance Party is responsible for the
obligations of any other Finance Party under the Finance
Documents.
2.5 Rights several
The obligations of each Obligor towards each Finance Party
hereunder are given to each of them as separate and independent
rights. Each Finance Party may separately enforce its rights under
each Finance Document, subject to the other terms of the Finance
Documents.
2.6 Appointment of Obligors' Agent
(a) Each Obligor irrevocably authorizes the Obligors' Agent
to give all notices (including, without limitation,
Requests and notices of prepayment and cancellation) and
instructions and make such agreements (including, without
limitation, in relation to an alternative basis for
determining the rate of interest and/or funding
applicable to a Loan (as described in Clause 14.3
(Substitute basis)) expressed to be capable of being
given or made by the Obligors' Agent in this Agreement.
(b) The authorization of the Obligors' Agent shall be
effective notwithstanding that the exercise of the
Obligors' Agent's authority may affect the Obligors
without further reference to or the consent of the
Obligors. Each Obligor shall, as regards each Agent and
each Bank, be bound by any action taken by the Obligors'
Agent on its behalf as though that Obligor had itself
taken such action.
2.7 Renewal Option
(a) The Obligors' Agent may request the exercise of the
Renewal Option by submitting a Renewal Request to the
Facility Agent.
(b) A Renewal Request shall not be valid unless:
(i) it is delivered to the Facility Agent on a day
falling no less than 40 days prior to the
relevant Facility A Maturity Date;
(ii) it specifies a date (the "Renewal Date") which
is a year less a day after the relevant Facility
A Maturity Date and is on or before the Final
Maturity Date; and
(iii) it does not (and would not) cause paragraph (c)
to be contravened.
(c) The Renewal Option may be exercised no more than four
times.
(d) (i) Upon receipt of a valid Renewal Request, the Facility
Agent shall promptly notify each Bank which has a
Facility A Commitment. Each such Bank shall have the
right, in its absolute discretion, to accept or decline
any Renewal Request and shall carry out a full credit
assessment of the Obligors before accepting a Renewal
Request. Any such Bank which wishes to accept the Renewal
Request shall (subject to paragraph (ii)) so notify the
Facility Agent no later than 20 days before the relevant
Facility A Maturity Date.
(ii) No Bank shall notify the Facility Agent of its
acceptance of a Renewal Request prior to the
date falling 30 days before the relevant
Facility A Maturity Date.
(e) If there are any Renewing Banks, then on the relevant
Facility A Maturity Date:
(i) the Facility A Maturity Date shall be extended
to the Renewal Date; and
(ii) the Facility A Commitment of each Non-renewing
Bank shall be cancelled automatically.
(f) Any Renewal Request is irrevocable and may not be
withdrawn.
(g) In this Clause 2.7:
(i) the "relevant Facility A Maturity Date" shall
mean the Facility A Maturity Date in effect on
the date of a Renewal Request; and
(ii) a "Renewing Bank" shall mean a Bank which
notifies the Facility Agent, within the dates
referred to in paragraph (d), that it accepts a
Renewal Request; and
(iii) a "Non-renewing Bank" shall mean a Bank which
has a Facility A Commitment at the date of a
Renewal Request but is not a Renewing Bank.
2.8 Change of currency
(a) If more than one currency or currency unit are at the
same time recognised by the central bank of any country
as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and
any obligations arising under the Finance
Documents in, the currency of that country shall
be translated into, or paid in, the currency or
currency unit of that country designated by the
Facility Agent; and
(ii) any translation from one currency or currency
unit to another shall be at the official
conversion rate recognised by the central bank
for the conversion of that currency or currency
unit into the other, rounded up or down by the
Facility Agent acting reasonably.
(b) If a change in any currency of a country occurs, this
Agreement will be amended to the extent the Facility
Agent specifies to be necessary to reflect the change in
currency and to put the Finance Parties in the same
position, so far as possible, that it would have been in
if no change in currency had occurred.
3. PURPOSE
(a) Each Borrower shall apply each Facility A Loan towards
its general corporate purposes, but specifically
excluding any purpose set out in paragraph (b) below
relating to Facility B Loans.
(b) Each Borrower shall apply each Facility B Loan towards:
(i) refinancing the Existing Indebtedness; or
(ii) as support for any commercial paper programme; or
(iii) financing any acquisitions not prohibited by the
terms of this Agreement.
(c) Without affecting the obligations of any Obligor in any
way, no Finance Party is bound to monitor or verify the
application of any Loan.
4. Conditions Precedent
4.1 Documentary conditions precedent
The Obligors' Agent may not deliver the first Request until the
Facility Agent has notified the Borrower and the Banks that it has
received all of the documents set out in Schedule 2 in form and
substance satisfactory to it.
4.2 Further conditions precedent
The obligation of each Bank to participate in any Loan is subject
to the further conditions precedent that:
(a) on both the date of the Request and the Drawdown Date:
(i) the representations and warranties in Clause 18
(Representations and Warranties) to be repeated
on those dates are correct and will be correct
immediately after the Loan is made; and
(ii) no Default is outstanding or might result from
the Loan;
(b) the making of the Loan would not cause Clause 2.2
(Facility Limits) to be contravened; and
(c) the making of the Loan would not result in more than
eight Loans being outstanding at any one time.
5. REVOLVING LOANS
5.1 Drawdown
A Borrower may borrow a Revolving Loan if the Facility Agent
receives from the Obligors' Agent, not later than 11.00 a.m. two
Business Days before the proposed Drawdown Date or, in the case of
the Loan denominated in an Optional Currency, three Business Days
before the proposed Drawdown Date, a duly completed Request. Each
Request is irrevocable.
5.2 Completion of Requests
A Request will not be regarded as having been duly completed unless:
(a) it specifies that it is a utilisation of the revolving
credit facility;
(b) it specifies whether it relates to Facility A or Facility B;
(c) it specifies the Borrower that will borrow the Loan;
(d) the Drawdown Date is a Business Day falling on or before
the Maturity Date of the relevant Facility;
(e) the amount of the Loan is:
(i) a minimum of US$25,000,000 and an integral
multiple of US$5,000,000, or an equivalent
amount in any Optional Currency; or
(ii) the balance of the relevant undrawn Commitment; or
(iii) such other amount as the Facility Agent may agree;
(f) the amount selected under paragraph (e) above does not
cause Clause 2.1 (Facilities) to be contravened;
(g) the currency selected complies with Clause 11 (Optional
Currencies);
(h) the Interest Period selected complies with Clause 9
(Interest Periods) and does not extend beyond the
Maturity Date of the relevant Facility; and
(i) the payment instructions comply with Clause 12 (Payments).
Each Request must specify one Revolving Loan only, but the
Obligors' Agent may, subject to the other terms of this Agreement,
deliver more than one Request on any one day. Unless otherwise
agreed by the Facility Agent, no more than eight Loans may be
outstanding at any time.
5.3 Advance of Revolving Loans
(a) The Facility Agent shall promptly notify each Revolving
Credit Bank of the details of the requested Revolving
Loan and the amount of its participation in the Revolving
Loan.
(b) Subject to the terms of this Agreement, each Revolving
Credit Bank shall make its participation in the Revolving
Loan available to the Facility Agent for the relevant
Borrower in the currency in which it is to be borrowed,
on the relevant Drawdown Date.
(c) The amount of each Revolving Credit Bank's participation
in the Revolving Loan will be the proportion of the Loan
which its Commitment in respect of the relevant Facility
bears to the Total Commitments in respect of the relevant
Facility on the proposed Drawdown Date adjusted, if
necessary, to reflect the operation of Clause 2.3 (A
Bank's individual limit).
6. SWINGLINE LOANS
6.1 Drawdown
A Borrower may borrow a Swingline Loan if the Swingline Agent
receives from the Obligors' Agent, not later than 11.00 a.m. (New
York City time) on the proposed Drawdown Date, a duly completed
Request. Each Request must be copied to the Facility Agent and is
irrevocable.
6.2 Completion of Requests
A Request for a Swingline Loan will not be regarded as having been
duly completed unless:-
(a) it specifies that it is a utilisation of the Swingline
Facility;
(b) it specifies the Borrower that will borrow the Loan;
(c) the Drawdown Date is a Business Day falling before the
Facility B Maturity Date;
(d) the amount of the Loan is:-
(i) a minimum of U.S.$25,000,000 and an integral
multiple of U.S.$5,000,000;
(ii) the balance of the undrawn Total Swingline
Commitments; or
(iii) such other amount as the Swingline Agent may
agree;
(e) the amount selected under paragraph (d) does not cause
Clause 2.2 (Facility Limits) to be contravened;
(f) the Interest Period selected complies with Clause 9
(Interest Periods) and does not extend beyond the
Facility B Maturity Date; and
(g) the payment instructions comply with Clause 12 (Payments).
6.3 Advance of Swingline Loans
(a) The Swingline Agent shall, not later than 12 noon (New
York City time) on the proposed Drawdown Date, notify
each Swingline Bank of the details of the requested
Swingline Loan and the amount of its participation in the
Swingline Loan.
(b) Subject to the terms of this Agreement, each Swingline
Bank shall make its participation in the Swingline Loan
available to the Swingline Agent for the relevant
Borrower on the relevant Drawdown Date.
(c) The amount of each Swingline Bank's participation in the
Swingline Loan will be the proportion of the Swingline
Loan which its Swingline Commitment bears to the Total
Swingline Commitments on the date of receipt of the
relevant Request, adjusted, if necessary, to reflect the
operation of Clause 2.3 (A Bank's individual limit).
7. REPAYMENT
7.1 Repayment
The Borrower shall repay each Loan in full, on the last day of its
Interest Period, to the Facility Agent or (in the case of a
Swingline Loan) to the Swingline Agent for the relevant Bank(s)
participating in that Loan.
7.2 Re-borrowing
Subject to the other terms of this Agreement, any amounts repaid
under Clause 7.1 (Repayment) may be re-borrowed.
8. PREPAYMENT AND CANCELLATION
8.1 Automatic cancellation
(a) The Total Facility A Commitments shall, to the extent not
already voluntarily cancelled under Clause 8.2 (Voluntary
cancellation) and subject to Clause 2.7 (Renewal Option),
be automatically cancelled in full on the Facility A
Maturity Date.
(b) The Total Facility B Commitments shall, to the extent not
already voluntarily cancelled under Clause 8.2 (Voluntary
cancellation), be automatically cancelled in full on the
Facility B Maturity Date.
8.2 Voluntary cancellation
(a) The Obligors' Agent may, by giving not less than five
days' prior notice to the Facility Agent (or such shorter
period of notice as the Majority Banks may agree), cancel
in whole or in part the undrawn amount of the Total
Facility A Commitments or the Total Facility B
Commitments (or both) (but the cancellation in part of
either shall be in a minimum of US$25,000,000 and an
integral multiple of US$5,000,000).
(b) The Obligors' Agent may, by giving prior notice to the
Swingline Agent, cancel the unutilised portion of the
Total Swingline Commitments in whole or in part (but if
in part, in a minimum of US$25,000,000 and an integral
multiple of US$5,000,000).
(c) Any such cancellation shall reduce the Commitment of each
Bank in respect of the relevant Facility (including, in
relation to a reduction of the Total Swingline
Commitments, a corresponding reduction in the Total
Facility B Commitments) pro rata.
(d) The Obligors' Agent may not cancel the Total Facility B
Commitments if it would result in the Total Swingline
Commitments exceeding the Total Facility B Commitments.
8.3 Additional right of prepayment and cancellation
If:
(a) a Borrower is required to pay to a Bank any additional
amounts under Clause 13 (Taxes);
(b) a Borrower is required to pay to a Bank any amount under
Clause 15 (Increased Costs); or
(c) Clause 14 (Market Disruption) is in operation but no
agreement has been reached under Clause 14.3 (Substitute
basis),
then, without prejudice to the obligations of the Borrowers under
those Clauses, the Obligors' Agent may, whilst the relevant
circumstances continue, serve a notice of prepayment and
cancellation on that Bank through the Facility Agent. On the date
falling five Business Days after the date of service of the
notice:
(i) all the Borrowers shall prepay the
participations of that Bank and its Affiliated
Bank (if any) in all the Loans; and
(ii) the Commitments of that Bank and its Affiliated
Bank (if any) shall be cancelled.
8.4 Mandatory Prepayment
If, at any time after the date of this Agreement:
(a) it is or becomes unlawful for any Obligor to perform any
of its obligations under the Finance Documents;
(b) any Borrower (other than the Parent) is not or ceases to
be a Subsidiary of the Parent;
(c) any single person, or group of persons acting in concert,
acquires control of the Parent; or
(d) the guarantee of the Parent is not effective or is
alleged by any Obligor to be ineffective for any reason,
then the Facility Agent may, and shall if so directed by the
Majority Banks, by notice to the Obligors' Agent:
(i) cancel the Total Commitments; and/or
(ii) demand that all or part of the Loans, together
with accrued interest and all other amounts
accrued under the Finance Documents, be repaid
forthwith, whereupon they shall be repaid forthwith.
8.5 Miscellaneous provisions
(a) Any notice of prepayment and cancellation or notice of
cancellation under this Agreement is irrevocable. The
Facility Agent shall notify the Banks promptly of receipt
of any such notice.
(b) All prepayments under this Agreement shall be made
together with accrued interest on the amount prepaid and,
subject to Clause 25.2 (Other indemnities), without
premium or penalty. All cancellations under this
Agreement shall be made without penalty.
(c) No prepayment or cancellation is permitted except in
accordance with the express terms of this Agreement.
(d) No amount of a Commitment which is cancelled under this
Agreement may subsequently be reinstated.
(e) No amount prepaid under this Agreement may subsequently
be re-borrowed.
9. INTEREST PERIODS
9.1 General
Each Loan has one Interest Period only.
9.2 Selection
(a) The Obligors' Agent may select an Interest Period for a
Loan in the relevant Request. Each Interest Period for a
Loan will commence on its Drawdown Date.
(b) Subject to the following provisions of this Clause 9:
(i) each Interest Period for a Revolving Loan will
be one, two, three or six months or any other
period agreed by the Obligors' Agent and the
Banks; and
(ii) each Interest Period for a Swingline Loan will
be a period not exceeding 7 Business Days.
(c) No more than five Revolving Loans with Interest Periods
of one month may be outstanding at any time.
9.3 Non-Business Days
If an Interest Period for a Revolving Loan 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).
9.4 Overrunning of a Maturity Date
(a) If an Interest Period in respect of a Loan borrowed under
Facility A would otherwise overrun the Facility A
Maturity Date in effect on the Drawdown Date of that
Loan, it shall be shortened so that it ends on that
Facility A Maturity Date. For the purposes of this
paragraph, any exercise of the Renewal Option on a
Drawdown Date shall be deemed to have taken place in
determining the Facility A Maturity Date in effect on
that Drawdown Date.
(b) If an Interest Period in respect of a Loan borrowed under
Facility B would otherwise overrun the Facility B
Maturity Date, it shall be shortened so that it ends on
the Facility B Maturity Date.
9.5 Notification
The Facility Agent shall notify each relevant Party of the duration
of each Interest Period promptly after ascertaining its duration.
10. INTEREST
10.1 Interest rate
(a) The rate of interest on each Revolving Loan for its
Interest Period is the rate per annum determined by the
Facility Agent to be the aggregate of the applicable:
(i) Margin;
(ii) LIBOR; and
(iii) Mandatory Cost.
(b) The rate of interest on each Swingline Loan for its
Interest Period is the rate per annum determined by the
Swingline Agent to be the Swingline Rate for each day
during its Interest Period.
10.2 Adjustment of Margin
(a) In this Clause 10.2:
(i) "Margin Reset Date" means any day upon which
there is a change in the credit rating assigned
to the Parent's long term unsecured and
unsubordinated debt by either or both of the
Rating Agencies, as notified to the Facility
Agent in accordance with Clause 19.3
(Information - miscellaneous); and
(ii) "Margin Period" means the period from (and
including) a Margin Reset Date to (but
excluding) the next Margin Reset Date.
(b) For the period from (and including) the date of this
Agreement to (but excluding) the first Margin Reset Date,
the Margin shall be 0.40 per cent per annum.
(c) On each Margin Reset Date, the Facility Agent shall
determine the Margin (the "relevant Margin") which will
apply to all Interest Periods commencing during the
Margin Period commencing on that Margin Reset Date.
(d) (i) If the Parent's long term unsecured and
unsubordinated debt has assigned to it a credit rating by
only one Rating Agency, the relevant Margin shall be the
percentage rate per annum shown alongside that credit
rating under the heading of the relevant Rating Agency in
the table below;
(ii) if the Parent's long term unsecured and
unsubordinated debt has assigned to it a credit
rating by both Rating Agencies and the level of
both credit ratings is the same, the relevant
Margin shall be the percentage rate per annum
shown alongside those credit ratings in the
table below;
(iii) if the Parent's long term unsecured and
unsubordinated debt has assigned to it a credit
rating by both Rating Agencies but the level of
both credit ratings is not the same, then:
(A) if the credit ratings are different by
only one level, the lower level will apply;
(B) if the credit ratings are different by
more than one level, then either:
(I) the average credit rating will
apply; or
(II) if the average credit rating
falls between two levels, the
higher level will apply,
and for the purposes of this clause, the "level" of a credit
rating shall be that shown as such alongside that credit rating in
the table below, with level 1 being the highest and level 3 being
the lowest.
Level Standard & Poor's rating Xxxxx'x rating Applicable Margin
(per cent per annum)
1 A-or higher A3 or higher 0.35
2 BBB+ Baa1 0.40
3 BBB or lower Baa2 or lower 0.45
(e) (i) On and from any date upon which neither
Rating Agency continues to assign a credit
rating to the Parent's long term unsecured and
unsubordinated debt, the Margin shall be 0.45
per cent per annum.
(ii) the Margin as determined in accordance with
sub-paragraph (e)(i) above shall continue until
such time as one or both Rating Agency assigns a
credit rating to the long term unsecured and
unsubordinated debt of the Parent, at which time
the remaining provisions of this Clause 10.2
shall apply.
10.3 Due dates
Except as otherwise provided in this Agreement, accrued interest
on each Loan is payable by the relevant Borrower on the last day
of the Interest Period for that Loan and also, if the Interest
Period is longer than six months, on the dates falling at six
monthly intervals after the first day of that Interest Period.
10.4 Default interest
(a) If an Obligor fails to pay any amount payable by it under
the Finance Documents, it shall forthwith on demand by
the Facility Agent pay interest on the overdue amount
from the due date up to the date of actual payment, as
well after as before judgment, at a rate (the "default
rate") determined by the Facility Agent to be one per
cent. per annum above the higher of:
(i) the rate on the overdue amount under Clause 10.1
(Interest rate) immediately before the due date
(if of principal); and
(ii) (A) if the overdue amount relates to a
Swingline Loan, the Swingline Rate; or
(B) in all other cases, the rate which
would have been payable if the overdue
amount had, during the period of
non-payment, constituted a Revolving
Loan in the currency of the overdue
amount for such successive Interest
Periods of such duration as the
Facility Agent may determine (each a
"Designated Interest Period").
(b) The default rate will be determined:
(i) if calculated by reference to the Swingline
Rate, on each day; or
(ii) if calculated by reference to LIBOR on each
Business Day or the first day of, or two
Business Days before the first day of, the
relevant Designated Interest Period, as
appropriate.
(c) If the default rate is to be determined by reference to
LIBOR and the Facility Agent determines that deposits in
the currency of the overdue amount are not at the
relevant time being made available by the Reference Banks
to leading banks in the London interbank market, the
default rate will be determined by reference to the cost
of funds to the Facility Agent from whatever sources it
may select.
(d) Default interest will be compounded monthly (if
calculated by reference to the Swingline Rate) or at the
end of each Designated Interest Period (if calculated by
reference to LIBOR).
10.5 Notification of rates of interest
The relevant Agent shall promptly notify the Obligors' Agent and
the relevant Banks of the determination of a rate of interest
under this Agreement.
11. OPTIONAL CURRENCIES
11.1 Selection
(a) The Obligors' Agent may select the currency of a
Revolving Loan in the relevant Request.
(b) The currency of each Loan must be US Dollars or an
Optional Currency.
(c) The Obligors' Agent may not choose a currency if as a
result the Revolving Loans would be denominated at any
one time in more than four currencies.
(d) The Facility Agent shall notify each Revolving Credit
Bank of the currency of each Revolving Loan, the
applicable Facility Agent's Spot Rate of Exchange and the
Original Dollar Amount promptly after they are
ascertained.
11.2 Revocation of currency
If before 9.30 a.m. on any Rate Fixing Day, the Facility Agent
receives notice from a Revolving Credit Bank that:-
(a) it is impracticable for it to fund its participation in a
Revolving Loan in the relevant Optional Currency during
that Interest Period in the ordinary course of business
in the London interbank market; and/or
(b) the use of the proposed Optional Currency might
contravene any law or regulation,
the Facility Agent shall give notice to the Obligors' Agent and to
the Revolving Credit Banks to that effect before 11.00 a.m. on
that day. In this event:-
(i) the Obligors' Agent and the Revolving Credit
Banks may agree that the drawdown will not be
made; or
(ii) in the absence of agreement:
(1) that Bank's participation in the Loan
(or, if more than one Bank is similarly
affected, those Banks' participations
in the Loan) shall be treated as a
separate Loan denominated in US Dollars
during the relevant Interest Period;
(2) in the definition of "LIBOR" (insofar
as it applies to that Loan) 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.
11.3 Amount of Optional Currencies
(a) If a Loan is to be drawn down in an Optional Currency,
the amount of each Bank's participation in that Loan will
be determined by converting into that Optional Currency
that Bank's participation in the Original Dollar Amount
of that Loan on the basis of the Facility Agent's Spot
Rate of Exchange two Business Days or, in the case of a
Loan denominated in an Optional Currency, three Business
Days before its Drawdown Date.
(b) The Facility Agent shall notify the Banks and the
Obligors' Agent of Optional Currency amounts (and the
applicable Facility Agent's Spot Rate of Exchange)
promptly after they are ascertained.
12. Payments
12.1 Place
All payments by an Obligor or a Bank under the Finance Documents
shall be made to the Facility Agent or (if the payment relates to
the Swingline Facility) the Swingline Agent to its account at such
office or bank in the principal financial centre of the country of
the relevant currency (or, in the case of Euros, in the principal
financial centre of a Participating Member State or London) as it
may notify to that Obligor or that Bank for this purpose.
Notwithstanding the above, all payments by the Parent to the
Arrangers under Clauses 22 (Fees) and 23 (Expenses) shall be made
direct to the Arrangers in the manner agreed by the Arrangers and
the Parent.
12.2 Funds
Payments under the Finance Documents to an Agent shall be made for
value on the due date at such times and in such funds as the
relevant Agent may specify as being customary at the time for the
settlement of transactions in the relevant currency in the place
for payment.
12.3 Distribution
(a) Each payment received by an Agent under the Finance Documents for
another Party shall, subject to paragraphs (b) and (c) below, be
made available by that Agent to that Party by payment (on the date
and in the currency and funds of receipt) to its account with such
office or bank in the principal financial centre of the country of
the relevant currency (or, in the case of Euros, in the principal
financial centre of a Participating Member State or London) as it
may notify to that Agent for this purpose by not less than five
Business Days' prior notice.
(b) Each Agent may apply any amount received by it for an Obligor in
or towards payment (on the date and in the currency and funds of
receipt) of any amount due from an Obligor under the Finance
Documents or in or towards the purchase of any amount of any
currency to be so applied.
(c) Where a sum is to be paid to an Agent under the Finance Documents
for another Party, that Agent is not obliged to pay that sum to
that Party until it has established that it has actually received
that sum. Each Agent may, however, assume that the sum has been
paid to it in accordance with this Agreement, and, in reliance on
that assumption, make available to that Party a corresponding
amount. If the sum has not been made available but an Agent has
paid a corresponding amount to another Party, that Party shall
forthwith on demand by that Agent refund the corresponding amount
together with interest on that amount from the date of payment to
the date of receipt, calculated at a rate determined by the
relevant Agent to reflect its cost of funds.
12.4 Currency
(a) A repayment or prepayment of a Loan or any part of a Loan
is payable in the currency in which the Loan is
denominated on its due date.
(b) Interest is payable in the currency in which the relevant
amount in respect of which it is payable is denominated.
(c) Amounts payable in respect of costs, expenses and taxes
and the like are payable in the currency in which they
are incurred.
(d) Any other amount payable under the Finance Documents is,
except as otherwise provided in the Finance Documents,
payable in US Dollars.
12.5 Set-off and counterclaim
All payments made by an Obligor 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 this Agreement interest is payable on
that principal at the rate payable on the original due
date.
12.7 Partial payments
(a) If the Facility Agent receives a payment insufficient to
discharge all the amounts then due and payable by the
Borrowers under the Finance Documents, the Facility Agent
shall apply that payment towards the obligations of the
Borrowers under the Finance Documents in the following order:-
(i) first, in or towards payment pro rata of any
unpaid, fees, costs and expenses of the Agents
under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any
accrued interest due but unpaid under this
Agreement;
(iii) thirdly, in or towards payment pro rata of any
principal due but unpaid under this Agreement;
and
(iv) fourthly, in or towards payment pro rata of any
other sum due but unpaid under the Finance
Documents.
(b) If the Swingline Agent receives a payment insufficient to
discharge all the amounts then due and payable by the
Borrowers to the Swingline Banks under this Agreement,
the Swingline Agent shall apply that payment towards the
obligations of the Borrowers under the Finance Documents
in respect of the Swingline Facility in the following
order:-
(i) first, in or towards payment pro rata of any
unpaid fees, costs and expenses of the Swingline
Agent under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any
accrued interest on a Swingline Loan due but
unpaid under this Agreement; and
(iii) thirdly, in or towards payment pro rata of the
principal of any Swingline Loan due but unpaid
under this Agreement.
(c) The relevant Agent shall, if so directed by all the Banks
in the case of paragraph (a) above or all the Swingline
Banks in the case of paragraph (b) above, vary the order
set out in sub-paragraphs (a)(ii) to (iv) above or
(b)(ii) and (iii) above, as appropriate.
(d) Paragraphs (a), (b) and (c) above will override any
appropriation made by any Borrower.
13. TAXES
13.1 Gross-up
All payments by an Obligor under the Finance Documents shall be
made without any deduction and free and clear of and without any
deduction for or on account of any taxes, except to the extent
that the Obligor is required by law to make payment subject to any
taxes. If any tax or amounts in respect of tax must be deducted,
or any other deductions must be made, from any amounts payable or
paid by an Obligor, or paid or payable by an Agent to a Bank,
under the Finance Documents, the Obligor shall pay such additional
amounts as may be necessary to ensure that the relevant Bank
receives a net amount equal to the full amount which it would have
received had payment not been made subject to tax or any other
deduction.
13.2 Tax receipts
All taxes required by law to be deducted or withheld by an Obligor
from any amounts paid or payable under the Finance Documents shall
be paid by the relevant Obligor when due and the Obligor shall,
within 15 days of the payment being made, deliver to the relevant
Agent evidence satisfactory to that Agent (including all relevant
tax receipts) that the payment has been duly remitted to the
appropriate authority.
13.3 Tax indemnity
(a) Without prejudice to the provisions of Clause 13.1
(Gross-up), if any Bank, the Facility Agent or the
Swingline Agent on its behalf is required to make any
payment on account of a Nonexcluded Tax on or in relation
to any amounts paid or payable from any Obligor under the
Finance Documents (including, without limitation, any sum
received or receivable under this Clause 13) or any such
liability in respect of any such payment is asserted,
imposed, levied or assessed against such Bank, Facility
Agent or Swingline Agent on its behalf, such Obligor
shall, upon demand of the Facility Agent, promptly
indemnify such Bank, the Facility Agent or Swingline
Agent against such payment or liability, together with
any interest, penalties and expenses payable or incurred
in connection therewith, except and to the extent that:
(i) such liability or interest, penalties or
expenses arises as a result of failure by such
Bank, Facility Agent or Swingline Agent to make
any payment by the latest date legally
permitted; or
(ii) such liability or interest, penalties or
expenses arises out of a failure to comply with
the relevant filing, certification or other
reporting requirements stipulated by the
relevant tax authority in the jurisdiction of
such Bank, Facility Agent or Swingline Agent in
connection with such requirement to make any
such payment on account of tax.
(b) For the purposes of paragraph (a) above, "Nonexcluded
Tax" shall mean all taxes (including withholding taxes
collected at source of payment) other than:
(i) taxes imposed on net income;
(ii) taxes imposed by the jurisdiction in which the
Bank, Facility Agent or Swingline Agent is
organised by virtue of such party being
organised in such jurisdiction; and
(iii) taxes imposed by the jurisdiction in which the
Bank, Facility Agent or Swingline Agent is
located or doing business by virtue of such
party being so located or doing business.
13.4 Indemnity claims
A party intending to make a claim pursuant to Clause 13.3 (Tax
indemnity) shall, promptly upon becoming aware of the
circumstances giving rise to such claim, notify the Facility Agent
thereof, whereupon the Facility Agent shall notify the relevant
Obligor thereof.
13.5 U.S. Taxation - delivery of forms and statements
(a) Within 31 days after the date of this Agreement, each Bank shall
submit to the Obligors' Agent duly completed and signed copies of
either:
(i) Form W-8BEN (entitling the relevant Bank to a
complete exemption from withholding on all
amounts to be received by it, including fees,
under the Finance Documents); or
(ii) Form W-8ECI (relating to all amounts to be
received by the relevant Bank, including fees,
under the Finance Documents),
of the United States Internal Revenue Service.
(b) Any New Bank (as defined in Clause 28.2 (Transfers by the
Bank)) shall comply with the provisions of paragraph (a)
above within 31 days, or earlier if requested, of it
becoming a New Bank under this Agreement.
(c) Other than as set out in paragraphs (a) and (b) above,
each Bank (and any New Bank) shall submit to the
Obligors' Agent such additional duly completed and signed
copies of the applicable forms (or such successor forms
as shall be adopted from time to time by the relevant
United States taxing authorities) as may be:
(i) reasonably requested by an Obligor from that
Bank (or New Bank); and/or
(ii) required under then current United States law or
regulations to determine the United States
withholding taxes on payment in respect of all
amounts to be received by that Bank (or New
Bank), including fees, under the Finance
Documents.
(d) Upon the request of an Obligor, any New Bank that is a
United States person (as such term is defined in Section
7701(a)(30) of the Code) shall submit to the Obligors'
Agent duly completed Internal Revenue Service Form W-9,
establishing that it is such a United States person.
(e) If any Bank (or any New Bank) determines that it is
unable to submit any form or certificate that it is
obliged to submit pursuant to this Clause 13.5, or that
any information or declaration contained in any such form
or certificate previously submitted has either ceased or
will cease to be true, accurate and complete in all
respects, it shall promptly notify the Obligors' Agent
and the Facility Agent of such fact.
14. MARKET DISRUPTION
14.1 Absence of quotations
If LIBOR is to be determined by reference to the Reference Banks
but a Reference Bank does not supply an offered rate by 11.30 a.m.
on a Rate Fixing Day, the applicable LIBOR 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:-
(a) (i) LIBOR is to be determined by reference to
the Reference Banks but no, or only one,
Reference Bank supplies a rate, by 11.30 a.m. on
a Rate Fixing Day; or
(ii) the Facility Agent otherwise determines that
adequate and fair means do not exist for
ascertaining LIBOR; or
(b) the Facility Agent receives notification from Revolving
Credit Banks whose participations in a Revolving Loan
exceed 30 per cent. of that Loan that, in their opinion:-
(i) matching deposits may not be available to them
in the London interbank market in the ordinary
course of business to fund their participations
in that Loan for the relevant Interest Period;
or
(ii) the cost to them of obtaining matching deposits
in the London interbank market would be in
excess of LIBOR for the relevant Interest
Period,
the Facility Agent shall promptly notify the Obligors' Agent and
the Revolving Credit Banks of the fact and that this Clause 14 is
in operation.
14.3 Substitute basis
After any notification under Clause 14.2 (Market disruption), the
relevant Loan shall not be made. However, within 5 Business Days
of receipt of the notification, the Obligors' Agent and the
Facility Agent shall enter into negotiations for a period of not
more than 30 days with a view to agreeing a substitute basis for
determining the rate of interest and/or funding applicable to the
Loan and (to the extent required) any future Loans to be
denominated in the currency of the affected Loan. Any substitute
basis so agreed above shall be, with the prior consent of all the
Banks, binding on all the Parties.
15. INCREASED COSTS
15.1 Increased costs
(a) Subject to Clause 15.2 (Exceptions), the Parent shall
forthwith on demand by a Finance Party pay to that
Finance Party 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 of, any law or
regulation; or
(ii) compliance with any regulation made after the
date of this Agreement,
(including any law or regulation relating to taxation, change in
currency of a country, 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 a Finance Party
or any of its Affiliates as a result of it
having entered into, or performing, maintaining
or funding its obligations under, this
Agreement; or
(ii) that portion of an additional cost incurred by a
Finance Party or any of its Affiliates in
making, funding or maintaining all or any
advances comprised in a class of advances formed
by or including that Finance Party's
participations in the Loans made or to be made
under this Agreement as is attributable to a
Finance Party making, funding or maintaining
those participations; or
(iii) a reduction in any amount payable to a Finance
Party or any of its Affiliates or the effective
return to a Finance Party or any of its
Affiliates under this Agreement or (to the
extent that it is attributable to this
Agreement) on its capital; or
(iv) the amount of any payment made by a Finance
Party or any of its Affiliates, or the amount of
any interest or other return foregone by a
Finance Party or any of its Affiliates,
calculated by reference to any amount received
or receivable by that Finance Party or any of
its Affiliates from any other Party under this
Agreement.
(c) As soon as practicable after becoming aware that the
Parent is liable, or will become liable, to pay any
amount in accordance with the provisions of paragraph (a)
above, the Facility Agent will notify the Parent
accordingly.
15.2 Exceptions
Clause 15.1 (Increased costs) does not apply to any increased
cost:
(a) compensated for by the payment of the Mandatory Cost;
(b) compensated for by the operation of Clause 13 (Taxes); or
(c) attributed to any change in the rate of, or change in the
basis of calculating, tax on the overall net income of a
Bank (or the overall net income of a division or branch
of that Bank) imposed in the jurisdiction in which its
principal office for the time being is situate.
16. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for a Bank to
give effect to any of its obligations as contemplated by this
Agreement or to fund or maintain its participation in any Loan,
then:
(a) that Bank may notify the Obligors' Agent through the
Facility Agent accordingly; and
(b) (i) each Borrower shall forthwith prepay the
participations of that Bank and its Affiliated
Bank (if any) in all the Loans made to it; and
(ii) the Commitments of that Bank and its Affiliated
Bank (if any) shall forthwith be cancelled.
17. GUARANTEE
17.1 Guarantee
The Parent irrevocably and unconditionally:
(a) as principal obligor guarantees to each Finance Party
prompt performance by each Borrower of all its
obligations under the Finance Documents;
(b) undertakes with each Finance Party that whenever a
Borrower does not pay any amount when due under or in
connection with any Finance Document, the Parent shall
forthwith on demand by an Agent pay that amount as if the
Parent instead of the Borrower were expressed to be the
principal obligor; and
(c) indemnifies each Finance Party on demand against any loss
or liability suffered by it if any obligation guaranteed
by the Parent is or becomes unenforceable, invalid or
illegal.
17.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Borrowers under the
Finance Documents, regardless of any intermediate payment or
discharge in whole or in part. This guarantee is a guarantee of
payment and not of collectibility.
17.3 Reinstatement
(a) Where any discharge (whether in respect of the
obligations of any Obligor or any security for those
obligations or otherwise) is made in whole or in part or
any arrangement is made on the faith of any payment,
security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without
limitation, the liability of the Parent under this Clause
17 shall continue as if the discharge or arrangement had
not occurred.
(b) Each Finance Party may concede or compromise any claim
that any payment, security or other disposition is liable
to avoidance or restoration.
17.4 Waiver of defences
The obligations of the Parent under this Clause 17 will not be
affected by an act, omission, matter or thing which, but for this
provision, would reduce, release or prejudice any of its
obligations under this Clause 17 or prejudice or diminish those
obligations in whole or in part, including (whether or not known
to it or any Finance Party):
(a) any time or waiver granted to, or composition with, any
Borrower or other person;
(b) the release of any Obligor or any other person under the
terms of any composition or arrangement with any
creditors of any member of the Group;
(c) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of,
any Borrower or other person or any non-presentation or
non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the
full value of any security;
(d) any incapacity or lack of powers, authority or legal
personality of or dissolution or change in the members or
status of any Borrower or any other person;
(e) any variation (however fundamental) or replacement of a
Finance Document or any other document or security so
that references to that Finance Document in this Clause
17 shall include each variation or replacement;
(f) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or
any other document or security, to the intent that the
Parent's obligations under this Clause 17 shall remain in
full force and its guarantee be construed accordingly, as
if there were no unenforceability, illegality or
invalidity; or
(g) any postponement, discharge, reduction, non-provability
or other similar circumstance affecting any obligation of
any Borrower under a Finance Document resulting from any
insolvency, liquidation or dissolution proceedings or
from any law, regulation or order so that each such
obligation shall for the purposes of the Parent's
obligations under this Clause 17 be construed as if there
were no such circumstance.
17.5 Immediate recourse
The Parent waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed
against or enforce any other rights or security or claim payment
from any person before claiming from that Parent under this Clause 17.
17.6 Appropriations
Until all amounts which may be or become payable by the Obligors
under or in connection with the Finance Documents have been
irrevocably paid in full, each Finance Party (or any trustee or
agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys,
security or rights held or received by that Finance Party
(or any trustee or agent on its behalf) in respect of
those amounts, or apply and enforce the same in such a
manner and order as it sees fit (whether against those
amounts or otherwise) and the Parent shall not be
entitled to the benefit of the same; and
(b) hold in a suspense account any moneys received from the
guarantor or on account of the guarantor's liability
under this Clause 17, without liability to pay interest
on those moneys.
17.7 Non-competition
Until all amounts which may be or become payable by the Borrowers
under or in connection with the Finance Documents have been
irrevocably paid in full, the Parent shall not, after a claim has
been made or by virtue of any payment or performance by it under
this Clause 17:
(a) be subrogated to any rights, security or moneys held,
received or receivable by any Finance Party (or any
trustee or agent on its behalf) or be entitled to any
right of contribution or indemnity in respect of any
payment made or moneys received on account of the
Parent's liability under this Clause 17;
(b) claim, rank, prove or vote as a creditor of any Borrower
or its estate in competition with any Finance Party (or
any trustee or agent on its behalf); or
(c) receive, claim or have the benefit of any payment,
distribution or security from or on account of any
Borrower, or exercise any right of set-off as against any
Borrower,
unless the Facility Agent otherwise directs. The Parent shall hold
in trust for and forthwith pay or transfer to the Facility Agent
for the Finance Parties any payment or distribution or benefit of
security received by it contrary to this Clause 17.7 or as
directed by the Facility Agent.
17.8 Additional security
This guarantee is in addition to and is not in any way prejudiced
by any other security now or subsequently held by any Finance
Party.
17.9 Consideration and enforceability
(a) The Parent represents warrants and agrees that:
(i) it will receive valuable direct and indirect
benefits as a result of the transactions
financed by the Loans; and
(ii) these benefits will constitute "reasonably
equivalent value" and "fair consideration" as
those terms are used in the fraudulent transfer
laws.
(b) The Parent acknowledges and agrees that the Finance
Parties have acted in good faith in connection with the
guarantee granted under this Clause 17, and the
transactions contemplated by this Agreement.
(c) This Clause 17 shall be enforceable against the Parent to
the maximum extent permitted by the fraudulent transfer
laws.
(d) The Parent's liability under this Clause 17 shall be
limited so that no obligation of, or transfer by, the
Parent under this Clause 17 is subject to avoidance and
turnover under the fraudulent transfer laws.
(e) For the purposes of this Clause, "fraudulent transfer
laws" means applicable United States bankruptcy and state
fraudulent transfer and conveyance statutes and the
related case law.
18. REPRESENTATIONS AND WARRANTIES
18.1 Representations and warranties
Each Obligor makes the representations and warranties set out in
this Clause 18 to each Finance Party.
18.2 Status
(a) It is a limited liability company, duly incorporated and
validly existing under the laws of the jurisdiction of
its incorporation; and
(b) each member of the Group has the power to own its assets
and carry on its business as it is being conducted.
18.3 Powers and authority
It has the power to enter into and perform, and has taken all
necessary action to authorize 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.
18.4 Legal validity
Each Finance Document to which it is or will be a party
constitutes, or when executed in accordance with its terms will
constitute, its legal, valid and binding obligation enforceable in
accordance with its terms.
18.5 Non-conflict
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents to which it is a party 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
Obligor; or
(c) conflict with any document which is binding upon any
Obligor or any asset of any Obligor.
18.6 No default
(a) No Default is outstanding or might result from the making
of any Loan; and
(b) no other event is outstanding which constitutes (or with
the giving of notice, lapse of time, determination of
materiality or the fulfilment of any other applicable
condition or any combination of the foregoing, might
constitute) a default under any document which is binding
on any member of the Group or any asset of any member of
the Group to an extent or in a manner which might have a
material adverse effect.
18.7 Authorizations
(a) All authorizations which would reasonably be considered
to be required in connection with the entry into,
performance, validity and enforceability of, and the
transactions contemplated by, the Finance Documents to
which it is a party have been obtained or effected (as
appropriate) and are in full force and effect.
(b) All acts, conditions and things required to be done,
fulfilled and performed under the laws of the United
States of America in order to make the Finance Documents
admissible in evidence in the United States of America
have been done, fulfilled and performed.
18.8 Accounts
(a) In the case of the Parent, the audited consolidated
accounts of the Group most recently delivered to the
Facility Agent (which, at the date of this Agreement, are
the Original Group Accounts):
(i) have been prepared in accordance with accounting
principles and practices generally accepted in
the U.S.A. consistently applied; and
(ii) fairly represent the consolidated financial
condition of the Group as at the date to which
they were drawn up,
and there has been no material adverse change in the consolidated
financial condition of the Group since the date to which those
accounts were drawn up.
(b) In the case of each Borrower other than the Parent, its
audited accounts most recently delivered to the Facility
Agent:
(i) have been prepared in accordance with accounting
principles and practices generally accepted in
the jurisdiction of its incorporation
consistently applied; and
(ii) fairly represent its financial condition as at
the date to which they were drawn up,
and there has been no material adverse change in the financial
condition of that Borrower since the date to which those accounts
were drawn up.
18.9 Litigation
(a) Other than as specifically disclosed to the Facility
Agent prior to the date of this Agreement, no litigation,
arbitration or administrative proceedings are current or,
to its knowledge, pending or threatened, which might, if
adversely determined, have a material adverse effect.
(b) In respect of any litigation, arbitration or
administrative proceedings disclosed to the Facility
Agent prior to the date of this Agreement, there has been
no development in the conduct of those proceedings which
might have a material adverse effect.
18.10 Information Memorandum
(a) The information contained in the Information Memorandum
was true in all respects as at its date;
(b) the Information Memorandum did not omit as at that date
any information which, if disclosed, might adversely
affect the decision of a person considering whether to
enter into this Agreement; and
(c) as at the date of this Agreement, nothing has occurred
since the date of the Information Memorandum which
renders the information contained in it untrue or
misleading in any respect and which, if disclosed, might
adversely affect the decision of a person considering
whether to enter into this Agreement.
18.11 Taxes on payments
It will not be required to make any deduction or withholding from
any payment it may make to any Finance Party under the Finance
Documents.
18.12 No immunity
In any proceedings taken in the United States of America, or any
other relevant state or jurisdiction, in relation to the Finance
Documents, it will not be entitled to claim for itself or any of
its assets immunity from suit, execution, attachment or other
legal process.
18.13 Pari passu ranking
Its obligations under the Finance Documents will rank at least
pari passu with the claims of all its other unsecured creditors
save those whose claims are preferred solely by any bankruptcy,
insolvency, liquidation or other similar laws of general
application.
18.14 Winding up: re-organisation, etc.
It has not taken any corporate action nor have any other steps
been taken or legal proceedings been started or (to the best of
its knowledge and belief) threatened against it for its
winding-up, dissolution, administration or re-organisation or for
the appointment of a receiver, administrator, administrative
receiver, trustee or similar officer of it or of any or all of its
assets or revenues.
18.15 Environmental Law
Other than as specifically disclosed to the Facility Agent prior
to the date of this Agreement, each Obligor is and has been in
compliance with all applicable Environmental Laws and
Environmental Licences in all material respects and, so far as it
is aware, there are no circumstances that may at any time prevent
or interfere with continued compliance by it with all applicable
Environmental Laws and Environmental Licences in all material
respects. Other than as disclosed to the Facility Agent prior to
the date of this Agreement, no Environmental Claim is pending or,
to the best of its knowledge, threatened against it or any of its
properties.
18.16 ERISA
Each Plan of the Obligors and their respective ERISA Affiliates
complies in all material respects with all applicable requirements
of law and regulation. No Reportable Event has occurred with
respect to any Plan which might have a material adverse effect,
and no steps have been taken to terminate any Plan. No Obligor or
any Subsidiary or ERISA Affiliate of an Obligor has had a complete
or partial withdrawal from any Multiemployer Plan or initiated any
steps to do so.
18.17 Investment Company Act
No Obligor is an "investment company" or a company "controlled" by
an "investment company", within the meaning of the United States
Investment Company Act of 1940, as amended.
18.18 Public Utility Holding Company and Federal Power Act
No Obligor is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within
the meaning of, or otherwise subject to regulation under, the
United States Public Utility Holding Company Act of 1935, as
amended. No Obligor is a "public utility" within the meaning of,
or otherwise subject to regulation under, the United States
Federal Power Act.
18.19 Other regulation
No Obligor is subject to regulation under any United States
Federal or State statute or regulation that limits its ability to
incur or guarantee indebtedness.
18.20 Margin Stock
(a) The proceeds of the Loans have been and will be used only
for the purposes described in Clause 3 (Purpose).
(b) No Obligor is engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock
(within the meaning of Regulations U and X of the Board
of Governors of the United States Federal Reserve System).
(c) None of the transactions contemplated in this Agreement
(including, without limitation, the borrowings hereunder
and the use of the proceeds thereof) will violate or
result in a violation of Section 7 of the Securities
Exchange Act of 1934 (or any regulations issued pursuant
thereto, including, without limitation, Regulations T, U
and X).
18.21 Solvency
(a) The Parent has not incurred and does not intend to incur
or believe it will incur debts beyond its ability to pay
as they mature.
(b) The Parent has made no transfer or incurred any
obligation under this Agreement with the intent to
hinder, delay or defraud any of its present or future
creditors.
(c) For purposes of this Clause:
(i) "debt" means any liability on a claim;
(ii) "claim" means (A) any right to payment, whether
or not that right is reduced to judgment,
liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal,
equitable, secured or unsecured, or (B) any
right to an equitable remedy for breach of
performance if that breach gives rise to
payment, whether or not the right to an
equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed,
undisputed, secured or unsecured; and
(iii) terms used in this Clause shall be construed in
accordance with the applicable United States
bankruptcy and New York fraudulent conveyance
statutes and the related case law.
18.22 Stamp duties
No stamp or registration duty or similar taxes or charges are
payable in respect of any Finance Document.
18.23 No Security Interests
Other than as permitted by the provisions of Clause 19.8 (Negative
pledge), no Security Interest exists over all or any of its
present or future revenues or assets.
18.24 Times for making representations and warranties
The representations and warranties set out in this Clause 18:
(a) are made on the date of this Agreement; and
(b) (with the exception of Clause 18.10 (Information
Memorandum)) are deemed to be repeated by each Obligor on
the date of each Request and the first day of each
Interest Period with reference to the facts and
circumstances then existing.
19. UNDERTAKINGS
19.1 Duration
The undertakings in this Clause 19 remain in force from the date
of this Agreement for so long as any amount is or may be
outstanding under this Agreement or any Commitment is in force.
19.2 Financial information
The Parent shall supply to the Facility Agent in sufficient copies
for all the Banks:
(a) as soon as the same are available (and in any event
within 180 days of the end of each of its financial
years):
(i) its audited consolidated accounts for that
financial year; and
(ii) the audited accounts of each Borrower for that
financial year;
(b) as soon as the same are available (and in any event
within 90 days of the end of the first half-year of each
of its financial years):
(i) its unaudited consolidated accounts for that
half-year; and
(ii) the unaudited accounts of Autoliv ASP, Inc. for
that half-year.
(c) as soon as the same are available (and in any event
within 60 days of the end of each financial quarter):
(i) its unaudited consolidated accounts for that
financial quarter; and
(ii) the unaudited accounts of Autoliv ASP, Inc. for
that financial quarter.
19.3 Information - miscellaneous
Each Obligor shall supply to the Facility Agent:
(a) all documents despatched by it to its shareholders (or
any class of them) or its creditors (or any class of
them) at the same time as they are despatched;
(b) (unless already provided to the Facility Agent) promptly
upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are
current, threatened or pending, and which might, if
adversely determined, have a material adverse effect on
the financial condition of any Material Subsidiary or on
the Group as a whole or on the ability of any Obligor to
perform its obligations under this Agreement;
(c) promptly, such further information in the possession or
control of any member of the Group regarding its
financial condition and operations as any Finance Party
may reasonably request; and
(d) immediately upon its occurrence, details of any change in
the credit rating assigned to the Parent's long term
unsecured and unsubordinated debt by either or both of
the Rating Agencies.
19.4 Notification of Default
Each Obligor shall notify the Facility Agent of any Default (and
the steps, if any, being taken to remedy it) promptly upon its
occurrence.
19.5 Compliance certificates
The Parent shall supply to the Facility Agent:
(a) together with the accounts specified in Clause 19.2(a)(i)
(Financial information); and
(b) promptly at any other time, if the Facility Agent so requests,
a certificate signed by two of its senior officers on its behalf
certifying that no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps, if any, being
taken to remedy it.
19.6 Authorizations
Each Obligor shall promptly:
(a) obtain, maintain and comply with the terms of; and
(b) supply certified copies to the Facility Agent of,
any authorization required under any law or regulation to enable
it to perform its obligations under, or for the validity or
enforceability of, any Finance Document.
19.7 Pari passu ranking
Each Obligor shall procure that its obligations under the Finance
Documents do and will rank at least pari passu with all its other
present and future unsecured obligations, except for obligations
mandatorily preferred by law applying to companies generally.
19.8 Negative pledge
(a) No Obligor shall, and the Parent shall procure that no
other member of the Group will, create or permit to
subsist any Security Interest on any of its assets (other
than Unrestricted Margin Stock).
(b) Paragraph (a) does not apply to:
(i) any lien arising by operation of law in the
ordinary course of business and securing amounts
not more than 30 days overdue;
(ii) any Security Interest disclosed in writing to
the Facility Agent prior to the execution of
this Agreement which secures Financial
Indebtedness outstanding at the date of this
Agreement;
(iii) any Security Interest arising in relation to
set-off arrangements between cash balances and
bank borrowings with the same bank which arise
in the ordinary course of business;
(iv) any Security Interest existing at the time of
acquisition on or over any asset acquired by a
member of the Group after the date of this
Agreement which was not created in contemplation
of or in connection with that acquisition,
provided that the principal amount secured by
such Security Interest and outstanding at the
time of acquisition is not subsequently
increased and the Security Interest is
discharged within 3 months;
(v) in the case of any company which becomes a
member of the Group after the date of this
Agreement, any Security Interest existing on or
over its assets when it becomes a member of the
Group which was not created in contemplation of
or in connection with it becoming a member of
the Group, provided that:
(A) the principal amount secured by such
Security Interest and outstanding when
the relevant company became a member of
the Group is not increased;
(B) no amount is secured by any such
Security Interest which is not secured
by the relevant Security Interest when
the relevant company becomes a member
of the Group; and
(C) the Security Interest is discharged
within 3 months;
(vi) any Security Interest replacing any of the
Security Interests permitted by paragraphs (iv)
and (v), provided that the amount secured by any
replacement Security Interest shall not exceed
the amount outstanding and secured by the
original Security Interest at the time of the
creation of the replacement Security Interest,
the value of the replacement asset over which
the replacement Security Interest is created
does not exceed the value of the asset over
which the original Security Interest was held,
the replacement Security Interest secures the
same obligations as the original Security
Interest and such replacement Security Interest
is discharged within the original three-month
period specified in paragraphs (iv) and (v); and
(vii) any other Security Interest provided that at the
time that the Security Interest is created, the
aggregate amount of indebtedness secured by all
Security Interests permitted under this Clause
19.8(b)(vii) (other than those permitted by
sub-paragraphs 19.8(b)(i) - (vi) above), when
taken together with the aggregate value of
financing raised or the amount involved in the
financing of an asset in transactions described
in Clause 19.9 (Transactions similar to
security), does not exceed 5 per cent. of the
book value of the consolidated total assets of
the Group, as determined by reference to the
most recent consolidated accounts of the Group
delivered pursuant to Clause 19.2 (Financial
Information).
19.9 Transactions similar to security
(a) No Obligor shall, and the Parent shall procure that no
other Material Subsidiary will:
(i) sell, transfer or otherwise dispose of a
material part of its assets (either in one
transaction or a series of transactions, whether
related or not) 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,
in each case, in circumstances where the transaction is entered
into primarily as a method of raising finance or of financing the
acquisition of an asset, save where the aggregate of (a) financing
raised or the amount involved in the financing of the acquisition
of an asset in transactions described in this Clause 19.9
(Transactions similar to security) and (b) the Security Interests
permitted by Clause 19.8(vii) (Negative pledge), does not exceed 5
per cent. of the book value of the consolidated total assets of
the Group, as determined by reference to the most recent
consolidated accounts of the Group delivered pursuant to Clause
19.2 (Financial Information).
(b) Paragraph (a) above does not apply to Unrestricted Margin
Stock.
19.10 Disposals
(a) No Obligor shall, and the Parent shall procure that no
other Material Subsidiary will, either in a single
transaction or in a series of transactions, whether
related or not and whether voluntarily or involuntarily,
sell, transfer, grant or lease or otherwise dispose of
all or any substantial part of its assets.
(b) Paragraph (a) does not apply to:
(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; or
(iii) disposals made on an arms length basis for full
market consideration; or
(iv) disposals made with the prior written consent of
the Majority Banks; or
(v) any disposal of assets from:
(A) an Obligor to another Obligor; or
(B) a Material Subsidiary (other than an
Obligor) to an Obligor or another
Material Subsidiary; or
(C) any other Subsidiary of the Parent to
any member of the Group,
provided that all such disposals in this
paragraph (v) are made for full market
consideration,
19.11 Change of business
The Parent shall procure that no substantial change is made to the
general nature or scope of the business of the Parent or of the
Group from that carried on at the date of this Agreement.
19.12 Mergers
The Parent shall not finalise or effectuate any amalgamation,
demerger, merger or reconstruction.
19.13 Insurances
Each Obligor shall, and the Parent will procure that the Group
taken as a whole will, effect and maintain such insurance over and
in respect of its property, assets and business with reputable
underwriters or insurance companies and in such a manner and to
such extent as is reasonable and customary for a business
enterprise engaged in the same or similar businesses and in the
same or similar localities.
19.14 Third party guarantees
No Obligor shall, and will ensure that no other member of the
Group shall, without the prior consent of the Majority Banks,
grant any guarantee, bond, indemnity, counter-indemnity or similar
instrument in respect of any material obligation of a person other
than a member of the Group, save for:
(a) on the terms of the Finance Documents; or
(b) any guarantee related to the purchase or supply of goods
and/or services by such Obligor or a member of the Group
or a consortium or a group of companies of which such
Obligor or a member of the Group is a party, which
guarantee is given in the ordinary course of business.
19.15 Environmental Matters
Each Obligor that directly or indirectly owns, leases, occupies or
uses real property in the United States shall, in all material
respects, comply with:
(a) all applicable Environmental Law; and
(b) the terms and conditions of all Environmental Licenses
applicable to it,
and for this purpose will implement procedures to monitor
compliance with and to prevent any liability under Environmental
Law.
19.16 Notice requirements
Each Obligor will give the Facility Agent prompt notice of the
occurrence of any of the following events:
(a) non-compliance with any Environmental Law or
Environmental License of which it is aware in any
material respect;
(b) any Environmental Claim or any other claim, notice or
other communication served on it in respect of any
alleged breach of any Environmental Law or Environmental
License which might have a material adverse effect;
(c) any actual or suspected Environmental Contamination which
might have a material adverse effect;
(d) any Reportable Event;
(e) termination of any Plan maintained or contributed by the
Obligor or any ERISA Affiliate or any action that might
result in termination; or
(f) complete or partial withdrawal from any Multiemployer
Plan by the Obligor or any ERISA Affiliate or any action
that might result in complete or partial withdrawal.
In each notice delivered under this Clause, the relevant Obligor
will include reasonable details concerning the occurrence that is
the subject of the notice as well as the Obligor's proposed course
of action, if any. Delivery of a notice under this Clause will not
affect the Obligor's obligations to comply with any other
provision of this Agreement.
19.17 Investment Company Act
No Obligor will, either by act or omission, become, or permit any
other Obligor to become, an "investment company" or a company
"controlled" by an "investment company", within the meaning of the
United States Investment Company Act of 1940, as amended.
19.18 Public utility status
No Obligor will, either by act or omission, become or permit any
other Obligor or, as a result of its obligations under this
Agreement, the Bank to become subject to regulation under the
United States Public Utility Holding Company Act of 1935, as
amended, or the United States Federal Power Act.
19.19 ERISA
No Obligor will take any action or omit to take any action or
permit any Subsidiary or ERISA Affiliate to take any action or
omit to take any action with respect to any Plan that might result
in the imposition of a lien or other Security Interest on any
property of the Obligor or any Subsidiary or otherwise have a
material adverse effect.
19.20 Margin Stock
The Obligors will use the proceeds of the Loans only for the
purpose described in Clause 3 (Purpose). No Obligor will engage in
the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulations U and X
issued by the Board of Governors of the United States Federal
Reserve System). The Obligors shall procure that none of the
proceeds of the Loans will be used for any purpose that will
violate or result in the violation of Section 7 of the Securities
Exchange Act of 1934 (or any regulations issued pursuant thereto,
including, without limitation, Regulations T, U and X). If
requested by the Facility Agent, the Obligors' Agent will furnish
to the Facility Agent in connection with any Loan hereunder a
statement in conformity with the requirements of Federal Reserve
Form U-1 referred to in Regulation U.
19.21 Solvency
The Parent will, at all times, maintain sufficient capital to
conduct its current and proposed business and operations, maintain
its ability to pay its debts as they become due, and continue to
own property having a value - both at fair valuation and at
present fair saleable value - greater than the total amount of the
probable liability of the Parent on its debts and obligations
(including this Agreement).
19.22 Financial covenants
(A) In this Clause 19.22:
"Balance Sheet"
means, at any time, the balance sheet forming part of the latest
consolidated accounts of the Group (whether audited or unaudited)
delivered to the Facility Agent under Clause 19.2 (Financial
information) at that time;
"Balance Sheet Date"
means the date as at which a Balance Sheet is drawn up;
"Borrowings"
means:
(i) the outstanding principal amount of any moneys
borrowed;
(ii) the outstanding principal amount of any
debenture, bond, note, loan stock or other
security;
(iii) the outstanding principal amount of any
acceptance under any acceptance credit opened by
a bank or other financial institution and not
attributable to goods or documents of title to
goods in the ordinary course of documentary
credit transactions;
(iv) the principal amount, outstanding for more than
90 days on its original terms and created in
connection with the payment of the acquisition
price of any asset 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 an
asset;
(v) any fixed or minimum premium payable on the
repayment or redemption of any instrument
referred to in sub-paragraph (ii) above; and
(vi) the outstanding principal amount of any
indebtedness of any person of a type referred to
in sub-paragraphs (i) - (v) above which is the
subject of a guarantee indemnity and/or other
form of assurance against financial loss.
For the avoidance of doubt, the amount of any provision for
pension liabilities made in the accounts delivered in accordance
with Clause 19.2 (Financial information) shall not constitute
Borrowings for the purposes of this definition;
"EBITDA"
means, in respect of any period, the consolidated pre-taxation
income of the Group, before depreciation, amortisation and
Interest Expense for that period;
"Interest Bearing Liabilities"
means the amount of all liabilities of the Group which would, in
accordance with U.S. Accounting Requirements, be classified as
interest bearing liabilities (including, without limitation,
pension liabilities, but excluding capitalised leasing obligations
which would not constitute interest bearing liabilities on the
basis of Reference Accounting Requirements);
"Interest Expense"
means, during any period ending on the date as at which a Balance
Sheet is drawn up, the consolidated amount of interest expense of
the Group during that period in accordance with Accounting
Requirements, as shown in the Statement of Income delivered with
that Balance Sheet, but in the case of a Statement of Income
delivered under Clause 19.2(b) or (c) (Financial information) for
an interim period, after adding:
(i) interest expense of the Group for the
immediately preceding financial year of the
Group; less;
(ii) interest expense of the Group for the
corresponding interim period during that
preceding financial year of the Group;
"Liquid Investments"
means the aggregate amount of:
(a) any credit balances on any bank or other deposit, savings
or current account of a member of the Group;
(b) cash in hand of a member of the Group; and
(c) marketable securities beneficially held by a member of
the Group;
"Net Interest Bearing Debt"
means Interest Bearing Liabilities less Liquid Investments;
"Operating Profit"
means, during any period ending on the date as at which a Balance
Sheet is drawn up, the consolidated revenues of the Group during
that period less operating costs and less any depreciation, but
before amortisation of intangibles (primarily goodwill), as shown
in the Statement of Income delivered with that Balance Sheet as
operating profit, but in the case of a Statement of Income
delivered under Clause 19.2(b) or (c) (Financial information) for
an interim period, after adding:
(i) Operating Profit of the Group for the
immediately preceding financial year of the
Group; less
(ii) Operating Profit of the Group for the
corresponding interim period during that
preceding financial year of the Group;
"Reference Accounting Requirements"
means the U.S. GAAP as applied to and used in connection with the
Original Group Accounts.
"Statement of Income"
means at any time, the profit and loss account forming part of the
latest consolidated accounts of the Group (whether audited or
unaudited) delivered to the Agent under Clause 19.2 (Financial
information) at that time;
"Subsidiary Borrowings"
means, at any time, the aggregate amount of all Borrowings of the
Parent's Subsidiaries (other than the Borrowers) at that time
(without double counting in relation to intra-Group Borrowings or
guarantees given by one Subsidiary in relation to the Borrowings
of another);
(B) Each calculation to be made for the purposes of this
Clause 19.22 shall be made on the following basis:
(a) figures shall be expressed in US Dollars and, where any
currency has to be converted into US Dollars for this
purpose, such conversion shall be made at the rate of
exchange applied in the relevant financial accounts
delivered under Clause 19.2 (Financial information);
(b) figures shall be taken from the most recent financial
accounts delivered under Clause 19.2 (Financial
information) or, as the case may be, the financial
accounts delivered under that Clause relevant to the
period or date in question, but shall be adjusted to
remove any material inconsistencies between the figures
contained in the Balance Sheet or (as the case may be)
Statement of Income and the figures that would have been
contained in that Balance Sheet (including notes thereto)
or Statement of Income if it had been drawn up using
Reference Accounting Requirements.
(C) The Parent shall procure that:
(a) the ratio of (i) Operating Profit to (ii) Interest
Expense during the period of 12 months ending on a
Balance Sheet Date, shall not at any time be less than
3.0 to 1.0;
(b) the ratio of Net Interest Bearing Debt (on any Balance
Sheet Date) to EBITDA (for the period of 12 months ending
on the same Balance Sheet Date) shall not be greater than
2.5 to 1.0;
(c) Subsidiary Borrowings shall at no time exceed
US$150,000,000.
20. Default
20.1 Events of Default
Each of the events set out in this Clause 20 is an Event of
Default (whether or not caused by any reason whatsoever outside
the control of an Obligor or any other person).
20.2 Non-payment
An Obligor does not pay on the due date any amount payable by it
under the Finance Documents at the place at and in the currency in
which it is expressed to be payable and, if the non-payment is
caused solely by administrative or technical error, or relates
solely to non-payment of interest or fees, it is not remedied
within three Business Days.
20.3 Breach of other obligations
An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 20.2
(Non-payment)), provided that, if such non-compliance is capable
of remedy, such non-compliance remains unremedied for a period of
14 days.
20.4 Misrepresentation
A representation, warranty or statement made or deemed to be made
or repeated in or in connection with any Finance Document or in
any document delivered by or on behalf of an Obligor under or in
connection with any Finance Document is incorrect in any material
respect when made or deemed to be made or repeated.
20.5 Cross-default
(a) Any Financial Indebtedness of a member of the Group is
not paid when due or within any applicable grace period
provided for in the relevant documentation; or
(b) an event of default howsoever described occurs under any
document relating to Financial Indebtedness of a member
of the Group; or
(c) any Financial Indebtedness of a member of the Group
becomes prematurely due and payable or is placed on
demand as a result of an event of default (howsoever
described) under the document relating to that Financial
Indebtedness; or
(d) any commitment for, or underwriting of, any Financial
Indebtedness of a member of the Group is cancelled or
suspended as a result of an event of default (howsoever
described) under the document relating to that Financial
Indebtedness; or
(e) any Security Interest securing Financial Indebtedness
over any asset of a member of the Group becomes
enforceable,
Provided that no Event of Default shall occur under this Clause
20.5 unless the aggregate amount of all the Financial Indebtedness
with respect to which an event or events under paragraphs (a) to
(e) (inclusive) above occurs or occur is at least US$20,000,000
(or its equivalent in other currencies).
20.6 Insolvency
(a) An Obligor or any Material Subsidiary is, or is deemed
for the purposes of any law to be, unable to pay its
debts as they fall due or to be insolvent, or admits
inability to pay its debts as they fall due; or
(b) an Obligor or any Material Subsidiary suspends making
payments on all or any class of its debts or announces an
intention to do so, or a moratorium is declared in
respect of any of its indebtedness; or
(c) an Obligor or any Material Subsidiary, 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.
20.7 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 an
Obligor or any Material Subsidiary; or
(b) a meeting of an Obligor or any Material Subsidiary 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 an Obligor or any Material
Subsidiary, other than a petition which is frivolous or
vexatious, or which is dismissed within 30 days; or
(d) an order for the winding-up or administration of an
Obligor or any Material Subsidiary is made; or
(e) any other step (including petition, proposal or convening
a meeting) is taken with a view to the rehabilitation,
administration, custodianship, liquidation, winding-up or
dissolution of an Obligor or any Material Subsidiary or
any other insolvency proceedings involving an Obligor or
any Material Subsidiary.
20.8 Appointment of receivers and managers
(a) Any liquidator, trustee in bankruptcy, judicial
custodian, compulsory manager, receiver, administrative
receiver, administrator or the like is appointed in
respect of an Obligor or any Material Subsidiary or any
part of its assets; or
(b) the directors of an Obligor or any Material Subsidiary
requests the appointment of a liquidator, trustee in
bankruptcy, judicial custodian, compulsory manager,
receiver, administrative receiver, administrator or the
like; or
(c) any other steps are taken to enforce any Security
Interest over any part of the assets of an Obligor or any
Material Subsidiary.
20.9 Creditors' process
Any attachment, sequestration, distress or execution affects any
asset of an Obligor or any Material Subsidiary and is not
discharged within 14 days.
20.10 Analogous proceedings
There occurs, in relation to an Obligor or any Material
Subsidiary, any event anywhere which appears to correspond with
any of those mentioned in Clauses 20.6 (Insolvency) to 20.9
(Creditors process) (inclusive).
20.11 Cessation of business
An Obligor or any Material Subsidiary ceases, or threatens to
cease, to carry on all or a substantial part of its business.
20.12 Material adverse change
Any event or series of events occurs which, in the reasonable
opinion of the Majority Banks, could reasonably be expected to
have a material adverse effect.
20.13 U.S. Bankruptcy Laws
(a) Any Obligor makes a general assignment for the benefit of
creditors; or
(b) any Obligor commences a voluntary case or proceeding
under the United States Bankruptcy Code of 1978, as
amended, or under any other United States Federal or
State bankruptcy, insolvency or other similar law
(collectively "U.S. Bankruptcy laws"); or
(c) an involuntary case under any U.S. Bankruptcy Law is
commenced against any Obligor and the petition is not
controverted within 30 days and is not dismissed or
stayed within 90 days after commencement of the case; or
(d) a custodian, conservator, receiver, liquidator, assignee,
trustee, sequestrator or other similar official is
appointed under any U.S. Bankruptcy Law for or takes
charge of, all or substantial part of the property of any
Obligor.
20.14 ERISA
(a) Any event or condition occurs that presents a material
risk that any Obligor or any ERISA Affiliate may incur a
material liability to a Plan or to the United States
Internal Revenue Service or to the United States Pension
Benefit Guaranty Corporation; or
(b) an "accumulated funding deficiency" occurs (as that term
is defined in section 412 of the United States Internal
Revenue Code of 1986, as amended, or section 302 of
ERISA), whether or not waived, by reason of the failure
of any Obligor or any ERISA Affiliate to make a
contribution to a Plan.
20.15 Acceleration
(a) Upon the occurrence of an Event of Default described in
Clause 20.13 (U.S. Bankruptcy Laws):
(i) the Total Commitments will immediately
terminate; and
(ii) the Loans, together with accrued interest, and
all other amounts accrued under the Finance
Documents, will be immediately due and payable.
(b) On and at any time after the occurrence of an Event of
Default (other than an Event of Default described in
Clause 20.13 (U.S. Bankruptcy Laws)) the Facility Agent
may, and shall if so directed by the Majority Banks, by
notice to the Obligors' Agent:
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loans, together with
accrued interest and all other amounts accrued under the
Finance Documents be immediately due and payable,
whereupon they shall become immediately due and payable;
and/or
(c) demand that all or part of the Loans be payable on
demand, whereupon they shall immediately become payable
on demand by the Facility Agent acting on the
instructions of the Majority Banks.
21. THE AGENTS AND THE ARRANGERS
21.1 Appointment and duties of the Agents
(a) Each Finance Party (other than the Facility Agent)
irrevocably appoints the Facility Agent to act as its
agent under and in connection with the Finance Documents.
(b) Each Swingline Bank irrevocably appoints the Swingline
Agent to act as its agent under this Agreement in
connection with the Swingline Facility.
(c) Each Party appointing an Agent irrevocably authorizes
that Agent on its behalf to:
(i) perform the duties and to exercise the rights,
powers and discretions that are specifically
delegated to it under or in connection with the
Finance Documents, together with any other
incidental rights, powers and discretions; and
(ii) execute each Finance Document expressed to be
executed by that Agent on that Party's behalf.
(d) An Agent has only those duties which are expressly
specified in this Agreement. Those duties are solely of a
mechanical and administrative nature.
21.2 Role of the Arrangers
Except as specifically provided in this Agreement, no Arranger has
any obligations of any kind to any other Party under or in
connection with any Finance Document.
21.3 Relationship
The relationship between an Agent and the other Finance Parties is
that of agent and principal only. Nothing in this Agreement
constitutes an Agent as trustee or fiduciary for any other Party
or any other person and an Agent need not hold in trust any moneys
paid to it for a Party or be liable to account for interest on
those moneys.
21.4 Majority Banks' instructions
(a) Each Agent will be fully protected if it acts in
accordance with the instructions of the Majority Banks in
connection with the exercise of any right, power or
discretion or any matter not expressly provided for in
the Finance Documents. Any such instructions given by the
Majority Banks will be binding on all the Banks. In the
absence of such instructions, an Agent may act as it
considers to be in the best interests of all the Banks.
(b) No Agent is authorized to act on behalf of a Bank
(without first obtaining that Bank's consent) in any
legal or arbitration proceedings relating to any Finance
Document.
21.5 Delegation
Each Agent may act under the Finance Documents through its
personnel and agents.
21.6 Responsibility for documentation
Neither of the Agents or the Arrangers is responsible to any other
Party for:-
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other
document;
(b) the collectability of amounts payable under any Finance
Document; or
(c) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document
(including the Information Memorandum).
21.7 Default
(a) No Agent is obliged to monitor or enquire as to whether
or not a Default has occurred. No Agent will be deemed to
have knowledge of the occurrence of a Default. However,
if an Agent receives notice from a Party referring to
this Agreement, describing the Default and stating that
the event is a Default, it shall promptly notify the
Banks.
(b) Each Agent may require the receipt of security
satisfactory to it, whether by way of payment in advance
or otherwise, against any liability or loss which it will
or may incur in taking any proceedings or action arising
out of or in connection with any Finance Document before
it commences those proceedings or takes that action.
21.8 Exoneration
(a) Without limiting paragraph (b) below, no Agent will be
liable to any other Party for any action taken or not
taken by it under or in connection with any Finance
Document, unless directly caused by its gross negligence
or wilful misconduct.
(b) No Party may take any proceedings against any officer,
employee or agent of an Agent in respect of any claim it
might have against that Agent or in respect of any act or
omission of any kind (including gross negligence or
wilful misconduct) by that officer, employee or agent in
relation to any Finance Document. Any officer, employee
or agent of an Agent may rely on this subclause and
enforce its terms under the Contracts (Rights of Third
Parties) Xxx 0000.
21.9 Reliance
In the absence of manifest error or fraud, each Agent may:-
(a) rely on any notice or document believed by it to be
genuine and correct and to have been signed by, or with
the authority of, the proper person;
(b) rely on any statement made by a director or employee of
any person regarding any matters which may reasonably be
assumed to be within his knowledge or within his power to
verify; and
(c) engage, pay for and rely on legal or other professional
advisers selected by it (including those in that Agent's
employment and those representing a Party other than that
Agent).
21.10 Credit approval and appraisal
Without affecting the responsibility of any Borrower for
information supplied by it or on its behalf in connection with any
Finance Document, each Bank confirms that it:-
(a) has made its own independent investigation and assessment
of the financial condition and affairs of each Borrower
and its related entities in connection with its
participation in this Agreement and has not relied
exclusively on any information provided to it by any
Agent or any Arranger in connection with any Finance
Document; and
(b) will continue to make its own independent appraisal of
the creditworthiness of each Borrower and its related
entities while any amount is or may be outstanding under
the Finance Documents or any Commitment is in force.
21.11 Information
(a) The Facility Agent shall promptly forward to the person
concerned the original or a copy of any document which is
delivered to the Facility Agent by a Party for that
person.
(b) The Facility Agent shall promptly supply a Bank with a
copy of each document received by the Facility Agent
under Clause 4 (Conditions Precedent), upon the request
and at the expense of that Bank.
(c) Except where this Agreement specifically provides
otherwise, the Facility Agent is not obliged to review or
check the accuracy or completeness of any document it
forwards to another Party.
(d) Except as provided above, no Agent has any duty:-
(i) either initially or on a continuing basis to
provide any Bank with any credit or other
information concerning the financial condition
or affairs of any Borrower or of its related
entities, whether coming into its possession
before, on or after the date of this Agreement;
or
(ii) unless specifically requested to do so by a Bank
in accordance with a Finance Document, to
request any certificates or other documents from
any Borrower.
21.12 The Agents and the Arrangers individually
(a) If it is also a Bank, each of the Agents and each of the
Arrangers has the same rights and powers under this
Agreement as any other Bank and may exercise those rights
and powers as though it were not an Agent or an Arranger.
(b) Each Agent and each Arranger may:-
(i) carry on any business with a Borrower or its
related entities;
(ii) act as agent or trustee for, or in relation to
any financing involving, a Borrower or its
related entities; and
(iii) retain any profits or remuneration in connection
with its activities under this Agreement or in
relation to any of the foregoing.
(c) In acting as an Agent, the agency division of each Agent
will be treated as a separate entity from its other
divisions and departments. Any information acquired by an
Agent which, in its opinion, is acquired by it otherwise
than in its capacity as an Agent may be treated as
confidential by that Agent and will not be deemed to be
information possessed by that Agent in its capacity as
such.
(d) Each Borrower irrevocably authorizes an Agent to disclose
to the other Finance Parties any information which, in
the opinion of that Agent, is received by it in its
capacity as an Agent.
(e) An Agent may deduct from any amount received by it for
the Banks pro rata any unpaid fees, costs and expenses of
that Agent incurred by it in connection with the Finance
Documents.
21.13 Indemnities
(a) Without limiting the liability of any Borrower under the
Finance Documents, each Revolving Credit Bank shall
forthwith on demand indemnify the Facility Agent, and
each Swingline Bank shall forthwith on demand indemnify
the Swingline Agent, for that Bank's proportion of any
liability or loss incurred by the Facility Agent or the
Swingline Agent in any way relating to or arising out of
its acting as the Facility Agent or the Swingline Agent,
except to the extent that the liability or loss arises
directly from the relevant Agent's gross negligence or
wilful misconduct.
(b) A Bank's proportion of the liability or loss set out in
paragraph (a) above will be the proportion which the
Original Dollar Amount of its participation in the
Revolving Credit Loans (if any) bears to the Original
Dollar Amount of all the Revolving Credit Loans on the
date of the demand or, in the case of a Swingline Bank,
the proportion which the participation in the Swingline
Loans (if any) bear to all the Swingline Loans
outstanding on the date of demand. However, if there are
no such Loans outstanding on the date of demand, then the
proportion will be the proportion which its Revolving
Credit Commitment or Swingline Commitment bears to the
Total Revolving Credit Commitments or the Total Swingline
Commitments at the date of demand or, if the Total
Revolving Credit Commitments or the Total Swingline
Commitments have then been cancelled, bore to the Total
Revolving Credit Commitments or the Total Swingline
Commitments immediately before being cancelled.
21.14 Compliance
(a) An Agent may refrain from doing anything which might, in
its opinion, constitute a breach of any law or regulation
or be otherwise actionable at the suit of any person, and
may do anything which, in its opinion, is necessary or
desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, no Agent need
disclose any information relating to any Borrower or any
of its related entities if the disclosure might, in the
opinion of that Agent, constitute a breach of any law or
regulation or any duty of secrecy or confidentiality or
be otherwise actionable at the suit of any person.
21.15 Resignation of an Agent
(a) Notwithstanding its irrevocable appointment, an Agent may
resign by giving notice to the Banks and the Obligors'
Agent, in which case that Agent may forthwith appoint one
of its Affiliates as successor Agent or, failing that,
the Majority Banks may appoint a successor Agent.
(b) If the appointment of a successor Agent is to be made by
the Majority Banks but they have not, within 30 days
after notice of resignation, appointed a successor Agent
which accepts the appointment, the relevant Agent may
appoint a successor Agent.
(c) The resignation of an Agent and the appointment of any
successor Agent will both become effective only upon the
successor Agent notifying all the Parties that it accepts
its appointment. On giving the notification, the
successor Agent will succeed to the position of the
relevant Agent and the term "Facility Agent" or
"Swingline Agent" will mean the successor Agent.
(d) The retiring Agent shall, at its own cost, make available
to the successor Agent such documents and records and
provide such assistance as the successor Agent may
reasonably request for the purposes of performing its
functions as an Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 21
shall continue to benefit the retiring Agent in respect
of any action taken or not taken by it under or in
connection with the Finance Documents while it was an
Agent, and, subject to paragraph (d) above, it shall have
no further obligations under any Finance Document.
(f) The Majority Banks may, by notice to an Agent, require it
to resign in accordance with paragraph (a) above. In this
event, that Agent shall resign in accordance with
paragraph (a) above but it shall not be entitled to
appoint one of its Affiliates as successor Agent.
21.16 Banks
(a) Each Agent may treat each Bank as a Bank, entitled to
payments under this Agreement and as acting through its
Facility Office(s) until it has received not less than
five Business Days' prior notice from that Bank to the
contrary.
(b) Each Bank, on the date on which it becomes a party to
this Agreement, represents to the Facility Agent that it
is:
(i) either:
(A) not resident in the United Kingdom for
United Kingdom tax purposes; or
(B) a "bank" as defined in section 840A of
the Income and Corporation Taxes Act
1988 and resident in the United
Kingdom; and
(ii) beneficially entitled to the principal and
interest payable by the Facility Agent to it
under this Agreement,
and shall forthwith notify the Facility Agent if either
representation ceases to be correct.
(c) The Facility Agent may at any time, and shall if
requested to do so by the Majority Banks, convene a
meeting of the Banks.
21.17 Extraordinary management time and resources
The Parent shall forthwith on demand pay each Agent for the
reasonable cost of utilising its management time or other
resources in connection with:-
(a) any amendment, waiver, consent or suspension of rights
(or any proposal for any of the foregoing) requested by
or on behalf of an Obligor and relating to a Finance
Document or a document referred to in any Finance
Document; or
(b) the occurrence of a Default; or
(c) the enforcement of, or the preservation of any rights
under, any Finance Document.
Any amount payable to an Agent under this Clause will be
calculated on the basis of such reasonable daily or hourly rates
as that Agent may notify to the Obligors' Agent, and is in
addition to any fee paid or payable to an Agent under Clause 22
(Fees).
22. FEES
22.1 Arrangement fee
The Parent shall within five Business Days of the date of this
Agreement pay to the Arrangers an arrangement fee in the amount
agreed in the Fee Letter between the Arranger and the Obligors.
This fee shall be distributed by the Arrangers among the Banks in
accordance with the arrangements agreed by the Arrangers with the
Banks prior to the date of this Agreement.
22.2 Facility Agent's fee
The Parent shall pay to the Facility Agent for its own account an
agency fee in the amount agreed in the Fee Letter between the
Facility Agent and the Obligors. The agency fee is payable
annually in advance. The first payment of this fee is payable
within five Business Days of the date of this Agreement and each
subsequent payment is payable on each anniversary of the date of
this Agreement for so long as any amount is or may be outstanding
under this Agreement or any Commitment is in force.
22.3 Commitment fee
(a) The Parent shall pay to the Facility Agent for each
Revolving Credit Bank a commitment fee in US Dollars
computed at the rate of:
(i) 0.1 per cent. per annum on the undrawn,
uncancelled amount of that Bank's Facility A
Commitment; and
(ii) 40 per cent. per annum of the applicable Margin
on the undrawn, uncancelled amount of that
Bank's Facility B Commitment.
The Commitment fee will be payable on each day on which
any Commitment is in force. For this purpose Loans shall
be taken at their Original Dollar Amount.
(b) Commitment fee shall be payable quarterly in arrear from
the date of this Agreement. Accrued commitment fee shall
also be payable to the Facility Agent for the relevant
Bank on the cancelled amount of its Revolving Credit
Commitment at the time the cancellation comes into
effect.
22.4 Swingline Agent's fee
The Parent shall pay to the Swingline Agent for its own account an
agency fee in the amounts and on the terms agreed in the Fee
Letter between the Obligors and the Swingline Agent.
22.5 VAT
Any fee referred to in this Clause 22 is exclusive of any value
added tax or any other direct tax which might be chargeable in
connection with that fee. If any value added tax or other direct
tax is so chargeable, it shall be paid by the Borrower at the same
time as it pays the relevant fee.
23. EXPENSES
23.1 Initial and special costs
The Parent shall forthwith on demand pay the Agents and the
Arrangers the amount of all costs and expenses (including legal
fees) reasonably incurred by any of them in connection with:
(a) the negotiation, preparation, printing and execution of:
(i) this Agreement and any other documents referred
to in this Agreement; and
(ii) any other Finance Document executed after the
date of this Agreement; and
(b) any amendment, waiver, consent or suspension of rights
(or any proposal for any of the foregoing) requested by
or on behalf of an Obligor or, in the case of Clause 2.8
(Change of currency), the Facility Agent, and relating to
a Finance Document or a document referred to in any
Finance Document.
(c) any other matter, not of an ordinary administrative
nature, arising out of or in connection with a Finance
Document.
23.2 Enforcement costs
The Parent shall forthwith on demand pay to each Finance Party 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.
24. STAMP DUTIES
The Parent shall pay and forthwith on demand indemnify each
Finance Party against any liability it incurs in respect of, any
stamp, registration and similar tax which is or becomes payable in
connection with the entry into, performance or enforcement of any
Finance Document.
25. INDEMNITIES
25.1 Currency indemnity
(a) If a Finance Party receives an amount in respect of an
Obligor's liability under the Finance Documents or if
that liability is converted into a claim, proof, judgment
or order in a currency other than the currency (the
"contractual currency") in which the amount is expressed
to be payable under the relevant Finance Document:
(i) that Obligor shall indemnify that Finance Party
as an independent obligation against any loss or
liability arising out of or as a result of the
conversion;
(ii) if the amount received by that Finance Party,
when converted into the contractual currency at
a market rate in the usual course of its
business is less than the amount owed in the
contractual currency, the Obligor concerned
shall forthwith on demand pay to that Finance
Party an amount in the contractual currency
equal to the deficit; and
(iii) the Obligor shall forthwith on demand pay to the
each Finance Party forthwith on demand any
exchange costs and taxes payable in connection
with any such conversion.
(b) Each Obligor waives any right it may have in any
jurisdiction to pay any amount under the Finance
Documents in a currency other than that in which it is
expressed to be payable.
25.2 Other indemnities
The Parent shall forthwith on demand indemnify each Finance Party
against any loss or liability which that Finance Party incurs as a
consequence of:
(a) the occurrence of any Default;
(b) a change in the currency of a country or the operation of
Clause 2.8 (Change of currency), Clause 20.15
(Acceleration) or Clause 31 (Pro rata sharing);
(c) any payment of principal or an overdue amount being
received from any source otherwise than on the last day
of a relevant Interest Period or Designated Interest
Period (as defined in Clause 10.4 (Default interest))
relative to the amount so received; or
(d) a Loan (or part of a Loan) not being prepaid in
accordance with a notice of prepayment or (other than by
reason of negligence or default by that Finance Party) a
Loan not being made after the Obligors' Agent has
delivered a Request.
The Parent'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 Loan.
26. EVIDENCE AND CALCULATIONS
26.1 Accounts
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they
relate.
26.2 Certificates and determinations
Any certification or determination by a Finance Party of a rate or
amount under the Finance Documents is, in the absence of manifest
error, conclusive evidence of the matters to which it relates.
26.3 Calculations
Interest (including any applicable Mandatory Cost) and the fee
payable under Clause 22.3 (Commitment fee) accrue from day to day
and are calculated on the basis of the actual number of days
elapsed and a year of 360 days or, where market practice otherwise
dictates, 365 days.
27. AMENDMENTS AND WAIVERS
27.1 Procedure
(a) Subject to Clause 27.2 (Exceptions), any term of the
Finance Documents may be amended or waived with the
agreement of the Obligors' Agent and the Majority Banks.
The Facility Agent may effect, on behalf of any Finance
Party, an amendment or waiver permitted under this
Clause.
(b) The Facility Agent shall promptly notify the other
Parties of any amendment or waiver effected under
paragraph (a) above, and any such amendment or waiver
shall be binding on all the Parties.
27.2 Exceptions
(a) An amendment or waiver not agreed by a Bank and which
relates to:-
(i) the definition of "Majority Banks" in Clause 1.1
(Definitions);
(ii) an extension of the date for, or a decrease in
an amount or a change in the currency of, any
payment to that Bank under the Finance Documents
(including the Margin and any fee payable under
Clause 22.3 (Commitment fee));
(iii) an increase in that Bank's Commitment;
(iv) a change in the guarantee of the Parent;
(v) a term of a Finance Document which expressly
requires the consent of that Bank; or
(vi) Clause 2.4 (Obligations several), Clause 28.2
(Transfers by Banks), Clause 31 (Pro Rata
Sharing) or this Clause 27 (Amendments and
Waivers),
is not binding on that Bank.
(b) An amendment or waiver which affects the rights and/or
obligations of an Agent may not be effected without the
agreement of that Agent.
27.3 Waivers and Remedies Cumulative
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a
waiver of that right.
28. CHANGES TO THE PARTIES
28.1 Transfers by Obligors
No Obligor may assign, transfer, novate or dispose of any of, or any
interest in, its rights and/or obligations under the Finance Documents.
28.2 Transfers by Banks
(a) A Bank (the "Existing Bank") may, subject to paragraph
(b) below, at any time assign, transfer or novate any of
its Commitments and/or its rights and/or obligations
under this Agreement to another bank or financial
institution (the "New Bank").
(b) (i) A transfer of part of a Commitment must be
in a minimum amount of at least U.S.$10,000,000
or its remaining Commitment, if less;
(ii) no transfer by a Bank of its Revolving Credit
Commitment may result in its Swingline
Commitment or that of its Affiliated Bank
exceeding its Revolving Credit Commitment;
(iii) a Bank may only transfer its Swingline
Commitment to a New Bank if the New Bank is, or
will be, a Revolving Credit Bank or an Affiliate
of a Revolving Credit Bank; and
(iv) the prior consent of the Parent is required for
any such assignment, transfer or novation,
unless the New Bank is another Bank or an
Affiliate of a Bank. However, the prior consent
of the Parent must not be unreasonably withheld
or delayed and will be deemed to have been given
if, within five days of receipt by the Parent of
an application for consent, it has not been
expressly refused.
(c) A transfer of obligations will be effective only if
either:-
(i) the obligations are novated in accordance with
Clause 28.3 (Procedure for novations); or
(ii) the New Bank confirms to the Facility Agent and
the Obligors' Agent that it undertakes to be
bound by the terms of this Agreement as a Bank
in form and substance satisfactory to the
Facility Agent. On the transfer becoming
effective in this manner the Existing Bank shall
be relieved of its obligations under this
Agreement to the extent that they are
transferred to the New Bank.
(d) Nothing in this Agreement restricts the ability of a Bank
to sub-contract an obligation if that Bank remains liable
under this Agreement for that obligation.
(e) On each occasion an Existing Bank assigns, transfers or
novates any of its Commitments, or any of its rights
and/or obligations under this Agreement, other than in
relation to a transfer to an Affiliate, the New Bank
shall, on the date the assignment, transfer and/or
novation takes effect, pay to the Facility Agent for its
own account a fee of US$1,000.
(f) An Existing Bank is not responsible to a New Bank for:-
(i) the execution, genuineness, validity,
enforceability or sufficiency of any Finance
Document or any other document;
(ii) the collectability of amounts payable under any
Finance Document; or
(iii) the accuracy of any statements (whether written
or oral) made in or in connection with any
Finance Document.
(g) Each New Bank confirms to the Existing Bank and the other
Finance Parties that it:-
(i) has made its own independent investigation and
assessment of the financial condition and
affairs of the Obligors and their related
entities in connection with its participation in
this Agreement and has not relied exclusively on
any information provided to it by the Existing
Bank in connection with any Finance Document;
and
(ii) will continue to make its own independent
appraisal of the creditworthiness of the
Obligors and their related entities while any
amount is or may be outstanding under this
Agreement or any Commitment is in force.
(g) Nothing in any Finance Document obliges an Existing Bank
to:-
(i) accept a re-transfer from a New Bank of any of
the Commitments and/or rights and/or obligations
assigned, transferred or novated under this
Clause; or
(ii) support any losses incurred by the New Bank by
reason of the non-performance by the Obligors of
their obligations under the Finance Documents or
otherwise.
(h) Any reference in this Agreement to a Bank includes a New
Bank but excludes a Bank if no amount is or may be owed
to or by it under this Agreement and its Commitment has
been cancelled or reduced to nil.
28.3 Procedure for novations
(a) A novation is effected if:-
(i) the Existing Bank and the New Bank deliver to
the Facility Agent a duly completed certificate,
substantially in the form of Schedule 5 (a
"Novation Certificate"); and
(ii) the Facility Agent executes it.
(b) Each Party (other than the Existing Bank and the New
Bank) irrevocably authorizes the Facility Agent to
execute any duly completed Novation Certificate on its
behalf.
(c) To the extent that they are expressed to be the subject
of the novation in the Novation Certificate:-
(i) the Existing Bank and the other Parties (the
"existing Parties") will be released from their
obligations to each other (the "discharged
obligations");
(ii) the New Bank and the existing Parties will
assume obligations towards each other which
differ from the discharged obligations only
insofar as they are owed to or assumed by the
New Bank instead of the Existing Bank;
(iii) the rights of the Existing Bank against the
existing Parties and vice versa (the "discharged
rights") will be cancelled; and
(iv) the New Bank and the existing Parties will
acquire rights against each other which differ
from the discharged rights only insofar as they
are exercisable by or against the New Bank
instead of the Existing Bank,
all on the date of execution of the Novation Certificate
by the Facility Agent or, if later, the date specified in
the Novation Certificate.
28.4 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Bank, the
Bank of which it is an Affiliate) ceases to be a Bank, the
Facility Agent shall (in consultation with the Borrower and the
Banks) appoint another Bank or an Affiliate of a Bank to replace
that Reference Bank.
29. Disclosure of Information
Each Bank shall keep confidential any and all information made
available to it by any Obligor pursuant to or in connection with
the Finance Documents, other than information:
(a) which at the relevant time is in the public domain; or
(b) which, after such information has been made available to
that Bank, becomes generally available to third parties
by publication or otherwise through no breach of this
Clause 29 by that Bank; or
(c) which was lawfully in the possession of that Bank or its
advisers prior to such disclosure (as evidenced by that
Bank's written records or the written records of that
Bank's advisers) and which was not acquired directly or
indirectly from an Obligor; or
(d) the disclosure of which is required by law or any
competent regulatory body (to the extent of that
requirement) or which is necessitated by any legal
proceeding or audit requirement; or
(e) the disclosure of which is made to an Affiliate of that
Bank in circumstances where it is that Bank's usual
practice to make such disclosure or where such disclosure
is required as part of that Bank's management or
reporting policies or where such disclosure is in the
reasonable opinion of that Bank required to protect its
position, or to assist in the recovery of amounts,
hereunder; or
(f) the disclosure of which is made to any person with whom
it is proposing to enter, or has entered, into any kind
of transfer, participation or other agreement in relation
to this Agreement; or
(g) the disclosure of which is made by that Bank to its
professional advisers; or
(h) which is disclosed to another party to this Agreement in
the specific circumstances whereby it is made available
to that party,
provided that, if a Bank makes such information available to any
person in accordance with paragraphs (d), (e), (f) or (g) above,
it takes reasonable endeavours to ensure that such party keeps
that information confidential to the same extent as set out above.
30. SET-OFF
A Finance Party may set off any matured obligation owed by an
Obligor under the Finance Documents (to the extent beneficially
owned by that Finance Party) against any obligation (whether or
not matured) owed by that Finance Party to that Obligor,
regardless of the place of payment, booking branch or currency of
either obligation. If the obligations are in different currencies,
the Finance Party may convert either obligation at a market rate
of exchange in its usual course of business for the purpose of the
set-off. If either obligation is unliquidated or unascertained,
the relevant Finance Party may set off in an amount estimated by
it in good faith to be the amount of that obligation.
31. PRO RATA SHARING
31.1 Redistribution
If any amount owing by an Obligor under the Finance Documents to a
Finance Party (the "recovering Finance Party") is discharged by
payment, set-off or any other manner other than in accordance with
Clause 12 (Payments) (a "recovery"), then:-
(a) the recovering Finance Party shall, within three Business
Days, notify details of the recovery to the Facility
Agent;
(b) the Facility Agent shall determine whether the recovery
is in excess of the amount which the recovering Finance
Party would have received had the recovery been received
by the Facility Agent and distributed in accordance with
Clause 12 (Payments);
(c) subject to Clause 31.3 (Exceptions), the recovering
Finance Party shall, within three Business Days of demand
by the Facility Agent, pay to the Facility Agent an
amount (the "redistribution") equal to the excess;
(d) the Facility Agent shall treat the redistribution as if
it were a payment by the relevant Obligor under Clause 12
(Payments) and shall pay the redistribution to the
Finance Parties (other than the recovering Finance Party)
in accordance with Clause 12.7 (Partial payments); and
(e) after payment of the full redistribution, the recovering
Finance Party will be subrogated to the portion of the
claims paid under paragraph (d) above and the relevant
Obligor will owe the recovering Finance Party a debt
which is equal to the redistribution, immediately payable
and of the type originally discharged.
31.2 Reversal of redistribution
If under Clause 31.1 (Redistribution):-
(a) a recovering Finance Party must subsequently return a
recovery, or an amount measured by reference to a
recovery, to an Obligor; and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within three Business Days of demand by
the recovering Finance Party through the Facility Agent, reimburse
the recovering Finance Party all or the appropriate portion of the
redistribution paid to that Finance Party together with interest
on the amount to be returned to the recovering Finance Party for a
period whilst it held the re-distribution. Thereupon the
subrogation in Clause 31.1(e) (Redistribution) will operate in
reverse to the extent of the reimbursement.
31.3 Exceptions
(a) A recovering Finance Party is not obliged to pay a
redistribution to the extent that it would not, after the
payment, have a valid claim against the Obligor concerned
in the amount of the redistribution pursuant to Clause
31.1(e) (Redistribution).
(b) A recovering Finance Party is not obliged to share with
any other Finance Party any amount which the recovering
Finance Party has received or recovered as a result of
taking legal proceedings, if the other Finance Party had
an opportunity to participate in those legal proceedings
but did not do so and did not take separate legal
proceedings.
32. 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.
33. 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.
34. NOTICES
34.1 Giving of notices
All notices or other communications under or in connection with
this Agreement shall be given in writing and, unless otherwise
stated, may be made by letter, telex or facsimile. Any such notice
will be deemed to be given as follows:
(a) if by letter, when delivered personally or on actual
receipt;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start
and at the end of the sender's copy of the notice; and
(c) if by facsimile, when received 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.
34.2 Addresses for notices
(a) The address, telex and facsimile number of each Party
(other than the Obligors and the Agents) for all notices
under or in connection with this Agreement are:
(i) those notified by that Party for this purpose to
the Agents on or before the date it becomes a
Party; or
(ii) any other notified by that Party for this
purpose to the Agents by not less than five
Business Days' notice.
(b) The address, telex and facsimile number of the Parent are:
Autoliv, Inc,
Box 70381
XX-000 00 Xxxxxxxxx
Xxxxxx
Fax No: x00 0 00 00 00
Attention: Vice President, Finance
or such other as the Parent may notify to the Facility Agent by
not less than five Business Days' notice.
(c) The address, telex number and facsimile number of the
other Borrowers are:
Autoliv ASP, Inc.
0000 Xxxxxxx Xxxx
Xxxxx
Xxxx 00000
Fax No: x0 000 000 0000
Attention: Director of Finance
Autoliv AB
World Trade Center
Xxxxxxxxxxxxxxxxxxx 00
XX Xxx 00000
XX-000 Xxxxxxxxx
Fax No: 00 00 0000 0000
Attention: Xxxxxx Xxxxxx
or such other as that Borrower may notify to the Facility Agent by
not less than five Business Days' notice.
(d) The address, telex number and facsimile number of the
Agents are:
Facility Agent:
Skandinaviska Enskilda Xxxxxx XX (publ)
Xxxxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Telex No: 0000000
Fax No: x00 00 0000 0000
Attention: Banking Administration
Xxxxxx Xxxxxx
Swingline Agent:
Bank One, NA
1 Bank Xxx Xxxxx
Xxxxx 0000
Xxxxxxx
XX 00000-0000,
Fax No: 000 000 0000/1158
Attention: Xxxxxxx Xxxxxx
or such other as an Agent may notify to the other Parties by not
less than five Business Days' notice.
(e) All notices from or to an Obligor or the Obligors' Agent
shall be sent through the relevant Agent.
(f) The Facility Agent shall, promptly upon request from any
Party, give to that Party the address, facsimile number
or telex number of any other Party applicable at the time
for the purposes of this Clause.
35. LANGUAGE
(a) Any notice given under or in connection with any Finance
Document shall be in English.
(b) All other documents provided under or in connection with
any Finance Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified
English translation and, in this case, the
English translation shall prevail unless the
document is a statutory or other official
document.
36. JURISDICTION
36.1 Submission
(a) For the benefit of each Finance Party, each Obligor
agrees that the courts of England have jurisdiction to
settle any disputes in connection with any Finance
Document and accordingly submits to the jurisdiction of
the English courts.
(b) Without prejudice to paragraph (a) above and for the
benefit of each Finance Party, each Obligor agrees that
any New York State court or Federal court sitting in New
York City has jurisdiction to settle any disputes in
connection with any Finance Document and accordingly
submits to the jurisdiction of those courts. 36.2 Service
of process
Without prejudice to any other mode of service, each Obligor:
(a) irrevocably appoints:
(i) Autoliv Ltd, Xxxxxx Xxxx, Xxxxxx, Xxxxxxxxx XX0
0XX, as agent for service of process in relation
to any proceedings before the English courts in
connection with any Finance Document;
(ii) CT Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as its agent for service of process
in relation to any proceedings before any courts
located in the State of New York in connection
with any Finance Document;
(b) agrees to maintain an agent for service of process in
England and in the State of New York until all
Commitments have terminated and the Loans and all other
amounts payable under the Finance Documents have been
finally, irrevocable and indefeasibly repaid in full;
(c) agrees that failure by a process agent to notify the
Obligor of the process will not invalidate the
proceedings concerned;
(d) consents to the service of process relating to any
proceedings by prepaid posting of a copy of the process
to its address for the time being applying under Clause
34.2 (Addresses for notices); and
(e) agrees that if the appointment of any person mentioned in
paragraph (a) above ceases to be effective, the Obligor
shall immediately appoint a further person in England or
in the State of New York, as appropriate, to accept
service of process on its behalf in England or in the
State of New York, as appropriate, and, if the Obligor
does not appoint a process agent within 15 days, the Bank
is entitled and authorized to appoint a process agent for
the Obligor by notice to the Obligor.
36.3 Forum convenience and enforcement abroad
Each Obligor:
(a) waives objection to the English and New York State and
Federal courts on grounds of inconvenient forum or
otherwise as regards proceedings in connection with any
Finance Document; and
(b) agrees that a judgment or order of an English or New York
State or Federal court in connection with any Finance
Document is conclusive and binding on it and may be
enforced against it in the courts of any other
jurisdiction.
36.4 Non-exclusivity
Nothing in this Clause 36 limits the right of a Finance Party to
bring proceedings against an Obligor in connection with any
Finance Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
37. Governing Law
This Agreement is governed by English law.
38. INTEGRATION
The Finance Documents contain the complete agreement between the
parties on the matters to which they relate and supersede all
prior commitments, agreements and understandings, whether written
or oral, on those matters.
39. WAIVER OF JURY TRIAL
The Obligors and the Finance Parties waive any rights they may
have to a jury trial of any claim or cause of action based on or
arising from any Finance Document or the transactions contemplated
by the Finance Documents. In the event of litigation, this
Agreement may be filed as a written consent to a trial by the
court.
This Agreement has been entered into on the date stated at the beginning of
this Agreement.
SCHEDULE 1
VARIOUS PARTIES
BANKS AND COMMITMENTS
PART 1
Facility A Commitments
Revolving Credit Banks Facility A Commitments
US$
Bank One, NA 32,000,000.00
Skandinaviska Enskilda Xxxxxx XX (publ) 32,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 27,294,117.65
Landesbank Baden-Wurtemberg, London Branch 27,294,117.65
Norddeutsche Landesbank, Stockholm Branch 27,294,117.65
Societe Generale, Paris 27,294,117.65
Svenska Handelsbanken AB (publ) 27,294,117.65
Banco Bilbao Vizcaya Argentaria S.A. 18,447,058.82
BBL International (U.K.) Limited 18,447,058.82
Mizuho Bank Nederland BV 18,447,058.82
Commerzbank International (Ireland) 15,058,823.53
Commerzbank Aktiengesellschaft, Elmshorn Branch 12,235,294.12
Banca Commerciale Italiana SpA, London Branch 9,223,529.41
Banca Monte dei Paschi di Siena SpA 9,223,529.41
Natexis Banques Populaires 9,223,529.41
Nordbanken AB (publ) 9,223,529.41
----------
Total Facility A Commitments
U.S. $320,000,000
-----------------
PART II
Facility B Commitments
Revolving Credit Banks Facility B Commitments
US$
Bank One, NA 53,000,000.00
Skandinaviska Enskilda Xxxxxx XX (publ) 53,000,000.00
The Bank of Tokyo-Mitsubishi, Ltd. 45,205,882.35
Landesbank Baden-Wurtemberg, London Branch 45,205,882.35
Norddeutsche Landesbank, Stockholm Branch 45,205,882.35
Societe Generale, Paris 45,205,882.35
Svenska Handelsbanken AB (publ) 45,205,882.35
Banco Bilbao Vizcaya Argentaria S.A. 30,552,941.18
BBL International (U.K.) Limited 30,552,941.18
Mizuho Bank Nederland BV 30,552,941.18
Commerzbank International (Ireland) 24,941,176.47
Commerzbank Aktiengesellschaft, Elmshorn Branch 20,264,705.88
Banca Commerciale Italiana SpA, London Branch 15,276,470.59
Banca Monte dei Paschi di Siena SpA 15,276,470.59
Natexis Banques Populaires 15,276,470.59
Nordbanken AB (publ) 15,276,470.59
----------
Total Facility B Commitments
U.S. $530,000,000
-----------------
PART III
Swingline Banks and Swingline Commitments
Swingline Banks Swingline Commitments
US$
Bank One, NA 52,000,000
Skandinaviska Enskilda Xxxxxx XX (publ) 52,000,000
Norddeutsche Landesbank, New York Branch 30,000,000
Svenska Handelsbanken New York Branch 30,000,000
Banca Commerciale Italiana SpA, New York Branch 12,000,000
Banca Monte dei Paschi di Siena SpA 12,000,000
Nordbanken AB (publ) 12,000,000
----------
Total Swingline Commitments
U.S. $200,000,000
-----------------
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
1. Each Obligor
(a) A copy of the memorandum and articles of association and
certificate of incorporation of each Obligor.
(b) A copy of a resolution of the board of directors of each Obligor:
(i) approving the terms of, and the transactions contemplated
by, this Agreement and resolving that it execute this
Agreement;
(ii) authorizing a specified person or persons to execute this
Agreement on its behalf; and
(iii) authorizing a specified person or persons, on its behalf,
to sign and/or despatch all documents and notices to be
signed and/or despatched by it under or in connection
with this Agreement;
(c) a specimen of the signature of each person authorized by the
resolution referred to in paragraph (b) above;
(d) a certificate of a director of each Obligor confirming that the
borrowing of the Commitment in full would not cause any borrowing
limit binding on it to be exceeded; and
2. Other documents
(a) a certificate of an authorized signatory of the Parent certifying
that each copy document specified in this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than
the date of this Agreement.
(b) Evidence that the process agents referred to in Clause 36.2
(Service of process) have accepted their appointments under that
Clause.
(c) Confirmation from the Parent that it is not, to the best of its
knowledge and belief after full and due enquiry, in breach of any
other agreement to which it is a party.
(d) Evidence satisfactory to the Facility Agent that the Existing
Indebtedness set out in paragraph (a) and (b) of the definition of
"Existing Indebtedness" in Clause 1.1 (Definitions) has been
repaid and cancelled or will be repaid and cancelled by means of
the first drawing made under this Agreement.
(e) A copy of any other authorization or other document, opinion or
assurance which the Facility Agent considers to be necessary in
connection with the entry into and performance of, and the
transactions contemplated by, any Finance Document or for the
validity and enforceability of any Finance Document.
3. Legal opinions
(a) A legal opinion of Xxxxx & Xxxxx, New York, legal advisers in the
State of New York, U.S.A. to the Finance Parties;
(b) A legal opinion of legal advisers in the State of Indiana, U.S.A.
to the Finance Parties.
(c) A legal opinion of Xxxxx & Overy, London, legal advisers in
England to the Finance Parties.
(d) A legal opinion of Advokatfirman Xxxxx XX, legal advisers in
Sweden to the Finance Parties.
SCHEDULE 3
CALCULATION OF THE MANDATORY COST
1. General
The Mandatory Cost recoverable by a Bank with respect to a Loan
for each of its Interest Periods is the rate (rounded upward, if
necessary, to four decimal places) notified to the Facility Agent
by that Bank no later than 10 Business Days prior to the end of
the relevant Interest Period and calculated in accordance with
paragraphs 2 to 4 below.
2. For a Bank lending from a Facility Office in the U.K.
(a) The relevant rate for a Bank lending from a Facility Office in the UK:
in relation to a Loan denominated in Sterling:
BY + S(Y-Z) + F x 0.01 % per annum = Mandatory Cost
100-(B + S)
in relation to any other Loan:
F x 0.01 % per annum = Mandatory Cost
300
where on the day of application of the formula:
B is the percentage of the Bank's eligible liabilities (in
excess of any stated minimum) which the Bank of England
requires the Bank to hold on a non-interest-bearing
deposit account in accordance with its cash ratio
requirements;
Y is LIBOR at or about 11.00 a.m. on that day for the
relevant Interest Period;
S is the percentage of the Bank's eligible liabilities
which the Bank of England requires the Bank to place as a
special deposit;
Z is the interest rate per annum allowed by the Bank of
England on special deposits; and
F is the charge payable by the Bank to the Financial
Services Authority under paragraph 2.02 or 2.03 (as
appropriate) of the Fees Regulations but where for this
purpose, the figure in paragraph 2.02b and 2.03b will be
deemed to be zero expressed in pounds per (pound)1
million of the fee base of the Bank.
(b) For the purposes of this Schedule 3:
(i) "eligible liabilities" and "special deposits" have the
meanings given to them at the time of application of the
formula by the Bank of England; and
(ii) "fee base" has the meaning given to it in the Fees
Regulations;
(iii) "Fees Regulations" means the Banking Supervision (Fees)
Regulations 2000 and/or any other regulations governing
the payment of fees for banking supervision.
(c) In the application of the formula, B, Y, S and Z are included in
the formula as figures and not as percentages, e.g. if B = 0.5%
and Y = 15%, BY is calculated as 0.5 x 15.
(d) (i) Each formula is applied on the first day of each Interest
Period.
(ii) Each rate calculated in accordance with the formula is,
if necessary, rounded upward to four decimal places.
(e) If the Facility Agent determines that a change in circumstances
has rendered, or will render, the formula inappropriate, the
Facility Agent (after consultation with the Banks) shall notify
the Obligors' Agent of the manner in which the Mandatory Cost will
subsequently be calculated. The manner of calculation so notified
by the Facility Agent shall, in the absence of manifest error, be
binding on all the Parties.
3. For a Bank lending from a Facility Office in a Participating
Member State
The relevant rate for a Bank lending from a facility office in a
Participating Member State is the percentage per annum notified by
that Bank to the Facility Agent as its cost of complying with the
minimum reserve requirements of the European Central Bank.
4. General
If a Bank fails to notify a rate under paragraph 2 or 3 above, the
Facility Agent will assume that the Bank has not incurred any such
cost, or that any rate previously notified to them by that Bank as
applying until further notice shall continue to so apply.
SCHEDULE 4
FORM OF REQUEST
To: [AGENT] as Facility Agent]/[SWINGLINE AGENT] as Swingline Agent]*
[cc: [AGENT]]**
From: [OBLIGORS' AGENT] Date: [ ], 2000
Autoliv, Inc.
US$850,000,000 Credit Agreement dated 13th November, 2000
1. We wish to utilise the [Revolving Credit]/[Swingline]* Facility as
follows:-
(a) Borrower: [ ]
(b) Facility: [A/B]
(c) Drawdown Date: [ ]
(d) Amount: [ ]
(e) Currency: [ ]
(f) Interest Period: [ ]
(g) Payment instructions: [ ]
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Request.
By:
[OBLIGORS' AGENT]
Authorized Signatory
------------------------------------
* Delete as appropriate
** Include for Request for the Swingline Facility
SCHEDULE 5
FORM OF NOVATION CERTIFICATE
To: [AGENT] as Facility Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
Autoliv, Inc.
US$850,000,000 Credit Agreement dated 13th November, 2000 (the "Agreement")
We refer to Clause 28.3 (Procedure for novations).
1. We [ ] (the "Existing Bank") and [ ] (the "New Bank") agree to the
Existing Bank and the New Bank novating the Existing Bank's
Commitment (or part) and/or rights and obligations referred to in
the Schedule in accordance with Clause 28.3 (Procedure for
novations).
2. The specified date for the purposes of Clause 28.3(c) is [date of
novation].
3. The Facility Office and address for notices of the New Bank for
the purposes of Clause 34.2 (Addresses for notices) are set out in
the Schedule.
4. This Novation Certificate is governed by English law.
THE SCHEDULE
Commitments/rights and obligations to be novated
[Insert relevant details]
[Existing Bank] [New Bank]
By: By:
Date: Date:
[New Bank]
[Facility Office Address for notices]
[AGENT]
By:
Date:
SIGNATORIES
Borrowers
AUTOLIV, INC.
By: /s/ Xxxx Xxxxxxxxxx /s/ Xxxx Xxxxxx
AUTOLIV ASP, INC.
By: /s/ Xxxx Xxxxxxxxxx /s/ Xxxx Xxxxxx
AUTOLIV AB
By: /s/ Xxxx Xxxxxxxxxx /s/ Xxxx Xxxxxx
Parent
AUTOLIV, INC.
By: /s/ Xxxx Xxxxxxxxxx /s/ Xxxx Xxxxxx
Arrangers
BANK ONE, NA
By: /s/ Xxx Xxxxxx
SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA XXXXXX XX (publ)
By: /s/ Xxxxxxx X. Xxxxx
Banks
Revolving Credit Banks
BANK ONE, NA
By: /s/ Jan-Xxxx Xxxxxxxx
SKANDINAVISKA ENSKILDA XXXXXX XX (publ)
By: /s/ Xxx Xxxxxx
THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ Xxx Xxxxxxx
LANDESBANK BADEN-WURTEMBERG, LONDON BRANCH
By: /s/ Xxxxxx Xxxxx
NORDDEUTSCHE LANDESBANK, STOCKHOLM BRANCH
By: /s/ Dirk Hunger
SOCIETE GENERALE, PARIS
By: /s/ Xxxx Xxxxxxxxx
SVENSKA HANDELSBANKEN AB (publ)
By: /s/ Xxxxxx Xxxxxxx
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: /s/ Xxxxx Xxxxxxx
BBL INTERNATIONAL (U.K.) LIMITED
By: /s/ Xxxx Xxxxx
MIZUHO BANK NEDERLAND BV
By: /s/ Xxxxx Xxxxxxx
COMMERZBANK INTERNATIONAL (IRELAND)
By: /s/ Xxxxxxx Xxxxx
COMMERZBANK AKTIENGESELLSCHAFT, ELMSHORN BRANCH
By: /s/ Xxxxxx Xxxxxxxx
BANCA COMMERCIALE ITALIANA SpA, LONDON BRANCH
By: /s/ Xxxxx Xxxxxxxxxx
BANCA MONTE DEI PASCHI DI SIENA SpA
By: /s/ Xxxxx Xxxxxxx
NATEXIS BANQUES POPULAIRES
By: /s/ Xxxxxxx Xxxxx
NORDBANKEN AB (publ)
By: /s/ Xxx Xxxxxxxx
Swingline Banks
BANK ONE, NA
By: /s/ Jan-Xxxx Xxxxxxxx
SKANDINAVISKA ENSKILDA XXXXXX XX (publ)
By: /s/ Xxx Xxxxxx
NORDDEUTSCHE LANDESBANK, NEW YORK BRANCH
By: /s/ Dirk Hunger
SVENSKA HANDELSBANKEN NEW YORK BRANCH
By: /s/ Xxxxxx Xxxxxxx
BANCA COMMERCIALE ITALIANA SpA, NEW YORK BRANCH
By: /s/ Xxxxx Xxxxxxxxxx
BANCA MONTE DEI PASCHI DI SIENA SpA
By: /s/ Xxxxx Xxxxxxx
NORDBANKEN AB (publ)
By: /s/ Xxx Xxxxxxxx
Facility Agent
SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA XXXXXX XX (publ)
By: /s/ Xxxxxxx X. Xxxxx
Swingline Agent
BANK ONE, NA
By: /s/ Jan-Xxxx Xxxxxxxx
S|E|B Merchant Banking
Debt Capital Markets
0 Xxxxxx Xxxxxx, Xxxxxx, XX0X 0XX
Tel: x00 00 0000 0000 o Fax: x00 00 0000 0000
E-mail: xxxxx.xxxxxxxx@xxx.xx.xx
FAX
To: Autoliv From: Xxxxx Xxxxxxxx
Attn: Xxxxxx Xxxxxx
------------------------------------------------------------------------------
Fax: x00 0 000000 Pages: 1
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CC: Date: 5th November, 2001
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|| Urgent || For Review || Please Comment || Please Reply || Please Recycle
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Autoliv, Inc/Autoliv ASP, Inc./Autoliv AB
USD 850M Facilities Agreement
Dated 13th November, 2000
Dear Xx Xxxxxx,
We write to you in our capacity as Facility Agent under the Agreement. Terms
defined in the Agreement shall, unless the context otherwise requires, have
the same meaning when used in this letter.
We refer to your fax dated 21st September, advising your intention to
exercise the Renewal Option as per Clause 2.7 of the Agreement.
For your information, Facility A will be renewed for a further 364 days from
12th November, 2001 to 11th November, 2002. The sum of the Banks' Facility A
Commitments will be reduced from USD 320,000,000.00 to USD 274,258,823.53 due
to Banca Monte dei Paschi, IntesaBci (form. Banca Commerciale Italiana),
Landesbank Baden-Wutternberg, and the The Tokai Bank choosing not to renew
their participation under this Facility. The remaining Banks' participations
under Facility A will remain unchanged.
Yours faithfully.
Xxxxx Xxxxxxxx
for and on behalf of
S|E|B Merchant Banking
Debt Capital Markets
S|E|B Merchant Banking
Debt Capital Markets
0 Xxxxxx Xxxxxx, Xxxxxx, XX0X 0XX
Tel: x00 00 0000 0000 o Fax: x00 00 0000 0000
E-mail: xxxxx.xxxxxxxx@xxx.xx.xx
FAX
To: The Participants From: Xxxxx Xxxxxxxx
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Fax: Pages: 2
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CC: Date: 12th December, 2001
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Autoliv, Inc./ Autoliv ASP, Inc./ Autoliv AB
USD 850M Facilities Agreement
Dated 13th November, 2000 (the "Agreement")
Dear Sirs
We write to you in our capacity as Facility Agent under the Agreement. Terms
defined in the Agreement in this letter shall, unless the context otherwise
requires, have the same meaning when used herein.
Clause 19.22 of the Agreement contains financial covenants for Autoliv, Inc,
and its Subsidiaries (the "Group") which are Net Interest Bearing Debt to
EBITDA and Operating Profit to Interest Expense. The Borrowers wish to
clarify the interpretation of the definition of EBITDA and Operating Profit
under the Agreement.
The Borrowers request that the write-offs and provisions (identified as
unusual items) in the Group's interim report for the third quarter 2001 be
excluded from the calculation of EBITDA and Operating Profit. Although
deducted at operating income level, these items are clearly of a one-off
nature.
In the third quarter 2001, the Group reported unusual items of a total
negative value of USD 65 million, of which USD 63 million do not affect the
Group's cash flow. The Borrowers have requested that they only include the
USD 2 million that has a cash effect in the calculation of EBITDA and
Operating Profit in respect to the calculation of the financial covenants
under the Agreement. The USD 63 million related to provisions for
restructuring and asset write-offs of the Seat Sub-System division, costs for
moving the US and the Swedish textile operations to Mexico and Poland and
additional costs for the partial integration of a former OEA plant into the
main US inflator operations.
Bank One, NA and SEB Merchant Banking, in their capacity as Arrangers,
support the above interpretation of the Agreement, since non-recurring items
are generally not included in operating profit and EBITDA.
In the event that we have not heard otherwise from you before the end of
business on Thursday 20th December, we will assume that we have your consent
to the above interpretation. Please do not hesitate to call Asa Samuelsson,
Xxxxxxxx Xxxxx or the undersigned (tel. x00 00 0000 0000) if you have any
questions.
Yours faithfully
Xxxxx Xxxxxxxx
for and on behalf of
S|E|B Merchant Banking
Debt Capital Markets
S|E|B
Fax:
To: From:
Xxxxxx Xxxxxx Johan Sonandar
-------------------------------------------------------------------------------
Company: Department:
Autoliv AB MB/DCM
-------------------------------------------------------------------------------
Fax: Fax:
x00 0 0000000 x00 00 0000 0000
Telephone:
x00 00 0000 0000
-------------------------------------------------------------------------------
Date: Pages, including this: E-mail:
6th June 2002 3 xxxxx.xxxxxxxx@xxx.xx.xx
-------------------------------------------------------------------------------
Autoliv, Inc./Autoliv ASP, Inc./Autoliv AB
USD 804 Million (orig. USD 850 Million) Facilities Agreement
Dated 13th November 2000 (the "Agreement")
Ladies and Gentlemen:
We write to you in our capacity as Facility Agent under the Agreement. Terms
defined in the Agreement shall, unless the context otherwise requires, have
the same meaning when used herein. We hereby notify you of the following
changes to details concerning the Facility Agent:
1. Any reference in the Agreement to SEB Merchant Banking,
Skandinaviska Enskilda Xxxxxx XX (publ) in its capacity as Facility
Agent shall be replaced with SEB Merchant Banking, Debt Capital
Markets, a unit within Skandinaviska Enskilda Xxxxxx XX (publ).
2. Any previous payment instructions for payments to the Facility Agent
shall be replaced with effect from 13th June 2002 as per the
attached sheet. Any payments made with value date prior to or on
13th June 2002 shall be paid to previously advised accounts in
favour of SEB, London.
3. The current address and facsimile number of the Facility Agent in
Clause 34.2(d) (Addresses for notices) of the Agreement shall as of
13th June 2002 be replaced with the following:
(i) for notices relating to Clauses 5 (Revolving Loans), 6
(Swingline Loans), 7 (Repayment), 9 (Interest Periods), 10
(Interest), 11 (Optional Currencies) and 22 (Fees):
Name: Xxxxxxxxx Xxxxxxx / Xxxxx Xxxxxxxxxx
Department: SEB MB Foreign Credit Administration
Address: Xxxxxxxxxx 000
000 00 Xxxxxxxxx
Xxxxxx
Telephone no: x00 0 0000000 / x00 0 0000000
Facsimile no: x00 0 0000000
E-mail: xxxxxxxxx.xxxxxxx@xxx.xx / xxxxx.xxxxxxxxxx@xxx.xx
(ii) for any other notices:
Name: Xxxxx Xxxxxxxx / Xxxx Xxxxxx
Department: SEB Debt Capital Markets
Address: Xxxxxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
Telephone no: x00 00 0000 0000 / x00 00 0000 0000
Facsimile no: x00 00 0000 0000 / x00 00 0000 0000
E-mail: xxxxx.xxxxxxxx@xxx.xx.xx / xxxx.xxxxxx@xxx.xx.xx
The telex number referred to in Clause 34.2(d) should cease to be used.
All the changes above are of an administrative nature only and do not in any
way effect the rights and obligations of any of the Parties to this
Agreement.
Kind regards,
Xxxxx Xxxxxxxx
SEB
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL)
---------------------------------------
Standard settlement instructions for foreign exchange and money
market transactions
All payments should be marked for account of SEB, STOCKHOLM (swift code
XXXXXXXX) with reference AUTOLIV / FOREIGN CREDIT ADMINISTRATION
Bank names
Country Curr. Acc. No. City Swift Code
------- ----- -------- ---- ----------
Canada CAD Royal Bank of Canada Toronto XXXXXXX0
9591142-588-3
Denmark DKK Unibank Copenhagen UNIBDKKK
5000403389
EU EUR SEB Stockholm XXXXXXXX
Via EBA-clearing
Hong Kong HKD Standard Chartered Bank Hong Kong XXXXXXXX
41109495401
Japan JPY Bank of Tokyo-Mitsubishi Tokyo XXXXXXXX
653-0438839
Norway NOK SEB Oslo ESSENOKX
9750 03 00020
Singapore SGD SEB Singapore ESSESGSG
38409089915
South Africa ZAR Standard Bank of South Africa Johannesburg XXXXXXXX
7555660
Sweden SEK SEB Stockholm XXXXXXXX
5565 10 00631
Switzerland CHF UBS Zurich XXXXXXXX 00X
023000000 6622205 0000X
XX XXX XXX Xxxxxx XXXXXX0X / Sort Code
19000019 40-48-65
USA USD Bank of New York New York XXXXXX0X / ABA
000 0000000 000-000-000
