EXHIBIT 4.5
THIS SALE AND PURCHASE AGREEMENT is made as a DEED on 4 September 2002
BETWEEN:
(1) ABB FINANCIAL SERVICES B.V. (a company incorporated in The Netherlands)
whose corporate seat is Xxxxxxxxxxxx Xxxxxxxxxxx 00, 0000 XX Xxxxxxxxxx,
Xxx Xxxxxxxxxxx (the VENDOR);
(2) GENERAL ELECTRIC CAPITAL CORPORATION (incorporated in the State of
Delaware) whose principal office is at 000 Xxxx Xxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, Xxxxxx Xxxxxx of America (the PURCHASER); and
(3) ABB LTD (incorporated in Switzerland) whose corporate seat is
Xxxxxxxxxxxx. 00, 0000 Xxxxxx, Xxxxxxxxxxx (the ABB GUARANTOR).
WHEREAS:
(A) The Vendor and its Affiliates are the beneficial owners of the share capital
of those companies set out in Schedule 2 (Particulars of the SF Group).
(B) With a view to selling the SF Business to the Designated Purchasers, the
Vendor has agreed to sell or procure the sale by the Designated Vendors and the
Purchaser has agreed to purchase or procure the purchase by the Designated
Purchasers, of the Shares and the Business Assets for the consideration and upon
the terms set out in this Agreement.
(C) The ABB Guarantor is party to this Agreement for the purposes of
guaranteeing the obligations of the members of the ABB Group under the
Transaction Documents and the Specified Obligors in respect of the Specified
Obligations.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Words and expressions used in this Agreement shall have the meanings set
out in Schedule 1 (Interpretation), unless the context requires otherwise.
1.2 The Schedules and Appendices form part of this Agreement and shall have
the same force and effect as if set out in the body of this Agreement and any
reference to this Agreement shall include the Schedules and Appendices.
1.3 The Disclosure Letter has such contractual effect as is expressly
provided herein (or therein) but does not form part of this Agreement. In the
event of any conflict between provisions of the Disclosure Letter and this
Agreement the provisions of this Agreement shall prevail.
1.4 If there is any conflict between the terms of this Agreement and the
terms of a Local Transfer Agreement, then the terms of this Agreement shall
prevail except to the extent that such Local Transfer Agreement implements a
transfer in accordance with this Agreement or contains provisions required under
applicable law and/or
Page 1
CONFORMED COPY
regulation in the relevant jurisdiction and provided that doing so does not
impose any additional obligations and/or liabilities on any party.
2. SALE OF THE SHARES AND BUSINESS ASSETS AND CONSIDERATION
2.1 Subject to and in accordance with the terms of this Agreement and
pursuant to the Local Transfer Agreements:
(a) the Vendor shall sell and transfer or procure the sale and transfer by
the relevant Share Vendor in each case with full title guarantee, and
the Purchaser shall purchase or procure the purchase by the relevant
Share Purchaser, of those Shares set out opposite the relevant Share
Vendor's name in column 6 of Part B of Schedule 2 (Particulars of the SF
Group) as at and with effect from Completion, free from any Encumbrances
(other than provided by legislation, including without limitation any
regulation promulgated thereunder), together with all rights attached to
them (including, without limitation, the right to receive dividends and
other distributions declared on or after the Completion Date);
(b) subject to clause 2.1(c) below, the Vendor shall sell, or shall procure
the sale by the relevant Business Asset Vendor, and the Purchaser shall
purchase, or procure the purchase by the relevant Business Asset
Purchaser, of the Business Assets free from any Encumbrances other than
Permitted Encumbrances, and ownership and risk in the Business Assets
shall pass to the relevant Business Asset Purchaser as at and with
effect from Completion. The title to the Business Assets which are
capable of delivery shall pass by delivery as at and with effect from
Completion; and
(c) the Vendor shall procure the sale and transfer by ABB Export Bank or
other relevant Business Asset Vendor, and the Purchaser shall procure
the purchase by the relevant Business Asset Purchaser, or, subject to
clause 2.3, any other member of the Purchaser's Group which, under
applicable law and/or regulation, is duly authorised and eligible to own
and/or hold the relevant Export Bank Transaction and to carry out and
perform the obligations thereunder, of the Export Bank Transactions free
from any Encumbrances (other than Permitted Encumbrances) as at and with
effect from Completion.
2.2 The parties acknowledge and agree that:
(a) the Shares and Business Assets shall be acquired by the Purchaser and
the Designated Purchasers in accordance with the Acquisition Structure
or as otherwise specifically provided in this Agreement;
(b) the transfer of the Shares and the Business Assets shall be effected by
the proposed share and asset transfers and other arrangements (including
the Local Transfer Agreements) set out or referred to in clause 6; and
(c) nothing in this Agreement or any of the other Transaction Documents
shall transfer to the Purchaser or any Designated Purchaser any of the
Excluded
Page 2
CONFORMED COPY
Assets, Excluded Liabilities, Excluded Businesses, Excluded Claims,
Excluded Contracts or Excluded Companies.
2.3 The Vendor and the Purchaser hereby agree that:
(a) if at any time prior to Completion either of them seeks to alter or
modify the Acquisition Structure in any way whatsoever, such alteration
or modification shall require the consent of the other (such consent not
to be unreasonably withheld or delayed) and shall be required to be
agreed by them not less than five (5) Business Days prior to the
Completion Date provided that, in determining whether such consent can
be reasonably withheld or delayed, each such party shall take due
account of (i) any likely resultant material delay to the Completion
Date or material adverse effect on any party's ability (or the ability
of any member of its respective Group) to meet its obligations under
this Agreement or any other Transaction Documents; and (ii) the
respective benefits and detriments of the altered or modified
Acquisition Structure to such party (and/or any member(s) of its Group),
including (without limitation) whether the proposal reasonably includes
any form of indemnity in respect of any additional losses, liabilities
and/or costs incurred or to be incurred by the party and/or its Group as
a result of such alteration or modification, other than in respect of
costs of preparing the documentation required for the implementation of
such alteration or modification and advice in connection therewith; and
(b) they shall each ensure that each member of their respective Groups who
is, from time to time, to act as a Designated Vendor or Designated
Purchaser, as the case may be, shall be able to perform its obligations
under the relevant Local Transfer Agreement and to do all other things
as may be necessary to complete the respective sale or purchase, as the
case may be, in full.
2.4 The aggregate consideration payable by the Purchaser (for itself and as
trustee for the Designated Purchasers) to the Vendor (for itself and as trustee
for the Designated Vendors) for the Shares and the Business Assets (other than
the Export Bank Transactions, which are subject to clause 2.4A below) shall be
US$433,700,000 to be satisfied by the Purchaser in cash on Completion in
accordance with clause 6.4, as adjusted by any payment or repayment to be made
in accordance with clause 2.5.
2.4A As consideration for the Export Bank Transactions, the Purchaser shall
pay or procure payment of an amount equal to the Estimated ABB Export Bank
Outstanding Loan Balance to the Vendor (on behalf of ABB Export Bank) to be
satisfied on Completion in accordance with clause 6.4, as adjusted by any
payment or repayment to be made in accordance with clause 2.5.
2.5 If:
(a) the Final Consideration is:
(i) greater than the Initial Consideration, the Purchaser shall pay
(for itself and as trustee for the Designated Purchasers) an
amount equal to the difference between the Final Consideration
and the Initial
Page 3
CONFORMED COPY
Consideration (on a US$ for US$ basis) to the Vendor (for
itself and as trustee for the Designated Vendors); or
(ii) less than the Initial Consideration, the Vendor shall pay (for
itself and as trustee for the Designated Vendors) an amount
equal to the difference between the Initial Consideration and
the Final Consideration (on a US$ for US$ basis) to the
Purchaser (for itself and as trustee for the Designated
Purchasers),
in each case by electronic funds transfer by the seventh (7th) Business
Day after the final agreement or determination under clause 7 of the
Final Consideration pursuant to the Final Completion Balance Sheet (the
FINAL SETTLEMENT DATE) together with any further amount equivalent to
interest pursuant to clause 2.7; or
(b) the Final Consideration equals the Initial Consideration, then, for the
avoidance of doubt, no payment shall be made in respect of this clause
2.5.
2.6 In relation to the Specified Receivables Agreement, if the Valuation is:
(a) less than the Draft ABB Valuation (as defined in the Specified
Receivables Agreement), the Purchaser shall pay an amount equal to the
Specified Receivables Adjustment Payment, converted into US$ at the
Exchange Rate as at Completion, to the Vendor; or
(b) greater than the Draft ABB Valuation, the Vendor shall pay an amount
equal to the Specified Receivables Adjustment Payment, converted into
US$ at the Exchange Rate as at Completion, to the Purchaser
(notwithstanding that such amount is a negative number),
in each case by electronic funds transfer on the Final Settlement Date together
with any further amount equivalent to interest pursuant to clause 2.7.
2.7 The party (if any) making a payment under clause 2.5 or clause 2.6 shall
pay, together with the sum to be paid thereunder, a further amount equivalent to
the interest thereon at the annual rate equal to LIBOR, as if accrued from day
to day from (and including) the Completion Date up to (but excluding) the date
of actual payment in full and to be calculated on the basis of a 360 day year.
If an amount payable pursuant to clause 2.5 or clause 2.6, including the amount
equivalent to interest payable pursuant to this clause 2.7, has not been
discharged by or on the seventh (7th) Business Day after the Final Settlement
Date, the annual rate of interest payable pursuant to this clause 2.7 for the
period from (and including) the eighth (8th) Business Day after the Final
Settlement Date to (but excluding) the date of actual payment in full of the
amount due pursuant to clause 2.5 or clause 2.6, shall be increased to the
annual rate equal to LIBOR plus 2 percentage points.
2.8 If any payment is made by the Vendor (for itself and as trustee for the
relevant member(s) of the ABB Group) to the Purchaser (for itself and as trustee
for the relevant member(s) of the Purchaser's
Page 4
CONFORMED COPY
Group) pursuant to a Claim made by the Purchaser (for itself and/or as trustee
for the relevant member(s) of the Purchaser's Group) such payment shall so far
as possible be treated as a reduction in the Final Consideration by a matching
amount and where such payment is specifically referable to specific Shares or a
specific SF Group Company or SF Group Companies or Business Asset(s), a
reduction in the portion of the Final Consideration apportioned to such Shares
or SF Group Company or SF Group Companies or Business Asset(s). Where any
payment is not specifically referable to specific Shares or a specific SF Group
Company or SF Group Companies or Business Asset(s), the apportionment of the
Final Consideration shall be treated as having been reduced PRO RATA.
2.9 Subject to clause 2.8 above, the Vendor (for itself and as trustee for
the relevant member(s) of the ABB Group) and the Purchaser (for itself and as
trustee for the relevant member(s) of the Purchaser's Group) shall agree the
apportionment of the Initial Consideration and the Final Consideration referred
to in this clause 2 between the Shares and the Business Assets in accordance
with and on the basis set out in Schedule 16 (Apportionment).
2.10 Save as provided in clauses 10.25 to 10.27 in relation to the Key
Contracts, if at any time following Completion the Purchaser gives notice in
writing to the Vendor that any asset, contract, claim, right, liability or
shareholding (each an ARRANGEMENT) which forms part of the SF Business or has
otherwise been agreed to be transferred to a member of the Purchaser's Group,
has not been transferred to or is not vested in a member of the Purchaser's
Group:
(a) the Purchaser shall (at the sole cost of the Vendor) provide such
reasonable assistance to the Vendor as the Vendor reasonably requires
for the purposes of clause 2.10(b);
(b) subject to clause 2.12, the Vendor shall transfer, or procure the
transfer of, such Arrangement together with any benefit or sum paid or
accruing to any member of the ABB Group as a result of holding such
Arrangement from the date of Completion, as soon as practicable, to such
member of the Purchaser's Group as the Purchaser shall direct on terms
that no consideration is required to be provided or payable by the
relevant member of the Purchaser's Group for such transfer (other than
that already paid under this Agreement) and that, as a result of such
transfer the relevant member of the Purchaser's Group holds such
Arrangement in the same manner as otherwise contemplated by this
Agreement or any other Transaction Document; and
(c) the Vendor shall indemnify the Purchaser against any Costs incurred by
the Purchaser or any member of the Purchaser's Group (i) in relation to
such transfer; (ii) as a result of not holding such Arrangement for the
period from Completion until it is transferred to such member of the
Purchaser's Group as the Purchaser shall direct (in each case,
inclusive) in accordance with this clause 2.10; and/or (iii) arising
from or in connection with the implementation or performance of any
matter in clause 2.12 and/or the failure by any member of the ABB Group
to comply with any of its obligations under any of clauses 2.10 to 2.12.
2.11 If at any time following Completion the Vendor gives notice in writing
to the Purchaser or the Purchaser gives notice in writing to the Vendor that any
Page 5
CONFORMED COPY
Arrangement which does not form part of the SF Business and has not otherwise
been agreed to be transferred to a member of the Purchaser's Group has been
transferred to or is vested in a member of the Purchaser's Group:
(a) the Vendor shall (at its sole cost) provide such reasonable assistance
to the Purchaser as the Purchaser requires for the purposes of clause
2.11(b);
(b) subject to clause 2.12, the Purchaser shall, so far as it is able,
transfer, or procure the transfer of, such Arrangement, together with
any benefit or sum paid or accruing to any member of the Purchaser's
Group from Completion as a result of holding such Arrangement, as soon
as practicable, to such member of the ABB Group as the Vendor shall
direct on terms that no consideration is provided or payable by any
person for such transfer; and
(c) the Vendor shall indemnify the Purchaser against any Costs incurred by
the Purchaser or any member of the Purchaser's Group (i) in relation to
such transfer; or (ii) as a result of holding such Arrangement for the
period from Completion until it is transferred to such member of the ABB
Group as the Vendor shall direct (in each case, inclusive) in accordance
with this clause 2.11 or (iii) arising from or in connection with the
implementation or performance of any matter in clause 2.12 and/or the
failure by any member of the ABB Group to comply with any of its
obligations under any of clauses 2.10 to 2.12.
2.12 To the extent that any transfer referred to in clause 2.10(b) and
2.11(b) cannot be effected except by an assignment made with a specified
person's consent or by a novation agreement:
(a) this Agreement does not constitute an assignment or attempted assignment
if such would constitute a breach of the Arrangement or any agreement or
other document relating thereto;
(b) the Vendor and the Purchaser shall use all reasonable endeavours to
obtain (at the Vendor's cost) the relevant person's consent to the
assignment or to achieve the novation of the Arrangement;
(c) until the consent is obtained or a novation is achieved, the Vendor (in
the case of an Arrangement under clause 2.10(b)) or the Purchaser (in
the case of an Arrangement under clause 2.11(b)) shall (at the Vendor's
cost) do each act and thing reasonably requested of it by the Purchaser
(in the case of an Arrangement under clause 2.10(b)) or the Vendor (in
the case of an Arrangement under clause 2.11(b)) (each a TRANSFEREE), to
enable the Transferee to perform its obligations under or in connection
with such Arrangement; and
(d) in relation to any Arrangement under clause 2.10(b), after Completion
and until such Arrangement is assigned (with consent where required) or
novated to the Purchaser or the relevant member of the Purchaser's
Group, the Vendor shall (to the extent practicable and provided that to
do so would not constitute
Page 6
CONFORMED COPY
a breach or potential breach of the Arrangement or any agreement or
other document relating thereto):
(i) perform, or procure the performance by a member of the ABB
Group of, all obligations and exercise or procure the exercise
by a member of the ABB Group of all rights under the
Arrangement or any agreement or document relating thereto,
provided that the Purchaser shall:
(A) make available to the Vendor such employees of the
Purchaser's Group as are reasonably necessary for such
performance; and
(B) pay the reasonable costs incurred by the Vendor of such
performance;
(C) indemnify the Vendor and each member of the ABB Group
against all reasonable costs suffered or incurred as a
result of any failure on the part of the Purchaser or the
relevant member of the Purchaser's Group to perform those
obligations set out in (A) and (B) above; and
(ii) provide to the Purchaser or the relevant members of the
Purchaser's Group the benefit of the Arrangement (including,
without limitation, the enforcement of any rights thereunder)
provided that the Vendor shall not be obliged to make any
payment (in money or money's worth) unless it or any member of
its Group has first been paid the amount of such payment
concerned under or pursuant to the Arrangement.
2.13(a) The Vendor undertakes that it will procure the compliance of all of
the Designated Vendors with any obligation referred to in this Agreement
or any other Transaction Document as being an obligation of a Designated
Vendor or which it has undertaken to procure any Designated Vendor will
comply with, including, without limitation, if appropriate, the entering
into of and performing its obligations under the relevant Local Transfer
Agreement; and
(b) the Purchaser undertakes that it will procure the compliance of all of
the Designated Purchasers with any obligation referred to in this
Agreement or any other Transaction Document as being an obligation of a
Designated Purchaser or which it has undertaken to procure any
Designated Purchaser will comply with, including, without limitation, if
appropriate, the entering into of and performing its obligations under
the relevant Local Transfer Agreement,
and, failing which, each of the Vendor and Purchaser covenants that it shall
itself enter into or (with the consent of the other party, not to be
unreasonably withheld or delayed) direct another member of its Group to enter
into the relevant Local Transfer Agreement.
Page 7
CONFORMED COPY
2.14 Each of the Vendor and the Purchaser shall negotiate and agree (in each
case, acting reasonably) before the Completion Date the final form of each of
the Completion Documents and each of the Local Transfer Agreements, in each
case, to the extent that they are not in Agreed Form at the date of this
Agreement.
3. CONDITIONS TO COMPLETION
3.1 The obligations of the Vendor and the Purchaser to complete the sale and
transfer and purchase and acquisition of the Shares and the Business Assets
shall be conditional upon the following conditions having been fulfilled:
(a) completion by the Vendor of the Hive-Down and Transfer in accordance
with the provisions of Part C of Schedule 13 (Excluded Assets/Excluded
Contracts/ Excluded Businesses), and for the purposes of this Condition
(a) completion of the Hive-Down and Transfer shall mean compliance and
performance by the Vendor in full with the provisions, terms and
conditions of Schedule 13 (Excluded Assets/Excluded Contracts/Excluded
Businesses) and, in addition, in respect of those Excluded Assets,
Excluded Contracts, Excluded Liabilities, Excluded Claims and/or
Excluded Businesses marked with an asterix in Part A or Part B of
Schedule 13 (Excluded Assets/Excluded Contracts/Excluded Businesses)
that novation of such assets, contracts, liabilities, claims and
businesses to a relevant Hive Down Company has been implemented and
completed in full in accordance with the provisions of Part C of
Schedule 13 (Excluded Assets/Excluded Contracts/Excluded Liabilities);
(b) the European Commission having issued a decision that the proposed
acquisition and any matters arising therefrom (the MERGER) fall within
either Article 6.1(a) or Article 6.1(b) of Council Regulation (EEC)
No.4064/89, as amended, (the MERGER REGULATION) or following the
initiation of proceedings in relation to the Merger under Article
6(1)(c) of the Merger Regulation, the European Commission having issued
a decision in relation to the Merger pursuant to Article 8(2) of the
Merger Regulation or the Merger being deemed compatible with the common
market in accordance with Article 10(6) of the Merger Regulation,
provided that in the event of a decision (or decisions) being taken by
the European Commission pursuant to Article 9(3) of the Merger
Regulation (or having been deemed to have been taken pursuant to Article
9(5) of the Merger Regulation) or Article 6(1) of Protocol 24 to the EEA
Agreement to refer the whole or part of the Merger to the competent
authority or authorities of one or more European Union or relevant EFTA
states, all such competent authorities having approved the Merger (or
those parts of the Merger referred to them) or, having indicated that it
is not their intention to investigate the Merger (or the relevant parts
thereof);
(c) all waiting periods (including any extensions thereof) under the Xxxx
Xxxxx Xxxxxx Antitrust Improvements Act of 1976 of the United States, as
amended and the rules and regulations thereunder, (the HSR ACT) required
in connection with the Proposed Transaction having expired or been
terminated without either the Federal Trade Commission or the Department
of Justice having imposed any conditions;
Page 8
CONFORMED COPY
(d) in the event that a filing or filings are required in Brazil, the
relevant notification(s) having been filed with the relevant competition
authority in Brazil;
(e) in the event that the Purchaser concludes that such filings are
reasonable and notifies the Vendor of such within ten (10) days of the
date of this Agreement, any relevant competition filings in Australia
having been made and all applicable waiting and other time periods
(including extensions thereof) having elapsed under applicable
legislation or regulation and any relevant consents, approvals or
clearances having been obtained, unless the Vendor elects to treat the
relevant asset to which the filing relates as an Excluded Asset;
(f) all other competition filings that are necessary or, in the Vendor's and
the Purchaser's joint judgement, reasonable having been made, and all
applicable waiting and other time periods (including any extensions
thereof) having elapsed under the relevant applicable legislation or
regulation and the necessary consents, approvals or clearances
thereunder having been obtained;
(g) the fulfilment of any obligation to provide information to, or consult
with, any appropriate employee representative bodies in Norway and/or
The Netherlands;
(h) satisfaction of each legal or regulatory requirement, including any
relevant permit, consent, approval or waiver from the National
Association of Securities Dealers Inc. or the Swedish Financial
Supervisory Authority, non-satisfaction of which would (i) have the
effect of making the Proposed Transaction illegal or otherwise
prohibiting its consummation; or (ii) invalidate, cancel or to a
material extent negatively affect any previously granted permit,
licence, consent or approval by any regulatory body with jurisdiction
that is necessary to carry on the SF Business in the relevant
jurisdiction in the manner it has been carried out prior to the date of
this Agreement; or (iii) restrict, delay or otherwise materially
adversely affect the continuation of all and any part of the SF Business
(as conducted prior to the date of this Agreement);
(i) no Material Adverse Change having occurred which has not been remedied
in full in accordance with clause 15.4;
(j) the receipt by the Purchaser immediately before Completion of written
confirmation from the Vendor that it has complied with its obligations
under clause 4 and Schedule 14 (Conduct of the SF Business) or has
remedied in full any breach of such obligations in accordance with
clause 15.4; and
(k) all other regulatory or administrative licences, authorisations,
consents and other approvals for the transfer of the Shares and/or the
Business Assets and/or the continuation or conduct of any part of the SF
Business after Completion in the ordinary course as conducted prior to
the date of this Agreement that are necessary or, in the Vendor's and
the Purchaser's joint judgement, reasonable having been obtained.
Page 9
CONFORMED COPY
3.2 The Vendor and the Purchaser hereby undertake, each to the other, to use
their respective reasonable endeavours to procure that the Conditions are
fulfilled as soon as reasonably practicable after the date hereof and in any
event by the Longstop Date. The Vendor's obligation to use reasonable endeavours
in accordance with this clause 3.2 shall include, without limitation, the
provision to the Purchaser of such information regarding the ABB Group and the
SF Group as will enable the Purchaser to reach an informed determination as to
whether to make filings in any relevant jurisdiction and to make any such
filings in accordance with clauses 3.1, 3.3 and 3.5 and the applicable
legislation and regulation of the relevant jurisdiction. For the avoidance of
doubt, this clause 3.2 shall be without prejudice to the Vendor's obligations
under clause 4.1 and Schedule 14 (Conduct of the SF Business).
3.3 Without prejudice to clause 3.2 above, the Vendor shall (in relation to
(a), (b) and (e) below) and the Purchaser shall (in relation to (a) to (e)
below), as promptly as practicable take all reasonable steps within their
reasonable control (including making filings and notifications) to obtain all
permits, consents, approvals, waivers or actions of any governmental or
regulatory body or any other person which are required in order to complete the
Proposed Transaction and/or in order to conduct the SF Business after Completion
in the manner conducted prior to the date of this Agreement, including without
limitation:
(a) responding to requests for information from any such governmental or
regulatory body or other person in an appropriate manner (including, for
the avoidance of doubt and without limitation, the European Commission
and each governmental or regulatory body or any other person referred to
in clauses 3.1(c), (d), (e), (f), (g), (h) and (k), as appropriate);
(b) reasonably co-operating with and assisting the other party and any SF
Group Company to obtain any permits, consents, approvals, waivers or
actions of any governmental or regulatory body or other person which are
required for Completion and/or in order to conduct the SF Business after
Completion in the manner conducted prior to the date of this Agreement;
(c) notifying the Vendor, and providing copies (from which confidential
information which the Purchaser or any other member of the Purchaser's
Group reasonably considers to be commercially sensitive to it or any
other member of the Purchaser's Group and any third party information in
relation to which the Purchaser or any other member of the Purchaser's
Group is under a duty of confidentiality has been removed) of any
written communications from any such governmental or regulatory body or
other person in relation to obtaining any such permit, consent,
approval, waiver or action to the extent that any such written
communications are relevant to the Vendor or any SF Group Company which,
for the avoidance of doubt, shall include formal decisions of any such
body or person;
(d) where reasonably requested by the Vendor: (i) providing the Vendor (or
its nominated advisers) with draft copies (from which confidential
information which the Purchaser or any other member of the Purchaser's
Group reasonably considers to be commercially sensitive to it or any
other member of the
Page 10
CONFORMED COPY
Purchaser's Group and any third party information in relation to which
the Purchaser or any other member of the Purchaser's Group is under a
duty of confidentiality has been removed) of all written submissions and
communications to governmental or regulatory bodies or other persons,
where reasonably practicable, at such time as will allow the Vendor a
reasonable opportunity to provide comments on such submissions and
communications before they are submitted or sent, and (ii) amending all
such submissions or communications with regard to erroneous statements
of fact relating to the Vendor and its Affiliates in accordance with the
reasonable requirements of the Vendor, unless to do so would cause an
unreasonable delay to the process, and (iii) providing the Vendor (or
its nominated advisers) with copies of all such written submissions and
communications in the form submitted or sent (subject to the prior
removal of commercially sensitive or confidential information as above);
and
(e) each party shall keep the other reasonably informed as to the scope and
content of, and shall take into account any reasonable representations
made by the other party in respect of, information to be communicated in
meetings with or oral representations to any governmental or regulatory
bodies or other persons for the purposes of this clause and where one
party is to meet with such governmental or regulatory bodies or other
persons, it shall be in that party's sole discretion as to whether it is
practical and appropriate for the other party also to attend.
3.4 Without prejudice to clause 3.2 above, each of the Vendor and the
Purchaser shall, so far as is reasonably necessary and within its respective
control and as promptly as practicable, provide each other with such reasonable
assistance as the Purchaser or the Vendor (as the case may be) may request for
the purpose of fulfilling its respective obligations under clause 3.3 above,
including, without limitation, preparing and filing any filings required to be
filed by the Purchaser, Vendor or any SF Group Company, taking, or causing to be
taken, and doing, or causing to be done, all things necessary, proper or
advisable to consummate and make effective the Proposed Transaction under the
Securities Exchange Act of 1934, as amended, the Securities Act of 1933, as
amended, or any other laws relating to the Proposed Transaction (including,
without limitation the laws relating to the regulation of broker-dealers and
banks, the rules and requirements of any self-regulatory organisation, the New
York Stock Exchange, the National Association of Securities Dealers, Inc. or the
Municipal Securities Rulemaking Board). Subject to the provisions of clause 3.3,
the Vendor and the Purchaser shall promptly supply each other with any
information that may be required in order to effectuate any filings pursuant to
clause 3.3 above and this clause 3.4.
3.5 Without prejudice to the generality of its obligations under clauses 3.2
to 3.4, the Purchaser shall (in relation to (a) to (d) below) and the Vendor
shall (in relation to (d) below):
(a) make verbal or written contact with the European Commission as soon as
advisable following signing of this Agreement in the reasonable
judgement of the Purchaser's nominated advisers, having consulted with
and taking account
Page 11
CONFORMED COPY
of the reasonable opinion of the Vendor's nominated advisers in the
matter, and (subject to compliance with the applicable regulations and
market practice) shall inform the European Commission of the signing of
this Agreement in such manner as the Purchaser's nominated advisers
consider appropriate;
(b) consult with the Vendor with a view to finalising the draft Form CO as
soon as practicably possible following the date of this Agreement and
submit such draft Form CO to the European Commission as promptly as
reasonable following finalisation;
(c) file the final Form CO as soon as advisable following signing of this
Agreement in the reasonable judgment of the Purchaser's nominated
advisers, after having consulted with the Vendor's nominated advisers
and taking account of their reasonable opinion in the matter, following
indication from the European Commission that the draft Form CO is in a
form acceptable to it and in a time frame which is calculated to result
in the approval from the European Commission to be obtained as soon as
is reasonably practicable; and
(d) endeavour to be ready to file as soon as is reasonably practicable after
the date of this Agreement, with the Federal Trade Commission or the
Anti-Trust Division of The United States Department of Justice the
notification and report form required for the Proposed Transaction
pursuant to the HSR Act and shall, once ready to file, coordinate with
each other so as to effect such filings on the same day, being the date
on which the Purchaser (or its nominated advisors) shall in its (or
their) reasonable judgement, having consulted with and taking account of
the reasonable opinion of the Vendor's nominated advisers in the matter,
consider to be the earliest date on which it is advisable to file.
3.6 Notwithstanding its undertaking in clause 3.2 to make reasonable efforts
to procure that the Conditions are fulfilled, neither the Purchaser nor any
other member of its Group shall be under any obligation to make any Proposals
which would entail it divesting, or holding separate, or placing any limitations
or restrictions whatsoever on its freedom to act with respect to or retaining:
(a) any property, assets, or business in which it or any member of the
Purchaser's Group has any interest whatsoever, whether directly or
indirectly; or
(b) all or any of the Shares or Business Assets or all or any part of any
property, assets or business of the SF Business or in which any SF Group
Company has any interest, whether directly or indirectly, if any such
Proposals would, together, if accepted, have a material adverse effect
(as defined in clause 3.7) on the SF Business.
3.7 For the purposes of clauses 3.6 and 3.8 only, the phrase MATERIAL
ADVERSE EFFECT on the SF Business shall mean any effect that would:
(a) reduce the amount of Finance Receivables attributable to the SF Business
by more than US$100 million; or
Page 12
CONFORMED COPY
(b) reduce by more than 10 per cent. the number of Employees carrying out
any particular specialist role within any Operating Platform (in
particular staff specialising in any of portfolio management,
syndication of debt, collections, IT or operations) or entail the
transfer of the following key personnel: Xxxxxx Xxxxxxxx, Xxxxxx
Lidefelt, Xxx Xxxxxxx, Xxxxx Xxxxxxxxxx, Xxxx Xxxxxxxxx, Xxxxxx Xxxxx,
Xxxxxx Xxxxxx and Fabio Cosimetti; or
(c) reduce by more than 10 per cent. the number of Employees specialising in
the origination of new business for any individual Operating Platform;
or
(d) entail any transfer, amendment or limitation of vendor/dealer contracts
together representing more than 10 per cent. of new business originated
during the course of the last calendar year for any Operating Platform;
or
(e) entail any Finance Receivables, assets, contracts or personnel belonging
to any Operating Platform where more than 10 per cent. of the Operating
Platform's business consists of Complex Finance Receivables being
transferred, restricted or limited; or
(f) restrict or limit the manner of operation of any Operating Platform
other than restrictions or limits which give effect to any transfer of
personnel or contracts contemplated by sub-clauses (a) to (e) above so
as to prevent the Purchaser or the relevant member of the Purchaser's
Group from continuing to operate such Operating Platform in the manner
in which it had been operated during the three (3) years prior to the
date of this Agreement, or from integrating it into pre-existing
businesses of the Purchaser; or
(g) entail any further divestments of or limitation of any elements or parts
of the SF Business or any Operating Platform other than those falling
within the categories and thresholds set out in sub-clauses (a) to (e)
above.
3.8 The Purchaser will further retain the right, but shall be under no
obligation whatsoever, to make a Proposal which would, if accepted have a
material adverse effect on the SF Business (as defined in clause 3.7) if, in its
sole discretion, it chooses to do so.
3.9 The Purchaser shall, if required in order to fulfil its obligations
under clause 3.2, communicate to a relevant governmental or regulatory body or
other person with jurisdiction, one or more Proposals which seek to address such
competition concerns as may be identified by that body or person.
3.10 If such Proposal (or if in the event that Proposals are made to more
than one governmental or regulatory body or other person with jurisdiction, such
Proposal taken in combination with the Proposals made to any other body) meets
or exceeds any of the limits on the Purchaser's obligations as defined in clause
3.6 and if, two (2) weeks from the date on which that Proposal was communicated,
the Purchaser concludes that, based on indications (either written or verbal)
received from the relevant governmental or regulatory body or other person with
jurisdiction that such body or person is unlikely to give its approval to the
Proposed Transaction the Purchaser shall be entitled, in its sole discretion, to
withdraw any relevant filings from
Page 13
CONFORMED COPY
such governmental or regulatory body or other person. The determination of
whether the relevant governmental or regulatory body or other person with
jurisdiction is unlikely to give approval to the Proposed Transaction following
the receipt of such a Proposal shall be made by the Purchaser and the
Purchaser's advisors alone but before making such determination the Purchaser
shall give the Vendor the opportunity to demonstrate, if such is the case, that
the transaction is in fact likely to be approved.
3.11 With regard to the required approval described in clause 3.1(b) the
Purchaser agrees that a decision by the European Commission to initiate
proceedings under Article 6(1)(c) of the EU Merger Regulation, shall not in
itself be justification for a decision to withdraw any relevant filings from the
relevant governmental or regulatory body or other person with jurisdiction.
3.12 In the event that the Purchaser exercises its option under clause 3.10
to withdraw relevant filings from any governmental or regulatory authority or
other person having jurisdiction over the Proposed Transaction, the Purchaser
shall further be entitled, by written notice to the Vendor, to terminate this
Agreement forthwith, and for the avoidance of doubt, without being required to
wait until the Longstop Date, in which event the provisions of clause 15.10
shall apply.
3.13 In the event that a Proposal is accepted by any governmental or
regulatory body or other person with jurisdiction under which the Purchaser
agrees to sell or procure the sale to a third party of any property, assets or
business of any SF Group Company (individually or together CONDITION ASSETS),
the Vendor shall fully indemnify the Purchaser on demand for (i) any Direct Loss
suffered, directly or indirectly, on the sale of Condition Assets (other than
Finance Receivables); (ii) Compensation to the extent that the Condition Assets
are comprised of Finance Receivables; (iii) any and all Costs incurred or
suffered, directly or indirectly, in connection with the sale of any Condition
Assets; (iv) if applicable, an amount equal to 20 per cent. of the 2001 volume
of leases or loans (A) originated by the individuals referred to in clause
3.7(c) who are transferred and (B) originated under any vendor/dealer contracts
which are transferred or terminated pursuant to clause 3.7(d) (provided that to
the extent that the sale of any of the Condition Assets gives rise to a Direct
Gain the Purchaser shall retain 25 per cent. of the amount of such gain) (the
aggregate of all such amounts to be the Condition Asset Payment). The aggregate
amount of all payments under this clause 3.13 (other than and excluding any
constituting Direct Loss) shall not exceed 15 per cent. of the book value of the
Condition Assets.
3.14 If the Purchaser agrees to sell any Condition Assets in accordance with
clause 3.13, the Purchaser shall pay at Completion part of the Initial
Consideration in the amount of the Condition Asset Escrow Amount into the
Condition Asset Escrow Account.
3.15 The funds in the Condition Asset Escrow Account shall be held on the
following terms:
(a) any bank or other charges arising on the Condition Asset Escrow Account
shall be charged to the Condition Asset Escrow Account; and
Page 14
CONFORMED COPY
(b) any interest or profit generated on the Condition Asset Escrow Account
(subject to any deduction of Tax at source or any bank or other charges
properly charged to the Condition Asset Escrow Account) (for the
purposes of this clause 3.15, the INCOME) shall accrue to and form part
of the Condition Asset Escrow Account. If part only of the funds in the
Condition Asset Escrow Account are paid out, they shall have added to
them the corresponding proportion of the Income.
3.16 If following the completion of the sale of any Condition Assets, the
Vendor is required to make a Condition Asset Payment to the Purchaser, the
Purchaser and the Vendor shall issue joint written instructions to the Bank to
release from the Condition Asset Escrow Account to the Purchaser the lesser of
(A) the amount of the balance of the Condition Asset Escrow Account and (B) the
amount of the Condition Asset Payment, within five (5) Business Days of the
completion of the sale of any Condition Assets. Any balance in the Condition
Asset Escrow Account following such payment shall be released to the Vendor in
the same manner and at the same time. The Vendor's obligation in clause 3.13 is
not limited by the amount standing to the credit of the Condition Asset Escrow
Account from time to time.
3.17 The Conditions shall be deemed to have been fulfilled when they have
been satisfied within the terms described in clause 3.1 above. If either party
becomes aware that any Condition is or is reasonably likely to become incapable
of being satisfied by the Longstop Date, it shall immediately notify the other
party in writing.
3.18 Each of the Purchaser and the Vendor shall notify the other in writing
as soon as it becomes aware that any or all of the Conditions have been
fulfilled (save where any notification from any third party shall, on its face,
have been given to both parties simultaneously).
3.19 The Purchaser shall be entitled in its absolute discretion, by written
notice to the Vendor, to waive any or all of the Conditions set forth in clause
3.1(a), (g) and (h) in whole or in part.
3.20 Either party may, in its absolute discretion, by written notice to the
other party, waive the Condition in clause 3.1(d) provided that in respect of
such Condition it has fulfilled and complied in full with its obligations
pursuant to clauses 3.2 and 3.3 (relating to the parties co-operating to fulfil
the Conditions and to obtain permits, consents, approvals or waivers).
3.21 The first Business Day on which or by which, prior to 4p.m., all of the
Conditions shall have been fulfilled or waived in accordance with this clause 3
shall be deemed to be the RECORD DATE.
3.22 In the event that any of the Conditions:
(i) has not been fulfilled (or waived), or
(ii) is or becomes incapable of satisfaction,
Page 15
CONFORMED COPY
on or before the Longstop Date, the provisions of clause 15.8 and clause 15.9
respectively shall apply.
4. ACTION PENDING COMPLETION
4.1 Subject to clauses 4.2 and 4.4 to 4.7A during the period from signature
of this Agreement until Completion the Vendor shall comply with its obligations
under 0 (Conduct of the SF Business) and shall implement the Hive-Down and
Transfer in accordance with its pre-Completion obligations under Part C of
Schedule 13 (Excluded Assets/Excluded Contracts/Excluded Businesses).
4.2 It is acknowledged and agreed that the extent of new business undertaken
in respect of new Infrastructure/Mid Market Financial Assets has been
substantially reduced since the Accounts Date, and that such reduction shall not
constitute a breach of clause 4.1.
4.3 Pending Completion, the Vendor shall use reasonable endeavours to
procure that:
(a) subject to the terms of the Confidentiality Undertaking of GE Capital
Europe Limited dated 21 December 2001; and
(b) subject to and in accordance with any applicable legislation and
regulation of any relevant jurisdiction requiring, INTER ALIA, the
maintenance of confidentiality;
the Purchaser and the Purchaser's representatives shall, in addition to the
other rights of access and/or to information granted pursuant to this Agreement,
be allowed upon two (2) Business Days written notice to Xxxxxxx Xxxxxx and
Xxxxxx Shindleman during Working Hours, reasonable access to the books, records
and employees of the SF Business for the purpose of planning integration of the
SF Business with activities of the Purchaser's Group or such other purposes as
the Purchaser may reasonably require.
4.4 For the avoidance of doubt, nothing in clause 4.1 and Schedule 14
(Conduct of the SF Business) shall operate so as to restrict or prevent:
(a) the Hive-Down and Transfer in accordance with Part C of Schedule 13
(Excluded Assets/Excluded Contracts/Excluded Businesses);
(b) in relation to the Transfer Employees, the preparation of the transfer
of any of the Transfer Employees to a Transfer Employees Transferee;
(c) the implementation of the Pre-Sale Reorganisation in accordance with its
terms;
(d) any matter undertaken (or to be undertaken) by the Vendor or a member of
the ABB Group pursuant to and in accordance with clause 15.3 during a
Cure Period to the extent that such effects an Acceptable Cure of or in
a manner which the Purchaser reasonably finds acceptable, otherwise
remedies in full:
Page 16
CONFORMED COPY
(i) a Material Adverse Change or alleged Material Adverse Change;
or
(ii) a Relevant Breach or alleged Relevant Breach;
(e) the appointment by the Vendor or any member of the ABB Group (including
for the avoidance of doubt any member of the SF Group prior to
Completion) of and the instructions to the Vendor's Accountants to carry
out the audit required under clause 7.2 in relation to the Completion
Balance Sheet;
(f) the completion or performance of any obligations undertaken (or to be
undertaken) pursuant to any contract or arrangement entered into prior
to the date of this Agreement and disclosed in the Disclosure Letter;
(g) any matter required to be undertaken in relation to the Proposed
Transaction;
(h) any act or omission which any SF Group Company or any other member of
the ABB Group is required to take or omit to take by any applicable law
or regulation;
(i) the repayment of borrowings or indebtedness in the nature of borrowings
or the entry into of Derivative Transactions or the replacement of
Derivative Transactions on arm's length terms; or
(j) the transfer of any Employee to a member of the SF Group,
(each a PERMITTED ACTION), or any such steps or activities which are necessary
to implement any of the Permitted Actions.
4.5 The Vendor shall procure (to the extent that it is legally able to do
so) that each SF Group Company shall use its Cash (and for the purposes of this
clause, Cash shall include the loan between ABB Credit B.V. and the World
Treasury Center), to the extent that such Cash is not required for working
capital purposes, to pay off and reduce any Intra-Group Indebtedness owed by it
to any member of the ABB Group (other than an SF Group Company) on or prior to
Completion.
4.6 The Vendor shall procure that on or prior to Completion ABB Structured
Finance Limited (GBFSF), ABB Structured Finance BV (NLFSF), ABB Credit BV
(NLCRE) and ABB Credit Holding BV (NLCRD) (to the extent they are legally able
to do so) each distribute, as a dividend to be treated as being made from earned
surplus, all of their retained earnings to their respective shareholders, ABB
Asea Xxxxx Boveri Ltd, ABB Credit Holding BV (NLCRD), ABB Credit Holding BV
(NLCRD) and ABB Structured Finance AB (SECRE) and the Vendor and, if necessary
(and to the extent legally permissible), the Vendor shall procure that the
relevant company borrows money to pay such dividend.
4.7 It is acknowledged and agreed that the SF Group may undertake New
Transactions in respect of Infrastructure/Mid Market Finance Business and/or
Small Ticket Finance Business provided, however, that with respect to New
Transactions with an Exposure of US$1 million or more:
Page 17
CONFORMED COPY
(a) the Vendor shall notify the Purchaser in writing on a fortnightly basis
of all New Transactions entered into between the date of this Agreement
and the Record Date (including reasonable details of each such New
Transaction and its terms);
(b) any New Transaction not notified to the Purchaser by the Record Date in
accordance with sub-clause (a) above shall, unless the Purchaser
otherwise consents in writing, automatically become an Excluded Asset,
excluded from the SF Group and the SF Business in accordance with the
provisions of Schedule 13 (Excluded Assets/Excluded Contracts/Excluded
Businesses), Part C;
(c) at any time after the Conditions referred to in clause 3.1(b), (c), (d)
and (e) have been fulfilled or waived, no New Transactions shall be
entered into without the prior written consent of the Purchaser; and
(d) at any time prior to the Conditions referred to in clause 3.1(b), (c),
(d) and (e) having been fulfilled or waived, with respect to any New
Transactions entered into but not otherwise dealt with in sub-clauses
(b) or (c) above, the Purchaser may, by giving notice to the Vendor on
or before the Record Date require that the New Transaction in question
become an Excluded Asset, excluded from the SF Group and the SF Business
in accordance with the provisions of Part C of Schedule 13 (Excluded
Assets/Excluded Contracts/Excluded Businesses).
4.7A The Vendor shall provide to the Purchaser management reports in relation
to the SF Business, delinquency reports in the usual form relating to the SF
Business and the Watch Asset Report, in each case, for the preceding calendar
month as soon as practicable using all reasonable endeavours and, in any event,
in respect of the management reports, within ten (10) Business Days of the end
of the relevant preceding calendar month and otherwise within twenty (20)
Business Days of such relevant preceding calendar month end.
4.8 The Vendor undertakes to ensure that in relation to the business
transfer agreement (the BTA) dated 5 July 2002 between ABB Structured Finance AS
and ABB Credit Finans AB (Norwegian branch), no member of the SF Group or the
Purchaser's Group shall be liable to pay any amount of additional or deferred
consideration under or in respect of such BTA, and the Vendor shall indemnify
the Purchaser (for itself and as trustee for each member of the SF Group and the
Purchaser's Group) against all Losses arising or relating to any such liability
and/or payment save to the extent specifically provided for in the Final
Completion Balance Sheet.
4.9 In relation to Employees, the parties agree that the Purchaser shall be
permitted to enter into arrangements with any Employee prior to Completion with
a view to retaining the services of that Employee with the appropriate SF Group
Company or Transfer Employee Transferee after Completion (the RETENTION
ARRANGEMENTS), provided that (a) the Retention Arrangements are expressed to be
conditional upon and will take effect from Completion and (b) the Purchaser is
solely responsible for all costs associated with the Retention Arrangements.
Page 18
CONFORMED COPY
4.10 Details of the amount of the ABB Export Bank Outstanding Loan Balance as
of 31 July 2002 are set out in columns 9, 11 and 13 of Part C of Schedule 17
(Business Assets/Transfer Employees/Export Bank Transactions). The Vendor shall
up-date the Purchaser on the amount of the ABB Export Bank Outstanding Loan
Balance outstanding at the end of each calendar month (from and including
October 2002) in the form set out in Part C of Schedule 17 (Business
Assets/Transfer Employees/Export Bank Transactions) in writing, within ten (10)
Business Days of the end of the relevant calendar month (from and including
October 2002) up until the Valuation Date. On the Valuation Date, the Vendor
shall notify the Purchaser in writing of the amount of the Estimated ABB Export
Bank Outstanding Loan Balance in the form set out in columns 9, 11 and 13 of
Part C of Schedule 17 (Business Assets/Transfer Employees/Export Bank
Transactions).
4.11 The Vendor shall and shall procure that immediately prior to and with
effect from Completion: (a) (other than the ABB Export Bank Intra-Group
Indebtedness) all obligations, commitments and liabilities between any member of
the ABB Group (excluding the SF Group) and any member of the SF Group relating
to or underlying any of the Export Bank Transactions are terminated, released
and extinguished in full; and (b) any and all deposits and/or other security
held by or for the benefit of any member(s) of the ABB Group in respect of any
of the Export Bank Transactions are transferred to and/or for the benefit of the
relevant member(s) of the Purchaser's Group.
4.12 The Vendor shall procure that, prior to Completion:
(a) ABB Financial Services Inc, the immediate parent of ABB Structured
Finance (Americas) Inc (USSTF), will increase the equity capital of
USSTF by US$28,700,000 (being the amount of the discount to be allocated
and applied by the Purchaser against the equity value of USSTF), either
by way of:
(i) capital contribution of US$28,700,000 in cash to the share
premium account of the existing issued ordinary shares of US$1
each in the capital of USSTF; or
(ii) subscription in cash and at par for, and the allotment and
issue to it of, 28,700,000 ordinary shares of US$1 each in the
capital of USSTF (NEW USSTF SHARES); and
(b) USSTF will use such contribution or subscription monies to repay and
reduce its Intra-Group Indebtedness, pro tanto, by US$28,700,000.
4.13 For the avoidance of doubt, the parties agree that, provided that the
provisions of clause 4.12 are complied with in full:
(a) any New USSTF Shares shall, as at Completion, be deemed included within
the definition of SHARES to be sold by the relevant Designated Vendor
and acquired by the relevant Designated Purchaser on Completion; and
Page 19
CONFORMED COPY
(b) the increase in equity capital of USSTF and reduction in Intra-Group
Indebtedness of USSTF, in each case, resulting from compliance in full
with clause 4.12 above shall be taken into account and reflected in the
Completion Balance Sheet for the purposes of the calculation of the
Final Consideration and the Final Intra-Group Indebtedness.
5. INDEBTEDNESS AND DERIVATIVE TRANSACTIONS
INTRA-GROUP INDEBTEDNESS
5.1 For the purposes of this clause 5.1, any valuation of Provisional Net
Intra-Group Indebtedness shall be:
(a) made by reference to the forecast position on the proposed Completion
Date; and
(b) calculated by the Vendor in accordance with 0 (Indebtedness).
5.2 Details of the amount of Intra-Group Indebtedness as of 30 June 2002 are
set out in Part A and Part C of Schedule 12 (Indebtedness) and details of the
cash pool balances held by the SF Group Companies as of 30 June 2002 are set out
in 0 of 0 (Indebtedness). The Vendor shall up-date the Purchaser on the amount
of the Intra-Group Indebtedness in the form set out in Part A of Schedule 12
(Indebtedness) in writing, on a fortnightly basis from the date of this
Agreement up until the Valuation Date. On the Valuation Date, subject to its
obligations under clause 4.5 the Vendor shall determine the value of and provide
the Purchaser with details of the Provisional Net Intra-Group Indebtedness and
the Provisional Net Intra-Group Indebtedness Amount(s) in accordance with
Schedule 12 (Indebtedness) and the updates thereto provided to the Purchaser
pursuant to this clause 5.2.
5.3 On Completion:
(a) the Purchaser shall pay or procure payment in full of each Provisional
Net Intra-Group Indebtedness owed by member(s) of the SF Group to
member(s) of the ABB Group (excluding, for this purpose, the SF Group)
in each case, in the relevant currency in which it is owed, to ABB World
Treasury Center (on behalf of the relevant members of the ABB Group),
regardless of whether the underlying Intra-Group Indebtedness is then
due and payable;
(b) in the event that any Provisional Net Intra-Group Indebtedness is owed
by member(s) of the ABB Group (excluding, for this purpose, the SF
Group) to member(s) of the SF Group, the Vendor shall pay, or procure
payment in full by relevant members of the ABB Group (excluding, for
this purpose, the SF Group) of such Provisional Net Intra-Group
Indebtedness in each case, in the relevant currency in which it is owed,
to the Purchaser (or relevant member(s) of the SF Group, as the
Purchaser may direct), regardless of whether the underlying Intra-Group
Indebtedness is then due and payable; and
(c) the Vendor shall deliver confirmation of settlement of Intra-Group
Indebtedness and termination and discharge in full relating to all loan
Page 20
CONFORMED COPY
agreements and deeds of release relating to all charges or any other
Encumbrance granted by any member of the SF Group to any member of the
ABB Group or to any other person in relation to the Intra-Group
Indebtedness.
5.4 The Vendor shall:
(a) bear all Costs incurred and to be incurred by it in relation or
incidental to or as a consequence of any repayment of Intra-Group
Indebtedness contemplated by clause 5.3; and
(b) indemnify the Purchaser (for itself and as trustee for each member of
the Purchaser's Group) in respect of all Costs incurred:
(i) on or after Completion by any member of the Purchaser's Group
including any other SF Group Company under or in respect of any
Intra-Group Indebtedness outstanding at Completion; or
(ii) in relation to or incidental to or as a consequence or result
of any repayment of Intra-Group Indebtedness under or pursuant
to this Agreement,
in each case, to the extent that such Costs are not reflected in the Completion
Balance Sheet.
5.5 All Net Intra-Group Indebtedness and Intra-Group Indebtedness shall be
as determined and reflected in the Final Completion Balance Sheet, to be
prepared, agreed and/or determined in accordance with clause 7 and Schedule 8
(Completion Balance Sheet) and Schedule 10 (Form of Completion Balance Sheet).
The Vendor shall procure that all relevant books of account and working papers
are made available to the Purchaser for the purpose of verifying such amounts.
5.6 All payments referred to in this clause in relation to the Provisional
Net Intra-Group Indebtedness shall be payments on account of payment of the
Intra-Group Indebtedness and shall be made in immediately available funds on
Completion in the currencies in which the relevant Provisional Net Intra-Group
Indebtedness is expressed to be owed or outstanding in each case for the
relevant account specified in clause 6.4(b) or clause 25.1.
COMPLETION ADJUSTMENT FOR THE INTRA-GROUP INDEBTEDNESS
5.7 Within two (2) Business Days of the final agreement and/or determination
of the Final Completion Balance Sheet in accordance with clause 7, the Vendor
shall deliver a schedule (in the form attached as Part B of Schedule 11
(Accountant's Report and Indebtedness Schedule)) confirming the amount of Final
Intra-Group Indebtedness and Final Net Intra-Group Indebtedness, in each case,
as derived from and consistent with the Final Completion Balance Sheet (the
INDEBTEDNESS SCHEDULE), together with the Report of Independent Accountants on
Applying Agreed-Upon Procedures (together, the INDEBTEDNESS SCHEDULE AND
REPORT).
5.8 If:
Page 21
CONFORMED COPY
(a) any amount paid by the Purchaser pursuant to clause 5.3(a) is:
(i) less than the amount of Final Net Intra-Group Indebtedness
shown in the Indebtedness Schedule as owing to members of the
ABB Group (excluding the SF Group), the Purchaser shall pay or
procure payment to the ABB World Treasury Center (on behalf of
the relevant members of the ABB Group) the amount of the
difference, in each case, in the relevant currency of which it
is owed; or
(ii) greater than the amount of Final Net Intra-Group Indebtedness
shown in the Indebtedness Schedule as owing to members of the
ABB Group (excluding the SF Group), the Vendor shall repay, or
procure repayment by the relevant members of the ABB Group, to
the Purchaser the amount of the difference, in each case, in
the relevant currency in which it is owed;
(b) any amount paid by the Vendor pursuant to clause 5.3(b) is:
(i) less than the amount of Final Net Intra-Group Indebtedness
shown in the Indebtedness Schedule as owing to members of the
SF Group, the Vendor shall pay, or procure payment by the
relevant members of the ABB Group (excluding the SF Group), to
the Purchaser the amount of the difference, in each case, in
the relevant currency in which it is owed; or
(ii) greater than the amount of Final Net Intra-Group Indebtedness
shown in the Indebtedness Schedule as owing to members of the
SF Group, the Purchaser shall repay or procure repayment to the
ABB World Treasury Center (on behalf of the relevant members of
the ABB Group) the amount of the difference, in each case, in
the relevant currency in which it is owed.
Subject to clause 5.9(c) below and unless otherwise agreed between the Vendor
and the Purchaser (such agreement not to be unreasonably withheld or delayed),
any payments due under this clause 5.8 (the INDEBTEDNESS ADJUSTMENT) shall be,
if appropriate, netted off against each other and be made on or before the Final
Settlement Date.
5.9 (a) Subject to clause 5.9(c) below, the party (if any) making a payment
under clause 5.8 shall pay, together with the sum to be paid thereunder,
a further amount equivalent to the interest thereon at the annual rate
equal to LIBOR, as if accrued from day to day from (and including) the
Completion Date up to (but excluding) the date of actual payment in full
and to be calculated on the basis of a year of 360 days for the actual
number of days elapsed.
(b) If an amount payable pursuant to clause 5.8, including the amount
equivalent to interest payable pursuant to clause 5.9(a), has not been
discharged by or on the seventh (7th) Business Day after the Final
Settlement Date, the annual rate of interest payable pursuant to clause
5.9(a) shall be increased to the annual
Page 22
CONFORMED COPY
rate of 2 percentage points above LIBOR for the period from (and
including) the eighth (8th) Business Day after the Final Settlement Date
to (but excluding) the date of the payment in full of the amount due
pursuant to clause 5.8.
(c) If the Vendor has to make payments pursuant to clause 5.8(a)(ii) or
5.8(b)(i) in circumstances where the Final Net Intra-Group Indebtedness,
when translated into US$ at the Exchange Rate as of Completion and
aggregated, exceeds the Provisional Net Intra-Group Indebtedness
Amount(s), translated into US$ at the Exchange Rate as at Completion and
aggregated, by more than 1.5 per cent. of such aggregate Provisional Net
Intra-Group Indebtedness Amount(s), translated into US$ at the Exchange
Rate as at Completion, then it shall pay, in place of amounts due
pursuant to clauses 5.9(a) and 5.9(b), an amount equivalent to interest
on the aggregate amount of such payments accruing at the annual rate
equal to LIBOR plus five (5) percentage points, as if accrued from day
to day from (and including) the Completion Date to (but excluding) the
date of actual payment in full and to be calculated on the basis of a
year of a 360 day year for the actual number of days elapsed.
The parties acknowledge and agree that each of the Vendor and the Purchaser
shall have the right to settle any Intra-Group Indebtedness owed by it to the
other under clause 5.8 at any time prior to the Final Settlement Date without
assuming any breakage costs and where such payment is made, the amount to be
paid on or before the Final Settlement Date pursuant to clause 5.8 shall be
adjusted accordingly.
5.10 For the avoidance of doubt and unless otherwise provided in any of the
Transaction Documents, all indebtedness which relates to the SF Business other
than Intra-Group Indebtedness, Derivative Transactions and all indebtedness
relating to any of the Excluded Businesses, Excluded Claims, Excluded Companies,
Excluded Liabilities, Excluded Contracts and/or Excluded Assets shall remain
outstanding and, to the extent not already an obligation of the SF Group, shall
be assumed by the SF Group on Completion and the Purchaser undertakes to the
Vendor to procure that all such indebtedness is so assumed.
5.11 The Vendor (on behalf of itself and each relevant member of the ABB
Group) and the Purchaser (on behalf of itself and each member of the Purchaser's
Group) undertake that following Completion neither they nor any member of their
respective Groups shall be entitled to, or shall call for or demand, payment or
discharge of any amounts of debits or credits constituting Intra-Group
Indebtedness in any manner other than by the operation of this Agreement and, in
particular, the provisions of clauses 5.1 to 5.10 (inclusive).
5.12 The Vendor (for itself and/or as trustee for each relevant member of the
ABB Group) and the Purchaser (for itself and/or as trustee for each relevant
member of the Purchaser's Group) undertake and confirm to each other that to the
extent that any payments due under clauses 5.1 to 5.10 (inclusive) are made in
respect of the payment of any debit or credit forming part of the Intra-Group
Indebtedness and/or the Net Intra-Group Indebtedness then, upon the making of
and to the extent of such payments, all debits and credits constituted by the
Intra-Group Indebtedness and/or the Net Intra-Group Indebtedness shall, to the
extent of such payments, be deemed to
Page 23
CONFORMED COPY
have been paid by or to the Vendor or the Purchaser (as the case may be) as bare
trustee for the relevant member(s) of the ABB Group or the relevant SF Group
Companies from or to whom such debit or credit is owed (as the case may be), and
such payments shall, to the extent of such payments, accordingly satisfy and
extinguish in full such liabilities of the Vendor and the relevant member(s) of
the ABB Group and of the SF Group Companies in respect of such debits and
credits as were taken into account (to the extent they were so taken into
account) in determining the Intra-Group Indebtedness and/or the Net Intra-Group
Indebtedness.
For the avoidance of doubt:
(a) the ABB Export Bank Intra-Group Indebtedness and the ABB Export Bank Net
Intra-Group Indebtedness shall be included and taken into account in the
calculation, determination and repayment of Intra-Group Indebtedness,
Net Intra-Group Indebtedness, Provisional Net Intra-Group Indebtedness,
Provisional Net Intra-Group Indebtedness Amount(s), Final Intra-Group
Indebtedness and Final Net Intra-Group Indebtedness, as the case may be;
(b) the Vendor and the Purchaser shall procure that the relevant member(s)
of the ABB Group and the relevant SF Group Companies (respectively)
shall make all such accounting entries as are necessary to reflect the
intention of the parties in respect of the payment, discharge and
satisfaction of debts and credits pursuant to clauses 5.1 to 5.12
(inclusive); and
(c) the provisions of this clause 5.12 shall not prejudice any other rights
or obligations under this Agreement, unless and to the extent that the
subject matter of such rights and/or obligations has been satisfied
and/or discharged pursuant to the operation of such clause or any of
clauses 5.1 to 5.12 (inclusive).
THIRD PARTY INDEBTEDNESS
5.13 Details of the terms and amount of the Third Party Indebtedness as of 30
June 2002 are set out in Part E of Schedule 12 (Indebtedness). The Vendor shall
update the Purchaser on the amount of such Third Party Indebtedness in writing
on a fortnightly basis from the date of this Agreement to the Valuation Date in
the form set out in Part E of Schedule 12 (Indebtedness). On each of the
Valuation Date and the Completion Date, the Vendor shall be required to provide
the Purchaser with details of such Third Party Indebtedness as is estimated by
the Vendor to be the amount of such Third Party Indebtedness as at Completion in
the form set out in Part E of Schedule 12 (Indebtedness).
5.14 If any Third Party Indebtedness becomes repayable or any of its terms
are otherwise breached or accelerated, in each case, as a result of (a) any
fact, matter or circumstance arising on or prior to Completion; (b) any of the
Proposed Transaction, Completion and/or their implementation; and/or (c) an act
or omission of any member of the ABB Group, then the Vendor shall indemnify the
Purchaser (for itself and as trustee for each member of the Purchaser's Group
and/or the SF Group) on demand in respect of all Costs incurred by any member of
the Purchaser's Group and/or the SF Group under or in respect of such repayment
and/or breach.
Page 24
CONFORMED COPY
DERIVATIVE TRANSACTIONS
5.15 The Vendor shall procure the termination of all Intra-Group Derivative
Transactions and Third Party Derivative Transactions by the Completion Date.
5.16 The Vendor shall:
(a) bear all Costs incurred and to be incurred in relation or incidental to
or as a consequence of the termination of any Derivative Transactions as
contemplated by clause 5.15; and
(b) indemnify the Purchaser (for itself and as trustee for each member of
the Purchaser's Group and/or the SF Group), on demand, in respect of all
Costs incurred by any member of the Purchaser's Group and/or the SF
Group under or in respect of any Derivative Transactions in force or
existence on or prior to Completion or the termination of Derivative
Transactions contemplated by clause 5.15,
save to the extent that such Costs are reflected in the Completion Balance
Sheet.
CASH AND CASH POOLS
5.17 Between signing of this Agreement and Completion, the Vendor shall
provide the Purchaser with fortnightly updates in writing of the amount of Cash
of, and the amount of any cash pool owed to or held for the account of, any
member of the SF Group as at such time, indicating in such updates the amount
and currency of, the account holding (together with the interest accruing to
such account in respect of) and any pooling or other arrangements relating to,
such Cash and/or cash pools, as the case may be. On each of the Valuation Date
and the Completion Date, the Vendor shall be required to provide the Purchaser
with details (in the same form as the updates) of such Cash and cash pools as is
estimated by the Vendor to be the amount of such Cash and cash pools as at
Completion.
MISCELLANEOUS
5.18 For the purposes of this clause 5, COSTS incurred in relation to or as a
consequence of the repayment of any Intra-Group Indebtedness or Third Party
Indebtedness or the termination of the Derivative Transactions, shall include,
without limitation, any liability, losses, damages, costs, fees, charges,
breakage costs, expenses (including Taxation), commissions and brokerage
incurred in connection with any early repayment, possible re-arrangement or
substitution of any existing borrowings or indebtedness or the discharge or
release of any liability as contemplated by this clause 5 but excluding, for the
avoidance of doubt, repayment of principal, payment of accrued interest (but
excluding any interest accrued prior to Completion and calculated by reference
to a default interest margin) and any costs related to the Purchaser's own
funding of any payment made or to be made by the Purchaser under this clause 5
or any termination related therewith.
Page 25
CONFORMED COPY
6. COMPLETION
6.1 Completion of the sale and purchase of the Shares and the Business
Assets shall take place on the Completion Date (as defined in clause 6.2) at the
offices of the Vendor's Solicitors and/or (as the case may be) at such other
place or places as may be reasonably agreed in writing between the Vendor and
the Purchaser.
COMPLETION DATE
6.2 The date of Completion will be the latest of:
(a) the date as determined in accordance with 0 of 0 (Completion
Arrangements) by reference to the day upon which the Record Date occurs;
or
(b) if clause 6.5(b)(ii) applies, such date as the Non-Defaulting Party
specifies for Completion pursuant to clause 6.5,
(in each case, the COMPLETION DATE).
For the purposes of clause 6.2(a) above:
(A) if a Relevant Breach or a Material Adverse Change occurs on or prior to
Completion which the Vendor is entitled to remedy pursuant to clause
15.3, the date on which:
(i) such Relevant Breach or Material Adverse Change, as the case
may be, is remedied in full in accordance with clause 15.4; or
(ii) the Purchaser otherwise waives in writing its right to
terminate this Agreement in respect of such Relevant Breach or
Material Adverse Change,
shall, in each case, become the Record Date, in which case Part A of
Schedule 7 (Completion Arrangements) shall apply MUTATIS MUTANDIS; or
(B) if the Purchaser is notified by the Vendor of a matter in accordance
with any of clauses 11.8, 11.9 or 15.2 and the Purchaser considers, in
its reasonable opinion, that the period between such notification and
the proposed Completion Date is insufficient for the Purchaser to assess
the matter and its rights as a result of such matter having been so
notified, such later date as the Purchaser reasonably determines is a
reasonable period within which to make such assessment shall become the
Record Date, in which case Part A of Schedule 7 (Completion
Arrangements) shall apply MUTATIS MUTANDIS.
COMPLETION OBLIGATIONS
6.3 Each of the Vendor and the Purchaser shall do, or procure the doing of,
all those things relating to the relevant Shares and Business Assets listed in
relation to them or the members of the ABB Group or the Purchaser's Group
respectively in Part B of Schedule 7 (Completion Arrangements) or if not listed
in relation to a party, in accordance with
Page 26
CONFORMED COPY
the other provisions of this Agreement at Completion or at such other time as is
specified in Part B of Schedule 7 (Completion Arrangements).
6.4 On Completion, the Purchaser (for itself and as trustee for and on
behalf of the Designated Purchasers) shall:
(a) cause the payment in cash of the amount of the Initial Consideration
less the Completion Adjustment Escrow Amount and the Condition Asset
Escrow Amount (if any) by electronic funds transfer to the Vendor (for
itself and as trustee for each relevant member of the ABB Group) in
accordance with clause 25.1 and receipt in full of the funds in
accordance with this clause 6.4(a) and clause 6.4(c) shall constitute a
good discharge of the Purchaser's and the relevant Designated
Purchasers' obligations under clauses 2.4 and 2.4A and in respect of the
payment of the Initial Consideration but not, for the avoidance of
doubt, in respect of the Purchaser's obligations under clauses 2.5 and
2.7 and clause 5;
(b) if applicable, cause payment in cash of an amount equal to each amount
of Provisional Net Intra-Group Indebtedness to the ABB World Treasury
Center by immediately available electronic funds transfer to the
relevant bank accounts set out in the ABB World Treasury Center Standard
Settlement Instructions in Part B of Schedule 7 (Completion
Arrangements) in accordance with clause 5.3(a); and
(c) cause the payment of the Completion Adjustment Escrow Amount into the
Completion Adjustment Escrow Account and (if required in accordance with
clause 3.14) the Condition Asset Escrow Amount into the Condition Asset
Escrow Account in accordance with clause 3.14.
6.5 If:
(a) the Vendor fails or is unable to perform any Material Completion
Obligation on or by the date on which Completion is due to occur
pursuant to clause 6.2, the Purchaser may, by written notice to the
Vendor either (i) terminate this Agreement and the provisions of clause
15.10 shall apply, or (ii) without prejudice to its rights under this
Agreement, elect to proceed to Completion in accordance with clause
6.5(b) sub-clause (i), (ii) or (iii); or
(b) the Vendor fails or is unable to perform any obligation required to be
performed by the Vendor (other than a Material Completion Obligation)
or, as the case may be, the Purchaser fails or is unable to perform any
obligation required to be performed by the Purchaser pursuant to clause
6 on or by the last date on which Completion is due to occur pursuant to
clause 6.2 the party which is not in default (the NON-DEFAULTING PARTY)
may in its absolute discretion, by written notice to the other party
(the DEFAULTING PARTY):
(i) without prejudice to its rights under this Agreement, proceed
to Completion on that date, to the extent that the
Non-Defaulting Party is ready, able and willing to do so, and
specify a later date by which the
Page 27
CONFORMED COPY
Defaulting Party shall be obliged to complete its outstanding
obligations; or
(ii) elect to defer Completion to the next following Completion Date
listed in the second column of the table set out in Part A of
Schedule 7 (Completion Arrangements), in which event the
provisions of clause 6 shall apply to the deferred date of
Completion with all necessary modifications; or
(iii) where the Purchaser is the Non-Defaulting Party, waive all or
any of the Completion requirements contained in Part B of
Schedule 7 (Completion Arrangements) at its discretion,
provided that in the event of the failure or inability of the Vendor or
the Purchaser (as the case may be) to perform any obligation at any
deferred Completion pursuant to the operation of clause 6.5(b)(ii), if
the Defaulting Party is the same Defaulting Party as previously caused
Completion to be deferred pursuant to the operation of clause
6.5(b)(ii), then the Non-Defaulting Party may, by written notice either
(i) terminate this Agreement and the provisions of clause 15.10 shall
apply, or (ii) without prejudice to its rights under this Agreement,
again elect to proceed to Completion in accordance with sub-clauses (i),
(ii) or (iii) of this clause 6.5(b).
TAX COVENANT
6.6 Save for the Tax Warranties which shall be given on and with effect from
the date of this Agreement, the Tax Covenant shall come into full force and
effect from Completion.
COMPLETION ADJUSTMENT ESCROW ACCOUNT
6.7 The funds in the Completion Adjustment Escrow Account shall be held on
the following terms:
(a) any bank or other charges arising on the Completion Adjustment Escrow
Account shall be charged to the Completion Adjustment Escrow Account and
any Tax arising thereon shall be for the account of the Vendor;
(b) any interest or profit generated on the Completion Adjustment Escrow
Amount (subject to any deduction of Tax at source or any bank or other
charges properly charged to the Completion Adjustment Escrow Account)
(for the purposes of this clause 6.7, the INCOME) shall accrue to and
form part of the Completion Adjustment Escrow Account. Each time part of
the funds in the Completion Adjustment Escrow Account is paid out it
shall have added to it the corresponding proportion of the Income; and
(c) if upon final determination of the Final Consideration:
(i) the Vendor is required to pay an amount to the Purchaser in
accordance with clauses 2.5(a)(ii) and 2.7 such amount (the
COMPLETION ADJUSTMENT), the Purchaser and the Vendor shall
issue joint written
Page 28
CONFORMED COPY
instructions to the Bank to release from the Completion
Adjustment Escrow Account to the Purchaser the lesser of (A)
the amount of the balance in the Completion Adjustment Escrow
Account and (B) the amount of the Completion Adjustment, as
soon as practicable but in any event by the Final Settlement
Date. Any balance in the Completion Adjustment Escrow Account
following such payment shall be released to the Vendor in the
same manner and at the same time. If the amount standing to the
credit of the Completion Adjustment Escrow Account is
insufficient to satisfy payment to the Purchaser of the
Completion Adjustment in full, the Vendor shall be obliged to
pay the amount of the shortfall in accordance with clauses
2.5(a)(ii) and 2.7 notwithstanding such insufficiency; or
(ii) the Purchaser is required to pay an amount to the Vendor in
accordance with clauses 2.5(a)(i) and 2.7, the Purchaser and
the Vendor shall issue joint written instructions to the Bank
to release the entire amount of the Completion Adjustment
Escrow Account to the Vendor as soon as practicable but in any
event by the Final Settlement Date.
For the avoidance of doubt, the Vendor's obligations under clauses 2.5(a)(ii)
and 2.7 are not limited by the amount standing to the credit of the Completion
Adjustment Escrow Account from time to time.
7. COMPLETION BALANCE SHEET
7.1 Subject to the Purchaser complying with its obligations under clause
7.4, the Vendor shall procure (to the extent it is reasonably able to do so)
that promptly after Completion a Completion Balance Sheet is produced in
accordance with the provisions of this clause 7. Such Completion Balance Sheet
shall be prepared on the basis of the accounting policies and procedures set out
in Schedule 8 (Completion Balance Sheet) and in the form set out in Schedule 10
(Form of Completion Balance Sheet).
7.2 The balance sheet and related notes comprising part of the Completion
Balance Sheet shall be audited by the Vendor's Accountants (the DRAFT COMPLETION
BALANCE SHEET) with a view to the Draft Completion Balance Sheet together with
the respective report thereon of the Vendor's Accountants in draft form and the
unaudited profit and loss account (and, for the avoidance of doubt, such profit
and loss account shall not be required to be accompanied by notes in relation to
it) being delivered to the Purchaser (with a copy to the Purchaser's
Accountants) as soon as possible and in any event within forty (40) Business
Days of the Completion Date. The fees and costs of the Vendor's Accountants for
services in connection with this clause 7 shall be paid by the Vendor.
7.3 The management representation letters required in connection with the
Draft Completion Balance Sheet and the Final Completion Balance Sheet shall be
prepared in accordance with the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 85, MANAGEMENT REPRESENTATIONS,
as amended, and shall be signed by the relevant management of the SF Group units
and the Vendor. It is acknowledged and agreed that the management representation
letter to be signed by
Page 29
CONFORMED COPY
the Vendor and the relevant management of the SF Group units shall also extend
to and cover events arising after Completion (SUBSEQUENT EVENTS).
7.4 The Purchaser:
(a) shall, and shall procure that each SF Group Company shall, use
reasonable endeavours to ensure that, to the extent that such is
reasonable for the purpose, Xxxxxx Xxxxxxxxx, Per Xxxxxxx, Xxxx X.
Xxxxxx, Xxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxx Shindleman, Xxxxxx Xxxxxxx,
Emanuela Civene, Hans Xxxxx Xxxxxxxx and Xxxxx Xxxxxxxxx and/or the
successors to their respective positions of responsibility, together
with their respective staff are and are made reasonably available during
Working Hours and shall have the reasonable time and resources
reasonably required to report as of Completion in accordance with ABACUS
reporting and ABB Group reporting deadlines in order to assist the
Vendor in preparing the Completion Balance Sheet in such manner as is
consistent with their day-to-day roles and responsibilities;
(b) shall, and shall procure that each SF Group Company shall, give the
Vendor, the Vendor's appropriate nominated advisers and Vendor's
Accountants reasonable access at reasonable times to all books and
records, accounts, working papers and other financial information,
including ABACUS, in their respective possession or control relating to
the SF Business and the SF Group and generally shall provide the Vendor
and the Vendor's Accountants with such other information and reasonable
assistance as the Vendor, the Vendor's appropriate nominated advisers
and Vendor's Accountants may reasonably request, including access to and
the assistance of (i) financial personnel employed in the SF Business
and (ii) other employees and relevant advisers of the SF Business, to
the extent, in each case, that such is reasonably required for the
purposes of preparing the Draft Completion Balance Sheet or
investigating any Disputed Items as defined in clause 7.6(a), provided
that the Vendor and the Vendor's Accountants shall not be entitled to
any such access or information which goes beyond that reasonably
necessary to prepare the Draft Completion Balance Sheet or investigate
any Disputed Items; and
(c) shall use reasonable endeavours to ensure that the representation
letters required in connection with the Draft Completion Balance Sheet
and the Final Completion Balance Sheet shall be signed by the relevant
management of the SF Group units.
7.5 Within twenty-five (25) Business Days of receipt of the Draft Completion
Balance Sheet, the Purchaser shall notify the Vendor if it accepts the Draft
Completion Balance Sheet for the purposes of this Agreement.
7.6 If the Purchaser notifies the Vendor that it does not accept the Draft
Completion Balance Sheet:
(a) it shall set out in writing those items which it disputes, stating
reasonable details thereof, including, where practicable, specific items
in the Draft Completion Balance Sheet, in which case all other items not
affected by the disputed items will be deemed to be as set forth in the
Draft Completion
Page 30
CONFORMED COPY
Balance Sheet and only the items or amounts identified by the Purchaser
(the DISPUTED ITEMS) shall be deemed to be in dispute; and
(b) the parties shall use all reasonable endeavours (in conjunction with the
Vendor's Accountants and the Purchaser's Accountants) to meet and
discuss the Disputed Items and to reach agreement upon the adjustments
(if any) required to be made to the Draft Completion Balance Sheet.
7.7 If:
(a) the Purchaser fails to use all reasonable endeavours to meet and discuss
with the Vendor the Disputed Items in accordance with clause 7.6(b)
within fifteen (15) Business Days of receipt of the notice under clause
7.6 above, then the Disputed Items shall be deemed to be withdrawn and
the Draft Completion Balance Sheet shall constitute the Final Completion
Balance Sheet for the purposes of this Agreement;
(b) the Vendor fails to use all reasonable endeavours to meet and discuss
the Disputed Items with the Purchaser in accordance with clause 7.6(b)
within fifteen (15) Business Days of receipt of the notice under clause
7.6 above, then the Disputed Items shall be deemed to be accepted and
the Draft Completion Balance Sheet (as amended to reflect the Disputed
Items) shall constitute the Final Completion Balance Sheet for the
purposes of this Agreement.
7.8 If the Purchaser is satisfied with the Draft Completion Balance Sheet
(either as originally submitted or after adjustments agreed between the Vendor
and the Purchaser) or if the Purchaser does not notify the Vendor of its
non-acceptance of the Draft Completion Balance Sheet within the twenty-five (25)
Business Day period referred to in clause 7.5, then the Draft Completion Balance
Sheet (incorporating, if applicable, any agreed adjustments) shall constitute
the Final Completion Balance Sheet for the purposes of this Agreement.
7.9 If the parties are unable to reach agreement in accordance with clause
7.6(b) within twenty (20) Business Days of receipt of the notice under clause
7.6 above the Disputed Items shall be referred on the application of either
party to the Expert. The following terms of reference shall apply:
(a) before referring a matter to the Expert the parties shall agree on
procedures to be followed by the Expert (including procedures for
presentation of evidence). If the parties are unable to agree upon
procedures before referral of the matter to the Expert or within fifteen
(15) Business Days of such referral, or such longer period as may be
agreed between the parties, the Expert shall within fifteen (15)
Business Days establish the procedures giving due regard to the
provisions of this Agreement and the intention of the parties to resolve
disputes as quickly, efficiently and inexpensively as reasonably
possible provided that such procedures shall (i) give the parties a
reasonable opportunity to submit written representations and make oral
submissions; (ii) require that copies of all written submissions by
either party are supplied to the other party; and (iii) permit each
party to be present while any oral submissions are made by the other
party;
Page 31
CONFORMED COPY
(b) the parties shall, as promptly as practicable, submit evidence in
accordance with the procedures agreed upon or established by the Expert,
and the Expert shall decide the dispute in accordance therewith and the
provisions of this clause 7.9 as promptly as practicable and in any
event within twenty (20) Business Days of his appointment becoming
effective. The unresolved Disputed Items will be determined by the
Expert solely in accordance with Schedule 8 (Completion Balance Sheet)
and such adjustments as are required to be made as a result of the
Expert's determination of such Disputed Items shall be made to the Draft
Completion Balance Sheet which shall then constitute the Final
Completion Balance Sheet for the purposes of this Agreement;
(c) the Expert shall act as expert and not as arbitrator and the decision of
the Expert shall, in the absence of fraud or manifest error, be final
and binding on the Vendor and the Purchaser; and
(d) the costs of the Expert shall be paid by the Vendor and the Purchaser
equally or as otherwise determined by the Expert.
7.10 The Vendor shall, and shall procure that each other member of the ABB
Group shall, and the Purchaser shall and shall procure that each member of the
Purchaser's Group (including, for the avoidance of doubt, each SF Group Company)
shall give the Expert reasonable access at reasonable times to all books and
records in their respective possession or control relating to the SF Business
and the SF Group and generally shall provide the Expert with such other
information and assistance as the Expert may reasonably require, including
assistance by their respective advisers.
7.11 The Final Completion Balance Sheet as agreed or determined in accordance
with this clause 7 shall in the absence of fraud or manifest error, be final and
binding on the parties. The Vendor shall deliver the Final Completion Balance
Sheet together with the signed report thereon of the Vendor's Accountants to the
Purchaser within two (2) Business Days from the actual agreement or
determination under this clause 7.
7.12 For the purposes of enabling the Purchaser and the Purchaser's
Accountants to present any Disputed Items, the Vendor and the Vendor's
Accountants shall, following the receipt of a notice from the Purchaser under
clause 7.6, give the Purchaser and the Purchaser's Accountants reasonable access
at reasonable times to all relevant working and other papers in their possession
or control relating to the SF Business and the SF Group and generally shall
provide the Purchaser and the Purchaser's Accountants with such other
information as the Purchaser may reasonably request provided that the Purchaser
and the Purchaser's Accountants shall not be entitled to any such access or
information which goes beyond that reasonably necessary to analyse and assess
the Draft Completion Balance Sheet and its preparation in accordance with the
provisions of Schedule 8 (Completion Balance Sheet) and to analyse and assess
any Disputed Items.
7.13 Save as otherwise contained in this Agreement or agreed between the
Vendor and the Purchaser, the Vendor shall pay the charges of the Vendor's
Accountants and the Purchaser shall pay the charges of the Purchaser's
Accountants.
Page 32
CONFORMED COPY
7.14 Within two (2) Business Days of the final agreement and/or determination
of the Final Completion Balance Sheet:
(a) the Purchaser shall deliver to the Vendor in writing a schedule (THE
FINAL CONSIDERATION SCHEDULE) setting out the amount of the Final
Consideration, together with the amount of each of the Owner's Equity,
Additional Reserves and Net Sirius Equity Impact taken into account in
calculating the amount of the Final Consideration; and
(b) the Vendor shall deliver to the Purchaser the Indebtedness Schedule (in
accordance with clause 5.7) setting out each amount of Final Intra-Group
Indebtedness and Final Net Intra-Group Indebtedness,
in each case, such amounts to be as derived or extracted from and consistent
with the Final Completion Balance Sheet in all respects.
7.15 Provided that the Final Consideration Schedule and Indebtedness Schedule
prepared by the Purchaser and the Vendor, respectively, conform in all respects
with the provisions of clause 7.14, such schedules shall constitute prima facie
evidence of the amounts of each of the Owners' Equity, Additional Reserves, Net
Sirius Equity, Final Net Intra-Group Indebtedness and Final Intra-Group
Indebtedness set out therein.
8. BUSINESS CONTRACTS AND BUSINESS ASSETS
8.1 Insofar as any of the Business Contracts or Business Assets (or any
agreement or other document relating thereto) cannot effectively be, or are not
permitted to be, assigned or transferred to the Purchaser except by an agreement
of novation or by obtaining a consent, approval, waiver or the like to the
assignment or transfer from a third party (CONSENTS):
(a) this Agreement does not constitute an assignment or transfer or
attempted assignment or transfer if such would constitute a breach of
such Business Contract or Business Asset (or any agreement or other
document relating thereto);
(b) the Vendor shall, or shall procure that the relevant Business Asset
Vendor shall, use all reasonable endeavours to procure (at the Vendor's
cost) a novation or, if it is unable to do so, Consent (such novation or
Consent, as the case may be, to take effect from Completion) and the
Purchaser shall provide or procure the provision of any information or
guarantees reasonably requested by the person, firm or company concerned
(provided that the obligations of the Purchaser or the relevant Business
Asset Purchaser in respect of such novation or Consent are no more
onerous than the equivalent obligations contained in the Business
Contract or Business Asset (or agreement or other document relating
thereto) to which the same relates or that the guarantee is no more
onerous than that given by the relevant Business Asset Vendor and the
Vendor shall, or shall procure that the relevant member of the ABB Group
shall, as soon as possible after receipt, deliver such
Page 33
CONFORMED COPY
novation or Consent (as the case may be) to the Purchaser or the
relevant Business Asset Purchaser;
(c) unless or until the relevant Business Contract or Business Asset (or
agreement or other document relating thereto) is novated or the relevant
Consent is obtained (as the case may be), the Vendor shall procure that
the relevant Business Asset Vendor shall from Completion, hold the
benefit of the Business Contract or Business Asset (or any agreement or
document relating thereto) on bare trust for the Business Asset
Purchaser absolutely (and shall accordingly promptly on receipt of the
same account for and pay or deliver to the Purchaser or the relevant
Business Asset Purchaser any moneys, goods and other benefits relating
thereto) and the Purchaser shall procure that the relevant Business
Asset Purchaser shall (if such sub-contracting is permissible and lawful
under the Business Contract or Business Asset (or agreement or other
document relating thereto)), as the relevant Business Asset Vendor's
sub-contractor, or, where sub-contracting is not permissible, as agent
for the relevant Business Asset Vendor, at the sole discretion of the
relevant Business Asset Purchaser, exercise and/or enforce the rights
and perform the obligations of the relevant Business Asset Vendor, as
appropriate, under the Business Contract or Business Asset (or other
agreement or document relating to such Business Asset) to be discharged
after Completion and the Purchaser undertakes to indemnify the Vendor
and each of its Affiliates against all Costs suffered or incurred as a
result of any failure on the part of the Purchaser or the relevant
Business Asset Purchaser to perform any of those obligations provided
that the indemnity given by the Purchaser pursuant to this clause 8.1
(c)shall not be enforceable by any member of the ABB Group in relation
to a particular Business Contract or Business Asset (or other agreement
or document relating to a particular Business Asset) for so long as any
relevant member of the ABB Group is in breach of its obligations
pursuant to clauses 8.1(a) to (c) in relation to that Business Contract
or Business Asset (or other agreement or document relating to such
Business Asset);
(d) unless or until the relevant Business Contract or Business Asset (or
other agreement or document relating to a Business Asset) is novated or
any necessary Consent is obtained the Vendor shall procure that the
relevant Business Asset Vendor shall (so far as it lawfully may) give
all reasonable assistance to the Purchaser and the relevant Business
Asset Purchaser (at the Purchaser's request and expense) to enable the
Purchaser or the relevant Business Asset Purchaser to exercise and/or
enforce the rights and perform the obligations, in each case, of the
relevant Business Asset Vendor under the Business Contract (or any
agreement or other document relating to such Business Asset) provided
that in providing such assistance no member of the ABB Group shall be
obliged to make any payment (in money or money's worth) unless it has
first been paid the amount concerned by the Purchaser, and the Purchaser
or the relevant Business Asset Purchaser shall not agree to any
amendment or waiver of the relevant Business Asset Vendor's rights under
the Business Contract (or other agreement or document relating to such
Business Asset) without prior approval of the relevant Business Asset
Vendor (not to be unreasonably withheld or delayed);
Page 34
CONFORMED COPY
(e) unless or until the relevant Business Contract or Business Asset (or
other agreement or document relating to a Business Asset) is novated or
any necessary Consent is obtained, the Vendor shall, keep the Purchaser
informed, as soon as reasonably practicable, of all matters relating to
the relevant Business Contract or Business Asset (including, without
limitation, its day to day conduct), obtain the consent of the Purchaser
prior to any action being taken by any member of the ABB Group in
relation to any such matter, Business Contract and/or Business Asset,
and upon reasonable request by the Purchaser and to the extent
practicable and provided that to do so would not constitute a breach or
potential breach of the Business Contract (or any agreement or other
document relating to such Business Asset) perform, or procure the
performance by a relevant member of the ABB Group of, all obligations
and exercise or procure the exercise by a relevant member of the ABB
Group of all rights under the Business Contract or in relation to a
Business Asset or under any agreement or document relating to a Business
Asset, in each case, in accordance with the reasonable instructions of
the Purchaser, provided that the Purchaser shall:
(A) make available to the Vendor such employees of the
Purchaser's Group as are reasonably necessary for such
performance;
(B) pay the reasonable costs incurred by the Vendor of such
performance; and
(C) indemnify the Vendor and each member of the ABB Group
against all reasonable costs suffered or incurred as a
result of any failure on the part of the Purchaser or the
relevant member of the Purchaser's Group to perform those
obligations set out in (A) and (B) above; and
(f) the Vendor shall provide to the Purchaser or the relevant member(s)
of the Purchaser's Group the benefit of the Business Contract and/or the
Business Asset (including, without limitation, the enforcement of any
rights thereunder) provided that the Vendor or a member of the ABB Group
shall not be obliged to make any payment (in money or money's worth)
unless it or any other member of the ABB Group has first been paid the
amount of such payment concerned under or pursuant to the Business
Contract, the Business Asset or any agreement or document relating to a
Business Asset.
8.2 Without limiting the other provisions of this clause 8, if any necessary
novation or Consent is not obtained within six (6) months after the Completion
Date or is refused and the procedure set out in this clause 8 does not enable
the full benefit of any Business Contract or any agreement or document relating
to a Business Asset to be enjoyed by the Purchaser or another member of the
Purchaser's Group after the Completion Date, the Purchaser may by written notice
to the Vendor at any time thereafter unless and until such novation or Consent
is in fact obtained elect to treat such Business Contract or any agreement or
document relating to such Business Asset as withdrawn from the Proposed
Transaction, and from the date on which the Vendor
Page 35
CONFORMED COPY
receives such notice the parties' rights and obligations in respect of such
Business Contract or any agreement or document relating to such Business Asset
under this clause 8 shall terminate forthwith, save in respect of accrued rights
and liabilities already in existence as at the date of that notice. If the value
of the relevant Business Contract, Business Asset or any agreement or document
relating to a Business Asset is other than a nil amount the Vendor shall
forthwith pay to the Purchaser an amount equivalent to that value together with
such amount by way of compensation as is fair and reasonable having regard to
the effect of the loss of the Business Contract, the Business Asset or any
agreement or document relating to such Business Asset on the SF Business. The
value of any such Business Contract, Business Asset or any agreement or document
relating to a Business Asset shall be as set out in Schedule 17 (Business
Assets/Transfer Employees/Export Bank Transactions), subject to any adjustments
thereto to reflect the Final Completion Balance Sheet.
9. SPECIFIED TRANSACTIONS
SPECIFIED RECEIVABLES
9.1 In consideration of the Purchaser providing the services referred to in
clause 2 of the Specified Receivables Agreement, the Vendor undertakes from the
Completion Date to pay to the Purchaser the Management Fee. The Management Fee
shall be due and payable with respect to each Recovery at the time such Recovery
is made provided that the recourse of the Purchaser to the Vendor in respect
thereof shall be limited to the application of Recoveries in accordance with
clause 2 of the Specified Receivables Agreement.
9.2 Notwithstanding any provision of the Specified Receivables Agreement to
the contrary, the Purchaser shall be entitled to retain for its own account out
of any Recoveries any amounts of Management Fee then due and payable to the
Purchaser with respect to the Specified Transactions, in priority to any
application of Recoveries in payment to the Vendor pursuant to clause 2.5 of the
Specified Receivables Agreement.
DESIGNATED ASSET AGREEMENT
9.3 In consideration of the Purchaser acquiring the Designated Assets, the
Vendor agrees to enter into the Designated Asset Agreement.
9.4 On or before the Record Date, the Vendor shall use reasonable endeavours
to deliver or procure delivery to the Purchaser of a duly executed letter from
each relevant third party debtor and any other applicable party whose consent is
required to transfer the Designated Asset, confirming that such debtor or third
party consents to any transfer, assignment or novation of such Designated Asset
to the Vendor at any time on or prior to 1 February 2004 as contemplated by the
Designated Asset Agreement or the Vendor shall otherwise confirm in writing to
the Purchaser that no such consents are required. If the Vendor fails to deliver
any such consent or fails to confirm that no such consents are required, then
without any liability on the part of the Vendor in respect thereof such
Designated Asset shall automatically become an
Page 36
CONFORMED COPY
Excluded Asset, excluded from the SF Group in accordance with the provisions of
Part C of Schedule 13 (Excluded Assets/Excluded Contracts/Excluded Businesses).
9.5 On the Record Date, the Vendor shall, in respect of each Designated
Asset, deliver a written confirmation to the Purchaser stating that:
(a) no Designated Asset Default or Material Default (as defined in paragraph
10.4(a) of Schedule 3 (Vendor Warranties)) has occurred and is
continuing in respect of such Designated Asset; and
(b) since 31/12/2001 (save as disclosed in the Disclosure Letter) no
amendment or supplement has been made with respect to the Finance
Agreements, Related Security or, so far as the Vendor is aware, Project
Agreements in respect of such Designated Asset and/or no waiver of any
Material Default or Potential Material Default (each as defined in
paragraph 10.4 of Schedule 3 (Vendor Warranties)) or any condition
precedent to the obligations of any party thereto has come into and/or
remains in effect, unless, in each case, the Purchaser has provided its
prior written consent thereto.
If the Vendor is unable for any reason whatsoever to deliver the statement
referred to above in respect of any Designated Asset then without any liability
on the part of the Vendor in respect thereof such Designated Asset shall
automatically become an Excluded Asset, excluded from the SF Group in accordance
with the provisions of Part C of Schedule 13 (Excluded Assets/Excluded
Contracts/Excluded Businesses).
NOLEGGI COMPLETION ADJUSTMENT
9.6 If the Noleggi Completion Balance Sheet has not been finally agreed or
determined in accordance with the terms of the Noleggi Agreement by the time the
Completion Balance Sheet is required to be delivered to the Purchaser in
accordance with clause 7.2, then within twenty (20) Business Days of final
agreement and/or determination of the Noleggi Completion Balance Sheet, the
Purchaser shall provide a copy of the Noleggi Completion Balance Sheet to the
Vendor and pay to the Vendor (for itself and as trustee for the relevant member
of the ABB Group) such amount (if any) as is equal to:
(a) the amount, if any, by which the value of the net assets shown in the
draft Noleggi Completion Balance Sheet and incorporated in the draft
Completion Balance Sheet in accordance with paragraph 12 of Schedule 8
(Completion Balance Sheet) is less than the value of such net assets as
shown in the final agreed and/or determined Noleggi Completion Balance
Sheet; less
(b) the amount of any additional consideration payable by the relevant
member of the Purchaser's Group under the Noleggi Agreement as a result
of any adjustments arising as a result of the Noleggi Completion Balance
Sheet being finally agreed and/or determined.
Page 37
CONFORMED COPY
10. VENDOR UNDERTAKINGS AND INDEMNITIES
RESTRICTIVE COVENANT
10.1 In this clause:
RESTRICTED BUSINESS means any business (in any territory) comprised
solely within the SF Business within the 18 months prior to the
Completion Date but shall exclude at any time the Excluded Businesses,
Excluded Liabilities, Excluded Assets (including Excluded Contracts) and
Excluded Claims;
DIRECTLY OR INDIRECTLY means (without prejudice to the generality of the
expression) either alone or jointly or in partnership with any other
person, firm or company or (except as the holder for investment purposes
only of securities listed, dealt in or traded on a recognised stock
exchange not exceeding 10 per cent. in nominal value of the securities
of that class in issue) as the holder of any interest in or as an agent
or representative of or consultant to any other person firm or company;
and
RESTRICTION PERIOD means the period of two calendar years from the
Completion Date.
10.2 The Vendor undertakes to the Purchaser (for itself and as trustee for
the Designated Purchasers and each SF Group Company) that it will not, and that
it shall procure that no member of the ABB Group will, directly or indirectly:
(a) at any time during the Restriction Period carry on any business which is
in competition with the Restricted Business; or
(b) at any time during the Restriction Period in relation to a business
which is the same as or in competition with the Restricted Business,
contact with a view to the engagement or employment by another person,
offer employment to, employ, or offer or conclude any contract for
services with, any person who at Completion or at any time during the
one year before Completion shall have been a director, employee, officer
or manager of an SF Group Company or otherwise employed in or by the SF
Business and, in each case, entitled to emoluments (including commission
if any) exceeding the annual rate of US$100,000 (or its equivalent in
local currency), save that this restriction shall not apply to
recruitment in response to general job advertisements not directed at
specific persons;
(c) at any time during the Restriction Period, do or say anything which is
harmful to the goodwill or reputation of the SF Business (as subsisting
at the date of this Agreement) or which is reasonably likely to lead a
person who has dealt with any SF Group Company or the SF Business on or
at any time during the one year before Completion to cease to deal with
any SF Group Company or the SF Business, in each case, in whole or in
part on substantially equivalent terms to those previously offered or at
all; or
Page 38
CONFORMED COPY
(d) at any time during the Restriction Period, on its own account or in
conjunction with or on behalf of any other person in respect of the
products or services provided by the SF Business or any member of the SF
Group at any time during the one year before Completion, either seek to
obtain orders from, or do business with, or encourage directly or
indirectly another person to obtain orders from or do business with, a
person who has been, in relation to such products or services, a
customer or supplier of the SF Business or any member of the SF Group on
or during the one year before Completion.
10.3 The Vendor acknowledges and agrees that:
(a) each of the sub-clauses contained in clause 10.2 constitutes a separate,
severable and independent covenant by and restriction on it;
(b) the duration, extent and application of each of the restrictions
contained in clause 10.2 are no greater than is necessary for the
protection of the goodwill and trade connections of the SF Business; and
(c) if any restriction contained in clause 10.2 shall be found invalid or
unenforceable but would be valid and enforceable if some part thereof
were deleted or amended, then such restriction shall continue to apply
with such minimum deletion or amendment thereto as would make it valid
and enforceable.
10.4 Subject and without prejudice to the other provisions of this Agreement,
nothing in clauses 10.1 to 10.3 shall prevent the Vendor or any member of the
ABB Group at any time from:
(a) managing, dealing with and exploiting the Excluded Assets, the Excluded
Liabilities, the Excluded Businesses, the Excluded Contracts and the
Excluded Claims in such manner as the Vendor thinks fit;
(b) the operation and management of the business of ABB Export Bank in the
ordinary and usual course as conducted prior to the date of the
Agreement;
(c) carrying on the Financial Advisory Business;
(d) the financing of equipment supplied by the ABB Group which is made by or
branded as a product of the ABB Group or of equipment where such
financing is supplied in conjunction with or ancillary to a supply of
such equipment or, in each case, the financing of the provision of
services in the connection with the supply of such equipment;
(e) the provision of advice in connection with financing of the type
described in paragraph (d) above;
(f) the employment or solicitation of any employee of the ABB Group who on
or within the one (1) year period prior to Completion held a
non-executive office with an SF Group Company, but was not otherwise
employed by an SF Group Company or in the conduct of the SF Business;
Page 39
CONFORMED COPY
(g) holding, managing, dealing with and exploiting the shares (or any
interest in the shares) of AB SEK held by the ABB Group at Completion in
such manner as the Vendor thinks fit;
(h) the provision of financial advisory services, asset finance or project
finance to other members of the ABB Group;
(i) acquiring or entering into any joint venture, partnership or other
similar arrangement with respect to another company, business or
undertaking which has as a part of its business a business or businesses
which are in competition with a part of the Restricted Business,
provided that such competitive business or businesses are not the major
part of the company, business or undertaking which is so acquired or
which is the subject of such joint venture, partnership or other similar
arrangement and, for the purposes of this clause 10.4(i) , the
expression A MAJOR PART means a part where the turnover for the latest
accounting reference period for such company, business or undertaking
attributable to that part represents 10 per cent. or more of the total
TURNOVER attributable to that company, business or undertaking for such
accounting reference period;
(j) entering into transactions of whatsoever nature for the sole purpose of
managing the tax and financial affairs (including treasury and liquidity
management) of the ABB Group (including, without limitation, entering
into leasing transactions for such purposes); or
(k) fulfilling any obligation pursuant to this Agreement and any other
Transaction Document.
RELEASE OF CERTAIN INTRA-GROUP GUARANTEES
10.5 The Vendor undertakes to the Purchaser (for itself and as trustee for
the Designated Purchasers):
(a) to use reasonable endeavours (including, where appropriate, offering a
guarantee, letter of comfort or support or any other similar arrangement
in respect of such obligations or liabilities as such third party may
reasonably require from any other member of the ABB Group in
substitution) to procure on Completion, or as soon as reasonably
practicable thereafter, the absolute and unconditional release of each
SF Group Company from all liability and contingent liability under or in
respect of any Intra-Group Guarantee (as referred to in sub-clause (b)
of the definition thereof), entered into or provided for at any time
prior to Completion by a SF Group Company;
(b) if the Vendor has not procured the absolute and unconditional release of
each SF Group Company from all liability and contingent liability under
or in respect of any such Intra-Group Guarantee (as referred to in
sub-clause (b)of the definition thereof), as at Completion, then it
shall on Completion procure the provision by an Acceptable Bank of an
irrevocable letter of credit (in a form reasonably acceptable to the
Purchaser) for not less than an amount
Page 40
CONFORMED COPY
equivalent to the aggregate amount of the liability and contingent
liability under the relevant Intra-Group Guarantee;
(c) pending release of each SF Group Company from all liability and
contingent liability under or in respect of any Intra-Group Guarantee
(as referred to in sub-clause (b) of the definition thereof) as required
by sub-clause (a) above, to indemnify each member of the Purchaser's
Group on demand in respect of all Costs incurred on or after Completion
by each member of the Purchaser's Group under or in respect of such
Intra-Group Guarantees, save to the extent that such Costs are
specifically provided for in the Completion Balance Sheet; and
(d) to bear all Costs incurred and to be incurred in relation or incidental
to or as a consequence of the release or discharge of the Intra-Group
Guarantees (as referred to in sub-clause (b) of the definition thereof)
as required by sub-clause (a) above.
For the purposes of this clause 10.5, COSTS incurred in relation to or as a
consequence of the release or discharge of the Intra-Group Guarantees shall
include, without limitation, any costs, fees or charges incurred by each SF
Group Company (a) continuing to be bound thereby and/or (b) in relation to the
letter of credit referred to in sub-clause (b) above.
RETAINED LC BACKED GUARANTEES
10.6 The ABB Guarantor hereby undertakes to perform in the event of a default
by the primary obligor thereunder, the obligations of the relevant member of the
ABB Group or its obligations under the Retained LC Backed Guarantees, on and
subject to the terms of the Retained LC Backed Guarantees (and for the avoidance
of doubt the ABB Guarantor shall be obliged to make payment under this clause
only to the extent that the relevant primary obligor would be obliged to make
payment under the Retained LC Backed Guarantee).
LETTER OF CREDIT
10.7 If so requested by the ABB Guarantor and subject to the proviso below,
the Purchaser shall procure that the Retained LC Backed Guarantees (or any of
them) are released by the relevant SF Group Companies in the event that
agreement is entered into pursuant to which the relevant obligor would cease to
be a member of the ABB Group, provided that the obligations of the ABB Guarantor
under clause 10.6 shall continue to apply notwithstanding such termination as if
the Retained LC Backed Guarantee had remained in full force and effect.
10.8 At Completion (but subject to clause 10.9) the Vendor shall procure the
provision by an Acceptable Bank to the Purchaser (as trustee for the relevant SF
Group Company) of an irrevocable letter of credit (in a form reasonably
acceptable to the Purchaser) (a LETTER OF CREDIT) for 50 per cent. of the
aggregate outstanding value of the maximum liability (whether actual or
contingent) under the Retained LC Backed Guarantees (together, the OUTSTANDING
VALUE), such amount to be reduced to the extent that and proportionate to the
Outstanding Value being reduced (A) as a
Page 41
CONFORMED COPY
consequence of a Retained LC Backed Guarantee having expired or having been
released (either in whole or in part); or (B) by the amount of any drawing under
the Letter of Credit. The Letter of Credit shall expire or terminate on the date
on which the last Retained LC Backed Guarantee expires or has been released or
the Outstanding Value is nil.
10.9 Notwithstanding the provisions of clause 10.8, in the event that, and
only for so long as, the long-term unsecured, unsubordinated debt rating of the
ABB Guarantor is down-graded below "A" by Standard & Poor's Ratings Group or
"Baa2" by Xxxxx'x Investors Service, Inc., then upon the request of the
Purchaser the amount of the Letter of Credit shall be increased to 100 per cent.
of the Outstanding Value at the time and the Letter of Credit to be renewed
accordingly. The terms of the renewed Letter of Credit shall be the same as
those of the Letter of Credit immediately prior to its renewal, except that its
amount (compared with the amount of the Letter of Credit immediately prior to
its renewal) will be increased to the amount of the Outstanding Value at the
time.
10.10 In the event that, and for so long as, the credit rating of the ABB
Guarantor is subsequently up-graded by the above credit rating agencies to
stand, in each case, at least at the levels indicated in clause 10.9 above, then
the Vendor shall be entitled to decrease the amount of the Letter of Credit back
to 50 per cent. of the Outstanding Value at the time and the Letter of Credit
shall be renewed accordingly on the same terms.
10.11 In the event that the long-term unsecured, unsubordinated debt rating of
the ABB Guarantor is rated at least better than "A+" by Standard & Poor's
Ratings Group and "A1" by Xxxxx'x Investors Service, Inc. the obligation of the
Vendor to provide the Letter of Credit shall be suspended for so long as such
rating remains above such levels. If the rating of the ABB Guarantor falls below
the rating specified above, then the Vendor shall be obliged within ten (10)
Business Days of such event to:
(a) deliver a Letter of Credit to the Purchaser (as trustee for the relevant
Group Company) complying with the provisions of clause 10.8 (or clause
10.9 as the case may be); or
(b) execute all documents and do all other things necessary and/or desirable
(in the opinion of the Purchaser) to replace the current Letter of
Credit with either:
(i) a new Letter of Credit from a new Acceptable Bank in an amount
at least equal to the then required amount of the Letter of
Credit in accordance with clause 10.8 (or clause 10.9 as the
case may be) above; or
(ii) a US$ cash deposit with an Acceptable Bank, in an amount at
least equal to the then required amount of the Letter of Credit
in accordance with clause 10.8 (or clause 10.9 as the case may
be) above and secured by way of a first priority perfected
fixed security interest in favour of the Purchaser (ALTERNATIVE
SECURITY); and
Page 42
CONFORMED COPY
(c) deliver originals of all such documentation as the Purchaser shall
reasonably require to evidence such replacement (including in the case
of (ii) above relevant legal opinions).
10.12 If any of the parties hereto becomes aware that the long-term unsecured,
unsubordinated debt rating of the provider of the Letter of Credit (the L/C
PROVIDER) or the institution holding Alternative Security has fallen below "AA"
by Standard & Poor's Ratings Group or "Aa2" by Xxxxx'x Investors Service, Inc.
(or, in the case of a Schedule 25 Bank, below the credit rating of such Schedule
25 Bank specified opposite its name in Schedule 25 (Schedule 25 Banks)) it shall
notify the other and the Vendor shall, within ten (10) Business Days of such
notice:
(a) execute all documents and do all other things necessary and/or desirable
(in the opinion of the Purchaser) to replace the current Letter of
Credit (or Alternative Security) with either:
(i) a new Letter of Credit from a new Acceptable Bank in an amount
at least equal to the then required amount of the Letter of
Credit in accordance with clause 10.8 (or clause 10.9 as the
case may be) above; or
(ii) a dollar cash deposit with an Acceptable Bank, in an amount at
least equal to the then required amount of the Letter of Credit
in accordance with clause 10.8 (or clause 10.9 as the case may
be) above and secured by way of a first priority perfected
fixed security interest in favour of the Purchaser (ALTERNATIVE
SECURITY); and
(b) deliver originals of all such documentation as the Purchaser shall
reasonably require to evidence such replacement (including, in the case
of (ii) above relevant legal opinions).
10.13 The Purchaser shall be entitled, but not obliged, to make a demand under
the Letter of Credit or to enforce its rights under any Alternative Security for
the payment of an amount up to the amount of the Letter of Credit or Alternative
Security upon (and at any time following) either (i) any default by the ABB
Guarantor in the performance of its obligations under clause 10.6, (ii) any
default by the ABB Guarantor in the performance of its obligations under clause
35 in respect of the Specified Obligations, or (iii) in circumstances where the
long-term unsecured, unsubordinated debt rating of the ABB Guarantor has been
downgraded below "A" by Standard & Poor's Ratings Group or "Baa2" by Xxxxx'x
Investors Service, Inc., any default by the Vendor in respect of its obligations
under the Designated Asset Agreement or any default by the ABB Guarantor in
respect of its obligations under clause 35 which relate to such obligations of
the Vendor.
10.13A If the Vendor has provided to the Purchaser Alternative Security it
shall be entitled upon reasonable notice and at no cost to the Purchaser to
replace such Alternative Security with an acceptable Letter of Credit otherwise
complying with the requirements of clauses 10.8 to 10.13 and the Purchaser shall
at the cost of the Vendor take reasonable steps to assist in such process.
Page 43
CONFORMED COPY
INTELLECTUAL PROPERTY
10.14 The Vendor hereby grants, or, if applicable, shall procure that all
other members of the ABB Group grant, to the Purchaser's Group at Completion, a
world-wide, non-exclusive, royalty-free and irrevocable licence (including the
right to sub-license) to use any SF Shared Intellectual Property Rights in or in
relation to the SF Business, to come into effect at the Completion Date. Nothing
in this clause 10.14 shall prevent the Vendor or any member of the ABB Group
from selling, assigning or Encumbering any SF Shared Intellectual Property
Rights, provided that any such sale, assignment or Encumbrance shall not affect
the licence granted in this clause 10.14. Notwithstanding clause 22, the licence
granted in this clause 10.14 shall be assignable (in whole or in part) on a sale
(or other transfer) of a whole or any part of the SF Business and/or any SF
Group Company.
10.15 The Purchaser acknowledges and agrees that:
(a) the SF Shared Intellectual Property Rights are vested in and owned by a
member of the ABB Group;
(b) it shall not in any territory acquire or claim any interest in or title
to the SF Shared Intellectual Property Rights by virtue of the licence
granted in clause 10.14;
(c) all goodwill arising through use of the SF Shared Intellectual Property
Rights under the licence granted in clause 10.14 shall accrue solely to
the ABB Group; and
(d) it shall use its best endeavours not to do anything which is reasonably
likely to prejudice the enforceability or validity of the SF Shared
Intellectual Property Rights.
10.16 To the extent that any Software Licence or SF IPR Licence contains any
provision pursuant to which the relevant Software Licence or SF IPR Licence will
terminate or become terminable as a result of Completion, the Vendor shall (at
its sole expense, but with the Purchaser's reasonable co-operation where
necessary), with effect from the Completion Date and at its sole option:
(a) procure the waiver by the relevant counterparty or counterparties of all
such provisions; or
(b) procure the grant of an equivalent direct licence from the same provider
with materially equivalent scope and on no more onerous terms to the
relevant Software Licence or SF IPR Licence (including, without
limitation, terms as to price and duration); or
(c) procure the grant of a replacement licence from another provider with
materially equivalent scope and on no more onerous terms and with
substantially equivalent functionality to the relevant Software Licence
or SF IPR Licence (including, without limitation, terms as to price and
duration) provided that such licence is reasonably acceptable to the
Purchaser.
Page 44
CONFORMED COPY
10.17 To the extent that any Shared IPR Licence or SF Group Licence can be
sub-licensed to the Purchaser (or its nominee) by the relevant member of the ABB
Group without the need to obtain any consent, authorisation, waiver from, or
give any notice to the relevant counterparty or counterparties (for the purpose
of clauses 10.17 to 10.19, IPR CONSENTS), the Vendor hereby sub-licenses or, as
appropriate, agrees to procure the sub-license of, all such Shared IPR Licences
and SF Group Licences to the Purchaser (or its nominee), with effect from the
Completion Date. The terms of all such sublicences (including, without
limitation, terms as to price and duration) shall, so far as is relevant, be
materially equivalent to the terms in the relevant Shared IPR Licence or SF
Group Licence (as appropriate).
10.18 To the extent that any Consent is required for the Vendor to grant or,
as appropriate, procure the grant of, a sub-licence to the Purchaser (or its
nominee) of any SF Group Licence or Shared IPR Licence, the Vendor shall (at its
sole expense but with the Purchaser's reasonable co-operation where necessary),
with effect from the Completion Date and at its sole option:
(a) obtain all such IPR Consents; or
(b) procure the grant of an equivalent direct licence from the same provider
with materially equivalent scope and on no more onerous terms to the
relevant SF Group Licence or Shared IPR Licence (including, without
limitation, terms as to price and duration); or
(c) procure the grant of a replacement licence from another provider with
materially equivalent scope and on no more onerous terms and with
substantially equivalent functionality to the relevant SF Group Licence
or Shared IPR Licence (including, without limitation, terms as to price
and duration) provided that such licence is reasonably acceptable to the
Purchaser.
10.19 The Vendor shall, or, as appropriate, shall procure that the relevant
member of the ABB Group shall (at its sole expense but with the Purchaser's
reasonable co-operation where necessary), with effect from the Completion Date
and at its sole option:
(a) procure that the benefit of all support and maintenance agreements
related to an SF Group Licence or Software Licence are made available to
the Purchaser (or its nominee); or
(b) procure the grant from another provider of an appropriate replacement
support and maintenance agreement with materially equivalent scope and
on no more onerous terms to the relevant support and maintenance
agreement (including, without limitation, terms as to price and
duration) provided that such agreement is reasonably acceptable to the
Purchaser;
provided that this clause 10.19 shall not oblige the Vendor to make available to
the Purchaser (or its nominee) the benefit of any support and maintenance
agreement that relates to an SF Group Licence in relation to which the relevant
IPR Consent (or substitute direct licence) has been refused, or a Software
Licence in relation to which the
Page 45
CONFORMED COPY
relevant consent, waiver, authorisation or notice or substitute direct licence)
referred to in clause 10.16 has been refused.
10.20 The Vendor shall indemnify and hold harmless all members of the
Purchaser's Group against all and any claims, liabilities, obligations, losses,
reasonable costs, expenses and payments (including, without limitation, licence
fees or royalty payments) incurred or suffered by any member of the Purchaser's
Group as a result of:
(a) any failure by the Vendor to comply with its obligations under clauses
10.16, 10.17, 10.18 or 10.19; or
(b) the replacement of any Software Licence, SF IPR Licence, Shared IPR
Licence or SF Group Licence pursuant to clause 10.16(c) or 10.18(c),
including (without limitation) against any such claims, liabilities,
obligations, losses, costs, expenses or payments arising because any
member of the Purchaser's Group:
(i) requires the replacement, modification or installation of
hardware, software or any other IT infrastructure;
(ii) requires the provision of additional training;
(iii) requires the allocation of additional man-hours or resources;
or
(iv) suffers any disruption to the operation of the SF Business (or
any part thereof) (provided that the Purchaser shall use its
reasonable endeavours to mitigate the effects of such
disruption);
in relation to, or as a consequence of, such replacement licence (or related
replacement support and maintenance agreement as referred to in clause 10.19(b))
provided that the indemnity in this clause 10.20 shall not include any costs,
expenses, or payments due under any direct licence or replacement licence which
are no greater than any costs, expenses or payments (including, without
limitation, licence fees or royalty payments) which would have been payable by
the Purchaser under the relevant Software Licence or SF IPR Licence had the
Vendor procured the waiver pursuant to clause 10.16(a), under a sub-licence
granted under the relevant Shared IPR Licence or SF Group Licence pursuant to
clause 10.18(a), or under the related support and maintenance agreement (in
either case).
10.21 The Purchaser hereby grants, or, if applicable, shall procure that the
relevant SF Group Company grants, to the Vendor, a world-wide, non-exclusive,
royalty-free and irrevocable licence (including the right to sub-license) to use
any ABB Shared Intellectual Property Rights in or in relation to that part of
the business of the ABB Group in, or in relation to which, such ABB Shared
Intellectual Property Rights were used prior to Completion, to come into effect
at the Completion Date. Nothing in this clause 10.21 shall prevent the Purchaser
or any member of the Purchaser's Group from selling, assigning or encumbering
any ABB Shared Intellectual Property Rights, provided that any such sale,
assignment or encumbrance shall not affect the licence granted in this clause
10.21. Notwithstanding clause 22, the licence granted in this
Page 46
CONFORMED COPY
clause 10.21 shall be assignable (in whole or in part) on a sale (or other
transfer) of a whole or any part of the relevant business of the ABB Group.
10.22 The Vendor acknowledges and agrees that:
(a) the ABB Shared Intellectual Property Rights are vested in and owned by
an SF Group Company;
(b) it shall not in any territory acquire or claim any interest in or title
to the ABB Shared Intellectual Property Rights by virtue of the licence
granted in clause 10.21;
(c) all goodwill arising through use of the ABB Shared Intellectual Property
Rights under the licence granted in clause 10.21 shall accrue solely to
the SF Group Companies; and
(d) it shall use its best endeavours not to do anything which is reasonably
likely to prejudice the enforceability or validity of the ABB Shared
Intellectual Property Rights.
SPECIFIC INDEMNITIES
10.23 The Vendor hereby undertakes to indemnify and hold harmless the
Purchaser (for itself and as trustee for each member of the Purchaser's Group)
on demand against all losses, costs, expenses, actions, proceedings, claims,
demands, obligations and liabilities (LOSSES and each a LOSS) incurred or
suffered by any member of the Purchaser's Group save to the extent (i) satisfied
or otherwise discharged prior to Completion or (ii) of any specific provision
made therefor in the Completion Balance Sheet to the extent that such Losses
arise or result from:
(a) (i) any Excluded Assets, Excluded Contracts, Excluded Companies,
Excluded Liabilities, Excluded Claims and/or Excluded Businesses; and/or
(ii) any other assets, liabilities and/or businesses (to the extent such
do not form part of the SF Business);
(b) the Hive-Down and Transfer and/or the Pre-Sale Reorganisation and/or any
other transfer of assets (including shares and companies) and/or
liabilities undertaken between members of the ABB Group (including, for
the purposes of this sub-clause, the SF Group) in contemplation of the
Proposed Transaction (together the REORGANISATIONS, the REORGANISATION
ASSETS and the REORGANISATION LIABILITIES) (including, without
limitation, any failure to implement any such Reorganisations either in
accordance with its respective agreed steps and/or terms and/or in
compliance with applicable law and/or regulation), save that the fact of
the payment or receipt of (or the obligation to pay or receive)
consideration in respect of the relevant Reorganisation Assets and/or
Reorganisation Liabilities transferred under any such Reorganisations,
pursuant to the relevant Reorganisation, shall not constitute a Loss for
this purpose;
Page 47
CONFORMED COPY
(c) any circumstance subsisting at Completion where any SF Group Company
leases equipment to a third party under a transaction booked by a SF
Group Company prior to Completion and title to that equipment is
subsequently found not to vest in the relevant member of the SF Group
pursuant to the operation of law 1845:50 s. 1 in Sweden and the relevant
SF Group Company has not otherwise taken measures to provide alternative
recourse;
(d) any claims brought by any third party, including without limitation, the
Swedish Financial Supervisory Authority, any other authority, financial
consultants or any present or previous customers of any SF Group
Company, concerning the computation of any rentals, fees or charges
(including computation of any interest rates in relation thereto)
arising from the provision by any SF Group Company of any lending or
leasing facilities prior to Completion;
(e) [Intentionally blank]
(f) in relation to the Guarantee Offer dated 21 December 2001 issued by
Exportkreditnamnden (EKN) or any guarantee issued pursuant thereto in
respect of the obligations of Tower Automotive Belgium B.V.B.A.
(together the EKN GUARANTEE):
(i) EKN, when applying the terms and conditions of the EKN
Guarantee, determining that a loss is not indemnifiable under
the EKN Guarantee as a consequence of the underlying
transaction (in EKN's determination) constituting a supplier's
credit and not a loan; or
(ii) the EKN Guarantee being, becoming or being held to be invalid,
unenforceable, illegal or void or being withdrawn or
dishonoured or any claim thereunder being refused or any other
Loss or Losses suffered in connection therewith, in each case
due directly or indirectly to any act or omission or any
misrepresentation on or any failure fully to disclose, of any
member of the ABB Group, in each case, prior to Completion;
(g) (i) any investigation, proceedings or other action by any relevant
regulatory authority with jurisdiction (including for any
fines, penalties, damages and other claims incurred in respect
of such investigation, proceedings or action) arising from or
as a result of any failure by ABB Structured Finance (Americas)
Inc. to be licensed prior to July 17, 2002 under the California
Lenders Law (California Financial Code, Division 9, Sections
22000 - 22780); or
(ii) any transaction originated, acquired or booked by ABB
Structured Finance (Americas) Inc. prior to Completion being or
becoming the subject of a claim or having become, becoming, or
being declared in whole or in any part, void, voidable,
unenforceable, subject to restriction or contrary to the public
interest as a result of any such failure as described in
sub-clause (g)(i) above or as a result of violating the usury
laws of the State of California, USA;
Page 48
CONFORMED COPY
(h) the non-compliance from 31 December 2001 to 18 January 2002 by ABB
Credit Finans AB with regard to an exposure to the ABB Group exceeding
the maximum single exposure limit under Swedish law and an exemption
granted by the Swedish Financial Supervisory Authority in the letter
dated 27 June 1995;
(i) until 31 January 2004, the guarantee granted by Hydro Quebec in favour
of ABB TD Finance AB and ABB CSC Finance AB in respect of the
obligations of Cross Sound Cable Company, LLC being or becoming invalid,
unenforceable, illegal or void;
(j) [Intentionally blank]
(k) any claims brought by a third party against a member of SF Group
relating to the direct or indirect Nazi control of any European country
during the period from 1933 to 1945;
(l) any claims brought against any member of the SF Group or the Purchaser's
Group in relation to the exposure prior to Completion of any person to
asbestos or asbestos-containing materials or otherwise in relation to
the presence, manufacture, processing, use, disposal, release, or
deposit of asbestos or asbestos containing materials in any of the
businesses from time to time of the ABB Group (excluding the SF
Business) prior to Completion including for the avoidance of doubt, such
claims arising out of the ownership or control of the SF Group by any
member of the ABB Group or any contractual agreement or arrangement to
assume or share liability between the relevant member of the SF Group
and another member of the ABB Group;
(m) the failure by the Norwegian branch of Xerox Credit AB, prior to the
acquisition by Resonia Leasing AB of the Norwegian portfolio of Xerox
Credit AB, to specify the serial number of the relevant equipment in the
Finance Agreements and to ensure that the Finance Agreements were
entered into prior to delivery of the equipment to the lessees, as
described in section 11.8 of the Disclosure Letter;
(n) the failure prior to Completion to notify lessees of the assignment of
contracts to Resonia Leasing AB, pursuant to a co-operation agreement
with Rubrik Finans AB (Merkantildata), as described in the disclosure
set out in paragraph 11.8 of the Disclosure Letter;
(o) any claim (and/or any settlement or other payment made or liability
incurred in relation to such claim) brought by Professional Supply, Inc.
against ABB Energy Capital LLC in relation to a financing proposal made
by ABB Energy Capital LLC, more particularly described in the disclosure
set out in paragraph 23.1 of the Disclosure Letter;
(p) the failure by Xerox S.p.A to make any payment due to Xerox Noleggi
S.p.A (a XEROX DEFAULT). The Vendor's liability under paragraph (p) of
this clause 10.23 shall apply only to the extent that Xerox defaults, in
respect of obligations in force at Completion, in aggregate exceed US$12
million;
Page 49
CONFORMED COPY
(q) the failure to obtain consent from the landlord of the property numbered
18 in Part A of Schedule 5 (The Properties) to the transfer of the
membership interests of ABB Energy Capital LLC which took place pursuant
to the 2002 US re-organisation details of which are set out in the
section headed "SF Reorganisation - USA" in Schedule 2 of the Disclosure
Letter;
(r) any non-compliance with law and/or regulation by any member of the ABB
Group and/or the SF Group in connection with or as a result of the
repayment or refinancing of Intra-Group Indebtedness as contemplated by
this Agreement;
(s) the failure of ABB Automotive Technology Products AB to pay to ABB
Structured Finance AB Euro 325,000 for 25 robots leased to Philips
Components Lehbring GmbH pursuant to a buy-back agreement referred to in
the Disclosure Letter against Warranty 10.1(b).
FURTHER UNDERTAKINGS
SERVICE CONTRACTS
10.24 The Vendor shall use reasonable endeavours to encourage certain
Employees named by the Purchaser prior to Completion to enter into and sign
service contracts with a SF Group Company to be determined by the Purchaser.
KEY CONTRACTS
10.25 If any Key Contract requires a consent, approval, waiver or the like
with respect to the change of control of the respective SF Group Company
contemplated by this Agreement (KEY CONTRACT CONSENT), the Vendor shall, or
shall procure that the relevant member of the ABB Group shall (at the Vendor's
cost), use all reasonable endeavours to procure the Key Contract Consent with
effect from Completion and the Purchaser shall provide or procure the provision
of any information reasonably requested by the person, firm or company concerned
(provided that the obligations of the Purchaser or the relevant Designated
Purchaser in respect of such Key Contract Consent are no more onerous than the
equivalent obligations contained in the Key Contract to which the same relates)
and the Vendor shall, or shall procure that the relevant member of the ABB Group
shall, as soon as possible after receipt, deliver such Key Contract Consent to
the Purchaser or the relevant Designated Purchaser.
10.26 Without limiting the other provisions of this clause 10, if the relevant
Key Contract Consent is not obtained before the Record Date, the Purchaser may
by written notice to the Vendor elect to treat such Key Contract as an Excluded
Asset, excluded from the Proposed Transaction in accordance with 0 of 0
(Excluded Assets/Excluded Contracts/Excluded Businesses), and thereafter, as at
or at any time after such Key Contract Consent is obtained the Purchaser may by
written notice to the Vendor then elect to treat such Key Contract in
accordance, MUTATIS MUTANDIS, with clauses 2.10 and 2.12.
10.27 The Vendor shall indemnify the Purchaser and each member of the
Purchaser's Group against each loss, liability, cost and/or expense incurred as
a result
Page 50
CONFORMED COPY
of any of the facts, matters and/or circumstances set out in clauses 10.25 to
10.26 (inclusive) occurring or having occurred, including any Key Contract
Consent not being obtained in accordance with the terms of the relevant Key
Contract, any Key Contract not being owned from time to time, (whether legally
or beneficially) by a member of the Purchaser's Group, any member of the
Purchaser's Group not obtaining the benefit of any Key Contract and/or the
implementation of any of the arrangements set out in such clauses.
EXPORT BANK TRANSACTIONS
10.28 If any Export Bank Transaction requires a consent, approval, waiver or
the like from the Swiss Federal Banking Commission, the New York State Banking
Department or any other regulator with jurisdiction in relation to the transfer
of such Transaction by ABB Export Bank (or any other member of the ABB Group) to
the relevant Designated Purchaser (REGULATORY APPROVAL), the Vendor shall, or
shall procure that the relevant member of the ABB Group shall, use all
reasonable endeavours to procure that Regulatory Approval shall be obtained
prior to Completion.
10.29 Where a Regulatory Approval relating to an Export Bank Transaction has
not been obtained at or prior to Completion or any unduly onerous condition has
been imposed by any regulator with jurisdiction in relation to such transaction,
the transfer of the relevant Export Bank Transaction shall not take effect,
notwithstanding Completion, until that Regulatory Approval has been obtained or
unduly onerous condition withdrawn and the Vendor and the Purchaser shall use
their respective reasonable endeavours (at the cost of the Vendor) after
Completion to obtain such Regulatory Approval or withdrawal of such onerous
condition as soon as possible.
10.30 Following Completion, in the event that the transfer of any of the
Export Bank Transactions is not completed as at such date, the provisions of
clause 8 (other than clause 8.1(a)) shall, for the avoidance of doubt, apply,
mutatis mutandis to such Export Bank Transactions and, for the avoidance of
doubt, the relevant Regulatory Approval shall (in addition to any other
consents, approvals, waivers or the like required to transfer any of the Export
Bank Transactions to the relevant Designated Purchaser) constitute a Consent for
such purpose.
10.31 Within two (2) Business Days of the final agreement and/or determination
of the Final Completion Balance Sheet in accordance with clause 7, the Vendor
shall deliver a schedule confirming the amount of the Final ABB Export Bank
Outstanding Loan Balance (in the form attached as Part C of Schedule 17
(Business Assets/Transfer Employees/Export Bank Transactions)) and the ABB
Export Bank Intra-Group Indebtedness as at Completion (in the form attached as
Part B of Schedule 11 (Accountants' Report and Indebtedness Schedule)), in each
case, as derived from, reflected in and/or consistent with the Final Completion
Balance Sheet.
10.32 The parties confirm and agree that:
(a) the Final ABB Export Bank Outstanding Loan Balance shall, subject to and
in accordance with the provisions of Schedule 8 (Completion Balance
Sheet), be included
Page 51
CONFORMED COPY
and taken into account in the calculation and determination of Owner's
Equity and, as a result, in the calculation of the Final Consideration
and that, consequently and for the avoidance of doubt, to the extent
that the amount of the Final ABB Export Bank Outstanding Loan Balance
differs from the amount of the Estimated ABB Export Bank Outstanding
Loan Balance paid on Completion pursuant to clauses 2.4A and 6.4, such
difference shall be taken into account pursuant to the provisions of
clauses 2.5 to 2.9 (inclusive); and
(b) all ABB Export Bank Intra-Group Indebtedness shall, in accordance with
clause 5.12(a), be included and taken into account in the calculation
and repayment of Intra-Group Indebtedness pursuant to clauses 5.3 to
5.10 (inclusive).
DEBARRED PERSONS / ENTITIES
10.33 The Vendor undertakes that as soon as reasonably practicable after the
signing of this Agreement and, in any event, by not later than fifteen (15)
Business Days thereafter, to the extent that such has not already been done, it
will, and it will procure that each SF Group Company, Business Asset Vendor and
Share Vendor will, in a manner not prohibited by applicable law or regulation
(including without limitation those regarding the preservation of privacy or
confidentiality of data):
(a) give to the Purchaser all relevant information (including without
limitation the Due Diligence Data Tapes and all relevant documentation
relating to Business Contracts, Infrastructure/ Mid Market Financial
Assets and Small Ticket Financial Assets) in such usable and appropriate
form as is to be agreed between the Vendor and the Purchaser; and
(b) cooperate with and provide all reasonable assistance to the Purchaser
and its agents and advisers,
so as to enable the Purchaser to:
(i) identify from such information the names of relevant
counterparties to, and other principal participants in, the
underlying transactions and assets (each a TRANSACTION NAME);
and
(ii) perform a thorough analysis (using appropriate software or
other methods) of such information and such Transaction Names
against the information and names on:
(A) the Composite EU / Bank of England Prohibited Persons
List; and
(B) the US Prohibited Persons List.
together the Prohibited Lists.
Page 52
CONFORMED COPY
10.34 If the analysis performed pursuant to clause 10.33(ii) above produces
any match between any Transaction Name and any name on any of the lists referred
to in sub-clauses (A) or (B) above:
(a) the Vendor shall co-operate and assist the Purchaser to verify the
apparent match;
(b) if the apparent match is verified, then, in relation to such match:
(i) prior to Completion, the Vendor shall, in consultation with the
Purchaser and taking due account of the Purchaser's reasonable
opinions, take such steps and actions as may reasonably be
required in order to comply in a timely manner with applicable
law and/or regulation relating to such Prohibited Lists
(including reporting such results and analyses to, and
co-operating with, relevant authorities); and
(ii) on or after Completion, the Purchaser may take such steps and
actions as may reasonably be required in order to comply in a
timely manner with applicable law and/or regulation relating to
such Prohibited Lists (including the blocking of relevant
accounts and/or the termination of relevant agreements or
transactions);
(c) if immediately prior to Completion, following the steps and actions
taken pursuant to sub-clauses (a) and/or (b)(i) above, any match (or any
asset or transaction to which such match relates) does not comply with
or is in breach of applicable law and/or regulation relating to such
Prohibited Lists, then the Purchaser shall be entitled by written notice
to the Vendor to exclude such assets and/or transactions, in which case,
such assets and/or transactions shall be treated for all purposes as
Excluded Assets; and
(d) if on or after Completion, following the steps and actions taken
pursuant to sub-clauses (a) and/or (b) above, any match (or any asset or
transaction to which such match relates) does not comply with or is in
breach of applicable law and/or regulation relating to such Prohibited
Lists, then the Purchaser shall be entitled by written notice to the
Vendor to require such assets and/or transactions and, in each case, the
liabilities thereunder to be transferred to any member of the ABB Group
or, if so designated by the Vendor, any other entity (other than a
member of the Purchaser's Group) in accordance (mutatis mutandis) with
the provisions of Part C of Schedule 13 (Excluded Assets/Excluded
Contracts/Excluded Businesses).
10.35 If the analysis performed pursuant to sub-clause 10.33(ii) above fails
to produce a match with a name on any of the Prohibited Lists, and such failure
arises as a result of the Vendor's failure to perform any of its obligations
pursuant to clause 10.33(a) and/or (b) above, then the Purchaser shall be
entitled (in its absolute discretion) to exclude or transfer to any member of
the ABB Group or, if so designated by the Vendor, any other entity (other than a
member of the Purchaser's Group) the relevant underlying transaction or asset
and, in each case, the liabilities thereunder in accordance with sub-clauses
10.34(c) or (d), as the case may be.
Page 53
CONFORMED COPY
10.36 The Vendor shall indemnify the Purchaser (for itself and as trustee for
each member of the Purchaser's Group) on an after Tax basis against all losses,
liabilities, costs and expenses incurred by any member of the Purchaser's Group,
in each case, to the extent that:
(a) such arise or relate to any non-compliance with law and/or regulation in
the circumstances described in clauses 10.33 to 10.35, and/or any
remediation or resolution of such non-compliance in accordance with
clauses 10.34 and/or 10.35 (including without limitation, any relevant
reduction or repayment of consideration as a result of assets and/or
transactions becoming Excluded Assets or being transferred to any
member(s) of the ABB Group); and
(b) any such non-compliance already constitutes or would, as at Completion,
constitute non-compliance for or by any relevant member of the ABB
Group.
10.37 To the extent that the Vendor and Purchaser disagree from time to time
as to whether any matter to which clauses 10.33 to 10.36 relate is in compliance
with law and/or regulation relating to the Prohibited Lists, then such
disagreement may be referred by either party to independent and reputable senior
legal counsel with appropriate expertise practising and qualified in the primary
jurisdiction in which such relevant law and/or regulation applies, for
determination. The Vendor and Purchaser shall agree the identity of such
counsel, failing which the President of The Law Society of England and Wales
shall (acting reasonably) determine the identity of such counsel. In determining
the dispute:
(a) such counsel shall act as expert and not as arbitrator;
(b) such counsel shall reach his/her determination within five (5) Business
Days of accepting such appointment;
(c) the decision of such counsel shall, in the absence of fraud or manifest
error, be final and binding on the Vendor and the Purchaser; and
(d) the costs of such counsel shall follow the outcome of the determination
and shall be paid by the Vendor and the Purchaser in such proportions as
shall be determined by such counsel on such basis.
POST-COMPLETION NOTIFICATIONS
10.38 The Vendor shall, and shall procure that it and its Affiliates shall,
from time to time, and so far as each of them is legally and reasonably able,
assist with any change of control notification requirements required by any
state or regulatory or other authority arising in contemplation or from the
fulfilment of the Proposed Transaction.
10.39 The Vendor undertakes to the Purchaser (for itself and as trustee for
each Designated Purchaser) to use reasonable endeavours to assign, or procure
the assignment of, on Completion (or as soon as reasonably practicable
thereafter) the benefit of each restrictive covenant (or its equivalent in any
relevant jurisdiction) given for the benefit of the Vendor or any member of the
ABB Group in connection with any SF Group Company, the Business Assets, the
Business Contracts or any
Page 54
CONFORMED COPY
other assets comprising part of the SF Business, failing which the Vendor
undertakes to use reasonable endeavours to enforce such restrictive covenants on
behalf and for the benefit of the Purchaser and the Purchaser's Group at the
cost of the Purchaser.
GENERAL PROVISIONING
10.40 On the tenth (10th) Business Day of each calendar month from the date of
this Agreement until Completion but in any event not earlier than ten (10) days
after the date of this Agreement, the Vendor shall provide to the Purchaser:
(a) the total unamortised carrying amount or principal under each lease
contract or loan contract, respectively, (being the aggregate of each of
the ABACUS account codes listed in Part D of Schedule 22 (Reserves)) for
each entity listed in column one of Part A of Schedule 22 (Reserves)
(each a RESERVES ENTITY) as lessor or lender (RESERVES ASSETS), gross of
any existing provisions;
(b) the existing specific and general risk reserves currently established on
the balance sheet of each Reserves Entity; and
(c) any risk reserves of each Reserves Entity provided by way of insurance
policy,
as per the end of the respective preceding month (RESERVE MONTHS) and in the
format set out in Part A and B of Schedule 22 (Reserves) (each, a RESERVES
UPDATE).
10.41 The Vendor shall at Completion post an amount equal to the Additional
Reserves to the US GAAP balance sheet only of each Reserves Entity without
prejudice to maintaining its existing reserves (having adjusted for Excluded
Assets, Excluded Liabilities, Excluded Claims, Excluded Companies, Excluded
Businesses and associated reserves) in full (but including insurance reserves).
The Additional Reserves shall be reflected in the Completion Balance Sheet.
10.42 In calculating the Additional Reserves:
(a) the Excluded Assets, Excluded Liabilities, Excluded Claims, Excluded
Companies, Excluded Businesses and any reserves relating thereto shall
be excluded;
(b) the Xerox Nordic Reserve shall be included;
(c) the Xerox Noleggi Reserve shall be excluded,
in the case of each of subclause (a), (b) and (c) above, from or in (as the case
may be) the Total Existing Reserve; and
(d) all calculations shall be made in the relevant local currency.
Page 55
CONFORMED COPY
10.43 The Additional Reserves shall be determined by using the data provided
in Schedule 22 (Reserves) to calculate the Base Reserve and the Growth Reserve
as follows:
(a) the Base Reserve shall be reached by multiplying the "base reserve"
percentages set forth in column 3 of Part C of Schedule 22 (Reserves) by
the total unamortised carrying amount or principal (as determined under
clause 10.40(a) above) as of 30 June 2002 set forth in column 3 of
Part A of Schedule 22 (Reserves);
(b) the Growth Reserve shall be reached by multiplying the "growth reserve"
percentages set forth in column 4 of Part C of Schedule 22 (Reserves) by
the change in the total unamortised carrying amount or principal (as
determined under clause 10.40 (a) above) between 30 June 2002 and the
Completion Date,
and, provided that the Purchaser shall ensure that no Reserves Entity is in
breach of regulatory capitalisation requirements as a consequence of the
Additional Reserves being posted, the Vendor shall give such reasonable
assistance to the Purchaser as the Purchaser may request for the purposes of
meeting such requirements. The Additional Reserves shall not exceed US$70
million.
10.44 Prior to Completion, the Vendor shall procure that SECRF and SECRE's
risk insurance cash fund on deposit with Sirius shall be at least SEK
219,950,000. To the extent that such fund exceeds SEK 256,609,000 at the time of
cancellation in accordance with 10.44A (b) below, then 50 per cent. of such
excess shall be allocated to the Excluded Aircraft Assets and 50 per cent. of
such excess shall be retained as a reserve on the balance sheets of SECRF and
SECRE.
10.44A At or prior to Completion, the Vendor shall procure that:
(a) ABB Credit Finans AB (SECRF) will allocate the amount of SEK 79,732,000
of its general reserves to the Excluded Aircraft Assets, and sell the
Excluded Aircraft Assets, at their carrying balance less the aggregate
of (i) such offsetting allocated reserves and (ii) the amount of any
additional reserves allocated to the Excluded Aircraft Assets in clause
10.44 above ((i) and (ii) together being the EXCLUDED AIRCRAFT RESERVES)
to a member of ABB Group not being a SF Group Company. The net transfer
price of the assets, provisions and reserves will be recorded as an
adjustment to SECRF's Intra-Group Indebtedness;
(b) SECRF and SECRE's risk insurance cash fund on deposit with Sirius,
together with the contracts constituting such, will be cancelled and
terminated respectively, and such cash fund remitted to SECRF and SECRE
respectively except for the retained amount of SEK 11,914,000 which
shall remain with Sirius as compensation for termination of the risk
insurance cash fund; and
(c) (exclusively for purposes of its taxable earnings calculation) SECRF and
SECRE will each record taxable income representing the receipt of the
risk insurance cash fund remittance and SECRF will record a provision
for
Page 56
CONFORMED COPY
doubtful accounts of the amount of the Excluded Aircraft Reserves
resulting in entries of incremental net taxable earnings equal to the
remittance from Sirius in clause 10.44A(b) less the amount of the
Excluded Aircraft Reserves. In connection with such entries, SECRF and
SECRE shall each record an amount for current tax expense in its US GAAP
accounts (and ABACUS reporting) equal to the taxes due and payable on
its incremental net earnings. The taxes due and payable on such amount
shall be recorded as current tax expense and a liability for taxes
payable in the US GAAP accounts of SECRF and SECRE at or prior to
Completion.
10.45 As part, and included in the calculation, of the Final Consideration,
the Purchaser shall pay to the Vendor with the value as at Completion Date an
amount representing the Net Sirius Equity Impact in accordance with clause 2.4.
10.46 For the avoidance of doubt, it is hereby acknowledged and agreed that
the net effect of the reorganisation set out in clauses 10.44 and 10.44A shall
be as follows:
(a) the ABB Group will retain an amount equal to SEK 11,914,000 of SECRF and
SECRE's risk insurance cash fund on deposit with Sirius; and
(b) when the Excluded Aircraft Assets, are being extracted from and
transferred out of the SF Business to the Purchaser, the reduction to
Net Intra-Group Indebtedness payable by the SF Group to the ABB Group
(or increase to Net Intra-Group Indebtedness payable by the ABB Group to
the SF Group) shall be limited to an amount of SEK 79,732,000 less than
the carrying amount of the Excluded Aircraft Assets at the date of the
transfer.
10.47 [Intentionally blank]
10.48 [Intentionally blank]
EMPLOYEE LOANS/MORTGAGES
10.49 The Vendor undertakes that, to the extent that any loan or other funding
arrangements and/or mortgages or other security arrangement has been offered or
is in place as at Completion between any member of the ABB Group (other than a
SF Group Company) and any employee of any member of the ABB Group who is to
become an employee of any member of the SF Group or Purchaser's Group as a
result of the Proposed Transaction, it shall and shall ensure that the relevant
member(s) of the ABB Group shall:
(a) continue to perform its obligations under and honour the terms of such
arrangements; and
(b) to the extent that the Proposed Transaction, Completion and/or either of
their contemplation or implementation would entitle any member of the
ABB Group to terminate, or to accelerate or otherwise modify or amend
any right or any obligation under, any such arrangements, not exercise
or enforce such entitlement for a period equal to the later of six (6)
months following
Page 57
CONFORMED COPY
Completion; (ii) at least two (2) months' written notice; and (iii) the
period prescribed or permitted by the relevant arrangements.
PRE-EXISTING INTRA-GROUP ARRANGEMENTS
10.50 Save as otherwise provided in or contemplated by any of the Transaction
Documents, if, as at Completion, any agreements or arrangements (other than the
Transaction Documents and/or any agreements and/or arrangements related thereto)
are in existence between any member(s) of the ABB Group (excluding the SF Group)
and any member(s) of the SF Group, then the Purchaser shall be entitled
following Completion to enter into discussions with the Vendor from time to time
as to whether any such agreements or arrangements (or any of them) should
(notwithstanding their terms) be allowed to continue (either in accordance with
their terms or on revised terms) or be terminated. If, as a result of any such
discussions, the Vendor and the Purchaser:
(a) are able to agree the terms upon which such agreements and/or
arrangements are to continue, then (notwithstanding the then existing
terms of such agreements and/or arrangements) the Vendor and the
Purchaser shall each ensure that the relevant member(s) of their
respective Groups implement and enforce such agreed terms with immediate
effect and that such agreed terms are appropriately documented so as to
create legally valid, binding and enforceable obligations between such
relevant members; or
(b) are unable to agree the terms upon which such agreements and/or
arrangements are to continue or agree that such agreements and/or
arrangements should be terminated, then (notwithstanding the then
existing terms of such agreements and/or arrangements) the Purchaser
shall be entitled to terminate such agreements and/or arrangements on
two (2) months' written notice and the Purchaser and the Vendor shall
ensure that the relevant member(s) of their respective Groups each
comply with such termination as if such agreements and/or arrangements
had been terminated between such relevant members.
In the event of such termination, the Vendor and the Purchaser agree (and shall
ensure) that no member of the other's Group shall be liable for any actual,
accrued and/or contingent liabilities in respect of such agreement and/or
arrangement and/or arising as a result of such termination, unless the Vendor
and the Purchaser otherwise agree in writing or unless such relates to periods
prior to such termination but after Completion.
DEFEASANCE DEPOSIT
10.51 The Vendor shall procure that on Completion the relevant member(s) of
the ABB Group which participate(s) in defeasance deposit arrangements placed in
connection with the Essent Transactions and the Kotkan Transaction transfers
such defeasance deposits to (a) member(s) of the Purchaser's Group or such other
entity(ies), in each case, eligible to hold such deposits under applicable law
and regulation and the terms of such transactions and identified by the
Purchaser at least twenty (20) days prior to Completion, subject to the consent
of the relevant lessee to
Page 58
CONFORMED COPY
the transfer of the deposits and the release of any existing security over such
deposits and creation of any new security over the deposits upon such transfer
taking place (LESSEE CONSENT) having been obtained and such transfer not giving
rise to any event of termination (howsoever defined) under the terms of the
relevant transaction. The Vendor shall pay to the Purchaser all reasonable costs
(including legal fees) incurred by it or any Affiliate in connection with such
restructuring of the deposit arrangements.
10.52 If the relevant Lessee Consent is not obtained five (5) days prior to
the Completion Date or an event of termination would subsist as a consequence of
such transfer, the Purchaser may by written notice to the Vendor elect to treat
the Essent Transactions and/or the Kotkan Transaction (as the case may be) as an
Excluded Asset, excluded from the Proposed Transaction in accordance with Part C
of Schedule 13 (Excluded Assets/Excluded Contracts/Excluded Businesses).
MISCELLANEOUS
10.53 The Vendor shall procure that following Completion the ABB Group
provides the Purchaser with reasonable access to records and staff of the ABB
Group relating to the SF Business prior to Completion to the extent reasonably
required by the Purchaser for the purposes of satisfying its financial reporting
and tax requirements and for the purpose of processing and defending litigation
and other proceedings with third parties.
10.54 The Vendor shall procure, prior to Completion, that a policy of
insurance in respect of the Included Aircraft Assets comes into force on the
terms set out in the letter from Xxxxxx to ABB Credit AS dated 28 August 2002 in
the Agreed Form (the APPROVED INSURANCE TERMS), save that the insured party
named therein (the INSURED PARTY) shall be a member of the Purchaser's Group
notified by the Purchaser to the Vendor not less than ten (10) Business Days
prior to the Record Date. For so long as each Included Aircraft Asset remains
subject to the financing, lease or other bailment to which it was subject on the
Completion Date, the Vendor shall on demand of the Purchaser indemnify and hold
harmless the Purchaser (as trustee for the relevant member of the Purchaser's
Group) against all premiums payable from time to time in order to maintain
insurance coverage in respect of such Included Aircraft Assets on terms
providing the same scope and level of coverage as the Approved Insurance Terms,
provided that the same insurance coverage is available in the international
aviation insurance market.
10.55 The Vendor and the Purchaser agree that where any agreement or
arrangement between a member of the ABB Group (excluding the SF Group) and a
member of the SF Group provides for referral for resolution of a dispute arising
from or in connection with such agreement or arrangement to a dispute resolution
procedure under or in accordance with an internal ABB dispute resolution
procedure (or set of rules or regulations), any such dispute shall instead be
referred for resolution to any appropriate independent body (including any
relevant court with jurisdiction) and the Vendor and the Purchaser shall ensure
that no member of the ABB Group or the Purchaser's Group (as the case may be)
shall exercise its rights to refer any such dispute to such internal ABB
procedure.
Page 59
CONFORMED COPY
11. WARRANTIES
11.1 The Vendor warrants to the Purchaser as at the date of this Agreement in
the terms of the Warranties set out in Schedule 3 (Vendor Warranties) and
paragraph 2 of Schedule 9 (Tax), subject to the facts and matters fairly
disclosed as at the date of this Agreement in the Disclosure Letter in
accordance with the terms set out therein.
11.2 Only facts and matters to the extent fairly disclosed in the Disclosure
Letter (in accordance with its terms) shall qualify the Warranties. No other
knowledge or awareness (actual, constructive, or imputed) shall prevent or limit
a Claim made by the Purchaser. The Vendor shall not invoke the knowledge or
awareness (actual, constructive or imputed) of any member of the Purchaser's
Group of any fact, matter or circumstance which might make a Warranty untrue,
inaccurate or misleading as a defence to a Warranty Claim.
11.3 The Warranties set out in the separate paragraphs of Schedule 3 (Vendor
Warranties) and Schedule 9 (Tax) shall be separate and independent and (except
as expressly otherwise provided) no warranty shall be limited or expanded by
reference to any other Warranty.
11.4 The only Warranties which shall apply in respect of any Environmental
Matter are the Environmental Warranties contained in paragraph 28 of Schedule 3
(Vendor Warranties) and the Warranties contained in paragraphs 4 (Accounts and
Financial Information), 6 (Position since Accounts Date), 17 (Effect of Sale)
and 29 (Real Properties - General) but excluding paragraphs 29.6, 29.7, 29.8,
29.9 and 29.11 of Schedule 3 (Vendor Warranties).
11.5 The Vendor accepts that the Purchaser is entering into this Agreement in
reliance upon the Warranties.
11.6 Subject to clause 13.21, the Purchaser acknowledges and agrees (for
itself and as trustee for the Designated Purchasers) that:
(a) the Warranties expressly given in this Agreement are the only warranties
of any kind given by or on behalf of the Vendor or any member of the ABB
Group and on which the Purchaser may rely in entering into this
Agreement;
(b) no other statement, promise or forecast (other than as set out in the
Warranties) made by or on behalf of the Vendor or any other member of
the ABB Group may form the basis of, or be pleaded in connection with,
any claim by the Purchaser either for itself or as trustee for the
Designated Purchasers under or in connection with this Agreement; and
(c) any claim by the Purchaser for itself and as trustee for the Designated
Purchasers in connection with the Warranties shall be subject to the
provisions of this clause 11 and clause 13.
11.7 The Warranties shall be deemed to be repeated immediately before
Completion, subject to the matters fairly disclosed in the Disclosure Letter as
updated pursuant to clause 11.11, by reference to the facts and circumstances
then existing as
Page 60
CONFORMED COPY
if express or implied references in the Warranties to the date of this Agreement
were references to the date of Completion, as the context requires.
11.8 During the period between the date of this Agreement and Completion the
Vendor shall notify (and provide reasonable detail and information to) the
Purchaser promptly in writing of any fact, matter or circumstance of which it
becomes aware which is, would or would be reasonably likely to constitute a
breach of any Warranty given under clause 11.1. For the avoidance of doubt, no
such notification and no fact, matter or circumstance so notified shall
constitute disclosure against or in any other way qualify any of the Warranties
given under clause 11.1.
11.9 During the period between the date of this Agreement and Completion the
Vendor shall promptly notify (and provide reasonable detail and information to)
the Purchaser in writing of any fact, matter or circumstance of which it becomes
aware which if such fact, matter or circumstance were to subsist immediately
prior to Completion would or would be reasonably likely to constitute a breach
of any Warranty given under clause 11.7. For the avoidance of doubt, no such
notification shall constitute disclosure against or in any way qualify any of
the Warranties given under clause 11.1.
11.10 To the extent that any fact, matter or circumstance (or any cause or
basis thereof) notified pursuant to clause 11.9 or 15.2 either:
(a) arose or existed prior to the date of this Agreement; or
(b) gives rise to a termination right pursuant to clause 15; or
(c) was within the reasonable control of any member of the ABB Group,
then such notification shall not constitute disclosure against nor shall it in
any way qualify any of the Warranties given under clause 11.7 and, to such
extent, the Purchaser shall have a termination right pursuant to clause 15 or a
Warranty Claim, as the case may be.
11.11 To the extent that any fact, matter or circumstance notified pursuant to
clause 11.9 or 15.2 does not fall within the criteria set out in clause 11.10,
then such notification shall, to the extent such disclosure is fair, constitute
disclosure against and qualify the Warranties given under clause 11.7 and, to
such extent, the Disclosure Letter shall, solely in relation to the Warranties
given under clause 11.7 (and not clause 11.1), be deemed updated accordingly.
11.12 The Vendor acknowledges that:
(a) the Purchaser may rely on the Warranties in warranting to any subsequent
purchaser of all or any of the Shares, the Business Assets or all or any
part of the undertaking or assets of an SF Group Company (in each case
an ON-SALE); and
(b) for the purposes of such On-Sale, any loss, liability, cost or expense
incurred by the Purchaser pursuant to a breach of such subsequent
warranties shall
Page 61
CONFORMED COPY
constitute a loss, liability, cost or expense of the Purchaser capable
of forming the basis of a Warranty Claim hereunder,
provided, in each case, that the liabilities of the Vendor or any other member
of the ABB Group in relation to the Warranties shall be no greater than such
liabilities would have been had the On-Sale not occurred.
11.13 The Vendor agrees and undertakes (for itself and as trustee for each
member of the ABB Group) with the Purchaser (for itself and as trustee for each
entity or individual referred to in this clause 11.13), not to make any claim
against any SF Group Company or a director, officer or Employee of any SF Group
Company which it may have in respect of a misrepresentation, inaccuracy or
omission in or from information or advice provided by the SF Group Company or a
director, officer or Employee thereof for the purpose of assisting the Vendor to
give a Warranty, make a representation or prepare the Disclosure Letter, unless
and to the extent such arise as a result of the fraudulent misrepresentation of
any such individual referred to in this clause 11.13 in relation to the
provision of such information or advice.
11.14 Notwithstanding clause 31 (Contract (Rights of Third Parties) Act 1999),
the provisions of clause 11.13 may be relied on and enforced by each individual
or entity for whose benefit it is expressed or is intended to be given.
11.15 Without prejudice to the Warranties given under clause 11.7, no Warranty
given under clause 11.1 shall apply or be deemed to apply to any of the Excluded
Assets, Excluded Businesses, Excluded Claims, Excluded Companies, Excluded
Contracts or Excluded Liabilities.
11.16 Without prejudice to the Warranties given under clause 11.7, the
Warranty in paragraph 3 of Schedule 3 (Vendor Warranties) shall, when given
under or pursuant to clause 11.1, not apply or be deemed to apply in so far as
it relates to a Designated Vendor (other than the Vendor or the ABB Guarantor).
11.17 No matter shall be disclosed or deemed to be disclosed against any of
the Tax Warranties or the Warranties set out in paragraphs 10.1, 10.4, 10.5,
10.6 and 11.1 of Schedule 3 (Vendor Warranties), save to the extent that a
particular fact, matter or circumstance is expressly and fairly disclosed
against the reference to any of those Warranties set out in Section C of the
Disclosure Letter. For the avoidance of doubt, save as provided in this clause
11.17 above, any fact, matter or circumstance which is disclosed against the Tax
Warranties or the Warranties contained in paragraphs 10.1, 10.4, 10.5, 10.6 and
11.1 of Schedule 3 (Vendor Warranties) shall be deemed to be disclosed against
all other Warranties.
12. CLAIMANTS AND MEASURE OF LOSS
12.1 The only parties entitled to bring Claims under this Agreement and/or
any of the other Transaction Documents are the Purchaser (for itself and/or as
trustee for each member of the Purchaser's Group, including each Designated
Purchaser), the Vendor (for itself and/or as trustee for each member of the ABB
Group, including each Designated Vendor) and the ABB Guarantor.
Page 62
CONFORMED COPY
12.2 Consequently, the Vendor shall ensure that (other than Claims brought by
the Vendor against the Purchaser) no member of the ABB Group shall bring any
Claim against any member of the Purchaser's Group, and the Purchaser shall
ensure that (other than Claims brought by the Purchaser against the Vendor
and/or the ABB Guarantor) no member of the Purchaser's Group shall bring any
Claim against any member of the ABB Group.
12.3 Pursuant to clause 12.1 and subject to the terms of the relevant Claim:
(a) the Purchaser is entitled to bring any Claim for any losses,
liabilities, costs and/or expenses incurred by itself and/or any member
of the Purchaser's Group (including the Designated Purchasers and, after
Completion, the SF Group Companies); and
(b) the Vendor is entitled to bring any Claim for any losses, liabilities,
costs and/or expenses incurred by itself and/or any member of the ABB
Group (including the Designated Vendors, but excluding, after
Completion, the SF Group Companies),
in each case, as if such losses, liabilities, costs and/or expenses were
incurred by each of the Purchaser and the Vendor itself, respectively.
13. LIMITATIONS ON CLAIMS
13.1 The provisions of this clause 13 shall operate, in accordance with its
terms, to limit or reduce the liability of the Vendor in respect of Relevant
Claims save that:
(a) nothing in this clause 13 other than the provisions of clauses 13.20 and
13.21 shall apply or operate in respect of any Unlimited Claim or any
Tax Claim;
(b) nothing in this clause 13 other than the provisions of clauses 13.8,
13.13, 13.14, 13.15, 13.16, 13.17, 13.20 and 13.21 shall apply or
operate in respect of any Indemnity Claim;
(c) the provisions of clauses 13.2, 13.5 and 13.7 shall not apply or operate
in respect of any Litigation/Compliance/Regulatory Claim;
(d) the provisions of clause 13.5 shall not apply or operate in respect of
any Environmental Claim; and
(e) nothing in this clause 13 shall apply or operate in respect of any
liability, loss or cost under any Claim to the extent such liability,
loss or cost arises or results from or is increased by the fraud of the
Vendor or any other member of the ABB Group,
and the provisions of this clause 13 shall be construed accordingly.
Page 63
CONFORMED COPY
TIME LIMITS FOR BRINGING CLAIMS
13.2 The Vendor shall not be liable for any Warranty Claim unless it shall
have received from the Purchaser written notice containing details of the
Warranty Claim, including the Purchaser's estimate of the amount thereof:
(i) in the case of an Environmental Claim, within seven (7) years
of the Completion Date; and
(ii) in the case of any other Warranty Claim in respect of any of
the Warranties (other than a Tax Warranty) within eighteen (18)
months of the Completion Date.
DE MINIMIS
13.3 The Vendor shall have no liability in respect of any single Warranty
Claim, or any series of similar or related Warranty Claims arising out of
similar or related facts, circumstances or matters, unless the liability of the
Vendor in respect of such Warranty Claim, or such similar or related Warranty
Claims (in aggregate), exceeds:
(a) where such Warranty Claim relates to any underlying Infrastructure
Financial Asset, or to any underlying Mid Market Financial Asset where
such Mid Market Financial Asset has a value equivalent to US$3,000,000
or more, US$2.5 million;
(b) where such Warranty Claim relates to any underlying Mid Market Financial
Asset where such Mid Market Financial Asset has a value equivalent to
less than US$3,000,000, US$200,000;
(c) where such Warranty Claim relates to any underlying Small Ticket
Financial Assets, US$100,000 provided that:
(i) for the purposes of the Warranties in paragraph 11 of
Schedule 3 (Vendor Warranties) any series of Warranty Claims
arising out of a systemic failure or out of similar or related
facts, matters or circumstances shall be treated as a single
Warranty Claim, but otherwise each Warranty Claim in relation
to the underlying Small Ticket Financial Assets shall be
treated as a separate Warranty Claim; and
(ii) a Warranty Claim may only be made in relation to the Warranty
in paragraph 11.1 of Schedule 3 (Vendor Warranties) to the
extent that the loss being claimed in respect of the particular
Small Ticket Data Tape to which such claim relates, when
aggregated with all other losses and gains then resulting from
inaccuracies in that particular Small Ticket Data Tape, results
or would reasonably be expected to result in an aggregate net
loss in the cash-flows warranted as being generated by the
Small Ticket Financial Assets underlying that particular Small
Ticket Data Tape; and
(d) where such Warranty Claim relates to any other matter, US$200,000.
Page 64
CONFORMED COPY
BASKET
13.4 The Vendor shall have no liability in respect of:
(a) any Warranty Claim referred to in clause 13.3(a), unless the aggregate
amount of the liability in respect of all such Warranty Claims shall
exceed US$10 million;
(b) any Warranty Claim referred to in clauses 13.3(b) and/or 13.3(c) unless
the aggregate amount of the liability in respect of all such Warranty
Claims shall exceed US$3.5 million; and
(c) any Warranty Claim referred to in clause 13.3(d) unless the aggregate
amount of the liability in respect of all such Warranty Claims shall
exceed US$2.5 million,
in which case the Purchaser (for itself and/or as trustee for each relevant
member of the Purchaser's Group) shall be able to claim the whole amount of such
Warranty Claim(s) and not merely the excess.
AGGREGATE CAP
13.5 The total aggregate liability of the Vendor in respect of all Warranty
Claims shall not exceed the sum of US$350 million.
GENERAL LIMITATIONS
13.6 If any Warranty Claim is based upon a liability which is contingent
only, the Vendor shall not be liable to make payment unless and until such
contingent liability becomes an actual liability but, subject as provided in
clause 13.2, without prejudice to the right of the Purchaser (for itself and/or
as trustee for each member of the Purchaser's Group) to give notice thereof and
to issue and serve proceedings in respect thereof prior thereto. For the
avoidance of doubt, the fact that the liability may not have become an actual
liability by the relevant date provided in clause 13.2 shall not prevent the
Purchaser from giving notice in respect thereof in accordance with clause 13.2
nor shall it exonerate the Vendor in respect of any Warranty Claim properly
notified before the relevant date. In addition, the provisions of clauses 13.15
and 13.17 shall in no way operate so as to prohibit or restrict the Purchaser
from giving notice in respect of the Warranty Claim in question, and any request
by the Vendor to the contrary will be deemed unreasonable for such purposes.
13.7 Any Warranty Claim shall (if it has not been previously satisfied,
settled or withdrawn) be deemed to have been withdrawn unless legal proceedings
in respect of it have commenced by both being issued and served within twelve
(12) months of notification to the Vendor pursuant to clause 13.2, save:
(a) where the Warranty Claim relates to a contingent liability in which case
it shall be deemed to have been withdrawn unless legal proceedings in
respect of it have been commenced by being both issued and served within
twelve (12) months of it having become an actual liability; and
Page 65
CONFORMED COPY
(b) where the commencement of such legal proceedings is delayed by the
operation of clauses 13.15 and/or 13.17, in which case it shall be
deemed to have been withdrawn unless legal proceedings in respect of it
have been commenced by being both issued and served within twelve (12)
months of the Vendor ceasing to utilise the provisions of clauses 13.15
and/or 13.17 in respect thereof.
COMPLETION BALANCE SHEET
13.8 The Vendor shall not be liable for any Relevant Claim to the extent (i)
of any allowance, provision or reserve in respect of the fact, matter, event or
circumstance giving rise to such Relevant Claim that has been specifically made
in the Completion Balance Sheet or (ii) that such results in a decrease in the
Final Consideration payable under clause 2.5.
ACTS OF THE PURCHASER
13.9 The Vendor shall not be liable for any Warranty Claim to the extent that
the matter giving rise to the Warranty Claim would not have arisen but for a
voluntary act or failure to act, transaction or arrangement which is carried out
after the Completion Date by or at the request of any director, employee or
agent of the Purchaser or any other member of the Purchaser's Group (excluding,
prior to Completion, the SF Group) to the extent that they have apparent
authority to do so (other than, in each case, (a) in the ordinary and usual
course of business; (b) in mitigating any loss, liability, cost or expense which
forms the basis of a Claim; or (c) as required in order to comply with any
obligations under any of the Transaction Documents) and which the Purchaser or
any member of the Purchaser's Group knew or ought reasonably to have known would
give rise to a Warranty Claim. For the purposes of this clause 13.9, an act,
transaction or arrangement shall not be regarded as "voluntary" if it is done or
effected:
(a) at the request of the Vendor or any member of the ABB Group;
(b) as a consequence of the Hive-Down and Transfer arrangements contemplated
by Part C of Schedule 13 (Excluded Assets/Excluded Contracts/Excluded
Businesses);
(c) in order to comply with any legal or regulatory obligation (contractual
or otherwise) imposed on the SF Group and/or the SF Business from time
to time; or
(d) in order to perform any of its obligations or discharge any of its
liabilities under or pursuant to any of the Transaction Documents.
RETROSPECTIVE LEGISLATION
13.10 Without prejudice to the applicability of laws previously in force in
the definition of "Environmental Laws", the Vendor shall not be liable in
respect of any Warranty Claim to the extent that such Warranty Claim would not
have arisen but for, or such Warranty Claim is increased as a result of, any
legislation which is not in force at Completion or any change of law,
regulation, directive, requirement or
Page 66
CONFORMED COPY
administrative practice or ruling, or any change in rates of tax, which in each
case is not in force at or before Completion.
ACCOUNTING POLICIES AND TAXATION
13.11 The Vendor shall not be liable for any Warranty Claim to the extent that
such Warranty Claim arises or, such Warranty Claim otherwise having arisen, is
increased, as a result of any change made after Completion in any applicable
accounting policies, practice or standards, or the length of any accounting
period for Tax purposes, of any member of the Purchaser's Group, save to the
extent that such changes are made in order to bring the relevant accounting
policies, practice or standards into compliance with applicable accounting,
policies, practices or standards and/or applicable legislation or regulation in
force at or before Completion.
13.12 In calculating the liability of the Vendor for any Warranty Claim, there
shall be taken into account the amount by which any Taxation for which the
Purchaser itself is accountable or liable to be assessed is reduced or
extinguished directly as a result of such liability.
PROCEEDS OF RECOVERY FROM THIRD PARTIES
13.13 If the Vendor pays to the Purchaser an amount in discharge of a Relevant
Claim and the Purchaser or any other member of the Purchaser's Group
subsequently recovers a cash amount or is relieved of a liability to make a
payment to a third party (including any Tax Authority, but excluding any insurer
or insurance company), in each case, in mitigation of the same loss giving rise
to the Relevant Claim, the Purchaser shall (or, as appropriate, shall procure
that the relevant member of the Purchaser's Group shall) repay to the Vendor:
(a) an amount equal to the sum recovered from the third party or the value
of the relieved obligation (as the case may be) less any costs and
expenses incurred by any member of the Purchaser's Group in recovering
the same and any Tax Liability incurred in relation to or as a result of
such recovery; or
(b) if the figure resulting under sub-paragraph 13.13(a) above is greater
than the amount paid by the Vendor to the Purchaser or other members of
the Purchaser's Group in respect of the Relevant Claim, such lesser
amount as shall have been so paid by the Vendor.
13.14 Any payment required to be made by the Purchaser, pursuant to clause
13.13, shall be made within twenty (20) Business Days of such recovery from such
third party.
13.15 Where the Purchaser or any member of the Purchaser's Group is at any
time entitled to recover from some other person (other than pursuant to any
insurance policy) any sum in respect of any matter giving rise to a Relevant
Claim, then provided that:
(a) to do so would not (in the reasonable opinion of the Purchaser) be or be
reasonably likely to be materially prejudicial or damaging to the
interests of
Page 67
CONFORMED COPY
any part of the SF Business or of the Purchaser's Group or a material
business relationship, customer or supplier of any part of the SF
Business or of the Purchaser's Group;
(b) the Vendor seeks and takes into account the reasonable views of the
Purchaser in relation to the conduct of such recovery;
(c) the Vendor does not (directly or indirectly) contact or respond to
(direct or indirect) contact from the other party, without the prior
consent of the Purchaser;
(d) no member of the Purchaser's Group shall be obliged to do or cause to be
done anything which is unreasonable in the circumstances;
(e) no member of the Purchaser's Group shall be obliged to claim or bring a
claim under any insurance policy;
(f) the Purchaser remains at liberty to impress upon the other party that
the matter the subject of the claim for recovery relates to the ABB
Group's (and not the Purchaser's Group's) period of ownership and
management of the SF Business;
(g) the Vendor indemnifies and secures the Purchaser (for itself and as
trustee for each member of the Purchaser's Group) on an after Tax basis
against all losses, liabilities, costs and expenses (including legal
fees) incurred by any member of the Purchaser's Group as a result of
complying with this clause 13.15; and
(h) in the case of any Indemnity Claim, the Vendor has already absolutely
and unconditionally paid and discharged to the Purchaser, and the
Purchaser has already absolutely and unconditionally recovered and
received from the Vendor, the full amount of the relevant Indemnity
Claim,
the Purchaser shall, and shall procure that the member of the Purchaser's Group
concerned shall, take such reasonable steps as the Vendor may reasonably request
to enforce such recovery and, in the event that the Purchaser or any member of
the Purchaser's Group shall recover any amount from such other person, the
amount of the Relevant Claim against the Vendor shall be reduced by the amount
recovered less any costs and expenses incurred in recovering the same and any
Tax Liability incurred in relation to or as a result of such recovery.
NO DOUBLE RECOVERY
13.16 The Purchaser agrees for itself and on behalf of each of the Designated
Purchasers with the Vendor that the Purchaser's Group shall not be entitled to
recover damages or obtain payment, reimbursement, restitution or indemnity, in
each case, from the Vendor or the ABB Guarantor more than once in respect of any
one loss giving rise to a Relevant Claim.
Page 68
CONFORMED COPY
CONDUCT OF LITIGATION
13.17 If the Purchaser, or any other member of the Purchaser's Group, becomes
aware of any third party claim, potential claim, matter or event (a THIRD PARTY
CLAIM) which might lead to a Relevant Claim being made:
(a) the Purchaser shall procure that written notice thereof is given to the
Vendor as soon as practicably possible, such notice to contain such
information as is then available to the Purchaser as will assist the
Vendor in making a reasonable assessment of such third party claim. The
Vendor acknowledges that the Purchaser's failure to comply with this
obligation shall not in any way affect its right to bring a Relevant
Claim, unless such failure causes the amount of such Relevant Claim to
be increased or otherwise adversely effects the position of the Vendor;
(b) then, provided that:
(A) to do so would not (in the reasonable opinion of the
Purchaser) be or be reasonably likely to be materially
prejudicial or damaging to the interests of any part of
the SF Business or of the Purchaser's Group or a material
business relationship, customer or supplier of any part
of the SF Business or of the Purchaser's Group;
(B) the Vendor seeks and takes into account the reasonable
views of the Purchaser in relation to the conduct of such
third party claim;
(C) the Vendor does not (directly or indirectly) contact or
respond to (direct or indirect) contact from the relevant
third party, without the prior consent of the Purchaser;
(D) no member of the Purchaser's Group shall be obliged to do
or cause to be done anything which is unreasonable in the
circumstances;
(E) no member of the Purchaser's Group shall be obliged to
claim or bring a claim under any insurance policy;
(F) the Purchaser remains at liberty to impress upon the
relevant third party that the matter the subject of the
third party claim relates to the ABB Group's (and not the
Purchaser's Group's) period of ownership and management
of the SF Business;
(G) the Vendor indemnifies and secures the Purchaser (for
itself and as trustee for each member of the Purchaser's
Group on an after Tax basis against all losses,
liabilities, costs and expenses (including legal fees)
incurred by any member of the Purchaser's Group as a
result of complying with sub-clauses (i) and/or (ii)
below; and
Page 69
CONFORMED COPY
(H) in the case of any Indemnity Claim, the Vendor has
already absolutely and unconditionally paid and
discharged to the Purchaser, and the Purchaser has
already absolutely and unconditionally recovered and
received from the Vendor, the full amount of the relevant
Indemnity Claim,
(i) the Purchaser shall not, and shall procure that no member of
the Purchaser's Group shall, make any admission of liability,
agreement or compromise with any person, body or authority in
relation thereto without, where reasonably practicable, prior
consultation with the Vendor;
(ii) the Purchaser shall, or shall cause the relevant Designated
Purchaser to take, such action as the Vendor shall reasonably
request to avoid, resist, dispute, appeal, compromise or defend
any such claim or potential claim or any adjudication in
respect thereof (subject to the Purchaser or the relevant
Designated Purchaser (as appropriate) being entitled to employ
its own legal advisers and being indemnified and secured to its
reasonable satisfaction by the Vendor (or another member of the
ABB Group) against all out-of-pocket costs and expenses
including those of its legal advisers, incurred in respect of
such claim).
The provisions of clause 13.17(b) shall not apply in respect of any
such claim or potential claim if the Vendor does not exercise or
notify the Purchaser in writing of its intention to exercise its
rights pursuant to clause 13.17(b) in respect of such claim or
potential claim within thirty (30) days of the Purchaser giving notice
pursuant to clause 13.17(a) above and, in such circumstances the
Purchaser (and any member of the Purchaser's Group) shall thereafter
be entitled to deal with, discharge, settle, compromise and resist
such claim or potential claim as they think fit, in their absolute
discretion.
13.18 Upon any Relevant Claim being made, or notification from the Purchaser
to the Vendor of any third party claim which might lead to such a Relevant Claim
being made, the Purchaser shall, and shall co-operate to procure that each other
member of the Purchaser's Group shall, subject to compliance with applicable
laws:
(a) make available to accountants and other professional advisers appointed
by the Vendor such access to personnel and to any relevant records and
information as the Vendor may reasonably request in connection with such
Relevant Claim or third party claim; and
(b) use reasonable endeavours to procure that the auditors (both past and
then current) of the relevant member of the Purchaser's Group make
available their working papers in respect of audits or otherwise of that
company's accounts for any relevant accounting period in connection with
such Relevant Claim or third party claim.
Page 70
CONFORMED COPY
MISCELLANEOUS
13.19 Nothing in this clause 13 shall in any way restrict or limit the general
obligation at law of the Purchaser to mitigate any loss or damage which it may
suffer in consequence of any fact, matter, event or circumstance giving rise to
a Warranty Claim.
13.20 The liability of the Vendor or the ABB Guarantor shall not, without the
prior consent of the Purchaser, be reduced or extinguished as a result of any
member of the Purchaser's Group's ability to recover in respect of the relevant
matter under any insurance policy.
13.21 Subject to clause 20.5, nothing in this Agreement shall limit or
restrict any rights the Purchaser may have under law or equity either:
(a) arising as a result of fraud committed by or on behalf of any member of
the ABB Group; or
(b) to rescind this Agreement.
13.22 Without prejudice to the provisions of the remainder of this clause 13,
the Vendor shall not be liable in respect of any Warranty Claim in respect of a
breach of any of the Environmental Warranties to the extent that the Warranty
Claim directly or indirectly arises from or is increased as a result of any of
the following:
(a) save with the Vendor's prior written consent, the giving or submission
to any Competent Authority or third party by the Purchaser or any member
of the Purchaser's Group or any of their respective employees, officers,
directors, contractors or agents on their behalf (a RELEVANT PERSON)
other than where it is given by the Relevant Person in response to or in
compliance with a legal disclosure requirement or obligation under
Environmental Law or Environmental Permits; or
(b) save with the Vendor's prior written consent, the undertaking of any
intrusive soil or groundwater, investigations in relation to Hazardous
Substances at any Property by a Relevant Person after Completion (except
in response to a specific and express requirement under Environmental
Law or Environmental Permits or by a Competent Authority acting lawfully
under Environmental Law); or
(c) the partial or total cessation of operations or the change of use of any
Property or the undertaking of any development (including
decommissioning, demolition, removal, alteration or construction of any
plant, equipment, building or structure or any part thereof) at any
Property by a Relevant Person after Completion; or
(d) the carrying out of any works or the failure to carry out any works
(including maintenance works), by a Relevant Person at any Property
after Completion otherwise than in accordance with the standards of a
person exercising that degree of skill, diligence, prudence and
foresight which would reasonably and
Page 71
CONFORMED COPY
ordinarily be expected from a skilled and experienced operator in
respect of the conduct and management of a business of the nature of the
business of the SF Group; or
(e) the sale or disposal of all or any part of the Properties after
Completion or any change in control in relation to the Purchaser or the
Purchaser's Group which owns or occupies all or any part of any Property
after Completion; or
(f) changes in law, including Environmental Law; or
(g) the failure of a Relevant Person to take all reasonable steps to
minimise and mitigate any losses; or
(h) any negligent or reckless act or omission of a Relevant Person where the
Person knew or ought to have reasonably known that such an act or
omission would or were likely to result in or increase the amount of a
Warranty Claim; or
(i) the costs of carrying out any works resulting from a Warranty Claim
under the Environmental Warranties being higher than the minimum
necessary to satisfy the minimum standards actually required by
Environmental Law or a Competent Authority,
provided that sub-paragraphs (a), (b) and (i) and clause 13.17(a) shall only
apply to the extent that they would not prevent a submission or disclosure to a
Competent Authority or intrusive investigation or works in relation to a
Substantial Property in circumstances where it is reasonably necessary, the
relevant member of the Purchaser's Group acting reasonably on the basis of
specific information held by it (but only to the extent such information was
obtained without any investigations having been undertaken that are not
permitted under clause 13.22(b)), that the urgent making or carrying out of a
submission, disclosure, investigation or works is or are required in order to
investigate mitigate or otherwise deal with actual serious harm or an imminent
threat of serious harm to the Environment which if not dealt with urgently would
be likely to increase significantly the amount of a Warranty Claim.
13.23 The Vendor shall not be liable in respect of any claim under the
Environmental Warranties in paragraphs 28.1 (Permits), 28.3 (Former Properties),
28.4 (Compliance), 28.8 (Contaminated Land), 28.10 (Assets) or 28.11 (Off-site
Waste Disposal Assets) of Schedule 3 (Vendor Warranties) unless:
(a) a criminal, civil, judicial, administrative or regulatory proceeding,
suit or action is brought or taken or expressly threatened in writing by
a Competent Authority or other third party in respect of the relevant
subject matter of the particular warranty under which the Warranty Claim
is made; or
(b) it is reasonable to expect that a Competent Authority would more than
likely take action in the period during which a Warranty Claim under the
Environmental Warranties may be notified in accordance with clause 13.2
were it aware of the full facts and circumstances that might reasonably
be expected to give rise to a Warranty Claim.
Page 72
CONFORMED COPY
14. PURCHASER WARRANTIES AND UNDERTAKINGS
14.1 The Purchaser warrants for itself and as trustee for the Designated
Purchasers to the Vendor both as at the date of this Agreement and immediately
prior to Completion in the terms of the Purchaser Warranties in 0 (Purchaser
Warranties).
14.2 The Purchaser undertakes to the Vendor:
(a) to use reasonable endeavours (including, where appropriate, offering a
guarantee, letter of comfort or support or any other similar arrangement
in respect of such obligations or liabilities as such third party may
reasonably require from any other member of the Purchaser's Group in
substitution) to procure on Completion, or as soon as reasonably
practicable thereafter, the absolute and unconditional release of each
member of the ABB Group from all liability and contingent liability
under or in respect of any Intra-Group Guarantee referred to in
sub-clause (a) of the definition thereof (other than those set out in
Schedule 18, Part B);
(b) pending release of any member of the ABB Group from all liability and
contingent liability under or in respect of any Intra-Group Guarantee
referred to in sub-clause (a) of the definition thereof (other than
those set out in Schedule 18, Part B) in respect of any obligations or
liabilities of the SF Business or any SF Group Company to third parties
as required by sub-clause 14.2(a) above to indemnify each member of the
ABB Group on demand in respect of all Costs incurred on or after
Completion by any member of the ABB Group under or in respect of such
Intra-Group Guarantees referred to in sub-clause (a) of the definition
thereof (other than those set out in Schedule 18, Part B); and
(c) to bear all Costs incurred and to be incurred in relation or incidental
to or as a consequence of the release or discharge of the Intra-Group
Guarantees referred to in sub-clause (a) of the definition thereof
(other than those set out in Schedule 18, Part B).
For the purposes of this clause 14.2, COSTS incurred in relation to or as a
consequence of the release or discharge of the Intra-Group Guarantees shall
include, without limitation, any costs, fees, charges incurred by each ABB Group
member continuing to be bound thereby.
14.3 The Purchaser on behalf of itself and each member of the Purchaser's
Group agrees and undertakes with the Vendor that (in the absence of any member
of the ABB Group's fraudulent misrepresentations and fraud and save as otherwise
provided under any of the Transaction Documents) it has no rights against and
shall not make any claim against any employee, director, agent, officer,
shareholder or adviser (except as may be agreed with such adviser) of any member
of the ABB Group on whom it may have relied before agreeing to any term of this
Agreement or any other Transaction Document or before entering into this
Agreement or any other Transaction Document.
Page 73
CONFORMED COPY
14.4 Notwithstanding clause 31 (Contract (Rights of Third Parties) Act 1999),
the provisions of clause 14.3 may be relied on and enforced by each employee,
director, agent, officer, shareholder or adviser for whose benefit it is
expressed or is intended to be given.
14.5 The Purchaser acknowledges and agrees on behalf of itself and each
member of the Purchaser's Group that:
(a) save for announcements permitted under clause 23, and as contemplated
under clause 14.6, the Purchaser shall procure that at no time after
Completion shall the Purchaser or any member of the Purchaser's Group
(whether alone or jointly with, through or for any person directly or
indirectly) hold itself out as, or otherwise cause others to believe
that it is a member of or associated with, the ABB Group, nor use any
name, xxxx, distinct colouring or logo in a manner which infringes, or
amounts to passing-off or unfair competition in relation to, any right,
title and interest of the ABB Group (after Completion) in or to the name
and xxxx "ABB" or any of the names and marks used by any member of the
ABB Group (after Completion) as a trade xxxx, service xxxx, or
corporate, trading or business name (other than the Resonia Trade Marks
and any other name or xxxx which is an SF Intellectual Property Right or
otherwise owned by an SF Group Company after Completion) (the ABB
MARKS); and
(b) nothing in this Agreement shall operate as an agreement to transfer (nor
shall transfer) any right, title or interest in the ABB Marks.
14.6 The Purchaser shall use all reasonable efforts to cease all use of the
ABB Marks in or, as the case may be, in relation to, the SF Business as soon as
reasonably practicable after the Completion Date but in any event by no later
than 4 months after the Completion Date unless otherwise agreed by the parties.
14.7 The Purchaser shall procure that following Completion the SF Group
provides the Vendor with reasonable access to records and staff of the SF Group
relating to the SF Business prior to Completion to the extent reasonably
required by the Vendor for the purposes of satisfying its financial reporting
and tax requirements and for the purpose of processing and defending litigation
and other proceedings with third parties.
14.8 The Purchaser shall indemnify and hold harmless all members of the ABB
Group from and against any and all claims, liabilities, obligations, losses,
costs, expenses and payments incurred or suffered by any member of the ABB Group
as a result of or relating to the use of the ABB Marks by the Purchaser or any
member of the Purchaser's Group or any breach of its obligations in clause 14.5.
15. TERMINATION
NOTIFICATION
15.1 If, at any time before Completion the Purchaser or any member of the
Purchaser's Group becomes aware of any fact, matter or circumstance which:
Page 74
CONFORMED COPY
(a) would or would be reasonably likely to constitute a breach of any of the
Warranties given pursuant to clause 11.1 and/or 11.7:
(i) in paragraph 2 (The Shares), paragraph 3 (The Vendor's
Capacity) or paragraph 18 (Insolvency) of Schedule 3 (Vendor
Warranties), or
(ii) in paragraph 22 (Regulatory Matters), paragraph 23 (Litigation
and Compliance with Law) or paragraph 28 (Environmental
Matters) of Schedule 3 (Vendor Warranties) or, to the extent
such relates to an Environmental Matter, in paragraph 4, 6, 17
or 29 (other than 29.6, 29.7, 29.8, 29.9 and 29.11) of Schedule
3 (Vendor Warranties) in each case, which results or is
reasonably likely to result in a Material Effect,
(each a MATERIAL WARRANTY BREACH);
(b) would or would be reasonably likely to constitute a breach of clause 4.1
and/or Schedule 14 (Conduct of the SF Business)(each a CONDUCT BREACH),
(and each Material Warranty Breach and Conduct Breach being a RELEVANT
BREACH); or
(c) would or would be reasonably likely to give rise to or result in a
Material Adverse Change,
then the Purchaser shall promptly notify the Vendor in writing of such fact,
matter and circumstance and the Relevant Breach or Material Adverse Change to
which it relates, giving particulars in reasonable detail and evidence of the
same including, in the case of a Material Adverse Change, the grounds for its
assessment (a PURCHASER NOTICE).
15.2 The Vendor shall promptly notify the Purchaser in writing if it or any
member of the ABB Group becomes aware of any fact, matter or circumstance which
would or would be reasonably likely to constitute a Relevant Breach or to give
rise to or result in a Material Adverse Change, as the case may be, giving
reasonable details and evidence of the same including, in the case of a Material
Adverse Change, the grounds for its assessment (a VENDOR NOTICE).
RIGHT TO CURE
15.3 Unless the Purchaser and the Vendor agree (acting reasonably) that such
Relevant Breach or Material Adverse Change is incapable of remedy in full in a
manner which the Purchaser reasonably finds acceptable during the period of 30
days following the service of a Purchaser Notice or a Vendor Notice (the CURE
PERIOD), the Vendor may elect to take such steps as it reasonably considers, in
consultation with and taking due account of the reasonable views of the
Purchaser, appropriate in order to remedy such Relevant Breach or Material
Adverse Change in full in a manner which the Purchaser reasonably finds
acceptable, in which case it shall:
Page 75
CONFORMED COPY
(a) serve on the Purchaser a notice in writing specifying in reasonable
detail what steps it proposes to take within what timescale in order to
so remedy the alleged Relevant Breach or Material Adverse Change;
(b) take such steps as are specified in such notice to effect such remedy
within the Cure Period; and
(c) regularly consult with and take due account of the reasonable views of
the Purchaser and otherwise keep the Purchaser informed in relation to
such remedy and its progress.
15.4 If within the Cure Period the Vendor has effected an Acceptable Cure or
has otherwise remedied in full the Relevant Breach or Material Adverse Change in
a manner which the Purchaser reasonably finds acceptable, then the Relevant
Breach or Material Adverse Change shall be deemed to have been remedied in full.
15.5 The Vendor shall indemnify the Purchaser (for itself and as trustee for
each member of the Purchaser's Group) on an after Tax basis against all losses,
liabilities, costs and expenses incurred by any member of the Purchaser's Group
(including, after Completion, the SF Group) as a result of or relating to any
Relevant Breach and/or any Material Adverse Change (as the case may be) and/or
any remediation or attempted remediation thereof.
TERMINATION
CURED RELEVANT BREACH/MATERIAL ADVERSE CHANGE
15.6 If a Relevant Breach or Material Adverse Change has been remedied in
full within the Cure Period in accordance with clause 15.4, then the Purchaser
shall not be entitled to terminate this Agreement in respect of such Relevant
Breach or Material Adverse Change.
UNCURED RELEVANT BREACH / MATERIAL ADVERSE CHANGE
15.7 If (i) a Relevant Breach or Material Adverse Change has not been
remedied in full within the Cure Period in accordance with clause 15.4; or (ii)
the parties agree that a Relevant Breach or Material Adverse Change, as the case
may be, is incapable of remedy in accordance with clause 15.3, the Purchaser may
terminate this Agreement with immediate effect by notice in writing to the
Vendor and, for the avoidance of doubt, without being required to wait until the
Longstop Date.
CONDITION(s) NOT FULFILLED OR WAIVED
15.8 If any of the Conditions has not been fulfilled (or waived) in
accordance with clause 3 on or before the Longstop Date, this Agreement shall
automatically terminate and no party (provided it shall have used its respective
reasonable endeavours in accordance with clause 3.2) shall have any claim
hereunder of any nature whatsoever against the other party (save in respect of
any rights and liabilities of the parties which have accrued prior to
termination).
Page 76
CONFORMED COPY
CONDITION INCAPABLE OF SATISFACTION
15.9 In the event that any of the Conditions becomes incapable of
satisfaction on or before the Longstop Date and, where waivable pursuant to
clause 3, has not been so waived, the Vendor or the Purchaser, as the case may
be, may by written notice given to the other terminate this Agreement with
immediate effect, and for the avoidance of doubt, without being required to wait
until the Longstop Date.
EFFECT OF TERMINATION
15.10 Termination in accordance with clauses 3.12, 6.5(a), 6.5(b), 15.7, 15.8,
15.9 and/or any other provision of this Agreement shall be the termination of
this Agreement other than clauses 1 (Definitions and Interpretation), 15.10, 18
(Confidentiality), 20 (Remedies), 21 (Variation), 22 (Assignment), 23
(Announcements), 24 (Costs), 30 (Notices), 33 (Conflict with other Agreements),
34 (Governing Law, Jurisdiction and Service of Process) and Schedule 1
(Interpretation), and shall be without prejudice to any accrued rights and
remedies under this Agreement.
INDEMNITY
15.11 If this Agreement is terminated:
(a) in accordance with clause 6.5(a), 6.5(b) and/or 15.7, then to the extent
that such right of termination arose or arises as a result of a fact,
matter or circumstance reasonably within the control of the ABB Group,
the Vendor shall indemnify the Purchaser (for itself and as trustee for
each member of the Purchaser's Group); or
(b) in accordance with clause 6.5(b), then to the extent that such right of
termination arose or arises as a result of a fact, matter or
circumstance reasonably within the control of the Purchaser's Group, the
Purchaser shall indemnify the Vendor (for itself and as trustee for each
member of the ABB Group);
in each case, on an after Tax basis from and against all losses, liabilities,
costs and expenses incurred by any member of the Purchaser's Group or any member
of the ABB Group (as the case may be) as a result of or relating to the Proposed
Transaction and/or its termination, including, without limitation, as a result
of or in relation to all due diligence, disclosure, negotiation, documentation,
preparation, execution and/or satisfaction of conditions and undertakings
related thereto.
16. TRANSFER EMPLOYEES
16.1 It is the intention of the parties that upon a completion the contracts
of employment of all Transfer Employees will have effect after Completion as if
originally made between the relevant Transfer Employee Transferee and the
Transfer Employees. Accordingly, it is agreed that:
(a) where local employment laws provide for the automatic transfer of any
Transfer Employee upon the acquisition (by way of assets and not shares)
of a
Page 77
CONFORMED COPY
local business unit of the SF Business, the employment of such Transfer
Employee shall not be terminated upon Completion and the relevant
Transfer Employee Transferor's rights, powers, duties, liabilities and
obligations to or in respect of such Transfer Employee's contract of
employment immediately before Completion shall in relation to each such
Transfer Employee be transferred to the relevant Transfer Employee
Transferee in accordance with those local employment laws; and
(b) where local employment laws do not provide for automatic transfer of any
Transfer Employee, the relevant Transfer Employee Transferee shall make
an offer of employment to the Transfer Employees on terms and conditions
(excluding Retirement Benefits which shall be dealt with in accordance
with 0 (Pensions) of this Agreement) which are no less favourable, taken
as a whole, than those applicable to such Transfer Employee immediately
prior to Completion. If a Transfer Employee accepts such an offer of
employment, the Vendor will procure his release from his employment with
the relevant Transfer Employee Transferor with effect from Completion or
the local closing.
16.2 If, following Completion, any person not designated as a Transfer
Employee reasonably asserts or establishes that his employment has effect as if
originally made between the relevant Transfer Employee Transferee and that
person (an UNDISCLOSED EMPLOYEE), the Purchaser shall notify Vendor as soon as
is reasonably practicable and in any event before the end of the month following
Completion. The Vendor may (but shall not be obliged to) then procure an offer
of employment to that person within 14 days of that notification and that person
shall have 14 days to accept or decline that offer of employment. If after that
period has elapsed, the person concerned has not been offered such employment
or, if that person has been offered employment and has not accepted that offer
within the additional 14-day period, the Purchaser on behalf of itself and as
trustee for the relevant Transfer Employee Transferee may (to the extent
permitted by applicable law) terminate the contract of employment and the
Designated Purchaser shall be indemnified by the Vendor in respect of any award,
losses, damages, costs, liabilities and expenses (reasonably incurred) which it
may sustain arising under or in connection with termination of the Undisclosed
Employee's contract of employment.
16.3 The Vendor shall indemnify the Purchaser for itself and on behalf of
each of its Affiliates from and against all costs, claims, liabilities or
reasonable expenses incurred by any of them which are attributable to any breach
or default by any SF Group Company or Transfer Employee Transferor prior to
Completion in respect of any of its obligations or duties to or in relation to
the employment of any of the Transfer Employees, including, but not limited to,
any termination liabilities.
16.4 The Purchaser shall indemnify the Vendor against any liabilities
incurred by any Transfer Employee Transferor which are attributable to any act
or omission by a relevant Transfer Employee Transferee following Completion in
respect of any of that relevant Transfer Employee Transferee's obligations or
duties to or in relation to the employment of any of the Transfer Employees
following Completion.
Page 78
CONFORMED COPY
17. CONTINUING ARRANGEMENTS BETWEEN THE ABB GROUP AND SF GROUP
TRANSITIONAL SERVICES AGREEMENTS
17.1 From Completion, services will only be provided between members of the
ABB Group and the SF Business under the Transitional Services Agreements and any
arrangements for the provision of such services between members of the ABB Group
in effect immediately prior to Completion shall terminate automatically without
further notice at Completion to the extent that they relate to the provision of
such services.
FINANCIAL ADVISORY
17.2 The parties acknowledge that the ABB Group entered into an agreement
with the SF Group dated 20 March 2002 together with other separate service
agreements related thereto (together the FA AGREEMENTS), providing for the SF
Group to furnish advisory and other services (collectively, ADVISORY SERVICES)
to members of the ABB Group. The parties agree that between signing of this
Agreement and Completion they shall enter into discussions in good faith to
consider whether and, if so, on what terms the Purchaser's Group and the ABB
Group may wish to enter into arrangements regarding the Financial Advisory
Business and/or the provision of Advisory Services. If, as at Completion, no
such arrangements have been entered into then, unless the parties agree
otherwise, the parties shall ensure that all of the FA Agreements shall
terminate with immediate effect on Completion, subject only to any then accrued
rights and/or obligations of the parties thereto.
18. CONFIDENTIALITY
18.1 Subject to sub-clause 18.2, for the purposes of this clause 18,
CONFIDENTIAL INFORMATION means:
(a) in relation to the Vendor, all confidential information received by the
Purchaser, any other member of the Purchaser's Group or their
Representatives from the ABB Group or its Representatives relating to
the ABB Group, including information which (i) relates to or is required
in connection with the Excluded Assets, the Excluded Liabilities, the
Excluded Businesses, the Excluded Companies and/or the Excluded Claims,
and/or (ii) the ABB Group, including prior to Completion the SF Group,
or its business or assets, but excluding any Confidential Business
Information; and
(b) in relation to the Purchaser, all confidential information received or
held by any member of the ABB Group or its Representatives relating to
(i) the Purchaser's Group and/or (ii) after Completion, the SF Group or
its business or assets, including all Confidential Business Information;
and
(c) the provisions and negotiations relating to this Agreement and the
Proposed Transaction,
including not only written information but information transferred orally,
visually, electronically or by any other means and, in respect of Confidential
Information
Page 79
CONFORMED COPY
relating to either the ABB Group or the Purchaser's Group, such information
shall include Confidential Information relating to the business, assets,
prospects and markets of the ABB Group and the Purchaser's Group, respectively.
18.2 For the avoidance of doubt, the term Confidential Information shall not
include:
(a) information that is in the public domain at the date of this Agreement
other than as a result of a wilful or negligent act or omission by any
party or any of its Representatives or a breach of any provision of this
Agreement;
(b) information that subsequently comes into the public domain, by any means
other than as a result of a wilful or negligent act or omission by any
party or any of its Representatives or a breach of this Agreement, but
only after it has come into the public domain;
(c) information which the receiving party or its Representatives obtain from
a third party not under any confidentiality obligation to the disclosing
party in respect of such information;
(d) information which the receiving party or its Representatives at the time
of disclosure already has in its possession as evidenced by their
written records and which is not subject to any obligation of secrecy on
their part to the other party; or
(e) information which is independently developed by employees of the
receiving party or its Representatives who had no access to the
information disclosed by the disclosing party.
For the purposes of this clause 18, REPRESENTATIVES means Affiliates, directors,
officers, employees, agents or representatives of the relevant party or their
respective Affiliates, and their respective solicitors, accountants, consultants
and financial advisers.
18.3 Each party undertakes to maintain Confidential Information received or
held by it or its Representatives relating to the other party or the other
party's Affiliates in confidence and not to disclose that Confidential
Information to any person other than its Representatives except with the prior
written approval of the other party. Each party shall further procure that each
member of the ABB Group and the Purchaser's Group, respectively, and its
respective Representatives comply with the provisions of this clause 18.
18.4 Each party undertakes only to disclose to Representatives such
Confidential Information relating to the other party or the other party's
Affiliates as is reasonably required for the purposes of performing the
obligations under this Agreement and only to Representatives whom it has
informed of the confidential nature of the Confidential Information.
18.5 The Vendor undertakes to the Purchaser that the Vendor shall, and shall
ensure that all members of the ABB Group shall, keep confidential and not
disclose,
Page 80
CONFORMED COPY
or use to compete with the SF Business, or authorise any other person to
disclose, or use to compete with the SF Business, and use every effort to
prevent the disclosure of, all confidential Know-How in its knowledge,
possession or control, which relates exclusively to the SF Business, and all
Confidential Business Information in each case, for so long as such remains
confidential.
18.6 Notwithstanding the provisions of this clause 18 the Vendor or the
Purchaser may disclose or permit the disclosure of Confidential Information and,
in the case of the Vendor, the confidential Know-How and Confidential Business
Information referred to in clause 18.5, in the following circumstances:
(a) if either the Vendor or the Purchaser, or any person or Representative
to whom it has transmitted such information, becomes legally required to
disclose any of such information received, provided that the disclosing
party shall provide the other with prompt written notice of the relevant
legal requirement so that the other may seek a protective order or other
appropriate remedy but shall not be obliged to delay disclosure if to do
so would be in breach of any conditions for such disclosure imposed by
the authority compelling disclosure;
(b) disclosure to a Tax authority reasonably required in connection with the
Tax affairs of the disclosing party, provided that where practicable the
disclosing party shall first inform the other party of its intention to
disclose such information, and take into account the reasonable comments
of the other party;
(c) to the extent any disclosure is required by any governmental,
supervisory or regulatory body or the rules and regulations of any
recognised listing authority or stock exchange on which the shares of
any member of the ABB Group or the Purchaser's Group are listed or
traded, provided that the disclosing party shall to the extent
reasonably practicable first inform the other party of its intention to
disclose such information, and take into account the other party's
reasonable comments as to the timing, content and manner of making or
dispatching such information,
provided that, in each case, the disclosing party undertakes to provide only
such information which is, in its reasonable opinion, required to be disclosed.
18.7 Each party will only use (or permit the use by its Representatives of)
the Confidential Information received by it or its Representatives for the
purposes of the Proposed Transaction.
18.8 Nothing in this clause 18 shall make the Vendor liable for any of its
Representatives in relation to breaches of this clause 18 which occur after the
time when such Representative becomes the Representative of the Purchaser.
18.9 Notwithstanding any provision to the contrary, the provisions of clauses
18.1 to 18.8 shall survive termination of this Agreement and/or Completion.
18.10 The Vendor shall, if it is reasonably and legally able to do so, assign
or procure the assignment to the Purchaser on Completion the benefit of any
confidentiality agreements or undertakings entered into by third parties
(including,
Page 81
CONFORMED COPY
without limitation, other proposed purchasers of all or any part of the SF
Business) in favour of the ABB Group in respect of the SF Group and SF Business
to the extent that such confidentiality agreements relate to the SF Group and
the SF Business provided that the Vendor gives no warranty whatsoever as to
whether any such agreements or other undertakings are capable of assignment. If
the benefit of such confidentiality agreements or undertakings cannot be
assigned to the Purchaser on Completion, then the Vendor shall hold such benefit
on trust for the Purchaser and enforce such agreements or undertakings on behalf
of the Purchaser or as the Purchaser directs. After Completion, the Vendor shall
send a letter in Agreed Form to all other persons to whom confidential
information was supplied in connection with the potential sale and purchase of
the SF Business authorising the Purchaser, to the extent it is legally and
reasonably able to do so, to recover all such information and any information
generated, copied or derived therefrom or requesting certification to the
Purchaser of its destruction, in each case in accordance with the terms of such
agreements and undertakings.
18.11 For the avoidance of doubt, this clause 18 shall not give rise to
liability on the part of the Vendor by reason of Confidential Information having
been made available to other potential purchasers of the SF Business.
18.12 The parties agree that the restrictions contained in this clause 18
shall continue to apply after the termination of this Agreement for a period of
five (5) years.
18.13 This clause 18 shall supersede and replace the provisions of the
Confidentiality Undertakings which shall, as a result, terminate as at the date
hereof save in respect of any then accrued rights and/or liabilities thereunder.
19. PENSIONS
0 (Pensions) shall apply in relation to the pensions.
20. REMEDIES
20.1 The Transaction Documents set out the entire agreement and understanding
between the parties in respect of the Proposed Transaction.
20.2 The Purchaser acknowledges and agrees (for itself as trustee for each
other member of the Purchaser's Group) with the Vendor (for itself and as
trustee for each other member of the ABB Group) that:
(a) it has not relied on and has not been induced to enter into this
Agreement or any other Transaction Document on the basis of any
Assurance (express or implied) made or given by or on behalf of any
member of the ABB Group or any of its agents, directors, officers,
employees, shareholders or advisers other than those expressly set out
in this Agreement or any other Transaction Document or, to the extent
that it has been, it has no rights or remedies in relation thereto and
shall make no claim in relation thereto or against such parties; and
Page 82
CONFORMED COPY
(b) any other warranty or other rights which may be implied by law in any
jurisdiction in relation to the sale of the Shares and the Business
Assets in such jurisdiction shall be excluded or, if incapable of
exclusion, irrevocably waived.
20.3 Each party acknowledges and agrees (for itself and on behalf of each
member of its Group) that no member of its Group has relied on, nor shall have
any remedy in respect of, any Assurance of any person (whether party to this
Agreement or not) other than as expressly set out in this Agreement.
20.4 Subject to clause 20.5 and notwithstanding anything in this Agreement or
any other Transaction Document, nothing shall limit, restrict or exclude a
party's rights, remedies and/or entitlements at law or in equity:
(a) to the extent that such arise or relate to the fraud of any other party;
or
(b) to rescind this Agreement or any other Transaction Document.
20.5 No party shall, save in the case of fraud committed by any other party
or any member of such other party's Group, be entitled to exercise any right of
rescission in respect of this Agreement or any other Transaction Document to the
extent that such right arises as a result of a breach of a representation or
warranty which representation or warranty is not otherwise set out or referred
to in this Agreement and/or in any of the Specified Receivables Agreement, the
Designated Asset Agreement and/or any of the Transitional Services Agreements.
21. VARIATION
No variation of this Agreement (or of any of the documents referred to in this
Agreement) shall be valid unless it is in writing and signed by or on behalf of
each of the parties to it. The expression VARIATION shall include any variation,
supplement, deletion or replacement however effected.
22. ASSIGNMENT
22.1 Neither the obligations nor the benefits under this Agreement shall be
assignable, except that the Purchaser may, upon giving written notice to the
Vendor, assign the benefit of this Agreement in whole or in part (subject, for
the avoidance of doubt, to all relevant limitations contained herein including,
without limitation, limitations on Claims) to one or more members of the
Purchaser's Group (a PERMITTED ASSIGNEE) subject to the condition (a
DEPARTURE-FROM-GROUP CONDITION) that if such Permitted Assignee shall
subsequently cease to be a member of the Purchaser's Group, the Purchaser shall
procure that prior to its ceasing to be a member of the Purchaser's Group the
Permitted Assignee shall assign so much of the benefit of this Agreement as has
been assigned to it to the Purchaser or (upon giving further written notice to
the Vendor) to another member of the Purchaser's Group. Any actual or purported
assignment in contravention of this clause 22.1 shall be void. The Vendor may
assign the benefit of this Agreement to any other member of the ABB Group from
time to time subject to a Departure-from-Group Condition by reference to the ABB
Group.
Page 83
CONFORMED COPY
22.2 Without prejudice to the provisions of clause 22.1 the parties hereby
agree that where the Purchaser or Vendor assigns the benefit of this Agreement
in whole or in part to any other person the liabilities of all members of the
other party's Group under this Agreement to the Vendor or Purchaser or members
of their respective Groups (as the case may be) shall be no greater than such
liabilities would have been had the assignment not occurred.
23. ANNOUNCEMENTS
Except as required by law or by any stock exchange or governmental or other
regulatory or supervisory body or authority of competent jurisdiction to whose
rules the party making the announcement or disclosure is subject, whether or not
having the force of law, the Vendor and the Purchaser shall ensure that no
announcement or circular or disclosure in connection with the existence or
subject matter of the Transaction Documents shall be made or issued by or on
behalf of any member of their respective Groups without the prior written
approval of the other party (such approval not to be unreasonably withheld or
delayed).
24. COSTS
Save as otherwise provided in this Agreement:
(a) each party shall pay the costs and expenses incurred by it and its
Affiliates in connection with the entering into, and completion of, this
Agreement, including without limitation in respect of their obligations
in fulfilling the Conditions, and the other requirements for
transferring the Shares and Business Assets; and
(b) for the avoidance of doubt, the costs and expenses of the SF Group and
the SF Business set forth in (a) above shall be borne by the Vendor in
respect of the period up to and including the Completion Date and
thereafter by the Purchaser.
25. PAYMENTS
25.1 All payments to be made by any party (the PAYING PARTY) under this
Agreement (save in respect of payments to be made under 0 (Pensions) which shall
be dealt with in accordance with the provisions of that Schedule) shall, unless
otherwise stated or the context otherwise requires, be made:
(a) in immediately available funds;
(b) gross and without any set off, counterclaim restriction or condition and
without any deduction or withholding (save only as required by law); and
(c) by transfer of funds for same day value to, in the case of payments to
the Vendor, such account(s) as shall be notified by the Vendor in
writing to the Purchaser at least two (2) Business Days before the date
on which the payment is due and, in the case of payments to the
Purchaser, such account(s) as shall
Page 84
CONFORMED COPY
be notified by the Purchaser in writing to the Vendor at least two (2)
Business Days before the date on which the payment is due.
25.2 [Intentionally blank].
25.3 If the Paying Party makes a deduction or withholding required by law
from a payment under this Agreement (excluding a payment under 0 (Pensions)),
the sum due from the Paying Party shall be increased to the extent necessary to
ensure that, after the making of any deduction or withholding (including any
deductions on additional amounts payable under this clause 25.3), the other
party (the RECIPIENT) (or, as the case may be, a Designated Purchaser if the
Purchaser so requests, or a Designated Vendor if the Vendor so requests)
receives a sum equal to the sum it would have received had no deduction or
withholding been made, save to the extent that in computing any Tax, the
Recipient is able to obtain a credit for the amount deducted or withheld.
25.4 If any payment by the Paying Party under this Agreement (excluding any
payment under 0 (Pensions)) will be or has been subject to Tax, the Paying Party
shall on demand from the Recipient pay to it (or, as the case may be, a
Designated Purchaser if the Purchaser so requests, or a Designated Vendor if the
Vendor so requests) the amount (after taking into account Tax payable in respect
of the amount) that will ensure that the Recipient (or, as the case may be, a
Designated Purchaser or a Designated Vendor) receives and retains a net sum
equal to the sum it would have received had the payment not been subject to Tax.
25.5 Unless otherwise stated or the context otherwise requires, if a party
fails to pay a sum due from it under this Agreement on the due date of payment
in accordance with the provisions of this Agreement, that party shall pay
interest on the overdue sum from (and including) the due date of payment until
(but excluding) the date on which its obligation to pay the sum is discharged at
LIBOR per annum (whether before or after judgement). Interest accrues and is
payable from day to day and is calculated on the basis of a 360 day year.
25.6 To the extent the Purchaser is required to make any payment under any
Transaction Document, the Purchaser may procure the making of such payment on
its behalf by any member (or members) of the Purchaser's Group, in satisfaction
of such requirement.
26. SEVERABILITY
To the extent that any provision of this Agreement is held to be invalid or
unenforceable, then such provision shall, to such extent, be given no effect and
shall be deemed not to be included in this Agreement but without invalidating
any of the remaining provisions of this Agreement, provided that if such
provision would be valid and enforceable if some part thereof were deleted or
amended, such provision shall continue to apply with the minimum such deletion
or amendment as would make it valid and enforceable.
Page 85
CONFORMED COPY
27. GENERAL
27.1 The failure to exercise or delay in exercising a right or remedy
provided by this Agreement or by law does not impair or constitute a waiver of
the right or remedy or an impairment of or a waiver of other rights or remedies
(whether provided under this Agreement or otherwise). No single or partial
exercise of a right or remedy provided by this Agreement or by law prevents
further exercise of the right or remedy or the exercise of another right or
remedy.
27.2 Except to the extent that they have been performed and except where this
Agreement provides otherwise, the obligations contained in this Agreement remain
in force after Completion.
28. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the parties
to it on separate counterparts, each of which is an original but all of which
together constitute one and the same instrument.
29. ENGLISH LANGUAGE
The language of this Agreement is English and all notices, demands, requests,
statements, certificates or other documents or communications shall be in
English unless otherwise agreed.
30. NOTICES
30.1 Any notice or other communication to be given by one party to the other
under, or in connection with, this Agreement shall be in writing and signed by
or on behalf of the party giving it. It shall be served by delivering it by
hand, or sending it by pre-paid recorded delivery, special delivery or
registered post, to the address set out in clause 30.2 and in each case marked
for the attention of the relevant party set out in clause 30.2 (or as otherwise
notified from time to time in accordance with the provisions of this clause 30).
Any notice so served by hand or post shall be deemed to have been duly given:
(a) in the case of delivery by hand, when delivered; and
(b) in the case of prepaid recorded delivery, special delivery or registered
post, at 10 a.m. on the third (3rd) Business Day following the date of
posting
PROVIDED THAT in each case where delivery by hand occurs after 6 p.m. on a
Business Day or on a day which is not a Business Day, service shall be deemed to
occur at 9 a.m. on the next following Business Day.
References to time in this clause 30 are to local time in the country of the
addressee.
30.2 The addresses of the parties for the purpose of clause 30 are as
follows:
Page 86
CONFORMED COPY
VENDOR
Address: X.X. Xxx 00000, 0000 XX Xxxxxxxxx,
Xxx Xxxxxxxxxxx
For the attention of: The President
PURCHASER
Address: GE Capital Structured Finance Inc., 000 Xxxx Xxxxx
Xxxx, Xxxxxxxx, XX 00000, XXX
For the attention of: (1) General Counsel
(2) President of Structured Finance
Address: GE European Equipment Finance, Trinity Square,
00/00 Xxxxxxx Xxxx, Xxxxxxxx, XX0 0XX XX
For the attention of: General Counsel
Address: GE Vendor Financial Services, 00 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxx, 00000, XXX
For the attention of: (1) General Counsel
(2) President
ABB GUARANTOR
Address: Xxxxxxxxxxxx. 00, 0000 Xxxxxx, Xxxxxxxxxxx
For the attention of: General Counsel
30.3 A party may notify the other party to this Agreement of a change to its
name, relevant addressee or address for the purposes of this clause 30, PROVIDED
THAT, such notice shall only be effective on:
(a) the date specified in the notice as the date on which the change is to
take place; or
(b) if no date is specified or the date specified is less than five (5)
Business Days after the date on which notice is received, the date
falling five (5) Business Days after notice of any change has been
received.
31. NO RIGHTS UNDER CONTRACTS (RIGHTS OF THIRD PARTIES) XXX 0000
Save as expressly otherwise provided in this Agreement, a person who is not a
party to this Agreement shall have no right under the Contracts (Rights of Third
Parties) Xxx 0000 to enforce any of its terms.
Page 87
CONFORMED COPY
32. FURTHER ASSURANCE
The parties shall, and shall procure that their Affiliates shall, from time to
time, so far as reasonably able, do or procure all things as may be required to
give effect to the Transaction Documents and to all other agreements
contemplated thereby, including, without limitation, the execution of all deeds
and documents, procuring the convening of all meetings, the giving of all
necessary waivers and consents and the passing of all resolutions and otherwise
exercising all powers and rights available to them.
33. CONFLICT WITH OTHER AGREEMENTS
In the event of any conflict between this Agreement and any other Transaction
Document, this Agreement shall prevail (as between the parties to this Agreement
and as between any other members of the ABB Group and the Purchaser's Group)
save where such other agreement expressly states that it (or any part of it)
shall override this Agreement in any respect and such of the parties to this
Agreement as are either also parties to that other agreement or otherwise
expressly and in writing agree that such other agreement shall override this
Agreement in that respect.
34. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
34.1 This Agreement and the relationship between the parties shall be
governed by, and interpreted in accordance with, English law.
34.2 Each of the parties agrees that the courts of England are to have
exclusive jurisdiction to settle any disputes (including claims for set-off and
counterclaims) which may arise in connection with the creation, validity,
effect, interpretation or performance of, or the legal relationships established
by, this Agreement or otherwise arising in connection with this Agreement, and
for such purposes irrevocably submit to the jurisdiction of the English courts.
34.3 The Vendor and the ABB Guarantor shall at all times maintain an agent
for service of process and any other documents in proceedings in England or any
other proceedings in connection with this Agreement. Such agent shall be ABB
Limited currently of Xxxxx Xxxxx, 0 Xxxxx Xx. Xxxxxx'x Xxxx, Xxxxxx XX0, XX
(marked for the attention of The President and The Legal Counsellor) and any
writ, judgment or other notice of legal process shall be sufficiently served on
the Vendor and the ABB Guarantor if delivered to such agent at its address for
the time being. The Purchaser shall at all times maintain an agent for service
of process and any other documents in proceedings in England or any other
proceedings in connection with this Agreement. Such agent shall be Xxxxxxxx
Chance Secretaries Limited, currently of 000 Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX
and any writ, judgment or other notice of legal process shall be sufficiently
served on the Purchaser if delivered to such agent at its address for the time
being.
35. ABB GUARANTEE
35.1 The ABB Guarantor (as primary obligor and not as surety only)
irrevocably and unconditionally:
Page 88
CONFORMED COPY
(a) guarantees to the Purchaser (for itself and as trustee for each member
of the Purchaser's Group) the due and punctual performance of, and the
due payment and discharge of all sums and liabilities which now are or
at any other time shall be due, owing or incurred by any member of the
ABB Group to any member of the Purchaser's Group in respect of:
(i) obligations of members of the ABB Group under any of the
Transaction Documents and/or any agreements entered into
pursuant to any of the Transaction Documents and/or which any
of the Transaction Documents expressly preserves or requires to
be executed; and
(ii) the Specified Obligations of any Specified Obligor
(paragraphs (i) and (ii) above being collectively referred to herein as
the VENDOR OBLIGATIONS);
(b) undertakes that if any amount guaranteed by this clause 35 is not
recoverable on the terms of this guarantee for any reason it will (as a
separate and independent stipulation) pay the Purchaser (for itself
and/or as trustee for each member of the Purchaser's Group) on demand
whatever amount or amounts shall equal what it would have been liable to
pay but for such irrecoverability.
For the avoidance of doubt, the guarantee given by the ABB Guarantor in respect
of the Vendor Obligations pursuant to this clause 35 is a separate and
independent obligation from the obligations of the ABB Guarantor contained in
clause 10.6 and shall benefit from the support of the Letter of Credit provided
in accordance with clauses 10.8 to 10.13A.
35.2 This is a continuing guarantee and the ABB Guarantor's undertakings
under this Agreement shall remain in full force and effect until final
performance in full of the Vendor Obligations notwithstanding any intermediate
payment or performance or the invalidity or unenforceability in whole or in part
of any of the Vendor Obligations or any other event.
35.3 The guarantee and undertakings contained in this clause 35 shall be
discharged by the full performance by the ABB Guarantor of its obligations under
this Agreement, but otherwise shall not be satisfied, discharged or affected by
any act, omission, matter or thing which, but for this provision, might operate
to release or otherwise exonerate the ABB Guarantor from those obligations in
whole or in part including:
(a) the granting of time, or any waiver or other indulgence (including any
extension, renewal, acceptance, forbearance or release in respect of any
of the Vendor Obligations);
(b) the taking, variation, compromise, renewal or release of or refusal or
neglect to perform or enforce any rights, remedies or securities against
the Vendor or any Specified Obligor;
Page 89
CONFORMED COPY
(c) any modification, variation or addition to the terms of any of the
Vendor Obligations or of any other document or security;
(d) any irregularity, defect or informality in the terms of any of the
Vendor Obligations or any other document or security or any legal
limitation, disability, incapacity or want of authority of any person;
(e) any transfer or assignment of any rights or obligations by any party as
permitted pursuant to any of the Transaction Documents and/or any of the
agreements entered into pursuant to any of the Transaction Documents
whether or not they relate to the Vendor Obligations and/or any document
evidencing the Vendor Obligations or the Specified Obligations;
(f) any corporate reorganisation, reconstruction, amalgamation, dissolution,
liquidation, merger, acquisition of or by or other alteration in the
corporate existence or structure of any party, or the non-existence of
the Vendor or any Specified Obligor; or
(g) the insolvency of, bankruptcy, winding up or analogous proceedings
relating to the Vendor or any Specified Obligor or any composition or
similar arrangement by any party or any other person,
provided always that any defence or counterclaim which the Vendor may be able to
assert against the Purchaser shall also be available to the ABB Guarantor in
relation to any claim against it by the Purchaser under this clause 35.
35.4 So long as any member of the ABB Group or any Specified Obligor remains
under an actual or contingent obligation under any of the Transaction Documents
and/or any other document evidencing the Vendor Obligations or the Specified
Obligations, the ABB Guarantor shall not exercise a right which it may at any
time have by reason of the performance of its obligations under clause 35.1 to
be indemnified by any member of the ABB Group or any Specified Obligor, to claim
a contribution from another surety of the Vendor Obligations or to take the
benefit (wholly or partly and by way of subrogation or otherwise) of any rights
of any member of the Purchaser's Group under any of the Transaction Documents
and/or any other of the agreements entered into pursuant to any of the
Transaction Documents and/or any other document evidencing the Vendor
Obligations or the Specified Obligations or of any other security taken by any
member of the Purchaser's Group in connection with any of the Transaction
Documents and/or any of the agreements entered into pursuant to any of the
Transaction Documents and/or any other document evidencing the Vendor
Obligations or the Specified Obligations.
35.5 Where any discharge (whether in respect of any of the Vendor
Obligations, Specified Obligations or any security or guarantee for the Vendor
Obligations, Specified 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 for any reason, the liability
of the ABB Guarantor under this Agreement shall continue as if the discharge or
arrangement had not been made.
Page 90
CONFORMED COPY
35.6 The ABB Guarantor waives any right it may have of first requiring the
Purchaser (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 the ABB Guarantor under this clause 35. This waiver applies irrespective of
any law or any provision of any of the Transaction Documents and/or any other
agreement entered into pursuant to any of the Transaction Documents and/or any
other document evidencing the Vendor Obligations or the Specified Obligations to
the contrary.
35.7 This guarantee and indemnity is in addition to and is not in any way
prejudiced by any other security now or in future held by or on behalf of any
member of the Purchaser's Group.
35.8 The ABB Guarantor warrants to the Purchaser both as at the date of this
Agreement and immediately prior to Completion in the terms of the warranties in
0 (Warranties of the ABB Guarantor).
36. EXECUTION AND DELIVERY
This Agreement shall be executed and delivered as a deed.
AS WITNESS this Agreement has been executed and delivered as a deed by or on
behalf of the parties the day and year first above written.
Page 91
CONFORMED COPY
SCHEDULE 1
INTERPRETATION
1. In this Agreement, the following expressions have the following
meanings:
2001 FINANCIAL STATEMENT has the meaning given in paragraph 4.1 of 0 (Vendor
Warranties);
ABACUS means the internal worldwide consolidation and reporting system of the
ABB Group;
ABACUS MANAGEMENT REPORTS means the ABACUS management reports, in the Agreed
Form;
ABB ACCOUNTING PRINCIPLES means the accounting policies and principles of the
ABB Group initialled by or on behalf of the Vendor and the Purchaser for the
purposes of identification only;
ABB DATABASES means all databases owned by the ABB Group, whether or not
accessed by a member of the Extended SF Group prior to Completion, excluding all
databases which have been exclusively developed and operated by or exclusively
for the benefit of the SF Business, including without limitation, ABB Structured
Finance's "Global" database;
ABB EXPORT BANK GENERAL RESERVES means, from time to time, in respect of any
and/or all general reserves and/or provisions made in accordance and consistent
with US GAAP, the Export Bank Transactions' pro rata allocation of such general
reserves and provisions;
ABB EXPORT BANK INTRA-GROUP INDEBTEDNESS means the Intra-Group Indebtedness
resulting from or related to the Export Bank Transactions;
ABB EXPORT BANK NET INTRA-GROUP INDEBTEDNESS means the Net Intra-Group
Indebtedness resulting from or related to the Export Bank Transactions;
ABB EXPORT BANK NET INTRA-GROUP INDEBTEDNESS AMOUNT means the aggregate net
amount of all ABB Export Bank Net Intra-Group Indebtedness;
ABB EXPORT BANK OUTSTANDING LOAN BALANCE means the book value of the aggregate
of all principal loan balances owed to ABB Export Bank under the Export Bank
Transactions and outstanding at the relevant date and interest accrued thereon,
in accordance with the terms of the relevant Export Bank Transaction, up to and
including such date net of all ABB Export Bank Reserves as at such date;
ABB EXPORT BANK RESERVES means the ABB Export Bank Specific Reserves and the ABB
Export Bank General Reserves;
Page 92
CONFORMED COPY
ABB EXPORT BANK SPECIFIC RESERVES means, from time to time, any and/or all
specific reserves and/or provisions made in accordance and consistent with US
GAAP, in respect of any of the Export Bank Transactions;
ABB GROUP means the Vendor and its Affiliates from time to time, all of them and
any of them as the context admits, but excluding, for the avoidance of doubt,
from Completion each SF Group Company;
ABB MARKS has the meaning given in clause 14.5(a);
ABB SHARED INTELLECTUAL PROPERTY RIGHTS means all Intellectual Property Rights
owned by any SF Group Company (immediately after Completion) which were used or
held, developed, generated, created or acquired for use in or in relation to any
part of the business of the ABB Group, including the SF Business, but not
exclusively in or in relation to the SF Business, as at the date of this
Agreement, other than the SF Intellectual Property Rights;
ABB WORLD TREASURY CENTER means ABB Capital B.V. operating as World Treasury
Center, acting for itself and on behalf of various members of the ABB Group;
AB SEK means AB Svensk Exportkredit;
ACCEPTABLE BANK means either (i) a major North American or Western European
incorporated international bank whose long-term unsecured unsubordinated debt
rating meets the Minimum Credit Rating or (ii) any bank specified in Schedule 25
(Schedule 25 Banks) if and for so long as its debt rating is equal to or greater
than that set out opposite its name in Schedule 25 (Schedule 25 Banks) (or such
other rating as the Purchaser may in its absolute discretion agree from time to
time) (a Schedule 25 BANK);
ACCEPTABLE CURE means, if the Relevant Breach or Material Adverse Change:
(a) relates solely to a one-off cash liability being incurred by or a
one-off reduction in the cash resources available to an SF Group
Company, the absolute and unconditional payment of a cash amount (other
than by a SF Group Company) to the SF Group Company in question of an
amount not less than the cash liability or reduction in cash resources
incurred; or
(b) relates solely to the impairment of any Financial Asset, the treatment
of such Financial Asset as an Excluded Asset for all purposes;
(c) relates solely to the absence of or any defect in any asset or service
(not being a Financial Asset) required for the operation of any part of
the SF Business, the procurement of:
(i) such asset at no cost to the relevant member of the SF Group or
Purchaser's Group for so long as such asset would have remained
in service had the Relevant Breach or Material Adverse Change
not occurred or arisen; or, as the case may be;
Page 93
CONFORMED COPY
(ii) such service at a cost no greater than would have been incurred
in the provision of such service had the Relevant Breach or
Material Adverse Change not occurred or arisen;
provided, in each case, that each cure remedies the Relevant Breach or Material
Adverse Change, as the case may be, in full;
ACCOUNTS means the 2001 Financial Statement and the SF Group Company Accounts
and the Noleggi Financial Statement;
ACCOUNTS DATE means 31 December 2001;
ACQUISITION STRUCTURE means the structure under which the Shares and the
Business Assets shall be sold by the Vendor and the Designated Vendors and
acquired by the Purchaser and the Designated Purchasers as set out in and
envisaged by Schedule 20 (Agreed Acquisition Structure) and/or Schedule 17
(Business Assets/Transfer Employees/Export Bank Transactions);
ADDITIONAL RESERVES means the Revised Reserve less the Total Existing Reserve;
AFFILIATE means in relation to any party, any subsidiary undertaking or parent
undertaking of that party and any subsidiary undertaking of any such parent
undertaking, in each case, from time to time;
AGREED FORM means, in relation to any document or media, the form of that
document or media, which is or has been initialled only for the purpose of
identification by or on behalf of the Purchaser and the Vendor and AGREED FORM
DOCUMENTS means all such documents;
ALTERNATIVE SECURITY has the meaning given to it in clauses 10.11(b)(ii) and
10.12(a)(ii), as the case may be;
APPROVED INSURANCE TERMS has the meaning given in clause 10.54;
ASSURANCE means any warranty, representation, surety, statement, assurance,
covenant, agreement, undertaking, indemnity, Guarantee or commitment of any
nature whatsoever;
BANK means Citibank N.A., New York branch;
BASE RESERVE means, in respect of each Reserves Entity, the amount calculated
using the methodology described in clause 10.43(a);
BUSINESS ASSETS means the assets relating to the SF Business, the Business
Contracts listed in Part A of Schedule 17 (Business Assets/Transfer
Employees/Export Bank Transactions) (together with all rights, benefits,
liabilities, duties and obligations of the relevant Business Asset Vendor under
such Finance Agreements and Related Security as, and to the extent such, relate
to the relevant Business Contracts), and the Export Bank Transactions;
Page 94
CONFORMED COPY
BUSINESS ASSET PURCHASERS means, subject to clause 2.3, the members of the
Purchaser's Group set out in the respective columns of Part A and Part C of
Schedule 17 (Business Assets/Transfer Employees/Export Bank Transactions) headed
"Business Asset Purchaser" and BUSINESS ASSET PURCHASER means any one of them;
BUSINESS ASSET TRANSFER AGREEMENTS means (i) the deeds of assignment or deeds of
novation or assignment agreements or novation agreements substantially in the
Agreed Form (subject only to such amendments thereto as may be required by
relevant local law and/or regulation) relating to the assignment or novation of,
as the case may be, of the Business Contracts and/or the Export Bank
Transactions; and (ii) the agreements substantially in the Agreed Form (subject
only to such amendments thereto as may be required by relevant local law and/or
regulation) for the sale and purchase of the Business Assets in particular
jurisdictions to be entered into on Completion between the relevant Business
Asset Vendor and Business Asset Purchaser for each particular jurisdiction (as
set out in Part A and Part C of Schedule 17 (Business Assets/Transfer
Employees/Export Bank Transactions)), and BUSINESS ASSET TRANSFER AGREEMENT
means any one of them;
BUSINESS ASSET VENDORS means, subject to clause 2.3, the members of the ABB
Group set out in the column of Schedule 20 (Agreed Acquisition Structure) headed
"Designated Vendor" and/or the members of the ABB Group which, as at Completion,
are legally and/or beneficially interested in any of the Business Assets, and
BUSINESS ASSET VENDOR means any one of them;
BUSINESS CONTRACTS means those transactions comprising part of or relating to
the SF Business which are set forth or referred to in Part A and Part C of
Schedule 17 (Business Assets/Transfer Employees/Export Bank Transactions) and
BUSINESS CONTRACT means any one of them;
BUSINESS DAY means a day (excluding Saturdays) on which banks generally are open
in Zurich, Switzerland and New York City, New York, USA for the transaction of
normal banking business;
CASH means cash at bank and in hand;
CLAIM means any claim for breach of Vendor Warranties, any Indemnity Claim and
any other claim under or in respect of this Agreement and/or any of the other
Transaction Documents;
COLLECTIVE AGREEMENT means any agreement or arrangement made by or on behalf of
any SF Group Company or Transfer Employees Transferor with any, or by or on
behalf of any, one or more trade unions, works councils, staff associations or
other body representing Employees and any agreement or arrangement made by or on
behalf of any employers' or trade association and one or more trade unions,
works councils, staff associations, association of trade unions or other central
body representing Employees which applies to any SF Group Company or to which a
SF Group Company or Transfer Employees Transferor is subject;
Page 95
CONFORMED COPY
COMPANIES means each of the entities details of which are set out in Part A of 0
(Particulars of the SF Group) and Company shall be construed accordingly;
COMPENSATION for the purposes of clause 3.13 means the aggregate of (i)
Condition Asset Cost, (ii) Funding Breakage Costs and (iii) any Direct Loss
however suffered minus 75 per cent. of any Direct Gain;
COMPETENT AUTHORITY means a relevant regulatory authority, tribunal or court;
COMPLETION means, in order of sequence, (i) completion of the sale and purchase
of the Shares in ABB Credit B.V. from ABB Credit Holding B.V. and ABB Structured
Finance AB; followed by (ii) completion of the sale and purchase of the
remaining Shares (other than the Shares of ABB Credit Holding B.V.) and the
Business Assets, followed by (iii) completion of the sale and purchase of the
Shares in ABB Credit Holding B.V. from ABB Financial Services B.V., each of
which shall take place on the same Completion Date and together constituting
Completion, in accordance with clause 6;
COMPLETION ADJUSTMENT has the meaning given in clause 6.7(c)(i);
COMPLETION ADJUSTMENT ESCROW ACCOUNT means such separately-designated interest
bearing bank account, identified as the "Completion Adjustment Escrow Account",
opened at the Bank in the joint names of the Vendor and the Purchaser pursuant
to and in accordance with the terms of the relevant Escrow Instruction Letter;
COMPLETION ADJUSTMENT ESCROW AMOUNT means the sum of US$ twenty (20) million;
COMPLETION BALANCE SHEET means the combined balance sheet of the SF Business to
the extent comprised within the SF Group and the Business Assets (including, for
the avoidance of doubt, the Export Bank Transactions) (and related notes
comprising part of such balance sheet) as at Completion, to be prepared, agreed
and/or determined in accordance with clause 7 and Schedule 8 (Completion Balance
Sheet) in the form set out in Schedule 10 (Form of Completion Balance Sheet);
COMPLETION DATE has the meaning given in clause 6.2;
COMPLETION DOCUMENTS means the documents set out in Schedule 7 (Completion
Arrangements);
COMPLEX FINANCE RECEIVABLES shall mean Finance Receivables where amounts owed by
a lessee are satisfied by a single payment stream covering both repayment of
capital and interest and payment for related services provided in relation to
operation or maintenance of the underlying assets;
COMPOSITE EU/BANK OF ENGLAND PROHIBITED PERSONS LIST means (i) the UN's "New
Consolidated List Pursuant to Security Council Resolutions 1267 (1999), 1333
(2000) and 1390 (2002); (ii) The European Union's "Council Regulation (EC) No
881/2002"; and (iii) The Bank of England's "Consolidated List of Territories",
taken together;
Page 96
CONFORMED COPY
CONDITIONS means the conditions set out in clause 3.1;
CONDITION ASSETS shall have the meaning given in clause 3.13;
CONDITION ASSET COST shall mean 7.5 per cent. times the book value of the
Finance Receivables forming all or part of the Condition Assets;
CONDITION ASSET ESCROW ACCOUNT means such separately-designated interest bearing
bank account, identified as "Condition Assets Escrow Account", opened at the
Bank in the joint names of the Vendor and the Purchaser pursuant to and in
accordance with the terms of the relevant Escrow Instruction Letter;
CONDITION ASSET ESCROW AMOUNT means an amount equal to 15 per cent. of the net
book value of the Condition Assets;
CONDITION ASSET PAYMENT means any payment by the Vendor pursuant to the
provisions of clause 3.13;
CONDUCT BREACH has the meaning given in clause 15.1(b);
CONFIDENTIAL BUSINESS INFORMATION means all information (whether oral, written,
or stored electronically or optically) which relates to the SF Business or
financial affairs of the SF Group, and in each case, is not generally available
to the public;
CONFIDENTIAL INFORMATION has the meaning set out in clause 18.1;
CONFIDENTIALITY UNDERTAKINGS means the confidentiality undertakings of GE
Capital Europe Limited dated 21 December 2001 and ABB Ltd dated 14 June 2002 and
CONFIDENTIALITY UNDERTAKING means any of them;
CONSENTS has the meaning given in clause 8.1;
CONTRACTUAL DEFAULT means, in relation to any contract, licence, lease or other
agreement:
(a) a notice to terminate by reason of default having been served on any
member of the Extended SF Group or, any event of default by a member of
the Extended SF Group or other circumstance which would entitle a party
to terminate;
(b) the Vendor being aware of an event or circumstance having occurred
which, with the giving of notice or lapse of time, would constitute such
an event or circumstance of the type referred to in (a) above;
(c) the Vendor having knowledge of any invalidity or grounds for
termination, avoidance, or repudiation;
(d) any party being in material default or the Vendor being aware of any
circumstances likely to result in any material default;
(e) the Vendor being aware of:
Page 97
CONFORMED COPY
(i) a petition having been presented, order made or resolution
passed in connection with the winding up of any other party
thereto; or
(ii) the appointment of a receiver, administrator or liquidator (or
analogous events in the relevant jurisdictions) thereto; or
(iii) any circumstances existing which are likely to give rise to
such matters; or
(a) there being material litigation, arbitration or similar proceedings in
relation thereto of which the Vendor is aware or circumstances likely to
give rise to such proceedings of which the Vendor is aware;
COSTS means liabilities, losses, damages, costs (including legal costs) and
expenses (including Tax), in each case, of any nature whatsoever;
CREDIT POLICIES means, with respect to the Portfolio Property, the policies and
procedures as at the date of this Agreement of each member of the SF Group
relating to the standards and requirements governing the evaluation,
origination, underwriting, decision-making (including automated
decision-making), documentation, funding, account classification (for example,
delinquent, non-earning, written-down, written-off, subject to pending or
threatened litigation or action), administration (servicing and collection),
credit approval authority limitations, extensions, forbearance, repossession,
residual setting, collateral types and collateral eligibility;
CURE PERIOD has the meaning given in clause 15.3;
DATA PROTECTION LAWS means all applicable laws and regulations regulating data
protection, privacy or the recording, monitoring or interception of
communications;
DEFAULTING PARTY has the meaning set out in clause 6.5(b);
DEFEASANCE DEPOSITS means the defeasance amounts held by ABB World Treasury
Center/ABB Credit AB in relation to the obligations of Essent NV under the
Essent Transactions and Kotkan Energia Oy under the Kotkan Transactions;
DEPARTURE-FROM-GROUP CONDITION has the meaning set out in clause 22.1;
DERIVATIVE TRANSACTIONS means any derivative transaction entered into by a
member of the SF Group, whether on or off balance sheet, in connection with
protection against or benefit from fluctuation in any rate, currency or price
(and, when calculating the value of any derivative transaction, only the
marked-to-market value shall be taken into account);
DESIGNATED ASSET has the meaning given to such term in the Designated Asset
Agreement;
DESIGNATED ASSET AGREEMENT means the Designated Asset Agreement entered into or
to be entered into, as the context may require, between the Vendor and the
Purchaser on the date of this Agreement;
Page 98
CONFORMED COPY
DESIGNATED ASSET DEFAULT has the meaning given to such term in the Designated
Asset Agreement;
DESIGNATED PURCHASERS means, subject to clause 2.3, the Share Purchasers, the
Business Asset Purchasers and the Transfer Employees Transferees, and DESIGNATED
PURCHASER means any one of them;
DESIGNATED VENDORS means, subject to clause 2.3, the Share Vendors, the Business
Asset Vendors and the Transfer Employees Transferors, and DESIGNATED VENDOR
means any one of them;
DIRECT GAIN shall be the amount (if any) by which any consideration paid by a
third party purchaser of Condition Assets is higher than the book value of those
assets as set out or reflected in the Completion Balance Sheet;
DIRECT LOSS shall be the amount (if any) by which any consideration paid by a
third party purchaser of Condition Assets is lower than the book value of those
assets as set out or reflected in the Completion Balance Sheet;
DISCLOSURE LETTER means the letter from the Vendor to the Purchaser signed and
delivered immediately before the signing of this Agreement;
DISCLOSURES shall have the meaning given in paragraph 1.1 of Schedule 3 (Vendor
Warranties);
DISPUTED ITEMS has the meaning set out in clause 7.6(a);
DRAFT COMPLETION BALANCE SHEET has the meaning given in clause 7.2;
DUE DILIGENCE DATA TAPES means the four (4) CD ROMS labelled as such in the
Agreed Form and DUE DILIGENCE DATA TAPE shall be construed accordingly;
EKN and EKN GUARANTEE each has the meaning given in clause 10.23(f);
EMPLOYEES means employees of any member of the ABB Group who wholly or mainly
are engaged in the SF Business as at the date of this Agreement and including
all those future employees of the SF Group who will join and be employed by a SF
Group Company prior to Completion and in relation to the Transfer Employees,
those employees of the relevant Transfer Employees Transferors who are
immediately prior to Completion engaged in the SF Business and whose names are
set out in Part B of Schedule 17 (Business Assets/Transfer Employees/Export Bank
Transactions);
ENCUMBRANCE means a mortgage, charge, pledge, security, lien, option, right of
first refusal, right of pre-emption, right of pledge, right of usufruct or
liens, third-party right or interest, other encumbrance or security interest of
any kind, or another type of preferential arrangement (including, without
limitation, a title transfer or retention arrangement) (and ENCUMBERING shall be
construed accordingly);
Page 99
CONFORMED COPY
ENVIRONMENT means:
(a) land, including surface land, sub-surface strata, sea bed and river bed
under water (as defined in paragraph (b)); and natural and man made
structures;
(b) water, including coastal and inland waters, surface waters, ground
waters and water in drains and sewers;
(c) air, including air inside buildings and in other natural and man-made
structures above or below ground; and
(d) any and all living organisms or systems supported by those media,
including, without limitation, humans;
ENVIRONMENTAL CLAIM means any claim in respect of any Environmental Warranty or,
to the extent such relates to an Environmental Matter, in respect of any
Warranty set out in any of paragraphs 4, 6, 17 and 29 (other than 29.6, 29.7,
29.8, 29.9 and 29.11) of Schedule 3 (Vendor Warranties);
ENVIRONMENTAL LAWS means all or any international, European, national or local,
federal, state, civil or criminal law, common law, statute, ordinance, code,
statutory instrument, regulation, directive, official guidance and regulatory
codes of practice, order, decree, injunction or judgement which relate to the
Environment or Environmental Matters; and which:
(a) (without prejudice to paragraph 2(e) of Schedule 1 (Interpretation)) is
in force and binding as at the date of this Agreement but only to the
extent that such of the above as are amended or re-enacted after the
date hereof are not more onerous than those in force and binding at the
date hereof; or
(b) is no longer in force but under which any member of the SF Group has
legally binding obligations and liabilities outstanding thereunder;
ENVIRONMENTAL MATTERS means:
(a) material pollution or material contamination or the threat of material
pollution or contamination of the Environment;
(b) the generation, manufacture, processing, handling, storage,
distribution, use, treatment, removal, transport, disposal, release,
spillage, deposit or discharge of Hazardous Substances;
(c) the material exposure of any person (including Employees) to Hazardous
Substances; or
(d) the creation of noise, vibration, radiation, common law or statutory
nuisance or other material adverse impact on the Environment;
ENVIRONMENTAL PERMITS means any material licence, authorisation, permission,
approval and/or consent issued, granted or required pursuant to Environmental
Laws;
Page 100
CONFORMED COPY
ENVIRONMENTAL WARRANTIES means the Warranties set out in paragraph 28 of
Schedule 3 (Vendor Warranties) and ENVIRONMENTAL WARRANTY means any one of them;
ESCROW INSTRUCTION LETTERS means each of the letters in the Agreed Form between
the Vendor, the Purchaser and the relevant escrow agent or bank appointing and
instructing such escrow agent or bank in relation to the Completion Adjustment
Escrow Account and the Condition Asset Escrow Account respectively;
ESSENT TRANSACTIONS means the transactions evidenced by, inter alia, (1) the
Deposit and Pledge Agreement as of 6 December 1993 (as amended 21 December 1995)
between ABB Credit B.V., Zurich Branch, ABB Capital B.V. and N.V. PNEM Transport
& Opwekking; (2) the Payment Undertaking Agreement as of 1 July 1993 (as amended
30 November 1995) between ABB Credit B.V., Zurich Branch, N.V. PNEM Transport &
Opwekking and ABB Capital B.V., Zurich Branch; (3) the Deed of Pledge as of 6
June 1994 between ABB Credit B.V., Zurich Branch, ABB Capital B.V. and N.V. PNEM
Transport & Opwekking; (4) the Deposit and Pledge Agreement as of 10 March 1995
(as amended 21 December 1995) between ABB Credit B.V., Zurich Branch, ABB
Capital B.V. and N.V. PNEM Transport & Opwekking; (5) the Payment Undertaking
Agreement as of 10 March 1995 between ABB Credit B.V., Zurich Branch, N.V. PNEM
Transport & Opwekking and ABB Capital, Zurich Branch, and (6) the Deed of Pledge
as of 21 December 1995 between ABB Credit B.V., Zurich Branch, ABB Capital B.V.
and N.V. PNEM Transport & Opwekking;
ESTIMATED ABB EXPORT BANK OUTSTANDING LOAN BALANCE means the Vendor's best
estimate (acting reasonably and in good faith) of the amount of the ABB Export
Bank Outstanding Loan Balance as at Completion;
EXCHANGE RATE means with respect to a particular currency for a particular day,
the relevant rate of exchange for that currency into dollars as listed in the
London edition of the Wall Street Journal published on such date;
EXCLUDED AIRCRAFT ASSETS means all aircraft, aircraft engines and aircraft parts
owned by any member of the ABB Group other than the Included Aircraft Assets;
EXCLUDED ASSETS means the ABB Marks, the ABB Databases, the Excluded Aircraft
Assets, Excluded Contracts and all those assets and rights which are excluded
from the sale and purchase pursuant to this Agreement, being those more
specifically detailed in Part A of Schedule 13 (Excluded Assets/Excluded
Contracts/Excluded Businesses) and any other assets and rights which are
expressed to be or, at any time prior to Completion, become Excluded Assets;
EXCLUDED BUSINESSES means any and all of those businesses carried on by the ABB
Group which are excluded from the sale and purchase pursuant to this Agreement,
including those more specifically detailed in Part B of Schedule 13 (Excluded
Assets/Excluded Contracts/Excluded Businesses);
EXCLUDED CLAIMS means the benefit and burden of all rights, obligations and
claims relating to the Excluded Contracts, the Excluded Companies, the Excluded
Assets, the Excluded Liabilities and/or the Excluded Businesses;
Page 101
CONFORMED COPY
EXCLUDED COMPANIES means Shared Savings Contracts Inc., AB Svensk Exportkredit,
ABB Export Bank, ABB Structured Finance Investment AB, ABB Structured Finance
Investment BV, ABB Kraftinteressenter KB, Resonia Forvaltning AB, ABB New
Finance AB, Old Church Aviation B.V., ABB Credit Stockholm AB, ABB Structured
Finance (USA) Inc., ABB TD Finance AB and ABB CSC Finance AB;
EXCLUDED CONTRACTS means the contracts, engagements, leases and commitments,
described in Part A of Schedule 13 (Excluded Assets/Excluded Contracts/Excluded
Businesses) and any other assets and rights which are expressed to be or, at any
time prior to Completion, become Excluded Assets;
EXCLUDED LIABILITIES means any liabilities, obligations, commitments,
indebtedness or borrowings relating to or arising or resulting from any of the
Excluded Assets, the Excluded Contracts, the Excluded Companies, the Excluded
Claims and/or the Excluded Businesses;
EXPERT means a partner of at least 10 years' qualified experience in applying
the US generally accepted accounting principles in the financial services sector
at an internationally recognised firm of certified public accountants chosen
jointly by the Vendor and the Purchaser or, in default of agreement within ten
(10) Business Days of one of the parties seeking the appointment of an Expert,
selected by Deloitte & Touche, London;
EXPORT BANK TRANSACTIONS means each of those arrangements and transactions set
out in Part C of Schedule 17 (Business Assets/Transfer Employees/Export Bank
Transactions), together with all rights, benefits, liabilities, duties and
obligations of ABB Export Bank under such Finance Agreements and Related
Security as, and to the extent such, relate to such transactions;
EXPOSURE means, in respect of the relevant member of the SF Group, in relation
to any Financial Asset and/or Guarantee, the aggregate of:
(a) any loan, lease or other Finance Receivables outstanding, including
outstanding principal, accrued but unpaid interest and any rental
receivable; plus
(b) any unfunded commitments in respect of such Financial Asset; plus
(c) any actual or contingent liability to pay under any Guarantee, letter of
credit or similar instrument, or any counter-indemnity obligation in
respect of any Guarantee, letter of credit or similar instrument;
EXTENDED SF GROUP means, for the purposes only of the Vendor Warranties and
Schedule 14 (Conduct of the SF Business) and (to the extent required for such
provisions only) Schedule 1 (Interpretation):
(a) those members of the ABB Group (other than a member of the SF Group)
which have at any time prior to Completion owned any of the assets or
been liable for any liabilities of the SF Business from time to time, in
relation only
Page 102
CONFORMED COPY
to such assets and/or such liabilities (whether actual or contingent) as
relate to the SF Business and exist on or after Completion; and
(b) each and all members of the SF Group;
EXTERNAL GUARANTEES means Guarantees provided by any persons (other than members
of the ABB Group), including those set out in Part F of Schedule 12
(Indebtedness);
FINAL ABB EXPORT BANK OUTSTANDING LOAN BALANCE means the ABB Export Bank
Outstanding Loan Balance derived from or reflected in the Final Completion
Balance Sheet;
FINAL COMPLETION BALANCE SHEET means the Completion Balance Sheet in the final
form as agreed and/or determined in accordance with clause 7 together with the
report signed by the Vendor's Accountants in respect thereof;
FINAL CONSIDERATION means the aggregate of the amount of the Owners' Equity plus
the amount of the Additional Reserves plus the amount of the Net Sirius Equity
Impact minus US$70 million, such amounts of Owners' Equity, Additional Reserves
and Net Sirius Equity Impact to be as derived or as extracted from or reflected
in the Final Completion Balance Sheet and set out in the Final Consideration
Schedule;
FINAL CONSIDERATION SCHEDULE has the meaning given in clause 7.14(a);
FINAL INTRA-GROUP INDEBTEDNESS means the Intra-Group Indebtedness derived from
or reflected in the Final Completion Balance Sheet;
FINAL NET INTRA-GROUP INDEBTEDNESS means the Net Intra-Group Indebtedness
derived from or reflected in the Final Completion Balance Sheet;
FINAL SETTLEMENT DATE has the meaning given in clause 2.5;
FINANCE AGREEMENT means any leasing, rental, sale, hire purchase, loan, or
project finance agreement or any other financing agreements of whatever nature
extended by any member of the Extended SF Group to a third party;
FINANCE RECEIVABLES means, in relation to any part of the SF Business and in any
currency, any amount owed by any person (other than a member of the Extended SF
Group (the RELEVANT PERSON) to any member of the Extended SF Group) in respect
of:
(a) moneys borrowed from the SF Group Company;
(b) any amount (principal and premium (if any)) raised by the Relevant
Person by acceptance under any acceptance credit facility;
(c) any amount (principal and premium (if any)) raised by the Relevant
Person pursuant to any note purchase facility or the issue of bonds,
notes, debentures, loan stock or any similar instrument;
Page 103
CONFORMED COPY
(d) the amount of any liability of the Relevant Person in respect of any
lease purchase contract which would, in accordance with US GAAP, be
treated as a finance or capital lease; and
(e) any amount (principal and premium (if any)) raised under any other
transaction having the commercial effect of a borrowing from a SF Group
Company entered into by the Relevant Person to finance its business,
operations, projects or capital requirements,
to the extent that the items set out above are shown as Finance Receivables on a
balance sheet of the SF Business drawn up in accordance with US GAAP and the
definitions, principles, policies, procedures and methods and practices of
accounting set out in the ABB Accounting Principles, but excluding, for the
avoidance of doubt, any Intra-Group Indebtedness;
FINANCIAL ADVISORY BUSINESS means the business carried on by any member of the
ABB Group of providing stand alone financial advisory services;
FINANCIAL ASSETS means the Infrastructure/Mid Market Financial Assets and the
Small Ticket Financial Assets;
FORMER PROPERTIES means any properties previously owned, leased or occupied by
any member of the Extended SF Group in the period prior to Completion but no
longer owned, leased or occupied as at Completion;
FUNDING BREAKAGE COSTS shall be the cost, as quoted by GE Treasury, of early
terminating the matched debt taken in relation to the Condition Assets;
GOODWILL means the goodwill of, attaching to and/or deriving from, the SF
Business, and the Purchaser's right to represent itself as operating the SF
Business in succession to the SF Group, but shall not include any goodwill of,
attaching to or deriving from the ABB Marks or any right to use or apply for
registration of any of the ABB Marks as a trade xxxx or service xxxx;
GROUP means, in relation to the Vendor, the ABB Group and, in relation to the
Purchaser, the Purchaser's Group, as the context may require;
GROWTH RESERVE means, in respect of each Reserves Entity, the amount calculated
using the methodology described in clause 10.43(b);
GUARANTEES means all bonding liabilities, guarantees, indemnities, counter
indemnities, statements of joint and several liability, sureties, letters of
comfort or similar contingent liabilities or commitments of any nature
whatsoever;
HAZARDOUS SUBSTANCE means a substance in sufficient quantity capable of causing
and known or generally suspected to cause material pollution or material
contamination, material harm or material damage to the Environment or the
Properties but excluding substances (whether alone or in combination with any
other substance or contained in or as part of an article or thing) which have
never been within the possession or control of any member of the Extended SF
Group or the ABB Group;
Page 104
CONFORMED COPY
HIVE-DOWN AND TRANSFER means the hive-down and transfer of Excluded Assets,
Excluded Contracts, Excluded Companies, Excluded Liabilities, Excluded Claims,
Excluded Businesses and other assets and liabilities in accordance with clause
4.1 and the provisions of Schedule 13 (Excluded Assets/Excluded
Contracts/Excluded Businesses);
HIVE-DOWN COMPANY has the meaning given in paragraph 1.1 of Part C of Schedule
13 (Excluded Assets/Excluded Contracts/Excluded Businesses);
HIVE-DOWN CONSENTS has the meaning given in paragraph 1.3 of Part C of Schedule
13 (Excluded Assets/Excluded Contracts/Excluded Businesses);
HOLDING COMPANY means any company which holds a majority of the voting rights in
another company or which is a member of another company and has the right to
appoint or remove a majority of its board of directors or is a member of another
company and controls a majority of the voting rights in it pursuant to an
agreement with other members;
HSR ACT has the meaning set out in clause 3.1(c);
INCLUDED AIRCRAFT ASSETS means all aircraft, aircraft engines and aircraft parts
listed in ERROR! REFERENCE SOURCE NOT FOUND. (Included Aircraft Assets);
INCOME has the meaning given in clauses 3.15(b) and 6.7(b) (as appropriate);
INDEBTEDNESS ADJUSTMENT has the meaning set out in clause 5.8;
INDEBTEDNESS SCHEDULE has the meaning given in clause 5.7;
INDEBTEDNESS SCHEDULE AND REPORT has the meaning given in clause 5.7;
INDEMNITY CLAIM means a claim under any of the indemnities contained in clause
10.23;
INFRASTRUCTURE FINANCIAL ASSETS shall mean those leases, loans, receivables and
associated assets:
(a) shown in any of the Due Diligence Data Tapes as being owned by:
(i) "NLFSF", "GBFSF", "SEREN", "SERES", "SESOD" and/or "NOCRE";
and/or
(ii) "SECRE", "SECRF" and/or "SEPRI" and denoted in such tapes as
being "IF" assets; or
(b) acquired or originated since 31 December 2001 with a value equivalent to
US$3 million or more, and
which, in each case, are due to or owned by any member of the Extended SF Group
pursuant to a Finance Agreement;
Page 105
CONFORMED COPY
INFRASTRUCTURE/MID MARKET FINANCE AGREEMENT means a Finance Agreement entered
into in relation to any Infrastructure/Mid Market Financial Assets;
INFRASTRUCTURE/MID MARKET FINANCE BUSINESS means the business of managing and
exploiting the Infrastructure/Mid Market Financial Assets and of originating,
managing and exploiting new business in respect of assets of the same nature as
the Infrastructure/Mid Market Financial Assets;
INFRASTRUCTURE/MID MARKET FINANCIAL ASSETS means those leases, receivables and
associated assets (other than Small Ticket Financial Assets) due to or owned by
any member of the Extended SF Group (other than a Small Ticket Company) pursuant
to a Finance Agreement (including, for the avoidance of doubt, each of the
Export Bank Transactions);
INFRASTRUCTURE/MID-MARKET WARRANTED FIELDS means those fields on the Due
Diligence Data Tapes indicated as being warranted in the columns headed "Mid
Market and Infrastructure Finance (excluding Underwriting & Syndication)" and
"Underwriting & Syndication" in Schedule 24 (Warranted Fields);
INITIAL CONSIDERATION means the aggregate consideration payable pursuant to
clauses 2.4 and 2.4A, being the sum of US$433,700,000 plus an amount equal to
the Estimated ABB Export Bank Outstanding Loan Balance;
INITIAL UNPAID BALANCE has the meaning given to such term in the Specified
Receivables Agreement;
INSURED PARTY has the meaning given in clause 10.54;
INTELLECTUAL PROPERTY RIGHTS means patents, registered trade marks, service
marks, rights in designs, copyrights, rights in trade, corporate and business
names, rights in know-how, rights in databases and inventions, internet domain
names and e-mail addresses and any other similar rights in any country whether
or not registered or registrable and including all pending applications for the
registration of any such rights, and all rights to apply for registration of any
such rights and in each case wherever subsisting in the world and including but
not limited to the right to xxx for past infringement of any of the foregoing
rights, including, for the avoidance of doubt and without limitation any such
rights subsisting in computer software;
INTRA-GROUP DERIVATIVE TRANSACTIONS means all Derivative Transactions between a
member of the ABB Group (other than an SF Group Company) and a member of the SF
Group;
INTRA-GROUP GUARANTEES means all Guarantees given on or prior to Completion
(other than under any of the Transaction Documents):
(a) by any member of the ABB Group (other than an SF Group Company) to any
person (including, without limitation, any member of the ABB Group
and/or any member of the SF Group) in respect of any liability or
obligation (i) of any SF Group Company and/or (ii) which relates to any
of the Business Assets
Page 106
CONFORMED COPY
and/or (iii) which otherwise relates to the SF Business, including (as
applicable), those set out in Part A of Schedule 18 (Intra-Group
Guarantees); or
(b) by any SF Group Company to any third party and/or any member of the ABB
Group (other than an SF Group Company) in respect of any liability or
obligation of any member of the ABB Group (other than an SF Group
Company);
INTRA-GROUP INDEBTEDNESS means all amounts expressed to be payable, whether or
not due, as at Completion in any currency by:
(a) any SF Group Company to ABB World Treasury Center or any member of the
ABB Group (other than an SF Group Company); or
(b) any member of the ABB Group (other than an SF Group Company) to a member
of the SF Group,
plus accrued interest, all at current book value, and including, without
limitation, as at Completion:
(i) any Intra-Group Service Fees and any trade and non-trade
amounts due and payable;
(ii) any amounts due in respect of Tax paid by a member of the ABB
Group (other than an SF Group Company) on behalf of any SF
Group Company in relation to the SF Business, together in each
case with accrued interest thereon and any uncleared items;
(iii) any amounts owed in respect of cash pooling balances;
(iv) any amounts due in respect of Tax losses surrendered by or to
any SF Group Company to or by any member of the ABB Group
(other than an SF Group Company); and
(v) any amounts owed in respect, inter alia, of the funding of any
of the Export Bank Transactions,
but excluding any Finance Receivables;
INTRA-GROUP SERVICE FEES means, in relation to the SF Business, each amount owed
by: (a) any member of the SF Group to any member of the ABB Group (excluding for
these purposes, members of the SF Group); or (b) any member of the ABB Group
(excluding for these purposes, members of the SF Group) to any member of the SF
Group, in each case, in relation to the SF Business in respect of commissions,
fees, brokerage or other benefits;
IPR CONSENTS has the meaning given in clause 10.17;
IT SYSTEMS means all hardware, software and data used by each SF Group Company;
Page 107
CONFORMED COPY
KEY CONTRACT means each of (i) an exclusivity agreement between ABB Credit B.V.,
Zurich Branch and Emhart Glass S.A dated 1 March 2001; (ii) each of the lease
agreements I, II, III and IV, in each case, between ABB Credit AB, Statens
Jarnvagar, Eurofirma, Statens Jarnvagar Invest AB and ABB Traction AB; (iii) a
credit agreement and interim credit agreement between Petrofac, Broken Hill
Proprietary Company Limited, Itochu Oil Exportation Company Limited and Japan
National Oil Company, each dated 30 June 2000; (iv) the limited recourse tax
lease transactions entered into by any of NLCRE, SECRE, and/or SECRF; and (v)
the lease and/or sublease granted in respect of the property located at Xxx
Xxxxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx, XXX;
KEY CONTRACT CONSENT has the meaning given in clause 10.25;
KNOW-HOW means all information, knowledge, expertise and techniques existing in
any media or form, and whether recorded in a material form, electronically or
otherwise, or unrecorded (whether or not in the public domain), which are used
or required to be used in or in connection with the SF Business including
(without limitation) information relating to the operation of any process; the
design or development of any products (including but not limited to software
products); production techniques; the provision of any service; the selection
and purchase of any resources, raw materials; the maintenance of any product, or
equipment; quality control; testing; certification and research and development
the marketing of goods or services including, without limitation, customer names
and lists and other details of customers, suppliers, subcontractors, sales
targets, sales information and statistics, market share statistics, prices,
market research reports and surveys, and advertising or other promotional
materials; all personal data (as defined in section 1 of the Data Protection Act
1998) relating to any customer of the SF Business; business plans, proposals and
forecasts, future projects, business development or planning, commercial
relationships and negotiations; accounting and tax records, orders and inquiries
relating to the SF Business;
KOTKAN TRANSACTION means the transaction evidenced by, inter alia, the Deposit
Agreement as of 26 February 1997 (as amended 27 February 1998) between ABB
Credit B.V., Zurich Branch, ABB Capital B.V. and ABB Credit Oy;
LESSEE CONSENT has the meaning given in clause 10.51;
LETTER OF CREDIT has the meaning given in clause 10.8;
LIBOR means the British Bankers' Association Interest Settlement Rate for 3
month LIBOR for the appropriate currency as displayed on the appropriate page of
the Telerate screen as at 11.00 a.m. London time on the day falling two (2)
London business days before the start of the relevant period for which interest
is to accrue;
LITIGATION/COMPLIANCE/REGULATORY CLAIM means any claim in respect of a Warranty
set out in paragraph 22 or 23 of Schedule 3 (Vendor Warranties);
LOCAL TRANSFER AGREEMENTS means the Business Asset Transfer Agreements, the
Share Transfer Agreements and any other agreement or document required under
relevant local law to transfer any of the shares, assets, liabilities,
businesses and/or
Page 108
CONFORMED COPY
employees contracted to be transferred pursuant to any of the Transaction
Documents, and LOCAL TRANSFER AGREEMENT means any one of them;
LONGSTOP DATE means the first (1st) Business Day after the date falling 9
calendar months from the date of this Agreement;
LOSS and LOSSES have the meanings given in clause 10.23;
MANAGEMENT FEE means, in respect of a Specified Receivable, an amount equal to:
(a) zero whilst Recoveries received are equal to or less than an amount
equal to the Remaining Unpaid Balance;
(b) 10 per cent. of Recoveries received, in excess of (a) and equal to or
less than an amount equal to the first 50 per cent. of the difference
between the Initial Unpaid Balance and the Valuation; and
(c) 20 per cent. of Recoveries received in excess of an amount equal to the
first 50 per cent. of the difference between the Initial Unpaid Balance
and the Valuation;
MANAGEMENT REPORT DATA TAPES means the three (3) CD ROMS labelled as such in the
Agreed Form;
MATERIAL means, for the purposes of the Warranties in paragraph 24 of Schedule 3
(Vendor Warranties) only, required for the day-to-day running of the SF
Business;
MATERIAL ADVERSE CHANGE means any event, act, transaction, omission,
circumstance, effect, occurrence or state of facts or affairs or any combination
thereof (each an EVENT) which is or is reasonably likely to be materially
adverse to the business, business relationships, assets (including contracts),
liabilities, operations or condition (financial or otherwise) existing as at the
fifth (5th) Business Day prior to the date of this Agreement of (i) the SF Group
(taken as a whole); or (ii) the Small Ticket Finance Business (taken as a
whole); or (iii) the Infrastructure/Mid Market Finance Business (taken as a
whole), and in assessing any Event for the purposes of this definition there
shall be disregarded:
(A) any economic conditions affecting both the SF Business
and its competitors in the markets in which the SF Group
and the SF Business operate;
(B) the announcement (in the form agreed by the parties) of
the Proposed Transaction; or
(C) any action or steps required or obliged to be taken
pursuant to the terms of this Agreement and/or any other
Transaction Documents;
Page 109
CONFORMED COPY
MATERIAL COMPLETION OBLIGATION means any obligation required to be performed by
the Vendor on Completion under paragraphs 1(a), (b), (c), (f), (g), (i), (k),
(l), (n), (o), (r), (s) and (t), 2 and 4 of Part B of Schedule 7 (Completion
Arrangements);
MATERIAL EFFECT means
(a) a loss or liability in excess of US$75 million; or
(b) a material adverse effect on the ability of the relevant members of the
Purchaser's Group and/or the SF Group to operate or conduct (i) the SF
Group (taken as a whole); or (ii) the Infrastructure/Mid Market Finance
Business (taken as a whole); or (iii) the Small Ticket Finance Business
(taken as a whole);
MATERIAL WARRANTY BREACH has the meaning given in clause 15.1(a);
MERGER has the meaning set out in clause 3.1(b);
MERGER REGULATION has the meaning set out in clause 3.1(b);
MID MARKET FINANCIAL ASSETS shall mean those leases, loans, receivables and
associated assets acquired or originated:
(c) on or prior to 31 December 2001 and which are not Infrastructure
Financial Assets or included in a Small Ticket Warranted Field; or
(d) since 31 December 2001, with a value of less than US$3 million (other
than a Small Ticket Financial Asset),
which are due to or owned by any member of the Extended SF Group pursuant to a
Finance Agreement;
MINIMUM CREDIT RATING means AA or better from Standard & Poor's Rating Group and
Aa2 or better from Xxxxx'x Investors Service, Inc.;
NET INTRA-GROUP INDEBTEDNESS means the aggregate, as at Completion, in respect
of each currency, of all Intra-Group Indebtedness in aggregate, owed or
outstanding in that currency by member(s) of the SF Group to member(s) of the
ABB Group (excluding the SF Group), net of all Intra-Group Indebtedness, in
aggregate, owed or outstanding in the same currency by member(s) of the ABB
Group (excluding the SF Group) to member(s) of the SF Group;
NET SIRIUS EQUITY IMPACT means the impact resulting from the reduction to net
equity of the SF Group resulting from the expense equal to the compensation to
Sirius in clause 10.44A(b), estimated as at the date of this Agreement to be
approximately SEK 11.9 million (recorded by SECRF and SECRE upon cancellation of
the Sirius risk insurance cash fund) and the related tax expense recorded by
SECRF and SECRE in their respective US GAAP accounts pursuant to clause
10.44A(c), estimated as of the date of this Agreement to be approximately SEK
43.1 million, suffered or incurred by the SF Group as a consequence of the
cancellation of SECRF's and SECRE's risk
Page 110
CONFORMED COPY
insurance cash fund on deposit with Sirius excluding, for the avoidance of
doubt, any Tax Liability in respect of clause 10.44A(a);
NEW TRANSACTION means any transaction entered into by a member of the SF Group
after the date of this Agreement other than pursuant to a commitment entered
into (whether or not subject to any precondition) prior to the date of this
Agreement;
NOLEGGI AGREEMENT means the share purchase agreement between Xerox S.p.A and ABB
Credit Holding BV dated 22 February 2002;
NOLEGGI COMPLETION BALANCE SHEET means the Final Financial Statements as defined
in the Noleggi Agreement;
NON-ABACUS MANAGEMENT REPORTS means the Management Report Data Tapes and the
non-ABACUS management reports, in the Agreed Form;
NON-DEFAULTING PARTY has the meaning set out in clause 6.5(b);
OFF THE SHELF PRODUCT means commercial off the shelf products freely available
on the market that can be used "as is" and which are designed to operate with or
alongside existing system components without requiring any material
modifications or adaptations to make them functional;
ON-SALE has the meaning set out in clause 11.12;
OPERATING MANUALS means the operating manuals, user instructions, technical
literature and other related materials that are materially necessary for
operating the Software Products;
OPERATING PLATFORM within the SF Business shall mean any of: Resonia, Xerox
Nordic, SIB, Xerox Noleggi, European Mid-Market, Business Finance,
Infrastructure Finance, Underwriting and Syndication, Energy Capital;
OPERATIONAL ASSETS means those assets used in the SF Business at the date of
this Agreement (other than Financial Assets);
OWNER'S EQUITY means the "Owners' equity" derived or extracted from or reflected
in the Completion Balance Sheet;
OUTSTANDING VALUE has the meaning given in clause 10.8;
PAYING PARTY has the meaning set out in clause 25.1;
PERMITTED ACTIONS means the actions and transactions permitted pursuant to
clause 4.4;
PERMITTED ASSIGNEE has the meaning set out in clause 22.1;
PERMITTED ENCUMBRANCES means security interests arising by operation of law
and/or security interests arising under title retention provisions;
Page 111
CONFORMED COPY
PORTFOLIO AIRCRAFT means any aircraft (including for the avoidance of doubt
helicopters) and associated engines (i) owned or leased by an SF Group Company
and forming the subject matter of any of the Finance Agreements or (ii) which
comprise all or part of the security for loan agreements which are themselves
comprised in any of the Finance Agreements;
PORTFOLIO PROPERTY means the equipment forming the subject matter of the Finance
Agreements;
PRE-SALE REORGANISATION means the pre-sale reorganisation of the SF Group as set
out in Schedule 2 of the Disclosure Letter;
PRIVATE LABEL ARRANGEMENTS means any and all licences granted to a member of the
SF Group to use Intellectual Property Rights owned by any third party in
connection with the Programme Agreements or any other agreements or arrangements
with third parties for the financing to end-user customers of sales and/or
leases of such third parties' equipment and services, for the purposes of, inter
alia, marketing, promotion and advertisement under the Programme Agreements or
any other agreements or arrangements with third parties for the financing to
end-user customers of sales and/or leases of such third parties' equipment and
services, and for billing and collection of Finance Receivables from end-user
customers under the Finance Agreements;
PROGRAMME AGREEMENTS means arrangements with third parties for the referral of
small ticket or mid market business to members of the Extended SF Group where
such agreement has generated sales` in excess of US$1,000,000 during the
financial year ended 31 December 2001 or is projected by any member of the
Extended SF Group to do so in the current financial year;
PROHIBITED LISTS has the meaning given in clause 10.33;
PROJECT AGREEMENT means any agreement, document, notice, consent or other
instrument (which is material in the context of the relevant Infrastructure/Mid
Market Financial Asset) relating to, or in connection with, the
Infrastructure/Mid Market Financial Assets and which do not constitute Finance
Agreements (including, but not limited to, project, lease, offtake,
construction, EPC, operation, maintenance and related ancillary documents);
PROPERTIES means the SF Group Properties and the Transitional Services
Properties and PROPERTY shall mean any of them;
PROPOSAL means an offer or remedy proposed by the Purchaser to any governmental
or regulatory body or other person with jurisdiction in response to concerns
identified by such person, in order to obtain any permit, consent, approval or
waiver in connection with the Proposed Transaction;
PROPOSED TRANSACTION means the transaction contemplated by the Transaction
Documents;
PROVISIONAL NET INTRA-GROUP INDEBTEDNESS means the provisional estimate of each
amount of Net Intra-Group Indebtedness denominated in a particular currency as
Page 112
CONFORMED COPY
estimated by the Vendor at the Valuation Date to be the net amount of such
indebtedness as at Completion;
PROVISIONAL NET INTRA-GROUP INDEBTEDNESS AMOUNT(s) means the aggregate net
amount(s) of all Provisional Net Intra-Group Indebtedness;
PURCHASER'S ACCOUNT means each account notified by the Purchaser in accordance
with clause 25.1;
PURCHASER'S ACCOUNTANTS means PricewaterhouseCoopers AG, Zurich of 138
Xxxxxxxxxxxx xxxxxxx, Xxxxxx 0000, Xxxxxxxxxxx;
PURCHASER'S GROUP means the Purchaser and its Affiliates from time to time (all
of them and any of them as the context admits) and including, for the avoidance
of doubt, from Completion each SF Group Company;
PURCHASER NOTICE has the meaning given in clause 15.1;
PURCHASER WARRANTIES means the representations and warranties on the part of the
Purchaser set out in Schedule 4 (Purchaser Warranties);
RECONCILIATION FILE means the reconciliation of the Due Diligence Data Tapes to
the 2001 Financial Statement, in the Agreed Form;
RECORD DATE has the meaning given in clause 3.21;
RECOVERIES has the meaning given to it in the Specified Receivables Agreement
and RECOVERY shall be construed accordingly;
RECOVERY AMOUNT has the meaning given to such term in the Specified Receivables
Agreement;
REGULATORY APPROVAL has the meaning given in clause 10.28;
RELATED SECURITY means in relation to any Finance Agreement, the security
documentation (which shall include, without limitation, any Assurance or
Guarantee), if any, entered into in relation to that Finance Agreement;
RELEVANT BREACH has the meaning given in clause 15.1;
RELEVANT CLAIM means any claim in respect of a Warranty (other than an Unlimited
Warranty or a Tax Warranty) and any Indemnity Claim;
RELEVANT PERSON has the meaning given in clause 13.22(a);
RELIEF or REFUND includes, unless the context otherwise requires, any allowance,
credit, deduction, exemption, loss relief or set-off in respect of any Tax or
relevant to the computation of any income, refund of any value added tax,
profits or gains for the purposes of any Tax, or any right to repayment of or
saving of Tax, and any reference to the use or set off of relief shall be
construed accordingly;
Page 113
CONFORMED COPY
REMAINING UNPAID BALANCE has the meaning given to such term in the Specified
Receivables Agreement;
REORGANISATION ASSETS has the meaning given in clause 10.23(b);
REORGANISATION LIABILITIES has the meaning given in clause 10.23(b);
REORGANISATIONS has the meaning given in clause 10.23(b);
REPORT OF INDEPENDENT ACCOUNTANTS ON APPLYING AGREED-UPON PROCEDURES means the
agreed-upon procedures report in the form set out in Part A of Schedule 11
(Accountant's Report and Indebtedness Schedule) prepared and issued by the
Vendor's Accountants on the amount of the Final Intra-Group Indebtedness shown
in the Intra-Group Indebtedness Schedule delivered by the Vendor pursuant to
clauses 5.7 and 7.14;
RESERVE MONTHS has the meaning given in clause 10.40;
RESERVES ASSETS has the meaning given in clause 10.40(a);
RESERVES ENTITY has the meaning given in clause 10.40(a);
RESERVES UPDATE has the meaning given in clause 10.40;
RESONIA TRADE MARKS means all right, title and interest (including, without
limitation, goodwill) in all trade marks, service marks, logos and corporate,
trading and business names comprising or consisting of the word "Resonia" used,
or held, developed, generated, created or acquired for use, thereas, in or in
relation to the SF Business;
RESTRICTED BUSINESS has the meaning given in clause 10.1;
RESTRICTION PERIOD has the meaning set out in clause 10.1;
RETAINED INTRA-STRUCTURED FINANCE GUARANTEES means the Guarantees identified in
Part C of Schedule 18 (Intra-Group Guarantees);
RETAINED LC BACKED GUARANTEES means the Guarantees identified in Part B2 of
Schedule 18 (Intra-Group Guarantees);
RETENTION ARRANGEMENTS has the meaning given in clause 4.9;
REVISED RESERVES means the Base Reserve plus the Growth Reserve;
SECRF has the meaning given in clause 10.44A;
SF BUSINESS means the business of providing structured finance and lending
including project finance and finance in relation to export and trade, leasing
and other similar transactions and providing ancillary advisory services in
relation thereto as carried on by or through the ABB Group, except for the
Excluded Businesses, Excluded Contracts, Excluded Liabilities, Excluded Claims
and Excluded Assets and any other business comprised within the ABB Group;
Page 114
CONFORMED COPY
SF GROUP means the SF Group Companies taken together and excludes, for the
avoidance of doubt, the Excluded Companies;
SF GROUP COMPANY means any one of the Companies or the Subsidiaries, and SF
GROUP COMPANIES shall mean all of them;
SF GROUP COMPANY ACCOUNTS has the meaning given in paragraph 4.4 of Schedule 3
(Vendor Warranties);
SF GROUP LICENCES means a licence to use a software product other than an Off
the Shelf Product, granted by a third party to a member of the ABB Group which
is required for the day to day running of the SF Business;
SF GROUP PROPERTIES means any or all (or any part or parts) of the freehold
and/or leasehold properties and licences particulars of which are set out in
Part A of Schedule 5 (The Properties);
SF INTELLECTUAL PROPERTY RIGHTS means (i) the Goodwill in the Resonia Trade
Marks and all other trade marks, service marks, logos and corporate, trading and
business names exclusively used, or held, developed, generated, created or
acquired for use, thereas, exclusively in or in relation to the SF Business
other than the ABB Marks; (ii) all Intellectual Property Rights subsisting in or
in relation to the Software Products other than the Intellectual Property Rights
in software the subject of a Software Licence; (iii) all Know-How confidential
to the SF Business;
SF IPR LICENCES means all licences (including any variations or amendments
thereto) under any Intellectual Property Rights owned by any third party and
licensed to any SF Group Company which are used as at the date of this Agreement
in the SF Business (other than the Software Licences and Off the Shelf
Products);
SF SHARED INTELLECTUAL PROPERTY RIGHTS means all Intellectual Property Rights
owned by any member of the ABB Group (after Completion) which were used or held,
developed, generated, created or acquired for use in or in relation to the SF
Business as at the date of this Agreement, other than the ABB Marks and the ABB
Databases;
SHARED IPR LICENCES means all licences (including any variations or amendments
thereto) under Intellectual Property Rights owned by any third party and
licensed to any member of the ABB Group (other than an SF Group Company) and
used or held or acquired for use in relation to the SF Business at the date of
the Agreement, other than the SF Group Licences, Off the Shelf Products and
licences of ABB Databases;
SHARE PURCHASERS means the members of the Purchaser's Group set out in the
column of ERROR! REFERENCE SOURCE NOT FOUND. (Agreed Acquisition Structure)
headed "Designated Purchaser", and SHARE PURCHASER means any of them;
SHARES means those issued shares in the capital of each of the Companies,
details of which are set out in column 6 of Part A of Schedule 2 (Particulars of
the SF Group);
SHARE TRANSFER AGREEMENTS means the agreements substantially in the Agreed Form
(subject only to such amendments thereto as may be required by relevant local
law
Page 115
CONFORMED COPY
and/or regulation) for the sale and purchase of the Shares in particular
jurisdictions to be entered into on Completion between the relevant Share Vendor
and Share Purchaser for each particular jurisdiction, (as set out in Part A of
Schedule 2 (Particulars of the SF Group)), and SHARE TRANSFER AGREEMENT means
any one of them;
SHARE VENDORS means the members of the ABB Group set out in column 4 of Part A
of Schedule 2 (Particulars of the SF Group);
SIRIUS means Sirius International Insurance Corporation;
SMALL TICKET COMPANIES means Xerox Noleggi S.p.A., SIB Leasing S.p.A, ABB
Structured Finance (Americas) Inc. and Resonia Leasing AB and SMALL TICKET
COMPANY shall mean any of them;
SMALL TICKET DATA TAPES means those sections of the Small Ticket Warranted
Fields which relate to any of the following business units:
(e) "ITRLEX" (SIB Leasing);
(f) "ITREN" (Xerox Italy);
(g) "USSTFX (BF)" (Business Finance);
(h) "SEREL" (Xerox Nordic only); and
(i) "SEREL" (all except Xerox Nordic),
and SMALL TICKET DATA TAPE means, in respect of any one such business unit,
those sections which relate to that business unit only;
SMALL TICKET FINANCE BUSINESS means the business of managing and exploiting the
Small Ticket Financial Assets and of originating, managing and exploiting new
business in respect of assets of the same nature as the Small Ticket Financial
Assets;
SMALL TICKET FINANCIAL ASSETS means those leases, receivables and associated
assets which are due to or owned by a Small Ticket Company pursuant to a Finance
Agreement;
SMALL TICKET TRANSACTION means a transaction entered into in relation to the
Small Ticket Financial Assets;
SMALL TICKET WARRANTED FIELDS means all fields on the Due Diligence Data Tapes
relating to the Small Ticket Financial Assets;
SOFTWARE LICENCES means licences (including any variations or amendments
thereto) to use Software Products granted to an SF Group Company by a third
party;
SOFTWARE PRODUCTS means the following software products whether owned or
developed by, or licensed to, an SF Group Company:
Page 116
CONFORMED COPY
(j) Resonia - Hera, Fabriken, Rebiz, Resonia Extranet (BSW), FSAB Finance,
XOR Control, IBS Consumer Credit and GLOBAL Database;
(k) ABB Credit, Stockholm - ProFinance (including ProLease, ProGli,
Proposals and ProFunding), XOR Control, Creditonline and ABB Credit's
Extranet and GLOBAL Database;
(l) SIB Italia - SF Leasing System, SIB Extranet and origination platform
and GLOBAL Database;
(m) Xerox Noleggi - FSAB Finance System, SIB Extranet and origination
platform and GLOBAL Database;
(n) ABB Structured Finance SF Srl- SIB Extranet and SIB Extranet origination
platform and GLOBAL Database;
(o) ABB Energy Capital - Financial systems including Infolease, FAS, Vertex
and GLOBAL Database; and
(p) ABB Structured Finance Americas - SAP GL/AP system, InfoLease,
Infotrieve, WEB credit application Front-End, Customer Care, WEB
Datamart Reporting system, Web Origination, XML Data Transfer front end,
Vertex tax software, Quantum sales/usetax returns software, Fair, Xxxxx
Credit scoring software, PTMS property tax billing software, UCC Direct
data file services, IVR (Interactive Voice Response), IDP Document
Imaging, Unidata and GLOBAL Database;
SPECIFIED OBLIGATION means in respect of any Specified Obligor each of the
obligations of such Specified Obligor described in column 3 of Part B1 of
Schedule 18 (Intra-Group Guarantees) in respect of the relevant
Infrastructure/Mid Market Financial Asset referred to therein;
SPECIFIED OBLIGOR means each person who owes obligations to a SF Group Company
in respect of the Infrastructure/Mid Market Financial Assets described in Part
B1 of Schedule 18 (Intra-Group Guarantees), as noted in column 2 of Part B1 of
Schedule 18 (Intra-Group Guarantees);
SPECIFIED RECEIVABLE has the meaning given to it in the Specified Receivables
Agreement;
SPECIFIED RECEIVABLES ADJUSTMENT PAYMENT means in relation to the Specified
Receivables Agreement an amount equal to the Recovery Amount less an amount
equal to 81.19 per cent. of the Valuation;
SPECIFIED RECEIVABLES AGREEMENT means the Specified Receivables Agreement
entered into or to be entered into, as the context may require, between the
Vendor and the Purchaser on the date of this Agreement;
SUBSEQUENT EVENTS has the meaning given in clause 7.3;
Page 117
CONFORMED COPY
SUBSIDIARIES means the entities of which details are set out in Part B of
Schedule 2 (Particulars of the SF Group) and Subsidiary shall be construed
accordingly;
SUBSIDIARY and SUBSIDIARIES means any company in relation to which another
company is its holding company;
SUBSTANTIAL PROPERTIES means the following Properties: Xxxxxx Xxxxxxxxxxx 00,
Xxx 0, Xxxxx, Xxxxxxxxxx, Xxxxxxx; Borupvang No.5C, DK2750, Ballerup, Denmark;
La Ginestiere, Le Lavandou, France; Xxx Xxxxxx xxx Xxxxxxxx, 00-0 x Xxxxx,
Xxxxx; Xxxxxxxxxxx 0X, Xxxx, Xxxxxx; Trelleborg Xxxxxxxxx 0, Xxxxxxxxxx, Xxxxxx;
Xxxxxxxxxxx 0, Xxxxxxxxx, Xxxxxx (including leasehold of basement storage area);
Thulehuset 1 Xxxxxxxxx 00, 000 00 Xxxx, Xxxxxx (Floor 1); Thulehuset Xxxxxxxxx
00, 00000, Xxxx, Xxxxxx (floors 7-10); Thulehuset Xxxxxxxxx 00, 00000, Xxxx,
Xxxxxx (storage room in basement); Thulehuset Xxxxxxxxx 00, 00000, Xxxx, Xxxxxx
(Floor 5); Thulehuset Xxxxxxxxx 00, 00000, Xxxx, Xxxxxx (Basement, store room
and Floors 1-2, 7-10); Xxxxxxxxxx Xx.00X, Infra City 194061, Stockholm;
SWEDISH CROWNS, SWEDISH KRONOR or SEK means the lawful currency of Sweden;
TAX or TAXATION means any form of taxation, levy, duty, charge, contribution or
impost in the nature of taxation (including any related fine, penalty, surcharge
or interest) imposed by a Tax Authority and includes, without limitation, social
security payments;
TAX AUTHORITY means any taxing or other authority body or official anywhere in
the world competent to impose, collect, assess, regulate or administer any
liability to Tax;
TAX CLAIM means any claim made under or pursuant to a Tax Warranty or the Tax
Covenant;
TAX COVENANT means the covenants relating to Tax set out in Schedule 9 (Tax);
TAX WARRANTIES means the warranties set out in paragraph 2 of Schedule 9 (Tax);
THIRD PARTY CLAIM has the meaning set out in clause 13.17;
THIRD PARTY DERIVATIVE TRANSACTIONS means all Derivative Transactions between a
member of the SF Group and a person other than a member of the ABB Group or the
SF Group;
THIRD PARTY INDEBTEDNESS means, in relation to each member of the Extended SF
Group, the indebtedness balance owed by that member as at Completion, calculated
by taking the aggregate of all its cash borrowings or indebtedness in the nature
of borrowings from a person other than member of the ABB Group or the SF Group
as at Completion and, for the avoidance of doubt, such amount may be nil or a
negative figure;
TOTAL EXISTING RESERVE means the aggregate of the amounts in the sixth column of
Part B of Schedule 22 (Reserves);
Page 118
CONFORMED COPY
TRANSACTION DOCUMENTS means this Agreement, the Local Transfer Agreements, the
Disclosure Letter, the Transitional Services Agreements, the Specified
Receivables Agreement, the Designated Asset Agreement and the Agreed Form
Documents;
TRANSACTION NAME has the meaning given in clause 10.33;
TRANSFER EMPLOYEES means the Employees who are engaged in certain local business
units of the SF Business and whose names are set out in column 3 of Part B of
Schedule 17 (Business Assets/Transfer Employees/Export Bank Transactions) and
TRANSFER EMPLOYEE means any one of them;
TRANSFER EMPLOYEES TRANSFEREES means the members of the Purchaser's Group set
out in column 6 of Part B of Schedule 17 (Business Assets/Transfer
Employees/Export Bank Transactions) which are contemplated to be the employing
entities of the Transfer Employees after Completion and TRANSFER EMPLOYEES
TRANSFEREE means any one of them;
TRANSFER EMPLOYEES TRANSFERORS means the members of the ABB Group set out in
column 5 of Part B of Schedule 17 (Business Assets/Transfer Employees/Export
Bank Transactions) being the employing entities of the Transfer Employees prior
to Completion and TRANSFER EMPLOYEES TRANSFEROR means any one of them;
TRANSITIONAL SERVICES AGREEMENT means the agreement in the Agreed Form between
the Vendor and the Purchaser for the supply of services;
TRANSITIONAL SERVICES PROPERTIES means those leasehold properties particulars of
which are set out in Part B of Schedule 5 (The Properties);
UNDISCLOSED EMPLOYEE has the meaning set out in clause 16.2;
UNLIMITED CLAIM means any Claim other than a Relevant Claim, and shall include
(for the avoidance of doubt) any claim in respect of an Unlimited Warranty or a
Tax Warranty;
UNLIMITED WARRANTY means a Warranty set out in paragraphs 2, 3 and/or 18 of
Schedule 3 (Vendor Warranties);
US or UNITED STATES means the United States of America;
US$ or DOLLARS means US Dollars, the lawful currency of the United States;
US GAAP means generally accepted accounting principles in the United States
including, to the extent that such principles permit the application of
alternative accounting principles, the accounting principles elected by ABB
Group consistent with one of such alternatives;
US PROHIBITED PERSONS LIST means (i) Office of Foreign Assets Control List
promulgated by the US Department of The Treasury; (ii) The Denied Persons List
and/or The Entities List promulgated by the US Department of Commerce; and (iii)
The Debarred Parties List promulgated by The US Department of State;
Page 119
CONFORMED COPY
VALUATION has the meaning given in the Specified Receivables Agreement;
VALUATION DATE means the date falling five (5) Business Days prior to the
Completion Date;
VENDOR NOTICE has the meaning given in clause 15.2;
VENDOR OBLIGATIONS has the meaning given in clause 35.1;
VENDOR WARRANTIES or WARRANTIES means the warranties on the part of the Vendor
set out in Schedule 3 (Vendor Warranties) and the Tax Warranties;
VENDOR'S ACCOUNT means each account notified by the Vendor in accordance with
clause 25.1;
VENDOR'S ACCOUNTANTS means Ernst & Young AG of Xxxxxxxxxxx 00, 0000 Xxxxxx,
Xxxxxxxxxxx;
VENDOR'S SOLICITORS Freshfields Bruckhaus Xxxxxxxx of 00 Xxxxx Xxxxxx, Xxxxxx
XX0X 0XX, Xxxxxx Xxxxxxx;
WARRANTY CLAIM means any claim in respect of any Warranty;
WATCH ASSET REPORT means the monthly analysis produced by the ABB Group in
relation to each item on the Watch List;
WATCH LIST means the SF Group watch asset portfolio statistics relating to the
SF Business;
WORKING HOURS means 9.00 am to 5.00 pm on a Business Day; and
XEROX NORDIC RESERVE means the general risk reserve created in accordance with
clause 6.4 of a business transfer agreement dated 23 March 2001 between Xerox
Credit AB and Resonia Leasing AB; and
XEROX NOLEGGI RESERVE means the general risk reserve created in accordance with
clause 4.1 of a share purchase agreement dated 22 February 2002 between Xerox
S.p.A. and ABB Credit Holding B.V.
2. In this Agreement, unless the context otherwise requires:
(a) references to PERSONS shall include individuals, bodies corporate
(wherever incorporated), unincorporated associations, joint ventures,
partnerships, other unincorporated bodies, works councils or employee
representative bodies (whether or not having separate legal
personality);
(b) the HEADINGS are inserted for convenience only and shall not affect the
construction of this Agreement;
(c) references to one GENDER include all genders;
Page 120
CONFORMED COPY
(d) any references to singular shall include the plural and vice versa;
(e) any reference to an ENACTMENT, law, legislations; statutory provision,
regulation, rule or secondary legislation or any of such being in force,
is a reference to such enactment, law, legislation, statutory provision,
regulation, rule or secondary legislation:
(i) as is in force at or before Completion or is enacted at or
before Completion but comes into force after Completion; or
(ii) for which provision is made in any of the primary legislation
defined in sub-paragraph (i) above;
(f) any reference to MATERIAL means material in the context of the SF
Business the SF Group, the Infrastructure/Mid Market Finance Business,
the Small Ticket Finance Business, or a particular Finance Agreement as
the case may be or as the context may require;
(g) any statement in this Agreement qualified by the expression SO FAR AS
THE VENDOR IS AWARE or any similar expression shall include the actual
knowledge of those people listed in Schedule 21 (Vendor Awareness) and
such knowledge as such persons would have had had they made reasonable
enquiry of such employees of the SF Group Companies or the ABB Group as
have responsibility for the matter in question;
(h) references to times of the day are to local time in the relevant
jurisdiction, unless otherwise stated;
(i) references to the terms SHARES, SHARE CAPITAL, EQUITY CAPITAL and
similar terms include reference to membership interests, general and
limited partnerships, quotas and any other ownership, equity, voting
and/or central interests in the respective entities;
(j) references to any English legal term for any action, remedy, method of
judicial proceeding, legal document, legal status, court, official or
any other legal concept shall, in respect of any jurisdiction other than
England, be deemed to include the legal concept which most nearly
approximates in that jurisdiction to the English legal term; and
(k) INCLUDES and INCLUDING shall, unless the context otherwise requires,
mean includes or including (as the case may be) without limitation.
3. Where any provision is qualified or phrased by reference to THE ORDINARY
COURSE OF BUSINESS, such reference shall be construed as meaning the SF Business
as conducted in the ordinary course of business and trading during the 9 months
prior to the date of this Agreement.
4. Where any provision is qualified or phrased by reference to MAINTAIN AS
A GOING CONCERN, such reference shall be construed as meaning the SF Business as
being operated during the 9 months prior to the date of this Agreement.
Page 121
CONFORMED COPY
5. Where there is any inconsistency between the definitions set out in this
Schedule 1 (Interpretation) and the definitions set out in any clause or
Schedule, then for the purposes of construing such clause or Schedule, the
definitions set out in such clause or Schedule shall prevail (save to the extent
that the context otherwise requires).
6. Where it is necessary to determine whether a monetary limit or threshold
set out in clause 13 has been reached or exceeded (as the case may be) and the
value of any of the relevant claims is expressed in a currency other than
dollars, the value of each such claim shall be translated into dollars at the
Exchange Rate on the date of receipt of written notification in accordance with
clause 13 of the existence of such claim.
Page 122
CONFORMED COPY
SCHEDULE 2
PARTICULARS OF THE SF GROUP
PART B
DETAILS OF THE COMPANIES
AUTHORISED SHARE
CAPITAL AND DIRECTORS AND REGISTERED OFFICE /
COMPANY AND JURISDICTION OF SHARE ISSUED SHARE NUMBER OF SECRETARY (IF PRINCIPAL PLACE
NO. NUMBER INCORPORATION VENDOR(S) CAPITAL SHARES APPLICABLE) OF BUSINESS
------------------------------------------------------------------------------------------------------------------------------------
1. ABB Structured Italy ABB S.p.A. AC : EUR 100,000 N/A Gian Milan
Finance S.r.l. IC : EUR 100,000 Francesco
(ITPEP) Imperiali
Number: Fabio
09897430154 Cosimetti
Xxxxxx Xxxxx
2. Xerox Noleggi Italy ABB Credit AC : EUR 11,000 Gian Xxx Xxxxxx del
S.p.A. Holding B.V. 11,000,000 Xxxxxxxxx Xxxxxxxx,
08072530150 IC : EUR Imperiali 26-3a
(ITRLN/ITREN) 11,000,000 Fabio 201 38 Milano
Cosimetti
Xxxxxx Xxxxx
0. XXX Xxxxxx Xxxxxxxxxxx XXX Financial AC : EUR 180 Johan Amsterdam
Holding B.V. Services B.V. 226,890.11 Lowenhielm
(NLCRD) IC : EUR 81,860.44 Xxxxx van
Number: 33230169 Reijn
Xxxxxx Xxxxxx
Page 123
CONFORMED COPY
AUTHORISED SHARE
CAPITAL AND DIRECTORS AND REGISTERED OFFICE /
COMPANY AND JURISDICTION OF SHARE ISSUED SHARE NUMBER OF SECRETARY (IF PRINCIPAL PLACE
NO. NUMBER INCORPORATION VENDOR(S) CAPITAL SHARES APPLICABLE) OF BUSINESS
------------------------------------------------------------------------------------------------------------------------------------
4. ABB Structured Netherlands ABB Credit AC: EUR 100,000 400 Xxxxx van Amsterdam
Finance B.V Holding B.V. IC: EUR 20,000 Reijn
(NLFSF) Xxx Xxxxxx
Number: 33230202 Xxxxxxx
Xxxxxxx
5. ABB Credit B.V. Netherlands ABB Credit AC: EURO Priority Johan Amsterdam
(NLCRE) Holding B.V. 4,537,802.16 Class A Lowenhielm
Number: (5%) IC: 1,256,971.20 shares 76 Xxxxx van
33.230.201 ABB Priority Reijn
Structured Class B
Finance AB shares 75
(95%) Common
Class C
shares
1,919
Common
Class D
shares 700
6. ABB Structured Guernsey ABB Asea AC: USD 10,000 4 Xxxxxxx Xxxxxxxx
Finance Limited Xxxxx Boveri IC: USD 400 Xxxxxxx
(GBFSF) Ltd. (50%), Xxxxx van
Number: 0031329 First Reijn
Overlap Ltd. Xxxxxxxxxxx
(25%), Second Noon
Overlap Ltd
(25%)
Page 124
CONFORMED COPY
AUTHORISED SHARE
CAPITAL AND DIRECTORS AND REGISTERED OFFICE /
COMPANY AND JURISDICTION OF SHARE ISSUED SHARE NUMBER OF SECRETARY (IF PRINCIPAL PLACE
NO. NUMBER INCORPORATION VENDOR(S) CAPITAL SHARES APPLICABLE) OF BUSINESS
------------------------------------------------------------------------------------------------------------------------------------
7. ABB Structured Sweden ABB Asea AC: SEK 400,000 1,000 Arne Stockholm
Finance Sweden Xxxxx Boveri IC: SEK 100,000 Antonsson
AB (SECUY / Ltd Xxxxx
XXXXX) Hedengran
Number: Anders
556608-1773 Lidefelt
8. ABB Structured Delaware ABB Financial AC: 2,000 shares @ 1,000 Lennart Corporation
Finance (Americas) Services Inc. $1.00 each Xxxxxxx Trust Center
Inc. (USSTF) IC: USD 1,000 0000 Xxxxxx
Xxxx Xxxxxx,
Xxxxxxxxx Xxxxxxxxxx, XX
Secretary: 00000/
X.Xxxxx Xxxx Small Ticket
Leasing - Xxx
Xxxxxxxx Xxxxx
Xxxxxxxx XX
00000
Advisory
Infrastructure
- Xxx Xxxxxxxx
Xxxxx,
Xxxxxxxx, XX
00000
Page 125
CONFORMED COPY
AUTHORISED SHARE
CAPITAL AND DIRECTORS AND REGISTERED OFFICE /
COMPANY AND JURISDICTION OF SHARE ISSUED SHARE NUMBER OF SECRETARY (IF PRINCIPAL PLACE
NO. NUMBER INCORPORATION VENDOR(S) CAPITAL SHARES APPLICABLE) OF BUSINESS
------------------------------------------------------------------------------------------------------------------------------------
9. ABB Structured Switzerland ABB Credit AC: CHF 100,000 100 Lennart Thurgauerstrasse
Finance Holding B.V. IC: CHF 100,000 Xxxxxxx 54
International Xxxxxx Xxxxx XX-0000 Xxxxxx
Limited (CHFIN) Xxxxxxx
CH-020.3.025.598-2 Xxxxxxxxxx
Page 126
CONFORMED COPY
PART C
DETAILS OF THE SUBSIDIARIES
AUTHORISED SHARE
CAPITAL AND DIRECTORS AND REGISTERED OFFICE /
COMPANY AND JURISDICTION OF ISSUED SHARE NUMBER OF SECRETARY (IF PRINCIPAL PLACE OF
NO. NUMBER INCORPORATION SHAREHOLDER(S) CAPITAL SHARES APPLICABLE) BUSINESS
------------------------------------------------------------------------------------------------------------------------------------
1. SIB Leasing S.p.A Italy ABB Structured AC : EUR 2,600,000 2,600,000 Gian Milan
(ITRLE) Finance S.r.l. IC : EUR 2,600,000 Francesco
Number: Imperiali
06327240153 Fabio
Cosimetti
Xxxxxx Xxxxx
0. XXX Xxxxxx Xxxxxx Xxxxxx XXX Structured AC: SEK 668,000 Arne Stockholm
Aktiebolag Finance AB 133,600,000 Antonsson
(SECRF) IC: SEK 33,400,000 Xxxxx X.
Number: Carlsson
556010-5263 Xxxxx
Xxxxxxxx
Anders
Lidefelt
Xxxxxxx
Xxxxxxx
Xxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxx
3. ABB Renting Sweden ABB Credit AC: SEK 40,000,000 100,000 Xxxx Xxxx Stockholm
Aktiebolag Finans AB IC: SEK 10,000,000 Arne
(SERTI) Antonsson
Number: Anders
556370-8782 Lidefelt
Xxxxxx
Xxxxxxx
4. ABB Structured Sweden ABB Structured AC: SEK 40,000,000 100,000 Anders Stockholm
Finance Finance Sweden IC: SEK 10,000,000 Lidefelt
Aktiebolag AB Xxxxx X.
(SECRE) Carlsson
Number: Xxxxx
556080-8346 Xxxxxxxx
Xxxxxxx
Blecher
Xxxxxx
Xxxxxxx
Xxxxxxx
Xxxxxx
Secretary:
Xxxxx
Xxxxxxxxx
Page 127
CONFORMED COPY
AUTHORISED SHARE
CAPITAL AND DIRECTORS AND REGISTERED OFFICE /
COMPANY AND JURISDICTION OF ISSUED SHARE NUMBER OF SECRETARY (IF PRINCIPAL PLACE OF
NO. NUMBER INCORPORATION SHAREHOLDER(S) CAPITAL SHARES APPLICABLE) BUSINESS
------------------------------------------------------------------------------------------------------------------------------------
5. Resonia Sweden ABB Structured AC: SEK 100,000 Xxxxxx Stockholm
Aktiebolag Finance AB 20,000,000 Hallqvist
(SERES) IC: SEK Anders
Number: 10,000,000 Lidefelt
556304-9682 Xxxx-Xxxxx
Xxxxxxx
6. [Intentionally [Intentionally [Intentionally [Intentionally [Intentionally [Intentionally [Intentionally
blank] blank] blank] blank] blank] blank] blank]
7. ABB Rental Sweden ABB Structured AC: SEK 400,000 1,000 Xxxx Xxxx Stockholm
Aktiebolag Finance AB IC: SEK 100,000 Xxxxxx
(SEREN) Hallqvist
Number:
556101-2997
Page 128
CONFORMED COPY
AUTHORISED SHARE
CAPITAL AND DIRECTORS AND REGISTERED OFFICE /
COMPANY AND JURISDICTION OF ISSUED SHARE NUMBER OF SECRETARY (IF PRINCIPAL PLACE OF
NO. NUMBER INCORPORATION SHAREHOLDER(S) CAPITAL SHARES APPLICABLE) BUSINESS
------------------------------------------------------------------------------------------------------------------------------------
8. ABB Sodra Sweden ABB Renting AB N/A ABB Renting Stockholm
Kommanditbolag and ABB AB
(SESOD) Structured is the
Number: Finance AB complementary
969661-2119 (formerly known company which
as ABB Credit acts for ABB
AB) Sodra KB
9. [Intentionally [Intentionally [Intentionally [Intentionally [Intentionally [Intentionally [Intentionally
blank] blank] blank] blank] blank] blank] blank]
10. Resonia Leasing Sweden ABB Credit AC: SEK 40,000,000 100,000 Xxxx Xxxxxxx Umea
Aktiebolag Finans AB IC: SEK 10,000,000 Astrom
(SEREL) Arne
Number: Antonsson
556045-6351 Ove Bertills
Xxxx Xxxxxxxx
Xxxxx
Xxxxxxxxxx
Anders
Lidefelt
11. ABB Energy Delaware ABB Structured AC: (LLC) N/A Lennart Corporation
Capital Finance IC: (LLC) Xxxxxxx Trust Center
LLC (USECA) (Americas) Inc. Xxxxxx 1209 Orange
Xxxxxxxx Street,
Secretary: Xxxxxxxxxx, XX
X. Xxxxx Xxxx 00000/
Xxx Xxxxxxxx
Xxxxx
Xxxxxxxx XX
00000
Page 129
CONFORMED COPY
AUTHORISED SHARE
CAPITAL AND DIRECTORS AND REGISTERED OFFICE /
COMPANY AND JURISDICTION OF ISSUED SHARE NUMBER OF SECRETARY (IF PRINCIPAL PLACE OF
NO. NUMBER INCORPORATION SHAREHOLDER(S) CAPITAL SHARES APPLICABLE) BUSINESS
------------------------------------------------------------------------------------------------------------------------------------
12. ABB Credit Inc. Delaware ABB Structured AC: 100 shares 10 Johan Corporation
(USCRD) Finance common @ $.01 Lowenhielm Trust Center
(Americas) Inc. each Xxxxx 1209 Orange
IC: 10 shares Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxxx, XX
Xxxxxxxx 00000/
Secretary: One Stamford
X. Xxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
13. [Intentionally [Intentionally [Intentionally [Intentionally [Intentionally [Intentionally [Intentionally
blank] blank] blank] blank] blank] blank] blank]
Page 130
CONFORMED COPY
SCHEDULE 3
VENDOR WARRANTIES
1. DISCLOSURE
1.1 The Vendor has made available to the Purchaser the lists, information and
copies of documents relating to the Extended SF Group and/or the SF Business set
out or referred to in the Disclosure Letter (together the DISCLOSURES). So far
as the Vendor is aware:
(a) those copies of documents are true copies of the documents they purport
to be (save as is apparent from the face of them);
(b) the facts stated in the Disclosures (other than in such of them as are
Finance Agreements) are true and accurate in all material respects and
any opinions stated therein (other than in such of them as are Finance
Agreements) were honestly held by the person to whom they are
attributed; and
(c) there are no facts or circumstances which render the Disclosures, taken
as a whole in respect of any particular matter, inaccurate or misleading
in any material respect.
2. THE SHARES
2.1 The Vendor (or a wholly-owned subsidiary of the Vendor) is the sole legal
and beneficial owner of the entire allotted and issued share capital of each SF
Group Company.
2.2 The shares of all the SF Group Companies set out in Schedule 2 (Particulars
of the SF Group) constitute the whole of the SF Group Companies' allotted and
issued share capital, are duly authorised, validly issued and fully paid or
properly credited as fully paid and no obligation or right exists for anyone to
make or require further contributions to the equity capital (whether by
subscription for further shares, by payment of share premium or otherwise) or
which otherwise confers (whether absolutely or contingently, including without
limitation upon a conversion into shares) on any person an entitlement to vote
on any matters on which the holders of shares in any SF Group Company may vote
or to exercise other rights attaching to those shares, in each case save as
provided by legislation (including without limitation any regulations
promulgated thereunder) or in the relevant constitutional documents (copies of
which are attached to the Disclosure Letter).
2.3 The details of the SF Group Companies set out in Parts A and B of Schedule 2
(Particulars of the SF Group) are true and accurate in all material respects.
2.4 There is no Encumbrance over or affecting the shares of any SF Group Company
and there is no agreement to give or create any such Encumbrance in each case
except as provided by legislation (including without limitation any regulations
promulgated
Page 131
CONFORMED COPY
thereunder) or the relevant constitutional documents (copies of which are
attached to the Disclosure Letter).
2.5 Other than pursuant to this Agreement or pursuant to legislation (including
without limitation any regulations promulgated thereunder) or the relevant
constitutional documents, there is no agreement, arrangement or obligation
requiring the allotment, issue, transfer, redemption or repayment of, or the
grant to a person of the right (conditional or not) to require the allotment,
issue, transfer, redemption or repayment of, a share in the capital of any SF
Group Company (including, without limitation, an option or right of pre-emption
or conversion).
2.6 No depositary receipts have been issued in relation to the shares of any SF
Group Company.
2.7 No SF Group Company has a subsidiary undertaking or interest in another
corporate body, partnership or other association or person or has agreed to
acquire an interest in or merge or consolidate with another body corporate,
partnership or other association or any other person other than:
(a) in relation to a company which is itself a SF Group Company;
(b) security interests taken over the assets of a third party (not being a
member of the SF Group) to secure obligations of such third party under
transactions entered into by such third party with the SF Group in the
ordinary course of its business;
(c) prior to but not on or after Completion in relation to the Pre-sale
Reorganisation and/or any Excluded Assets; or
(d) arrangements disclosed in relation to Warranty 20.1 (JOINT VENTURES).
2.8 Each SF Group Company:
(a) is duly organised and validly existing under the laws of its place of
incorporation, formation or organisation, as the case may be; and
(b) has full power and authority to carry on its business as it is now being
conducted and to own the material properties and assets it now owns in
each of the jurisdictions in which it conducts its business.
2.9 The Vendor has made available to the Purchaser a copy of the deed of
incorporation and the articles of association (or equivalent constitutional
documents) of each SF Group Company as in effect immediately prior to this
Agreement, copies of which are attached to the Disclosure Letter.
2.10 All SF Group Companies have carried on business within the last 12 months.
Page 132
CONFORMED COPY
3. THE VENDOR'S CAPACITY
3.1 The Vendor and each Designated Vendor are companies duly incorporated,
organised and validly existing under the laws of their respective jurisdiction
of incorporation.
3.2 The Vendor and each Designated Vendor has the power and authority, and has
taken all necessary corporate actions to authorise the execution of each
Transaction Document to which it is a party and any agreement or document
entered into or to be entered into by it pursuant to any Transaction Document
and to perform fully its obligations under the relevant Transaction Documents
and such other agreements or documents in accordance with their terms.
3.3 Each Transaction Document and other agreement or document entered into or to
be entered into by the Vendor and/or any Designated Vendor pursuant to any
Transaction Document constitutes or will, when executed, constitute valid and
legally binding obligations of the Vendor and/or each Designated Vendor to the
extent such are partners thereto and such documents are not or, as the case may
be, will not be unenforceable by reason of the capacity, constitution or
identity of the Vendor and/or any Designated Vendor.
3.4 The entry into by the Vendor of any of the Transaction Documents and/or any
other agreement or document entered into or to be entered into by the Vendor
pursuant to any of the Transaction Documents, the entry into of any Local
Transfer Agreements by any Designated Vendor and the implementation of the
transactions contemplated by any of such documents will not result in:
(a) a violation or breach of any provision of the memorandum and articles of
association or bylaws of the Vendor or of any SF Group Company or of any
Designated Vendor or of any resolution of the supervisory board or
management board or any other governing corporate body or the
shareholders of any of them; or
(b) a breach of, or give rise to a default under, any contract or other
instrument to which the Vendor or any Designated Vendor is a party or by
which it is bound;
(c) a violation or breach of any applicable laws or regulations or of any
order, decree or judgment of any court, governmental agency or
regulatory authority applicable to the Vendor, or any Designated Vendor
or any of its assets,
in each case which is material in the context of:
(i) the Vendor's ability to enter into and perform its obligations
under the relevant Transaction Document or any other document
or agreement entered into or to be entered into by the Vendor
pursuant to any of the Transaction Documents; or
(ii) any Designated Vendor's ability to enter into and perform its
obligations under the relevant Transaction Document or any
Local
Page 133
CONFORMED COPY
Transfer Agreement to which it is a party or any other document
or agreement entered into or to be entered into by any of them
pursuant to any Transaction Document or any Local Transfer
Agreement.
3.5 Other than as referred to in or save as contemplated by this Agreement, no
consents, approvals, orders, registrations, declarations, filings or permits are
required to be obtained by the Vendor or any SF Group Company or Designated
Vendor in order for its execution and/or performance of the terms of any
Transaction Document or and any other document required to be entered into by it
pursuant to any Transaction Document to be valid, binding and enforceable
against it and in compliance with law, regulation and/or the terms of any
contract or arrangement.
3.6 Where, under any Transaction Document or under any other document or
agreement executed or to be executed by the Vendor or any Designated Vendor
pursuant to any Transaction Document, the Vendor or any Designated Vendor has
given an undertaking on behalf of any other person, it has been duly and validly
authorised to do so.
4. ACCOUNTS AND FINANCIAL INFORMATION
2001 FINANCIAL STATEMENT
4.1 The Vendor has attached to the Disclosure Letter, a true and complete copy
of the audited combined balance sheet of the Wider SF Group as at 31 December
2001 and the notes thereto, audited by the Vendor's Accountants on 11 February
2002 and which is accompanied by the reports of the Vendor's Accountants thereon
(WIDER SF GROUP being for these purposes the entities listed in Note 1 of that
balance sheet and their subsidiaries and the specifically identified assets and
liabilities identified in Note 1 of that balance sheet, which include, for the
avoidance of doubt, the Companies) (the 2001 FINANCIAL STATEMENT).
4.2 The 2001 Financial Statement fairly presents, in all material respects, the
financial position of the Wider SF Group at 31 December 2001, in conformity with
accounting principles generally accepted in the United States.
4.3
(a) The 2001 Financial Statement has been prepared from the books and
records of the Wider SF Group in accordance (or in conformity) with
US GAAP.
(b) When US GAAP permits the application of alternative accounting
principles, the method elected by the ABB Group, and applied
consistently in the preparation of the ABB Group accounts, complies with
US GAAP.
SF GROUP COMPANY ACCOUNTS
4.4 The Vendor has attached to the Disclosure Letter, true and complete copies
of the audited statutory accounts of each SF Group Company as at 31 December
1999, 31 December 2000 and 31 December 2001 (SF GROUP COMPANY ACCOUNTS).
Page 134
CONFORMED COPY
4.5 The SF Group Company Accounts of each SF Group Company have been prepared in
accordance with the requirements of the laws applicable in and the generally
accepted accounting principles of its jurisdiction of incorporation. In respect
of each SF Group Company, there was no change in the accounting policies applied
in preparing its SF Group Company Accounts during the period covered by them,
save as disclosed in those SF Group Company Accounts or as otherwise required by
law or by changes in the generally accepted accounting principles of its
jurisdiction of incorporation.
4.6 The SF Group Company Accounts were filed with the relevant authorities on a
timely basis.
OTHER
4.7 As at 31 December 2001 the Wider SF Group and as at 31 March 2002 Xerox
Noleggi S.p.A. had no indebtedness, obligations, or liabilities of any kind
(whether accrued, actual, contingent, deferred or otherwise), that were then
required to be accrued or disclosed by accounting principles generally accepted
in the United States, other than those accrued or disclosed in the 2001
Financial Statement or Noleggi Financial Statement, respectively.
4.8 No member of the SF Group has received written notice of any challenge, or
investigation into its accounting practices, or those of their Affiliates, by
the United States Securities and Exchange Commission.
XEROX NOLEGGI
4.9 The Disclosure Letter has attached to it a true copy of the opening balance
sheet of Xerox Noleggi S.p.A. as at 31 March 2002 which was prepared on a basis
consistent with the application of US GAAP (NOLEGGI FINANCIAL STATEMENT).
4.10 The Noleggi Financial Statement has been prepared from the books and
records of Xerox Noleggi S.p.A. in accordance (or in conformity) with US GAAP.
5. MANAGEMENT REPORTS
ABACUS MANAGEMENT REPORTS
5.1 The ABACUS Management Reports have been derived directly from the ABACUS
reporting system (relating to each SF Group Company or business reporting unit
forming part of the SF Business comprised in the ABACUS Management Reports) and
have been prepared in all material respects on a basis consistent with the
application of US GAAP as applied by the relevant SF Group Company or business
reporting unit providing such information, as appropriate, in each case having
regard to the purpose for which they were created.
NON-ABACUS MANAGEMENT REPORTS
5.2 Having regard to the purpose for which they were prepared, the Non-ABACUS
Management Reports have no material inaccuracies and, where appropriate, are not
Page 135
CONFORMED COPY
misleading in any material respect, neither materially overstate the value of
the asset nor materially understate the liabilities of the relevant SF Group
Company or business reporting unit as at the dates to which they were drawn up
and do not materially overstate the profits of any SF Group Company or business
reporting unit in respect of the periods to which they relate.
5.3 The Non-ABACUS Management Reports are true copies of the documents they
purport to be.
OTHER MANAGEMENT REPORTS
5.4 The reports referred to as the "Xerox Nordic Due Diligence Report" and the
"Xerox Noleggi Due Diligence Report" (XEROX REPORTS) were each prepared using
normal business practice based on data provided by Xerox Corporation, for the
purpose of analysing the historic risk performance of the asset portfolios of
Xerox Nordic and Xerox Noleggi S.p.A., prior to the acquisition by the ABB
Group, of these operating platforms.
5.5 The information provided to Dun & Bradstreet by the ABB Group and used for
the purpose of producing the Management Reports, referred to as the "D&B
Ratings", was accurate in all material respects and the reports included therein
are true and complete copies of those produced by Dun & Bradstreet.
6. POSITION SINCE ACCOUNTS DATE
6.1 Since the Accounts Date and other than in respect of Excluded Assets or as
occasioned by the Pre-Sale Reorganisation:
(a) the SF Business has been operated in the ordinary course and so as to
maintain it as a going concern;
(b) there has not been, nor has an event occurred which would lead to, a
Material Adverse Change (which term, for the purposes of this paragraph
6.1(b) only, shall be by reference to the Accounts Date (as opposed to
the 5th Business Day prior to the date of this Agreement));
(c) no material changes have occurred in the assets and liabilities shown in
the 2001 Financial Statement and there has been no material reduction in
the value of the net tangible assets of the SF Business on the basis of
the valuations adopted for the 2001 Financial Statement;
(d) the debts comprised in the SF Business have not been factored, sold or
agreed to be sold, other than in the ordinary course of business;
(e) other than in the ordinary course of business or as disclosed in
relation to Warranty 14 (ACQUISITIONS AND DISPOSALS AND
REORGANISATIONS), no SF Group Company has:
(i) acquired or disposed of, or agreed to acquire or dispose of, an
asset; or
Page 136
CONFORMED COPY
(ii) incurred, or agreed to incur, a commitment or commitments,
in each case involving capital expenditure exceeding in total
US$500,000;
(f) no dividend or distribution has been declared, paid or made by any SF
Group Company (except as provided for in the 2001 Financial Statement);
(g) no share or loan capital has been created, allotted, issued, repaid, or
redeemed and no agreement or arrangement has been made or obligation
undertaken to do any of those things, by any SF Group Company;
(h) other than in respect of any Intra-Group Indebtedness, or any Third
Party Indebtedness which will be repaid prior to or at Completion, no SF
Group Company has repaid or become liable to repay any indebtedness in
advance of its date of maturity;
(i) there are no liabilities (including contingent liabilities) which have
been incurred by any member of the Extended SF Group and remain
outstanding on the part of the Extended SF Group at Completion, other
than those incurred in the ordinary course of business;
(j) no part of the amounts included in the 2001 Financial Statement as owing
by any debtor remain unpaid following their original due date for
payment or have been released on terms that any debtor pays less than
the full group value of its debt;
(k) each member of the Extended SF Group has paid its material creditors in
the ordinary course of business of that company;
(l) except for the indebtedness or loans to third parties referred to in the
2001 Financial Statement, no SF Group Company has outstanding any
material indebtedness or loans to third parties which has or have arisen
otherwise than in the ordinary course of business;
(m) no member of the Extended SF Group has suffered any damage, destruction
or other loss (other than with respect to Portfolio Property);
(n) each SF Group Company has:
(i) written and underwritten new business in a manner consistent
with that SF Group Company's existing practice(s);
(ii) consistently collected accounts in accordance with its
collection procedures; and
(iii) consistently applied its reserving and writing off policies.
7. ACCOUNTING RECORDS
7.1 The accounting records (including for the avoidance of doubt reconciliations
between ABACUS reporting information and relevant SF Group Company records)
Page 137
CONFORMED COPY
relating to the SF Business are, in all material respects, up to date and
comprise, complete and accurate records of all information required to be
recorded in accordance with the application of US GAAP and (other than such of
them as were prepared by members of the ABB Group not being SF Group Companies)
are in the ownership and direct control of the relevant SF Group Company or the
legal or accounting representatives of the relevant SF Group Company.
8. OPERATIONAL ASSETS
8.1 There are no material:
(a) rights to use assets (not being Financial Assets) that are used in and
required for the carrying on of the SF Business in the ordinary course
of business which are not owned by a SF Group Company or comprised
within the Business Assets;
(b) rights to use facilities or services required for the carrying on of the
SF Business in the ordinary course of business which are provided by any
third party; and
(c) leases, licences or other agreements in relation to or conferring the
rights referred to in paragraphs (a) or (b) which are not granted to an
SF Group Company for use in the SF Business in the ordinary course,
(other than with respect to Portfolio Property, Portfolio Aircraft, Properties,
Intellectual Property Rights and IT Systems or other matters specifically
addressed in the Transitional Services Agreement) that are not held in the name
of by a SF Group Company or comprised within the Business Assets and/or Business
Contracts. There is no Contractual Default in relation to any such right, lease,
licence or other agreement.
8.2 All material assets (other than the Financial Assets, Properties,
Intellectual Property Rights and IT Systems) that are used in and required for
the carrying on of the SF Business in the ordinary course of business (other
than assets of the type referred to in paragraph 8.1) are legally and
beneficially owned by a SF Group Company or comprised within the Business Assets
and are not subject to any Encumbrance (other than a Permitted Encumbrance).
8.3 The assets referred to in paragraphs 8.1(a) and 8.2 above and the
facilities, services, leases, licence or other agreements referred to in
paragraphs 8.1(b) and 8.1(c) above, together with those services provided or to
be provided under the Transitional Services Agreement comprise all material
assets (other than Financial Assets) required for the carrying on of the SF
Business substantially in the manner in which it is carried on at the date of
this Agreement.
9. MATERIAL CONTRACTS
9.1 There are no contracts, agreements or other arrangements which are material
in relation to the SF Business (other than in relation to the Financial Assets,
Properties, Intellectual Property Rights, IT Systems, Intra-Group Indebtedness
and Third Party
Page 138
CONFORMED COPY
Indebtedness) or any contracts or agreements which have been entered into
otherwise than in the ordinary course of business.
10. INFRASTRUCTURE AND MID MARKET FINANCIAL ASSETS
10.1 All information contained in the Infrastructure/Mid Market Warranted
Fields:
(a) as regards historical Finance Receivables, accurately states the timing
and amount of such Finance Receivables;
(b) as regards prospective payments, accurately reflects the contractual
obligations of the parties in respect of the same, or to the extent that
such obligations were incapable of accurate determination on the date on
which the Due Diligence Data Tapes were prepared, reflects a good faith
estimate of the same based on reasonable assumptions;
(c) as regards residual values in respect of Portfolio Property the subject
matter of leasing contracts, accurately reflects the minimum amount for
which the relevant member of the Extended SF Group may be required to
sell the relevant Portfolio Property pursuant to the terms of the
applicable contractual documentation;
(d) reconciles with the 2001 Financial Statement as described in the
Reconciliation File; and
(e) as regards all other information accurately reflects the contractual
terms of the relevant transactions or, to the extent that any such terms
were incapable of accurate determination on the date on which the Due
Diligence Data Tapes were prepared, reflects a good faith estimate of
the information in question based on reasonable assumptions.
Nothing in this Warranty 10.1 only shall constitute or be deemed to constitute a
warranty as to the credit-worthiness of any obligors or the enforceability of
any obligations.
10.2 The Portfolio Property forming the subject matter of the
Infrastructure/Mid Market Financial Assets:
(a) to the extent that under the terms of the relevant transaction, title to
the same is to be retained by the relevant SF Group Company or Business
Asset Vendor, is legally and beneficially owned by that SF Group Company
or Business Asset Vendor, as the case may be, free and clear of all
Encumbrances except for any Permitted Encumbrances and the interest of
the obligor under this transaction;
(b) is situated in the location shown in the Due Diligence Data Tapes or
such other location as is permitted by the terms of the relevant Finance
Agreement;
(c) is not subject to a material claim or dispute relating to its condition,
quality, fitness for purpose or description;
Page 139
CONFORMED COPY
(d) has been accepted by the relevant obligor; and
(e) other than as set out in the Disclosure Letter, is not the subject of
any written notice received by any relevant member of the Extended SF
Group, from the lessee thereof, of any loss or material damage and the
Vendor is not otherwise aware of any loss or material damage occurring;
10.3 Each of the Infrastructure/Mid Market Finance Agreements and their
respective Related Security are legal, valid, binding and enforceable by the
relevant SF Group Company or Business Asset Vendor against the obligor.
10.4 In relation to an Infrastructure/Mid Market Financial Asset with an
Exposure (disregarding for this purpose sub-paragraph (c) of the definition
thereof) of US$3 million or more (and except as summarised in reasonable detail
in the attachments to the Disclosure Letter referred to in the specific
disclosure made against this Warranty at Tab 10.4 of the bundle attached to the
Disclosure Letter), the Vendor has not received written notice of nor is it
otherwise aware of any:
(a) material defaults or mandatory prepayment or acceleration events under
the terms of the relevant documentation which has occurred and is
continuing (a MATERIAL DEFAULT), or
(b) events or circumstances which, subject to the lapse of time, giving of
notice or fulfilment of any condition would result in a Material Default
(a POTENTIAL MATERIAL DEFAULT),
in relation to any Infrastructure/Mid Market Finance Agreement or Related
Security or Project Agreement.
10.5 In relation to an Infrastructure/Mid Market Financial Asset with an
Exposure (disregarding for this purpose sub-paragraph (c) of the definition
thereof) of US$5 million or more, all amendments of and supplements to a
material provision of any Infrastructure/Mid Market Finance Agreement or Related
Security or, so far as the Vendor is aware, of any Project Agreement, are listed
in Schedule 5 to the Disclosure Letter. Those Infrastructure/Mid Market
Financial Assets with amendments or supplements marked as having a summary
description in Schedule 5 to the Disclosure Letter, are summarised in reasonable
detail in the bundle attached at Tab 10.5 to the Disclosure Letter;
10.6 In relation to an Infrastructure/Mid Market Financial Asset with an
Exposure (disregarding for this purpose sub-paragraph (c) of the definition
thereof) of US$3 million or more (and except as summarised in reasonable detail
in the attachment to the Disclosure Letter referred to in the specified
disclosure made against this Warranty), there has been no waiver given in
respect of a Material Default or Potential Material Default, which has come into
effect on or after 31 December 2001 or which remains in force on the date
hereof, in relation to any Infrastructure/Mid Market Finance Agreement or
Related Security nor, so far as the Vendor is aware, to any Project Agreement;
Page 140
CONFORMED COPY
10.7 Any agreement entered into by a member of the Extended SF Group (not
being a Finance Agreement or Related Security) under which such member of the
Extended SF Group has the benefit of a guarantee of the minimum residual value
of any Portfolio Property forming the subject matter of Infrastructure/Mid
Market Financial Assets is in all respects legal, valid, binding and enforceable
by the relevant member of the Extended SF Group, is not the subject of a
Contractual Default and has not been terminated.
10.8 The rights expressed as accruing to SF Group Companies or Business Asset
Vendors (or any of them) pursuant to the terms of the Infrastructure/Mid Market
Finance Agreements and their respective Related Security:
(a) are legally and beneficially owned by the relevant SF Group Company or
Business Asset Vendor;
(b) have not been terminated;
(c) are free and clear of Encumbrances (other than Permitted Encumbrances)
and, other than as arise by operation of law, are not subject to any
existing defence, right of rescission or any valid claim or counterclaim
by the obligor under such Finance Agreement or Related Security;
(d) are not subject to any variation or amendment as a result of any
representations or warranties given (pursuant to the written authority
of a member of the Extended SF Group not contained in its customary
terms of business) by any dealer, supplier, intermediary, broker or
other person to any obligor in respect of such Finance Agreement or
Related Security which are binding on the relevant member of the
Extended SF Group (except in the case of such Infrastructure Financial
Assets where the relevant member of the Extended SF Group is a member of
a syndicate);
(e) have not been amended; and
(f) are not the subject of a Contractual Default.
10.9 No member of the Extended SF Group has interfered with an obligor's or
lessee's quiet enjoyment of the relevant Portfolio Property, save in accordance
with the terms of the relevant Infrastructure/Mid Market Finance Agreement or
respective Related Security, as the case may be.
10.10 Each member of the Extended SF Group has in all material respects
observed and performed all of its material obligations under the Infrastructure
Finance/Mid Market Finance Agreements and Related Security which, at the date
hereof, have fallen due for performance.
10.11 All sums payable to a SF Group Company or Business Asset Vendor pursuant
to each Infrastructure/Mid Market Finance Agreement are made directly to the
account of the relevant SF Group Company or Business Asset Vendor or to the
appropriate facility agent.
Page 141
CONFORMED COPY
10.12 Any person appointed as the agent of a member of the Extended SF Group
in connection with any material part of its business was appointed under a
written agency agreement, and each Infrastructure/Mid Market Finance Agreement
entered into by any such person was entered into in accordance with the relevant
written agency agreement.
10.13 No member of the Extended SF Group has received any written notice from
any other party to a Finance Agreement claiming any right of set-off in relation
to any Infrastructure/Mid Market Financial Asset with an Exposure of
US$3,000,000 or more or any other material right of set off in relation to any
other Infrastructure/Mid Market Financial Asset.
10.14 Each member of the Extended SF Group has in its possession or is
otherwise able to obtain access to such original or copy documentation
evidencing each of the transactions concerning Infrastructure/Mid Market
Financial Assets to which it is party as is required for the purposes of
bringing legal actions in relation to the enforcement of its rights pursuant to
such transactions.
10.15 Each obligor is identifiable from the relevant Infrastructure/Mid Market
Finance Agreements or relevant Related Security.
10.16 Since the Accounts Date, no notice of any material damage to or loss of
any Infrastructure/Mid Market Financial Asset has been received by a member of
the Extended SF Group nor has any member of the Extended SF Group received a
notice of any loss or damage to the Infrastructure/Mid Market Financial Asset
giving rise to an insurance claim.
10.17 There are no Assurances given by any SF Group Company in relation to the
obligations or liabilities of any person (other than any SF Group Company) under
which obligations or liabilities (whether actual or contingent) in excess of
US$500,000 each remain outstanding.
10.18 There are no Assurances giving rise to obligations or liabilities:
(a) currently given by a member of the ABB Group (excluding for this
purpose, any SF Group Company) either directly or indirectly, that
benefit any SF Group Company (other than as listed in Schedule 18
(Intra-Group Guarantees)); or
(b) given by any SF Group Company, that benefit a member of the ABB Group
(excluding for this purpose, any SF Group Company) that will continue
following Completion;
10.19 Where an Infrastructure/Mid Market Finance Agreement or any Related
Security was assigned to a member of the Extended SF Group, that company paid
the full amount of the purchase price expressed to have been payable by the
relevant member of the Extended SF Group for the assignment of such
Infrastructure/Mid Market Finance Agreement or any Related Security.
Page 142
CONFORMED COPY
10.20 Where required in order to make such assignment valid and binding on the
parties thereto, in relation to each Infrastructure/Mid Market Finance Agreement
or Related Security that has been assigned to a member of the Extended SF Group,
notice of the assignment thereof has been given to the obligor or, where
required, the consent of the obligor has been obtained and simultaneously with
the assignment the equipment the subject thereof was also assigned or
transferred to the relevant member of the Extended SF Group and applicable
filing requirements in respect of such assignments and security have been duly
satisfied identifying the capacity of the relevant assignee.
10.21 All insurances which are required to be maintained by the terms of any
Infrastructure/Mid Market Finance Agreement are in full force and effect and, so
far as the Vendor is aware, no event or circumstance has occurred, nor has there
been any omission to disclose a fact, which would in either case entitle any
insurer to avoid or otherwise reduce its liability under any policy relating to
such insurances.
10.22 No litigation, arbitration or administrative proceedings are current or,
to the knowledge of the relevant member of the SF Group, pending or threatened
in relation to any Infrastructure/Mid Market Finance Agreement or Related
Security save in respect of debt collection by the relevant SF Group Company or
Business Asset Vendor in the ordinary course.
10.23 The Disclosure Letter has attached to it a copy of the Watch List, as at
the end of June 2002 and the most recent Watch Asset Report for each of the
Infrastructure/Mid Market Financial Assets on the Watch List.
10.24 There is not any Infrastructure/Mid Market Finance Agreement, which by
virtue of the acquisition of the Shares or Business Assets pursuant to or other
performance of the terms of the Transaction Documents, will result in:
(a) any other party thereto being relieved of any obligation or becoming
entitled to exercise any right (including any right of termination or
any right of pre-emption or other option); or
(b) any member of the Extended SF Group being in default under any such
agreement or arrangement or losing any benefit, right or licence which
it currently enjoys or a liability or obligation of any member of the
Extended SF Group being created or increased; or
(c) a contractual requirement for (or the conferment of any right to
require) the allotment or issue of any shares, debentures or other
securities of any member of any SF Group Company now or at any time in
the future.
10.25 The details of the Export Bank Transactions set out in Part C of
Schedule 17 are true and accurate in all material respects.
11. SMALL TICKET FINANCIAL ASSETS AND PROGRAMME AGREEMENTS
11.1 All information contained in the Small Ticket Warranted Fields:
Page 143
CONFORMED COPY
(a) as regards historical Finance Receivables, accurately states the timing
and amount of such Finance Receivables;
(b) as regards prospective payments or events, accurately reflects the
contractual obligations of the parties in respect of the same or, to the
extent that such obligations were incapable of accurate determination on
the date on which the respective Due Diligence Data Tapes were prepared,
reflects a good faith estimate of the same based on reasonable
assumptions;
(c) as regards residual values in respect of Portfolio Property forming the
subject matter of Small Ticket Transactions, accurately reflects the
minimum amount for which the relevant member of the Extended SF Group
may be required to sell the relevant Portfolio Property pursuant to the
terms of the applicable Finance Agreement;
(d) reconciles with the 2001 Financial Statement as described in the
Reconciliation File; and
(e) as regards all other information accurately reflects the contractual
terms of the relevant Small Ticket Transactions or, to the extent that
any such terms were incapable of accurate determination on the date on
which the Due Diligence Data Tapes were prepared, reflects a good faith
estimate of the same based on reasonable assumptions; and
Nothing in this warranty 11.1 only shall constitute or be deemed to constitute,
a warranty as to the credit-worthiness of any obligors or the enforceability of
any obligations.
11.2 The Portfolio Property forming the subject matter of any Small Ticket
Transaction:
(a) is, to the extent that under the terms of the relevant Small Ticket
Transaction title to the same is to be retained by the relevant SF Group
Company or Business Asset Vendor, legally and beneficially owned by that
SF Group Company or Business Asset Vendor, as the case may be, free and
clear of all Encumbrances except for any Permitted Encumbrances and the
interest of the obligor under such Small Ticket Transactions;
(b) is situated in such location as is permitted by the terms of the
relevant Finance Agreement;
(c) is not subject to a level of claim or dispute relating to its condition,
quality, fitness for purpose or description which is materially in
excess of what is normal for Portfolio Property of that type in the
relevant jurisdiction;
(d) has been accepted by the relevant obligor; and
(e) is not the subject of any written notice received by the relevant member
of the Extended SF Group from the lessee thereof of any loss or material
damage which is not covered by insurance.
Page 144
CONFORMED COPY
11.3 Where Small Ticket Transactions include an obligation to provide
maintenance or other services to the lessee by a third party, so far as the
Vendor is aware, such third party is not in material breach of its obligations
in relation to the provision of those services.
11.4 No member of the Extended SF Group has entered into an agreement under
which it is obliged to provide maintenance or insurance services in connection
with Portfolio Property forming the subject matter of Small Ticket Transactions.
11.5 Any agreement entered into by a member of the Extended SF Group (not
being a Finance Agreement or Related Security) under which such member of the
Extended SF Group has the benefit of a guarantee of the minimum residual value
of any Portfolio Property forming the subject matter of Small Ticket
Transactions is in all respects legal, valid, binding and enforceable by the
relevant member of the Extended SF Group.
11.6 The ABB Accounting Principles are applied so that income derived from
any Small Ticket Financial Assets, the Finance Agreements in respect of which
have been extended beyond their original term or in respect of which the
relevant Portfolio Property was previously the subject of a similar agreement
with a member of the Extended SF Group, is applied in amortising the residual
value at which the relevant Portfolio Property is shown in the accounting books
and records of the relevant member of the Extended SF Group.
11.7 (a) Any person appointed as the agent of a member of the Extended SF
Group in connection with the actual or proposed entering into of Small Ticket
Transactions was appointed under a written agency agreement and, so far as the
Vendor is aware, each Programme Agreement or Finance Agreement and Related
Security entered into by such person was entered into in accordance with the
relevant written agency agreement and (b) no dealer, supplier or other person
has, without the written authority of a member of the Extended SF Group, made
any representations or warranties in relation to any Portfolio Property forming
the subject matter of Small Ticket Transactions which are binding on a member of
the Extended SF Group other than in accordance with the standard dealer or
supplier agreements in use by that particular member of the Extended SF Group,
copies of which are attached to the Disclosure Letter.
11.8 The Programme Agreements, Finance Agreements and Related Security in
relation to the Small Ticket Financial Assets are legal, valid, binding and
enforceable by the relevant member of the Extended SF Group against the relevant
obligor.
11.9 The rights expressed as accruing to any member of the Extended SF Group
pursuant to the terms of any Programme Agreement or Finance Agreement and
Related Security in relation to the Small Ticket Financial Assets:
(a) are legally and beneficially owned by the relevant member of the
Extended SF Group;
(b) have not been terminated;
Page 145
CONFORMED COPY
(c) are free and clear of Encumbrances (other than Permitted Encumbrances)
and, other than as arise by operation of law, are not subject to any
existing defence, right of rescission or any valid claim or counterclaim
by the obligor under such Finance Agreement or Related Security;
(d) are not subject to any variation or amendment as a result of any
representations or warranties given other than in accordance with the
relevant member's customary terms of business by any dealer, supplier,
intermediary, broker or other person to any obligor in respect of a
Finance Agreement or Related Security which are binding on any member of
the Extended SF Group;
(e) have not been amended or modified in any way unless:
(i) such amendments have been recorded in the records of the
relevant member of the Extended SF Group or the relevant
dealer; and
(ii) such amendments as are subject to regulatory requirements have
been made in compliance with such requirements to the extent
that failure to comply with such regulatory requirements will
render the underlying agreement unenforceable without a court
order.
11.10 No member of the Extended SF Group has interfered with an obligor or
lessee's quiet enjoyment of the relevant Portfolio Property save in accordance
with the terms of the relevant Finance Agreement or Related Security.
11.11 No member of the Extended SF Group has received any written notice from
any other party to the Small Ticket Transactions claiming any right of set-off
in relation to the Small Ticket Financial Assets which is material and outside
the ordinary course of business.
11.12 Each member of the Extended SF Group has in its possession or is
otherwise able to obtain access to such original or copy documentation
evidencing the Small Ticket Transactions to which it is party as is required for
the purposes of bringing legal actions in relation to the enforcing of rights
pursuant to such transactions and for establishing the terms of such
transactions.
11.13 The Finance Agreements and Related Security in relation to the Small
Ticket Financial Assets:
(a) enable the obligor to be identified; and
(b) have been duly observed and performed in all material respects by the
members of the Extended SF Group that are a party to them.
11.14 All payments to be made to members of the Extended SF Group pursuant to
each Finance Agreement entered into in relation to Small Ticket Transactions are
made directly by the obligor to the account of the relevant members of the
Extended SF Group or Business Asset Vendor or to the appropriate collection or
other agent.
Page 146
CONFORMED COPY
11.15 The Portfolio Property in relation to the Small Ticket Transactions is
accurately described in all material respects in the records of the Extended SF
Group.
11.16 The residual value in the accounting books and records of the Extended
SF Group of Portfolio Property which was not new at the time of the commencement
of the relevant Finance Agreement (other than Portfolio Property used for
demonstration purposes or subsequently leased or hired or which was the subject
of a sale and leaseback transaction) has been arrived at in a manner which
appropriately takes account of the age of such Portfolio Property in accordance
with the practices and policies of the Extended SF Group.
11.17 True and complete copies of the Programme Agreements in force at the
date of this Agreement are attached to the Disclosure Letter and such
agreements:
(a) are not terminable by reason of a change of control of the SF Group
Companies; and
(b) are not the subject of a Contractual Default.
11.18 Where any Finance Agreement in relation to the Small Ticket Financial
Assets has not been recorded in writing, such Finance Agreement does not contain
any unusual or onerous obligations and can be terminated on less than one
month's notice without liability to any member of the Extended SF Group.
12. AIRCRAFT
12.1 In relation to Portfolio Aircraft:
(a) the aircraft and the interest of the relevant member of the Extended SF
Group therein have been registered in all applicable registers in the
country of registration of the Portfolio Aircraft to ensure that the
rights and interests of such member of the Extended SF Group have been
protected to the extent customary under applicable law and regulation
and, where such member of the Extended SF Group is or was the owner of
the relevant aircraft, the terms of the relevant agreement require or
required that such ownership be evidenced by plates affixed thereto;
(b) each aircraft is certified airworthy in accordance with all applicable
civil aviation authority requirements;
(c) the relevant Finance Agreement requires that each aircraft be, and so
far as the Vendor is aware each aircraft is, maintained in accordance
with the manufacturer's specifications and guidelines; and
(d) the operator of each aircraft is, and at all times during the term of
the relevant Finance Agreement has been, duly certified by or registered
with all relevant aviation authorities.
12.2 In relation to any Finance Agreement which relates to a Portfolio
Aircraft:
Page 147
CONFORMED COPY
(a) the relevant member of the Extended SF Group and, so far as the Vendor
is aware, the other parties to such Finance Agreement have in all
material respects complied with applicable aviation authority
regulations;
(b) all security interests of the relevant member of the Extended SF Group
in respect of the Portfolio Aircraft that is the subject of such Finance
Agreement have been registered in accordance with applicable law in the
jurisdiction of registration of such aircraft to the extent required to
ensure that such security interests are enforceable by such member of
the Extended SF Group; and
(c) the relevant member of the Extended SF Group and, so far as the Vendor
is aware, the other parties to such Finance Agreement have complied in
all material respects with any obligations therein relating to
chartering or sub-leasing of the aircraft which is the subject of such
Finance Agreement.
13. INDEBTEDNESS OF THE SF GROUP
13.1 No member of the Extended SF Group has outstanding or has agreed to
create or incur any borrowing or indebtedness in the nature of borrowing
(including any transaction having the commercial effect of a borrowing) other
than:
(a) Intra-Group Indebtedness; and
(b) Third Party Indebtedness.
13.2 No member of the Extended SF Group is a party to or has any liability
(including, without limitation, any contingent liability) under any guarantee,
indemnity or other agreement to secure or otherwise incur financial or other
obligations with respect to an obligation of a third party, save for such
guarantees, indemnities and other agreements as may have been entered into in
the ordinary course of business in connection with the Financial Assets.
13.3 Schedule 12 (Indebtedness) of this Agreement contains a complete list,
with short details, of all agreements or other arrangements relating to:
(a) Third Party Indebtedness and any guarantee, indemnity or security
granted pursuant or in relation thereto, as at 31 July 2002; and
(b) External Guarantees,
and/or any agreement entered into or proposed to be entered into by any member
of the Extended SF Group in respect of any of the above.
13.3A Schedule 18 (Intra-Group Guarantees) of this Agreement contains a
complete list with short details of all agreements or other arrangements
relating to Intra-Group Guarantees.
13.4 No event has occurred and is continuing or been alleged in writing and
has not been dismissed or settled, which in relation to any member of the
Extended SF Group
Page 148
CONFORMED COPY
(other than in respect of any Intra-Group Indebtedness, or any Third Party
Indebtedness that will be repaid prior to or at Completion):
(a) constitutes an event of default, or otherwise gives rise to an
obligation to repay, under any agreement relating to borrowing or
indebtedness in the nature of borrowing, guarantee or indemnity or which
would lead to an Encumbrance being constituted or created in connection
with any borrowing or indebtedness in the nature of borrowing, guarantee
or indemnity or which would lead to any other obligation of any member
of the Extended SF Group becoming enforceable; or
(b) would constitute such an event of default or would lead to such security
or an obligation becoming enforceable with the giving of notice or lapse
of time or both.
14. ACQUISITIONS AND DISPOSALS AND REORGANISATIONS
14.1 The Disclosure Letter has attached to it, a list of each acquisition or
disposal (whether of shares, a business or a portfolio of assets) the underlying
assets of which at the time of such acquisition or disposal had a gross asset
value of more than US$10 million made by, or of, any SF Group Company in the 5
years prior to the date of this Agreement or which are presently under
negotiation and the Vendor has provided to the Purchaser all principal closing
documents in relation thereto. Neither the Vendor, nor any SF Group Company, has
made, or has received written notice of any claim, or has engaged in litigation,
arbitration or other proceedings with any other party to, any such acquisition
or disposal, in each case in connection therewith and which has not been settled
or otherwise finally determined.
14.2 The Disclosure Letter has attached to it, summary details of all
reorganisations (including the Pre-Sale Reorganisation) involving transfers of
businesses or shares or the merger or dissolution of corporate entities
involving any SF Group Company made by, or of, any SF Group Company in the three
(3) years prior to the date of this Agreement (other than pursuant to or in
anticipation of this Agreement).
15. INTRA-GROUP AGREEMENTS
The Disclosure Letter contains a list, with summary details (including details
of any Intra-Group Service Fees), of all agreements (not being agreements
entered into in the ordinary course of business on arm's length terms or
agreements evidencing Intra-Group Indebtedness or agreements which can be
terminated on one month's notice or less without liability, or agreements which
are to terminate on or before Completion) made between any SF Group Company and
any member(s) of the ABB Group which are not covered by the Transitional
Services Agreement.
16. CONSTITUTION, REGISTERS ETC.
16.1 Each member of the Extended SF Group has at all times carried on its
business in accordance with its constitutional documents.
Page 149
CONFORMED COPY
16.2 All registers and other books required by applicable law to be kept by
each SF Group Company have been properly kept and are in all material respects
complete and accurate. No notice or allegation has been received from any
authority having jurisdiction over the relevant SF Group Company that any of
such books or registers is incorrect in any material respect or should be
rectified.
16.3 There is no power of attorney or agency agreement given by any SF Group
Company remaining in force and there is no other outstanding authority by which
any person (other than a person belonging or related to the ABB Group where such
authority expires or ceases to have effect on or prior to Completion) may enter
into any agreement, arrangement or obligation to do anything on behalf of any SF
Group Company (other than an authority of its employees, directors, officers or
statutory managers and (in relation only to any SF Group Company incorporated in
Switzerland and as evidenced on the extract concerning that SF Group Company
from the register of its local chamber of commerce) auditors to enter into
agreements in the normal performance of their duties).
17. EFFECT OF SALE
17.1 Other than as disclosed pursuant to paragraph 10.24 of this Schedule, or
in respect of any Intra-Group Indebtedness or any Third Party Indebtedness that
will be repaid prior to or on Completion, the sale of the Shares and/or the
Business Assets to the Purchaser will not:
(a) result in the breach, or constitute a default which would result in any
additional material obligation on a SF Group Company or result in a SF
Group Company being deprived of a material right or benefit to which it
would otherwise be entitled under any of the terms or provisions of any
agreement or instrument to which it is a party; or;
(b) trigger any change of control provisions under any material contract or
any joint venture, partnership, consortium or similar arrangement to
which any member of the Extended SF Group is party, or relieve any other
such party from its obligations under that contract or enable it to
determine its obligations under that contract; or
(c) result in the creation or imposition of any Encumbrance on any of the
property or assets of any member of the Extended SF Group.
17.2 No person is entitled to receive a finder's fee, brokerage or commission
from any SF Group Company in connection with this Agreement or the documents to
be entered into in consequence of this Agreement being executed or carried into
effect and no break fee or other payment will be paid by any SF Group Company as
a result of either the execution of this Agreement or any other Transaction
Documents or the sale of the Shares and/or of the Business Assets to the
Purchaser by the Vendor, other than any payment contemplated by this Agreement.
Page 150
CONFORMED COPY
18. INSOLVENCY
18.1 Neither the Vendor nor any member of the Extended SF Group nor any
Designated Vendor is (or is deemed to be by any law applicable to it) unable to
pay its debts as they fall due or by reason of actual or anticipated financial
difficulties has commenced negotiations with any creditor with a view to
rescheduling any of its indebtedness.
18.2 No corporate action, legal proceedings or other procedure or step has
been taken or, so far as the Vendor is aware, is proposed in any jurisdiction in
relation to:
(a) the suspension of payments on any debts or a moratorium of any
indebtedness of any of the Vendor, any SF Group Company or any
Designated Vendor;
(b) the winding-up, dissolution, desastre or administration of any of the
Vendor, any SF Group Company or any Designated Vendor;
(c) a composition, compromise, assignment or arrangement with any creditor
or creditors of any of the Vendor, any SF Group Company or any
Designated Vendor, other than in respect of liabilities which are
contested in good faith; or
(d) the appointment of a liquidator, receiver, administrator, administrative
receiver, compulsory manager, trustee in bankruptcy or other similar
officer in respect of any of the Vendor, any SF Group Company or any
Designated Vendor or any of their assets or the commencement of any
analogous procedure.
18.3 So far as the Vendor is aware, neither the Vendor, nor any SF Group
Company nor any Designated Vendor is a party to any transaction which is
susceptible to being set aside under the applicable insolvency or bankruptcy
laws of its jurisdiction of incorporation by reason of such transaction having
been entered into with the intent to confer a preference or at an undervalue.
19. COMPETITION LAW AND RESTRICTIONS
19.1 No member of the Extended SF Group is knowingly a party to any
agreement, arrangement, concerted practice or course of conduct which
contravenes any applicable competition laws in any jurisdiction in which it
operates and in particular no member of the Extended SF Group is a party to any
agreement, arrangement, concerted practice or course of conduct which infringes
Article 81 of the EC Treaty or constitutes an abuse of a dominant position
contrary to Article 82 of that Treaty or infringes any regulation or other
enactment made under Article 83 of that Treaty or falls within Article 53 and/or
Article 54 of the Agreement on the European Economic Area or the US Xxxxxxx Act.
19.2 So far as the Vendor is aware, no member of the Extended SF Group is or
has been, during the three (3) years ending on the date of this Agreement, the
subject of any enquiry, investigation or proceeding in relation to its
compliance with competition laws.
Page 151
CONFORMED COPY
19.3 Other than as described in the Disclosure Letter, no SF Group Company
has agreed to any restriction, covenant or undertaking with any third party
which:
(a) prohibits or materially restricts any SF Group Company from:
(i) carrying on or being engaged or concerned or interested in any
business in the nature of the SF Business in any territory; or
(ii) seeking to procure orders or do business with any person in the
course of conduct of a business of the nature of the SF
Business; or
(b) would prohibit or materially restrict any member of the Purchaser's
Group (other than a SF Group Company) from:
(i) carrying on or being engaged or concerned or interested in any
business in any territory; or
(ii) seeking to procure orders or do business with any person
whatsoever.
20. JOINT VENTURES
20.1 Summary details of all joint ventures, partnerships, consortia,
incorporated or unincorporated associations or similar arrangements in which any
member of the Extended SF Group has an interest in relation to the SF Business
(other than Infrastructure/Mid Market Financial Assets and ordinary course of
business distribution arrangements not being partnerships) are set out in the
Disclosure Letter and all material documents relating thereto have been provided
therein.
21. CONFIDENTIAL INFORMATION
21.1 All material Confidential Business Information of the SF Business has
been kept confidential by the Vendor or the ABB Group or the SF Group and has
not been disclosed to third parties outside the ABB Group except in the ordinary
course of business or trade or during the course of due diligence investigations
relating to potential acquisitions or disposals (and in such case has only been
disclosed subject to customary confidentiality restrictions which the Vendor is
not aware have been breached).
22. REGULATORY MATTERS
22.1 The Vendor (in relation to the SF Business only) and the SF Group has in
all material respects conducted the SF Business and its corporate affairs in
accordance with applicable regulatory requirements and the directives and orders
of any competent supervisory authority.
22.2 In respect of each member of the Extended SF Group, it and its parent
undertakings have obtained each material licence, permission, authorisation,
registration and consent required for the relevant member of the Extended SF
Group to carry on the SF Business in those jurisdictions in which that member of
the Extended SF Group carries on such business, each of which licence,
permission,
Page 152
CONFORMED COPY
authorisation, registration and consent is in full force and effect, is not
subject to any unusual conditions which are material in the context of the SF
Business as it is carried on at the date of this Agreement and has been complied
with in all material respects.
22.3 The SF Group Companies listed in Schedule 3 of the Disclosure Letter are
the only SF Group Companies which have in full force and effect any material
licence, permission, authorisation, registration or consent referred to in
paragraph 22.2.
22.4 Schedule 3 of the Disclosure Letter identifies in respect of each SF
Group Company the relevant regulator(s) and lists all regulated activity or
activities for which that SF Group Company is authorised (including any
notification made by or on behalf of any SF Group Company authorised in one
European member state under any European banking or investment services
directive enabling it to provide services in or into any other European member
state.
22.5 No member of the Extended SF Group has been notified in writing that any
of the material licences, permissions, authorisations, registrations or consents
referred to in paragraph 22.2 will, in whole or in part, be modified, suspended,
withdrawn, revoked or not renewed (whether as a result of the implementation of
this Agreement or otherwise) other than where such material licences,
permissions, authorisations, registrations or consents are no longer required
for the SF Business.
22.6 Neither the Vendor, nor any member of the Extended SF Group nor any
Share Vendor has been notified in writing of investigations in relation to the
SF Business which are current or pending or of any other action which is under
consideration in relation to the SF Business by a state or regulatory authority
(including any self regulatory organisation) which could on conclusion to result
in the revocation or imposition of conditions which are material in the context
of the relevant part of the SF Business in relation to any material licence,
permission, authorisation or consent required for carrying on that part of the
SF Business.
22.7 Each SF Group Company complies with all regulatory capital requirements
(including those regulating large exposures) which are applicable to it.
22.8 No SF Group Company has received any notification in writing by any
competent regulator that any officer of a SF Group Company is unfit or is not a
proper person to carry on his functions and no director of any SF Group Company
is subject to an order disqualifying him from acting as such.
22.9 Neither the Vendor, nor any member of the Extended SF Group nor any
Share Vendor has received any written notification of any material current,
pending or threatened disciplinary action against any member of the Extended SF
Group or its officers by a competent regulatory authority (including any
self-regulatory organisation).
22.10 No member of the Extended SF Group has received written notification of
any material complaint having been filed with the competent regulatory authority
within the past three years against a member of the Extended SF Group or any of
its officers (past or present).
Page 153
CONFORMED COPY
22.11 Each member of the Extended SF Group has in all material respects
complied with:
(a) all applicable laws and regulations in relation to the imposition of
sanctions and against money laundering, bribery and terrorism;
(b) all applicable rules and regulations of any relevant international
organisations having jurisdiction over it (to the extent that such rules
or regulations are applicable to non-governmental entities in the
relevant national jurisdictions).
22.12 All ABB Group regulatory and compliance policies have been circulated to
all Employees to whom they are relevant.
23. LITIGATION AND COMPLIANCE WITH LAW
23.1 No member of the Extended SF Group is engaged in or has, during the two
years ending on the date of this Agreement, been engaged in, or has been
threatened in writing with or itself threatened in writing, any material
litigation, arbitration or similar proceedings and the Vendor is not aware of
any fact or circumstance which is likely to give rise to any such proceedings
save, in each case, for the collection of debts and associated actions conducted
in the ordinary course of business.
23.2 So far as the Vendor is aware:
(a) there have not been during the three years prior to the date of this
Agreement and are no governmental or regulatory investigations or
enquiries or proceedings concerning any member of the ABB Group (in
relation to the SF Business only) or the Extended SF Group;
(b) no such investigations, enquiries or proceedings are pending or
threatened; and
(c) no fact or circumstance exists which is likely to give rise to any such
investigation, enquiry or proceedings.
23.3 So far as the Vendor is aware, each member of the Extended SF Group has
conducted its business in all material respects in compliance with all
applicable laws.
23.4 So far as the Vendor is aware, no member of the Extended SF Group nor
any person for whose acts and defaults a member of the Extended SF Group would
be vicariously liable in respect of the relevant actions has:
(a) induced a person to enter into an agreement or arrangement by means of
an unlawful payment, contribution, gift or other inducement;
(b) offered or made an unlawful payment, contribution, gift or other
inducement whether direct or indirect to a governmental official or
employee; or
(c) offered or made an unlawful contribution whether direct or indirect to a
political purpose, political party or candidate for public office.
Page 154
CONFORMED COPY
23.5 There is no litigation, arbitration or other proceeding, and so far as
the Vendor is aware, none is pending or threatened, against or concerning any
member of the Extended SF Group, relating to the direct or indirect Nazi control
of any European country during the period from 1933 to 1945.
23.6 No member of the Extended SF Group has been involved or participated in:
(a) the expropriation of bank deposits or other valuables without consent of
the owner or as required by law;
(b) benefiting from forced labour; or
(c) activities directly supporting genocide,
and, so far as the Vendor is aware, no business or company acquired by or
connected with any member of the Extended SF Group has been involved or
participated in such activities.
23.7 No member of the Extended SF Group is party, directly or indirectly, to
an agreement, contract or other arrangement with any person or entity which is
to the actual knowledge of the relevant member of the SF Group based in:
(a) Afghanistan, Angola, Bosnia-Herzegovina, Myanmar, Burundi, China, Libya,
North Korea or Russia, but only in each case to the extent the
transaction relates to:
(i) the design, development, production, stockpiling or use of
missiles or chemical or biological weapons; or
(ii) the investment in nuclear reactors or power generating or
propulsion equipment specially designed for use with nuclear
reactors; or
(iii) the investment in munitions, or arms and military equipment;
(b) Croatia, Cuba, Democratic Republic of Congo (Zaire), Haiti, Iran, Iraq,
Liberia or Rwanda, but only in each case to the extent the transaction
relates to the investment in munitions, or arms and military equipment;
(c) Sierra Leone, but only to the extent the transaction relates to the
investment in munitions, or arms and military equipment or involves the
exportation of diamonds;
(d) Somalia, Sudan, Syria or Yugoslavia-FRY, but only to the extent the
transaction relates to:
(i) the investment in munitions, or arms and military equipment; or
(ii) air transportation or was entered into before 19 January 2001;
or
(e) Zimbabwe,
Page 155
CONFORMED COPY
such countries being subject to economic or financial sanctions, whether
targeted or general, imposed by the United Nations, the United States or the
European Union at the date of this Agreement.
23.8 There is attached to the Disclosure Letter a list of all transactions
involving an agreement or other undertaking by a member of the Extended SF Group
for the financing or leasing of assets or the provision of funds (or, save in
respect of financial advisory services provided in the ordinary course where no
member of the Extended SF Group provided finance, to arrange for the provision
of funds by others) (whether in the form of a loan, purchase and re-lease of an
asset or otherwise) (each, a PORTFOLIO INVESTMENT) to one or more unaffiliated
third parties in entities having, and in respect of their, businesses in any of
the following countries (or which to the actual knowledge of the relevant member
of the Extended SF Group involve the financing or leasing of assets permanently
located, in any of the following countries): Afghanistan, Angola, Cuba, Iraq,
Iran, North Korea, Libya, Myanmar, Sudan, Syria, Zimbabwe or the Federal
Republic of Yugoslavia.
23.9 There are no Portfolio Investments in which funding was provided for
nuclear, or biological warfare material, armaments or sophisticated and high
technology products that the relevant member of the Extended SF Group has actual
knowledge are to be used for defence or weapons development applications except
as set forth in the Disclosure Letter.
23.10 The Disclosure Letter lists those Portfolio Investments which contain
covenants which directly or indirectly require compliance by:
(a) a member of the Extended SF Group; or
(b) any party to a contract to which a member of the Extended SF Group is
also a party,
with a boycott of any country (or of its nationals) other than Afghanistan,
Angola, Cuba, Iraq, Iran, North Korea, Libya, Sudan, Syria, Zimbabwe or the
Federal Republic of Yugoslavia.
23.11 No member of the Extended SF Group maintains board representation or
observer status in any Portfolio Investment, except as set out in the Disclosure
Letter.
23.12 No payments by or to a member of the Extended SF Group on account of any
Portfolio Investment have been made in cash or negotiable instruments since 1
January 2001 except by way of transfer or payment instructions processed by a
financial institution.
23.13 No SF Group Company maintains its bank accounts in any of the Xxxx
Islands, Dominica, Egypt, Grenada, Guatemala, Indonesia, Xxxxxxxx Islands,
Myanmar, Nauru, Nigeria, Niue, Philippines, Russia, St. Xxxxxxx & the Grenadines
or the Ukraine, PROVIDED ALWAYS that accounts or security maintained by facility
agents or persons performing similar functions in connection with the Financial
Assets shall not be regarded as maintained by the SF Group.
Page 156
CONFORMED COPY
23.14 No member of the Extended SF Group nor any person for whose acts and
defaults a member of the Extended SF Group would be vicariously liable, in
respect of the relevant actions, has entered into material financing or leasing
transactions in the Republic of South Africa during the period of apartheid
government between 1948 and 1994.
23.15 So far as the Vendor is aware, no Employee has been prosecuted by any
governmental or other agency or any stock exchange for trading
ABB Ltd
securities on the basis of material, non-public information.
23.16 The Disclosure Letter contains a list of charitable contributions in
excess of US$5,000 made by any member of the SF Group to any recipient since
1 January 2001.
23.17 The Disclosure Letter contains a list of contributions made in excess of
US$5,000 to political parties or candidates for political office by any member
of the SF Group since 1 January 2001.
23.18 The repayment of Intra Group Indebtedness pursuant to this Agreement by
any member of the ABB Group will take place in compliance with all applicable
law and regulation.
24. INTELLECTUAL PROPERTY AND COMPUTERS
INTELLECTUAL PROPERTY
24.1 The SF Group Companies are together the sole legal and beneficial owners
of all SF Intellectual Property Rights, free of any Encumbrances other than
Permitted Encumbrances.
24.2 All SF Intellectual Property Rights are unregistered, and are not the
subject of any application for registration as Intellectual Property Rights by a
member of the Extended SF Group.
24.3 None of the SF Intellectual Property Rights is (and, so far as the
Vendor is aware, no grounds exist by which it may become) the subject of a
claim, challenge or opposition from any person, including (without limitation)
an employee or contractor (or former employee or contractor) of the ABB Group,
as to title, ownership, validity, enforceability, compensation or otherwise.
24.4 The SF Group Companies together legally and beneficially own or have
licensed to them all the Intellectual Property Rights required to run all and
any part of the SF Business as at the date of this Agreement.
24.5 So far as the Vendor is aware, there is not, and never has been, any
material infringement or unauthorised use of any of the SF Intellectual Property
Rights.
24.6 (a) The carrying on of the SF Business (including for the avoidance of
doubt the operation of the IT Systems) by any SF Group Company the 4 years prior
to the date of this Agreement does not and has not infringed the Intellectual
Property Rights
Page 157
CONFORMED COPY
of any other person, and (b) to the best of the Vendor's knowledge, information
and belief, the carrying on of the SF Business (including for the avoidance of
doubt the operation of the IT Systems) by any SF Group Company during the 2
years prior to that 4 year period did not infringe the Intellectual Property
Rights of any other person.
24.7 Other than in the ordinary course of business (and subject to
appropriate confidentiality obligations and restrictions on use where this is
the usual market practice), or pursuant to any requirement under any law, or
pursuant to any rule of any listing authority or stock exchange, no member of
the Extended SF Group has disclosed or is under any obligation to disclose any
confidential Know-How to any third party outside the SF Group or the ABB Group
or in either case a former member thereof (while such party was, as applicable,
a member of the SF Group or the ABB Group).
24.8 All renewal fees and other charges payable in respect of all internet
domain names used, or held or acquired for use, in or in relation to the SF
Business have been paid, and nothing has been done or omitted to be done by
which the registration of any such internet domain names may become capable of
being removed or deleted.
24.9 The Vendor has disclosed to the Purchaser copies of all SF IPR Licences
material to any part of the SF Business.
24.10 The Vendor has not received any notice (in accordance with its terms) to
terminate, repudiate or disclaim:
(a) any SF IPR Licence material to any part of the SF Business; or
(b) any Private Label Arrangement,
and the Vendor is not aware of any grounds for termination, repudiation or
disclaiming of any such SF IPR Licence or Private Label Arrangement by the
relevant licensor, including, without limitation and, for the avoidance of
doubt, as a consequence of any default by the relevant member of the ABB Group.
So far as the Vendor is aware all SF IPR Licences material to any part of the SF
Business and all Private Label Arrangements, are binding in all material
respects.
24.11 Nothing prevents any member of the ABB Group from granting the licence
under the SF Shared Intellectual Property Rights contained in clause 10.14 of
this Agreement.
INFORMATION TECHNOLOGY
24.12 The IT Systems are either owned by, or validly licensed or leased to a
SF Group Company or, in the case of data, a SF Group Company is entitled to use
such data.
24.13
(a) The Vendor has disclosed to the Purchaser complete copies of all
Software Licences (and related support and maintenance agreements),
other than Off
Page 158
CONFORMED COPY
The Shelf Products. The Vendor has disclosed to the Purchaser complete
copies of all material SF Group Licences (and related support and
maintenance agreements). The Vendor has not received any notice (in
accordance with its terms) to terminate, repudiate or disclaim any
Software Licence or SF Group Licence (or related support and maintenance
agreement); so far as the Vendor is aware the Software Licences and SF
Group Licences (and related support and maintenance agreements) are
binding in all material aspects.
(b) There are no circumstances in which the ownership, benefit or right to
use the Software Products, the products the subject of a SF Group
Licence or the servers on which the Software Products are installed,
operated and accessed and the databases associated with those servers,
may be lost or affected by virtue of Completion (to the extent that
those servers and associated databases are owned by or leased to a SF
Group Company by a third party).
24.14 The IT Systems as a whole have not failed to any material extent in the
18 months prior to the date of this Agreement.
24.15 Each member of the Extended SF Group has, in accordance with good
industry practice, taken precautions to preserve the availability, security and
integrity of the material IT Systems.
24.16 The Vendor has disclosed to the Purchaser complete copies of all escrow
agreements relating to source code to the Software Products.
24.17 To the extent that a Software Product and its Operating Manuals are or
were legally and beneficially owned by a member of the Extended SF Group such
member has taken appropriate measures to protect the secrecy and confidentiality
of the Software Product and its Operating Manuals, and the source code relating
to such Software Product is in the sole possession of the relevant SF Group
Company.
24.18 The Software Products (and the servers on which the Software Products
are installed, operated and accessed and the databases associated with those
servers) function in accordance with all applicable specifications and have not
failed to any material extent in the 18 months prior to the date of this
Agreement.
24.19 Adequate disaster recovery arrangements are in force in relation to the
material IT Systems.
24.20 The Software Products (and the servers on which the Software Products
are installed, operated and accessed and the databases associated with those
servers) do not contain third party software or systems, which are not
negotiated from third party suppliers on arms length commercial terms.
24.21 Each SF Group Company has valid maintenance and support contracts for
the Software Products and products the subject of a SF Group Licence (and the
servers on which the Software Products are installed, operated and accessed and
the databases associated with those servers) (to the extent that such servers
and databases are owned by or leased to a SF Group Company) which in the
reasonable opinion of the Vendor
Page 159
CONFORMED COPY
are sufficient to remedy or compensate any material defect. So far as the Vendor
is aware, none of these is liable to be terminated, not renewed upon expiry or
otherwise affected by virtue of Completion.
24.22 No member of the Extended SF Group has entered into any agreement which
restricts the SF Group's freedom to use, develop and exploit any Software
Products (i) developed by a member of the Extended SF Group, (ii) co-developed
with any third party by a member of the Extended SF Group, or (iii) developed by
a third party solely for and on behalf of a member of the Extended SF Group.
24.23 Other than Off The Shelf Products, the Software Products and software
the subject of SF Group Licences are all the software products required for the
day to day running of the SF Business as at the date of this Agreement.
DATA PROTECTION
24.24 No member of the Extended SF Group has received:
(a) any enforcement, information or equivalent notice under the Data
Protection Laws alleging the requirements of which have not been
satisfied;
(b) (in the 12 months prior to the date of this Agreement) any written
communication from any data protection or privacy authority with
competent authority over a member of the SF Group's data processing
activities, indicating that it is investigating an allegation that the
member of the SF Group is in breach of the Data Protection Laws or that
it proposes to take, or is considering taking, enforcement action under
the Data Protection Laws; or
(c) (in the 12 months prior to the date of this Agreement) any written
communication from any person complaining about a member of the SF
Group's use of information about that person or alleging any breach of
any of the Data Protection Laws.
25. DIRECTORS AND EMPLOYEES
25.1 Subject to Data Protection Laws, the Vendor has disclosed to the
Purchaser:
(a) in respect of each SF Group Company or Transfer Employees Transferor,
the current age, date of start of employment or period of continuous
employment, remuneration, other benefits (to include any post retirement
medical dental or welfare benefits and accidental and death insurance),
job title and grade (where appropriate), of each of its Employees and
where an Employee has been continuously absent from work for more than
one month prior to the date of this Agreement other than for vacation,
the reason for the absence, and the total number of Employees including
any on maternity or paternity leave or absent on the grounds of
disability or other long-term leave of absence who have or may have a
right to return to work with any SF Group Company or Transfer Employees
Transferor;
(b) a copy of standard terms and conditions applicable to each grade of
Employee;
Page 160
CONFORMED COPY
(c) the material terms of all current contracts of employment with any
Employee whose base cash remuneration (excluding benefits in kind or
bonuses) exceeds US$110,000 (or the equivalent in local currency) per
annum (the KEY EMPLOYEES);
(d) a copy of any Collective Agreements applicable to any Employee; and
(e) the material details of the Share Incentive Schemes, Share Option
Schemes or Profit Sharing Scheme, bonus or other incentive schemes
available to any Employee.
25.2 No Key Employee is under notice of dismissal nor, so far as the Vendor
is aware, has any Key Employee given notice of termination of his contract of
employment.
25.3 No SF Group Company is a party to an agreement with a consultant or
other individual to provide services (other than pursuant to any contract of
employment or the engagement of independent contractors in the ordinary course
of business).
25.4 There is no employment contract with any Employee (other than a Key
Employee) which:
(a) cannot be terminated by three month's notice or less or, if greater, the
minimum notice period prescribed by applicable law without giving rise
to any claim for damages or compensation provided that such employment
contract is terminated both for a reason permissible and in accordance
with procedure required by the law applicable to such contracts;
(b) would entitle an Employee to terminate his contract of employment and
receive compensation on a change of control of any SF Group Company or
Transfer Employee Transferor; or
(c) on termination, would entitle an Employee to receive compensation in
excess of that prescribed by applicable law.
25.5 The basis of the remuneration payable to the directors, and Key
Employees is the same as that in force at the Accounts Date. No SF Group Company
or Transfer Employee Transferor is obliged to increase, nor has it made any
provision to increase (other than in accordance with the provisions of a
Collective Agreement or indexation) the total annual remuneration payable to the
directors or Employees by more than five per cent. (other than by reason of
salary reviews carried out in the ordinary course).
25.6 There are no amounts owing to any present or former director or Employee
other than remuneration accrued but not due or for reimbursement of business
expenses and no SF Group Company has incurred any unpaid liabilities which have
not been satisfied arising from the termination of any employment contract or
consultancy agreement.
Page 161
CONFORMED COPY
25.7 Any consultations or information procedures required to be effected by
any SF Group Company or Transfer Employee Transferor and/or the Vendor, as
appropriate, prior to executing this Agreement necessary to give effect to the
provisions of this Agreement have been completed with the relevant works or
supervisory councils or other bodies representing Employees which have a right
to be represented or attend at or participate in any board or council meeting or
a right to be informed, consulted or make representations in relation to any SF
Group Company or Transfer Employee Transferor.
25.8 No SF Group Company or Transfer Employee Transferor is involved in a
material dispute with any Employee, or any trade union, association of trade
unions, works council, staff association or other body representing Employees
and so far as the Vendor is aware there are no circumstances likely to give rise
to any such dispute.
25.9 Each SF Group Company and Transfer Employee Transferor has complied with
all material requirements imposed on it by applicable law or a Collective
Agreement in relation to Employees.
25.10 Each SF Group Company and Transfer Employee Transferor has maintained
materially up to date and accurate records regarding the employment of each of
the Employees (including without limitation, details of the terms of employment,
payments of statutory sick pay and maternity pay, income tax and social security
contributions, disciplinary and health and safety matters and the termination of
employment).
25.11 Within the period of one year ending on the date of this Agreement no SF
Group Company has:
(a) made or started implementation of any collective dismissals that have
required or so far as the Vendor is aware will require notification to
any state authority or notification to or consultation with any trade
union, works council, staff association or other body representing
Employees; or
(b) been a party to any transfer of a business or undertaking that has
required or so far as the Vendor is aware will require notification to
or consultation with any trade union, works council, staff association
or other body representing Employees.
25.12 No SF Group Company or Transfer Employee Transferor is proposing to
introduce a share incentive, share option, profit sharing, redundancy,
severance, bonus or other incentive scheme for any of the Employees and no
Employee will be entitled to receive from a SF Group Company retention payments,
enhanced bonus or commission payments on or after Completion (whether as a
consequence of the transaction to which this Agreement relates or otherwise).
25.13 There is not, and during the three years ending on the date of this
Agreement there has not been, any agreement or material arrangement (whether
legally enforceable or not) to which a SF Group Company is or was a party
pursuant and to which an employee or director or former director of the SF Group
Company is or was
Page 162
CONFORMED COPY
interested in any way other than in relation to their contracts of employment or
contracts with other members of the SF Group.
25.14 Only those persons listed in Schedule 2 (Particulars of the SF Group)
are directors of the SF Group Companies (DIRECTORS).
25.15 The Directors are not accustomed to act in accordance with the
instructions of any other person in the fulfilment of their duties as such.
26. INSURANCE
26.1 Except for ABB Group insurances, the Vendor has made available to the
Purchaser details of all material insurances (including any stand-alone PRI
Policies but excluding any policies maintained in connection with the Financial
Assets, the Portfolio Property and the Portfolio Aircraft) maintained by or
covering the SF Business, and:
(a) such insurances are in full force and effect;
(b) the relevant member of the Extended SF Group is not in breach of any of
the warranties, covenants or undertakings (including those which relate
to confidentiality) contained therein; and
(c) neither the Vendor, nor any member of the Extended SF Group or any
Designated Vendor has been notified by the relevant insurer that there
are circumstances which would permit liability under such insurance
being avoided by the insurers.
26.2 There are no material outstanding claims affecting the SF Business
under, or in respect of the validity of, any such policies of insurance
maintained by or affecting a material part of the SF Business and the Vendor is
not aware of any event having occurred which gives rise to a material claim
under any of such policies.
27. PENSIONS/RETIREMENT BENEFITS
27.1 Definitions used in this paragraph 27 are set out in paragraph 27.16
below.
27.2 All Vendor Plans are listed in the Disclosure Letter. No SF Group
Company or Transfer Employees Transferor has announced, or is aware of, any
proposal to enter into or establish any arrangement not listed in the Disclosure
Letter providing Retirement Benefits to or in respect of the Employees.
27.3 The Vendor or its advisers have disclosed to the Purchaser or its
advisers, including Xxxxxx Xxxxx:
(a) copies of all trust deeds and rules or other governing scheme
documentation containing the provisions currently governing each Vendor
Plan which are complete, accurate and up-to-date at the date of this
Agreement; and
(b) lists showing the current salary, age and length of service of Employees
who are members of each Vendor Plan which, so far as the Vendor is
aware, are
Page 163
CONFORMED COPY
complete and accurate and up-to-date as at the dates shown in the
Disclosure Letter.
27.4 The Vendor Plans have at all times and in all material respects been
maintained in compliance with their terms and with all applicable laws and
regulations. In relation to Vendor Plans that are not Stand Alone Plans this
Warranty is given only in relation to compliance with terms and applicable laws
and regulations in so far as they relate to the Transfer Employees. There are no
legal proceedings or other disputes outstanding, or threatened in writing
concerning the Vendor Plans.
27.5 The SF Group Companies have at all times and in all material respects
complied with all applicable laws and regulations relating to the Vendor Plans
and state pensions arrangements (including, for the avoidance of doubt,
termination indemnities). All Transfer Employees Transferors have, in respect of
the Transfer Employees and the administration of the Vendor Plans, at all times
and in all material respects complied with all applicable laws and regulations
relating to the Vendor Plans and state pensions arrangements (including, for the
avoidance of doubt, termination indemnities).
27.6 As at the date of this Agreement no amount due from the SF Group
Companies or from any Transfer Employees Transferor or the Employees in respect
of the participation of:
(a) the Employees; or
(b) the former employees of the SF Group Companies
in the Vendor Plans or state pension arrangements (including, for the avoidance
of doubt, termination indemnities), is unpaid.
27.7 Each Vendor Plan which is a Defined Contribution plan is listed in the
Disclosure Letter.
27.8 Each Stand-Alone Plan is listed in the Disclosure Letter.
27.9 Each Vendor Plan administered by a SF Group Company or Transfer
Employees Transferor is listed in the Disclosure Letter.
27.10 Each Vendor Plan which is unfunded is listed in the Disclosure Letter.
27.11 [Intentionally blank]
27.12 No SF Group Company or Transfer Employees Transferor has at any time had
any obligation to contribute to any "multiemployer plan" as defined in Section
3(37) of the US Employee Retirement Income Security Act of 1974, as amended
(ERISA) in the USA.
27.13 Each Vendor Plan which is intended to be tax-qualified under Section
401(a) of the US Internal Revenue Code of 1986, as amended, (the CODE) has been
determined by the US Internal Revenue Service (the IRS) to be so qualified or
has
Page 164
CONFORMED COPY
timely applied for such a determination letter and such determination has not
been modified, revoked or limited, and no circumstances have occurred that would
adversely affect the tax-qualified status of any such Vendor Plan.
27.14 No Vendor Plan, established in the USA, that is subject to Part 3 of
Subtitle B of Title 1 of ERISA or Section 412 of the Code has an outstanding
"accumulated funding deficiency" (as defined therein), whether or not waived. No
Vendor Plan, established in the USA, that is subject to Title IV of ERISA, has
incurred or expects to incur any liability thereunder (other than premiums and
contribution obligations incurred in the ordinary course and to be paid when
due) or experienced a "reportable event" as defined under Section 4048(c) of
ERISA (other than one for which all otherwise applicable notice requirements
have been waived) that would impose any liabilities with respect to Employees
under the Vendor Plan.
27.15 As of the date of Completion, no Stand Alone Plan based in the United
States shall cover or otherwise benefit any individuals other than current or
former employees of a SF Group Company.
27.16 In this paragraph 27:
DEFINED CONTRIBUTION shall bear the same meaning as it bears in Schedule 6
(Pensions) to this Agreement;
FUNDED in relation to any Vendor Plan, means that assets are accumulated in
respect of that plan before the benefits start being paid. For the purposes of
this definition, ASSETS shall exclude any accounting or internal balance sheet
provision;
RETIREMENT BENEFITS means any pension, allowance, lump sum, gratuity or similar
benefit provided or to be provided on or after retirement, death or disability
in respect of an employee's employment. This includes termination indemnities.
It does not include:
(a) benefits provided under an arrangement the sole purpose of which is to
provide benefits on the accidental injury or death of an employee; or
(b) post-retirement medical and dental benefits; or
(c) other healthcare or welfare benefits.
Notwithstanding the foregoing, in respect of arrangements in the USA, the above
definition of RETIREMENT BENEFITS shall be limited to benefits payable or
prospectively payable to Employees or former employees of the SF Group
Companies;
STAND ALONE PLAN bears the same meaning as in Schedule 6 (Pensions);
VENDOR PLAN means each arrangement, plan or agreement (whether funded or
unfunded) under which the SF Group Companies, or, in respect of the Transfer
Employees, any Transfer Employees Transferor, has contributed at any time prior
to the date of this Agreement, or in respect of which any SF Group Company or,
in respect of the Transfer Employees, any Transfer Employees Transferor, has or
may
Page 165
CONFORMED COPY
have a liability or obligation for the provision of any Retirement Benefits but
excluding any state plan or agreement and references to any Vendor Plan shall be
construed as also referring to its trustees, fiduciaries, managers and
administrators (as applicable); and
UNFUNDED, in relation to any Vendor Plan, means that no assets are accumulated
under that plan before the benefits start being paid. For the purposes of this
definition, ASSETS shall exclude any accounting or internal balance sheet
provision.
28. ENVIRONMENTAL MATTERS
PERMITS
28.1 Each relevant member of the Extended SF Group has obtained and is, and
has for the last three years been, in material compliance with the terms and
conditions of all Environmental Permits and all Environmental Permits are in
full force and effect where such Environmental Permits are required to be held
by a relevant member of the Extended SF Group.
28.2 No relevant member of the Extended SF Group has received any written
notification, that any Environmental Permit it holds is or is likely to be
revoked, suspended, not renewed, or to be materially amended or re-issued in
each case to contain materially more onerous conditions.
FORMER PROPERTIES
28.3 No member of the Extended SF Group has or will have any actual or
contingent liability in respect of Environmental Matters in relation to the
Former Properties in respect of its ownership or occupation prior to Completion.
COMPLIANCE
28.4 Each member of the Extended SF Group (and each of its officers,
employees and agents (to the extent they are acting within their authority and
in accordance with the instructions given to them in relation to the relevant SF
Business) in the course of its business) materially complies and has materially
complied with all applicable Environmental Law and has not received any
notification under Environmental Law requiring it to take or omit to take any
action.
ENVIRONMENTAL PROCEEDINGS
28.5 Neither the Vendor (in relation to the SF Business) nor any member of
the Extended SF Group is involved, nor has it during the two years ending on the
date of this Agreement been involved, in a civil, criminal, arbitration, or
administrative, regulatory proceeding, suit or action in relation to
Environmental Matters.
28.6 No written notice has been received by the relevant member of the
Extended SF Group threatening such action, suit or proceedings as are referred
to in paragraph 28.5 where such action, suit or proceedings has not yet been
commenced.
Page 166
CONFORMED COPY
REPORTS
28.7 All formal environmental audit reports and health and safety reports
concerning the Properties that have been prepared by external environmental
consultants at the request of any member of the SF Group or the ABB Group or
otherwise by any member of the Extended SF Group or the ABB Group in the past 5
years and which are in its possession or control of any member of the Extended
SF Group or the ABB Group have been disclosed.
CONTAMINATED LAND
28.8 The condition of any soil or groundwater under any of the Substantial
Properties (or under any adjoining property where its condition has been
affected by that of such Substantial Properties) is not contaminated to an
extent that it could lawfully give rise to a formal remediation requirement
being imposed by a Competent Authority lawfully exercising its powers under
Environmental Law in circumstances where the cost of any such requirement could
lawfully be recovered from any member of the Extended SF Group.
ASBESTOS
28.9 The condition prior to Completion of asbestos or asbestos-containing
materials that have been present within any of the Properties is not such as is
likely to have resulted in exposure of any person present on such Properties to
asbestos prior to Completion.
ASSETS
28.10 No Portfolio Property vested in any member of the Extended SF Group (or
which will be so vested further to a Finance Agreement) includes any boat or
ship.
OFF-SITE WASTE DISPOSAL
28.11 No member of the SF Group has any actual or contingent material
liability arising from any off-site disposal or recycling of Hazardous
Substances.
29. REAL PROPERTIES - GENERAL
EXTENT
29.1.1 The Properties comprise all of the land and premises vested in, occupied
or used by, or in the possession of, the SF Group or in relation to
which a SF Group Company has any right or interest. Each relevant SF
Group Company is the sole owner of the SF Group Properties which (if
applicable) are duly registered with the relevant land registry.
29.1.2 Save for rights of renewal of any relevant lease, licence or tenancy
implied by the law of the relevant jurisdiction, the information in
respect of the SF Group Properties set out in Part A of Schedule 5 (The
Properties) is true, accurate and not misleading in any material
respect.
Page 167
CONFORMED COPY
TITLE
29.2.1 The SF Group has good and marketable title to all of the properties set
out in Part A of Schedule 5 (The Properties).
29.2.2 There is no defect in the title that the relevant SF Group Company has
to the SF Group Properties which will prevent the continued carrying on
of the existing business by the SF Group Companies in the same manner as
at the date hereof.
APPURTENANT RIGHTS
29.3 So far as the Vendor is aware, there is appurtenant to the SF Group
Properties all necessary rights, easements, privileges and liberties material to
the existing use of the SF Group Properties. Other than on the termination of
any relevant lease, licence or tenancy which is vested in a SF Group Company,
none are restricted to specified hours or other limitation and none are capable
of being interrupted or terminated. All are held without requirement for payment
(other than payments under the relevant lease, licence or tenancy) or consents
from any third party.
OUTGOINGS
29.4 The SF Group Properties are not subject to outgoings other than the
usual taxes, utility charges and in the case of SF Group Properties held under a
lease, tenancy or licence, the rent, service charge and insurance premiums
payable under the lease, licence or tenancy.
ADVERSE INTERESTS
29.5 The title of the SF Group to any of the SF Group Properties or any of
their title deeds is not subject to an Encumbrance. SF Group has exclusive
vacant possession of the SF Group Properties and has not agreed to part with
possession or occupation of the whole or any part of any SF Group Property.
PERMITS
29.6 So far as the Vendor is aware, the SF Group Properties have from the
relevant authorities all necessary authorities, rights, permissions and consents
required under planning and zoning legislation for their existing use.
PROCEEDINGS
29.7.1 There are no legal proceeding(s) concerning the SF Group Properties or
any of them and, so far as the Vendor is aware, none are pending or
threatened. To the best of the Vendor's knowledge, information and
belief, no fact or circumstance exists which is likely to give rise to
any such proceeding(s).
29.7.2 The Vendor has received no written notice of any outstanding notice,
judgment, order, decree, arbitral award or decision of a court,
tribunal, arbitrator or governmental agency affecting the SF Group
Properties or any of them.
Page 168
CONFORMED COPY
COMPULSORY ACQUISITION
29.8 The Vendor has received no written notice of a resolution for compulsory
acquisition of the SF Group Properties or any of them by a local or other
authority.
CONDITION
29.9 No SF Group Company is in material breach of a covenant or statutory
provision relating to the state and condition of the SF Group Properties which
requires the expenditure of any material sum; nor, so far as the Vendor is
aware, is there any material defect or deficiency in the state and condition of
any building of which any SF Group Property forms the whole or part with respect
to the cost of which the relevant SF Group Company is obliged to make a material
contribution.
LEASEHOLD OR LICENSED PROPERTIES
29.10.1 Where the SF Group holds the SF Group Properties or any of them under a
lease, tenancy or licence, no landlord or licensor has made any written
complaint to the relevant SF Group Company concerning any material
breach by the SF Group of the terms of any such lease, tenancy or
licence.
29.10.2 Save for any rights implied by the law of the relevant jurisdiction, no
landlord of a SF Group Property may bring the term of any lease or
tenancy to an end before the expiry of the lease or tenancy by effluxion
of time (except due to tenant default or insolvency).
29.10.3 In respect of all of the properties (save for the property numbered 20)
set out in Part A of Schedule 5 (The Properties), each lease, tenancy or
licence is in a form and on terms that would be acceptable to a prudent
transferee/assignee of the relevant lease tenancy or licence for use for
the purposes of the existing business carried out as at the date hereof.
OUTSTANDING PROPERTIES LIABILITIES
29.11 Except in relation to the Properties and except in relation to any
Finance Agreement SF Group has no liability arising out of a conveyance,
transfer, lease, tenancy, licence, agreement or other document relating
to land, premises or an interest in land or premises.
Page 169
CONFORMED COPY
SCHEDULE 4
PURCHASER WARRANTIES
1.1 Each of the Purchaser and the Designated Purchasers is a company duly
incorporated and organised and validly existing under the laws of its
jurisdiction with the requisite power and authority required to enter into and
perform fully, and has taken all necessary corporate action to authorise the
execution and performance of, its obligations under this Agreement or, where
relevant, the Transaction Documents in accordance with their terms.
1.2 Neither the entry into this Agreement nor the implementation of the
Proposed Transaction will result in:
(a) a violation or breach of any provision of the memorandum and articles of
association, bye-laws or equivalent constitutional documents of the
Purchaser or any Designated Purchaser; or
(b) a violation or breach of any applicable laws or regulations applicable
to the Purchaser or any Designated Purchaser.
1.3 This Agreement will, when executed, constitute valid and legally binding
obligations of the Purchaser and the Designated Purchasers, enforceable in
accordance with their terms, save that this is qualified by:
(a) applicable laws relating to bankruptcy, insolvency, insolvent
administration, liquidation or other similar laws affecting creditors'
rights generally;
(b) the possible application of laws other than those governing the relevant
contract or document;
(c) general principles of equity and the application of equitable remedies;
and
(d) the limitation of actions by prescription.
1.4 No order has been made, petition presented or meeting convened for the
purpose of considering a resolution for the winding up of the Purchaser or any
Designated Purchaser or for the appointment of any provisional liquidator in
relation to the business of the Purchaser or any Designated Purchaser. No
petition has been presented for an administration order to be made in relation
to the Purchaser or any Designated Purchaser, and no receiver (including any
administrative receiver) has been appointed in respect of the whole or any part
of the assets and/or undertaking of the Purchaser or any Designated Purchaser.
Page 170
CONFORMED COPY
SCHEDULE 5
THE PROPERTIES
PART A
SF GROUP PROPERTIES
DATE OF
PROPERTY OCCUPYING COMPANY/ LANDLORD (IF LEASE (IF
NO. ADDRESS TENANT APPLICABLE) TENURE APPLICABLE) PARTIES TO THE LEASE
-----------------------------------------------------------------------------------------------------------------------------------
1 Xxxxxx Resonia Leasing AB Big Bowl Leasehold 20 September Big Bowl
Jernbanevej Underholdningscenter (Lease 2001 UnderholdningscenterA/S
31, Xxx 4, A/S contract and Resonia Leasing AB
Valby, (1808 MB)
Xxxxxxxxxx,
Xxxxxxx
0 Borupvang No.5C Resonia Leasing AB Xerox Occupation 1 April 2001 Xerox A/S and Resonia
DK2750, A/S pursuant to Xerox Finland
Ballerup, co-operation
Denmark agreement
3 2 offices at Resonia Leasing AB Xxxxxx Xxxxxxxx Lease 27 September Xxxxxx Xxxxxxxx
Fredrikinkatu Kiinteisot Oyj (If ABB 2001 Kiinteistot Oyj and
47 FIN00100 ownership is Resonia Leasing AB
Helsinki, terminated a
Finland new owner must
put up a bank
guarantee)
4 Upseerinkatu .2 Resonia Leasing AB Xerox Occupation 1 April 2001 Xerox Oy and Resonia
FIN02600 Oy pursuant to Leasing AB
Espoo, Finland co-operation
agreement
RENT
(EXCLUSIVE OF
TAXES,
INSURANCE,
SERVICE
CHARGE AND
PROPERTY OTHER
NO. ADDRESS LEASE TERM PAYMENTS) EXISTING USE
------------------------------------------------------------------------------------------
1 Xxxxxx 1 February DDK 55,416 Offices
Xxxxxxxxxxx 0000 to per month
31, Xxx 4, 1 February
Valby, 2007
Xxxxxxxxxx,
Xxxxxxx
0 Borupvang No.5C 5 years but DKK 70.000 Offices
DK2750, may be per month
Ballerup, extended
Denmark under a
co-operative
agreement
3 2 offices at 1 January EURO 9,560 Offices
Fredrikinkatu 2002 to 30 per month
47 FIN00100 September 2004
Helsinki,
Finland
4 Upseerinkatu .2 5 years EURO 1,678.4 per Offices and 2
FIN02600 subject to month car parking
Espoo, Finland extension spaces
Page 171
DATE OF
PROPERTY OCCUPYING COMPANY/ LANDLORD (IF LEASE (IF
NO. ADDRESS TENANT APPLICABLE) TENURE APPLICABLE) PARTIES TO THE LEASE
-----------------------------------------------------------------------------------------------------------------------------------
Upseerinkatu .2 Resonia Leasing AB Xerox Leasehold 1 September Xerox Oy and Resonia
FIN02600 Oy 2001 Leasing AB
Espoo, Xxxxxxx
0 Xxx Xxxxxxxx, SIB Leasing SpA and sguva Service SpA Service 1 March 1999 sguva Service SpA and SIB
25/27 Segrate, shared occupation Agreement Leasing SpA
Milan, Italy with ABB Structured
Finance srl as a
group company
6 Building 3a, Xerox Noleggi SpA Xerox SpA Sub-lease 1 December Xerox SpA and Xerox
0xx Xxxxx, Xxx 0000 Xxxxxxx XxX
Xxxxxx xxx
Xxxxxxxx, 00-0
x Xxxxx, Xxxxx
7 Via E, Fico 32, SIB Leasing Spa and sguva Service SpA Domiciliation 1 March 1999 sguva Service SpA and SIB
Sestri shared occupation Contract Leasing SpA
Levante, Genoa with ABB Structured
Italy Finance srl as a group
company (pursuant to
an internal costs
sharing agreement)
8 Radhusgaten 7B, Resonia Leasing AB Xxxx Xxxx Leasehold 8 October Xxxx Xxxx Eiendomsselskat
Oslo, Norway Eiendomsselskap ASA 2001 ASA and Resonia Leasing AB
9 Postboks 452, Resonia Leasing AB Xerox Occupation 1 April 2001 Xerox A/S and Resonia
N-1327, A/S pursuant to Xerox Norway
Lysaker, Oslo, co-operation
Norway agreement
RENT
(EXCLUSIVE OF
TAXES,
INSURANCE,
SERVICE
CHARGE AND
PROPERTY OTHER
NO. ADDRESS LEASE TERM PAYMENTS) EXISTING USE
------------------------------------------------------------------------------------------
Upseerinkatu .2 1 September EURO 1,678.4 per Offices and 2
FIN02600 2001 to 30 month car parking
Espoo, Finland September 2006 spaces
5 Via Barracca, Open 1.033 Euros Non current
25/27 Segrate, per annum file store
Milan, Italy
6 Building 3a, 1st December 58.209 euros Offices
4th Floor, Via 2007 but can per annum
Medici del be terminated
Vascello, 26-3 by either
a Milan, Italy party on not
less than 3
months' notice
7 Via E, Fico 32, Open 3,615 euros Offices
Sestri per annum (Secondary
Levante,Genoa legal site)
Italy
8 Radhusgaten 7B, Expires 30 NOK 136,399 Offices
Oslo, Norway April 2006 per month
9 Postboks 452, 5 years but NOK 37.600 Offices
N-1327, may be per month
Lysaker, Oslo, extended
Norway under a
co-operative
agreement
Page 172
DATE OF
PROPERTY OCCUPYING COMPANY/ LANDLORD (IF LEASE (IF
NO. ADDRESS TENANT APPLICABLE) TENURE APPLICABLE) PARTIES TO THE LEASE
-----------------------------------------------------------------------------------------------------------------------------------
10 Trelleborg Ostersjoterminalen AB Head landlord is ABB Freehold 13 June 2000 In respect of the
Tankbilen 3, (sub-let to Pergo AB) Sodra KB occupational lease
Trelleborg, (freeholder). Pergo granted out of the
Sweden AB's landlord is freehold interest - ABB
Ostersjoterminalen AB Sodra KB and
Xxxxxxxxxxxxxxxxxx XX
00 Xxxxxx XXX Structured Finance AB ABB Financial Sub-Lease 4 July 2002 ABB Financial Services AB
Jarlsgatan, (and occupied by ABB Services AB (publ) (publ) and ABB Structured
57B, 11396, Credit Finans AB, ABB New Finance AB
Stockholm, Finans AB, ABB Renting AB,
Sweden ABB Sodra KB, ABB TD Head Landlord is
Finans AB, ABB Rental AB, Fastighetsforvaltning
ABB Structured Finance Sporvagnen 4 KB
Also short-term Sweden AB and ABB CSC
parking spaces Finance AB as group
leased from companies)
WASA
Fastigheter AB
12 Xxxxxxxxxxx 0, Xxxxxxx Leasing AB Immanuelskyrkans, Leasehold 5 September Immanuelskyrkans,
Stockholm, (publ) Forvaltning AB c/o (Lease 2001 Forvaltning AB (publ) /AB
Sweden Fastighets AB Contract No. Fastighets AB Probitasand
Probitas 120701) Resonia Leasing AB
13 Thulehuset 1 Resonia Leasing AB (publ) Fastighetsaktiebolag Leasehold 21 November Fastighetsaktiebolag
Xxxxxxxxx 00, Xxxxxxxxxx (xxxx) (Lease 0000 Xxxxxxxxxx (publ) and
903 26 Umea, Contract No. Resonia Leasing AB (publ)
Sweden (Floor 1) 174-2009)
14 Thulehuset Resonia Leasing AB (publ) Fastighetsaktiebolag Leasehold 12 May 1999 Fastighetsaktiebolag
Xxxxxxxxx 00, Xxxxxxxxxx (xxxx) (Lease Norrporten (publ) and
00000, Xxxx, Xxxxxxxx Xx. Xxxxxxx Xxxxxxx XX (publ)
Sweden (floors 174-2022)
7-10)
RENT
(EXCLUSIVE OF
TAXES,
INSURANCE,
SERVICE
CHARGE AND
PROPERTY OTHER
NO. ADDRESS LEASE TERM PAYMENTS) EXISTING USE
------------------------------------------------------------------------------------------
10 Trelleborg 15 years from SEK 1,195,603 Warehouse and
Xxxxxxxxx 0, 0 Xxxxx 0000 xxxxxxxxx
Xxxxxxxxxx, xxxxxx
Xxxxxx
11 Birger From 4 July SEK 3.468.000 Offices and
Xxxxxxxxxx, 0000 until 30 per annum parking lots
57B, 11396, September
Stockholm, 2003 but can
Sweden be terminated
by either
party giving
Also short-term 9 months'
parking spaces notice
leased from
WASA
Fastigheter AB
12 Xxxxxxxxxxx 0, 0 October SEK 253.177 Offices
Stockholm, 2001 to 30 per quarter
Sweden September 2004
13 Thulehuset 1 1 January SEK 103.880 Offices
Storgatan 38, 2001 to 31 per quarter
903 26 Umea, December 0000
Xxxxxx (Floor 1)
14 Thulehuset 1 July 1999 SEK 326.083 Offices
Storgatan 38, to 30 June per quarter
00000, Xxxx, 0000
Xxxxxx (floors
7-10)
Page 173
DATE OF
PROPERTY OCCUPYING COMPANY/ LANDLORD (IF LEASE (IF
NO. ADDRESS TENANT APPLICABLE) TENURE APPLICABLE) PARTIES TO THE LEASE
-----------------------------------------------------------------------------------------------------------------------------------
15 Thulehuset Resonia Leasing AB (publ) Fastighetsaktiebolag Leasehold 7 February Fastighetsaktiebolag
Xxxxxxxxx 00, Xxxxxxxxxx (xxxx) (Lease 0000 Xxxxxxxxxx (xxxx) and
00000, Xxxx, Xxxxxxxx Xx. Xxxxxxx Xxxxxxx XX (publ)
Sweden (storage 174-2045)
room in
basement)
16 Thulehuset Resonia Leasing AB (publ) Fastighetsaktiebolag Fastighetsaktiebolag
Xxxxxxxxx 00, Xxxxxxxxxx (xxxx) Norrporten (publ) and
00000, Xxxx, Xxxxxxx Xxxxxxx XX (publ)
Sweden (Floor 5)
17 Kanalvagen Resonia Leasing AB Xerox Occupation 1 April 2001 Xerox AB and Resonia
No.10A, Infra AB pursuant to Xerox Sweden
City 194061, co-operation
Stockholm agreement
18 Suite 401C, One ABB Energy Capital LLC One Research Drive Leasehold 27 July 2000 Flanders Westborough (as
Research Drive, (sublet to ABB Structured Associates LLC predecessor in interest
Westborough, Finance (Americas) Inc.) to One Research Drive
Massachusetts, Associates LLC) Delaware
USA Inc, and ABB Energy
Capital LLC
19 Part 10th ABB Energy Capital LLC Beacon Energy Sub-Lease Feb 1999 Beacon Energy Corporation
Floor, 2 Oliver Corporation and ABB Energy Capital LLC
Street, Boston, EOP (Prime Xxxxxxxx)
Xxxxxxxxxxxxx,
00000, XXX
00 Xx Xxxxxxxxxx, XXX Credit Holding B.V. N/A Freehold N/A N/A
Le Lavandou,
Var, France
RENT
(EXCLUSIVE OF
TAXES,
INSURANCE,
SERVICE
CHARGE AND
PROPERTY OTHER
NO. ADDRESS LEASE TERM PAYMENTS) EXISTING USE
------------------------------------------------------------------------------------------
15 Thulehuset 1 January SEK 6.551 per Storage
Storgatan 38, 2000 to 31 quarter
90107, Umea, December
Sweden (storage 2002. Lease
room in term extended
basement) 3 years if
not
terminated 9
months before
expiry.
16 Thulehuset Terminates 31 SEK 14.208 Temporary
Storgatan 38, December 2002 per month Offices
00000, Xxxx,
Xxxxxx (Floor 5)
17 Kanalvagen 5 years but SEK 116.36 Offices
No.10A, Infra may be per quarter
City 194061, extended
Stockholm under a
co-operative
agreement
18 Suite 401C, One 15 October $32,837 per Offices
Research Drive, 2000 - 31 month
Xxxxxxxxxxx, Xxxxxxx 0000
Xxxxxxxxxxxxx,
XXX
19 Part 10th 1 March 1999 $13,434 per Offices
Floor, 2 Oliver to 31 May 0000 xxxxx
Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx,
00000, XXX
00 Xx Xxxxxxxxxx, X/X X/X Xxxxxxx
Xx Xxxxxxxx, accommodation
Var, France
Page 174
PART B
TRANSITIONAL SERVICES PROPERTIES
OCCUPYING COMPANY/ LANDLORD (IF
NO. PROPERTY ADDRESS TENANT APPLICABLE) TENURE
----------------------------------------------------------------------------------------------------------------------
21 Part (30 sq.m) Xx Xxxxxxx 00, XXX Structured Finance ABB sro Agreement to
Praha 2 ICO 60202602 (30 sq.m.) occupy (not yet
Czech Republic plus 1 car parking completed)
space
22 Xxx X. Xxxx 0 Xxxxx Xxxxxxxx, XXX Structured Finance srl ABB Group Services Leasehold
Milan, Italy Center srl
23 Xxx Xxxxxxxx 0, Xxxxx, Xxxxx SIB Leasing SpA and shared occupation ABB Solutions SpA Sub-Lease
with ABB Structured Finance srl (small
ticket) as a group company pursuant to
an internal costs sharing agreement
24 Tordenskioldsgate 6, Floors 7 and ABB Credit Finans AB ABB Financial Xxx-Xxxxx
0, 0000, Xxxx, Xxxxxx) Services AS
25 [Intentionally blank] [Intentionally blank] [Intentionally blank] [Intentionally
blank]
26 00xx Xxxxx, Xxx Xxxxxxxx Xxxxx, XXX Structured Finance (Americas) Inc ABB Financial Sub-Lease
000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx, (sublet to ABB Credit Inc.) Services Inc.
CT, XXX
00 Xxxxx 000, 202 Carnegie Ct, ABB Energy Capital LLC ABB Equity Ventures Month to month
Xxxxxxxxx, XX 00000 Inc internal
arrangement
DATE OF
LEASE (IF
NO. PROPERTY ADDRESS APPLICABLE) PARTIES TO THE LEASE LEASE TERM
---------------------------------------------------------------------------------------------------------------
21 Part (30 sq.m) Xx Xxxxxxx 00, Xxxxxxxxxx 00xx
Xxxxx 0 XXX 00000000 (30 sq.m.) October 0000
Xxxxx Xxxxxxxx plus 1 car parking
space
22 Xxx X. Xxxx 0 Xxxxx Xxxxxxxx, 00 Xxxxx 0000 XXX Group Services Center srl 1 January 2002 to 31st
Milan, Italy and ABB Structured Finance srl December 2002
23 Xxx Xxxxxxxx 0, Xxxxx, Xxxxx 2 May 2000 ABB Solutions SpA and SIB 31 March 2004
Leasing SpA
24 Xxxxxxxxxxxxxxxxx 0, Xxxxxx 0 xxx 00 Xxx 0000 XXX Financial Services AS and 1 June 2000 to 00 Xxx
0, 0000, Xxxx, Xxxxxx) XXX Structured Finance AS 2005
25 [Intentionally blank] [Intentionally [Intentionally blank] [Intentionally blank]
blank]
00 00xx Xxxxx, Xxx Xxxxxxxx Xxxxx, 00 July 2002 ABB Financial Services Inc ABB Terminates on 31
000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx, Structured Finance (Americas) December 2002 or upon
CT, USA Inc 2 months' prior notice
27 Xxxxx 000, 000 Xxxxxxxx Xx, XXX Equity Ventures Inc and
Xxxxxxxxx, XX 00000 ABB Energy Capital LLC
RENT (EXCLUSIVE OF
TAXES, INSURANCE,
SERVICE CHARGE
AND OTHER
NO. PROPERTY ADDRESS PAYMENTS) EXISTING USE
-----------------------------------------------------------------------------------------
21 Part (30 sq.m) Na Bojisti 24, EURO 242.4 per sq.m. per year Office
Praha 2 ICO 60202602 (30 sq.m.)
Czech Republic plus 1 car parking Car Park 110 euros per month
space
22 Via L. Lama 1 Xxxxx Xxxxxxxx, 40,143 euros per annum Offices
Milan, Italy
23 Xxx Xxxxxxxx 0, Xxxxx, Xxxxx 98.323 euros per annum Offices
24 Tordenskioldsgate 6, Floors 7 and NOK 875,000 per year Offices, Xxxxxxx
0, 0000, Xxxx, Xxxxxx) and 2 parking lots
25 [Intentionally blank] [Intentionally blank] [Intentionally
blank]
26 11th Floor, One Stamford Plaza, $38,454 per month Offices
000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx,
XX, XXX
27 Xxxxx 000, 000 Xxxxxxxx Xx, $1,000 per month Office
Xxxxxxxxx, XX 00000
Page 175
OCCUPYING COMPANY/ LANDLORD (IF
NO. PROPERTY ADDRESS TENANT APPLICABLE) TENURE
----------------------------------------------------------------------------------------------------------------------
28 1 office, 5th Floor, Burgemeester ABB Credit Holding B.V. ABB Financial Leasehold
Haspelslaan 65, 1181NB, Services Limited
Amstelveen, The Netherlands
29 Part 0xx xxxxx Xxxxxxxx Xxxxxxxx, XXX Structured Finance (a division of ABB Financial Sub-Lease
Xxxxxxxxxxxxxxxx, 00, Xxxxxx, XXX Financial Services Limited) Services Limited
Switzerland
DATE OF
LEASE (IF
NO. PROPERTY ADDRESS APPLICABLE) PARTIES TO THE LEASE LEASE TERM
----------------------------------------------------------------------------------------------------------------
28 1 office, 0xx Xxxxx, Xxxxxxxxxxxx XXX Financial Services Limited Open
Xxxxxxxxxxx 00, 0000XX, and ABB Credit Holdings B.V.
Amstelveen, The Netherlands
29 Part 3rd floor Imperial Building, 1 August 2001 ABB Financial Services Ltd (a Termination on 6
Xxxxxxxxxxxxxxxx, 00, Zurich, division of ABB Financial months' notice but not
Switzerland Services Limited) and ABB before 31 December 2002
Structured Finance
RENT (EXCLUSIVE OF
TAXES, INSURANCE,
SERVICE CHARGE
AND OTHER
NO. PROPERTY ADDRESS PAYMENTS) EXISTING USE
-------------------------------------------------------------------------------------
28 1 office, 5th Floor, Burgemeester US$11,500 per annum Office
Xxxxxxxxxxx 00, 0000XX,
Xxxxxxxxxx, Xxx Xxxxxxxxxxx
29 Part 3rd floor Imperial Building, CHF 121,000 per quarter Offices
Xxxxxxxxxxxxxxxx, 00, Xxxxxx,
Xxxxxxxxxxx 25 car parking
spaces
Archiving
Page 176
CONFORMED COPY
SCHEDULE 6
PENSIONS
PART A
GLOBAL PROVISIONS
DEFINITIONS
1.1 The definitions used in this Schedule are set out in Part B.
HOW THIS SCHEDULE APPLIES
2.1 This Schedule is incorporated into the Agreement at clause 19.
2.2 This Part A shall apply separately in relation to each Vendor Plan and
Stand-Alone Plan, unless otherwise stated.
2.3 To the extent that giving effect to any provision of this Schedule would
be expressly prohibited by the requirements of Local Law, the latter shall
prevail. However, if this applies, or to the extent that any circumstances arise
which are not expressly envisaged by this Schedule, the Vendor and Purchaser
shall each use reasonable endeavours to agree arrangements which are, as far as
legally possible, consistent with the principles and objectives set out in this
Schedule. Subject to this, the mechanics of giving effect to this Schedule shall
be determined by and consistent with the requirements of Local Law.
2.4 Paragraph 3.2 does not apply to US based plans.
RETIREMENT BENEFITS TO BE PROVIDED BY THE PURCHASER
BENEFITS FOR FUTURE SERVICE
3.1 [Intentionally blank]
BENEFITS FOR PRE-PENSION TRANSFER DATE SERVICE
3.2 The Purchaser shall provide (or shall procure that there are provided)
Retirement Benefits for each Transferring Member in respect of pre-Pension
Transfer Date service (subject, in the case of Transferring Members who were
immediately prior to the Pension Transfer Date members of a funded Vendor's
Plan, to receipt of the full Transfer Amount), which are, in the opinion of the
Purchaser's Actuary and agreed with the Vendor's Actuary:
(a) equivalent overall (on the actuarial basis used for calculating the
relevant Transfer Amount, as referred to in paragraph 6.4 or 6.5, as
applicable) to the value of that Transferring Member's Retirement
Benefits immediately before Pension Transfer Date; or
Page 177
CONFORMED COPY
(b) (in the case of a transfer from a Defined Contribution Plan) equal in
value to the Transfer Amount.
CONTINUED PARTICIPATION
4.1 The Vendor undertakes that it will not, and that it will procure that no
ABB Group member will, prior to the Payment Date, amend or terminate any Stand
Alone Plan or any Vendor Plan (in so far as it relates to the Transferring
Employees) without the consent of the Purchaser (not to be unreasonably withheld
or delayed) (unless such measures are required by Local Law) provided always
that the Purchaser agrees to consent to the amendment of any Swiss pension
arrangement to reduce the guaranteed interest rate in that arrangement from 4%
per annum to any lower percentage rate per annum (provided that the rate shall
not be reduced to a rate lower than the rate required under Local Law) should
the Vendor wish to make such an amendment.
4.2 Subject to paragraphs 4.3 and 4.10, where Local Law permits this, the
Vendor shall use all its reasonable endeavours to procure that each SF Group
Company which at Completion participates in a funded Vendor Plan, and any
company in the Purchaser's Group employing Transferring Employees (each such
company being a PARTICIPATING COMPANY), may in relation to the Transferring
Employees employed in any jurisdiction in which there are funded Vendor Plans
from time to time participate in the applicable funded Vendor Plan throughout
the Transitional Period.
4.3 Such participation or continued participation shall be subject to the
regulatory, tax approved or tax qualified status of the Vendor Plan not thereby
being jeopardised. Any Participating Company which wishes to participate in the
Vendor Plans shall enter into such documentation as may be required to enable
such participation which shall include an obligation to comply in all respects
with the provisions of the Vendor Plan. Subject to paragraphs 4.4 to 4.10 below,
the participation of any Participating Company shall be on such terms as the
administrators or trustees of the relevant Vendor Plans require.
4.4 The Purchaser shall ensure that any Participating Company:
(a) pays or procures the payment of the contributions by and in respect of
the Transferring Employees at the rates specified in section 6 of Part C
of this Schedule in accordance with the rules of the Vendor Plan and in
any event no later than 10 days after the end of the month to which such
contributions relate (unless otherwise agreed with the Vendor) and will
pay contributions at a higher rate than that specified in section 6 of
Part C of this Schedule with effect from 45 days after it or a member of
the Vendor's group receives notice of the proposed change, provided that
if the Participating Company receives notification of a change in the
level of contributions payable to the Vendor Plan the Participating
Company may terminate its participation in the Vendor Plan by providing
written notice to the Vendor, the Vendor Plan and the relevant Vendor
Plan administrator and/or trustee at least 30 days before the change in
contributions is to become effective.
Page 178
CONFORMED COPY
(b) complies in all other respects with the provisions of the Vendor Plan
and the obligations imposed on an employer in relation to the Vendor
Plan by Local Law;
(c) does not exercise any power, right or discretion conferred on it by the
Vendor Plan or, in relation to the Vendor Plan, by or under any
legislation without the prior written consent of the Vendor (such
consent not to be unreasonably withheld or delayed);
(d) does not do anything or omit to do something whereby the regulatory, tax
approved or tax qualified status of the Vendor Plan would or might be
prejudiced or jeopardised; and
(d) subject to (a) above, gives written notice to the Vendor Plan
terminating its participation with effect from the end of the
Transitional Period.
4.5 Subject to paragraph 4.6, the Purchaser undertakes and shall procure
that the SF Group Companies and each member of the Purchaser's Group shall take
no action and give no assistance (directly or indirectly) to any person in any
way on or after the date of this Agreement, which would or might result in an
increase in the assets to be transferred from or in respect of any Vendor Plan
pursuant to this Schedule. The Purchaser's obligations under this paragraph
apply both before and after the time when the relevant Transferring Employees
leave pensionable service in the relevant Vendor Plan.
4.6 Where there is a Transitional Period, with effect from the Completion
Date, the Purchaser undertakes that neither the Purchaser nor any member of the
Purchaser's Group will take any action or exercise or permit the exercise of any
right, power or discretion which would or might have the consequence of
increasing the cost to a member of the ABB Group or to any Vendor Plan of the
provision of Retirement Benefits to or in respect of any Transferring Employee
or any former employee, whether by creating new liabilities or increasing
existing liabilities in a Vendor Plan or otherwise, without the Vendor's prior
written consent (such consent not to be unreasonably withheld or delayed), with
the exception that the annual pensionable salary of any Transferring Employee
may be increased by up to the percentage salary increase assumption in the
Assumptions (pro-rated to reflect the length of the relevant Transitional
Period) (such percentage being reduced by the percentage amount of any increase
awarded since the last increase in annual pensionable salary awarded prior to
the Completion Date but effective after the Completion Date) or a greater
percentage agreed in writing in advance by the Vendor and Purchaser.
4.7 If any member of the Purchaser's Group does anything, or omits to do
something, which results in an increase in the liabilities of a Vendor Plan in
respect of the Transferring Employees, the Purchaser shall procure that an
amount is paid to the Vendor Plan, which is agreed by the Vendor's Actuary and
the Purchaser's Actuary (in the event they fail to agree, the matter shall be
referred to the Independent Adjudicator under paragraph 10 of this Schedule),
equal to the capital value of the additional liability (by reference to the
Assumptions) (the SPECIAL CONTRIBUTION), within fourteen days of certification,
together with interest on the amount at two per
Page 179
CONFORMED COPY
cent above the Interest Rate in respect of the period from fourteen (14) days
after the agreement of the Special Contribution to actual payment of the Special
Contribution. If and to the extent that the Special Contribution is not paid
before the payment of the Transfer Amount the agreed amount will be deducted
from and reduce the Transfer Amount for all purposes under this Schedule.
4.8 The Purchaser shall procure that each Participating Company agrees that
the Vendor (or a company nominated by the Vendor (the RELEVANT COMPANY)) may
make all decisions and exercise all discretions in relation to the Vendor Plan
envisaged by or desirable under the provisions of the Vendor Plan or Local Law
as though the Vendor (or the relevant company) were the sole employer
participating in the Vendor Plan. While any Participating Company continues to
participate in a Vendor Plan, the Purchaser shall procure that each such
Participating Company will in relation to the Vendor Plan:
(a) exercise no right or discretion conferred on it by or under the
provisions of the Vendor Plan or Local Law without the prior written
consent of the Vendor (such consent not to be unreasonably delayed or
withheld);
(b) exercise each right or discretion conferred on it by or under the
provisions of the Vendor Plan or Local Law as directed from time to time
in writing by the Vendor;
(c) from time to time execute all deeds, documents, agreements, consents or
approvals for the purpose of complying with its obligations under
sub-paragraphs (a) or (b) above as may be considered necessary or
desirable by the Vendor;
(d) co-operate with the Vendor and the Vendor Plan in providing information
about, and access to, its employees in relation to the administration of
the Vendor Plan from time to time; and
(e) if requested by the Vendor, execute a deed irrevocably appointing the
Vendor (or the relevant company) as its attorney to execute (in the name
of the Participating Company or otherwise) from time to time any of the
deeds, documents, agreements, consents or approvals specified in
paragraph (c) above.
The Vendor (or the relevant company, as appropriate) may exercise the
authorities and discretions envisaged by this paragraph in its absolute
unfettered discretion and in its own interests. Subject to Local Law, the
Purchaser shall procure that each Participating Company accepts that the Vendor
(or the relevant company, as the case may be) owes no duty or responsibility to
any of the Participating Companies in relation to the exercise of the
authorities and discretions envisaged as conferred on the Vendor (or the
relevant company) by this paragraph.
4.9 The Purchaser shall procure that each Participating Company shall do
everything in its power (and co-operate with the Vendor and the relevant Vendor
Plan, as requested by them) to ensure that all of its employees cease to be in
pensionable service under the Vendor Plan by the end of the Transitional Period.
Page 180
CONFORMED COPY
4.10 The Vendor shall have power to terminate the participation of any
company in a Vendor Plan:
(a) with one month's notice, if the relevant company or the Purchaser is, in
the Vendor's opinion acting in good faith, in breach of paragraphs 4.3 to 4.9 or
any material provision of a Vendor Plan; and
(b) with less than one month's notice or with immediate effect, where the
Vendor reasonably believes that the tax approved, favoured or qualified status
of the Vendor Plan will not continue unless the participation of that company is
terminated expeditiously.
4.11 Notwithstanding any other provision of this Schedule, the Purchaser
shall meet all costs associated with any member of the Purchaser's Group
participating, pursuant to paragraphs 4.2 to 4.10 above, in plans established in
the USA.
PURCHASER PLANS
5.1 This paragraph 5 shall not apply in relation to Stand-Alone Plans.
5.2 The Purchaser shall before, and with effect from a date no later than,
the Pension Transfer Date establish or nominate one or more plans, schemes,
funds or arrangements to provide Retirement Benefits for and in respect of the
Transferring Employees. Where it is envisaged under the provisions of this
Schedule that there may be a transfer of assets from a tax approved, favoured or
qualified Vendor Plan to a Purchaser Plan so established or nominated, that
Purchaser Plan shall have tax approved, favoured or qualified status in the
relevant jurisdiction, and, where a transfer of assets from a Vendor Plan is
envisaged pursuant to this Schedule, the Purchaser Plan shall be capable of
accepting such transfer of assets from the relevant Vendor Plan without
prejudicing that Vendor Plan's tax approved, favoured or qualified status (if
any).
5.3(a) At least thirty days before the Pension Transfer Date or, where the
Pension Transfer Date is the Completion Date, at least ten Business Days
before the Completion Date, the Purchaser shall send all Transferring
Employees with Retirement Benefits a notice (the EMPLOYEE NOTICE)
setting out particulars of the Purchaser Plan under which it is proposed
that Retirement Benefits are to be provided in accordance with this
Schedule. No Employee Notice shall be issued by the Purchaser without
the Purchaser having given the Vendor six Business Days to review such
Employee Notices and to discuss and consult with the Purchaser over the
wording of those Employee Notices.
(b) Where membership of the relevant Purchaser Plan for service on and from
Pension Transfer Date is subject to the relevant Employee consenting or
not objecting to such membership, the Employee Notice shall include an
offer to each such Employee of membership of the relevant Purchaser
Plan.
(c) If the Purchaser so requests in respect of any Vendor Plan, the Transfer
Amount shall be calculated in accordance with paragraph 6.4 on the
assumption that all Transferring Employees employed at the Pension
Transfer
Page 181
Date become Transferring Members and the Vendor's Actuary shall provide
for agreement by the Purchaser's Actuary a breakdown of the proportion
of the calculated Transfer Amount applicable to each Transferring
Employee. Notwithstanding this paragraph (c), the Transfer Amount for
all of the purposes of this Schedule (including the Transfer Amount
actually payable under and subject to the terms of this Schedule) shall
be calculated in relation to Transferring Members only.
(d) Where Local Law does not provide for an automatic transfer in respect of
the Past Service Benefits of Transferring Employees as a result of the
transactions envisaged by this Agreement, and where Local Law permits
and this Schedule envisages a transfer in respect of the Past Service
Benefits of the Transferring Employees, then not later than 60 days
after the Pension Transfer Date a second notice (in a form agreed in
advance by the Vendor, to the extent the notice relates to a discharge
of liability for the Vendor Plan that is to make transfer, such
agreement not to be unreasonably withheld or delayed) (the PAST SERVICE
NOTICE) shall be sent to each Transferring Employee offering each such
Employee (subject to accepting the offer of membership referred to in
(b) above) the option to transfer his Past Service Benefits into the
relevant Purchaser Plan on terms which comply with paragraph 3.2.
5.4 No Transferring Employee's membership of the Purchaser Plan in relation
to service on and after Completion shall be conditional upon his consenting or
not objecting to a transfer in respect of his Past Service Benefits from the
relevant Vendor Plan, unless Local Law requires such a condition.
PRINCIPLES GOVERNING THE TREATMENT OF RETIREMENT BENEFITS
6.1 The principles set out below in this paragraph 6 of this Schedule shall
apply to the treatment of the Retirement Benefits of Transferring Employees
under this Schedule, and shall be applied in accordance with and subject to the
following paragraphs of this Schedule.
CASH PAYMENTS TO TRANSFERRING EMPLOYEES
6.2 Where a Transferring Employee is entitled on completion of the
transactions contemplated by this Agreement to elect to receive a cash payment
in respect of his Past Service Benefits and does so elect, or where the Vendor
decides with the Purchaser's agreement to offer the Transferring Employee an
option to receive such cash payment and the Transferring Employee exercises this
option, there shall be no transfer of assets or cash under paragraphs 6.4 or 6.5
in respect of that Transferring Employee's Past Service Benefits and paragraph
3.2 of this Schedule shall not apply in respect of that Transferring Employee.
WHERE NO TRANSFER PAYMENT IS TO BE MADE
6.3 Without prejudice to paragraph 6.2, there shall be no transfer of assets
or cash under paragraphs 6.4 or 6.5 in respect of the Past Service Benefits of
any Transferring Employee who as at the day before Completion is a member of a
Vendor Plan in the USA or Finland (in respect of non-Resonia Transferring
Employees) (or such other
Page 182
CONFORMED COPY
Vendor Plan as the Vendor and Purchaser may agree, subject to the requirements
of Local Law, no later than six weeks prior to Completion), and paragraph 3.2 of
this Schedule shall not apply in respect of each such Transferring Employee.
Instead, except with respect to the ABB Inc. Cash Balance Pension Plan, subject
to paragraph 6.9, each such Transferring Employee shall be treated for the
purposes of Retirement Benefits only as leaving the employment of the ABB Group
with effect on and from Completion, and shall have the same options under the
rules of the relevant Vendor Plan as would have applied had the relevant
Transferring Employee left the employment of the ABB Group on the day before
Completion. With respect to the ABB Inc Cash Balance Pension Plan including for
this purpose the DB Account under the ABB Inc Retirement Income Restoration
Plan, each Transferring Employee covered by such Plan shall be treated for
purposes of Retirement Benefits only as having continued employment with the ABB
Group for purposes of vesting in the benefit, and eligibility for an early
retirement benefit, under such Plan but for no other purpose, and termination of
service with the Purchaser or the SF Group Company that continues to employ such
Transferring Employee on and after Completion shall be treated as termination of
service with the ABB Group.
TRANSFERS FROM VENDOR PLANS THAT ARE FUNDED DEFINED BENEFIT PLANS
6.4 Subject to paragraphs 6.2, 6.3 and 7, and provided that the Purchaser
has complied with its obligations under this Schedule in all material respects,
the Vendor shall use reasonable endeavours to procure that a transfer of assets
(which may include an assignment, partial assignment or reissue of an insurance
contract) is made on or before the relevant Payment Date from or in respect of
each Vendor Plan which is a funded Defined Benefit Plan to an appropriate
Purchaser Plan, such transfer to be of an amount (calculated by the Vendor's
Actuary and agreed by the Purchaser's Actuary in accordance with paragraph 7.4)
equal to A+B-C where
A is the value of the Past Service Benefits of the relevant Transferring Members
as at Completion calculated in accordance with the Assumptions as applicable to
that Vendor Plan, adjusted for the period from and including the Completion Date
to the day immediately before the Payment Date by the Local Timing Adjustment.;
B is the aggregate value of the contributions paid by and in respect of the
Transferring Employees under paragraph 4.4(a) above, any contributions by a
Participating Company in accordance with paragraph 4.7 and any additional or
further contributions by a Participating Company to the Vendor Plan (other than
as provided in paragraphs 4.1 to 4.10) adjusted from the date of each payment
referred to in that paragraph to the day immediately before the Payment Date by
the Local Timing Adjustment., but not including any amount in respect of
contributions paid by or in respect of any Transferring Employee who does not
become or ceases to be a Transferring Member before the Pension Transfer Date,
in which case those contributions remain in the plan, and
C is the reasonable costs, as determined by the Vendor's Actuary and agreed by
the Purchaser's Actuary, during the Transitional Period of (i) the
administration of the Vendor Plan in respect of the Transferring Employees and
(ii) the cost of providing risk benefits to or in respect of the Transferring
Employees adjusted by the Local
Page 183
Timing Adjustment in each case from the date on which the cost is incurred to
the Pension Transfer Date.
TRANSFERS FROM FUNDED DEFINED CONTRIBUTION PLANS
6.5 Subject to paragraphs 6.2, 6.3 and 7, and provided that the Purchaser
has complied with its obligations under this Schedule in all material respects,
the Vendor shall use reasonable endeavours to procure that a transfer of assets
(which may include an assignment, partial assignment or reissue of an insurance
contract) is made on or before the relevant Payment Date from or in respect of
each funded Vendor Plan which is a Defined Contribution Plan to an appropriate
Purchaser Plan, such transfer to be of an amount equal to the value of the Past
Service Benefits of each Transferring Member calculated as an amount equal to
that part of the fund which stands to the credit of each Transferring Member
valued, in each case, on the basis that all such Past Service Benefits are fully
vested, and in respect of the arrangements in Switzerland, calculated in
accordance with Local Law.
VENDOR PLANS WHICH PROVIDE BENEFITS ON MORE THAN ONE BASIS
6.6(a) Where a Vendor Plan provides Retirement Benefits in respect of
Transferring Employees on both a defined benefit basis and a defined
contribution basis (including where the only defined contribution
benefits under that Vendor Plan are provided by way of an Employees'
Voluntary Fund), the defined benefit section and the defined
contribution section of that Vendor Plan shall be treated as separate
Vendor Plans for the purposes of this Schedule.
(b) Where a transfer of assets is envisaged pursuant to this Schedule in
respect of both the defined benefit section and the defined contribution
section of any Vendor Plan, the Vendor shall, unless the Purchaser
agrees otherwise, use reasonable endeavours to procure that the Transfer
Amount relating to the defined contribution section is transferred to
the relevant Purchaser Plan at the same time as the Transfer Amount
relating to the defined benefit section.
STAND-ALONE PLANS
6.7 The Vendor and Purchaser shall, subject to the requirements of Local
Law, each take any action necessary and use all reasonable endeavours to obtain
any third party consents necessary in order to ensure that the Purchaser assumes
sponsorship of and responsibility for all the liabilities, obligations and
Retirement Benefits arising under or in connection with each Stand-Alone Plan
with effect on and from Completion.
INDUSTRY-WIDE PLANS
6.8 This Schedule shall not apply to any state arrangement or Industry-Wide
Plan listed in Section 3 of Part C of this Schedule in which any member of the
ABB Group participates in respect of any Transferring Employee.
For the purposes of this paragraph 6.8, INDUSTRY-WIDE PLAN means any scheme,
plan, fund or arrangement which provides Retirement Benefits to or in respect of
Page 184
CONFORMED COPY
Transferring Employees in which employers may participate even if they are not
within the same corporate group as the other participating employers (other than
where temporary participation by non-associated employers is permitted following
the completion of a company or business sale).
This does not include any such schemes, plans, funds or arrangements in which
each section which is attributable to (and only available for participation by)
one or more employers within the same corporate or business group is treated as
a separate scheme, plan, fund or arrangement under Local Law.
VESTING
6.9(a) The Vendor shall use reasonable endeavours to procure that as at Pension
Transfer Date, in relation to any funded Vendor Plan (other than a US
based plan), all benefits payable to and in respect of Transferring
Employees shall be fully vested.
(b) The Vendor shall procure that for the purpose of determining the vesting
of Transferring Employees' benefits in the ABB Inc. Cash Balance Pension
Plan, the ABB Inc. Retirement Income Restoration Plan and any US based
Vendor Plans that are 401(k) plans that each of those plans will take
into account each Transferring Employee's service with the Purchaser, a
member of the Purchaser's Group or any SF Group Companies after
Completion.
PROVISIONS RELATING TO TRANSFER PAYMENTS AND TRANSFERS OF LIABILITIES
PRE-CONDITIONS FOR TRANSFER
7.1(a) Each transfer of assets and/or cash under paragraphs 6.4 or 6.5 of this
Schedule shall be subject to the Purchaser confirming that it shall
fulfil its obligations under paragraphs 3 and 5.
(b) No transfer of assets and/or cash shall be made under paragraphs 6.4 or
6.5 of this Schedule in respect of the Past Service Benefits of any
Transferring Employee to the extent that:
(i) Local Law does not permit such transfer; or
(ii) the Purchaser or member of the Purchaser's Group or the
Purchaser Plan does not assume responsibility for such Past
Service Benefits.
THIRD PARTY APPROVALS AND CONSENTS, etc.
7.2(a) Where any transfer of Retirement Benefits, assets or cash envisaged by
this Schedule is subject to the approval or consent of any third party
(including any Transferring Employee), the Vendor and Purchaser shall
each use all reasonable endeavours to obtain such approval or consent
and shall cooperate in so doing.
(b) The Purchaser shall procure that the relevant Purchaser Plan:
Page 185
CONFORMED COPY
(i) has all the powers, approvals and consents necessary to accept
each transfer of Retirement Benefits, assets or cash envisaged
by this Schedule; and
(ii) accepts each such transfer.
(c) If any approval or consent referred to in paragraph (a) above is not
obtained, or if the Purchaser Plan does not have the powers, approvals
and consents referred to in paragraph (b) above, or does not accept the
relevant transfer, the Purchaser will, without prejudice to its
obligations under paragraph (b), use reasonable endeavours to make any
arrangements necessary (which may include amending the relevant
Purchaser Plan or establishing or making available an alternative
Purchaser Plan) to enable the proposed transfer to take place.
7.3 The Vendor and Purchaser shall cooperate fully with each other with the
aim of ensuring that, subject to Local Law, the Retirement Benefits of all
Transferring Employees are dealt with in a manner consistent with the applicable
Global Provisions.
CALCULATION AND REVIEW OF THE TRANSFER AMOUNT
7.4(a) This paragraph shall apply separately in relation to each Transfer
Amount envisaged pursuant to this Schedule.
(b) Within 14 days following the Pension Transfer Date, the Vendor shall
instruct the Vendor's Actuary to calculate the Transfer Amount.
(c) The Purchaser shall provide the Vendor's Actuary promptly on written
request with any data and other information within its possession or
control that the Vendor's Actuary reasonably requires in order to
calculate the Transfer Amount and shall ensure that all information so
provided shall be true, complete and accurate in all material respects.
The Vendor and Purchaser shall use reasonable endeavours to procure that
the calculation is completed promptly.
(d) Provided that the Vendor's Actuary has received all information
requested under paragraph (c), the Vendor shall procure that the
Vendor's Actuary makes the result of his calculation of the Transfer
Amount (in this paragraph 7.4, the RESULT) available to the Purchaser no
later than two months following receipt of all the information
requested.
(e) The Purchaser's Actuary shall have 2 months from his receipt of the
result, or if later 2 months from the date on which the Vendor has
complied with its obligations under paragraph 7.4(f), in order to agree
the calculation of the Transfer Amount with the Vendor's Actuary by
reference only to the provisions of this Agreement and the Assumptions.
Page 186
CONFORMED COPY
(f) The Vendor shall provide the Purchaser's Actuary promptly on written
request with any information within its possession and control that the
Purchaser's Actuary reasonably requires for the purposes of reviewing
the result.
(g) If the Purchaser's Actuary and the Vendor's Actuary are unable to agree
the Transfer Amount within the two months specified in sub-paragraph (e)
above the Purchaser must notify the Vendor in writing of such rejection
(such notification being referred to in this paragraph 7.4 as the
REJECTION NOTICE) within 10 weeks of receipt of the result. The
rejection notice must include:
(i) a written statement from the Purchaser's Actuary setting out
reasons for not accepting the result; and
(ii) a proposed alternative result.
The Purchaser shall only be entitled to reject the result on the grounds
that the result has not been calculated in accordance with this
Agreement and the Assumptions.
If the Purchaser does not submit a rejection notice within the required
timeframe, unless the Vendor otherwise agrees the result shall be
treated as agreed by the Purchaser and Purchaser's Actuary.
(h) After the Vendor has received a valid rejection notice, the Vendor and
Purchaser and their respective actuaries shall use reasonable endeavours
to agree any necessary adjustments to the result, but if the parties
fail to agree within one month after the Vendor receives the valid
rejection notice, the matter shall be referred to the Independent
Adjudicator under paragraph 10 of this Schedule.
MAKING THE PAYMENT
7.5 Subject to Local Law, the Vendor and the Purchaser shall each use
reasonable endeavours to procure that each Transfer Amount is paid promptly in
accordance with paragraph 6.4 or 6.5, as applicable, in cash or other reasonable
assets agreed in advance with the Purchaser. The Vendor and the Purchaser shall
use reasonable endeavours to agree the due date for each such payment (or, if
they cannot agree within one month of agreeing the Transfer Amount, this will be
determined under paragraph 10), and the date so agreed or determined, in
relation to each Transfer Amount, shall be referred to as the PAYMENT DATE.
PAYMENT IN INSTALMENTS
7.6 If at any time after Completion but before the relevant Payment Date,
one or more transfers of assets and/or cash is made in respect of any of the
Transferring Members from a Vendor Plan to the relevant Purchaser Plan on
account of the relevant Transfer Amount (each such transfer being an
INSTALMENT), then for the purposes of determining the amount of the Shortfall
(if any) under paragraph 12 in respect of the relevant Transfer Amount, an
amount equal to the aggregate of:
Page 187
CONFORMED COPY
- the amount of each instalment
- MULTIPLIED BY (in the case of each separate instalment) the Local Timing
Adjustment in respect of the period from the date that the instalment is
paid to the Payment Date,
shall be treated as having been transferred on the Payment Date.
TRANSFERS TO A DEFINED CONTRIBUTION PURCHASER PLAN
7.7 Where any transfer of assets or cash pursuant to this Schedule is to be
made from a Vendor Plan to a defined contribution Purchaser Plan, the Purchaser
shall procure that the part of the Transfer Amount which, in the opinion of the
Vendor's Actuary and agreed by the Purchaser's Actuary, is attributable to the
Past Service Benefits of each Transferring Member shall be allocated to an
individual account set up or identified for that Transferring Member in the
defined contribution Purchaser Plan, and shall be treated as fully and
immediately vested with effect from the Payment Date.
INFORMATION ABOUT THE PURCHASER PLANS
7.8 The Purchaser shall provide the Vendor, on or before the Pension
Transfer Date, with:
(a) (if the Vendor or any of its advisors so requests in writing) copies of
all documents governing each Purchaser Plan;
(b) written details of any proposed or agreed changes to the Purchaser Plans
(including any provisions which have not been documented as at
Completion) which would or might affect the Retirement Benefits of
Transferring Members; and
(c) if the Vendor so requests in writing, written details of the funding
position of each Purchaser's Plan (including the latest valuation of
each Purchaser Plan, where available).
All documents and information provided to the Vendor under this paragraph shall
be complete true and accurate in all material respects as at the Pension
Transfer Date.
SPLIT TREATMENT OF RETIREMENT BENEFITS
8 Where the Retirement Benefits of any Transferring Employee are subject:
- in part to one of the provisions of paragraphs 6 or 7.1; and
- in part to one or more different provisions of paragraphs 6 or 7.1,
this Schedule shall apply separately to each such part of that Transferring
Employee's Retirement Benefits and shall be construed accordingly.
Page 188
CONFORMED COPY
FORMER EMPLOYEES AND BENEFICIARIES
9 Where, as a result of the completion of the transactions contemplated by
this Agreement, the Purchaser, Purchaser's Group or a Purchaser Plan assumes
responsibility for:
(i) the Retirement Benefits of former employees; or
(ii) the Retirement Benefits of individuals who derive or have derived those
Retirement Benefits by virtue of their connection with a Transferring
Employee or former employee (in this paragraph, BENEFICIARIES),
then references to Transferring Employees in this Schedule shall be construed,
to the extent possible under the requirements of Local Law, as referring also to
such former employees and/or beneficiaries (as appropriate).
FAILURE TO AGREE
10.1 If the Vendor and the Purchaser (or their respective actuaries) do not
agree on the determination, valuation or agreement of any matter to be
specifically determined, valued or agreed under this Schedule within the
specified time limit, or if no time limit is specified, within three months
after the dispute is first notified in writing by one party to the other, the
matter shall be referred for a determination of the issue to an independent
actuary agreed by the Vendor and Purchaser or, if they do not agree within 30
days of the specified time limit, then upon the request of either party an
independent actuary shall be appointed by the president for the time being of
the Institute of Actuaries of England (in each case, the INDEPENDENT
ADJUDICATOR). In any such case, the Independent Adjudicator shall be a competent
person who has appropriate expertise in relation to the jurisdiction and issues
in respect of which the disagreement has arisen.
10.2 The parties shall provide the Independent Adjudicator with:
(a) joint written instructions relating to the issues in dispute (which
instructions shall request that a written determination setting out the
Independent Adjudicator's decision should be issued in writing to both
parties no later than two months after the date of the joint
instructions); and
(b) any other information he reasonably requires in order to give his
determination.
10.3 The Independent Adjudicator shall act as an expert and not as an
arbitrator. His determination shall be final and binding on the parties and his
expenses shall be borne equally by the Vendor and Purchaser, unless the
Independent Adjudicator directs otherwise.
NO THIRD PARTY RIGHTS
11 Nothing in this Schedule confers or is intended to confer any rights or
remedies upon any person other than the parties to this Agreement.
Page 189
CONFORMED COPY
SHORTFALL
12.1 Subject to paragraphs 7.1 to 7.3 and to the Purchaser having complied
with its obligations under paragraph 3 of this Schedule, this paragraph 12
applies where there is a Shortfall. This paragraph 12 does not apply in relation
to any Defined Contribution Plan or Industry-Wide Plan, and any reference to a
Vendor Plan in this paragraph 12 shall be taken to exclude any reference to such
plans.
12.2 For the purposes of this paragraph 12, SHORTFALL means:
(a) in respect of a funded Vendor Plan, the amount (if any) by which:
- the value of the amount or amounts actually paid by or transferred
from each relevant Vendor Plan on or before the relevant Payment
Date in respect of the relevant Transfer Amount (including any
instalments, adjusted as described in paragraph 7.6)
IS LESS THAN
- the value of the relevant Transfer Amount for that Vendor Plan
with the value, in each case, being calculated in accordance with the
Assumptions;
(b) in respect of an unfunded Stand Alone or unfunded Vendor Plan, an amount
equal to the value as at Completion of the Retirement Benefits of the
Transferring Employees under that plan, calculated in accordance with
the Assumptions under paragraph 7.4 as if the amount to be calculated
hereunder were the Transfer Amount; and
(c) in respect of each funded Stand-Alone Plan:
- the aggregate value of the Retirement Benefits as at Completion
under that Stand-Alone Plan, calculated in accordance with the
Assumptions under paragraph 7.4 as if the amount to be calculated
hereunder were the Transfer Amount
less
- the aggregate value of the assets of the Stand-Alone Plan as at
Completion, such value to be calculated in accordance with the
Assumptions.
12.3 Subject to paragraph 12.6 and paragraphs 7.1 to 7.3, if a Shortfall is
determined, the Vendor shall within 30 days following the Payment Date make a
payment to the Purchaser in cash in the local currency by way of an adjustment
to the consideration payable under this Agreement (the SHORTFALL PAYMENT) equal
to the aggregate of:
- that Shortfall
Page 190
CONFORMED COPY
- MINUS the value in the opinion of the Vendor's Actuary and agreed by the
Purchaser's Actuary of any Retirement Benefits retained by the relevant
Vendor Plan in respect of the relevant Transferring Members as at the
Payment Date
- MULTIPLIED BY X%
(where X is equal to 100 minus the percentage rate of tax deduction or
relief which the relevant member of the Purchaser's Group is, in the normal
course of business, eligible to claim under Local Law in relation to its
contributions into the relevant Purchaser Plan (treating unfunded plans for
this purpose as if they are funded arrangements to which the Purchaser is
obliged to make contributions to provide the benefits to which the
Shortfall relates) during the Purchaser's accounting period in which the
relevant Payment Date occurs assuming for these purposes that the relevant
member of the Purchaser's Group produces taxable profits in the relevant
jurisdiction) (the APPLICABLE RATE))
- ADJUSTED BY the Local Timing Adjustment:
(a) (in respect of a Shortfall in respect of a funded Vendor Plan)
in respect of the period from and including the Payment Date,
to and excluding the date on which the Vendor pays the
Shortfall Payment under this paragraph; or
(b) (in respect of a Shortfall in respect of a Stand Alone Plan or
an unfunded Vendor Plan) in respect of the period from and
including Completion, to and excluding the date on which the
Vendor pays the Shortfall Payment under this paragraph.
If any part of the Shortfall does not give rise to an actual saving of tax for
the Purchaser in the accounting period in which the Payment Date occurs, or (in
relation to a funded Purchaser Plan) any of the two succeeding accounting
periods, (such part being the UNRELIEVED AMOUNT),or (in relation to an unfunded
Purchaser Plan) in any succeeding accounting period to the date on which
benefits to which the Shortfall relates cease to be payable (ignoring any
Shortfall which is not required to be used for the provision of those benefits)
(being the UNRELIEVED AMOUNT) and provided that the Purchaser has used its best
endeavours to obtain such tax saving and has provided satisfactory evidence of
its endeavours to obtain such tax saving to the Vendor, the Vendor shall, as
soon as reasonably practicable, make a further payment to the Purchaser of an
amount equal to the Unrelieved Amount multiplied by the Applicable Rate and then
adjusted by the Local Timing Adjustment from the Payment Date to the date of
final payment under this paragraph.
12.4 If, on or after the Payment Date but before the Vendor pays the
Shortfall Payment under paragraph 12.3, the relevant Vendor Plan pays or
transfers any amount to the relevant Purchaser Plan in respect of all or any of
the relevant Transferring Members, the amount of the Shortfall Payment (adjusted
by the Local Timing Adjustment from the Payment Date to the date that the
Shortfall Payment is paid) shall be reduced by the amount so paid or transferred
by the Vendor Plan (adjusted by the Local Timing Adjustment from the date the
amount is paid or transferred by the Vendor Plan to the date that the Shortfall
Payment is paid).
Page 191
CONFORMED COPY
12.5 If after the payment of a Shortfall Payment the Vendor Plan to which
that Shortfall Payment relates makes a payment to any Purchaser Plan or member
of the Purchaser's Group in respect of the Transfer Amount (a LATE PAYMENT, the
date on which such payment is made being the LATE PAYMENT DATE) the Purchaser
shall, by way of an adjustment to the consideration paid under this Agreement
pay or procure the payment to the Vendor of an amount equal to Y. Y is the
amount of the Late Payment multiplied by the same percentage X applied under
paragraph 12.3 (in respect of the Shortfall Payment in respect of Transfer
Amount to which the Late Payment relates) adjusted by the Local Timing
Adjustment from the Late Payment Date to the date on which the Purchaser will
make the payment required under this paragraph 12.5.
12.6 On receipt of the Shortfall Payment in respect of a funded plan the
Purchaser shall promptly pay an amount equal to (100 / X) of any Shortfall
Payment into the relevant Purchaser Plan or Stand Alone Plan to be held in
accordance with paragraph 3.
12.7 No Shortfall Payment shall be paid in relation to a Shortfall unless the
amount of that Shortfall Payment (ignoring for this purpose the effect of
paragraph 14) as at the date of its calculation exceeds EURO 50,000. However,
this threshold amount shall not apply in respect of any Shortfall Payment in
respect of termination indemnities in Italy.
12.8 [Intentionally blank]
12.9 In this paragraph 12 in respect of a Stand-Alone Plan or an unfunded
Vendor Plan, the Payment Date shall be 30 days after the calculation of the
Shortfall under this paragraph or its determination under paragraph 10.
INDEMNITY
13.1 The Vendor shall pay to the Purchaser (as an adjustment to the
consideration payable under this Agreement) an amount equal to all costs,
liabilities and expenses of the Purchaser, any member of the Purchaser's Group
or any Purchaser's Plan arising out of or in connection with any liability to
make a payment to or in connection with any Vendor Benefit Plan (including,
without limitation, any liability in connection with any employee benefit plan,
which liability arise under ERISA or the US Internal Revenue Code of 1986, as
amended, by virtue of any SF Group Company being aggregated, with any other
person that is deemed to be in a controlled group or affiliated service group
with any SF Group Company for the purposes of ERISA or Section 414 (b), (c), (m)
or (o) of the US Internal Revenue Code of 1986, as amended, at any relevant time
prior to the date of Completion). No amount shall be payable under this
paragraph in respect of liabilities which the Purchaser or any member of the
Purchaser's Group or any Purchaser's Plan may have under:
(a) this schedule, as a result of any member of the Purchaser's Group
breaching any provision of this schedule;
(b) paragraphs 4.4(a), 4.7, 12 or 13.2 of this schedule
Page 192
CONFORMED COPY
No person to whom a payment obligation is owed by the Vendor under this
paragraph 13.1 in relation to any matter or thing shall be entitled to a payment
from the Vendor or any other person under any other provision of this Agreement
in relation to the same matter or thing.
13.2 The Purchaser shall from time to time pay to the Vendor (as an
adjustment to the consideration payable under this Agreement) (for itself and
where applicable as agent and trustee for the relevant Vendor Plan) an amount
equal to the amount of any damage, claim, loss, cost, liability, charge or
expense which the Vendor and/or any member of the ABB Group and/or any Vendor
Plan may after Completion sustain, incur or pay arising out of any claim in
relation to Retirement Benefits by or in respect of any Transferring Employee to
the extent the claim is attributable to anything done (apart from acts expressly
required to be done under (a) Local Law or (b) by a member of the Purchaser's
Group under this Agreement provided that compliance by a member of the
Purchaser's Group with paragraphs 3.2 or 5 of this Schedule shall not limit the
Purchaser's liability under this paragraph 13.2 in any way) or omitted to be
done by the Purchaser or any member of the Purchaser's Group. No amount shall be
payable under this indemnity to the extent that:
(a) the cessation of the participation of any Transferring Employee in a
Vendor Plan triggers a provision under the Vendor Plan which increases
liabilities under that Vendor Plan; or
(b) any such liability is dealt with under paragraphs 4 and/ or 12 of this
Schedule.
13.3 The Purchaser shall pay interest on amounts due under paragraph 13.2 at
two per cent above the Local Interest Rate from the date the relevant liability
accrued until full payment is made under paragraph 13.2.
13.4 For the purposes of paragraphs 13.5 to 13.9 below:
(a) in relation to any matter to which the indemnity under paragraph 13.1
relates, the INDEMNIFYING PARTY means the Vendor and the INDEMNIFIED
PARTY means the Purchaser; and
(b) in relation to any matter to which the indemnity under paragraph 13.2
relates, the INDEMNIFYING PARTY means the Purchaser and the INDEMNIFIED
PARTY means the Vendor.
13.5 Where the Indemnified Party becomes aware of any claim or proceeding or
any threat thereof (PROCEEDINGS), the Indemnified Party shall give notice to the
Indemnifying Party as soon as reasonably practicable together with all
information in the Indemnified Party's possession and which is, in its
reasonable opinion, relevant to the Proceedings.
13.6 The Indemnified Party shall not respond in any way (save as reasonably
directed or allowed by the Indemnifying Party or by way of acknowledgement) to
the Proceedings and in particular (without prejudice to the generality of this
condition) make any admission of any kind. This is subject to the Indemnifying
Party giving the
Page 193
CONFORMED COPY
appropriate direction within a reasonable time (and in any event in good time
for the Indemnified Party to meet any applicable time limits).
13.7 The Indemnifying Party shall be allowed the sole conduct of any matter
to which the indemnity under paragraph 13.1 or 13.2 (where applicable) relates
(including all communication and negotiation with the person or persons
concerned in the Proceedings or their representatives), having due regard to any
continuing relationship the Indemnified Party may have with the said person or
persons. The Indemnified Party shall render to the Indemnifying Party all such
assistance in relation thereto as the Indemnifying Party reasonably requires and
as lies within the Indemnified Party's power to provide (provided the
Indemnifying Party reimburses the Indemnified Party the reasonable costs and
expenses of doing so).
13.8 The Indemnifying Party shall, in the conduct of any matter to which this
indemnity relates, keep the Indemnified Party fully informed and act in a prompt
and proper manner.
13.9 The Indemnified Party may take such action as is necessary to prevent it
losing the right to defend any claim if the Indemnifying Party, having received
notification under paragraph 13.5, has not provided the Indemnified Party with
evidence of the Indemnifying Party having taken action necessary to defend or
settle the claim or confirmation that such action is being duly taken.
14 If a payment made under paragraph 12 or 13 will be or has been subject
to tax, the payer shall pay to the recipient of the payment the amount (after
taking into account tax payable in respect of the amount) that will ensure that
the recipient of the payment receives and retains a net sum equal to the sum it
would have received had the payment not been subject to tax.
15 If either the Vendor or the Purchaser discover that there are any Vendor
Plans (as defined in paragraph 27.16 of Schedule 3 (Vendor Warranties)) that are
not listed in the Part C of this Schedule (UNDISCLOSED PLANS), the Vendor or
Purchaser will within five Working Days notify the other with details of the
undisclosed plan (NOTIFICATION DATE). Following written notice from the
Purchaser to the Vendor triggering the application of this paragraph:
15.1 The Purchaser's Actuary and the Vendor's Actuary will decide within two
months of the notification date whether the undisclosed plan is a Vendor Plan,
Stand Alone Plan or an Industry-Wide Plan.
15.2 The Purchaser's Actuary and the Vendor's Actuary will also agree the
Assumptions and Local Timing Adjustment in respect of the undisclosed plan
within three months of the notification date.
15.3 The undisclosed plan will thereafter be treated as if it were a Vendor
Plan, Stand Alone Plan or an Industry-Wide Plan for all other purposes of this
Schedule and in accordance with the agreed Assumptions and Local Timing
Adjustment.
Page 194
CONFORMED COPY
15.4 Any dispute as to any of the matters to be agreed or determined under
this paragraph may be referred for resolution to the Independent Adjudicator
pursuant to paragraph 10.
Page 195
CONFORMED COPY
PART B
DEFINITIONS
The following terms shall have the following meanings in this Schedule:
ASSUMPTIONS means either
(a) the assumptions applied in the valuation of the Vendor Plan or Stand
Alone Plan concerned for the Vendor's US GAAP purposes as at 31 December 2001 or
(b) if no assumptions were used for the Vendor's US GAAP purposes as at
31 December 2001 in respect of the Vendor Plan or Stand Alone Plan concerned,
the actuarial methods and assumptions applied in the last valuation of ABB's
largest pension arrangement (in terms of accrued liabilities) for the Vendor's
US GAAP purposes as at 31 December 2001 in the jurisdiction concerned.
Provided that, the Transfer Amount will be calculated as the PBO as defined
under US GAAP except in relation to arrangements in Italy where the Transfer
Amount will be the locally accrued provision held on the relevant companies'
balance sheets.
Notwithstanding the foregoing, certain of the main financial assumptions which
are to be used for the purposes of this Schedule are set out in Section 7 of
Part C of this Schedule;
DEFINED BENEFIT, in relation to Retirement Benefits under any Vendor Plan, Stand
Alone Plan or Purchaser Plan, means benefits other than defined contribution
benefits;
DEFINED BENEFIT PLAN means a Vendor Plan or Stand Alone Plan that provides
defined benefit Retirement Benefits for and in respect of the Transferring
Employees, and is listed in Section 4 of Part C of this Schedule;
DEFINED CONTRIBUTION, in relation to Retirement Benefits under any Vendor Plan,
Stand Alone Plan or Purchaser Plan, means that those Retirement Benefits are (or
will be) determined by reference to contributions paid into or credited to that
plan in respect of the individual member to which they relate, and investment
returns on those contributions, and are not subject to any employer underpin or
guarantee as to the minimum level of benefits, interest or investment return
(except where such employer underpin or guarantee is a requirement of Local
Law);
DEFINED CONTRIBUTION PLAN means a Vendor Plan or Stand Alone Plan that provides
defined contribution Retirement Benefits for and in respect of the Transferring
Employees, and notwithstanding the foregoing includes the plans listed in
Section 5 of Part C of this Schedule;
EMPLOYEES' VOLUNTARY FUND means a fund provided under or in connection with a
Vendor Plan which provides defined contribution benefits in respect of
Transferring Employees, and to which no employer contributions are paid or
credited;
FUNDED, in relation to any Vendor Plan, Stand Alone Plan or Purchaser Plan,
means that assets are accumulated under or in respect of that plan before the
corresponding
Page 196
CONFORMED COPY
benefits start being paid. For the purposes of this definition, ASSETS shall
mean assets which are separate from those of the employer and shall exclude any
accounting or internal balance sheet provision;
GLOBAL PROVISIONS means the provisions contained in Part A of this Schedule;
INDEPENDENT ADJUDICATOR is defined in paragraph 10.1 of Part A of this Schedule;
INDUSTRY-WIDE PLAN is defined in paragraph 6.8 of Part A of this Schedule;
LOCAL INTEREST RATE means the rate:
(a) determined by the Vendor (and agreed by the Purchaser) as equivalent to
the cost to the Vendor of borrowing in the relevant currency for the
relevant period; or
(b) determined by the Purchaser (and agreed by the Vendor) as equivalent to
the cost to the Purchaser of borrowing in the relevant currency for the
relevant period,
(whichever applies) and if the Vendor and Purchaser do not agree, as determined
under paragraph 10.1 of Part A;
LOCAL LAW means the applicable laws of the relevant jurisdiction (including any
local regulatory, tax approval, tax favoured or tax qualification requirements),
and, to the extent relevant, the governing provisions of the relevant Vendor
Plan;
LOCAL TIMING ADJUSTMENT means, in the case of any amount or Transfer Amount:
(a) the timing adjustment specified in relation to that amount in Section 8
of Part C of this Schedule; or
(b) if none is so specified, an adjustment agreed by the Seller and
Purchaser in order to maintain the time value of the relevant amount or
Transfer Amount from the date of its calculation to the date of its
payment;
(c) if (a) does not apply and the Seller and Purchaser fail to agree under
paragraph (b), the Local Interest Rate.
PARTICIPATING COMPANY means the companies so described in paragraph 4.2 of Part
A of this Schedule;
PAST SERVICE BENEFITS means:
(i) subject to (iii), in the case of funded Defined Benefit Plans, Retirement
Benefits accrued or accumulated in respect of a Transferring Member and
attributable to that Transferring Member's service up to, but not including the
Pension Transfer Date; or
(ii) in the case of funded Defined Contribution Plans the Retirement Benefits
accrued or accumulated in respect of a Transferring Member up to but not
including the
Page 197
CONFORMED COPY
Payment Date and attributable to that Transferring Member's service up to the
Pension Transfer Date; or
(iii) the Retirement Benefits accrued or accumulated in respect of a
Transferring Member and attributable to that Transferring Member's service up
to, but not including Completion, in paragraph 6.4 of this Schedule.
PAYMENT DATE means, in relation to each transfer to be made under this Schedule,
the due date for payment of the relevant Transfer Amount, as agreed or
determined in accordance with paragraph 7.5;
PENSION TRANSFER DATE means:
(a) in respect of a Vendor Plan in which a Participating Company
participates pursuant to paragraph 4 of Part A of this Schedule, 12 months (or 6
months in the case of a plan based in the USA) after Completion or such earlier
date on which the company ceases to participate in the Vendor Plan whether as a
result of:
(i) the Purchaser giving 30 days' written notice to the Vendor and the
relevant Vendor Plan administrator and/or trustee to terminate the Participating
Company's participation in the Vendor Plan; or
(ii) in accordance with paragraph 4.4 of Part A of this Schedule; or
(iii) pursuant to paragraph 4.10 of Part A of this Schedule.
(b) in all other cases, Completion.
PURCHASER'S ACTUARY means an actuary or firm of actuaries nominated by the
Purchaser (and notified in writing to the Vendor) for the purposes of this
Schedule;
PURCHASER PLAN means any scheme, plan, fund or arrangement of any member of the
Purchaser's Group nominated or established under paragraph 5.2;
RETIREMENT BENEFIT means any pension, allowance, lump sum, gratuity or similar
benefit provided or to be provided on or after retirement, death or disability
in respect of a Transferring Employee's employment. This includes termination
indemnities. It does not include:
(a) benefits provided under an arrangement the sole purpose of which is to
provide benefits on the accidental injury or death of an employee; or
(b) post-retirement medical and dental benefits; or
(c) other healthcare or welfare benefits.
STAND-ALONE PLANS means each scheme, plan, fund or arrangement of SF Group
Company which provides Retirement Benefits and is described as such in Section 1
of Part C of this Schedule;
Page 198
CONFORMED COPY
TRANSFER AMOUNT means the amount of each transfer of assets and/or cash to be
made pursuant to paragraphs 6.4 and 6.5 of this Schedule, calculated in
accordance with:
(a) paragraph 6.4 (in the case of a Vendor Plan which is a funded Defined
Benefit Plan); and
(b) paragraph 6.5 (in the case of a Vendor Plan which is a funded Defined
Contribution Plan);
TRANSFERRING EMPLOYEE means any Employee who shall become an employee of the
Purchaser's Group with effect from the Completion Date as a consequence of the
transaction envisaged by this Agreement;
TRANSFERRING MEMBER means any Transferring Employee in respect of whose Past
Service Benefits under any Vendor Plan a transfer is made or to be made under
this Schedule, and, where such transfer is subject to the Transferring Employee
consenting or not objecting to it, TRANSFERRING MEMBER means a Transferring
Employee who has given and has not withdrawn such consent or who has not
objected (whichever applies);
TRANSITIONAL PERIOD means the period (if any) beginning on and including the
Completion Date and ending on the day before the Pension Transfer Date.
UNFUNDED, in relation to any Vendor Plan Stand Alone Plan or any Purchaser Plan,
means a Vendor Plan or Purchaser Plan (as applicable) which is not funded.
VENDOR'S ACTUARY means each actuary or firm of actuaries nominated by the Vendor
(and notified in writing to the Purchaser) for the purposes of this Schedule;
VENDOR BENEFIT PLAN means any written and legally enforceable employment,
consulting, bonus, incentive, compensation, deferred compensation, pension,
profit sharing, retirement, stock purchase, stock option, stock ownership, stock
appreciation rights, phantom stock, equity (or equity-based), leave of absence,
layoff, vacation, day or dependent care, legal services, cafeteria, life,
health, medical (including without limitation any post-retirement health and
medical benefits), dental, vision, welfare, accident, disability, workman's
compensation or other employee insurance, employee severance, employee
termination or other employee benefit plan, employee benefit agreement, employee
benefit practice or employee benefit policy whether or not subject to ERISA,
including, but not limited to, any "employee benefit plan" within the meaning of
Section 3(3) of ERISA, sponsored or maintained by any member of the Vendor's
Group at any time, other than a plan, program, agreement, arrangement, practice
or policy sponsored maintained, or promulgated by an SF Group Company solely for
the benefit of employees and former employees (and in each case, their
beneficiaries, dependants and relatives) of an SF Group Company.
VENDOR PLAN means each scheme, plan, fund or arrangement of the Vendor or the
ABB Group, which provides Retirement Benefits and is described as such in
Section 2 of Part C of this Schedule.
Page 199
CONFORMED COPY
PART C
SECTION 1 - STAND ALONE PLANS
JURISDICTION NAME OF PLAN
------------ ------------
Denmark FirmaPensionsordning hos Resonia Leasing AB
(defined contribution plan for Resonia Leasing)
Finland ABB Elakesaatio - Varma-sampo insurance (defined
contribution plan for Resonia Leasing)
Italy Trattamento di Fine Rapporto
Netherlands Nationale-Nederlanden Levensverzekering Mij NV
Employee Benefit - Werkgeversverklaring behorende
bij het pensionreglement voor de Collectieve
Beleggings Verzekering (insured defined benefit
plan)
Norway Kollektiv Pensionsforsakring For Arbeidstakere
(defined benefit plan for Resonia Leasing)
ABB Special Pension Provisions for Presidents
(unfunded supplementary defined benefit plan for
directors - non-Resonia business)
Sweden Lansforsakringar Pensionsplan FriPlan Tjanste for
Resonia Leasing AB (defined contribution plan for
Resonia Leasing)
BTP Plan (Bankernas tjanstepension) (defined
benefit plan for non-Resonia business)
BTP Plan Matris (Bankernas tjanstepension)
(defined contribution plan for non-Resonia
business)
SECTION 2 - VENDOR PLANS
JURISDICTION NAME OF PLAN
------------ ------------
Finland ABB Elakesaatio - ABB Compulsory Pension
Foundation (TEL) (plan for non-
Page 200
CONFORMED COPY
Resonia business)
Norway Pensjonsordning og forsikringer for anstatte i
ABB AS (defined benefit plan for non-Resonia
business)
ABB Pension Fund
Switzerland
ABB Supplementary Insurance Plan
Todi Foundation
USA ABB Inc. Personal Retirement Investment and
Savings Management Plan for Employees of ABB Inc.
("PRISM") (401(k) plan)
ABB Inc. Cash Balance Pension Plan
ABB Inc. Retirement Income Restoration Plan
(unfunded defined benefit/defined contribution
hybrid)
SECTION 3 - INDUSTRY-WIDE PLANS
None
SECTION 4 - DEFINED BENEFIT PLANS
JURISDICTION NAME OF PLAN
------------ ------------
Italy Trattamento di Fine Rapporto
Netherlands Nationale-Nederlanden Levensverzekering Mij NV
Employee Benefit - Werkgeversverklaring behorende
bij het pensionreglement voor de Collectieve
Beleggings Verzekering (insured defined benefit
plan)
Norway Pensjonsordning og forsikringer for anstatte i
ABB AS (defined benefit plan for non-Resonia
business)
ABB Special Pension Provisions for Presidents
(unfunded supplementary defined benefit plan for
directors - non-Resonia business)
Kollektiv Pensionsforsakring For Arbeidstakere
(defined benefit plan for
Page 201
CONFORMED COPY
Resonia Leasing)
Sweden BTP Plan (Bankernas tjanstepension) (defined
benefit plan for non-Resonia business)
USA ABB Inc. Cash Balance Pension Plan
ABB Inc. Retirement Income Restoration Plan (to
the extent that this scheme provides defined
benefits, as it is an unfunded defined
benefit/defined contribution hybrid)
SECTION 5 - DEFINED CONTRIBUTION PLANS
JURISDICTION NAME OF PLAN
------------ ------------
Denmark FirmaPensionsordning hos Resonia Leasing AB
(defined contribution plan for Resonia Leasing)
Finland ABB Elakesaatio - Varma-sampo insurance (defined
contribution plan for Resonia Leasing)
ABB Elakesaatio - ABB Compulsory Pension
Foundation (TEL) (plan for non-Resonia business)
Sweden Lansforsakringar Pensionsplan FriPlan Tjanste for
Resonia Leasing AB (defined contribution plan for
Resonia Leasing)
BTP Plan Matris (Bankernas tjanstepension)
(defined contribution plan for non-Resonia
business)
ABB Pension Fund
Switzerland
ABB Supplementary Insurance Plan
Todi Foundation
USA ABB Inc. Personal Retirement Investment and
Savings Management Plan for Employees of ABB Inc.
("PRISM") (401(k) plan)
ABB Inc. Retirement Income Restoration Plan (to
the extent that this scheme provides defined
contribution benefits, as
Page 202
CONFORMED COPY
it is an unfunded defined benefit/defined
contribution hybrid)
SECTION 6 - CONTRIBUTIONS PAYABLE TO VENDOR PLANS
Save as specified below, contributions shall be payable to and in respect of
Transfer Employees at the rate specified or referred to in the relevant Vendor
Plan documentation.
Norway (non Resonia)
PREMIUM PREMIUM PREMIUM
2001 2002 2003
NAME BIRTH (NOK) (NOK) (ESTIMATE)
--------------------- -------- --------- --------- ----------
Ole Gran 10.02.62 28 000 28 411
Xxxxx Xxxx Xxxxxxxxx 25.12.61 31300 33173
Sigmund Strom 26.11.41 90 400 101 836
Xxxxx Xxxxxxxxx 21.02.74 7 000 6 363
Xxxxx Xxxxx 31.05.69 21 000 19 998
Xxxx Xxxxxxx 22.10.58 37 400 39 445
Xxx Xxxxxxxx 13.06.61 34 100 35 966
Xxxx Xxxx Xxxxxxx 19.05.70 9 000 9 393
Xxxx Xxxxxxxxx 14.11.71 19 100 18 470
SUM 277 300 293 045 310 000
Adm. Cost 19 232 20 019 21 000
Total Premium 296 532 313 064 331 000
Page 203
CONFORMED COPY
SECTION 7 - PRINCIPAL ACTUARIAL ASSUMPTIONS AND METHODS
DISCOUNT RATE SALARY INCREASES PENSION INCREASES
COUNTRY (% PER ANNUM) (% PER ANNUM) (% PER ANNUM)
------------- ------------- ---------------- -----------------
NETHERLANDS 6 3 2.5
NORWAY 7 3.5 2.5
SWEDEN 5.75 3 2
SECTION 8 - LOCAL TIMING ADJUSTMENT
In respect of defined benefit unfunded Vendor Plans and defined benefit unfunded
Stand Alone Plans the discount rate specified in the table in Section 7 of this
part of this Schedule in relation to the jurisdiction to which the plan
concerned relates.
In respect of defined benefit funded Stand Alone Plans and arrangements in
Switzerland, the Local Interest Rate.
In respect of the ABB funded defined benefit plans in Norway, fund returns.
Page 204
CONFORMED COPY
SCHEDULE 7
COMPLETION ARRANGEMENTS
PART A
DETERMINATION OF THE COMPLETION DATE IN ACCORDANCE WITH CLAUSE 6.2
The Completion Date shall be determined as follows:
IF the RECORD DATE falls on or between or
prior to (as appropriate): THEN the COMPLETION DATE shall be:
------------------------------------------- ----------------------------------
24 October 2002 Thursday, 31 October 2002
25 October 2002 - 21 November 2002 Friday, 29 November 2002
22 November 2002 - 20 December 2002 Tuesday, 31 December 2002
21 December 2002 - 24 January 2003 Friday, 31 January 2003
25 January 2003 - 21 February 2003 Friday, 28 February 2003
22 February 2003 - 24 March 2003 Monday, 31 March 2003
25 March 2003 - 22 April 2003 Wednesday, 30 April 2003
23 April 2003 - 21 May 2003 Friday, 30 May 2003
Page 205
CONFORMED COPY
PART B
COMPLETION ARRANGEMENTS
1. At or before Completion, the Vendor shall deliver or procure the
delivery to the Purchaser, or the Designated Purchaser, as the case may be, of:
(a) duly executed transfers into the name of the relevant Share Purchaser or
its nominee in respect of all the Shares, and, if necessary,
declarations of trust by the registered owner in respect of all Shares
that are beneficially owned but not registered in the name of the
Company or any Subsidiary, together with all such other documents
(including all necessary waivers of pre-emption rights or other
consents) as may be reasonably required to enable the Purchaser or the
relevant Share Purchaser or its nominee to be registered as the holder
of the Shares;
(b) the share certificates (including in relation to any bearer shares) (and
in the case of share certificates in relation to the Shares in Companies
in jurisdictions where endorsement of share certificates is required,
properly endorsed so as to transfer the Shares to the Purchaser or a
Share Purchaser) or equivalent documents in the relevant jurisdiction in
respect of all of the Shares for which certificates have been issued or
are required by law to be issued;
(c) the share certificates or equivalent documents in the relevant
jurisdiction in respect of all of the issued shares in the capital of
each of the Subsidiaries listed in Part B of Schedule 2 (Particulars of
the SF Group) save for those Subsidiaries listed in Part B of Schedule 2
(Particulars of the SF Group) where share certificates or equivalent
documents in the relevant jurisdiction have not been issued, provided
that if such share certificates or equivalent documents have not been
issued the Vendor shall not be required to deliver them but instead will
provide appropriate declarations in relation to any such Shares
declaring that no such share certificates or equivalent documents have
been issued.
Such share certificates or equivalent documents shall be delivered:
(A) at the registered office of the relevant shareholder, or
(B) such other location as the Vendor and the Purchaser may agree
acting reasonably,
provided that if such items are required by law to be kept or delivered
at a particular place they shall be delivered at that place;
(d) in respect of each SF Group Company, the certificates of incorporation,
certificates of incorporation on change of name, common seal (if it
exists), share register, share certificate book (with any unissued share
certificates), books of account, documents of record, all minute books
and other statutory books or registers (which shall be written up to but
not including Completion)
Page 206
CONFORMED COPY
or such equivalent items in the relevant jurisdiction as are kept by the
relevant SF Group Company.
Such items shall be delivered:
(A) at the registered office of the relevant SF Group
Company, or
(B) such other location as the Vendor and the Purchaser may
agree acting reasonably,
provided that if such items are required by law to be kept or delivered
at a particular place they shall be delivered at that place;
(e) a copy of a letter in respect of each SF Group Company from its auditors
resigning their office with effect from Completion (provided that this
shall not impede the ability of the Vendor's Accountants to audit the
Completion Balance Sheet);
(f) evidence of the waiver of ABB Structured Finance AS of any right to
receive additional payments from ABB Credit Finans AB in relation to the
purchase of certain assets pursuant to a business transfer agreement
dated 5 July 2002;
(g) a completion certificate in Agreed Form in relation to:
(i) if applicable, the conditional release of all charges and other
Encumbrances over shares in any SF Group Company or any
Business Contract;
(ii) the release of all those Intra-Group Guarantees (as referred to
in paragraph (b) of the definition thereof);
(iii) the support of all Retained Guarantees with a guarantee by
ABB
Ltd in accordance with clause 35;
(iv) compliance by the Vendor with its obligations under clause 4.1
and Schedule 14 (Conduct of the SF Business);
(v) the termination of all Derivative Transactions;
(vi) the absence of a Relevant Breach;
(vii) the absence of a Material Adverse Change; and
(viii) completion of the Reorganisations in accordance with their
terms and all applicable law and regulation;
(h) relevant documents (if any) evidencing title to the SF Group Properties;
(i) a power of attorney in the relevant Agreed Form duly executed as a deed
by the Vendor or the respective Share Vendor, if appropriate, in favour
of the relevant Designated Purchasers;
Page 207
CONFORMED COPY
(j) a valid and legally binding letter of resignation in the Agreed Form
duly executed by each of the directors of SF Group Companies whose names
were notified in writing to the Vendor at least ten (10) Business Days
prior to the Completion Date, to the extent that the Vendor is unable to
deliver any such resignation letter, the Vendor shall procure the
removal of the relevant director from the board of the relevant SF Group
Company;
(k) a copy of a resolution of the board of directors (certified by a duly
appointed officer as true and correct) of the Vendor and each of the
Designated Vendors as appropriate, authorising the execution of and the
performance by the relevant company of its obligations under this
Agreement and each of the Transaction Documents to be executed by it;
(l) a duly executed letter of credit as required by clauses 10.8 to 10.10
and, if appropriate, a duly executed letter of credit as may be required
under clause 10.5(b) and a letter of credit required under clause 4.1 of
the Designated Asset Agreement;
(m) evidence that notice of termination has been given and not withdrawn to
all relevant counterparties in respect of (i) the general agreement
dated 28 December 2000 between Leasing Group Inc. and ABB Business
Finance, a division of ABB Structured Finance Limited Inc., (together
with all supplemental agreements and arrangements); (ii) the private
label program agreement dated 26 March 2001 between Intech Funding Corp.
and ABB Business Finance, and (iii) the private label program agreement
dated 25 April 2001 between Masco Machinery Sales Co. and ABB Business
Finance;
(n) the duly executed deeds of release in relation to Intra-Group
Indebtedness required by clause 5.3(c) conditional only upon receipt of
the Provisional Intra-Group Indebtedness Amount(s) in accordance with
clause 6.4(b);
(o) each of the Escrow Instruction Letters duly executed by all parties
thereto other than the Purchaser (if required);
(p) all necessary documents, duly executed where so required, to enable
title in all the Business Assets to pass fully and effectively into the
name of the relevant Business Asset Purchaser or its nominee and to
complete the sale and purchase of such Business Assets;
(q) each duly executed and valid Key Contract Consent obtained by the Vendor
prior to Completion in a form and substance reasonably satisfactory to
the Purchaser;
(r) legal opinion in relation to Dutch law from Freshfields Bruckhaus
Deringer Amsterdam regarding the capacity of ABB Financial Services B.V.
to enter into and the valid and legally binding and enforceable effect
of the Designated Asset Agreement, the Specified Receivables Agreement,
the Transitional Services Agreements and this Agreement on ABB Financial
Services B.V. (subject, inter alia, to the same being valid and legally
binding and enforceable under English law);
Page 208
CONFORMED COPY
(s) a legal opinion in relation to Swiss law from the in-house legal
counsellor of ABB Limited regarding the due capacity and authority of
ABB Limited to enter into the Designated Asset Agreement, the Specified
Receivables Agreement, the Transitional Services Agreements and this
Agreement;
(t) a valid and legally binding letter from ABB Finance Services B.V.
confirming its acquisition of the shareholdings in EuropeLoan SA and
Europesave SA formerly held by ABB Credit Holding B.V., and indemnifying
ABB Credit Holding B.V. from any future liabilities in respect of such
shareholdings; and
(u) evidence in form and substance reasonably satisfactory to the Purchaser
of the compliance in full by the Vendor with its obligations under
clause 4.12.
2. On the Completion Date, the Vendor and the Purchaser shall execute and
deliver to each other, or shall procure the execution and delivery of by their
respective Affiliates named as parties thereto of, the Agreed Form Documents to
which the Vendor and the Purchaser (or any of their respective Affiliates) is a
party.
3. Subject to clauses 10.51 and 10.52, on the Completion Date, the Vendor
shall:
(a) procure that ABB World Treasury Center and/or ABB Credit AB transfers
the Defeasance Deposits in accordance with clause 10.51;
(b) deliver or procure the delivery of such duly executed documents as are
required in order to enable the recipient the Defeasance Deposits
(identified by the Purchaser in accordance with clause 10.51) to hold
the Defeasance Deposits in the same capacity and on materially similar
terms as such amount is currently held by ABB World Treasury Centre
and/or ABB Credit AB.
4. On the Completion Date, the Vendor and the Purchaser shall each comply
with their obligations to pay or procure payment of monies and other amounts
under this Agreement (including clause 5.3).
5. The Vendor shall procure that resolutions of the boards of directors, or
if required by law or the relevant SF Group Company's or Business Assets
Vendor's articles of association or by-laws of the shareholders, of each
relevant SF Group Company are passed by which the following business is
transacted:
(a) if necessary, the registrations (subject to such legal or other
requirements as are necessary for such registrations to be effected
being satisfied) of the transfers in respect of the Shares are approved;
(b) if necessary, the resignations referred to in paragraph 1 (e) of this
Part B above are accepted; and
(c) the relevant persons are appointed as directors of the SF Group
Companies; and
Page 209
CONFORMED COPY
(d) the relevant persons nominated by the Purchaser (not less than five (5)
Business Days prior to Completion) are appointed as auditors of the SF
Group Companies.
6. Where in this Schedule 7 (Completion Arrangements), the Vendor is
required to deliver documents to locations set out in Part C of this Schedule 7
(Completion Arrangements), the Vendor shall be released from its obligations to
deliver the same at Completion to the extent that the Purchaser does not make
arrangements for such documents to be received at such reasonable time, on or
before Completion as the Vendor, or its representatives, request but, for the
avoidance of doubt, the Vendor will still be under an obligation to deliver the
same as soon as the Purchaser makes arrangements to receive delivery thereof.
7. All documents and items delivered at Completion shall be held by the
recipient to the order of the person delivering the same until such time as
Completion shall be deemed to have taken place.
8. At Completion, the Purchaser shall:
(a) to the extent necessary, execute the share transfers in relation to the
Shares provided by the Vendor in accordance with paragraph 1 (a) of this
Part B;
(b) deliver or procure the delivery to the Vendor of (or, make available to
the Vendor's satisfaction) a copy of a resolution of the board of
directors (certified by a duly appointed officer as true and correct) of
the Purchaser and each of the Designated Purchasers as appropriate,
authorising the execution of and the performance by the relevant company
of its obligations under this Agreement and each of the Transaction
Documents to be executed by it;
(c) pay (for itself and as trustee for and on behalf of each of the
Designated Purchasers and relevant member of the Purchaser's Group, as
appropriate) to the Vendor the Initial Consideration in accordance with
clauses 6.4(a) and 6.4(c); and
(d) cause payment of an amount equal to the Provisional Net Intra-Group
Indebtedness Amount(s) in accordance with clause 6.4(b); and
(e) a legal opinion in relation to US law from the in-house general legal
counsellor of General Electric Capital Corporation regarding the due
capacity and authority of General Electric Capital Corporation to enter
into the Designated Asset Agreement, the Specified Receivables
Agreement, the Transitional Services Agreement and this Agreement.
9. If any of the documents listed in this Part B are required to be
notarised, the parties shall execute such document on terms that such document
shall be deemed to become effective upon release by such party as contemplated
by paragraph 7 of this Schedule at a location notified by the Vendor to the
Purchaser at least three (3) Business Days before Completion where a notary with
the required qualification will be present. Otherwise such documents shall be
executed at the location (to be agreed between the parties) which is in the
jurisdiction where the SF Group Company which
Page 210
CONFORMED COPY
is to be transferred pursuant to the relevant document has its registered office
or, where no such agreement is reached, at the registered office of such the SF
Group Company.
10. On the Completion Date, the Vendor shall deliver or procure the delivery
of the following duly executed documents (except where otherwise provided):
(a) formal agreement of the developer Mr Ricardo Impallomeni to the
transaction contemplated by this Agreement with respect to the SIB
Italia SF Leasing system, SIB Extranet and origination platform;
(b) support and maintenance agreement with a reputable third party provider
on arm's length market terms for XOR Control between XOR Control AB and
ABB Structured Finance AB on terms reasonably satisfactory to the
Purchaser;
(c) support and maintenance agreement with a reputable third party provider
on arm's length market terms for ABB Structured Finance Italy in respect
of FSAB Finance System which agreement shall be terminable without cause
on 90 days' notice and have an initial term of six months (which shall
renew automatically);
(d) formal agreement with a reputable third party provider (or otherwise
with such member of the ABB Group as is agreed between the parties) on
arm's length market terms for the provision of adequate disaster
recovery and security arrangements for ABB Structured Finance Italy
(including Xerox Noleggi) which agreement shall be terminable without
cause on 90 days' notice and have an initial term of six months (which
shall renew automatically); and
(e) Small Business Scoring Service, Credit Desk Software Order Form and
Software Licence Agreement between ABB Structured Finance Inc. and Xxxx,
Xxxxx and Company Inc. dated 14 November 2001 and Master Professional
Services Agreement between Northern Consulting and ABB Structured
Finance dated 31 July 2001.
Page 211
CONFORMED COPY
SCHEDULE 8
COMPLETION BALANCE SHEET
GENERAL ACCOUNTING PRINCIPLES
The Completion Balance Sheet shall be prepared:
(i) in accordance with the Specific Accounting Principles set out below; or
if not described therein,
(ii) in accordance with US GAAP.
To the extent that US GAAP permits the application of alternative accounting
principles, the accounting principles elected by
ABB Ltd and applied in the
preparation of the 2001 Financial Statement shall, provided such is in
accordance and consistent with US GAAP, be applied in the preparation of the
Completion Balance Sheet.
SPECIFIC ACCOUNTING PRINCIPLES
1. No account shall be taken of:
(a) any Subsequent Events except for events that provide additional evidence
with respect to events or conditions which existed prior to or at
Completion and affect estimates inherent in the Completion Balance
Sheet; or
(b) any decision announced or event initiated by the Purchaser or any member
of the Purchaser's Group prior to Completion with respect to matters to
take effect on or after the Completion Date.
For the avoidance of doubt, no account shall be taken of Subsequent Events which
occur or arise solely subsequent to Completion, but may be disclosed as notes to
the Completion Balance Sheet if considered to be sufficiently significant.
2. In preparing the Completion Balance Sheet, the figure included
thereunder for Goodwill shall be goodwill minus accumulated
depreciation/writedown and shall be US$14.239 million.
3. No account shall be taken of any changes in control of the SF Business
and the SF Group Companies contemplated by this Agreement or any change in
management, strategy, direction or priority which results from any such change
of control.
4. No account shall be taken of any proposals or arrangements (actual or
proposed) in connection with the financing of the Purchaser's acquisition of the
Shares and the Business Assets (including granting any security in respect of
the Shares).
5. In preparing the Completion Balance Sheet, the figure included
thereunder for Retirement Benefits as defined in Schedule 6 (Pensions) shall be
US$0.
Page 212
CONFORMED COPY
6. The Intra-Group Indebtedness shall be included.
7. The Excluded Assets, Excluded Contracts, Excluded Claims, Excluded
Businesses, Excluded Companies and Excluded Liabilities shall be excluded.
8. No account shall be taken of any increase or decrease in the value of
any asset of the SF Business as a result of the transactions undertaken in
connection with any form of reorganisation carried out prior to Completion.
9. Provisions and reserves recorded in the Completion Balance Sheet shall
be computed in accordance with the requirements of US GAAP and shall be computed
in accordance with US GAAP accounting principles, practices and methods in
applying them as followed in the 2001 Financial Statement. For the purposes of
the Completion Balance Sheet, changes in estimates will not present changes in
accounting principles, practices and methods. For the avoidance of doubt,
changes in reserves referred to in clauses 10.40 to 10.43 (inclusive) represent
a change in estimate and shall be calculated in accordance with such clauses and
ERROR! REFERENCE SOURCE NOT FOUND. (Reserves).
10. No provision or reserve will be included for redundancy, rationalisation
or restructuring costs which are decided by any SF Group Company following
Completion.
11. There will be no accrual, provision or reserve in respect of any costs,
liabilities, charges or events to be incurred after the Completion Date in
respect of the disposal, closure, reorganisation or restructuring of any SF
Business operations, other than those duly authorised by the Vendor or any
member of the ABB Group prior to the Completion Date and committed and
recordable in accordance with US GAAP.
13. If the Noleggi Completion Balance Sheet has not been finally agreed or
determined in accordance with the terms of the Noleggi Agreement by the time the
Completion Balance Sheet is required to be delivered to the Purchaser in
accordance with clause 7.2, then the net assets of Noleggi to be reflected in
the Completion Balance Sheet shall assume that the value of any Noleggi asset or
liability then agreed is reflected in the Completion Balance Sheet at such
value, the value of any Noleggi asset then in dispute is reflected in the
Completion Balance Sheet at the bottom of the disputed range and the value of
any Noleggi liability then in dispute is reflected in the Completion Balance
Sheet at the top of the disputed range.
14. Any provisions recorded in relation to the Designated Assets shall be
determined and signed-off by both the Vendor and the Vendor's Accountants and,
for the avoidance of doubt, provided such provisions are recorded in accordance
with this paragraph, they shall not be challenged by the Purchaser or the
Purchaser's Accountants or the Expert.
15. For the avoidance of doubt in respect of the compensation to Sirius,
pursuant to clause 10.44A(b), this shall be booked as a SEK 11,914,000 reduction
to P&L and hence the Completion Balance Sheet Owner's Equity. The liability to
make good the relevant member(s) of the ABB Group shall be satisfied in the
calculation of the Final Consideration and not by a balance sheet liability.
Page 213
CONFORMED COPY
15. For the avoidance of doubt:
(a) the ABB Export Bank Intra-Group Indebtedness as at Completion shall form
part of, and shall be included and taken into account in, the Completion
Balance Sheet in calculating and determining the Final Intra-Group
Indebtedness and the Final Net Intra-Group Indebtedness; and
(b) the ABB Export Bank Outstanding Loan Balance as at Completion shall be
calculated and determined as part of the Completion Balance Sheet and
shall, to the extent that it is not otherwise so included or reflected,
be included or reflected in the calculation and determination of Owner's
Equity.
Page 214
CONFORMED COPY
SCHEDULE 9
TAX
1. INTERPRETATION
1.1 In this Schedule the following definitions shall have the following
meanings unless the context requires otherwise:
ACCOUNTS RELIEF means a relief, the availability of which has been shown as an
asset in, or referred to in the notes to, the Completion Balance Sheet or has
been taken into account in computing (and reducing) a provision for deferred Tax
which appears in the Completion Balance Sheet or has resulted in no provision
for deferred Tax being made in the Completion Balance Sheet;
BENEFIT has the meaning given to it in Paragraph 12.1(b) of this Schedule;
EVENT means any event, act, failure, omission, or transaction including, without
limitation, a receipt or accrual of income or gains, distribution, failure to
distribute, acquisition, disposal, transfer, payment, loan or advance and, for
the avoidance of doubt, shall include the entering into of any lease;
PRE-COMPLETION TAX AFFAIRS means the Tax affairs of any of the SF Group
Companies for which the Vendor is responsible under Paragraph 13 of this
Schedule;
POST-COMPLETION RELIEF means any relief which arises in respect of, by reference
to or in consequence of, any Tax Period commencing after the Completion Date or
any Event occurring after the Completion Date;
STRADDLE PERIOD has the meaning given to it in Paragraph 1.7 of this Schedule;
TAX DOCUMENTS means the Tax Returns, claims and other documents which the Vendor
is required to prepare on behalf of the Company and the Subsidiaries under
Paragraphs 13.1(a) and 13.1(b) of this Schedule;
TAX ASSESSMENT means the issue of any notice, demand, assessment, letter or
other document by or on behalf of any Tax Authority or the taking of any other
action by or on behalf of any Tax Authority (including the imposition, or any
document referring to the possible imposition, of any withholding of or on
account of Tax) from which it appears that a Tax Liability may be incurred by or
may be imposed on any SF Group Company;
TAX LIABILITY means a liability of any SF Group Company to make or suffer an
actual payment of Tax (including interest, penalties and additions to Tax
related thereto) or a payment in respect of Tax (as well as Tax of another
person for which an SF Group Company may be liable due to affiliation, as a
transferee or successor or otherwise) and also includes:
Page 215
CONFORMED COPY
(c) any liability (including a liability which is a primary liability of
some other person and whether or not there is a right of recovery
against another person) to a make a payment or increased payment of
Taxation which would have arisen but for being satisfied, avoided or
reduced by any Accounts Relief or Post-Completion Relief;
(d) the disallowance, loss, clawback, reduction, restriction, or
modification of any Accounts Relief, or the non-availability or
non-existence of an Accounts Relief; and
(e) an amount equal to the amount of any liability of a SF Group Company to
pay for, or repay any amount paid to a SF Group Company for, any
Surrender (whether of group relief, advance corporation Tax, or Tax
refund) or other attribution to such SF Group Company of a Tax-related
benefit under the laws of the relevant jurisdiction where such surrender
or other attribution was made pursuant to an arrangement entered into on
or prior to Completion;
TAX PERIOD means any period by reference to which any income, profits or gains,
or any other amounts relevant for the purposes of Tax, are measured or
determined;
TAX REFUND has the meaning given to it in Paragraph 7.1 of this Schedule;
TAX RETURN means any return required to be made to any Tax Authority of income,
profits or gains or of any other amounts or information relevant for the
purposes of Tax, including any related accounts, computations and attachments;
TIME LIMIT means the latest date on which a Tax Document can be executed or
delivered to a relevant Tax Authority either without incurring interest or a
penalty, or in order to ensure that such Tax Document is effective;
VAT means value added tax and any other similar or turnover tax in effect in any
country.
1.2 The headings in this Schedule shall not affect its interpretation.
1.3 Income, profits or gains earned, accrued or received includes any
income, profits or gains deemed to be earned, accrued or received for the
purposes of any Tax.
1.4 Income, profits or gains earned, accrued or received on or before a
particular date or in respect of a particular period includes income, profits or
gains which are deemed for the purposes of any Tax to have been earned, accrued
or received on or before that date or in respect of that period.
1.5 An Event occurring includes an Event deemed to have occurred for the
purposes of any Tax.
1.6 An Event on or before Completion includes:
(a) any combination of Events only the first or some of which has or have
taken place on or before Completion but only where the Event or part
taking place
Page 216
CONFORMED COPY
after Completion occurs is in the ordinary course of business of a SF
Group Company and, for the avoidance of doubt, the following shall be
deemed not to be in the ordinary course of business: (i) any disposal
(or deemed disposal for Tax purposes) of assets other than trading stock
by any SF Group Company; (ii) any change in the use of an asset by any
SF Group Company; (iii) anything which has the result of requiring
disposal value to be brought into account, or which crystallises any
charge, including any balancing charge, by reference to any, or any
recapture of, any capital or depreciation allowance;
(b) an Event which is deemed for the purposes of any Tax to have occurred on
or before Completion; and
(c) the non-availability or non-existence of an Accounts Relief.
1.7 For the purposes of determining to what extent any liability for Tax
arises in respect of any Tax Period commencing on or before Completion but
ending after Completion (a STRADDLE PERIOD), the Straddle Period shall be
treated as if it were two accounting periods, the first beginning at the start
of the Straddle Period and ending on Completion Date (including the Completion
Date) and the second starting on the day following the Completion Date and
ending at the end of the Straddle Period for the purposes of section 12 of the
Income and Corporation Taxes Xxx 0000 of England and Wales (or its equivalent in
any other jurisdiction).
2. TAX WARRANTIES
2.1 The Vendor has made available to the Purchaser the lists, information
and copy documents relating to the Tax affairs of the SF Group and the SF
Business specified in the attached Exhibit B to the Disclosure Letter and the
information contained therein is true, accurate and not misleading. These
include all current Tax rulings of each SF Group Company and they have full
force and effect and will remain so notwithstanding the sale of the Shares or
any other step taken pursuant to this Agreement.
2.2 The bundles of documents annexed to the Disclosure Letter and relating
to Tax have been prepared in good faith and the information contained therein is
true, accurate and not misleading.
2.3 Each SF Group Company has duly paid all Tax due or, to the extent Tax is
due but not paid yet, made full provision in the Accounts and all necessary
information, notices, computations and returns which ought to have been
submitted have been submitted by or on behalf of any SF Group Company to the
relevant Tax Authority and have been submitted on a timely basis and all
information, notices, computations and returns submitted are complete and
accurate (and correctly reflect the earnings, business, assets and operations of
the SF Group Companies) in all material respects and are not at the date hereof
the subject of any material dispute.
2.4 No SF Group Company is involved in any current material dispute with any
Tax Authority nor is any contemplated with any Tax Authority, nor is any SF
Group Company involved in litigation, administrative, judicial or other types of
procedures in relation to Tax, and so far as the Vendor and the directors and
officers (and
Page 217
CONFORMED COPY
employees responsible for Tax matters) of the SF Group Companies are aware there
are no circumstances which make it likely that any such dispute or disagreement
will commence in the future.
2.5 The Business Asset Vendor is not, and does not expect to be, involved in
a dispute in relation to Tax which is likely to affect any of the Business
Assets and no Tax Authority has investigated, or has indicated that it intends
to investigate, the Tax affairs of any member of the ABB Group in relation to
the Business Assets.
2.6 No transaction in respect of which any consent or clearance was required
or sought from any Tax Authority has been entered into or carried out by any of
the Companies without such consent or clearance having first been properly
obtained and all reorganisations, mergers and de-mergers have been carried out
in accordance with applicable Tax regulations and will not give rise to any
assessments of Tax.
2.7 No Tax Authority has operated or agreed to operate any special
arrangement (being an arrangement which is not based on relevant legislation or
any published practice) in relation to the affairs of any SF Group Company or in
relation to the Business Assets.
2.8 Each SF Group Company has paid or provided for all the Taxes to which it
has become liable, or to which it has been assessed prior to Completion and has
deducted or withheld all Tax which it has been obliged by law to deduct or
withhold from amounts paid by it. Except as mentioned in the Disclosure letter,
no SF Group Company is or has in the last 3 years been subject to any penalty,
surcharge, fine or interest in connection with Tax. The SF Group has also made
adequate provision in the Accounts for deferred Tax which is materially accurate
in accordance with US GAAP. Any payments made on the basis of estimated figures
or other assumptions have been properly calculated on a consistent and
reasonable basis.
2.9 Each SF Group Company has maintained all records in relation to Tax that
it is required by any Tax Authority or legislation to maintain and has
sufficient records to determine the Tax consequences which would arise on a
disposal or on the realisation of each asset owned by it at the Accounts Date,
or acquired since the Accounts Date but before the date of this Agreement.
2.10 Except as disclosed in the Disclosure Letter, no SF Group Company has
been a party to or otherwise involved in any transaction, agreement or
arrangement otherwise than by way of a bargain at arm's length.
2.11 On disposal of an asset of a SF Group Company for a consideration equal
to the value attributed to the asset in the Accounts, no liability to Tax will
arise (disregarding a statutory right to claim an allowance or relief).
2.12 In preparing the Accounts, the value used for each asset or class of
assets in respect of which a separate computation for capital allowances is
required (whether as a result of an election or otherwise) is such that, on a
disposal of that asset or all the assets in that class for a consideration equal
to the value used (and disregarding a statutory right to claim an allowance or
relief), no balancing charge would be made.
Page 218
CONFORMED COPY
2.13 No liability to Tax would arise if any SF Group Company were to dispose
of any customer related asset or Property of the SF Business acquired since the
Accounts Date for a consideration equal to the consideration actually given for
the acquisition which, in accordance with US GAAP, would not be provided for in
a deferred Tax provision in the Completion Balance Sheet.
2.14 Neither the execution nor the performance of, nor any action taken in
pursuance of, this Agreement, nor the satisfaction of any condition to which
this Agreement is subject will result in any asset of any SF Group Company being
deemed to have been disposed of and reacquired.
2.15 All documents by virtue of which any SF Group Company has any right or
in the enforcement of which any SF Group Company is interested or which relate
to any of the Business Assets have been duly stamped.
2.16 Each SF Group Company is and has at all times been resident only in the
jurisdiction in which it is incorporated for all Tax purposes. No SF Group
Company is liable to pay, nor has at any time incurred any liability to Tax
chargeable under the laws of, nor has a permanent establishment or other Taxable
presence in, any jurisdiction other than the jurisdiction of its incorporation.
2.17 Each SF Group Company:
(a) is registered for the purposes of relevant VAT legislation;
(b) has made, given, obtained and kept up-to-date, full and materially
accurate records, invoices and documents appropriate or required for the
purposes of relevant VAT legislation; and
(c) has complied in all material respects with all other applicable VAT
legislation and in particular has filed all returns and made all
payments of VAT on a timely basis.
2.18 No SF Group Company currently is the beneficiary of any extension of
time within which to file any Tax Return. No SF Group Company has waived any
statute of limitations in respect of Taxes or agreed to any extension of time
with respect to a Tax Assessment or deficiency and no such request for waiver or
extension is currently pending. No claim has ever been made by an authority in a
jurisdiction where an SF Group Company does not file Tax Returns that it is or
may be subject to Tax by that jurisdiction.
2.19 There are no liens or security interests on any of the assets of any SF
Group Company or on any Business Assets that arose in connection with any
failure (or alleged failure) to pay any Tax.
2.20 None of the SF Group Companies which are organised or doing business in
the US are currently the subject of an audit.
2.21 No power of attorney currently in force has been granted by any SF Group
Company with respect to any Tax matter.
Page 219
CONFORMED COPY
2.22 No SF Group Company has filed a consent under Section 341(f) of the
Internal Revenue Code of 1986, as amended (for the purposes of this Schedule,
the CODE) concerning collapsible corporations. No SF Group Company is required
to include in income any adjustment pursuant to Code Section 481(a) by reason of
a change in accounting method or has an application pending with the US Internal
Revenue Service or any other Tax Authority requesting permission for any change
in accounting method. No SF Group Company organised in the US has been a US real
property holding corporation within the meaning of Code Section 897(c)(2) during
the applicable period specified in Code Section 897(c)(1)(A) (ii). No SF Group
Company is subject to any accumulated earnings Tax or personal holding company
Tax. No SF Group Company is a party to any Tax allocation or Tax sharing or Tax
indemnification or similar agreement or has any liability to make a payment
pursuant to a previously terminated agreement of that nature.
2.23 The Disclosure Letter sets forth the following information with respect
to each of the SF Group Companies organised or doing business in the US as of
the most recent calendar quarter date prior to the Completion Date: (a) the
amount of any net operating loss, net capital loss, unused investment or other
credit, unused foreign Tax, or excess charitable contribution allocable to a SF
Group Company and any limitations thereon; (b) all material elections and
consents relating to Tax and agreements with any Tax Authorities which are still
in effect; (c) any partnership or other entity (other than a SF Group Company)
which is owned by an SF Group Company; (d) all closing agreements and Tax
rulings requested or received from any Tax Authority by any SF Group Company;
and (e) a description of any deferred intercompany transactions or excess loss
accounts with respect to any SF Group Company.
2.24 No SF Group Company organised or doing business in the US (a) has
participated in an international boycott as defined in Code Section 999; (b) has
been the distributing corporation with respect to a transaction described in
Code Section 355 within the three-year period ending on the date of this
Agreement; (c) has a permanent establishment in any country outside its county
of incorporation; or (d) has a material item of income or gain reported for
financial accounting purposes in a pre-closing period or otherwise attributable
to pre-closing period which is required to be included in Taxable income for a
post-closing period.
2.25 None of the assets of any SF Group Company organised or doing business
in the US or the Business Assets is (a) Tax exempt use property under Code
Section 168(h); (b) Tax-exempt bond financed property under Code Section 168(g);
(c) limited use property under Revenue Procedure 76-30, or (d) treated as owned
by any other person under Code Section 168. No SF Group Company is a party
(other than as an investor) to any industrial development bond.
2.26 No SF Group Company is a controlled foreign corporation as described in
Code Section 957 or contiguous country corporations described in Code Section
1504(d).
Page 220
CONFORMED COPY
2.27 The SF Group Companies which are not organised in the US do not have any
US real property interests as described in Code Section 897 and no Business
Assets could constitute a US real property interest as described in Code Section
897.
2.28 No SF Group Company has made an election under US law to classify itself
or any of its subsidiaries as something other than a corporation.
2.29 No SF Group Company organised outside the US is engaged in the conduct
of a trade or business in the US or has a branch, office or fixed place of
business or permanent establishment in the US.
2.30 None of the SF Group Companies which are organised or doing business in
the US has made any payments, is obligated to make any payments, or is a party
to any agreement that under certain circumstances could obligate it to make any
payments that will not be deductible under Code Section 280G.
2.31 None of the SF Group Companies organised or doing business in the US nor
any Business Asset Vendor own shares of any controlled foreign corporations as
described in Code Section 957, passive foreign investment companies as described
in Code Section 1297, or foreign investment companies as described in Code
Section 1246.
2.32 None of the SF Group Companies represents itself in Tax filing or to its
shareholders as (i) passive foreign investment companies as described in Code
Section 1297, (ii) foreign investment companies described in Code Section 1246
or (iii) foreign personal holding companies described in Code Section 552.
2.33 None of the SF Group Companies organised or doing business in the US own
shares in any foreign corporation or other foreign entity.
3. TAX COVENANT
3.1 The Vendor hereby covenants (for itself and as trustee for the
Designated Vendor) with the Purchaser to pay to the Purchaser (for itself and as
trustee for the Designated Purchaser) an amount equal to any Tax Liability of
any SF Group Company arising in respect of, by reference to or in consequence
of:
(a) any income, profits or gains earned, accrued or received on or before
Completion (including specifically the pre Completion portion of the
Straddle Period); and
(b) any Event which occurred on or before Completion;
(c) an Event occurring at any time for which a SF Group Company is liable as
a result of having at any time before Completion been a member of a
group for Tax purposes;
(d) an Event occurring at any time for which a SF Group Company is liable as
a result of having at any time before Completion been controlled for Tax
purposes by any person; and
Page 221
CONFORMED COPY
(e) an Event for which a SF Group Company is liable for the Tax (relating to
a time before Completion) of another person under Treasury Regulation
1.1502-6 (or similar provisions of state, local or foreign law) or as a
transferee, successor, by contract, agreement or arrangement or
otherwise;
together with any costs and expenses referred to in Paragraph 34 of this
schedule and so that, in the case of any Tax Liability arising in respect of a
Subsidiary listed as a non-wholly owned subsidiary in Schedule 2 (Particulars of
the SF Group), the Purchaser (for itself and as trustee for the Designated
Purchaser) shall be paid that proportion of 100 per cent. of the Tax Liability
and 100 per cent. of the related costs and expenses as corresponds to the
percentage interest indicated next to the name of that Subsidiary in that
Schedule.
3.2 Without prejudice to the covenant given in paragraph 3.1, the Vendor
hereby covenants (for itself and as trustee for the Designated Vendor) with the
Purchaser to pay to the Purchaser (for itself and as trustee for the Designated
Purchaser) an amount equal to any Tax Liability of any SF Group Company arising
in respect of, by reference to or in consequence of:
(a) the Pre-Sale Reorganisation or the Hive-Down and Transfer but only to
the extent that the Tax Liability relates to, is in respect of or by
reference to any period on or before Completion (including specifically
the pre Completion portion of the Straddle Period);
(b) the ABB Guernsey Finance Limited (a Guernsey incorporated company) being
treated by any Swiss Tax Authority as resident or managed for Tax
purposes in or from Switzerland for any period on or before Completion
(including specifically the pre Completion portion of the Straddle
Period) but only to the extent that the Tax Liability relates to, is in
respect of or by reference to such period;
(c) any Swedish SF Group Company treating leasing transactions as supplies
of services for the purposes of VAT or SIB Leasing Spa reclaiming VAT on
purchases of non-depreciable assets, in both cases in relation to or in
respect of any period on or prior to Completion (including specifically
the pre Completion portion of the Straddle Period); and
(d) any SF Group Company being a Designated Vendor,
together with any costs and expenses referred to in Paragraph 5 of this
Schedule, provided that the exclusions set out in paragraphs 4.1(a), (c) and (d)
shall not apply to limit or exclude the covenant given by the Vendor in this
paragraph 3.2.
3.3 Where any Tax Liability, being a Tax Liability that is within the scope
of the covenant given at paragraph 3.1 of this Schedule, is the subject of a
provision or reserve for deferred Tax in the Completion Balance Sheet, the
Vendor shall be liable to pay (for itself and as trustee for the Designated
Vendor) to the Purchaser (for itself and as trustee for the Designated
Purchaser) (a) an amount equal to the net present value benefit of that deferred
Tax as calculated in accordance with the principles set out in Schedule 9A (Net
Present Value Benefit) and (b) in full for any interest and
Page 222
CONFORMED COPY
penalties related to, in respect of or in connection with that Tax Liability,
together with any costs and expenses referred to in Paragraph 5 of this
Schedule;
3.4 The Vendor and the SF Group Companies agree to co-operate with the
Purchaser and provide the Purchaser with reasonable assistance in determining,
with respect to each SF Group Company, any material differences between the
aggregate fair market value of the assets of the SF Group Company (which value
shall be determined by the allocation provisions of this Agreement) and the
aggregate Tax basis of the assets of that SF Group Company.
3.5
(a) The Purchaser may, at its option, make an election under Code section
338 with respect to the acquisition of one or more of any SF Group
Company. The Vendor shall co-operate with, and take all necessary
actions requested by, the Purchaser regarding any such election,
including reporting the transactions for Tax purposes in a manner
consistent with such elections. Notwithstanding anything herein to the
contrary, neither the Vendor nor any affiliate of the Vendor shall be
required to make or join in an election under Section 338(h)(10) of the
Code (or any equivalent election under state, local or foreign law).
(b) Notwithstanding anything herein to the contrary:
(i) At Purchaser's option, Purchaser may make an election under
Code Section 7701 with respect to the US Tax status of one or
more of the SF Group Companies.
(ii) Vendor shall co-operate with, and take all reasonable actions
requested by Purchaser or procure that all such actions are
taken, regarding any such election including signing in a
timely manner an election to be effective retroactively to the
period during which the Vendor was a direct or indirect owner
of the SF Group Companies and reporting the transactions for
Tax purposes in a manner consistent with such elections.
3.6 The Vendor will, at the Purchaser's request, provide or procure the
provision of a non-foreign affidavit in accordance with section 1445 and shall
deliver the same to the Purchaser or Designated Purchaser as requested.
4. EXCLUSIONS
4.1 Subject to the proviso set out in paragraph 3.2, the covenants contained
in Paragraph 3.1 and 3.2 of this Schedule shall not cover any Tax Liability to
the extent that:
(a) subject to Paragraph 3.3, either a provision or reserve (excluding a
deferred Tax provision or reserve) in respect of that Tax Liability has
been made in the Completion Balance Sheet or a specific provision or
reserve for deferred Tax in respect of that Tax Liability has been made
and identified in the appendix to
Page 223
CONFORMED COPY
the Completion Balance Sheet setting out and computing the deferred Tax
provision in the Completion Balance Sheet (and for the purposes of this
paragraph 4.1(a), a provision or reserve shall be "specific" if it falls
within a category set out in the appendix to the Completion Balance
Sheet, the form of which is attached at Schedule 10 (Form of Completion
Balance Sheet)), but only to the extent of that provision or reserve or
specific provision or reserve as the case may be; or
(b) the Tax Liability was paid or discharged before Completion and such
payment or discharge was taken into account in the preparation of the
Completion Balance Sheet but only to the extent of the amount of the
relevant item listed on such Completion Balance Sheet; or
(c) except with respect to the Straddle Period, the Tax Liability arises as
a direct result of any change in rates of Tax which is announced and
comes into force after Completion with retrospective effect or of any
change in law, regulation, directive, or the published or generally
accepted practice of any Tax Authority, occurring after Completion; or
(d) the Tax Liability comprises interest or penalties arising by virtue of
an underpayment of Tax prior to Completion, insofar as such underpayment
would not have been an underpayment but for a bona fide estimate made
prior to Completion of the amount of income, profits or gains to be
earned, accrued or received after Completion proving to be incorrect, or
but for any other Event or Events occurring after Completion; or
(e) notice of a claim in respect of the Tax Liability in a form complying
with the provisions of Paragraph 8.1 of this Schedule is not given to
the Vendor within one month after the end of the Tax Period in which,
pursuant to the relevant statute of limitations in the relevant
jurisdiction, the relevant Tax Authority may raise requisitions or
assessments in respect of a hypothetical matter occurring or
hypothetical Tax Liability arising on Completion (such deadline being,
the "Deadline") or (where the claim is not previously settled, satisfied
or withdrawn) proceedings in respect thereof are not issued to and (to
the extent possible) served upon the Vendor within the six month period
following such Deadline and pursued with reasonable diligence
thereafter; or
(f) such Tax Liability arises as a result of any Company or Subsidiary
failing to submit the returns and computations required to be made by
them in respect of accounting periods ending after Completion or not
submitting such returns and computations within the appropriate Time
Limits or submitting such returns and computations otherwise than on a
proper basis, in each case after Completion and otherwise than as a
result of any default or failure of the Vendor in carrying out, or in
failing to carry out, the Vendor's obligations under Paragraph 13 of
this Schedule or
(g) the Tax Liability arises as a result of the failure of the Purchaser to
comply with its obligations contained in Paragraph 8 or Paragraph 12 of
this Schedule; or
Page 224
CONFORMED COPY
(h) any relief arising in respect of an Event occurring or period ending on
or prior to Completion is immediately available, or is for no
consideration made immediately available by the Vendor, to any SF Group
Company to set against or otherwise mitigate the Tax Liability (and so
that (i) for this purpose any relief arising in respect of a Tax Period
falling partly before and partly after Completion shall be apportioned
on a time basis, unless some other basis is more reasonable and (ii) any
relief that is so available in relation to more than one Tax Liability
to which this Schedule applies shall be deemed, so far as possible, to
be used in such a way as to reduce to the maximum extent possible the
Vendor's total liability hereunder); or
(i) the Tax Liability would not have arisen but for:
(i) the making of a claim, election, surrender or disclaimer
otherwise than (a) at the direction of the Vendor, (b) in the
ordinary course of business relating to an Event after
Completion, (c) as required by Tax legislation or Tax
Authority, or (d) pursuant to a legally binding commitment
created on or before Completion, in each case after Completion
and by the Purchaser, any Company, any Subsidiary or any other
member of the Purchaser's Group but this Paragraph (i)(i) shall
only apply to limit a Tax Claim where the Tax Liability arises
as a direct result of the making of such claim, election,
surrender or disclaimer; or
(ii) the failure or omission on the part of any SF Group Company to
make a claim, election, surrender or disclaimer that was
requested by the Vendor in writing on or prior to Completion
and that was taken into account in the preparation of the
Completion Balance Sheet, but this exclusion in this paragraph
(i)(ii) shall only apply where the making of such claim,
election, surrender or disclaimer: (a) is not limited by any
Tax Authority or legislation; and (b) is not limited by a
legally binding commitment entered into on or prior to
Completion. Moreover, this exclusion in this paragraph (i)(ii)
shall only apply to limit a Tax Claim where the Tax Liability
arises as a direct result of the failure or omission to make
such claim, election, surrender or disclaimer; or
(j) the Tax Liability is a liability to Tax comprising interest, penalties,
charges or costs in so far as solely and exclusively attributable to the
unreasonable delay or default of the Purchaser, any Company or
Subsidiary after Completion.
4.2 The provisions of Paragraph 4.1 of this Schedule shall also operate to
limit or reduce the liability of the Vendor in respect of claims under the Tax
Warranties.
5. COSTS AND EXPENSES
The covenants contained in this Schedule shall extend to all reasonable costs
and expenses properly incurred by the Purchaser (for itself and as trustee for
the Designated Purchaser) in connection with a successful claim made under this
Schedule, or in satisfying or settling any Tax Liability in accordance with
Paragraph 8.
Page 225
CONFORMED COPY
6. DOUBLE RECOVERY
6.1 The Purchaser shall not be entitled to recover any amount pursuant to
this Schedule in respect of any claim that the Purchaser, any Company or any of
the Subsidiaries has already recovered such amount under the Vendor Warranties
or pursuant to any other agreement with the Vendor or any member of the ABB
Group, or under this Schedule but in all cases only to the extent of such prior
recovery. Any excess above such prior recovery shall be recoverable under this
Schedule without any limitation by this Paragraph 6.
7. TAX REFUNDS
7.1 The Purchaser shall or shall procure that the Designated Purchaser shall
promptly notify the Vendor of any right to repayment or actual repayment of Tax
to which any SF Group Company is or becomes entitled or receives in respect of
an Event occurring or period (or part period) prior to Completion, where or to
the extent that such right or repayment was not included in the Completion
Balance Sheet as an asset (a TAX REFUND).
7.2 Any Tax Refund actually obtained, whether by repayment or set off (and
less any reasonable costs of obtaining it but including any interest or other
additional payment) shall be dealt with as follows:
(a) the amount of the Tax Refund shall be set against any payment then due
from the Vendor under this Schedule;
(b) to the extent that there is an excess, a payment shall promptly be made
to the Vendor (for itself and as trustee for the Designated Vendor)
equal to the aggregate of any previous payment or payments previously
made by the Vendor under this Schedule (and not previously refunded
under this Schedule) up to the amount of the excess; and
(c) to the extent that there is any remaining excess, the remainder of that
excess shall be carried forward and set off against any future payment
or payments which become due from the Vendor under this Schedule.
7.3 The amount of the Tax Refund shall be calculated on the basis that no
Tax Refund may arise or be increased as a result of a change in the law of Tax
announced after Completion.
7.4 Vendor shall promptly pay (for itself and as trustee for the Designated
Vendor) the Purchaser (for itself and as trustee for the Designated Purchaser)
an amount equal to the reduction of any Tax Refund by Tax Authorities which was
previously credited to the Vendor under Paragraph 7.2.
7.5 This Paragraph 7 shall not apply to a Tax Refund of the Purchaser or
Designated Purchaser or relating to assets held by the Purchaser or Designated
Purchaser prior to Completion.
Page 226
CONFORMED COPY
8. NOTIFICATION OF CLAIMS AND CONDUCT OF DISPUTES
8.1 If the Purchaser, any SF Group Company become aware of any Tax
Assessment which (either alone or if combined with any other present or
prospective Tax Assessment) could give rise to a liability for the Vendor under
this Schedule, the Purchaser shall or shall procure that the Designated
Purchaser shall give notice to the Vendor of that Tax Assessment (including
reasonably sufficient details of such Tax Assessment, the due date for any
payment and the Time Limits for any appeal, and so far as practicable the amount
of the claim under this Schedule in respect thereof) as soon as possible (and in
any event not more than 15 Business Days after the Purchaser, the SF Group
Company concerned becomes aware of such claim), and shall take (or procure that
the SF Group Company concerned shall take) such action as the Vendor may
reasonably request to avoid, dispute, resist, appeal, compromise or defend the
Tax Assessment and any adjudication in respect thereof (subject to the provisos
in Paragraph 8.2 below). The Vendor acknowledges that the failure to comply with
the obligations in this Paragraph 8.1 in no way affects the Purchaser's ability
to make a Tax Claim (for itself and/or as trustee for each member of the
Purchaser's Group) but that the Vendor's remedy for breach by the Purchaser of
this Paragraph shall be in damages.
8.2 The Vendor shall have the right (if it wishes) to control any
proceedings taken in connection with such action, including the right to appoint
agents and advisers, to conduct in any proceedings any appeal before the first
appellate body (excluding the Tax Authority that has made the claim) in any
Event and to conduct any appeal before any other court or tribunal if the Vendor
obtains (at the Vendor's cost) the opinion of independent Tax counsel of not
less than 10 years' relevant experience that there is a reasonable chance that
the appeal will be successful and to have sole control of any negotiations,
discussions or correspondence with any Tax Authority in relation to the Tax
Assessment provided:
(a) the Vendor shall indemnify the Purchaser and the SF Group Company to the
reasonable satisfaction of the Purchaser against the Tax and any
additional Tax and costs which the Purchaser or the SF Group Company may
incur in connection with the taking of action pursuant to this paragraph
8.2, including compensation, where relevant, for any Tax that may be
additionally incurred in any future Tax Period by reason of or in
consequence of the taking of such action;
(b) keep the Purchaser fully informed of all matters relating to the Tax
Assessment and deliver to the Purchaser copies of all correspondence
relating to the Tax Assessment;
(c) obtain the Purchaser's prior written approval (not to be unreasonably
withheld or delayed) to the appointment of legal and other professional
advisers and the content and sending to a Tax Authority of each
communication (written or otherwise) relating to the Tax Assessment; and
(d) obtain the Purchaser's prior written approval to the agreement of any
matter which is likely to affect the amount of the Assessment or the
future liability of any SF Group Company or the Purchaser in respect of
Tax;
Page 227
CONFORMED COPY
and it is further being understood that the Vendor's rights under this paragraph
8.2 shall cease if the Vendor fails to comply with any of the above obligations
or the Vendor takes corporate action, or other steps are taken or legal
proceedings are started for its winding up, dissolution, administration, or
re-organisation or for the appointment of a receiver, administrator, trustee or
similar officer of it or of any of its assets;
8.3 Subject to Paragraph 37.2, the Purchaser shall or shall procure that the
Designated Purchaser shall keep the Vendor fully informed of any actual or
proposed developments (including any meetings) and shall provide the Vendor with
copies of all material correspondence and documentation relating to such Tax
Assessment or action, and such other information, assistance and access to
records and personnel as it reasonably requires.
8.4 The Vendor shall reimburse to the Purchaser its reasonable costs and
expenses properly incurred in connection with any such action or proceedings as
are referred to in Paragraphs 37.1, 37.2 and 8.3.
8.5 Subject to Paragraph 37.6, the Purchaser shall procure that no Tax
Assessment, action or issue in respect of which the Vendor could be required to
make a payment under this Schedule is settled or otherwise compromised without
the Vendor's prior written consent, such consent not to be unreasonably
withheld, and the Purchaser shall, and shall procure that each SF Group Company
and any of their respective advisers shall, not submit any correspondence or
return or send any other document to any Tax Authority where the Purchaser or
any such person is aware or could reasonably be expected to be aware that the
effect of submitting such correspondence or return or sending such document is
reasonably likely to increase a claim under this Schedule, unless requested to
do so by Vendor or first affording the Vendor a reasonable opportunity to
comment thereon and taking account of such comments so far as it is reasonable
to do so.
8.6 If the Vendor does not request the Purchaser to take any appropriate
action within 20 Business Days of notice to the Vendor, the Purchaser shall be
free to satisfy or take control of proceedings or settle the relevant Tax
Liability on such terms as it may reasonably think fit free from limitations
under Paragraph 8.5 and subject to full indemnification under Paragraph 3.
9. DUE DATE OF PAYMENT AND INTEREST
9.1 The Vendor shall pay (for itself and as trustee for the Designated
Vendor) to the Purchaser (for itself and as trustee for the Designated
Purchaser) any amount payable under this Schedule on or before the date which is
the later of the date five (5) Business Days after demand is made therefore by
the Purchaser and:
(a) in the case of a Tax Liability that involves an actual or increased
payment of Tax, five (5) Business Days before the first date on which
the Tax in question becomes payable to the Tax Authority demanding the
same;
(b) in the case of a Tax Liability that involves an actual or increased
payment of Tax which would have arisen but for being satisfied, avoided
or reduced by
Page 228
CONFORMED COPY
any Accounts Relief or Post-Completion Relief or other Tax benefit,
credit or refund, five (5) Business Days before the first date on which
the Tax in question would have become payable to the Tax Authority but
for the use of the Accounts Relief or Post-Completion Relief or other
Tax benefit, credit or refund;
(c) in the case of a Tax Liability that involves the disallowance, loss,
clawback, reduction, restriction, or modification of any Accounts Relief
or the non-availability or non-existence of an Accounts Relief or other
Tax benefit, credit or refund (other than a repayment of Tax), five (5)
Business Days before the first date on which the Tax, which it would not
otherwise have had to pay, becomes payable;
(d) in the case of a Tax Liability that involves the disallowance, loss,
clawback, reduction, restriction, or modification of a right to
repayment of Tax the date of such disallowance, loss, clawback,
reduction, restriction or modification;
(e) in the case of a liability under Paragraph 5 of this Schedule, five (5)
Business Days before the Purchaser or SF Group Company becomes liable to
pay the costs,
provided that (i) if the date on which the Tax (other than a Tax payable in the
US or political subdivisions thereof) can be recovered is deferred following
application to the relevant Tax Authority, the date for payment by the Vendor
shall be two (2) Business Days before such later date when the amount of Tax is
finally and conclusively determined (and for this purpose, an amount of Tax
shall be deemed to be finally and conclusively determined when, in respect of
such amount, a decision of a court or tribunal is given or any binding agreement
or determination is made from which either no appeal lies or in respect of which
no appeal is made within the prescribed Time Limit); and (ii) if a payment or
payments to the relevant Tax Authority prior to the date otherwise specified by
this Paragraph would avoid or minimise interest or penalties, the Vendor may at
its option pay the whole or part of the amount due to the Purchaser on an
earlier date or dates, and the Purchaser shall procure that the Tax in question
(or the appropriate part of it) is promptly paid to the relevant Tax Authority.
9.2 The Vendor may, with the Purchaser's consent, not to be unreasonably
withheld or delayed, make a direct payment in respect of the Tax Liability in
question to the relevant Tax Authority and the Vendor's liability to the
Purchaser shall be treated as reduced or eliminated accordingly.
10. AMOUNT OF TAX LIABILITY
The amount of the Tax Liability shall be as follows:
(a) in the case of a Tax Liability that involves an actual or increased
payment of Tax, the amount of such payment or increased payment;
(b) in the case of a Tax Liability that involves an actual or increased
payment of Tax which would have arisen but for being satisfied, avoided
or reduced by
Page 229
CONFORMED COPY
any Accounts Relief or Post-Completion Relief or other Tax benefit,
credit or refund, the amount of Tax which the Accounts Relief or
Post-Completion Relief or other Tax benefit, credit or refund saves;
(c) in the case of a Tax Liability that involves the disallowance, loss,
clawback, reduction, restriction, or modification of any Accounts Relief
or the non-availability or non-existence of an Accounts Relief (other
than a repayment of Tax) or other Tax benefit, credit or refund, the
amount by which the net assets of the SF Group as shown in the
Completion Balance Sheet would have been reduced (or its net liabilities
increased) but for the presumed availability of the Accounts Relief; and
(d) in the case of a Tax Liability that involves the disallowance, loss,
clawback, reduction, restriction, or modification of a right to a
repayment of Tax, the amount of the repayment so disallowed, lost,
clawed back, reduced, restricted or modified.
11. PAYMENTS FREE OF WITHHOLDING, ETC.
11.1 All payments made by the Vendor (for itself and as trustee for the
Designated Vendor) under this Schedule shall be made gross, free of any right of
counterclaim or set-off and without deduction or withholding of any kind other
than any deduction or withholding required by law.
11.2 If the Vendor makes a deduction or withholding required by law from a
payment under this Schedule, the sum due from the Vendor shall be increased to
the extent necessary to ensure that, after the making of any deduction or
withholding (including any deductions on additional amounts payable under this
Section), the Purchaser receives (for itself and as trustee for the Designated
Purchaser) a sum equal to the sum it would have received had no deduction or
withholding been made.
11.3 If a payment made under this Schedule will be or has been subject to
Tax, the Vendor shall pay (for itself and as trustee for the Designated Vendor)
to the Purchaser the amount (after taking into account Tax payable in respect of
the amount) that will ensure that the Purchaser receives and retains (for itself
and as trustee for the Designated Purchaser) a net sum equal to the sum it would
have received had the payment not been subject to Tax.
12. RECOVERY FROM THIRD PARTIES/TAX SAVINGS
12.1 If any payment is made by the Vendor (for itself and as trustee for the
Designated Vendor) to the Purchaser (for itself and as trustee for the
Designated Purchaser) under this Schedule of a Tax Liability and the Purchaser,
any SF Group Company either receives, or is entitled or may be entitled either
immediately or at some future date to recover or obtain, from any person (other
than the Purchaser, or any SF Group Company) a payment or relief which is
attributable to the Tax Liability in question, then:
(a) the Purchaser shall notify the Vendor of that fact as soon as possible
and if so required by the Vendor shall take (or shall procure that any
SF Group
Page 230
CONFORMED COPY
Company or other person concerned shall take) such action as the Vendor
may reasonably request to enforce such recovery or to obtain such
payment or relief (keeping the Vendor fully informed of the progress of
any action taken, providing it with copies of all relevant and material
correspondence and documentation and subject to the provisions in
paragraph 8.2); and
(b) if the Purchaser, the Company or the Subsidiary or other person
concerned receives or obtains a payment or relief which is attributable
to the Tax Liability or other matter in question, the Purchaser shall
pay to the Vendor the amount received or the amount that the Purchaser,
the Company or the Subsidiary or other person concerned will save by
virtue of the payment or the relief (less any reasonable costs of
recovering or obtaining such payment or relief and any Tax actually
suffered thereon) (the BENEFIT) to the extent that the amount of the
Benefit does not exceed the aggregate payments previously made by the
Vendor under this Schedule, and except where any amount so saved would
otherwise have given rise to a claim under this Schedule (in which event
no such claim shall be made). Any amount of the Benefit not so paid to
the Vendor shall be carried forward and set off against any future
claims under this Schedule.
12.2 In circumstances where the Benefit is paid to a Subsidiary listed as a
non-wholly owned subsidiary in Schedule 2 (Particulars of the SF Group), in
determining the amount of the Benefit that is to be paid to the Vendor (for
itself and as trustee for the Designed Vendor), only that proportion of 100 per
cent. of the Benefit as corresponds to the percentage interest indicated next to
the name of that Subsidiary in that Schedule shall be paid to the Vendor.
12.3 Any payment required to be made by the Purchaser (for itself and as
trustee for the Designated Purchaser) pursuant to Paragraph 12.1 of this
Schedule shall be made:
(a) in a case where the Purchaser, the SF Group Company or other person
concerned receives a payment, within 5 Business Days of the receipt
thereof; and
(b) in a case where the Purchaser, the SF Group Company or other person
concerned obtains a relief, on or before the date on which Tax would
have become recoverable by the appropriate Tax Authority but for the use
of such relief.
12.4 If the Purchaser (for itself and as trustee for the Designated
Purchaser) or any SF Group Company pays a Benefit under Paragraph 12.1 of this
Schedule and the amount of such Benefit is subsequently reduced (whether by a
Tax Authority or otherwise), the Vendor shall return the excess to the Purchaser
(for itself and as trustee for the Designated Purchaser) or the SF Group Company
on demand. Any recovery or Tax savings under this Paragraph 12 which is
subsequently reduced by the Tax Authorities or other persons to the detriment of
the Purchaser shall be considered an excess Benefit recoverable under the
proceeding sentence.
Page 231
CONFORMED COPY
12.5 The Purchaser shall procure that any such relief as is referred to in
Paragraph 12.3 of this Schedule is used in priority to any other relief, and in
the absence of evidence to the contrary it shall be deemed to be so used. The
Vendor shall be entitled to require that the SF Group Company or other person's
auditors shall certify the amount and date of use of such relief for the
purposes of this Paragraph 12 of this Schedule.
13. MANAGEMENT OF PRE-COMPLETION TAX AFFAIRS
13.1 Subject to and in accordance with the provisions of this Paragraph the
Vendor or its duly authorised agents shall, in respect of all Tax Periods ending
on or before Completion, and at its own cost:
(a) prepare and submit the Tax Returns of each of the SF Group Companies;
(b) prepare and submit on behalf of the SF Group Companies all claims,
elections, surrenders, disclaimers, notices and consents for the
purposes of Tax; and
(c) (subject to Paragraph 8 of this Schedule) deal with all matters relating
to Tax which concern or affect any of the SF Group Companies, including
the conduct of all negotiations and correspondence and the reaching of
all agreements relating thereto or to any Tax Documents, but excluding
payment of Tax.
13.2 The Vendor or its duly authorised agent shall deliver all Tax Documents
which are required to be signed by or on behalf of any SF Group Company to the
Purchaser for the Purchaser's approval (such approval not to be unreasonably
withheld or delayed) where upon the Purchaser shall authorise and sign the Tax
Documents prior to submission to the relevant Tax Authority. If a Time Limit
applies in relation to any Tax Document, the Vendor shall ensure that the
Purchaser receives the Tax Document no later than ten (10) Business Days before
the expiry of the Time Limit.
13.3 The Vendor shall procure that:
(a) the Purchaser receives copies of all written correspondence with any Tax
Authority and any document which the Vendor intends to submit to a Tax
Authority in each case insofar as it is relevant to the Pre-Completion
Tax Affairs;
(b) the Vendor takes into account any reasonable comments on such written
correspondence and documents as the Purchaser may make in a timely
manner;
(c) no Tax Document is submitted to any Tax Authority which is not, so far
as the Vendor is aware, complete, true and accurate in all respects, and
not misleading; and
(d) no Tax Document or any correspondence relating thereto is submitted to
any Tax Authority without the approval of the Purchaser, such approval
not to be
Page 232
CONFORMED COPY
unreasonably withheld or delayed. For the purposes of this Paragraph
(d), the Purchaser's approval shall be deemed not to be unreasonably
withheld where the Purchaser reasonably considers that:
(i) such Tax Documents or correspondence are not true, complete,
accurate and lawful in all respects; or
(ii) such Tax Documents or correspondence are reasonably likely to
prejudice the amount of liability of any SF Group Company in
respect of Tax for which the Vendor is not liable under this
Schedule.
The Purchaser's approval shall be deemed not to be unreasonably delayed
if given within 30 Business Days or within any other period agreed
between the Vendor and the Purchaser.
13.4 The Purchaser shall procure that:
(a) the Vendor and its duly authorised agents are afforded such access
(including the taking of copies) to the books, accounts and records of
the SF Group Companies and such other assistance as it or they
reasonably require to enable the Vendor to discharge its obligations
under Paragraph 13.1 and to enable the Vendor and any member of the ABB
Group to comply with its own Tax obligations or facilitate the
management or settlement of its own Tax affairs;
(b) the Vendor is promptly sent a copy of any communication from any Tax
Authority insofar as it relates to the Pre-Completion Tax Affairs; and
(c) there is given to such person or persons as may for the time being be
nominated by the Vendor authority (subject to Paragraph 8 of this
Schedule) to conduct Pre-Completion Tax Affairs, and that such authority
is confirmed to any relevant Tax Authority.
13.5 Subject to Paragraph 13.3, the Purchaser shall be obliged to procure
that the SF Group Company shall cause any Tax Document delivered to it under
Paragraph 13.2 to be authorised, signed and returned to the Vendor in a timely
manner for submission to the appropriate Tax Authority (and in any event within
any relevant Time Limit).
14. CONDUCT OF OTHER TAX AFFAIRS
14.1 Subject to Paragraph 8 and to the following Sub-Paragraphs, the
Purchaser or its duly authorised agents shall have sole conduct of all Tax
affairs of each of the SF Group Companies which are not Pre-Completion Tax
Affairs and shall be entitled to deal with such Tax affairs in any way in which
it, in its absolute discretion, considers fit.
14.2 In respect of any Straddle Period, the Vendor and Purchaser shall
discuss in good faith the basis on which the Tax Returns of each SF Group
Company shall be prepared with a view to limiting to the extent reasonably
possible any liability to Tax in respect of which a Tax Assessment could be made
where such liability arises from
Page 233
CONFORMED COPY
the difference between such basis and the basis upon which the Tax Returns of
the SF Group Companies were prepared for all Tax Periods ending prior to
Completion.
14.3 The Purchaser shall procure that the SF Group Companies provide to the
Vendor all Tax Returns relating to the Straddle Period no later than twenty (20)
Business Days before the date on which such Tax Returns are required to be filed
with the appropriate Tax Authority without incurring interest or penalties. The
Purchaser shall further procure that the SF Group Companies shall take the
Vendor's reasonable comments into account before the Tax Returns are submitted
to the appropriate Tax Authority. Provided that it shall not be deemed to be a
reasonable comment if it is reasonably likely to prejudice the amount of Tax
Liability of any SF Group Company for which the Vendor is not liable under this
Schedule.
14.4 The Vendor shall provide such assistance as the Purchaser shall
reasonably request in preparing all Tax Returns relating to the Straddle Period.
15. SWEDISH MATTERS
15.1 Without prejudice to Paragraph 8, the Vendor and Purchaser note that
there is an audit by the Swedish Tax Authority on-going in respect of any
Swedish SF Group Company, and the Vendor and the Purchaser agree to co-operate
with one another in respect of such audit.
15.2 Where the Purchaser or any professional advisers in Sweden make a
request of the Vendor or (if relevant) a ABB Group Company to waive any conflict
of interest issues that could or would arise if such professional adviser were
to act for the Purchaser or a SF Group Company, the Vendor hereby agrees with
the Purchaser that it shall, or (if relevant) shall procure that a ABB Group
Company shall, do all that is reasonably requested by the Purchaser and/or the
professional adviser to ensure that such conflict issues shall not prevent that
professional adviser from acting for the Purchaser or the SF Group Company, as
the case may be.
16. INTEREST
Any sum not paid by the Vendor or the Purchaser as the case may be on the due
dates of payment specified in this Schedule shall bear interest (which shall
accrue from day to day after as well as before any judgment for the same) at a
rate per annum equal to the rate of 2 per cent. per annum over the base rate of
Citibank N.A., New York branch, for the relevant currency from the due date to
and including the day of actual payment of such sum compounded six monthly. Such
interest shall be paid on the demand of the Purchaser when due to the Purchaser
or on the demand of the Vendor when due to the Vendor.
17. TRANSFER OF GOING CONCERN
Each party shall make all reasonable efforts to ensure that each of the
transfers of the Business Assets under this Agreement is treated as neither a
supply of goods nor a supply of services for the purposes of VAT, and the
parties intend each of the transfers of the Business Assets to be a transfer of
a going concern.
Page 234
CONFORMED COPY
18. TREATMENT OF PAYMENTS
Any payment made for breach of any part of Paragraph 2 of this Schedule or
pursuant to paragraphs 3, 5, 7, 12.1 or 12.3 of this Schedule shall be treated
to the extent possible as an adjustment to the consideration paid by the
Purchaser (for itself and as trustee for the Designated Purchaser) to the Vendor
(for itself and as trustee for the Designated Vendor) in respect of those Shares
to which the payment relates.
19. DISPUTES
If there is a dispute between the Purchaser and Vendor in relation to any part
of this Schedule, such dispute shall be referred to an independent member of the
Chartered Institute of Taxation of at least 10 years' experience or counsel
specialising in Tax of equivalent experience and standing in the relevant
jurisdiction, appointed by agreement between the Purchaser and the Vendor or (if
they do not agree) upon the application made by either party to the President
for the time being of the Chartered Institute of Taxation or equivalent foreign
body (as appropriate) who shall also be authorised to determine how the costs of
obtaining the opinion should be allocated between the parties.
Page 235
CONFORMED COPY
SCHEDULE 9A
NET PRESENT VALUE BENEFIT
1. For the purposes of agreeing the net present value benefit referred to
in paragraph 3.3 of Schedule 9 (Tax), the Vendor and the Purchaser shall agree a
statement (the STATEMENT and a revised statement(s), if required, (the REVISED
STATEMENT) in accordance with the provisions of this Schedule.
2. The deferred Tax balance at Completion will be the deferred Tax of each
of the SF Group Companies included in the Completion Balance Sheet (the DEFERRED
TAX BALANCE).
3. The anticipated remaining Deferred Tax Balance at the end of each
subsequent accounting period will be prepared on the basis of the Projected
reversal of the Deferred Tax Balance of the SF Group Companies to which the
deferred Tax relates (PROJECTED FUTURE DEFERRED TAX BALANCES). With respect to
any lease the reversal is based upon the expectation that the deferred Tax will
reverse through the date of the early buyout option, if any, under that lease.
4. The Statement shall set out the Projected Future Deferred Tax Balances
together with the present value of each Projected Future Deferred Tax Balance
(the PROJECTED PRESENT VALUE). The Projected Present Value for these purposes
shall be calculated as the present value of the Projected Future Deferred Tax
Balances discounted with the Discount Rate (defined below) at Completion. The
"Discount Rate" shall be the Purchaser's borrowing rate for a maturity
corresponding to the approximate average life of the Projected Future Deferred
Tax Balances in each jurisdiction for which the SF Group Companies to which the
deferred Tax are located.
5. In addition thereto the Statement shall also set out the net present
value benefit of each Projected Future Deferred Tax Balance (the PROJECTED NET
PRESENT VALUE BENEFIT). The Projected Net Present Value Benefit shall be equal
to the Projected Future Deferred Tax Balances less the Projected Present Value.
6. The Revised Statement shall be agreed between the Vendor and the
Purchaser in the event (and each time) the Vendor is liable to make a payment to
the Purchaser pursuant to paragraph 3.3 of Schedule 9 (Tax).
7. A Revised Statement shall recompute, from the beginning of the
accounting period in which the event giving rise to the liability of the Vendor
under paragraph 3.3 of Schedule 9 (Tax) took place, the Projected reversal of
the remaining Deferred Tax Balance (the ACTUAL FUTURE DEFERRED TAX BALANCE).
8. The Revised Statement shall set out the Actual Future Deferred Tax
Balance together with the present value of the Actual Future Deferred Tax
Balance (the ACTUAL PRESENT VALUE). The Actual Present Value for these purposes
shall be calculated as the present value of the Actual Future Deferred Tax
Balances discounted by the Discount Rate.
Page 236
CONFORMED COPY
9. In addition thereto the Revised Statement shall also set out the net
present value benefit of the Actual Future Deferred Tax Balance (the ACTUAL NET
PRESENT VALUE BENEFIT). The Actual Net Present Value Benefit shall be equal to
the Actual Future Deferred Tax Balances less the Actual Present Value.
10. The net present value benefit referred to in paragraph 3.3 of Schedule 9
(Tax) shall be equal to the Projected Net Present Value Benefit less the Actual
Net Present Value Benefit.
11. The Statement will be set out in a document to be prepared by Vendor as
soon as reasonably possible after Completion and in any event within 5 Business
Days after completion of the Completion Balance Sheet and delivered to the
Purchaser by such time. The Statement shall be reviewed by the Purchaser and the
Vendor shall provide or procure the provision of such documents and records
within its possession or control that the Purchaser may reasonably require in
connection with reviewing the Deferred Tax Balance Statement.
12. A Revised Statement will be set out in a document to be prepared by
Purchaser as soon as reasonably possible after the Purchaser has given
notification, pursuant to paragraph 8 of Schedule 9 (Tax), of the liability of
the Vendor under clause 3.3 of the Schedule 9 (Tax) and shall deliver such
Revised Statement to the Vendor.
13. If the Purchaser disputes the Statement or the Vendor disputes a Revised
Statement (the OBJECTOR) then the Objector shall provide the other party with
details and reasons as soon as reasonably possible as to why it disputes any
aspects of the Statement or a Revised Statement (the OBJECTIONS) and the Vendor
and the Purchaser will then make all reasonable efforts to reach agreement on
the issue and shall cooperate fully with one another in that process.
14. If the Vendor and the Purchaser are unable to reach agreement within a
period of 10 Business Days from the receipt by the other party of the
Objections, then either the Vendor or the Purchaser (as the case may be) may
request in writing to the other (the REQUEST) that the matter to be referred to
a partner of at least 10 years qualified experience at an internationally
recognised chartered accountancy firm agreed by the parties in writing or,
failing agreement on the identity of such a partner or of the firm of chartered
accountants within a further 5 Business Days of day starting on the day on which
the Request was made, a partner of an internationally recognised chartered
accountancy firm appointed on the application of either party to the President
for the time being of the American Certified Public Accountants or other person
of equivalent standing in another jurisdiction (for the purposes of this
Schedule 9A only, the EXPERT).
15. The Expert shall act on the following basis:
15.1 the Expert shall act as an expert and not as an arbitrator;
15.2 the Expert's terms of reference shall be to determine the
matters in dispute within 20 Business Days of his appointment;
Page 237
CONFORMED COPY
15.3 the parties shall each provide the Expert with all information
relating to each of the SF Group Companies which the Expert
reasonably requires and the Expert shall be entitled (to the
extent he considers appropriate) to base his determination on
such information and on the accounting and other records of the
SF Group Companies;
15.4 the decision of the Expert is, in the absence of fraud or
manifest error, final and binding on the parties; and
15.5 the Vendor and the Purchaser shall each pay one half of the
Expert's costs or as the Expert may determine.
16. The Statement and a Revised Statement (as the case may be) adjusted in
accordance with the agreement, if any, between the Vendor and the Purchaser or
(as the case may be) the decision of the Expert shall be final and binding on
the parties.
Page 238
CONFORMED COPY
SCHEDULE 10
FORM OF COMPLETION BALANCE SHEET
(US$ IN THOUSANDS) COMPLETION DATE
---------------
Cash and equivalents: US$
on deposit with Third party
on deposit with Related party
Deposits, related party
Receivables, net:
Third party
Related party
Intra-Group Indebtedness receivable
Financing receivables:
Loans
Leases and residuals
Less: Allowance
---------------
Financing receivables, net
Prepaid expenses and other current assets:
Third party
Related party
---------------
TOTAL CURRENT ASSETS
Financing receivables:
Loans
Leases and residuals
Less: Allowance
---------------
Financing receivables, net
Property, plant and equipment
Less: Accumulated deprecation
Property, plant and equipment, net
Goodwill and other intangible assets, net
Investments and other
---------------
TOTAL ASSETS US$
===============
Accounts payable, trade: US$
Third party
Related party
Accounts payable, other:
Third party
Related party
Short-term borrowings and current portion of long-
term borrowings:
Third party
Related party
Accrued liabilities and other:
Page 239
CONFORMED COPY
(US$ IN THOUSANDS) COMPLETION DATE
---------------
Third party
Related party
---------------
TOTAL CURRENT LIABILITIES
Long-term borrowings, third party
Pension and other related benefits
Deferred taxes, net
Current Taxes
Other liabilities:
Third party
Related party
Intra-Group Indebtedness payable
---------------
TOTAL LIABILITIES
Minority interest
Owners' equity
---------------
TOTAL LIABILITIES AND OWNERS' EQUITY US$
===============
Note: Additional lines and information can be added as needed when establishing
the Completion Balance Sheet or during the audit of the Completion Balance
and related matters (such as in relation to Additional Reserves, the Net
Sirius Equity Impact and/or the ABB Export Bank Outstanding Loan Balance).
Page 240
CONFORMED COPY
FORM OF THE APPENDIX TO THE COMPLETION BALANCE SHEET
DEFERRED TAXES (in USD 000's)
COMPANY DEFERRED ITEM TOTAL 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017
------------------------------------------------------------------------------------------------------------------------------------
SECRE Accelerated
Depreciation
------------------------------------------------------------------------------------------------------------------------------------
SECRF Accelerated
Depreciation
------------------------------------------------------------------------------------------------------------------------------------
ITRLEX Accelerated
Depreciation
------------------------------------------------------------------------------------------------------------------------------------
ITREN Accelerated
Depreciation
------------------------------------------------------------------------------------------------------------------------------------
SEREL Accelerated
Depreciation
------------------------------------------------------------------------------------------------------------------------------------
USSTF Accelerated
Depreciation
====================================================================================================================================
TOTAL DEFERRED TAX
====================================================================================================================================
SECRE SECRF ITRLEX ITREN SEREL USSTF TOTAL
-------------------------------------------------------------------------------------
TOTAL TAX
=====================================================================================
Page 241
CONFORMED COPY
SCHEDULE 11
ACCOUNTANT'S REPORT AND INDEBTEDNESS SCHEDULE
PART A
ACCOUNTANTS' REPORT
DRAFT
ABB Financial Services B.V.
and
General Electric Capital Corporation
Zurich, [ ], 2002
THIS DRAFT IS FURNISHED SOLELY FOR THE PURPOSE OF INDICATING THE FORM OF THE
LETTER THAT WE WOULD EXPECT TO BE ABLE TO FURNISH ABB FINANCIAL SERVICES B.V.
AND GENERAL ELECTRIC CAPITAL CORPORATION IN RESPONSE TO THEIR REQUEST, THE
MATTERS EXPECTED TO BE COVERED IN THE LETTER, AND THE NATURE OF THE PROCEDURES
THAT WE WOULD EXPECT TO CARRY OUT WITH RESPECT TO SUCH MATTERS. BASED ON OUR
DISCUSSIONS WITH ABB FINANCIAL SERVICES B.V. AND GENERAL ELECTRIC CAPITAL
CORPORATION, IT IS OUR UNDERSTANDING THAT THE PROCEDURES OUTLINED IN THIS DRAFT
LETTER ARE THOSE THEY WISH US TO FOLLOW. UNLESS ABB FINANCIAL SERVICES B.V. AND
GENERAL ELECTRIC CAPITAL CORPORATION INFORM US OTHERWISE, WE SHALL ASSUME THAT
THERE ARE NO ADDITIONAL PROCEDURES THEY WISH US TO FOLLOW. THE TEXT OF THE
LETTER ITSELF WILL DEPEND, OF COURSE, ON THE RESULTS OF THE PROCEDURES, WHICH WE
WOULD NOT EXPECT TO COMPLETE UNTIL SHORTLY BEFORE THE LETTER IS GIVEN AND IN NO
EVENT BEFORE THE CUT-OFF DATE INDICATED THEREIN. THE RESTRICTIONS EXPRESSED IN
THE CONCLUDING PARAGRAPH APPLY TO THIS DRAFT.
REPORT OF INDEPENDENT ACCOUNTANTS ON
APPLYING AGREED-UPON PROCEDURES
Dear Sirs,
We refer to the
sale and purchase agreement between yourselves and
ABB Ltd dated
4 September 2002 (the "Sale Agreement").
We have performed the procedures enumerated below, which were agreed to by
members of management of ABB Financial Services B.V. and General Electric
Capital Corporation, solely to assist you in evaluating the accompanying
Reconciliation of Net Intra-Group Indebtedness to the draft Completion Balance
Sheet (as defined in the Sale Agreement) as of [ ] (the "Reconciliation"). ABB
Financial Services B.V.'s management is responsible for the preparation of the
Reconciliation. This agreed-upon procedures engagement was conducted in
accordance with attestation standards established by the American Institute of
Certified Public Accountants. The sufficiency of these procedures is solely the
responsibility of ABB Financial Services B.V. and General Electric Capital
Page 242
CONFORMED COPY
Corporation, as specified in this report. Consequently, we make no
representation regarding the sufficiency of the procedures described below
either for the purpose for which this report has been requested or for any other
purpose.
As requested by you, we have carried out the following procedures on the
accompanying Reconciliation:
1. Compare the amounts listed for "Cash and equivalents," "Deposits,"
"Receivables, net," "Prepaid expenses and other," "Accounts payable,
trade," "Accounts payable, other," "Accrued liabilities and other,"
"Current portion of long-term borrowings and short-term borrowings,"
"Other non-current liabilities," and "Long-term borrowings" in the
column "Total amounts recorded in balance sheet as related party
balances (USD)" with the corresponding amounts in the draft Completion
Balance Sheet as of [ ].
We compared the aforementioned amounts and found them to be in
agreement.
We make no comment as to the appropriateness of such summarizations or
classifications.
2. Test the arithmetic accuracy of the cross-total in each of the rows
"Cash and equivalents," "Deposits," "Receivables, net," "Prepaid
expenses and other," "Accounts payable, trade," "Accounts payable,
other," "Accrued liabilities and other," "Current portion of long-term
borrowings and short-term borrowings," "Other non-current liabilities,"
and "Long-term borrowings."
We tested the arithmetic accuracy of the aforementioned cross-totals and
found them to be arithmetically accurate.
3. Test the arithmetic accuracy of each total in the row "Net indebtedness
in USD" and each total in the row "Reporting Currency."
We tested the arithmetic accuracy of the aforementioned totals and found
them to be arithmetically accurate.
4. Compare the amount listed for each reporting currency in the row "Total
Net Intra-Group Indebtedness translated into USD" with the corresponding
amount in the row "Net indebtedness in USD."
We compared the aforementioned amounts and found them to be in
agreement, except as follows:
- The amount identified as [ ] differed from the amount identified as
[ ] by [ ].
5. Test the arithmetic accuracy of each amount in the row "Total Net
Intra-Group Indebtedness translated into USD" as calculated by
multiplying the corresponding amount listed for the reporting currency
by the amount listed for the corresponding exchange rate.
Page 243
CONFORMED COPY
We tested the arithmetic accuracy of the aforementioned amounts and
found them to be arithmetically accurate.
6. Test the arithmetic accuracy of each amount in the columns "Translated
into EUR," "Translated into USD" "Translated into CHF" "Translated into
SEK" "Translated into GBP" and "Translated into [ ]" as calculated by
multiplying the corresponding amount listed for the transaction currency
by the amount listed for the corresponding exchange rate.
We tested the arithmetic accuracy of the aforementioned amounts and
found them to be arithmetically accurate.
7. Test the arithmetic accuracy of each of the cross-totals in the column
"Total Net Intra-Group Indebtedness in relevant transaction currency" as
calculated by adding together the amounts listed for each corresponding
transaction currency.
We tested the arithmetic accuracy of the aforementioned cross-totals and
found them to be arithmetically accurate.
We were not engaged to, and did not perform an audit of the Reconciliation, the
objective of which would be the expression of an opinion on the specified
elements, accounts or items thereof. Accordingly, we do not express such an
opinion. Had we performed additional procedures, other matters might have come
to our attention that would have been reported to you.
This report is intended solely for the use of the management of ABB Financial
Services B.V. and General Electric Capital Corporation and should not be used by
those who have not agreed to the procedures and taken responsibility for the
sufficiency of the procedures for their purposes.
Yours faithfully,
Ernst & Young AG
Attachment:
Reconciliation of Intra-Group Indebtedness to draft Completion Balance Sheet as
of [ ]
Page 244
CONFORMED COPY
PART B
INDEBTEDNESS SCHEDULE
RECONCILIATION OF NET INTRA -GROUP PREPARED BY MANAGEMENT OF ABB
INDEBTEDNESS TO DRAFT COMPLETION FINANCIAL SERVICES B.V.
BALANCE SHEET AS OF [ ]
ALL AMOUNTS (EXCEPT FOR EXCHANGE
RATES) IN THOUSANDS OF THE SPECIFIED
CURRENCY
ALL TRANSACTIONS FOR TOTAL FOR USD ALL TRANSACTIONS FOR TOTAL FOR USD
EUR REPORTING REPORTING USD REPORTING REPORTING
COMPANIES IN COMPANIES TRANSLATED INTO COMPANIES IN COMPANIES TRANSLATED INTO
TRANSACTION CURRENCY TRANSACTION CURRENCY EXCHANGE RATE EUR TRANSACTION CURRENCY EXCHANGE RATE USD
------------------------------------------------------------------------------------------------------------
EUR 1.0000 0 1.0000 0
USD 1.0000 0 1.0000 0
CHF 1.0000 0 1.0000 0
SEK 1.0000 0 1.0000 0
GBP 1.0000 0 1.0000 0
[ ]
------------------------------------------- --------------- -------------------- ---------------
Reporting currency 0 0
Exchange rate 1.0000 1.0000
Total Net Intra-Group Indebtedness translated into USD 0 0
--------------- ---------------
=============== ===============
--------------- ---------------
=============== ===============
Cash and equivalents 0 0
Deposits 0 0
Receivables, net 0 0
Prepaid expenses and other 0 0
Accounts payable, trad e 0 0
Accounts payable, other 0 0
Accrued liabilities and other 0 0
Current portion of long-term borrowings and short-term
borrowings 0 0
Other non-current liabilities 0 0
Long -term borrowings 0 0
--------------- ---------------
Net indebtedness in USD 0 0
=============== ===============
Difference (a) 0 (b) 0
TRANSACTION CURRENCY ALLOCATED BASED UPON LOCAL ENTITY REPORTING CURRENCY
------------------------------------------------------------------------------------------------------------
ALL TRANSACTIONS FOR TOTAL FOR USD ALL TRANSACTIONS FOR TOTAL FOR USD
EUR REPORTING REPORTING USD REPORTING REPORTING
COMPANIES IN COMPANIES TRANSLATED INTO COMPANIES IN COMPANIES TRANSLATED INTO
TRANSACTION CURRENCY TRANSACTION CURRENCY EXCHANGE RATE EUR TRANSACTION CURRENCY EXCHANGE RATE USD
------------------------------------------------------------------------------------------------------------
EUR 1.0000 0 1.0000 0
USD 1.0000 0 1.0000 0
CHF 1.0000 0 1.0000 0
SEK 1.0000 0 1.0000 0
GBP 1.0000 0 1.0000 0
[ ]
------------------------------------------- --------------- -------------------- ---------------
Reporting currency 0 0
Exchange rate 1.0000 1.0000
Total Net Intra-Group Indebtedness translated into USD 0 0
--------------- ---------------
=============== ===============
--------------- ---------------
=============== ===============
Cash and equivalents 0 0
Deposits 0 0
Receivables, net 0 0
Prepaid expenses and other 0 0
Accounts payable, trade 0 0
Accounts payable, other 0 0
Accrued liabilities and other 0 0
Current portion of long-term borrowings and short-term
borrowings 0 0
Other non-current liabilities 0 0
Long-term borrowings 0 0
Net indebtedness in USD 0 0
--------------- ---------------
Difference (c) 0 (d) 0
=============== ===============
ALL TRANSACTIONS FOR TOTAL FOR USD TOTAL NET INTRA-GROUP
GBP REPORTING REPORTING INDEBTEDNESS IN
COMPANIES IN COMPANIES TRANSLATED INTO RELEVANT TRANSACTION
TRANSACTION CURRENCY TRANSACTION CURRENCY EXCHANGE RATE GBP [ ] CURRENCY
-------------------------------------------------------------------------------------
EUR 1.0000 0 -1,000
USD 1.0000 0 -1,000
CHF 1.0000 0 -1,000
SEK 1.0000 0 -1,000
GBP 1.0000 0 -1,000
[ ]
------------------------------------------- --------------- ------- ---------------------
Reporting currency 0
Exchange rate 1.0000
Total Net Intra-Group Indebtedness translated into USD 0
---------------
===============
---------------
===============
TOTAL AMOUNTS
RECORDED IN BALANCE
SHEET AS RELATED
PARTY
BALANCES (USD) ABACUS REPORTING CODES
Cash and equivalents 0 0 UB105
Deposits 0 0 UB115
Receivables, net 0 0 UB165 and UB195
Prepaid expenses and other 0 0 UB225 and UB 255
Accounts payable, trad e 0 0 UB525
Accounts payable, other 0 0 UB615
-------------------- ---------------------
Accrued liabilities and other 0 0 UB625 and UB629
0 0 UB655 and UB665
Other non-current liabilities 0 0 UB705
Long-term borrowings 0 0 UB735 and UB745
--------------- --------------------
Net indebtedness in USD 0 0
=============== ====================
Difference (e) 0
ABB Financial Services B.V.'s explanation of differences, if any:
(a)
(b)
(c)
(d)
(e)
Page 245
CONFORMED COPY
SCHEDULE 12
INDEBTEDNESS
PART A
PART B
PART C
PART D
Page 241
CONFORMED COPY
PART E
THIRD PARTY INDEBTEDNESS AS OF 30 JUNE 2002
OUTSTANDING
TRANS- ORIGINAL OUT- LOCAL PRINCIPAL IN
ACTION LOAN STANDING CCY OF LOCAL CURRENCY OF
SF ENTITY LENDER INSTRUMENT CCY AMOUNT PRINCIPAL SF UNIT SF UNIT
-----------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB DHJ Media SEK ST FLO SEK 30,000,000 30,000,000 SEK 30,000,000
-----------------------------------------------------------------------------------------------------------------------------
ABB RENTAL AB Lulea energi SEK ST FLO SEK 30,259,259 30,259,259 SEK 30,259,259
-----------------------------------------------------------------------------------------------------------------------------
TOTAL SECREX UB652
-----------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB Leonia Bank SEK LT FIX SEK 114,430,425 57,215,215 SEK 57,215,215
-----------------------------------------------------------------------------------------------------------------------------
TOTAL SECREX UB731
-----------------------------------------------------------------------------------------------------------------------------
XEROX NOLEGGI SPA, Various (25 current account
MILAN local banks) balances
-----------------------------------------------------------------------------------------------------------------------------
TOTAL XEROX NOLEGGI SPA, MILAN UB640
-----------------------------------------------------------------------------------------------------------------------------
DEAL
OUTSTANDING RATE (OF
PRINCIPAL IN UB CODE OF VALUE MATURITY PAYMENT ORIGINAL
SF ENTITY LENDER USD SF UNIT DATE DATE FREQUENCY DEAL) COMMENT
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB DHJ Media 3,273,465 UB652 18-Oct-01 18-Apr-04 4 4.4750 Customers deposition
with ABB Credit Finans
AB-(cash collateral)
(Excluded transaction)
------------------------------------------------------------------------------------------------------------------------------------
ABB RENTAL AB Lulea energi 3,301,754 UB652 4-Jul-83 30-Mar-03 4 6.3700 Customers deposition
with ABB Rental AB
------------------------------------------------------------------------------------------------------------------------------------
TOTAL SECREX UB652 6,575,220
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB Leonia Bank 6,243,067 UB731 1-Jul-97 30-Jun-12 2 9.3700 Credit Agreement in
relation to a Supply
Agreement between ABB
Credit Finans AB and a
Finnish Supplier
------------------------------------------------------------------------------------------------------------------------------------
TOTAL SECREX UB731 6,243,067
-----------------------------------------------------------------------------------------------------------------------------
XEROX NOLEGGI SPA, Various (25 90,000 UB640
MILAN local banks)
------------------------------------------------------------------------------------------------------------------------------------
TOTAL XEROX NOLEGGI SPA, MILAN UB640 90,000
------------------------------------------------------------------------------------------------------------------------------------
Page 246
CONFORMED COPY
THIRD PARTY INDEBTEDNESS RELATING TO THE ASSETS
IN THE CZECH REPUBLIC AS OF 30 JUNE 2002
TRANS- ORIGINAL OUT- LOCAL OUTSTANDING
ACTION LOAN STANDING CCY OF PRINCIPAL IN
SF ENTITY LENDER INSTRUMENT CCY AMOUNT PRINCIPAL SF UNIT LOCAL CURRENCY
-----------------------------------------------------------------------------------------------------------------------------
CZELS Zivnostenska EUR LT FIX EUR 5,400,000 3,700,000 CZK 111,200,000
bank, Praha, CZ
-----------------------------------------------------------------------------------------------------------------------------
CZELS Raiffeisenbank, CZK LT FIX CZK 33,900,000 24,700,000 CZK 24,700,000
Praha, CZ
-----------------------------------------------------------------------------------------------------------------------------
TOTAL CZELS UB731
-----------------------------------------------------------------------------------------------------------------------------
DEAL
OUTSTANDING RATE (OF
PRINCIPAL IN UB CODE OF VALUE MATURITY PAYMENT ORIGINAL
SF ENTITY LENDER USD SF UNIT DATE DATE FREQUENCY DEAL) COMMENT
-------------------------------------------------------------------------------------------------------------------------
CZELS Zivnostenska 3,770,386 UB731 28-Jul-99 20-Oct-03 12 6.3500
bank, Praha, CZ
-------------------------------------------------------------------------------------------------------------------------
CZELS Raiffeisenbank, 837,487 UB731 30-Jun-00 00-Xxx-00 0 0.0000
Xxxxx, XX
-------------------------------------------------------------------------------------------------------------------------
TOTAL CZELS UB731 4,607,873
-------------------------------------------------------------------------------------------------------------------------
LIMITED RECOURSE FUNDINGS WITH THIRD PARTIES AS OF 30 JUNE 2002
TRANS- ORIGINAL OUT- LOCAL OUTSTANDING
ACTION LOAN STANDING CCY OF PRINCIPAL IN
SF ENTITY LENDER INSTRUMENT CCY AMOUNT PRINCIPAL SF UNIT LOCAL CURRENCY
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT B.V. Macquarie Bank SEK LT FX SEK 385,569,338 5,741,379 USD 626,473
Limited, London
-------------------------------------------------------------------------------------------------------------------------------
TOTAL NLCRDX UB651
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT B.V. Macquarie Bank SEK LT FX SEK 385,569,338 361,519,939 USD 39,447,432
Limited, London
-------------------------------------------------------------------------------------------------------------------------------
TOTAL NLCRDX UB731
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EIB SEK LT FLO SEK 50,000,000 48,793,104 SEK 48,793,104
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW NIB-FINLAND SEK LT FIX SEK 151,490,237 136,435,487 SEK 136,435,487
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK GBP LT FIX GBP 34,069,317 26,014,466 SEK 364,184,882
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW BARCLAYS BANK GBP LT FIX GBP 15,296,181 12,779,019 SEK 178,897,600
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
DEAL
OUTSTANDING RATE (OF
PRINCIPAL IN UB CODE OF VALUE MATURITY PAYMENT ORIGINAL
SF ENTITY LENDER USD SF UNIT DATE DATE FREQUENCY DEAL) COMMENT
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT B.V. Macquarie Bank 626,473 UB651 15-Jan-98 15-Jan-13 2 9.5000 Limited recourse
Limited, London funding (transaction
1A is current portion
of transaction 1B)
------------------------------------------------------------------------------------------------------------------------------------
TOTAL NLCRDX UB651 626,473
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT B.V. Macquarie Bank 39,447,432 UB731 15-Jan-98 15-Jan-13 2 9.5000 Limited recourse
Limited, London funding (transaction
1A is current portion
of transaction 1B)
------------------------------------------------------------------------------------------------------------------------------------
TOTAL NLCRDX UB731 39,447,432
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EIB 5,324,084 UB731 31-Oct-01 12-May-16 4 4.5620 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW NIB-FINLAND 14,887,228 UB731 31-Dec-96 31-Dec-14 2 8.1500 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK 39,738,219 UB731 27-Mar-90 27-Mar-15 2 12.5000 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW BARCLAYS BANK 19,520,503 UB731 8-Jul-91 8-Jan-07 2 13.7500 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
Page 247
CONFORMED COPY
TRANS- ORIGINAL OUT- LOCAL OUTSTANDING
ACTION LOAN STANDING CCY OF PRINCIPAL IN
SF ENTITY LENDER INSTRUMENT CCY AMOUNT PRINCIPAL SF UNIT LOCAL CURRENCY
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK AUD LT FIX AUD 12,111,699 9,826,880 SEK 51,081,476
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK AUD LT FIX AUD 16,148,932 13,102,509 SEK 68,108,647
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK AUD LT FIX AUD 49,886,828 41,686,625 SEK 216,692,820
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK AUD LT FIX AUD 8,314,471 6,947,770 SEK 36,115,466
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK NZD LT FIX NZD 226,502,500 178,667,517 SEK 800,938,596
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, SEK LT FIX SEK 317,502,638 299,499,044 SEK 299,499,044
NAME ABB STRUCTURED SWITZERLAND
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, SEK LT FIX SEK 158,388,839 158,388,839 SEK 158,388,839
NAME ABB STRUCTURED SWITZERLAND
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, SEK LT FIX SEK 79,664,924 79,664,924 SEK 79,664,924
NAME ABB STRUCTURED SWITZERLAND
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, SEK LT FIX SEK 368,095,991 368,095,991 SEK 368,095,991
NAME ABB STRUCTURED SWITZERLAND
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW MACQUARIE BANK SEK LT FIX SEK 314,907,766 303,339,688 SEK 303,339,688
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW MACQUARIE BANK SEK LT FIX SEK 602,771,839 580,629,132 SEK 580,629,132
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
DEAL
OUTSTANDING RATE (OF
PRINCIPAL IN UB CODE OF VALUE MATURITY PAYMENT ORIGINAL
SF ENTITY LENDER USD SF UNIT DATE DATE FREQUENCY DEAL) COMMENT
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK 7,431,710 UB731 20-Mar-91 20-Mar-06 4 15.2500 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK 23,644,547 UB731 20-Mar-92 20-Mar-07 4 15.2500 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK 3,940,757 UB731 20-Mar-92 20-Mar-07 4 15.2500 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK 87,394,823 UB731 31-Mar-93 31-Mar-08 2 16.0000 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, 32,679,991 UB731 5-Dec-96 1-Jan-13 2 9.3000 Limited recourse
NAME ABB STRUCTURED SWITZERLAND funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, 17,282,679 UB731 25-Feb-97 1-Jan-13 2 9.3000 Limited recourse
NAME ABB STRUCTURED SWITZERLAND funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, 8,692,679 UB731 21-May-97 1-Jan-13 2 9.3000 Limited recourse
NAME ABB STRUCTURED SWITZERLAND funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, 40,164,982 UB731 24-Apr-98 1-Jan-14 2 9.3000 Limited recourse
NAME ABB STRUCTURED SWITZERLAND funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW MACQUARIE BANK 33,099,065 UB731 15-Jan-99 15-Jan-17 2 8.5000 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW MACQUARIE BANK 63,355,644 UB731 15-Jan-99 15-Jan-17 2 8.5000 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW ABN BANK 5,573,781 UB731 20-Mar-91 20-Mar-06 4 15.2500 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
Page 248
CONFORMED COPY
TRANS- ORIGINAL OUT- LOCAL OUTSTANDING
ACTION LOAN STANDING CCY OF PRINCIPAL IN
SF ENTITY LENDER INSTRUMENT CCY AMOUNT PRINCIPAL SF UNIT LOCAL CURRENCY
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB MACQUARIE BANK SEK LT FIX SEK 523,755,867 498,886,325 SEK 498,886,325
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB EIB SEK LT FLO SEK 130,000,000 126,862,068 SEK 126,862,068
-------------------------------------------------------------------------------------------------------------------------------
TOTAL SECREX UB731
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW NIB-FINLAND SEK LT FIX SEK 264,435,183 236,989,233 SEK 236,989,233
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW BARCLAYS BANK NOK LT FIX NOK 53,621,065 44,217,121 SEK 54,121,756
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW BARCLAYS BANK NOK LT FIX NOK 233,665,114 191,122,224 SEK 233,933,602
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW BARCLAYS BANK SEK LT FIX SEK 336,622,880 292,098,792 SEK 292,098,792
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW BARCLAYS BANK SEK LT FIX SEK 96,350,232 83,606,274 SEK 83,606,274
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, SEK LT FIX SEK 785,840,000 744,435,975 SEK 744,435,975
NAME ABB STRUCTURED SWITZERLAND
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, SEK LT FIX SEK 248,160,000 235,085,046 SEK 235,085,046
NAME ABB STRUCTURED SWITZERLAND
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW MACQUARIE BANK SEK LT FIX SEK 346,302,380 314,109,344 SEK 314,109,344
NAME ABB STRUCTURED
FINANCE AB)
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB ABN BANK USD LT FIX USD 13,959,419 10,575,417 SEK 96,919,465
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB ABN BANK USD LT FIX USD 13,959,419 10,575,417 SEK 96,919,465
-------------------------------------------------------------------------------------------------------------------------------
DEAL
OUTSTANDING RATE (OF
PRINCIPAL IN UB CODE OF VALUE MATURITY PAYMENT ORIGINAL
SF ENTITY LENDER USD SF UNIT DATE DATE FREQUENCY DEAL) COMMENT
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB MACQUARIE BANK 54,436,236 UB731 15-Jan-98 15-Jan-13 2 9.5000 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB EIB 13,842,619 UB731 31-Oct-01 12-May-16 4 4.5620 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
TOTAL SECREX UB731 471,009,547,000
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW NIB-FINLAND 25,859,201 Off BS 31-Dec-96 31-Dec-14 2 9.3000 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW BARCLAYS BANK 5,905,523 Off BS 15-Jul-91 15-Jan-05 2 14.5000 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW BARCLAYS BANK 25,525,784 Off BS 15-Jan-90 15-Jan-15 2 14.5000 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW BARCLAYS BANK 31,872,509 Off BS 15-Jan-95 15-Jan-10 2 11.5000 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW BARCLAYS BANK 9,122,741 Off BS 15-Jan-95 15-Jan-10 2 11.5000 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, 81,229,511 Off BS 18-Sep-95 18-Jan-11 2 12.5000 Limited recourse
NAME ABB STRUCTURED SWITZERLAND funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW EUROFIMA, 25,651,425 Off BS 29-Dec-95 29-May-11 2 12.5000 Limited recourse
NAME ABB STRUCTURED SWITZERLAND funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT AB (NEW MACQUARIE BANK 34,274,201 Off BS 15-Jan-96 15-Jan-11 2 9.8500 Limited recourse
NAME ABB STRUCTURED funding
FINANCE AB)
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB ABN BANK 10,575,417 Off BS 3-Jan-90 3-Jan-05 2 9.5011 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB ABN BANK 10,575,417 Off BS 3-Jan-90 3-Jan-05 2 9.5011 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
Page 249
CONFORMED COPY
TRANS- ORIGINAL OUT- LOCAL OUTSTANDING
ACTION LOAN STANDING CCY OF PRINCIPAL IN
SF ENTITY LENDER INSTRUMENT CCY AMOUNT PRINCIPAL SF UNIT LOCAL CURRENCY
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB ABN BANK USD LT FIX USD 13,959,419 10,575,417 SEK 96,919,470
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB BANK OF TOKYO SEK LT FIX SEK 345,877,966 311,541,484 SEK 311,541,484
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB BARCLAYS BANK NOK LT FIX NOK 181,093,231 148,125,934 SEK 181,306,143
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB BARCLAYS BANK SEK LT FIX SEK 390,958,363 340,881,160 SEK 340,881,160
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB BARCLAYS BANK SEK LT FIX SEK 431,389,214 376,143,184 SEK 376,143,184
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB MACQUARIE BANK SEK LT FIX SEK 255,637,803 231,997,810 SEK 231,997,810
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB NIB-FINLAND EUR LT FIX EUR 4,854,046 4,122,589 SEK 37,434,343
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB NIB-FINLAND EUR LT FIX EUR 8,951,768 7,847,345 SEK 71,256,243
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB NIB-FINLAND EUR LT FIX EUR 6,068,158 5,409,494 SEK 49,119,831
-------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB ANZ BANK SEK LT FIX SEK 180,924,416 174,686,285 SEK 174,686,285
-------------------------------------------------------------------------------------------------------------------------------
TOTAL SECREX OFF B/S
-------------------------------------------------------------------------------------------------------------------------------
DEAL
OUTSTANDING RATE (OF
PRINCIPAL IN UB CODE OF VALUE MATURITY PAYMENT ORIGINAL
SF ENTITY LENDER USD SF UNIT DATE DATE FREQUENCY DEAL) COMMENT
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB ABN BANK 10,575,417 Off BS 3-Jan-90 3-Jan-05 2 9.5011 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB BANK OF TOKYO 33,994,008 Off BS 15-Jan-96 15-Jan-11 2 12.5000 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB BARCLAYS BANK 19,783,312 Off BS 15-Jan-90 15-Jan-05 2 14.5000 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB BARCLAYS BANK 37,195,422 Off BS 16-Jan-95 16-Jan-10 2 12.0000 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB BARCLAYS BANK 41,043,055 Off BS 15-Jan-95 15-Jan-10 2 11.8000 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB MACQUARIE BANK 25,314,559 Off BS 15-Jan-96 15-Jan-11 2 9.8500 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB NIB-FINLAND 4,084,667 Off BS 30-Dec-98 30-Dec-08 2 3.8600 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB NIB-FINLAND 7,775,161 Off BS 1-Jul-98 1-Jul-08 2 4.0700 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB NIB-FINLAND 5,359,735 Off BS 1-Dec-98 1-Dec-08 2 4.0850 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
ABB CREDIT FINANS AB ANZ BANK 19,060,983 Off BS 15-Jan-00 15-Jan-18 2 6.0000 Limited recourse
funding
------------------------------------------------------------------------------------------------------------------------------------
TOTAL SECREX OFF B/S 464,778,049
------------------------------------------------------------------------------------------------------------------------------------
TOTAL SF GROUP 90,000 UB640
626,473 UB651
6,575,220 UB652
521,307,919 UB731
464,778,049 OFF BS
Page 250
PART F
EXTERNAL GUARANTEES
APPROXIMATE
GUARANTEED
AMOUNT
DESCRIPTION OF OUTSTANDING AS AT
GUARANTOR OBLIGOR BENEFICIARY AGREEMENT 30 JUNE 2002
----------------------------------------------------------------------------------------------------------------------------------
ABB Structured Finance AB SEK AB Svensk Risk Participation Agreement with USD 6,800,000
B.V. Exportkredit (AB AB SEK indemnifying AB SEK for up
SEK) to USD 6,800,000 of principal, plus
related interest, payable
6-monthly, and 14.29% (1/7th) of
any losses under its role as Lender
of Record under MIGA Covered Loan
Facility (currently nothing is
outstanding). Indemnity relating to
commitment fees, principal, and up
to 6 months of interest (maximum 6
month interest plus risk feed in
model is approximately USD 300,000)
----------------------------------------------------------------------------------------------------------------------------------
ABB Structured Finance Manila North The Philippine ABB Structured Finance BV has USD 1,070,000
B.V. Tollways Government via the provided 1/7 of a 45-month USD
Corporation Traffic Regulatory 7,500,000 letter of credit, approx.
Board is the USD 1,070,000, to secured certain
beneficiary. construction obligations of MNTC
under its concession agreement,
ending with completion of
construction and commencement of
commercial operations. The
Philippine Government via the
Traffic Regulatory Board is the
beneficiary.
----------------------------------------------------------------------------------------------------------------------------------
Page 251
APPROXIMATE
GUARANTEED
AMOUNT
DESCRIPTION OF OUTSTANDING AS AT
GUARANTOR OBLIGOR BENEFICIARY AGREEMENT 30 JUNE 2002
----------------------------------------------------------------------------------------------------------------------------------
ABB Structured Finance CBK Power National Power Funding obligation to cash USD 626,632.00
B.V. Company Ltd. Corp, Philippines collateralise Performance Security
(NPC) Guarantee issued by a third party
provider to NPC to guarantee the
Borrower's construction and
operational obligations in respect
of the CBK Power project
----------------------------------------------------------------------------------------------------------------------------------
ABB Structured Finance Tower AB Svensk Non-fulfilment of Lessee obligation 10,400,000 Euro 46,000,000
AB BVBA/Tower Inc Exportkredit by Tower BVBA/Tower Inc not covered Euro is the total amount of
(AB SEK) under EKN's Guarantee Board the lease
Guarantee. Non payment of continent
rent.
----------------------------------------------------------------------------------------------------------------------------------
ABB Energy Capital L.L.C Action Vest Action Vest Guarantee for rental payments on an The maximum guarantee would
Management Corp Management Corp apartment for employee (who did not be 9 payments of USD 1,300
have a credit history in the US). to Action Vest Management
Corp., the real estate
management company. Monthly
rent = USD 1,300 Remaining
term = 9 months
----------------------------------------------------------------------------------------------------------------------------------
ABB Energy Capital LLC Plains End Various Lenders 21% share of a USD 4,000,000 letter 21% of USD 4,000,000
of credit for Plains End (this
covers the borrower's debt service
reserve on a USD 64,900,000 term
loan (of which we have a 21%
share).
----------------------------------------------------------------------------------------------------------------------------------
Page 252
CONFORMED COPY
SCHEDULE 13
EXCLUDED ASSETS/EXCLUDED CONTRACTS/EXCLUDED BUSINESSES
PART A
EXCLUDED ASSETS AND EXCLUDED CONTRACTS
MID MARKET
PROVISIONS
CONTRACT OLD NUMBER (IF NBV (USD) NBV (USD) (USD M)
TRANSACTION NUMBER CHANGED) EQUIPMENT DESCRIPTION CONTRACT TYPE 31-DEC-01 30-JUN-02 30-JUNE-02
-----------------------------------------------------------------------------------------------------------------------------------
MID MARKET - NON A/C
-----------------------------------------------------------------------------------------------------------------------------------
SWEDEN
-----------------------------------------------------------------------------------------------------------------------------------
Elktron Coatings 100427 Robotar Financial lease 845,764 628,384 .3
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
BUKO Ltd 201881 Robotar Financial lease 362,484 369,945 .2
-----------------------------------------------------------------------------------------------------------------------------------
Juno Timber Ovrigt Lease 250,655 250,655 .3
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
DHJ Media AB I
likvidation I konkurs 200123 Vaderskydd, reklampelare Financial lease 146,916
-----------------------------------------------------------------------------------------------------------------------------------
200577 TV / videoredigering, Financial lease 117,124
ljusutr
-----------------------------------------------------------------------------------------------------------------------------------
201920 Datautrustning, Financial lease 4,337,250
krin gutrustning
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Stensele Sag Ovrigt Lease 210,731 210,731 .1
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Ex-Change Parts AB 201113 Ovrigt Loan 633,528 294,432
-----------------------------------------------------------------------------------------------------------------------------------
201114 Ovrigt Loan 0
-----------------------------------------------------------------------------------------------------------------------------------
201591 Ovrigt Loan 708,210 696,072
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
SUB-TOTAL 7,612,662 2,450,219 0.9
-----------------------------------------------------------------------------------------------------------------------------------
Page 253
PROVISIONS
CONTRACT OLD NUMBER (IF NBV (USD) NBV (USD) (USD M)
TRANSACTION NUMBER CHANGED) EQUIPMENT DESCRIPTION CONTRACT TYPE 31-DEC-01 30-JUN-02 30-JUNE-02
-----------------------------------------------------------------------------------------------------------------------------------
NLCRE
-----------------------------------------------------------------------------------------------------------------------------------
Luftseilbahn Fiesch CRZ011 Chairlift Financial Lease 1,784,016 1,737,024
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Davos Parsenbahnen CRZ012 Chairlift Financial Lease 2,973,360 2,966,627
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Arosa Bergbahnen CRZ013 Chairlift Financial Lease 1,486,680 1,514,847
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Teleovror SA CRZ014 Chairlift Financial Lease 1,189,344 1,346,530
-----------------------------------------------------------------------------------------------------------------------------------
No equipment - collateral
in the form of cash,
Skyways Holdings AB 202132 200836 guarantees and shares Loan 7,679,241 8,735,045 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 201753 Bell 212 Op. lease 1,213,498 1,176,778 0
-----------------------------------------------------------------------------------------------------------------------------------
Expired
HRG 201783 Bell 212 Op. lease 1,209,587 30.1.02 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 201784 AS 365 N1 Op. lease 1,820,512 1,768,183 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 201782 AS 365 N2 Op. lease 1,934,533 1,865,560 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 201897 AS 350 B2 Op. lease 697,878 647,811 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 201898 AS 350 B2 Op. lease 697,878 647,811 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 201900 AS 365 N Op. lease 1,606,546 1,511,319 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 201899 Bell 212 1FR Op. lease 1,502,878 1,447,710 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 202102 S-76C+ Op. lease Started 4,549,359 0
1.1.02
-----------------------------------------------------------------------------------------------------------------------------------
HRG 202108 AS 365 N2 Op. lease Started 2,767,775 0
1.3.02
-----------------------------------------------------------------------------------------------------------------------------------
HRG TBA S-76C Op. lease See below* 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG TBA S-76C Op. lease See below* 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 201233 AS 350 B1 Lease 485,033.08 456,596.83 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 201234 AS 365 Lease 4,361,629.69 4,129,601.48 0
-----------------------------------------------------------------------------------------------------------------------------------
HRG 201412 S76A+ Lease 2,138,209.92 2,044,562.90 0
-----------------------------------------------------------------------------------------------------------------------------------
SUB-TOTAL 32,780,823.69 37,313,140.21
-----------------------------------------------------------------------------------------------------------------------------------
* Amount paid out, both TBA contracts 6,769,040
Funding cost since 5.4.02 65,048
Total amount per 30.9.02 6,834,088
Page 254
INFRASTRUCTURE
* TO BE NOVATED OUT
PROVISIONS
CONTRACT OLD NUMBER (IF EQUIPMENT NBV (USD) NBV (USD) (USD M)
TRANSACTION NUMBER CHANGED) DESCRIPTION CONTRACT TYPE 31-DEC-01 30-JUN-02 30-JUN-02
-----------------------------------------------------------------------------------------------------------------------------------
Power station in
XXX/Xxxxxx 00000 Xxxxx Xxxxxxxx Loan 21,266,295 22,569,055 1.77
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
Collocation
facilities in
Digiplex/All 00208 Europe Loan 10,351,763 10,238,916 2.96
-----------------------------------------------------------------------------------------------------------------------------------
Collocation
facilities in
00208 Europe Loan 1,035,176 0
-----------------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
210-0000596-
Bentech 001 Construction loan Construction loan 4,369,227 6,069,000 4.8
-----------------------------------------------------------------------------------------------------------------------------------
210-0000520
001 Construction loan Construction loan 1,662,761
-----------------------------------------------------------------------------------------------------------------------------------
Shared Services
-----------------------------------------------------------------------------------------------------------------------------------
GSM operator in
BCP S.A.* 00204* Brazil Loan - MIGA 6,027,434 5,638,567 2.26
-----------------------------------------------------------------------------------------------------------------------------------
GSM operator in
00204* Brazil Loan - OPIC 3,168,261 2,963,856
-----------------------------------------------------------------------------------------------------------------------------------
GSM operator in
00204* Brazil Loan - Private 3,284,177 3,072,293
-----------------------------------------------------------------------------------------------------------------------------------
GSM operator in
00204* Brazil Loan 5,072,464 6,809,006
-----------------------------------------------------------------------------------------------------------------------------------
GSM operator in
00204* Brazil Loan - EDC 3,359,965 3,143,193
-----------------------------------------------------------------------------------------------------------------------------------
Al-Rahji Banking Power Station in Letter of Credit LC outstanding LC outstanding
and Investment Saudi Arabia amount (not NBV) amount (not 0
Corporation 27,674,291 NBV) 19,792,623
(Shoiba) 00200
-----------------------------------------------------------------------------------------------------------------------------------
Van der Stoel
Shipping 201257 Batar, fartyg Loan 3,929,728 4,307,452
-----------------------------------------------------------------------------------------------------------------------------------
Page 255
PROVISIONS
CONTRACT OLD NUMBER (IF EQUIPMENT NBV (USD) NBV (USD) (USD M)
TRANSACTION NUMBER CHANGED) DESCRIPTION CONTRACT TYPE 31-DEC-01 30-JUN-02 30-JUN-02
-----------------------------------------------------------------------------------------------------------------------------------
LG Caltex Oil Syndicated ship
Corporation* financing Loan - 6,038,918
-----------------------------------------------------------------------------------------------------------------------------------
GSM operator in
Medi Telecom S.A. 00211 Morocco Loan - EKW 2,132,775 2,401,584 0.18
-----------------------------------------------------------------------------------------------------------------------------------
GSM operator in
00000 Xxxxxxx Loan - CESCE 1,579,245 1,840,985
-----------------------------------------------------------------------------------------------------------------------------------
GSM operator in
00000 Xxxxxxx Loan - IFCB 4,881,948 5,497,255
-----------------------------------------------------------------------------------------------------------------------------------
GSM operator in
00000 Xxxxxxx Loan - IFCB 1,964,098 1,964,098
-----------------------------------------------------------------------------------------------------------------------------------
GSM operator in
00000 Xxxxxxx Loan 2,584,735 2,910,508
-----------------------------------------------------------------------------------------------------------------------------------
PGS Onshore, Inc. 760092 Seismic Equipment Loan 8,100,000 7,700,000
-----------------------------------------------------------------------------------------------------------------------------------
SUB-TOTAL 84,770,052 93,164,686 11.97
-----------------------------------------------------------------------------------------------------------------------------------
(a) The Vendor and the Purchaser have agreed to exclude Greenfield
Shipping which had a NBV of $10.7m as at December 31, 2001, but since
that date the loan has been repaid and there is no outstanding
balance.
Swap Agreement
The ABB Group will retain the swap transaction, entered into in connection
with the Petronet transaction, between ABB Structured Finance B.V. and
India LNG Transport Company (No 1) Limited and India LNG Transportation (No
2) Limited with notional amount of approximately $55 million, terminating
in 2014.
Page 256
CONFORMED COPY
PART B
EXCLUDED BUSINESSES
JURISDICTION OF
COMPANY AND NUMBER INCORPORATION TRANSFEROR SHAREHOLDER(S) TRANSFEREE SHAREHOLDER(S) COMMENTS
------------------------------------------------------------------------------------------------------------------------------------
ABB New Finance AB Sweden ABB Credit Finans AB ABB Financial Services AB
Number: 556260-4065
------------------------------------------------------------------------------------------------------------------------------------
Shared Savings Contracts, Delaware ABB Energy Capital LLC (80%) ABB Financial Services Inc.
Inc.
------------------------------------------------------------------------------------------------------------------------------------
AB Svensk Exportkredit Sweden ABB Structured Finance Sweden ABB Financial Services AB
AB (as subsidiary of ABB
Structured Finance
Investment BV)
------------------------------------------------------------------------------------------------------------------------------------
ABB Structured Finance Sweden ABB Structured Finance Sweden ABB Financial Services AB
Investment AB AB (as subsidiary of ABB
Structured Finance
Investment BV)
------------------------------------------------------------------------------------------------------------------------------------
ABB Structured Finance Netherlands ABB Structured Finance Sweden ABB Financial Services AB
Investment BV AB
------------------------------------------------------------------------------------------------------------------------------------
Resonia Forvaltning AB Sweden Resonia AB Being sold to third party
------------------------------------------------------------------------------------------------------------------------------------
ABB Export Bank Switzerland ABB Schweiz AG Other than the Export
Bank Transactions
------------------------------------------------------------------------------------------------------------------------------------
ABB Credit Stockholm AB Sweden ABB Structured Finance AB Servando AB Sold to third party
------------------------------------------------------------------------------------------------------------------------------------
ABB Kraftinteressenter KB Sweden ABB Structured Finance AB - Liquidated
------------------------------------------------------------------------------------------------------------------------------------
Page 257
CONFORMED COPY
Old Church Aviation BV Netherlands ABB Structured Finance AB - Liquidated
------------------------------------------------------------------------------------------------------------------------------------
ABB Structured Finance (USA) Delaware ABB Structured Finance ABB Financial Services Inc. Dormant
Inc. (Americas) Inc.
------------------------------------------------------------------------------------------------------------------------------------
ABB CSC Finance AB Sweden ABB Structured Finance AB Third Party-identity to be Sold to third party
confirmed
------------------------------------------------------------------------------------------------------------------------------------
ABB TD Finance AB Sweden ABB Structured Finance AB Third Party-identity to be Sold to third party
confirmed
------------------------------------------------------------------------------------------------------------------------------------
The parties agree that the Financial Advisory Business shall be excluded from
this Agreement.
Page 258
CONFORMED COPY
PART C
HIVE-DOWN AND TRANSFER
1.1 Prior to Completion the Vendor shall transfer the Excluded Assets,
Excluded Companies, Excluded Liabilities, Excluded Contracts, Excluded Claims
and Excluded Businesses and related liabilities out of the SF Group by way of a
series of hive-down transactions into a hive-down vehicle or any other company,
in each case, outside the SF Group and the Purchaser's Group (the HIVE-DOWN
COMPANY) in the manner and on the terms contemplated by this Schedule, such
company or companies to be determined by the Vendor in its sole discretion.
1.2 The Vendor shall procure that each SF Group Company shall with all due
diligence execute or procure execution of such other documents and take such
other steps or procure the taking of such other steps as may be required to vest
the title to the Excluded Assets, Excluded Companies, Excluded Liabilities,
Excluded Contracts, Excluded Claims and Excluded Businesses in the Hive-Down
Company.
1.3 Insofar as the Excluded Assets and/or Excluded Liabilities comprise the
benefit (subject to the burden) of the Excluded Claims and/or the benefit
(subject to the burden) of the Excluded Contracts which cannot effectively be
assigned or transferred by the Vendor or the relevant SF Group Company to the
Hive-Down Company except by agreements of novation or without obtaining a
consent, an approval, a waiver or the like from a third party (whether express
or implied) (the HIVE-DOWN CONSENTS):
(a) the Vendor shall procure that the respective SF Group Company shall use
all reasonable endeavours to procure that the Excluded Contracts and/or
Excluded Claims are novated or the necessary Hive-Down Consents obtained
to comply with paragraphs 1.1 and 1.2 above prior to Completion;
(b) unless and until any such Excluded Contract and/or Excluded Claim is so
novated or any necessary Consent is obtained the Vendor shall procure
that the respective SF Group Company (and with effect from Completion
the Purchaser shall, and shall procure that the respective SF Group
Company) shall receive and hold the benefit of the relevant Excluded
Contract (except any Excluded Contract which is the subject of a
personal, non-transferable licence under any Intellectual Property
Rights owned by any other party) or Excluded Claim on trust for the
Vendor or the Hive-Down Company (as the case may be) absolutely, with
effect from the time of completion under the relevant hive-down or
transfer agreement or, if later, Completion (as the case may be) and it
shall accordingly pay or procure the payment to the Vendor or the
Hive-Down Company (as the case may be) promptly upon receipt of any sums
received by them under any Excluded Contract or pursuant to any such
Excluded Claims;
(c) the Purchaser shall procure that the relevant SF Group Company shall (so
far as it lawfully may) on behalf of the Vendor or the Hive-Down Company
carry out, perform and discharge all the obligations and liabilities of
the Vendor or the Hive-Down Company under any such Excluded Contracts
and/or Excluded Claims which fail to be carried out, performed or
discharged after the time of
Page 259
CONFORMED COPY
completion under the relevant hive-down or transfer agreements or, if
later, Completion (as the case may be) and the Vendor undertakes to
indemnify the Purchaser (for itself and as trustee for each relevant
member of the Purchaser's Group) against any and all Costs (save to the
extent specifically provided for in the Completion Balance Sheet)
incurred as a result of any failure on the part of the Vendor or the
relevant Hive-Down Company to carry out, perform and discharge any of
their respective obligations and liabilities under this paragraph 1.3
and against all Costs suffered or incurred by the Purchaser or any
member of the Purchaser's Group as a result of the Purchaser's
obligations under this paragraph 1.3(c), including, against any of the
foregoing incurred or suffered as a result of any claim for infringement
of any Intellectual Property Rights of any other person; and
(d) unless or until the relevant Excluded Contract or Excluded Claim is
novated or assigned or any necessary Consent is obtained, the Vendor or
after Completion the Purchaser shall procure that the relevant SF Group
Company shall (so far as it lawfully may) give all reasonable assistance
to the Vendor or the Hive-Down Company (at the Vendor's request and
expense) to enable the Vendor or the Hive-Down Company to enforce its
rights under the Excluded Contract or Excluded Claim.
1.4 Following completion under the relevant hive-down or transfer agreements
or, if later, Completion (as the case may be) and unless and until an Excluded
Asset, Excluded Contract, Excluded Company and/or Excluded Business has been
transferred and hived-down, the relevant SF Group Company (the TRANSFEROR) will
(to the extent that it can lawfully do so) hold such Excluded Asset, Excluded
Contract, Excluded Company, Excluded Claim and/or Excluded Business and all
amounts to which the Vendor is entitled under this Agreement in respect of such
Excluded Asset, Excluded Contract, Excluded Company, Excluded Claim and/or
Excluded Business on trust for the Vendor.
1.5 After Completion, the Purchaser will, or will procure that the relevant
Transferor will, promptly and whenever the occasion arises, in relation to each
Excluded Asset, Excluded Contract, Excluded Claim, Excluded Company, Excluded
Liability and/or Excluded Business:
(a) pass to the Vendor all notices or other material communications or
information received by it to the extent such relate thereto; and
(b) segregate, separately record in its books, and account to the Vendor for
all payments received to which the Vendor is entitled under this
Agreement to the extent such relate thereto.
1.6 The costs of vesting title in the Excluded Assets, Excluded Contracts,
Excluded Claims, Excluded Companies, Excluded Liabilities and/or Excluded
Businesses and of obtaining novations of Excluded Contracts or Excluded Claims
or of obtaining Hive-Down Consents or generally performing any of the
obligations under paragraphs 1.1 to 1.5 above shall be for the account of the
Vendor.
Page 260
CONFORMED COPY
1.7 Where any asset is or is treated as an Excluded Asset, Excluded Company
and/or Excluded Business there shall be excluded, or treated as excluded all
Excluded Claims, Excluded Contracts and Excluded Liabilities referable thereto.
1.8 Where any Excluded Company is to be transferred to a Hive-Down Company
pursuant to this 0, such transfer shall be of all rights, title and interests
(both legal and beneficial) in and to the shares and/or other securities (both
equity and debt) of such Excluded Company (including any rights, options,
warrants and/or other entitlements to create, subscribe, acquire, assume and/or
otherwise obtain or receive any right, title and/or interest in any such shares
and/or other securities and any Encumbrance in respect ofsuch shares and/or
other securities).
1.9 To the extent that the Hive Down and Transfer involves the transfer by
any member(s) of the ABB Group (excluding the SF Group) to any member of the SF
Group of any assets, liabilities, claims, contracts, companies and/or
businesses, the Vendor shall procure the transfer of such assets, liabilities,
claims, contracts, companies and/or businesses on the same terms and conditions
and in the same manner, mutatis mutandis, as described in paragraphs 1.1 to 1.8
of Part C of this Schedule 13 (Excluded Assets/Excluded Contracts/Excluded
Businesses), save that the reference in paragraph 1.6 to "Vendor" shall remain
unchanged.
1.10 The Hive-Down and Transfer shall be undertaken in all respects:
(a) in accordance and compliance with applicable law and/or regulation;
(b) at an appropriate value, net of specific provisions;
(c) so as to ensure that as at Completion:
(i) all matters required to be performed and/or executed in order
to implement the Hive-Down and Transfer in full have been so
performed and/or implemented in full;
(ii) all consideration and other payments in connection with the
implementation of the Hive-Down and Transfer have been
satisfied and discharged in full, with no element of deferred
consideration or payments being outstanding; and
(d) so as to ensure that as at and following Completion (other than as
contemplated by paragraph 1.3 of this Schedule):
(i) no SF Group Company has any liability or obligation in respect
of the Hive-Down and/or the Transfer and/or its implementation
and/or effect; and
(ii) no SF Group Company has any liability or obligation in respect
of any Excluded Assets, Excluded Liabilities, Excluded Claims,
Excluded Businesses, Excluded Companies and/or Excluded
Contracts,
Page 261
CONFORMED COPY
and, consequently, shall be structured and implemented so as to achieve
and comply with the above.
1.11 Between signing of this Agreement and Completion, the Vendor shall
promptly and regularly consult with the Purchaser and keep the Purchaser fully
informed in relation to the Hive-Down and Transfer, including in relation to its
structuring, steps, timing and progress, terms and conditions, and documentation
and implementation, in each case, sufficiently in advance of such matters being
implemented to afford the Purchaser a reasonable opportunity to consider and
comment thereon, and the Vendor shall ensure that the reasonable opinions and
comments of the Purchaser in relation thereto are taken into account. The Vendor
shall, promptly following the execution thereof, forward to the Purchaser copies
of all Hive-Down and Transfer agreements.
Page 262
CONFORMED COPY
SCHEDULE 14
CONDUCT OF THE SF BUSINESS
1. Subject to clauses 4.2 and 4.4, 4.5 and 4.6 the Vendor shall (in so far
as it is within the control of any member of the ABB Group) ensure that, save
with the prior consent of the Purchaser (such consent not to be unreasonably
withheld or delayed), each member of the Extended SF Group and, each Designated
Vendor will, in relation to the SF Business:
(a) operate the SF Business and each of the Small Ticket Finance Business
and the Infrastructure/Mid Market Finance Business in the ordinary
course of business as conducted prior to the date of this Agreement;
(b) conduct its business in all respects in accordance with all applicable
legal, administrative and regulatory requirements in any relevant
jurisdiction;
(c) not, other than in the ordinary course of business either as a single
transaction, act or event or as a series of related transactions, acts
or events:
(i) acquire or dispose of, or agree to acquire or dispose of, any
material revenues, assets, business or undertakings with a
value exceeding in aggregate US$2 million;
(ii) assume or incur, or agree to assume or incur, a liability,
obligation or expense (actual or contingent) with a value
exceeding in aggregate US$2 million;
(iii) make or incur or agree to make or incur capital expenditure
exceeding in aggregate US$500,000;
(iv) enter into, amend, waive or terminate an agreement, arrangement
or obligation (including any Finance Agreement) in each case,
involving consideration, Exposure, expenditure or liabilities
exceeding in aggregate US$500,000;
(v) give, or agree to give, a guarantee, indemnity or other
agreement to secure, or incur financial or other obligations
with respect to, another person's obligation;
(vi) create, or agree to create or amend, any Encumbrance over any
or all SF Group Properties or agree to release an existing
Encumbrance over any of the SF Group Properties; or
(vii) enter into any agreement, arrangement or obligation to which
another member of the ABB Group is a party, except for the
renewal of existing financing arrangements in the ordinary
course, and unless such agreement, arrangement or obligation is
required to implement or give effect to this Agreement or the
Proposed Transaction;
Page 263
CONFORMED COPY
(d) not, other than in the ordinary course of business, or as disclosed in
the Disclosure Letter:
(i) amend the terms and conditions of employment or engagement of a
director, other officer or Employee or provide, or agree to
provide, a gratuitous payment or benefit to a director, officer
or Employee (or any of their dependants) or employ, engage or
terminate (except for cause) the employment or engagement of, a
person with annual employment benefits of US$200,000 or more
unless pursuant to an agreement entered into on or prior to the
date of this Agreement;
(ii) increase the general level of remuneration or other employee
benefits payable to or enjoyed by Employees (or any category of
Employees) at any salary or employee benefit review by an
amount inconsistent with that set pursuant to the previous such
review or not reflective of the performance of the relevant
business or Employee;
(iii) institute or settle any material litigation or arbitration
proceedings or any material action, demand or dispute where the
institution, or settlement would result or is likely to result
in any material loss, liability or expense or damage to the
reputation of a SF Group Company relating to the SF Business;
or
(iv) release, discharge or compound any material liability or claim
without compensation;
(e) not, other than in the ordinary course of business, enter into a
Derivative Transaction except for the rollover or replacement of
existing Derivative Transactions;
(f) not assume or incur or agree to assume or incur any Third Party
Indebtedness or renew or agree to renew any Third Party Indebtedness,
except;
(i) where no break fee or other fee or cost is payable:
(A) on termination of such indebtedness;
(B) on a change of control; or
(C) on an assignment, disposal or other transfer of such
indebtedness; or
(ii) the rolling over of existing Third Party Indebtedness on its
maturity on unamended terms or on terms more favourable to the
relevant member of the SF Group (save for changes in interest
rates solely to reflect market conditions), and provided that
the term of such rolled over indebtedness is as short as is
commercially reasonable;
(g) not amend, waive or remove any condition precedent or other condition to
any Finance Agreement or any obligations under any Finance Agreement;
Page 264
CONFORMED COPY
(h) not, other than in the ordinary course of business:
(i) enter into any Swedish single investor tax lease involving
lease payments in excess of US$ 2 million or any Swedish tax
leveraged lease;
(ii) terminate, do or omit, amend or do anything which is likely to
cause the premature or early termination or material variation
of any existing regulatory licence required for the
continuation of the SF Business;
(i) subject to market conditions (including the availability on reasonably
satisfactory terms, as to price or otherwise), continue in all material
respects each of the insurance policies taken out by a SF Group Company
or in respect of the SF Business and not knowingly do, or omit to do,
anything which is likely to:
(i) make any of these policies void or voidable;
(ii) entitle any of the insurers under any of the policies to refuse
indemnity in relation to particular claims in whole or in part;
(iii) result in a material increase in the premium payable under any
of the policies; or
(iv) prejudice the ability to effect insurance, on the same or
better terms, in the future;
provided that this shall not prevent the notification to insurers of
claims in circumstances that might give rise to claims under any of the
policies in accordance with the terms of the relevant policies;
(j) in relation to the Retained Property, without the prior written consent
of the Purchaser (in its absolute discretion), not:
(i) change materially its existing use;
(ii) terminate, or give a notice to terminate, a lease, tenancy or
licence;
(iii) agree to a material increase in the rent or fee payable under a
lease, tenancy or licence to a level in excess of then
prevailing market rates; or
(iv) enter into any contract for the sale and purchase of real
estate or enter into new lease of any real property, in each
case, other than the Property;
(k) (i) protect, defend, enforce in all material respects and pay all fees
that become payable for the renewal or maintenance of; and (ii) not
dispose of, or agree to dispose of, or grant any material licences
under, or cease prosecution of any application for registration of, any;
of the SF Intellectual Property Rights and SF Shared Intellectual
Property Rights;
Page 265
CONFORMED COPY
(l) perform in all material respects its obligations under all SF Group
Licences, SF IPR Licences, Shared IPR Licences and Software Licences and
pay all royalties, fees or other amounts which shall become payable
under such licences and do all other acts and things reasonably
necessary to maintain such licences in force, and shall not dispose of
or agree to dispose of any such licences or commit any breach of, or
fail to materially comply with, any term of such licences, or do any
other act or thing which may prejudice such licences or which shall
entitle the licensor(s) thereunder to terminate such licences;
(m) own, operate, originate, acquire and service the Financing Agreements
and the Portfolio Property (i) in compliance in all respects with the
Credit Policies, and (ii) in the ordinary course of its business;
(n) consistently apply and not, in any respect, change, modify, or in any
way alter or deviate from, the Credit Policies or collections, reserving
and write off policies;
(o) maintain normal levels of working capital, as may be required for the
conduct of the SF Business in the ordinary course; and
(p) ensure that the support and maintenance agreement between Resonia
Leasing AB and Financial Systems FSAB in relation to the FSAB Finance
System is renewed prior to its expiry on 31 December 2002.
2. The Vendor shall ensure that (except (i) as disclosed in the Disclosure
Letter; (ii) to the extent required to meet existing obligations to give effect
to this Agreement and the Proposed Transaction; or (iii) as required by law or
regulation) each SF Group Company will not:
(a) create, allot, issue, acquire, repay or redeem any share or loan capital
or agree, arrange or undertake to do any of those things or acquire or
agree to acquire, an interest in a corporate body or merge or
consolidate with a corporate body or any other person, enter into any
de-merger transaction or participate in any other type of corporate
reconstruction;
(b) declare, pay or make a dividend or distribution;
(c) permit a change in any of their constitutions or constitutional
documents; or
(d) save for any resolution required under paragraph 5 of Part B to Schedule
7 (Completion Arrangements) or any other resolution reasonably necessary
in relation to any obligations of the Vendor under paragraph 5 of Part B
to Schedule 7 (Completion Arrangements) or otherwise under this
Agreement, pass a shareholder's resolution.
3. The Vendor shall, not and shall ensure that no member of the ABB Group
shall do or say anything that is harmful to the goodwill or reputation of the SF
Business (as subsisting at the date of this Agreement) or which is reasonably
likely to lead a person who has dealt with any member of the SF Group or the SF
Business on
Page 266
CONFORMED COPY
or at any time during the one year before Completion to cease to deal with any
member of the SF Group or the SF Business in whole or in part on substantially
equivalent terms to those previously offered or at all.
Page 267
SCHEDULE 15
AGREED FORM DOCUMENTS
[Intentionally blank]
CONFORMED COPY
SCHEDULE 16
APPORTIONMENT
1. The Vendor (for itself and as trustee for the Designated Vendor) and the
Purchaser (for itself and as trustee for the Designated Purchaser) shall as soon
as reasonable possible after entering into this Agreement agree an apportionment
statement (in substantially similar form to that set out in this Schedule)
setting out the apportionment of the Initial Consideration between the Shares
and the Business Assets (the APPORTIONMENT STATEMENT). If any payment is made
pursuant to clause 2.5 of this Agreement, that sum shall be apportioned on the
basis of the figures set out in the Final Consideration Schedule.
2. The Purchaser shall within 10 Business Days of entering into this
Agreement prepare a draft Apportionment Statement which it shall deliver to the
Vendor. For the purposes of preparing the draft Apportionment Statement, the
Vendor shall provide or procure the provision of such documents and records
within its possession or control that the Purchaser may reasonably require.
3. The Vendor and the Purchaser hereby agree that in determining and
agreeing this Apportionment Statement, the amount of the Additional Reserves (as
referred to in the definition of Final Consideration) shall be treated as fully
attributable to the purchase of ABB Structured Finance Sweden AB (SECUY).
4. Within 5 Business Days of the delivery of the draft Apportionment
Statement the Vendor shall notify the Buyer whether or not it agrees with the
draft Apportionment Statement.
5. If the Vendor disputes the draft Apportionment Statement then it shall
provide the Purchaser with details and reasons why it disputes any aspects or
apportionment of the draft Apportionment Statement (the DISPUTE NOTICE) and the
Vendor and the Purchaser will then make all reasonable efforts to reach
agreement on the draft Apportionment Statement and shall cooperate fully with
one another in this process.
6. If, within 10 Business Days starting on the day after receipt of the
Dispute Notice referred to in paragraph 5, the Vendor and the Purchaser have not
agreed the draft Apportionment Statement then Xxxx Xxxxxx, on behalf of the
Vendor and Xxxxxxx Xxxxxxxxx, on behalf of the Purchaser, will use all
reasonable efforts to reach agreement on the draft Apportionment Statement.
7. If Xxxx Xxxxxx and Xxxxxxx Xxxxxxxxx are unable to reach agreement
within a period of 5 Business Days, then either the Vendor or the Purchaser may
request in writing to the other (the REQUEST) that the matter to be referred to
a partner of at least 10 years qualified experience at an internationally
recognised chartered accountancy firm agreed by the parties in writing or,
failing agreement on the identity of the firm of chartered accountants within a
further five (5) Business Days of the day starting on the day on which the
Request was made, a partner of an internationally recognised chartered
accountancy firm appointed on the application of either party by the President
for the time being of the American Certified Public Accountants or other
Page 268
CONFORMED COPY
person of equivalent standing in another jurisdiction (for the purposes of this
Schedule only, the EXPERT).
8. The Expert shall act on the following basis:
8.1 the Expert shall act as an expert and not as an arbitrator;
8.2 the Expert's terms of reference shall be to determine the matters in
dispute within 20 Business Days of his appointment;
8.3 the parties shall each provide the Expert with all information relating
to each of the SF Group Companies and the Business Assets which the
Expert reasonably requires and the Expert shall be entitled (to the
extent he considers appropriate) to base his determination on such
information and on the accounting and other records of the SF Group
Companies and the Business Vendors;
8.4 the decision of the Expert is, in the absence of fraud or manifest
error, final and binding on the parties;
8.5 the Vendor and the Purchaser agree that the Expert shall treat the
Additional Reserve Amount (as referred to in the definition of Final
Consideration) as fully attributable to the purchase of ABB Structured
Finance Sweden AB (SECUY); and
8.6 the Vendor and the Purchaser shall each pay one half of the Expert's
costs or as the Expert may determine.
9. The draft Apportionment Statement adjusted in accordance with the
agreement, if any, between the Vendor and the Purchaser or (as the case may be)
the decision of the Expert shall be final and binding on the parties.
Page 269
CONFORMED COPY
FORM OF THE APPORTIONMENT SCHEDULE
INITIAL EQUITY (US$) PURCHASER
/ BOOK VALUE (US$) (DISCOUNT) INITIAL
ENTITY / (EACH LESS / PREMIUM CONSIDERATION
COUNTRY ASSETS PROVISIONS/RESERVES) (US$) (US$)
-------------------------------------------------------------------------------------------------------
USA ABB
Structured
Finance
(Americas)
Inc.
Sweden ABB
Structured
Finance
Sweden AB
Netherlands ABB
Structured
Finance BV
Netherlands ABB Credit
Holding BV
Netherlands ABB Credit BV
Italy ABB
Structured
Finance S.r.l.
Italy Xerox Noleggi
S.p.A.
Guernsey ABB
Structured
Finance
Limited
Czech Republic Business
Assets
Switzerland ABB
Structured
Finance
International
Ltd
Page 270
CONFORMED COPY
INITIAL EQUITY (US$) PURCHASER
/ BOOK VALUE (US$) (DISCOUNT) INITIAL
ENTITY / (EACH LESS / PREMIUM CONSIDERATION
COUNTRY ASSETS PROVISIONS/RESERVES) (US$) (US$)
-------------------------------------------------------------------------------------------------------
Switzerland Export Bank
Transactions
Australia Business
Assets
TOTALS
Page 271
CONFORMED COPY
SCHEDULE 17
BUSINESS ASSETS/TRANSFER EMPLOYEES/EXPORT BANK TRANSACTIONS
PART A
BUSINESS ASSETS/BUSINESS CONTRACTS
CONTRACT REMAINING
BUSINESS CUSTOMER CONTRACT TYPE / CONTRACT BALANCE AS PER START
JURISDICTION ASSETS INDUSTRY LOCATION NUMBER ASSIGNABLE CURRENCY 30.6.2002 DATE
------------------------------------------------------------------------------------------------------------------------------------
1 Czech Alstom Power Power CZ 98.0666/1 finance lease EUR 3,572,584** 20/10/2000
Generation
2 Czech JIP-Papirny Vetrni Pulp and paper CZ 260401/EO 006 finance lease CZK 27,175,350 26/4/2001
3 Australia Energex Power AUS Energex 1 A/R Sales AUS$ 2,079,313 01/04/00
REMAINING
FUNDING BUSINESS
FUNDING FUNDING BALANCE PER ASSET
JURISDICTION TYPE CURRENCY 30.6.2002 PURCHASER
-------------------------------------------------------------------
1 Czech Bank loan EUR 3,700,000** GE Capital
Leasing a.s.
2 Czech Bank loan CZK 25 300.000 GE Capital
Leasing a.s.
3 Australia Revolving AUS$ 2,079,313 GE Capital
facility Commercial
Real Estate
Financing +
Services
Unit Trust
** The remaining balance of the asset is smaller than the remaining funding
balance because of the different repayment schedules for the bank and the
lessee - the lessee's instalment is 1 month prior to the bank's repayment.
Page 272
PART B
TRANSFER EMPLOYEES
TRANSFER TRANSFER
JURISDICTION TRANSFER EMPLOYEE REMARKS TRANSFEROR EMPLOYEE TRANSFEREE EMPLOYEE
----------------------------------------------------------------------------------------------------------------------------------
I Czech Xxxxxxxx X. Xxxxxxxx ABB S.r.o. General Electric
Capital Corporation
Czech Republic affiliate
II Czech Drahuse Rysuliakova ABB S.r.o. General Electric
Capital Corporation
Czech Republic affiliate
Page 273
PART C
EXPORT BANK TRANSACTIONS
PORTFOLIO OVERVIEW BY THE END OF JULY 2002
TOTAL EXPOSURE (EXPORT
BANK + SF GROUP (GBFSF))
USD PER 31.07.2002
-----------------------------
CURRENT(1) UNDISBURSED
RELATION OUTSTANDING COMMITMENT
EXPORT LOAN BALANCE (BEING THE
PROJECT LENDER BANK - (BEING THE SUM SUM OF
NO. AT PROJECT OF SF GROUP FACILITY OF COLUMNS 11 COLUMNS 12
EXBA NAME TRANCHE NAME RECORD (GBFSF) CURRENCY AND 13) AND 14)
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
--- ------- ------------- ------- ----------- ----------- ------------- ----------- --------------- ------------
4. 390 Jorf Lasfar 001 US-Exim CHEFA Risk USD 10,899,710.44 0
Tranche participation
agreement
5. 390 Jorf Lasfar 009 ERG CHEFA Risk EUR 1,439,786.57 0
Facility participation
agreement
6. 390 Jorf Lasfar 010 SACE CHEFA Risk EUR 11,203,759.87 0
Tranche participation
agreement
7. 390 Jorf Lasfar 011 World CHEFA Risk EUR 7,706,858.32 0
Bank participation
agreement
8. 397 Oriental 004 Notes CHEFA DAPA* USD 8,713,751.00 0
005 between
CHEFA and
GBFSF
SF GROUP (GBFSF) EXPORT BANK
USD PER 31.7.2002 USD PER 31.7.2002
-------------------------- -----------------------------
CURRENT(1)
PROJECT OUTSTANDING CURRENT(1)
NO. AT PROJECT LOAN UNDISBURSED OUTSTANDING UNDISBURSED BUSINESS ASSET
EXBA NAME BALANCE COMMITMENT LOAN BALANCE COMMITMENT PURCHASER
(1) (2) (3) (11) (12) (13) (14) (15)
--- ------- ------------- ------------- ----------- -------------- ------------- --------------
4. 390 Jorf Lasfar 6,539,826.06 0 4,359,884.38 0 General
Electric
Capital
Corporation
5. 390 Jorf Lasfar 863,871.80 0 575,914.77 0 General
Electric
Capital
Corporation
6. 390 Jorf Lasfar 6,722,257.05 0 4,481,502.82 0 General
Electric
Capital
Corporation
7. 390 Jorf Lasfar 4,624,114.92 0 3,082,743.40 0 General
Electric
Capital
Corporation
8. 397 Oriental 4,719,589.10 0 3,994,161.90 0 General
Electric
Capital
Corporation
----------
(1) Any ABB Export Bank Reserves (both General and Specific) to be noted against
the relevant amount by way of footnote or otherwise.
Page 274
TOTAL EXPOSURE (EXPORT
BANK + SF GROUP (GBFSF))
USD PER 31.07.2002
-----------------------------
CURRENT(1) UNDISBURSED
RELATION OUTSTANDING COMMITMENT
EXPORT LOAN BALANCE (BEING THE
PROJECT LENDER BANK - (BEING THE SUM SUM OF
NO. AT PROJECT OF SF GROUP FACILITY OF COLUMNS 11 COLUMNS 12
EXBA NAME TRANCHE NAME RECORD (GBFSF) CURRENCY AND 13) AND 14)
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
--- ------- ------------- ------- ----------- ----------- ------------- ----------- --------------- ------------
9. 401 Merida 000 A-Notes CHEFA DAPA* USD 12,573,982.56 0
002 between
CHEFA and
GBFSF
10. 401 Merida 001 B-Notes CHEFA DAPA USD 615,559.19 0
003 between
CHEFA and
GBFSF
11. 455 Manila 800 Coface CAI none USD 0 5,001,500.00
North Covered
Tollroad Facility
12. 455 Manila 001 ADB CFS CHEFA none USD 0 3,571,428.00
North loan Participant
Tollroad
13. 461 AES 001 ADB CFS CHEFA none USD 2,909,090.62 1,535,353.38
Meghnaghat loan Participant
14. 456 Manila 002 ADB CFS CHEFA none USD 0 2,777,778.00
Airport loan Participant
15. 456 Manila 001 IFC CHEFA none USD 0 3,472,222.00
Airport B-loan Participant
SF GROUP (GBFSF) EXPORT BANK
USD PER 31.7.2002 USD PER 31.7.2002
-------------------------- -----------------------------
CURRENT(1)
PROJECT OUTSTANDING CURRENT(1)
NO. AT PROJECT LOAN UNDISBURSED OUTSTANDING UNDISBURSED BUSINESS ASSET
EXBA NAME BALANCE COMMITMENT LOAN BALANCE COMMITMENT PURCHASER
(1) (2) (3) (11) (12) (13) (14) (15)
--- ------- ------------- ------------- ----------- -------------- ------------- --------------
9. 000 Xxxxxx 8,536,436.35 0 4,037,546.21 0 General
Electric
Capital
Corporation
10. 401 Merida 443,801.05 0 171,758.14 0 General
Electric
Capital
Corporation
11. 455 Manila 0 0 0 5,001,500.00 General
North Electric
Tollroad Capital
Corporation
12. 455 Manila 0 0 0 3,571,428.00 General
North Electric
Tollroad Capital
Corporation
13. 461 AES 0 0 2,909,090.62 1,535,353.38 General
Meghnaghat Electric
Capital
Corporation
14. 456 Manila 0 0 0 2,777,778.00 General
Airport Electric
Capital
Corporation
15. 456 Manila 0 0 0 3,472,222.00 General
Airport Electric
Capital
Corporation
Page 275
TOTAL EXPOSURE (EXPORT
BANK + SF GROUP (GBFSF))
USD PER 31.07.2002
-----------------------------
CURRENT(1) UNDISBURSED
RELATION OUTSTANDING COMMITMENT
EXPORT LOAN BALANCE (BEING THE
PROJECT LENDER BANK - (BEING THE SUM SUM OF
NO. AT PROJECT OF SF GROUP FACILITY OF COLUMNS 11 COLUMNS 12
EXBA NAME TRANCHE NAME RECORD (GBFSF) CURRENCY AND 13) AND 14)
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
--- ------- ------------- ------- ----------- ----------- ------------- ----------- --------------- ------------
56,062,498.57 16,358,281.38
SF GROUP (GBFSF) EXPORT BANK
USD PER 31.7.2002 USD PER 31.7.2002
-------------------------- -----------------------------
CURRENT(1)
PROJECT OUTSTANDING CURRENT(1)
NO. AT PROJECT LOAN UNDISBURSED OUTSTANDING UNDISBURSED BUSINESS ASSET
EXBA NAME BALANCE COMMITMENT LOAN BALANCE COMMITMENT PURCHASER
(1) (2) (3) (11) (12) (13) (14) (15)
--- ------- ------------- ------------- ----------- -------------- ------------- --------------
32,449,896.33 0 23,612,602.24 16,358,281.38
* "DAPA" means deposit and pledge agreement.
Page 276
SCHEDULE 18
INTRA-GROUP GUARANTEES
PART A
INTRA GROUP GUARANTEES TO BE RELEASED AT COMPLETION PURSUANT TO CLAUSE 14.2
GUARANTOR OBLIGOR BENEFICIARY DESCRIPTION OF AGREEMENT APPROX AMOUNT
Asea Brown ABB Energy KeyBank It relates to ABB Energy USD 1,200,000
Boveri Inc. Capital LLC National Capital outstanding swaps
Association with KeyBank.
ABB Ltd, ABB Energy ABB Energy The credit support for the Surety bond for USD
Zurich Capital LLC Capital LLC surety bond 25,000 to State of California
program is provided by ABB - financial guarantee
Ltd, Zurich, directly to the
surety
companies via a general
indemnity.
ABB Ltd, ABB ABB The credit support for the Surety bond to State of
Zurich Structured Structured surety bond Oklahoma for USD 500 -
Finance Finance program is provided by ABB tax
(Americas) (Americas) Ltd, Zurich, directly to the
Inc. Inc. surety
companies via a general
indemnity.
ABB Ltd, ABB ABB The credit support for the Surety bond to Missouri
Zurich Structured Structured surety bond Department of Revenue
Finance Finance program is provided by ABB for USD 1,200 - tax
(Americas) (Americas) Ltd, Zurich, directly to the
Inc. Inc. surety
companies via a general
indemnity.
ABB Ltd, ABB ABB The credit support for the Surety bond to Nevada
Zurich Structured Structured surety bond Dept. of Taxation for
Finance Finance program is provided by ABB USD 6,741 - tax
(Americas) (Americas) Ltd, Zurich, directly to the
Inc. Inc. surety
companies via a general
indemnity.
ABB Ltd, ABB ABB The credit support for the Surety bond to State of
Zurich Structured Structured surety bond California for USD
Finance Finance program is provided by ABB 25,000 - broker dealer
(Americas) (Americas) Ltd, Zurich, directly to the
Inc. Inc. surety
companies via a general
indemnity.
Page 277
GUARANTOR OBLIGOR BENEFICIARY DESCRIPTION OF AGREEMENT APPROX AMOUNT
--------------------------------------------------------------------------------------------------------
ABB Ltd, Zurich ABB ABB The credit support for the Surety bond to State
Structured Structured surety bond program is Comptroller, State of
Finance Finance provided by ABB Ltd, Zurich, Texas for USD 37,225
(Americas) (Americas) directly to the surety - tax
Inc. Inc. companies via a general
indemnity.
ABB Ltd, Zurich ABB ABB The credit support for the Surety bond to Nevada
Structured Structured surety bond Dept. of Taxation for
Finance Finance program is provided by ABB USD 4,117.91 - tax
(Americas) (Americas) Ltd, Zurich, directly to the
Inc. Inc. surety
companies via a general
indemnity.
ABB Ltd, Zurich ABB ABB Business The credit support for the Surety bond to Semco
Business Finance surety bond Twist Drill & Tool Co.
Finance program is provided by ABB for USD 38,000
Ltd, Zurich, directly to the
mechanic's lien surety companies
via a general indemnity.
ABB Ltd, Zurich ABB Energy ABB Energy The credit support for the Applied for a surety
Capital LLC Capital LLC surety bond bond to State of
program is provided by ABB Massachusetts for USD
Ltd, Zurich, directly to the 125,000 - financial
surety guarantee - but the
companies via a general application has not been
indemnity. approved yet
Asea Brown ABB Energy Fleet Comfort letter which relates
Boveri Inc Capital LLC National Bank to ABB Energy Capital
outstanding swaps with Fleet.
ABB Inc. ABB Credit Sanwa Comfort letter for facilities Estimated at 7 deals
Inc. Business aggregating up to USD with USD 4,387,428
Credit 50,000,000 to purchase lease exposure
Corporation transactions from ABB Credit
Inc. under the General Lease
Now: Fleet Finance Program.
Business
Credit
ABB Inc. ABB ABB ABB Inc. (Canada) and ABB When this deal closes,
(Canada) Structured Structured Structured Finance (Americas) residual risk exposure
Finance Finance Inc. share residual risk to ABB Inc. (Canada)
(Americas) (Americas) under a synthetic lease would be equal to or
Inc. structure in the Dana 229 less than 5.5% (year 1)
project. through 2% (year 5) of
the original project
value of approximately
USD 2,200,000.
ABB Automation AB/ABB ABB EUR 900,000 900,000
Technology Credit Structured
Products Finans AB Finance Residual Value Guarantees
Page 278
--------------------------------------------------------------------------------------------------------
GUARANTOR OBLIGOR BENEFICIARY DESCRIPTION OF AGREEMENT APPROX AMOUNT
--------------------------------------------------------------------------------------------------------
ABB Utilities Slipnaxos AB ABB SEK 1,695,295 20,000
AB Structured
Finance AB
Asea Brown ABB Energy Flanders Asea Brown Boveri Inc. issued Monthly rent in 2002 =
Boveri Inc. Capital LLC Westborough a guarantee for the One USD 32,836.64 (subject to
Delaware Inc. Research Dr. office space escalation)
lease. ABB Energy Capital LLC Remaining term = 38
is the tenant. months (termination on
October 31, 2005)
Page 279
CONFORMED COPY
PART B
PART B1 - SPECIFIED OBLIGORS/SPECIFIED OBLIGATIONS
INFRASTRUCTURE/
MID MARKET
FINANCIAL ASSET SPECIFIED OBLIGORS SPECIFIED OBLIGATIONS
----------------------------------------------------------------------------------------------------------------------------------
Ohanet / Petrofac Petrofac Resources (Ohanet) Jersey Limited The prompt and punctual payment of any and all amounts due and
Petrofac Resources (Ohanet) LLC payable directly or indirectly from time to time by any
Petrofac Resources LLP. Specified Obligor to any SF Group Company under the relevant
Finance Agreement.
Edelca C. V. G. Electrificacion del Caroni The prompt and punctual payment of any and all amounts due and
payable directly or indirectly from time to time by the
Specified Obligor to any SF Group Company under the relevant
Finance Agreement.
SSAB Tunnplat AB SSAB Tunnplat AB The prompt and punctual payment of any and all amounts due and
payable directly or indirectly from time to time by the
Specified Obligor to any SF Group Company under the relevant
Finance Agreement.
Island Offshore Island Offshore III KS The prompt and punctual payment of any and all amounts due and
III KS payable directly or indirectly from time to time by any
Specified Obligor (up to an aggregate maximum of NOK 22 million)
to any SF Group Company under the relevant Finance Agreement.
Daily News Daily News, LP The prompt and punctual payment of any and all amounts due and
payable directly or indirectly from time to time by the
Specified Obligor to any SF Group Company under the relevant
Finance Agreement, including the repayment of the Construction
Loan if acceptance has not occurred by the Sunset Date under the
EPC Agreement.
Catalytic Catalytic Distillation Technologies Inc. ABB The prompt and punctual payment of any and all amounts due and
Distillation Lummus Global Inc payable directly or indirectly to any SF Group Company (and the
prompt and punctual performance of all other obligations) from
time to time by ABB Lummus Global Inc. in its capacity as
general partner and/or the other Specified Obligor.
Statoil Statoil The prompt and punctual payment of any and all amounts due and
payable directly or indirectly
Page 280
CONFORMED COPY
INFRASTRUCTURE/
MID MARKET
FINANCIAL ASSET SPECIFIED OBLIGORS SPECIFIED OBLIGATIONS
----------------------------------------------------------------------------------------------------------------------------------
ABB Offshore Technology from time to time by any Specified Obligor to any SF Group
Company under the relevant Finance Agreement (other than where
such amounts have become due and payable solely and directly as
a result of the insolvency or liquidation of Statoil).
Bispen Bispen AS ABB Offshore Technology The prompt and punctual payment of any and all amounts due and
payable directly or indirectly from time to time by the
Specified Obligors to any SF Group Company under the relevant
Finance Agreement (other than where such amounts have become due
and payable solely and directly as a result of the insolvency or
liquidation of the Bispen).
Potlatch Potlatch The prompt and punctual payment of any and all amounts due and
payable directly or indirectly from time to time by the
Specified Obligor to any SF Group Company under the relevant
Finance Agreement.
Feiringsenteret Feiringsenteret Eiendom AS The prompt and punctual payment of any and all amounts due and
Eiendom AS payable directly or indirectly from time to time by the
Specified Obligor to any SF Group Company under the relevant
Finance Agreement.
ABB AS ABB AS (formerly ABB Offshore) The prompt and punctual payment of any and all amounts of base
lease rental due and payable directly or indirectly from time to
time by the Specified Obligor to any SF Group Company under the
relevant Finance Agreement.
CFR Marfa CFR Marfa S.A. The prompt and punctual payment of any and all amounts due and
payable directly or indirectly from time to time by the
Specified Obligor to any SF Group Company under the relevant
Finance Agreement.
Tower Auto Tower Auto The prompt and punctual payment of any and all amounts (up to a
maximum amount of MEUR 5.1 due and payable directly and
indirectly during the related construction period by the
Specified Obligor to any SF Group Company under the relevant
Finance Agreement.
Page 281
PART B2
RETAINED LC BACKED GUARANTEES PURSUANT TO CLAUSE 10.6
APPROXIMATE
GUARANTEED APPROXIMATE
AMOUNT GUARANTEED
OUTSTANDING AS AMOUNT
AT 30 JUNE OUTSTANDING
2002 - LOAN AS AT 30 JUNE
GUARANTOR OBLIGOR BENEFICIARY CURRENCY 2002 - USD
----------------------------------------------------------------------------------------------------------
ABB Lummus Global Petrofac ABB Structured USD 47-54,000,000 USD 47-54,000,000
B.V. (Ohanet) Finance Ltd
Asea Brown Boveri Edelca ABB Structured USD 31,700,000 USD 31,700,000
S.A. Finance B.V.
ABB Distribution AB SSAB Tunnplat AB ABB Structured Total amount Total amount
Finance AB Guaranteed is SEK Guaranteed is
5,500,000 about USD 600,000
ABB AS Island Offshore ABB Structured Maximum amount Current exposure
III KS Finance AS guaranteed is NOK to borrower is
(Borrower) 22 million USD 3,700,000
Maximum amount
guaranteed is
USD 2,700,000
ABB Inc. Daily News ABB Structured USD 7,800,000 USD 7,800,000
Finance
(Americas) Inc. USD 3,300,000
and ABB Credit Inc funded
USD 4,500,000
unfunded
ABB Lummus Global Catalytic ABB Structured USD 6,100,000 USD 6,100,000
Distillation Finance
(Americas) Inc.
APPROXIMATE
GUARANTEED APPROXIMATE
AMOUNT GUARANTEED
OUTSTANDING AS AMOUNT
AS AT 30 JUNE OUTSTANDING
2002 - LOAN AT 30 JUNE
GUARANTOR OBLIGOR BENEFICIARY CURRENCY 2002 - USD
------------------------------------------------------------------------------------------------------
ABB AS Statoil ABB Maximum loan Maximum
Structured amount is loan amount
(Account Finance AS is NOK is USD
Debtor - the 50,000,000 6,750,000
Statoil beneficiary of
receivables an ABB AS Maximum Maximum
sold from guarantee amount amount
ABB AS to (does not guaranteed is guaranteed is
ABB cover Statoil NOK USD
Structured insolvency) 50,000,000 6,750,000
Finance AS)
ABB AS Bispen AS ABB Structured NOK 8,900,000 USD 1,200,000
(Borrower) Finance AS
ABB Inc Potlatch ABB Credit Inc. Construction USD 300,000
and ABB guarantee from funded
Structured ABB Inc., which USD 500,000
Finance indemnifies the unfunded
(Americas) Inc. SF entity for any
losses that may
arise as a result
of a commercial
dispute with the
Lessee prior to
equipment
acceptance.
(Limited to
Schedule No.
201101-000;
equipment under
Schedule No.
201101-001 has
been delivered
and accepted, so
guarantee has
lapsed.)
Page 282
APPROXIMATE
GUARANTEED APPROXIMATE
AMOUNT GUARANTEED
OUTSTANDING AS AMOUNT
AS AT 30 JUNE OUTSTANDING
2002 - LOAN AT 30 JUNE
GUARANTOR OBLIGOR BENEFICIARY CURRENCY 2002 - USD
------------------------------------------------------------------------------------------------------
ABB AS Feiringsenteret ABB Structured NOK 2,500,000 USD 300,000
Eiendom AS Finance AS
Guarantee of
Feiringsenteret
Eiendom AS
payment to
ABB AS under
a supplier-financing
contract.
ABB Utilities AB SSAB ABB Structured SEK 53,531,113 5,000,000
Finance AB
Performance
Guarantee on
switchgear
equipment in
lease to SSAB
ABB N.V. Tower ABB Structured EUR 5,200,000 5,200,000
Finance AB
50% Loss
Guarantee during
construction in
Lease to Tower
ABB N.V. Tower ABB Structured EUR 3,500,000 3,500,000
Finance AB
8% of base price
of interim lease
payments
(contingent
rentals)
Page 283
PART B3
OTHER INTRA-GROUP GUARANTEES GIVEN BY ANY MEMBER OF THE ABB GROUP (OTHER THAN
THE SF GROUP)
APPROXIMATE
APPROXIMATE GUARANTEED
GUARANTEED AMOUNT AMOUNT
OUTSTANDING AS AT OUTSTANDING AS
30 JUNE 2002 - AT 30 JUNE 2002
GUARANTOR OBLIGOR BENEFICIARY LOAN CURRENCY - USD
----------------------------------------------------------------------------------------------------------------
Asea Brown Boveri ABB Sistemas SA ABB Export Bank Obligations of
AG de CV and other lenders the Obligor under
(pursuant to a an engineering
guarantee assignment procurement and
assignment from construction
Subestaciones contract dated 23
Oriental Centro January 1998
SA de CV) and
Citibank Mexico SA
Sirius ABB Sistemas SA ABB Export Bank Obligations of
International de CV (pursuant to a the Obligor under
Insurance guarantee the contract for
Corporation assignment engineering
Stockholm, Zurich between LTS procurement,
Peninsular SA de testing and
CV and ABB Export commissioning of
Bank) four transmission
lines dated 26
June 1998
Page 284
PART C
RETAINED INTRA-STRUCTURED FINANCE GUARANTEES
APPROXIMATE
GUARANTEED AMOUNT APPROXIMATE
OUTSTANDING AS AT 30 GUARANTEED AMOUNT
JUNE 2002 - LOAN OUTSTANDING AS AT
GUARANTOR OBLIGOR BENEFICIARY CURRENCY 30 JUNE 2002 - USD
----------------------------------------------------------------------------------------------------------------
ABB Credit Finans AB ABB Credit Finans Danske Bank Counter-guarantee Up to a maximum
AB for a guarantee amount of USD
issued by Danske 5,429,000.
Bank to:
China Shipbuilding
Trading Co, Ltd,
Beijing and Shanghai
Xxxxxx Xxxxxxxxxxxx
Co, Ltd, Shanghai in
relation to a
shipbuilding
contract (hull no.
125) entered into
with Nynas Petroleum
AB and transferred
to ABB Credit Finans
AB.
Page 285
APPROXIMATE
GUARANTEED AMOUNT APPROXIMATE
OUTSTANDING AS AT 30 GUARANTEED AMOUNT
JUNE 2002 - LOAN OUTSTANDING AS AT
GUARANTOR OBLIGOR BENEFICIARY CURRENCY 30 JUNE 2002 - USD
----------------------------------------------------------------------------------------------------------------
ABB Credit Finans AB ABB Credit Finans Danske Bank Counter guarantee Up to a maximum
AB for a guarantee amount of USD
issued by Danske 5,429,000.
Bank to:
China Shipbuilding
Trading Co, Ltd,
Beijing and Shanghai
Xxxxxx Xxxxxxxxxxxx
Co, Ltd, Shanghai in
relation to a
shipbuilding
contract(hull no.
126) entered into
with Nynas Petroleum
AB and transferred
to ABB Credit Finans
AB.
ABB Structured ABB Credit Finans Danske Bank Guarantee for a Up to a maximum
Finance AB AB Counterguarantee amount of USD
issued by ABB Credit 5,429,000.
Finans AB to Danske
Bank (see above,
hull 125).
ABB Structured ABB Credit Finans Danske Bank Guarantee for a Up to a maximum
Finance AB AB Counterguarantee amount of USD
issued by ABB Credit 5,429,000.
Finans AB to Danske
Bank (see above,
hull 126).
Page 286
APPROXIMATE
GUARANTEED AMOUNT APPROXIMATE
OUTSTANDING AS AT 30 GUARANTEED AMOUNT
JUNE 2002 - LOAN OUTSTANDING AS AT
GUARANTOR OBLIGOR BENEFICIARY CURRENCY 30 JUNE 2002 - USD
----------------------------------------------------------------------------------------------------------------
ABB Structured ABB Structured AB SEK The guarantee is in USD 6,785,714.30
Finance AB Finance BV connection with the
Risk
Participation
Agreement between
AB SEK and ABB
Structured
Finance BV in
respect of a MIGA
covered loan
agreement in the
amount of USD
47,500,000 for
the Manila North
Tollways Project.
Page 287
PART D
INTRA-GROUP GUARANTEES GIVEN BY ANY MEMBER OF THE
SF GROUP TO ANY MEMBER OF THE ABB GROUP (EXCLUDING THE SF GROUP)
APPROXIMATE
GUARANTEED AMOUNT APPROXIMATE
OUTSTANDING AS AT 30 GUARANTEED AMOUNT
JUNE 2002 - LOAN OUTSTANDING AS AT
GUARANTOR OBLIGOR BENEFICIARY CURRENCY 30 JUNE 2002 - USD
----------------------------------------------------------------------------------------------------------------
ABB Structured ABB TD Finance AB Cross Sound The guarantee Up to a maximum of
Finance AB and ABB CSC Cable Company LLC relates to a USD 115,000,000
Finance AB Participation
Agreement between
Cross Sound Cable
Company LLC and ABB
TD Finance AB and
ABB CSC Finance AB
Page 288
CONFORMED COPY
SCHEDULE 19
WARRANTIES OF THE ABB GUARANTOR
INCORPORATION AND EXISTENCE
48.12 The ABB Guarantor is a company duly incorporated and organised under
Swiss law and has been in continuous existence since incorporation.
RIGHT, POWER, AUTHORITY AND ACTION
48.13 The ABB Guarantor has the right, power and authority, and has taken all
action necessary, to fully perform its obligations under this Agreement and each
document to be executed pursuant to this Agreement at or before Completion.
BINDING AGREEMENTS
48.14 The ABB Guarantor's obligations under this Agreement constitute, and
under each document to be executed pursuant to this Agreement at or before
Completion will constitute, valid and legally binding obligations enforceable in
accordance with their terms.
48.15 Entry into this Agreement will not result in a:
(a) violation or breach of any provision in the constitutional documents of
the ABB Guarantor;
(b) breach of, or give rise to a material default under, any material
contract or other instrument or agreement to which the ABB Guarantor is
a party or bound;
(c) breach or violation of any applicable laws or regulations of any order,
decree or judgement of any court, governmental agency or regulatory
authority applicable to the ABB Guarantor or any of its assets; or
(d) requirement for the ABB Guarantor to obtain any consent or approval of,
or give notice to any governmental, regulatory or other authority which
has not been obtained or made at the date of this Agreement.
INSOLVENCY etc.
48.16 In relation to the ABB Guarantor:
(a) no order has been made or petition presented or resolution passed for
the winding up, for the appointment of bankruptcy administration
(KONKURSVERWALTUNG), liquidator (LIQUIDATOR), commissioner
(KOMMISSIONAR) or administrator (SACHWALTER) or for a bankruptcy
(KONKURS) or moratorium (STUNDUNG / NACHLASSTUNDUNG) order; and
Page 289
CONFORMED COPY
(b) no composition arrangement has been proposed and no composition
agreement has been agreed or sanctioned under the Swiss Banking Act
and/or the Swiss Debt Collection and Bankruptcy Law.
Page 290
CONFORMED COPY
SCHEDULE 20
AGREED ACQUISITION STRUCTURE
COUNTRY ENTITY CODE ENTITY/BUSINESS/ ASSETS
--------------------------------------------------------------------------
USA USSTF ABB Structured Finance (Americas) Inc.
USA USCRD ABB Credit Inc.
USA USECA ABB Energy Capital LLC
Sweden SECUY/SENEW ABB Structured Finance Sweden AB
COUNTRY PURCHASE METHOD DESIGNATED VENDOR
-----------------------------------------------------------------------------------------------------------------
USA Share Purchase ABB Financial Services Inc.
USA Indirect Share Purchase ABB Financial Services Inc.
(as subsidiary of ABB Structured Finance (Americas) Inc.)
USA Indirect Share Purchase ABB Financial Services Inc.
(as subsidiary of ABB Structured Finance (Americas) Inc.)
Sweden Share Purchase ABB Asea Brown Boveri Ltd
COUNTRY DESIGNATED PURCHASER
----------------------------------------------------------------------------------
USA General Electric Capital Corporation
USA General Electric Capital Corporation (through acquisition of ABB
Structured Finance (Americas) Inc.)
USA General Electric Capital Corporation (through acquisition of ABB
Structured Finance (Americas) Inc.)
Sweden General Electric Railcar Services Corporation
Page 291
COUNTRY ENTITY CODE ENTITY/BUSINESS/ ASSETS
------------------------------------------------------------------------
Sweden SECRF ABB Credit Finans Aktiebolag
Sweden SERTI ABB Renting Aktiebolag
Sweden SECRE ABB Structured Finance Aktiebolag
Sweden SERES Resonia Aktiebolag
COUNTRY PURCHASE METHOD DESIGNATED VENDOR
-----------------------------------------------------------------------------------------------------------------
Sweden Indirect Share Purchase ABB Asea Brown Boveri Ltd
(as subsidiary of ABB Structured Finance AB)
Sweden Indirect Share Purchase ABB Asea Brown Boveri Ltd
(as subsidiary of ABB Credit Finans AB)
Sweden Indirect Share Purchase ABB Asea Brown Boveri Ltd
(as subsidiary of ABB Structured Finance Sweden AB)
Sweden Indirect Share Purchase ABB Asea Brown Boveri Ltd
(as subsidiary of ABB Structured Finance AB)
COUNTRY DESIGNATED PURCHASER
----------------------------------------------------------------------------------
Sweden General Electric Railcar Services Corporation
(through its acquisition of ABB Structured Finance Sweden AB)
Sweden General Electric Railcar Services Corporation
(through its acquisition of ABB Structured Finance Sweden AB)
Sweden General Electric Railcar Services Corporation
(through its acquisition of ABB Structured Finance Sweden AB)
Sweden General Electric Railcar Services Corporation (through its
acquisition of ABB Structured Finance Sweden AB)
Page 292
COUNTRY ENTITY CODE ENTITY/BUSINESS/ ASSETS
------------------------------------------------------------------------
Sweden SEREN ABB Rental Aktiebolag
Sweden SESOD ABB Sodra Kommanditbolag
Sweden SEREL Resonia Leasing Aktiebolag
COUNTRY PURCHASE METHOD DESIGNATED VENDOR
-----------------------------------------------------------------------------------------------------------------
Sweden Indirect Share purchase ABB Asea Brown Boveri Ltd
(as subsidiary of ABB Structured Finance AB)
Sweden Indirect Share Purchase ABB Asea Brown Boveri Ltd
(as subsidiary of ABB Renting AB and ABB Structured Finance
AB (formerly known as ABB Credit AB))
Sweden Indirect Share Purchase ABB Asea Brown Boveri Ltd
(as subsidiary of ABB Credit Finans AB)
COUNTRY DESIGNATED PURCHASER
----------------------------------------------------------------------------------
Sweden General Electric Railcar Services Corporation (through its
acquisition of ABB Structured Finance Sweden AB)
Sweden General Electric Railcar Services Corporation (through its
acquisition of ABB Structured Finance Sweden AB)
Sweden General Electric Railcar Services Corporation (through its
acquisition of ABB Structured Finance Sweden AB)
Page 293
COUNTRY ENTITY CODE ENTITY/BUSINESS/ ASSETS
------------------------------------------------------------------------
Switzerland CHFIN ABB Structured Finance International Limited
Netherlands NLCRD ABB Credit Holding BV
Netherlands NLCRE ABB Credit BV
Netherlands NLFSF ABB Structured Finance BV
Italy ITPEP ABB Structured Finance S.r.l.
Italy ITRLN/ITREN Xerox Noleggi S.p.A.
Italy ITRLE SIB Leasing S.p.A.
COUNTRY PURCHASE METHOD DESIGNATED VENDOR
-----------------------------------------------------------------------------------------------------------------
Switzerland Share Purchase ABB Credit Holding BV
Netherlands Share Purchase ABB Financial Services BV
Netherlands Share Purchase ABB Credit Holding BV (5%) and
ABB Structured Finance AB (95%)
Netherlands Share Purchase ABB Credit Holding BV
Italy Share Purchase ABB S.p.A
Italy Share Purchase ABB Credit Holding BV
Italy Indirect Share Purchase ABB S.p.A
(as subsidiary of ABB Structured Finance S.r.l.)
COUNTRY DESIGNATED PURCHASER
----------------------------------------------------------------------------------
Switzerland General Electric Capital Corporation
Netherlands General Electric Capital Corporation
Netherlands General Electric Capital Corporation
Netherlands General Electric Capital Corporation or SFG XVII Inc.
Italy GE Capital Services S.r.l.
Italy GE Capital Services S.r.l.
Italy GE Capital Services S.r.l (through acquisition of ABB Structured
Finance S.r.l.)
Page 294
COUNTRY ENTITY CODE ENTITY/BUSINESS/ ASSETS
------------------------------------------------------------------------
Guernsey GBFSF ABB Structured Finance Limited
Czech Republic N/A Business Assets/ Transferring Employees
Switzerland N/A Export Bank Transactions
COUNTRY PURCHASE METHOD DESIGNATED VENDOR
-----------------------------------------------------------------------------------------------------------------
Guernsey Share Purchase ABB Asea Brown Boveri Ltd. (50%)
First Overlap Ltd. (25%)
Second Overlap Ltd. (25%)
Czech Republic Asset Purchase ABB s.r.o (CZEPJ)
Switzerland Asset Purchase ABB Export Bank (CHEFA)
COUNTRY DESIGNATED PURCHASER
----------------------------------------------------------------------------------
Guernsey General Electric Capital Corporation or SFG XVII Inc. and GE
Capital Structured Finance Group, Inc. nominee shareholder
Czech Republic GE Capital Leasing a.s. is acquiring the Business Assets and a
Czech Republic General Electric Capital Corporation Affiliate is
acquiring the Transferring Employees
Switzerland General Electric Capital Corporation
Page 294
COUNTRY ENTITY CODE ENTITY/BUSINESS/ ASSETS
------------------------------------------------------------------------
Australia N/A Business Assets
COUNTRY PURCHASE METHOD DESIGNATED VENDOR
-----------------------------------------------------------------------------------------------------------------
Australia Asset Purchase ABB Financial Services Australia Limited (AUFIS)
COUNTRY DESIGNATED PURCHASER
----------------------------------------------------------------------------------
Australia GE Capital Commercial Real Estate Financing & Services Unit Trust
Page 295
SCHEDULE 21
VENDOR AWARENESS
The actual knowledge of the 41 persons named below is relevant for the purposes
of the definition of awareness set out in Schedule 1 (Interpretation).
# NAME
--------------------------------------------------
1. Xxxx Xxxxxxxxx
2. Xxxxxx Xxxxxx
3. Xxxxxxx Xxxxxxx
4. Xxx Xxxxxxx
5. Xxxxx Xxxxxxxxx
6. Xxxxxxx Xxxxxxxx
7. Fabio Cosimetti
8. Xxxxxxx Xxxxxx
9. Xxxx Xxxxxx
10. Xxxxxx Xxxxx
11. Xxxxxxx X. Xxxxx
12. Xxxx Xxxxxxxx
13. Xxxxxx Xxxxxxxxx
14. Xxx Xxxxxxxxx
00. Xxxxxxx Xxxxxx
16. Xxxx Xxxxxxxx
17. Xxxxx Xxxxxxxxx
18. Xxx Xxxxxxx
19. Xxxx Xxxxxxxx
00. Xxxxxxx Xxxxx
21. Xxxxxx Xxxxxxx
22. Xxxxxx Xxxxxxxx
23. Xxx Xxxxxxx
24. Xxxxx Xxxxxxxxxx
25. Xxxxxxxxxx Xxxxxxxxx
26. Xxxx Xxxxx
27. Xxxx Xxxxxxxxx
28. Xxx Xxxxxxx
29. Xxxxxx Xxxxxx
30. Xxxx Xxxxxxx
31. Xxxxxxx Xxxxxxxx
32. Uwe Rutschlin
33. Xxxxxx Xxxxxxxx
34. Kelley Rumps
35. Andrea Shindleman
36. Daniel Shindleman
37. Brian van Reijn
38. Xxxx Xxxxxxx
39. Xxxxxxxx Xxxxx
40. Xxxxxx Xxxxxxxxx
41. Xxxxxxxxx Xxxx
Page 296
SCHEDULE 22
RESERVES
PART A
LEASE & LOAN LEASE & LOAN
PORTFOLIO JUNE 30TH PORTFOLIO BALANCE
ENTITY SEGMENT 2002 (LOC) (LOC)
----------------------------------------------------------------------------------------------
SEREL Resonia SEK 3,996,439,732
SEREL Xerox SEK 3,544,923,404
ITREN Xerox EUR 267,621,075
ITRLE SIB EUR 63,692,541
SECRF - SEK 3,592,364,263
USSTF (BF) Small Ticket USD 197,132,031
SERES - SEK 6,728,000
Page 297
PART B
EXISTING EXISTING
SPECIFIC GENERAL
RESERVE RESERVE EXISTING RISK TOTAL EXISTING
ENTITY SEGMENT (LOC) (LOC) INSURANCE (LOC) RESERVE (LOC)
---------------------------------------------------------------------------------------------------
SEREL Resonia
SEREL Xerox
ITREN Xerox
ITRLE SIB
SECRF -
USSTF (BF) Small Ticket
SERES -
Page 298
PART C
ENTITY SEGMENT BASE RESERVE % GROWTH RESERVE %
--------------------------------------------------------------------
SEREL Resonia 3.3% 1.9%
SEREL Xerox 8.5% 2.2%
ITREN Xerox 7.2% 3.8%
ITRLE SIB 1.5% 1.5%
SECRF - 6.8% 2.0%
USSTF Small Ticket 7.0% 7.0%
SERES - 6.8% 2.0%
Page 299
PART D
UB201, Short-term loans granted Third/Rel. Parties plus UB204, Short-term loans
granted ABB Group plus UB211, Short-term receivables, finance leases Third/Rel.
parties plus UB215, Short-term receivables, finance leases ABB Group plus UB311,
Long-term loans granted Third/Rel. parties plus UB315, Long-term loans granted
ABB Group plus UB 321, Receivables, finance leases Third/Rel. parties plus
UB325, Receivables, finance leases ABB Group plus the value of equipment leased
to others carried in accounts UB445, Machinery & equipment - cost value plus
UB446, Machinery & equipment - accumulated depreciation/write-down plus UB465,
Land & building - cost value plus UB466, Land & building - accumulated
depreciation/write-down.
(LOC) = Local currency
Page 300
SCHEDULE 23
INCLUDED AIRCRAFT ASSETS
PRESENT VALUE AS PER JUNE
30 2002
CONTRACT NO NEW/OLD NO CUSTOMER NAME CURRENCY EQUIPMENT TYPE LOAN / LEASE (IN CONTRACT CURRENCY)
----------- ---------- ------------- -------- -------------- ------------ -------------------------
200565 Heliflyg AB sek Helikoptrar 4,997,149
000000 Xxxxxxx Xxxxxxxxxx XX sek Helikoptrar 1,915,000
200883 HelikopterDrift AS sek Helikoptrar 1,066,090
200967 Norwegian Helicopt.Consult. AS sek Helikoptrar 2,633,480
201003 Tampereen Helikpterikeskus Oy eur Helikoptrar 27,524
201009 Helikopter 355 AS nok Helikoptrar 11,557,445
201059 Xxxxx Xxxxxxxx m f:a Fjellfly sek Helikoptrar 2,612,000
201130 Winge Reisebureau AS sek Helikoptrar 5,552,000
201359 Berguven Aero AB sek Helikoptrar 6,184,738
201361 Airlift Helicopter Sweden AB sek Helikoptrar 7,946,000
201505 Tampereen Helikpterikeskus Oy eur Helikoptrar 830,524
201510 Malmskogens Aerocenter AB sek Helikoptrar 1,474,572
201572 Helikopter 355 AS nok Helikoptrar 3,471,186
201617 Lars-Anders AB sek Helikoptrar 4,510,038
201665 Malmskogens Helikopterleas. AB sek Helikoptrar 1,760,072
201684 Malmskogens Aerocenter AB sek Helikoptrar 5,075,551
201686 Heli i Arjeplog AB sek Helikoptrar 4,696,940
201697 Aquilo AS eur Helikoptrar 775,848
201719 Lars-Anders AB sek Helikoptrar 10,243,951
000000 Xxxxxxx Xxxxxxxxxx XX sek Helikoptrar 4,576,270
201789 Heliflight A/S usd Helikoptrar 747,649
201813 Helitrans Heavylift II AS usd Helikoptrar 808,256
201880 Helitrans Heavylift AS usd Helikoptrar 585,365
201894 Roslagens Helikopterflyg AB sek Helikoptrar 2,437,450
CONTRACT NO NEW/OLD NO CUSTOMER NAME STATUS DESCRIPTION REG. NO
----------- ---------- ------------- ------- ----------- -------
200565 Heliflyg AB 10 Eurocopter EC 120 s/n 1056 SE-JGP
200681 Arlanda Helikopter AB 10 Bell 206 B III, s/n 2323 SE-HRM
200883 HelikopterDrift AS 10 Robinson R-44 s/n 0057 LN-OGA
200967 Norwegian Helicopt.Consult. AS 10 Eurocopter AS350 B, s/n 1363 LN-OBT
201003 Tampereen Helikpterikeskus Oy 10 Robinson R22 Beta, s/n 2176 OH-HWG
201009 Helikopter 355 AS 10 Eurocopter AS-355N, sn 5681 LN-OBG
201059 Xxxxx Xxxxxxxx m f:a Fjellfly 10 Bell 206 B III s/n 2369 LN-OAS
201130 Winge Reisebureau AS 10 Eurocopter EC 120 s/n 1146 XX-XXX
000000 Xxxxxxxx Xxxx XX 10 Eurocopter EC 120 SE-JMF
201361 Airlift Helicopter Sweden AB 10 Eurocopter AS 350 B3, s/n 3445 SE-JHK
201505 Tampereen Helikpterikeskus Oy 10 Eurocopter AS 350 B2 s/n 9044 OH-HWI
201510 Malmskogens Aerocenter AB 00 Xxxxxx 000X s/n 500718D SE-HLA
201572 Helikopter 355 AS 10 Eurocopter AS 000 XX x/x 0000 XX-XXX
000000 Xxxx-Xxxxxx XX 10 Eurocopter EC 120 s/n 1179 SE-JLA
201665 Malmskogens Helikopterleas. AB 10 Hughes 369D, s/n 1200879D SE-HLI
201684 Malmskogens Aerocenter AB 10 Eurocopter AS 350 B1, s/n 2157 SE-HVN
201686 Heli i Arjeplog AB 10 Eurocopter EC 120, s/n 1036 SE-JMZ
201697 Aquilo AS 10 Bell 412, s/n 33106 PK-HMT
201719 Lars-Anders AB 10 Eurocopter AS 350 B3, s/n 3493 SE-JLC
000000 Xxxxxxx Xxxxxxxxxx XX 10 Bell 206 L III, s/n 51310 SE-HUC
201789 Heliflight A/S 10 Eurocopter AS 350 B3 s/n 3446 LN-OPY
201813 Helitrans Heavylift II AS 10 Bell 214-B, s/n 28054 LN-ORM
201880 Helitrans Heavylift AS 10 Bell 214-B, s/n 28053 LN-OPO
201894 Roslagens Helikopterflyg AB 10 Enstrom 480, s/n 5016 SE-JDA
Page 301
PRESENT VALUE AS PER JUNE
30 2002
201926 Norwegian Helicopt.Consult. AS sek Helikoptrar 930,500
201961 Helimatic AB sek Helikoptrar 1,785,000
201964 Pegasus Helicopter AS sek Helikoptrar 9,908,152
202038 200909 Polar Helikopter i Kiruna AB sek Helikoptrar 6,208,447
202039 201352 Polar Helikopter i Kiruna AB sek Helikoptrar 6,670,465
200571 NTD Air Cargo AB sek Flygplan 8,072,439
200688 Isolda AB sek Flygplan 813,940
200828 Nocturne AB sek Flygplan 873,375
000000 X X Xxxx & Xxxxxx XX sek Flygplan 834,539
200875 Bredakraflyg Ekn. Forening sek Flygplan 415,240
000000 Xxxxxxxxxxxxxxxxx Xxxx sek Flygplan 790,000
201166 Essex Invest A/S sek Flygplan 7,075,140
201323 Xxxxx Xxxx AB usd Flygplan 560,848
201362 Guard System A/S sek Flygplan 1,165,756
201690 Flugskolinn Flugtak EHF usd Flygplan 545,774
000000 Xxxxxxxxxxxxxxxxx Xxxx sek Flygplan 102,720
201760 Janne Banans Leksaksland e f:a sek Flygplan 161,662
201775 Xxxxxxxx Xxxx m. f:a sek Flygplan 171,610
201811 Borlange Flygklubb sek Flygplan 219,153
201828 Xxxxx Xxxx AB usd Flygplan 523,345
201896 Malmo AIR Taxi AB sek Flygplan 1,248,945
201935 Karlebo Aviation AB usd Flygplan 94,736
202073 200689 Bystrom m f:a PFT, Kjell sek Flygplan 353,319
LN-OBT s/n
201926 Norwegian Helicopt.Consult. AS 10 Eurocopter AS 350B, s/n 1363 1363
201961 Helimatic AB 10 MD 500, s/n 470112D SE-JGE
201964 Pegasus Helicopter AS 10 Eurocopter AS 350 B3, s/n 3444 LN-ODJ
202038 200909 Polar Helikopter i Kiruna AB 10 Eurocopter EC 120, s/n 1174 SE-JHA
202039 201352 Polar Helikopter i Kiruna AB 10 Eurocopter EC 120, s/n 1214 SE-JHB
200571 NTD Air Cargo AB 10 Xxxxxx Xxxxxxx x/x 000X 0000 XX-XXX
000000 Xxxxxx XX 10 Partenavia P68C SE-LBZ
200828 Nocturne AB 00 Xxxxxx X00X s/n 27-0057 SE-LBO
SE-KIL
200874 B N Flyg & Maskin AB 10 Piper PA-28-161 m.fl. m.fl.
200875 Bredakraflyg Ekn. Forening 10 Piper PA-28-181 s/n 28-8190294 XX-XXX
XX-XXX x/x
000000 Xxxxxxxxxxxxxxxxx Xxxx 10 Cessna Soloy 206 Turbin U20605771
201166 Essex Invest A/S 10 Beech King Air C90A s/n 1097 OY-JAJ
201323 Xxxxx Xxxx AB 10 Beech King Air B200 s/n 909 SE-KDK
201362 Guard System A/S 10 Piper Aerostar s/n PA-61-0275 LN-BEO
201690 Flugskolinn Flugtak EHF 10 Beech King Air E-90, s/n LW116 XX-XXX
XX-XXX x/x
000000 Xxxxxxxxxxxxxxxxx Xxxx 00 Xxxxxxxxxxx XX-XXX U20605771
201760 Janne Banans Leksaksland e f:a 10 Piper PA 00-000 Xxxxxxxx s/n SE-EZC
201775 Xxxxxxxx Xxxx m. f:a 10 Cessna 172D, s/n 17249678 SE-EAP
201811 Borlange Flygklubb 10 Motorsegelflygplan HK36-R SE-UDA
SE-KDK s/n
201828 Xxxxx Xxxx AB 10 Beech King Air B 200, s/n 909 909
201896 Malmo AIR Taxi AB 10 Piper PA-31-350,s/n 00-0000000 SE-IKV
201935 Karlebo Aviation AB 10 Piper Malibu PA 46-310P SE-LCY
202073 200689 Bystrom m f:a PFT, Kjell 10 Cessna F172N, s/n F17201687 SE-GYE
Page 302
SCHEDULE 24
WARRANTED FIELDS
MID MARKET
AND INFRASTRUCTURE
FINANCE (EXCLUDING UNDERWRITING &
NAME OF FIELD UNDERWRITING AND SYNDICATION) SYNDICATION
---------------------------------------------------------------------------------------------------------
Customer name + +
Customer number/contract number + +
Country of location + +
Currency + +
Equipment Description or code + +
Remaining balance (original currency) + +
End of term + X
Original purchase price, where applicable + +
Payment frequency + +
Contract type + +
Residual guaranty - warranty + X
where applicable not applicable
Purchase option, where applicable + +
Residual/balloon/value + +
Payment/yield (as at time of tape) (where + +
applicable) by latest
Advance/arrears/watch list + +
Interest rate basis + +
where applicable
Collateral type, where applicable + +
Syndication (yes or no) + +
Cash Flow by line item as at 31 + +
Page 303
December 2001
(including notes)
Aggregated Portfolio Cash Flow as at 31 December + +
2001
KEY: + Field warranted
+ Field warranted where data provided
where
applicable
X Field not warranted as inapplicable to asset type
not
applicable
X Field not warranted
Page 304
SCHEDULE 25
SCHEDULE 25 BANKS
NAME CREDIT RATING
S&P MOODY'S
Citibank, N.A. AA- Aal
Credit Suisse A+ Aa3
Deutsche Bank AA Aa3
HSBC AA- Aa3
Handelsbanken (Svenska Handelsbanken) A+ Aa2
SEBanken (Skandinaviska Enskilda Banken) A- A2
Page 305
CONFORMED COPY
EXECUTED as a DEED and )
DELIVERED on behalf of ABB FINANCIAL )
SERVICES BV, a company incorporated in the )
Netherlands by XXXXXXX XXXXXX ) XXXXXXX XXXXXX
and XXXXXXX X. XXXXX, )
being persons who, in accordance with the ) XXXXXXX X XXXXX
laws of that territory, are acting as proxies )
of ABB FINANCIAL SERVICES BV )
EXECUTED as a DEED and )
DELIVERED on behalf of GENERAL )
ELECTRIC CAPITAL CORPORATION, a company )
incorporated in the State of Delaware by )
XXXXXXX XXXXXXXXX ) XXXXXXX XXXXXXXXX
being a person who, in accordance with the )
laws of that territory, is acting under the )
authority of GENERAL ELECTRIC CAPITAL )
CORPORATION )
EXECUTED as a DEED and )
DELIVERED on behalf of ABB LTD, )
a company incorporated in Switzerland by )
XXXX XXXXXX ) XXXX XXXXXX
and DANIEL SHINDLEMAN, )
being persons who, in accordance with the ) DANIEL SHINDLEMAN
laws of that territory, are acting under the )
authority of ABB LTD )
Page 306
CONFORMED COPY
Page 307
