FACILITIES AGREEMENT Dated 4 February 2008
Exhibit (b)(1)
CONFORMED
COPY
Dated
4 February 2008
(1) DANFOSS A/S
as Parent, Original Borrower and
Guarantor
(2) DANSKE BANK A/S
as Lender
for
USD
600,000,000
Committed
Multicurrency Term Loan and Revolving Credit Facilities
CONTENTS
|
Clause
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Page
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||
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1
|
BACKGROUND
|
3
|
|
|
2
|
INTERPRETATION
|
4
|
|
|
3
|
COMMITMENT,
CURRENCY AND PURPOSE
|
17
|
|
|
4
|
CONDITIONS
PRECEDENT
|
17
|
|
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5
|
DRAWDOWN
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19
|
|
|
6
|
INTEREST
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20
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|
|
7
|
DEFAULT
INTEREST
|
22
|
|
|
8
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PREPAYMENT
AND CANCELLATION
|
23
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|
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9
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REPAYMENT
|
24
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|
|
10
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PAYMENTS
IN GENERAL
|
24
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|
|
11
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FEES
|
26
|
|
|
12
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GUARANTEE
AND INDEMNITY
|
27
|
|
|
13
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REPRESENTATIONS
AND WARRANTIES
|
29
|
|
|
14
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COVENANTS
|
31
|
|
|
15
|
EVENTS
OF DEFAULT
|
34
|
|
|
16
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INCREASED
COSTS
|
36
|
|
|
17
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FORCE
MAJEURE AND SIMILAR EVENTS
|
37
|
|
|
18
|
ACCELERATION
|
37
|
|
|
19
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MITIGATION
|
38
|
|
|
20
|
CURRENCY
INDEMNITY
|
38
|
|
|
21
|
OTHER
INDEMNITIES
|
39
|
|
|
22
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ASSIGNMENT
|
40
|
|
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23
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CHANGES
TO THE BORROWERS
|
40
|
|
|
24
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LIABILITY
|
42
|
|
|
25
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SET-OFF
|
42
|
|
|
26
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BORROWER’S
AGENT
|
42
|
|
|
27
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COMMUNICATIONS
|
42
|
|
|
28
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APPLICABLE
LAW AND LEGAL VENUE
|
44
|
|
|
29
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MISCELLANEOUS
|
45
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|
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30
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SIGNATORIES
|
45
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Schedule
|
Page
|
||
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1
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FORM
OF DRAWDOWN NOTICE
|
46
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|
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2
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FORM
OF SELECTION NOTICE
|
47
|
|
|
3
|
FORM
OF ACCESSION LETTER
|
48
|
|
|
4
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FORM
OF RESIGNATION LETTER
|
49
|
|
|
5
|
FORM
OF BOARD RESOLUTION
|
50
|
|
|
6
|
FORM
OF POWER OF ATTORNEY
|
51
|
|
|
7
|
FORM
OF MARGIN CERTIFICATE
|
52
|
|
|
8
|
FORM
OF CERTIFICATE OF COMPLIANCE
|
53
|
|
|
9
|
BANK
CASE
|
54
|
|
2/54
THIS AGREEMENT is dated and
made on 4 February 2008
BETWEEN
|
(1)
|
DANFOSS
A/S
|
(CVR-no 20165715)
Xxxxxxxxxxx 00
XX-0000 Xxxxxxxx
Xxxxxxx
(hereinafter
referred to as the “Parent”
or the “Original
Borrower” or the “Guarantor” as the case may
be)
|
(2)
|
DANSKE BANK
A/S
|
(CVR-no 00000000)
0-00 Xxxxxxx
Xxxxx
XX-0000 Xxxxxxxxxx
K
Denmark
(hereinafter
referred to as the “Lender”)
|
1.
|
BACKGROUND
|
|
(A)
|
The
Parent has requested the Lender to provide to the Borrowers (as
hereinafter defined) committed 7-year term loan and revolving credit
facilities in an amount of up to USD 600,000,000 (the “Facility”) or the
equivalent thereof in any Optional Currency (as hereinafter
defined).
|
|
(B)
|
The
Lender has agreed to extend for the purposes set out in Clause 3 (Commitment, Currency
and Purpose) the Facility subject to the terms and conditions set
out in this Agreement.
|
|
(C)
|
The
Lender has agreed that subject to the terms of this Agreement, certain
Group Companies (as hereinafter defined) may accede to the Agreement and
become Additional Borrowers.
|
|
(D)
|
The
Lender has requested and the Parent has agreed as a condition precedent to
the extension of the Facility that the Parent will guarantee any
borrowings by any Additional Borrower under this
Agreement.
|
3/54
|
2.
|
INTERPRETATION
|
|
2.1
|
Definitions:
In this Agreement
the following words and expressions, except where the context otherwise
requires, shall have the following
meaning:
|
|
2.1.1
|
“Accession
Letter”
|
shall
mean the accession letter to be delivered by the Parent, the Guarantor and
the Additional Borrower to the Lender in accordance with Clause 23.1 (Additional Borrowers)
substantially in the form attached as Schedule 3 (Form of Accession
Letter);
|
||
|
2.1.2
|
“Acquisition
Documents”
|
shall
mean all agreements entered into or to be entered into between the Parent
and/or a Subsidiary as purchaser and the Murmann Family and/or Danfoss
Murmann Holding A/S and/or Xxxxx Holding GmbH as sellers concerning the
Parent's acquisition of shares in Target and/or Danfoss Murmann Holding
A/S and/or Xxxxx Holding GmbH expected to be in the form of a share
purchase agreement (including any call options and additional performance
dependant payments) and a shareholders’ agreement with the purpose of
gaining Control over Target;
|
||
|
2.1.3
|
“Additional
Borrower”
|
shall
mean any Subsidiary which becomes an Additional Borrower in accordance
with Clause 23 (Changes
to the Borrowers);
|
||
|
2.1.4
|
“Agreement”
|
shall
mean this Agreement so designated, with pertaining Schedules as amended
from time to time;
|
||
|
2.1.5
|
“Approved
Restructuring Costs”
|
shall
mean Restructuring Costs incurred by the Group between the Signing Date
and the date ending on 31 March 2011 as set out in the Bank Case up to a
maximum amount of USD 120,000,000 in the aggregate provided, however, that
such Restructuring Costs shall for the period commencing on the Signing
Date and ending on 31 March 2009 and the period commencing on 1 April 2009
and ending on 31 March 2010 and the period commencing on 1 April 2010 and
ending on 31 March 2011 not exceed USD 30,000,000 for each specified
period;
|
4/54
|
2.1.6
|
“Authorised
Persons”
|
shall
mean in respect of the Parent and Guarantor each of the chief executive
officer and the chief financial officer or any person authorised by a duly
signed Power of Attorney and in respect of each other Borrower any person
authorised by a power of attorney duly signed on behalf of such
Borrower;
|
|||
|
2.1.7
|
“Availability
Period”
|
shall
mean:
|
|||
|
a)
|
for
Facility A the period from and including the Signing Date up to and
including the date falling 30 days before the Final Maturity
Date;
|
||||
|
b)
|
for
Facility B the period from and including the Signing Date up to and
including the date falling 4 years after and including the Signing
Date;
|
||||
|
c)
|
for
Facility C the period from and including the Signing Date up to and
including the date falling 6 years after and including the Signing
Date;
|
||||
|
2.1.8
|
“Banking
Day”
|
shall
mean any day on which banks are open for the transaction of business (i)
in Copenhagen and New York and (ii) in relation to a transaction involving
an Optional Currency (other than EUR) the principal financial centre of
the country of the relevant Optional Currency and (iii) (in relation to
any date for payment or purchase of EUR) which is a TARGET Day (a day on
which payments in EUR are settled in the Trans-European Automated Realtime
Gross Settlement Express Transfer System);
|
|||
|
2.1.9
|
“Bank
Case”
|
shall
mean the information material dated on or about January 2008 titled “Bank
Case” for the Target and the Group as agreed and accepted by the Parent
and the Lender as set out in Schedule 9 (Bank
Case);
|
|||
|
2.1.10
|
“Base
Currency”
|
shall
mean USD or such other currency as the Lender and the Parent may agree at
the request of the Parent;
|
|||
|
|
|||||
|
2.1.11
|
“Borrowers”
|
shall
mean the Parent and each Additional Borrower acceding to the Agreement and
Borrower means any or each of
them;
|
|||
5/54
|
2.1.12
|
“Calculation
Period”
|
shall
mean each period of four consecutive quarterly financial periods ending on
31.03, 30.06, 30.09 and 31.12, as applicable;
|
||
|
2.1.13
|
“Certificate
of Compliance”
|
shall
mean a certificate substantially in the form set out in Schedule 8 (Form of Certificate
of Compliance) setting out the Consolidated Net Interest Bearing
Debt to the Consolidated EBITDA for the Group, on basis of the annual
audited consolidated financial statements of the Group;
|
||
|
2.1.14
|
“Change
of Control”
|
shall
mean a change of control according to Clause 8.7 (Change of
Control);
|
||
|
2.1.15
|
“Closing
Date”
|
shall
mean the closing of the transaction contemplated by the Acquisition
Documents whereby the Parent directly or indirectly obtains Control over
Target;
|
||
|
2.1.16
|
“CIBOR”
|
(Copenhagen
Interbank Offered Rate) shall mean for a term of any Loan or overdue
amount in DKK
(a) the
rates which appears on the applicable screen (i.e. Reuters page DKNA13) or
any successor page thereof; or
(b) if no screen
rate is available for DKK or term of that Loan or overdue amount, the
arithmetic mean (rounded upward to four decimal places) of the rates, as
supplied to the Lender in the Copenhagen interbank market,
as
of 11.00 a.m. (Copenhagen time) on the rate fixing day for the offering of
deposits in DKK for a period comparable to that term;
|
||
|
2.1.17
|
“Commitment”
|
shall
mean the Facility A Commitment, the Facility B Commitment and the Facility
C Commitment not exceeding in aggregate USD 600,000,000 or the equivalent
thereof in any Optional Currency to be made available to the Borrowers by
the Lender;
|
||
|
2.1.18
|
“Commitment
Fee”
|
shall
mean the fee specified as such in Clause 11.2 (Commitment
Fee);
|
6/54
|
2.1.19
|
“Commitment
Period”
|
shall
mean the period from the Signing Date to the Final Maturity Date, upon
which date the Facility and any other outstanding hereunder shall fall due
for repayment in full;
|
||
|
2.1.20
|
“Consolidated
EBITDA”
|
shall
mean in respect of any relevant Calculation Period EBIT (as hereinafter
defined),
|
||
|
a)
|
after
adding back amortisation of any goodwill or any intangible
assets,
|
|||
|
b)
|
after
adding back any depreciation on fixed assets,
|
|||
|
c)
|
after
adding back any Approved Restructuring Costs, and
|
|||
|
d)
|
after
adding back or deducting, as the case may be, the amount of any impairment
or loss or gain against book value arising on disposal of any asset
excluding extraordinary and exceptional items and
costs;
|
|||
|
as
set out in the Group's quarterly unaudited consolidated financial
statements, for the relevant Calculation Period;
|
||||
|
2.1.21
|
“Consolidated
Net Interest Bearing Debt”
|
shall
mean in respect of any relevant Calculation Period,
|
||
|
a)
|
all
interest bearing obligations (including financial lease obligations which
shall be treated as debt);
|
|||
|
b)
|
plus,
without duplication, all off balance sheet liabilities including the net
xxxx to market value of any hedging, or other derivative transaction
(including any forward sale or purchase agreement);
|
|||
|
c)
|
and
including any counter-indemnity obligation in respect of a guarantee,
bond, standby or documentary letter of credit or any other instrument, but
in any case not performance bonds or advance payment bonds or documentary
letters of credit issued in respect of the obligations of any member of
the Group arising in the ordinary course of trading, issued by a bank or
financial institution in respect of an underlying liability of an entity
which is not a member of the
Group;
|
|||
7/54
|
d)
|
but
excluding operating lease obligations,
|
|||
|
e)
|
and
excluding obligations in respect of call options provided for in the
Acquisition Documents,
|
|||
|
f)
|
and
excluding obligations in respect of pension or other post-employment
benefit schemes within the Group; less
|
|||
|
g)
|
cash
in hand, immediately available funds, and any other liquid and marketable
instruments, securities and investments equivalent to cash, which are not
restricted,
|
|||
|
as
set out in the Group's quarterly unaudited consolidated financial
statements, for the relevant Calculation Period;
|
||||
|
2.1.22
|
“Contractual
Currency”
|
shall
mean the currency specified as such in Clause 20.1
(Indemnity);
|
||
|
2.1.23
|
“Control”
|
shall
mean in relation to any entity an entity holding directly or indirectly
more than 50 % of the capital and voting rights of another
entity;
|
||
|
2.1.24
|
“Default
Interest”
|
shall
mean the interest specified as such in Clause 7 (Default
Interest);
|
||
|
2.1.25
|
“DKK”
|
shall
mean the lawful currency for the time being of the Kingdom of
Denmark;
|
||
|
2.1.26
|
“Drawing
Date”
|
shall
mean the date of the making of a Loan pursuant to Clause 5
(Drawdown);
|
||
|
2.1.27
|
“EBIT”
|
a)
|
shall
mean, in respect of any relevant Calculation Period, the consolidated
operating profit of the Group before taxation (excluding the results from
discontinued operations and including the results from new operations
acquired) as set out in the Group's quarterly unaudited consolidated
financial statements, for the relevant Calculation Period before deducting
any finance charges;
|
|
8/54
|
b)
|
before
taking into account any finance income;
|
|||
|
c)
|
not
including any accrued interest owing to any member of the
Group;
|
|||
|
d)
|
before
taking into account any exceptional items, i.e. items that are not
specified in the quarterly unaudited financial statements of the Group as
being either ordinary or secondary to the principal activities of the
Group;
|
|||
|
e)
|
after
deducting the amount of any profit (or adding back the amount of any loss)
of any member of the Group which is attributable to minority
interests;
|
|||
|
f)
|
before
taking into account net profit or losses after tax from joint ventures or
associated companies;
|
|||
|
g)
|
before
taking into account any unrealised gains or losses on any derivative or
financial instruments (other than any derivative instrument which is
accounted for on a hedge accounting basis); and
|
|||
|
h)
|
before
deducting expenses and before taking into account income from fair value
adjustments for stock options and warrants where the option or warrant
holder has the right to receive cash settlement of the warrant or
option;
|
|||
|
in
each case, to the extent added, deducted or taken into account, as the
case may be, for the purposes of determining operating profits of the
Group before taxation;
|
||||
|
2.1.28
|
“Effective
Date”
|
shall
mean the date as of which the Facility will become available for drawing
in accordance with Clause
4 (Conditions Precedent);
|
||
|
2.1.29
|
“End
Date”
|
shall
mean the maturity date of a Loan pursuant to Clause 5
(Drawdown);
|
||
9/54
|
2.1.30
|
“EUR”
|
shall
mean euro being the lawful single currency unit of the participating
member states of the European Monetary Union;
|
|||
|
2.1.31
|
“EURIBOR”
|
(Euro
Interbank Offered Rate) shall mean for a term of any Loan or overdue
amount in EUR:
|
|||
|
(a)
|
the
rates which appears on the applicable screen (i.e. Reuters page EURIBOR01)
or any successor page thereof; or
|
||||
|
(b)
|
if
no screen rate is available for that term of that Loan or overdue amount,
the arithmetic mean (rounded upward to four decimal places) of the rates
as supplied to the Lender in the European interbank market,
|
||||
|
as
of 11.00 a.m. (Brussels time) on the rate fixing day for the offering of
deposits in EUR for a period comparable to that term;
|
|||||
|
2.1.32
|
“Event
of Accelerated Repayment”
|
shall
mean an event specified as such in Clause 18
(Acceleration);
|
|||
|
2.1.33
|
“Event
of Default”
|
shall
mean an event specified as such in Clause 15 (Events of
Default);
|
|||
|
2.1.34
|
“Facility”
|
shall
mean Facility A, Facility B or Facility C, the terms of which are set out
herein;
|
|||
|
2.1.35
|
“Facility
A”
|
shall
mean the revolving credit facility made available under this Agreement as
described in Clause 3.1
(Commitment) and paragraph (a) of Clause 3.3
(Purpose);
|
|||
|
2.1.36
|
“Facility
A Commitment”
|
shall
mean the Base Currency amount of USD 200,000,000 to the extent not
cancelled or reduced;
|
|||
|
2.1.37
|
“Facility
A Loan”
|
shall
mean a loan made or to be made under Facility A or the principal amount
outstanding for the time being of that loan;
|
|||
|
2.1.38
|
“Facility
B”
|
shall
mean the term loan facility made available under this Agreement as
described in Clause 3.1
(Commitment) and paragraph (b) of Clause 3.3
(Purpose);
|
|||
10/54
|
2.1.39
|
“Facility
B Commitment”
|
shall
mean the Base Currency amount of USD 200,000,000 to the extent not
cancelled or reduced;
|
|||||
|
2.1.40
|
“Facility
B Loan”
|
shall
mean a loan made or to be made under Facility B or the principal amount
outstanding for the time being of that loan;
|
|||||
|
2.1.41
|
“Facility
C”
|
shall
mean the term loan facility made available under this Agreement as
described in Clause 3.1
(Commitment) and paragraph (c) of Clause 3.3
(Purpose);
|
|||||
|
2.1.42
|
“Facility
C Commitment”
|
shall
mean the Base Currency amount of USD 200,000,000 to the extent not
cancelled or reduced;
|
|||||
|
2.1.43
|
“Facility
C Loan”
|
shall
mean a loan made or to be made under Facility C or the principal amount
outstanding for the time being of that loan;
|
|||||
|
2.1.44
|
“Final
Maturity Date”
|
shall
mean the 4 February 2015;
|
|||||
|
2.1.45
|
“Finance
Documents”
|
shall
mean this Agreement with all its appendices and each Accession
Letter;
|
|||||
|
2.1.46
|
“Financial
Indebtedness”
|
shall
mean any indebtedness for or in respect of:
|
|||||
|
a)
|
moneys
borrowed;
|
||||||
|
b)
|
any
amount raised by acceptance under any acceptance credit facility or
dematerialised equivalent;
|
||||||
|
c)
|
any
amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar
instrument;
|
||||||
|
d)
|
the
amount of any liability in respect of any lease or hire purchase contract
which would, in accordance with IFRS or any other applicable accounting
principles, be treated as a finance or capital lease;
|
||||||
|
|
|
e)
|
|
receivables
sold or discounted (other than any receivables to the extent they are sold
on a non-recourse
basis);
|
|||
11/54
|
f)
|
any
amount raised under any other transaction (including any forward sale or
purchase agreement) having the commercial effect of a
borrowing;
|
||||||
|
g)
|
any
derivatives transaction entered into in connection with protection against
or benefit from fluctuation in any rate or price (and, when calculating
the value of any derivative transaction, only the marked to market value
shall be taken into account);
|
||||||
|
h)
|
any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other instrument issued by
a bank or financial institution; and
|
||||||
|
i)
|
the
amount of any liability in respect of any guarantee or indemnity for any
of the items referred to in paragraphs (a) to (h)
above;
|
||||||
|
2.1.47
|
“Group”
and “Group Companies”
|
shall
mean the Parent and its Subsidiaries;
|
|||||
|
2.1.48
|
“Guarantor”
|
shall
mean the Parent;
|
|||||
|
2.1.49
|
“IBOR”
|
shall
mean LIBOR, CIBOR or EURIBOR, as applicable;
|
|||||
|
2.1.50
|
“IFRS”
|
shall
mean international accounting standards within the meaning of IAS
Regulations 1606/2002 to the extent applicable to the relevant financial
statements;
|
|||||
|
2.1.51
|
“Increased
Costs”
|
shall
mean (without double counting):
|
|||||
|
a)
|
an
additional or increased cost;
|
||||||
|
b)
|
a
reduction in the rate of return under a Finance Document or on its overall
capital; or
|
||||||
|
|
|
c)
|
|
reduction
of an amount due and payable under any Finance
Document;
|
|||
12/54
|
which
is incurred or suffered by the Lender or any of its affiliates but only to
the extent attributable to the Lender having entered into any Finance
Document or funding or performing its obligations under any Finance
Document;
|
||||||||
|
2.1.52
|
“Interest
Payment Date”
|
shall
subject to Clause 8.1
(Voluntary Prepayment) mean the last day of each Interest
Period;
|
||||||
|
2.1.53
|
“Interest
Period”
|
shall
mean a period of 1 (one), 3 (three), 6 (six) or 12 (twelve) months or such
other period as agreed upon in advance between the relevant Borrower and
the Lender for the calculation of the interest on the Loan, provided that
any such period:
|
||||||
|
1)
|
shall
start on the Drawing Date;
|
|||||||
|
2)
|
which
would otherwise end on a day which is not a Banking Day shall be extended
to the next succeeding day which is a Banking Day in the same calendar
month (if there is one) or the proceeding Banking Day (if there is not) or
whatever day the Lender determines is market practice;
|
|||||||
|
3)
|
which
would otherwise end on a day occurring after the Final Maturity Date shall
be shortened to end on the Final Maturity Date;
|
|||||||
|
2.1.54
|
“Interest
Rate”
|
shall
mean the rate of interest payable by the relevant Borrower to the Lender
in respect of any Loan equal to the aggregate of LIBOR (if the Loan is
denominated in USD), CIBOR (if the Loan is denominated in DKK) or EURIBOR
(if the Loan is denominated in EUR) or LIBOR for any other Optional
Currency and the applicable Margin;
|
||||||
|
2.1.55
|
“LIBOR”
|
(London
Interbank Offered Rate) shall mean for a term of any Loan or overdue
amount denominated in USD or any currency other than EUR and
DKK:
|
||||||
|
|
|
|
(a)
|
the
rates which appears on the applicable screen (i.e. Reuters page
LIBOR01/LIBOR02 or any successor page thereof);
or
|
||||
13/54
|
|
(b)
|
if
no screen rate is available for the relevant currency or term of that Loan
or overdue amount, the arithmetic mean (rounded upward to four decimal
places) of the rates, as supplied to the Lender in the London interbank
market,
|
||||||
|
as
of 11.00 a.m. (London time) on the rate fixing day for the offering of
deposits in the currency of that Loan or overdue amount for a period
comparable to that term;
|
||||||||
|
2.1.56
|
“Loan”
|
shall
mean the Facility A, Facility B or Facility C loan;
|
||||||
|
2.1.57
|
“Margin”
|
shall
mean a margin of initially 0.530 % p.a., subject to Clause 6.6 (Margin
Adjustment);
|
||||||
|
2.1.58
|
“Margin
Certificate”
|
shall
mean a certificate substantially in the form set out in Schedule 7 (Form of Margin
Certificate) setting out the Consolidated Net Interest Bearing Debt
to the Consolidated EBITDA for the Group;
|
||||||
|
2.1.59
|
“Material
Adverse Effect”
|
shall
mean the occurrence of one or more events which in the reasonable opinion
of the Lender have a material adverse effect on:
|
||||||
|
a)
|
the
ability of the Borrowers and/or the Guarantor or the Group (taken as a
whole) to perform their obligations under the Finance Documents;
or
|
|||||||
|
b)
|
the
validity or enforceability of any of the Finance Document or the rights or
remedies of the Lender under any of the Finance
Document;
|
|||||||
|
2.1.60
|
“Notice”
|
shall
mean a communication specified as such in Clause 27.1
(Communications);
|
||||||
|
2.1.61
|
“Notice
of Drawdown”
|
shall
mean a notice from a Borrower to the Lender substantially in the form set
out in Schedule 1 (Form
of Notice of Drawdown) whereby a Borrower requests a
Loan;
|
||||||
14/54
|
2.1.62
|
“Optional
Currency”
|
shall
mean DKK and EUR subject to the prior approval of the Lender or such other
currency as agreed between the Borrower and the Lender which is freely
convertible into EUR and available to the Lender in the Lender’s sole
opinion;
|
|||
|
2.1.63
|
“Original
Borrower”
|
shall
mean the Parent;
|
|||
|
2.1.64
|
“Parent”
|
shall
mean Danfoss A/S, situated at Xxxxxxxxxxx 00, XX-0000 Xxxxxxxx, Xxxxxxx, a
limited liability company incorporated under CVR no. 20165715 and existing
under the laws of the Kingdom of Denmark;
|
|||
|
2.1.65
|
“Party(ies)”
|
shall
mean any or all of the parties hereto as indicated in each instance by
context;
|
|||
|
2.1.66
|
“Relevant
Amount”
|
shall
mean the amount specified as such in Clause 20.1.2 (Payment of
Deficit);
|
|||
|
2.1.67
|
“Repayment
Date”
|
shall
mean the Final Maturity Date;
|
|||
|
2.1.68
|
“Repeating
Representations”
|
shall
mean each of the representations and warranties set out in Clause 13.1.1 (Corporate
Existence), Clause 13.1.2 (Ultra Xxxxx Activities), Clause 13.1.3 (Powers and
Authorisations), Clause 13.1.5 (Validity and Enforceability), Clause
13.1.6 (Performance), Clause 13.1.8 (Pari Passu), and Clause 13.1.9 (No
Default);
|
|||
|
2.1.69
|
“Resignation
Letter”
|
shall
mean the resignation letter to be delivered by the Parent and the relevant
Borrower to the Lender in accordance with Clause 23.6 (Resignation of a
Borrower) substantially in the form attached as Schedule 4 (Form of Resignation
Letter);
|
|||
|
2.1.70
|
“Restructuring
Costs”
|
shall
mean any and all costs incurred by the Group in respect of initiatives
aimed at improving the performance of Target within purchase, sale and
manufacturing as well as overhead related thereto as set out in the Bank
Case;
|
|||
|
2.1.71
|
“Selection
Notice”
|
|
shall
mean a notice from a Borrower to the Lender substantially in the form set
out in Schedule
2 (Form of Selection Notice) whereby a Borrower request a new
Interest Period for a Term Loan A or Term Loan B Loan, and/or request a
change of currency for a Term Loan A or Term Loan B
Loan;
|
15/54
|
2.1.72
|
“Signing
Date”
|
shall
mean the date of this Agreement;
|
|
|
2.1.73
|
“Structure
Memorandum”
|
shall
mean the overview over the structure relating to the acquisition of the
Target produced by the Parent and dated on or about January
2008;
|
|
|
2.1.74
|
“Subsidiary”
|
shall
mean an entity (whether or not now existing) Controlled by the
Parent;
|
|
|
2.1.75
|
“Target”
|
shall
mean Xxxxx-Danfoss Inc., situated at 000 Xxxxxxx Xxxxx, Xxxxxxxxxxxx, XX
00000, a limited liability company incorporated under the laws of Delaware
and listed on the New York Stock Exchange and Frankfurter
Wertpapierbörse;
|
|
|
2.1.76
|
“Taxes”
|
shall
mean all present and future income and other taxes, value added tax,
withholding tax, levies, imposts, stamp, registration and other duties,
deductions, charges, compulsory loans and withholdings whatsoever together
with interest thereon and penalties with respect thereto, if any, and any
payments made on or in respect thereof imposed by any authority at any
time in respect of any payments made or to be made to the Lender
hereunder;
|
|
|
2.1.77
|
“USD”
|
shall
mean the lawful currency for the time being of the United States of
America.
|
|
2.2
|
References: In this
Agreement, unless the contrary intention appears, a reference
to:
|
|
|
2.2.1
|
A
provision of law is a reference to that provision as amended or
re-enacted;
|
|
2.2.2
|
A
Clause or a Schedule is a reference to a clause or a schedule to this
Agreement;
|
|
2.2.3
|
A
person or entity includes its transferees and
assigns;
|
|
2.2.4
|
Words
importing the singular shall include the plural and vice
versa.
|
16/54
|
3.
|
COMMITMENT, CURRENCY AND
PURPOSE
|
|
3.1
|
Commitment: Subject to
the terms and conditions of this Agreement, the Lender hereby agrees to
make available to the Borrowers committed term loan and revolving credit
facilities in an aggregate amount equal to the Facility A Commitment, the
Facility B Commitment and the Facility C
Commitment.
|
|
3.2
|
Liability several and not
joint: The liability of each of the Borrowers hereunder shall be
several and not joint, however subject to the Guarantors obligations in
accordance with Clause 12
(Guarantees and Indemnity).
|
|
3.3
|
Purpose: The Facility is
extended for the following
purposes:
|
|
(a)
|
a
Facility A for partly financing the acquisition by the Parent and/or a
Subsidiary of approximately 17.5 % of the share capital (of whatever
class) of the Target in accordance with the Acquisition Documents and the
Structure Memorandum, together with all related rights for a cash
consideration of USD 500,000,000 and for general corporate
purposes;
|
|
(b)
|
a
Facility B for the purpose of partly financing the acquisition by the
Parent and/or a Subsidiary in accordance with the Acquisition Documents
and the Structure Memorandum of an additional approximately 10.5 % of the
share capital (of whatever class) of the Target, together with all related
rights and - if required - the additional performance dependant payment
provided for in the Acquisition
Documents;
|
|
(c)
|
a
Facility C for the purpose of partly financing the acquisition by the
Parent and/or a Subsidiary in accordance with the Acquisition Documents
and the Structure Memorandum of an additional approximately 10.5 % of the
share capital (of whatever class) of the Target, together with all related
rights and - if required - the additional performance dependant payment
provided for in the Acquisition
Documents;
|
|
(d)
|
financing
acquisition costs (costs, fees and expenses) in connection with the
Facility and the acquisition of the share capital according to (a), (b)
and (c) above.
|
|
3.4
|
Currency: Any Loan made
hereunder shall be denominated in the Base Currency or in any Optional
Currency.
|
|
3.5
|
Expiry of Commitment:
The commitment of the Lender to make any Loan pursuant to the
Commitment shall lapse at the end of the Availability
Period.
|
|
4.
|
CONDITIONS
PRECEDENT
|
|
4.1
|
Conditions Precedent: It
is a condition precedent to the availability of the Facility to the
Borrowers that the Lender has received the following documents and
evidence in the form and substance as satisfactory to the
Lender:
|
|
4.1.1
|
Articles of Association:
Certified copies of the Articles of Association of each Borrower and the
Guarantor;
|
17/54
|
|
4.1.2
|
Transcripts: Certified
copies of the company registration certificate in respect of each Borrower
and the Guarantor;
|
|
|
4.1.3
|
Board Resolutions: A
copy of a resolution of the Board of Directors of each Borrower and the
Guarantor, in the form and substance as Schedule 5 (Board
Resolution), in respect of each Borrower authorising the obtaining
from the Lender of the Facility contemplated by this Agreement, and in
respect of the Guarantor authorising its obligation to guarantee the
obligations of the Borrowers under the
Facility;
|
|
|
4.1.4
|
Power of Attorney: A
power of attorney (if applicable) in the form and substance as set out in
Schedule 6 (Power of
Attorney) evidencing that the person or persons signing on behalf
of each Borrower or the Guarantor is/are authorised to execute and deliver
this Agreement and attached
Schedules;
|
|
4.1.5
|
Certificate of Parent; A
certificate of the Parent, signed by Authorised Persons, confirming that
borrowing or guaranteeing, as appropriate, the Commitment would not cause
any borrowing, guaranteeing or similar limit binding on any Borrower to be
exceeded;
|
|
4.1.6
|
Notice of Drawdown: Each
Notice of Drawdown in accordance with Clause 5.1.5 (Notice of
Drawdown);
|
|
4.1.7
|
Accession Letter: In
respect of each Additional Borrower acceding to this Agreement, an
Accession Letter in the form and substance as set out in Schedule 3 (Form of Accession
Letter) to this Agreement executed by the relevant Additional
Borrower, the Parent and the Guarantor; and if the Additional Borrower is
incorporated in a jurisdiction other than Denmark, a legal opinion from
legal advisers in that jurisdiction, addressed to the
Lender;
|
|
4.1.8
|
Acquisition Documents: A
copy of the executed Acquisition Documents, including the conditions for
exercising the call options there under and any performance dependant
payments;
|
|
4.1.9
|
Bank Case: A Bank Case
for the Target and the Group, including assumptions and projections for
the duration of the Facility, subject to the Parent and the Lenders
approval;
|
|
4.1.10
|
McKinsey Report: A copy
of the discussion document prepared by McKinsey & Company, Inc. on or
about October 2007 describing the expected growth potential, expected
synergies and possible cost savings for Xxxxx-Danfoss Inc. in connection
with the establishment of the Acquisition
Documents;
|
|
4.1.11
|
Legal Opinions: A copy
of the below legal opinions (in the final form) confirming that redemption
of or compensation to the minority share holders in Xxxxx-Danfoss Inc. is
not required in connection with the transactions contemplated by the
Acquisition Documents or the exercising of the call options and any
performance dependant payments according to the Acquisition Documents, if
any, in the form of :
|
18/54
|
|
·
|
A
memo dated 8 March 2005 from Xxxxxxx X Xxxxx and Xxxxx X. Southfield
of Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxx LLP headed: “Possible
acquisition by Danfoss A/S of shares held by Murmann in
Xxxxx-Danfoss”;
|
|
|
·
|
A
memo in the form of a fax dated 19 May 2005 from Xxxxxx X. Xxxxx and
Xxxxxxxx X. Fresco of Xxxxxxxx, Xxxxxx & Finger to Dr. Xxx-Xxxxx
Böning of the Parent headed: “X. Xxxxxxx Vervaltungsgesellschaft
mbH”;
|
|
|
·
|
A
memo dated 23 October 2007 from Uri Doron of Xxxxxxxx Xxxxxxx LLP to
Xxxxxx Xxxxxxxxxxxx of the Parent headed “Possible acquisition by Danfoss
A/S of shares held by Murmann”;
|
|
4.1.12
|
Agreement: An original
copy of this Agreement, duly executed by all
Parties.
|
|
4.2
|
Completion Failure: The
commitment of the Lender to make the Facility available to the Borrowers
shall lapse if the conditions precedent referred to in Clause 4.1 (Conditions
Precedent) have not been satisfied with respect to the Borrowers,
the Parent and the Guarantor prior to the first drawdown. Upon the
occurrence of an automatic cancellation as per this Clause 4 (Conditions
Precedent) the Parent shall (subject to receipt of documentation of
such costs) reimburse the Lender the market costs of unwinding any funding
obtained plus any other costs incurred by the Lender in connection with
the cancellation of the funding.
|
|
5.
|
DRAWDOWN
|
|
5.1
|
Availability: For the
duration of the Availability Period, Loans in the Base Currency or an
Optional Currency, approved by the Lender, may be requested by any
Borrower and shall be made subject
to:
|
|
5.1.1
|
Conditions Precedent:
the conditions precedent set out in Clause 4 (Conditions
Precedent) having been and continuing to be fulfilled with respect
to the Borrower in question and/or the
Guarantor;
|
|
5.1.2
|
No Event of Default: no
Event of Default or Event of Accelerated Repayment having occurred with
respect to the Borrower in question and no other event having occurred
with respect to said Borrower which would constitute an Event of Default
or an Event of Accelerated Repayment provided that in each case such event
is continuing; and
|
|
5.1.3
|
Free Transferability:
with respect to the requested Loan no hindrances in the transfer of
convertible currency from any member of the European Monetary Union, to
the Kingdom of Denmark, the United States of America or to any country the
currency of which is an Optional Currency (if relevant) has occurred or is
threatening; and
|
19/54
|
5.1.4
|
Representation and
Warranties: each of the representations and warranties mentioned in
Clause 13
(Representations and Warranties) with respect to the Borrower in
question remaining accurate and true in all material respects on each
Drawing Date as if given on that date by reference to the facts and
circumstances then existing; and
|
|
5.1.5
|
Notice of Drawdown: the
receipt by the Lender of a duly completed Notice of Drawdown from a
Borrower in the form set out in Schedule 1 (Form of Notice of
Drawdown) prior to 10.00 a.m. Copenhagen time 3 (three) Banking
Days in advance of the requested Drawing Date;
and
|
|
5.1.6
|
Completion of Notice of
Drawdown: Each Notice of Drawdown is irrevocable and will not be
regarded as having been duly completed unless a) it identifies the
Borrower; b) it states the proposed Base Currency or Optional Currency
amount to be made; c) the Interest Period for the relevant Loan; d) the
Drawing Date for the relevant Loan; e) the End Date for the relevant Loan
and f) the proposed Drawing Date is a Banking Day falling within the
Availability Period; and
|
|
5.1.7
|
Drawings: For the
duration of the Availability Period and subject to the terms of this
Agreement the Commitment shall be available for drawings according to the
purpose set out under Clause 3.3 (Purpose),
however, in each event in a minimum amount of USD 1,000,000 (USD one million)
and furthermore in integral multiples of USD 100,000 (USD one hundred
thousand) or the equivalent thereof in any Optional Currency in integral
multiples of 1,000,000 (one million);
and
|
|
5.1.8
|
Maximum number of Loans:
A Borrower may not deliver a Notice of Drawdown if as a result of the
proposed Loan (i) more than 4 (four) Facility A Loans; (ii) 5 (five)
Facility B Loans; or (iii) 5 (five) Facility C Loans would be outstanding;
and
|
|
5.1.9
|
Authorisation: Each
Borrower hereby irrevocably and unconditionally authorises the Lender to
draw and settle (by way of set-off or otherwise) without the receipt of a
Notice of Drawdown to such effect the proceeds of a Loan for the purposes
of discharging interest accrued
and payable as set out herein or fees and costs incurred and reimbursable
by that Borrower as set out in Clauses 11 (Fees) and 21 (Other
Indemnities).
|
|
6.
|
INTEREST
|
|
6.1
|
Interest Payment: A
Borrower to which a Loan has been made shall subject to Clause 6.4 (Payment of
Interest) pay interest in respect of that Loan in arrears on each
Interest Payment Date calculated at the rate of the Interest
Rate.
|
|
6.2
|
Selection of Interest Period:
A Borrower’s choice of Interest Period shall be specified in the
Notice of Drawdown in the form set out in Schedule 1 (Form of Notice of
Drawdown) or in case of Facility B Loans and Facility C Loans (if
the Loan(s) has already been borrowed) in a Selection Notice in the form
set out in Schedule 2
(Form of Selection Notice), to be received by the Lender prior to
10.00 a.m. Copenhagen time 3 (three) Banking Days in advance of the first
day of the requested Interest Period. If an Interest Period has not been
selected by the relevant Borrower in the Notice of Drawdown or in the
Selection Notice where applicable, the Interest Period shall be for a
duration of 1 (one)
month.
|
20/54
|
6.3
|
Selection of Currency: A
Borrower may at the end of an Interest Period, in case of a Facility B
Loan and Facility C Loan, select another Optional Currency subject to the
Lender receiving from the Borrower a duly completed and irrevocable
Selection Notice.
|
|
6.4
|
Payment of Interest: The
Borrower shall pay accrued interest on outstanding Loans on the last day
of each Interest Period. Interest accrued in respect of any Loan with an
Interest Period of a duration in excess of 6 (six) months shall fall due,
be paid and discharged in instalments whereof the first payment shall be
made on the day occurring 6 (six) months after the Drawing Date in
relation to such Loan for the period then lapsed and hence at the end of
each following 6 (six) months period and the balance in respect of any
residual period which is of a duration of less than 6 (six) months shall
be made by the relevant Borrower at the end of the Interest Period in
respect of such Loan.
|
|
6.5
|
Calculation of Interest:
The Interest Rate on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable Margin
and LIBOR, CIBOR or EURIBOR as defined under Interest Rate
herein.
|
|
6.6
|
Margin Adjustment: From
and after 1 January 2009, the applicable Margin shall be subject to
variation, as set out in the following
table:
|
|
Leverage
Ratio
|
Margin
(% p.a.)
|
|||
|
(x)
|
||||
|
1.5
> x
|
0.400
|
|||
|
1.5 ≤ x
< 2.0
|
0.450
|
|||
|
2.0 ≤ x
< 2.5
|
0.530
|
|||
|
2.5 ≤ x <
3.2
|
0.600
|
|||
|
3.2 ≤ x
|
0.850
|
|||
Where for
such purposes, “Leverage
Ratio” or “x”
means the ratio of Consolidated Net Interest Bearing Debt to Consolidated
EBITDA.
|
6.7
|
Determination of the Leverage
Ratio: The Leverage Ratio shall be determined as of the last day of
each quarter (each such date a “Testing Date”) over a
period of the four consecutive quarters falling immediately prior to the
Testing Date (the
“Calculation Period”), with the first such Testing Day being 31
December 2008; and by reference to the most recent quarterly unaudited
consolidated financial statements of the
Group.
|
21/54
|
6.8
|
Delivery of Margin Certificate: The
Parent shall deliver a Margin Certificate in the form set out in Schedule 7 (Margin Certificate), signed
by Authorised Persons, to the Lender no later than 75 days after the end
of each financial quarter. Changes to the Margin will apply to each Loan
made after the date of receipt by the Lender of the relevant Margin
Certificate and to each outstanding Loan on the first Banking Day
following receipt of the Margin Certificate by the
Lender.
|
|
6.9
|
Confirmation of Margin Certificate: The
Leverage Ratio as of the end of the financial year based on the annual
audited consolidated financial statements of the Group shall be confirmed
by Authorised Persons of the Parent in a certificate of compliance in the
form set out in Schedule 8 (Certificate of
Compliance), which shall be delivered to the Lender no later than
120 days after the end of such financial year (the “New
Determination”).
|
|
6.10
|
New Determination of Margin: If the
Margin has been adjusted in reliance on or calculated on the basis of a
Margin Certificate but the New Determination does not confirm the
adjustment or calculation, the adjustment or calculation will be reversed
with retrospective effect from the date of the relevant Margin Certificate
and the New Determination of the Margin shall apply for the relevant
financial quarter. If, in this event, any amount of interest has been paid
by the Borrower on the basis of the Margin Certificate, the Borrower shall
immediately pay to or receive from the Lender, as relevant, for the
account of the Lender, the balance in the amount which would have been
paid to the Lender if the New Determination of the Margin had been
applied.
|
|
6.11
|
Retrospective Adjustment of Margin: If
the Margin has been calculated on the basis of a Margin Certificate but
would have been different if the New Determination had been applied, the
New Determination of the Margin will instead be applied for the relevant
financial quarter, with retrospective effect from the date of the relevant
Margin Certificate. If, in this event, any amount of interest has been
paid by the Borrower on the basis of the Margin Certificate, the Borrower
shall immediately pay to or receive from the Lender, as relevant, for the
account of the Lender the balance in the amount which would have been paid
to the Lender if the New Determination of the Margin had been
applied.
|
|
6.12
|
Default Margin: Notwithstanding the
foregoing, and without prejudice to Clause
7 (Default Interest), upon receipt of notice from the Lender of any
Event of Default or in the event that the Parent has not provided a Margin
Certificate or Certificate of Compliance when due, the Margin shall
automatically and immediately revert to 0.850 % p.a. for the duration of
such Event of Default or breach.
|
|
6.13
|
Day Count Convention:
Interest shall be calculated on the actual number of days elapsed
on a 360 days year basis or on such other basis as is customary in respect
of the relevant currency.
|
|
7.
|
DEFAULT
INTEREST
|
|
7.1
|
Default Interest: In the
event that any Borrower fails to pay any principal, interest or any other
amount due and payable hereunder, that Borrower shall pay to the Lender
interest (the “Default
Interest”) on such amount from the due date until payment is
received by the Lender at a rate of 2.000 % p.a. above the Interest Rate
(in respect of such period as determined by the Lender in its reasonable
opinion). The Default Interest will be compounded at the end of the
funding period determined by the Lender as per this Clause 7 (Default
Interest) and is payable on
demand.
|
22/54
|
8.
|
PREPAYMENT AND
CANCELLATION
|
|
8.1
|
Voluntary Prepayment: A
Borrower may at any time during the Commitment Period subject to that
Borrower giving the Lender 10 (ten) days’ irrevocable prior written notice
and subject to Clauses
8.2 (Funding Costs) and 8.5 (Minimum Amounts)
prepay part or all of any Loan.
|
|
8.2
|
Funding Costs: If the
date of repayment as selected by a Borrower falls before the lapse of an
Interest Period, that Borrower shall reimburse the Lender the market costs
of unwinding the funding obtained (i.e. for the period commencing at the
date of repayment and ending on the applicable Interest Payment Date(s))
in addition to any other costs incurred by the Lender (as reasonably
determined by the Lender and subject to documentation thereof) in
connection with the cancellation of any funding obtained or otherwise. Any
broken funding benefits shall accrue for the account of and be paid to the
relevant Borrower.
|
|
8.3
|
Redrawing: Any amounts
voluntarily prepaid (but not cancelled) in accordance with this Clause 8 (Prepayment and
Cancellation) may in case of Facility A be redrawn up to the
maximum of Facility A as stipulated at any given point in time according
to Clause 3.1
(Commitment), such redrawing to be in accordance with Clause 5 (Drawdown), and
in case of Facility B and Facility C not be
redrawn.
|
|
8.4
|
Cancellation Notice: The
Parent may at any time during the Availability Period subject to the
Parent giving the Lender 10 (ten) days’ irrevocable prior written notice
and subject to Clauses
8.2 (Funding Costs) and 8.5 (Minimum Amounts) cancel
part or all of the unutilised part of the Commitment without such
cancellation giving rise to the payment of a cancellation fee. No amount
of the Commitment cancelled may subsequently be
reinstated.
|
|
8.5
|
Minimum Amounts: A
cancellation (wholly or partly) of the Commitment or prepayment (wholly or
partly) of any Loan shall be in minimum amounts of USD 5,000,000 (USD five
million) and
furthermore in integral multiples of USD 1,000,000 (USD one million) or the equivalent
thereof in any Optional Currency in integral multiples of 1,000,000 (one
million).
|
|
8.6
|
Rollover: Any Loan made
hereunder shall be repaid in full at the occurrence of the relevant
Repayment Date in case of Facility B and Facility C and on the relevant
Interest Payment Date in case of Facility A. Such repayment can, in case
of Facility A however, subject to Clause 9.1 (Final Maturity
Date) and furthermore conditional on the receipt of a Notice of
Drawdown to such effect by the Lender and compliance by the relevant
Borrower with the other terms hereof be made by application of the
proceeds of a new Loan in an amount equivalent to the Loan to be
repaid.
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8.7
|
Change of Control: For
the purposes of this Agreement, a Change of Control will occur if “Bitten
og Mads Clausens Fond” (a fund incorporated in Denmark, situated at
Xxxxxxxxxxx 00, XX-0000 Xxxxxxxx, Xxxxxxx, incorporated under CVR no.
20165715 and existing under the laws of the Kingdom of Denmark) ceases to
Control the Parent.
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23/54
If a
Change of Control occurs:
|
|
a)
|
the
Parent shall promptly notify the Lender upon becoming aware of any such
event;
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|
|
b)
|
the Lender shall not be required
to fund any utilisations under this
Agreement;
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|
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c)
|
if
the Lender so desires the Lender may declare all outstanding under this
Agreement together with accrued interest, and all other amounts accrued
under the Finance Documents immediately due and payable, whereupon the
Commitment will be cancelled and all such outstanding amounts will become
immediately due and payable.
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9.
|
REPAYMENT
|
|
9.1
|
Final Maturity Date: The
Facility together with all unpaid accrued interest, fees, charges and any
other sum payable by each Borrower hereunder shall in any event be repaid
in full at the Final Maturity Date in the currency in which any Loan and
other amounts are owed.
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|
10.
|
PAYMENTS IN
GENERAL
|
|
10.1
|
Payments: All payments
by a Borrower to the Lender under this Agreement shall be made as
follows:
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|
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10.1.1
|
Account and Banking Day:
All payments shall be paid to the Lender to such account or accounts as
the Lender may nominate from time to time, not later than 10.00 a.m.
Copenhagen time on the Banking Day
when such payments become due and payable. If any Taxes are payable and
reimbursable by a Borrower as set out in Clause 10.1.3 (Tax
Indemnity) solely due to the nomination by the Lender of an account
to which a payment shall be made in a specific country that Borrower shall
however be entitled to require the Lender to nominate an account prior to
the making of such payment in i) the principal financial centre of the
country of the relevant currency in relation to which a payment is to be
made; or ii) if the payment is to be made in EUR in the principal
financial centre of any member state of the European Communities that has
adopted EUR as its lawful currency. If a payment falls due on a day which
is not a Banking Day, unless such Banking Day would fall into the next
calendar month or if the day on which that payment was otherwise due was
the Final Maturity Date. In such case, the amount to be paid
shall be due and payable on the immediately preceding Banking
Day;
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24/54
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10.1.2
|
Free of Set-off: All
payments to be made by the Lender or the Guarantor under this Agreement
shall be made with value on the due date in full in immediately available
cleared funds without any set-off or counterclaim regardless of whether
set-off or counterclaim arises from this Agreement or from any other
relationship between the Parties hereto. However, the respective Borrower
and the Guarantor shall be entitled to set-off claims that have been
acknowledged in writing by the Lender or claims that have been finally
settled by arbitration in accordance with Clause 28 (Applicable law and
legal venue);
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10.1.3
|
Tax Indemnity: All
payments by a Borrower under this Agreement shall be made free and clear
and without any deduction for or on account of any Taxes (other than the
Lender’s net income tax) imposed by any country or by any authority except
to the extent that a Borrower is required by law to make payment subject
to any Taxes. If any Taxes or amounts in respect of Tax must be deducted,
or any other deductions must be made, from any amounts payable or paid by
a Borrower to the Lender under this Agreement, that Borrower shall pay on
demand on a full indemnity basis or in any event within 10 (ten) Banking
Days such additional amounts as will result in the Lender receiving a net
amount equal to the full amount which it would have received had payment
not been made subject to Tax or other deduction. For the avoidance of
doubt the parties hereto agree that all amounts set out, or expressed to
be payable under this Agreement by a Borrower which (in whole or in part)
constitute the consideration for value added tax purposes shall be deemed
to be exclusive of any value added tax which is chargeable on such supply,
and accordingly, subject to the paragraph below, if value added
tax is chargeable on any supply made by the Lender to a Borrower under
this Agreement, that Borrower shall pay to the Lender (in addition to and
at the same time as paying the consideration) an amount equal to the
amount of the value added tax (and the Lender shall promptly provide an
appropriate value added tax invoice to that Borrower). Furthermore where
this Agreement requires a Borrower to reimburse the Lender for any costs
or expenses, that Borrower shall also at the same time pay and indemnify
the Lender against all value added tax incurred by the Lender in respect
of the costs or expenses to the extent that the Lender reasonably
determines that neither it nor any other member of any group of which it
is a member for value added tax purposes is entitled to credit or
repayment from the relevant tax authority in respect of the value added
tax;
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10.1.4
|
Gross-Up: In the event
of a Borrower being compelled by law to make any deduction that Borrower
shall pay any such additional amounts as will result in the Lender
receiving the full amounts due under this
Agreement;
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|
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10.1.5
|
Credits: If a Borrower
makes any increased payment pursuant to Clause 10.1.3 (Tax Indemnity)
or Clause 10.1.4 (Gross-Up) for the account of the Lender and the
Lender receives a credit against or relief or remission for or a repayment
of any Tax paid or payable by it in respect of or calculated with
reference to the deduction or withholding giving rise to such payment, the
Lender shall, to the extent that it can do so without prejudice to the
retention of the amount of such credit, relief, remission or repayment and
provided that the relevant Borrower has not already recovered such amount
paid by way of a credit relief, remission of payment pay to the Borrower
the amount recovered and attributable to such deduction or
withholding;
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25/54
|
|
10.1.6
|
Order of Appropriation:
In the event that the Lender receives a payment insufficient to discharge
all the amounts then due and payable by a Borrower under this Agreement,
the Lender shall in the first instance apply that payment towards the
discharge of any fees, charges, expenses or other costs, in the second
instance against interest, in the third instance towards the repayment of
the principal Loan and in the fourth instance in or towards payment of any
other sum due but unpaid under this Agreement. The order of appropriation
set out in this Clause
10.1.6 (Order of Appropriation) shall override any appropriation
made by that Borrower;
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10.1.7
|
Prima Facie Evidence:
Save in the case of manifest error and subject to 10 (ten) days notice
from the Lender causing no reasonable protest from the Parent in such
regard, the books and accounts of the Lender shall always be considered
prima facie evidence so that the payment of any amount being claimed by
the Lender as due and payable cannot be suspended or withheld by a
Borrower by reason of a dispute on what is due and payable. Payment by a
Borrower is without prejudice, however, to the obligation of the Lender to
repay any amount collected or received in
excess.
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11.
|
FEES
|
|
11.1
|
Up-front Fee: The Parent
shall pay an up-front fee of 0.080 % flat on the aggregate Facility, which
up-front fee is payable in the Base Currency with 50 % on the Signing Date
and 50 % on the Closing Date.
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|
11.2
|
Commitment Fee: The
Parent shall pay to the Lender a commitment fee (the “Commitment Fee”)
accruing from the Signing Date and calculated quarterly in arrears on 31
March, 30 June, 30 September and 31 December, first time 31 March 2008, as
35 % p.a. of the applicable Margin at any time on the undrawn, uncancelled
amount of the Commitment, and on the basis of the actual number of days
elapsed and a calendar year of 360 days. Accrued Commitment Fee is payable
in the Base Currency on the above calculation days and on the date the
Commitment is cancelled in full. A change of Margin according to Clauses 6.6 (Margin
Adjustment), 6.8
(Delivery of Margin Certificate), 6.9 (Confirmation of Margin
Certificate), 6.10
(New Determination of Margin) and 6.11 (Retrospective Adjustment
of Margin) shall also apply to the calculation of Commitment
Fee.
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26/54
|
12.
|
GUARANTEES AND
INDEMNITY
|
|
12.1
|
Guarantee and Indemnity:
The Guarantor unconditionally and irrevocably guarantees as primary
obligor and not merely as surety to the
Lender:
|
|
|
(a)
|
the
due and punctual performance by each of the Borrowers of all their
respective obligations under or in respect of the Finance
Documents;
|
|
|
(b)
|
the
due and punctual payment by each of the Borrowers of any and all sums,
which are now or at any time hereafter will be payable by such Borrowers
under or in connection with the Finance Documents (including, without
limitation, principal, interest, default interest, fees and other costs
payable as a result of the occurrence of an Event of Default);
and
|
|
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(c)
|
to
indemnify the Lender immediately on demand against any losses, liabilities
or any other costs suffered, incurred or paid or to be paid by it if, any
obligation guaranteed by it is or becomes unenforceable, invalid or
illegal. The amount of the loss, liability or cost under this indemnity
shall be equal to the amount which the Lender would otherwise have been
entitled to recover.
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12.2
|
Continuing Guarantee:
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by the Borrowers under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in
part.
|
|
12.3
|
Reinstatement: If any
payment by any Borrower or the Guarantor or any discharge given by the
Lender (whether in respect of the obligations of any Borrower or the
Guarantor or any security for those obligations or otherwise) is avoided
or reduced as a result of insolvency or any similar
event:
|
|
|
(a)
|
the
liability of each Borrower or the Guarantor shall continue as if the
payment, discharge, avoidance or reduction had not occurred;
and
|
|
|
(b)
|
the
Lender shall be entitled to recover the value or amount of that security
or payment from each Borrower or the Guarantor, as if the payment,
discharge, avoidance or reduction had not
occurred.
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|
12.4
|
Waiver of Defences: The
obligations of the Guarantor under this Clause 12 will not be
affected by an act, omission, matter or thing which, but for this Clause 12, would reduce,
release or prejudice any of its obligations under this Clause 12 (without
limitation and whether or not known to it or the Lender)
including:
|
|
|
(a)
|
any
time, waiver or consent granted to, or composition with, any Borrower or
the Guarantor or other person;
|
|
|
(b)
|
the
release of any Borrower or the Guarantor or any other person under the
terms of any composition or arrangement with any creditor of any member of
the Group;
|
|
|
(c)
|
the
taking, variation, compromise, exchange, renewal or release of, or refusal
or neglect to perfect, take up or enforce, any rights against, or security
over assets of, any Borrower or the Guarantor or other person or any
non-presentation or non-observance of any formality or other requirement
in respect of any instrument or any failure to realise the full value of
any security;
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27/54
|
|
(d)
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or change in the members or status of any Borrower or the
Guarantor or any other person;
|
|
|
(e)
|
any
amendment, novation, supplement, extension (whether of maturity or
otherwise) or restatement (in each case, however fundamental and of
whatsoever nature) or replacement of a Finance Document or any other
document or security;
|
|
|
(f)
|
any
unenforceability, illegality or invalidity of any obligation of any person
under the Finance Documents or any other document or security;
or
|
|
|
(g)
|
any
insolvency or similar proceedings.
|
|
12.5
|
Guarantor Intend:
Without prejudice to the generality of Clause 12.4 Waiver of
Defences), the Guarantor expressly confirms that it intends that
this guarantee shall extend from time to time to any (however fundamental)
variation, increase, extension or addition of or to any of the Finance
Documents and/or any facility or amount made available under any of the
Finance Documents for the purposes of or in connection with any of the
following: acquisitions of any nature; increasing working capital;
enabling investor distributions to be made; carrying out restructurings;
refinancing existing facilities; refinancing any other indebtedness;
making facilities available to new borrowers; any other variation or
extension of the purposes for which any such facility or amount might be
made available from time to time; and any fees, costs and/or expenses
associated with any of the
foregoing.
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|
12.6
|
Immediate Recourse: The
Guarantor waives any right it may have of first requiring the Lender to
proceed against or enforce any other rights or security or claim payment
from any person before claiming from the Guarantor under this Clause 12. This waiver
applies irrespective of any law or any provision under any of the Finance
Documents to the contrary.
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|
12.7
|
Appropriations: Until
all amounts which may be or become payable by the Borrowers under or in
connection with the Finance Documents have been irrevocably paid in full,
the Lender may:
|
|
|
(a)
|
refrain
from applying or enforcing any other moneys, security or rights held or
received by the Lender in respect of those amounts, or apply and enforce
the same in such manner and order as it sees fit (whether against those
amounts or otherwise) and the Guarantor shall not be entitled to the
benefit of the same; and
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|
|
(b)
|
hold
in an interest-bearing suspense account any moneys received from the
Guarantor or on account of the Guarantor's liability under this Clause
12.
|
|
12.8
|
Deferral of the Guarantor's
Rights: Until all amounts which may be or become payable by the
Borrowers under or in connection with the Finance Documents have been
irrevocably paid in full and unless the Lender otherwise directs, the
Guarantor will not exercise any rights which it may have by reason of
performance by it of its obligations under the Finance
Documents:
|
28/54
|
|
(a)
|
to
be indemnified by any Borrower;
and/or
|
|
|
(b)
|
to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Lender under the Finance Documents or of
any other guarantee or security taken pursuant to, or in connection with,
the Finance Documents by the
Lender.
|
If the
Guarantor receives any benefit, payment or distribution in relation to such
rights it shall hold that benefit, payment or distribution to the extent
necessary to enable all amounts which may be or become payable to the Lender by
the Borrowers under or in connection with the Finance Documents to be repaid in
full on trust for the Lender and shall promptly pay or transfer the same to the
Lender.
|
12.9
|
Additional Security:
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by the
Lender.
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|
13.
|
REPRESENTATIONS AND
WARRANTIES
|
|
13.1
|
Representations and Warranties:
Each Borrower and the Guarantor hereby represents and warrants for
itself to the Lender that:
|
|
|
13.1.1
|
Corporate Existence: It
is a duly organised and validly existing entity under the law of its
jurisdiction of incorporation;
|
|
|
13.1.2
|
Ultra Xxxxx Activities: It is not engaged
in any business activities other than allowed for in its Articles of
Association;
|
|
|
13.1.3
|
Powers and Authorisations: The execution
and delivery of the Finance Documents and the transactions contemplated
herein are within its power and authority and have been duly authorised by
proper corporate resolutions and/or other necessary actions and will not
violate any laws, rules or regulations applying to
it;
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|
|
13.1.4
|
License and Registration: Any and all
authorisations, consents, licenses or approvals of (if any) and all
registrations and filings with any administrative agency or governmental
or other body required pursuant to the laws of the Kingdom of Denmark and
the laws of any other relevant jurisdiction in connection with the signing
and execution by it of the Finance Documents or for the performance by it
or for the validity and enforceability of the terms hereof have been made
or obtained as the case may be;
|
|
|
13.1.5
|
Validity and Enforceability:
The Finance Documents constitute legal, valid and binding
obligations of the relevant Borrower and the Guarantor and - to the
knowledge of the Borrower and the Guarantor - are enforceable in
accordance with their terms;
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29/54
|
|
13.1.6
|
Performance: The
performance or undertaking by a Borrower and the Guarantor of the
obligations set out in the Finance Documents will - to the knowledge of
the Borrower and the Guarantor - not contravene any applicable law or
regulation or any agreement binding upon
it;
|
|
|
13.1.7
|
Information:
|
|
|
a)
|
All
information provided by the Borrowers, the Parent and the Guarantor to the
Lender is true and accurate in every material respect and all information
relevant to the provision of the Facility has been disclosed to the
Lender;
|
|
|
b)
|
The
financial projections contained in the Bank Case have been prepared on the
basis of recent historical information and on the basis of reasonable
assumptions;
|
|
|
c)
|
Nothing
has occurred or been omitted from the Bank Case and no information has
been given or withheld that results in the information contained in the
Bank Case being untrue or misleading and which could reasonably be
expected to have a Material Adverse
Effect;
|
|
|
13.1.8
|
Pari Passu: It’s
obligations under the Finance Documents rank at least pari passu with all
its other unsecured and unsubordinated obligations (unless mandatorily
preferred by law);
|
|
|
13.1.9
|
No Default: No Event of
Default has occurred and none will occur as a result of the exercise of
its rights or the performance of its obligations under the Finance
Documents;
|
|
|
13.1.10
|
No Material Adverse
Change: Since the annual audited consolidated financial statements
for the Group as per 31 December 2006 and the quarterly unaudited
consolidated financial statements for the Group as per 30 September 2007
were drawn up no circumstance or condition has occurred which could
reasonably be expected to have a Material Adverse Effect on the Parent or
the Group (seen as a whole);
|
|
|
13.1.11
|
No proceedings pending or
threatened. No litigation, arbitration or administrative
proceedings of or before any court, arbitral body or agency which, if
adversely determined, might reasonably be expected to have a Material
Adverse Effect on the Parent or the Group (seen as a whole)
have (to the best of its knowledge and belief) been started or threatened
against it or any of the Group
Companies;
|
|
|
13.1.12
|
Repetition. The
Repeating Representations are deemed to be made by the Borrowers and the
Guarantor by reference to the facts and circumstances then existing
on:
|
|
|
a)
|
the
date of each Drawdown Request and the first day of each Interest
Period;
|
30/54
|
|
b)
|
in
the case of an Additional Borrower, the day on which the Subsidiary
becomes (or it is proposed that the Subsidiary becomes) an Additional
Borrower;
|
|
|
c)
|
the
date of delivery of a Margin Certificate to the Lender;
and
|
|
|
d)
|
the
date of delivery of a Selection Notice to the
Lender.
|
|
14.
|
COVENANTS
|
|
14.1
|
Covenants: Each Borrower
and the Guarantor hereby on its own behalf covenants and undertakes
vis-à-vis the Lender that for as long as the commitment of the Lender is
in force or the Facility or any other amount remains outstanding under
this Agreement:
|
|
|
14.1.1
|
Obligations: to
discharge all its obligations as they fall due, including all undisputed
indebtedness, operation expenses and
taxes;
|
|
|
14.1.2
|
Events of Default:
forthwith to inform the Lender upon that Borrower or the Guarantor
becoming aware of the occurrence or the threatening occurrence of an event
which would constitute an Event of Default, and provide the Lender with
full details of any steps which the relevant Borrower or the Guarantor is
taking or considering to take, in order to remedy or mitigate the effects
of such event or otherwise in connection therewith; the relevant
Borrower or the Guarantor shall supply to the Lender promptly at any time,
if the Lender so requests, a certificate signed by Authorised Persons on
its behalf certifying that: (i) no Event of Default is outstanding or, if
an Event of Default is outstanding, specifying the Event of Default and
the steps, if any, being taken to remedy it; and that (ii) no threatening
Event of Default seems likely to
occur;
|
|
|
14.1.3
|
Pari Passu Ranking: to
procure that the obligations of each Borrower under this Agreement do and
will rank at least pari passu in all respects with all that Borrower’s
other present and future unsecured obligations towards any third party
(apart from obligations mandatorily preferred by
law);
|
|
|
14.1.4
|
Execution of Further Documents:
to issue and/or execute any such further assurances and documents
required by law, or which the Lender reasonably considers necessary or
expedient to establish, maintain, preserve or protect the Lender’s rights
under these terms and generally to carry out the true intent of these
terms;
|
|
|
14.1.5
|
Annual Financial Statements:
The Parent, the Guarantor and each of the Borrowers agrees to
deliver to the Lender as soon as they become available and in any event,
no later than 120 days after the end of the financial year as per 31.12,
it’s annual audited consolidated financial
statements;
|
|
|
14.1.6
|
Quarterly Financial Statements:
The Parent agrees to deliver to the Lender as soon as they become
available and in any event, no later than 75 days after the end of each
financial quarter as per 31.03, 30.06, 30.09 and 31.12, it’s quarterly
unaudited consolidated financial
statements;
|
31/54
|
|
14.1.7
|
Budget: The Parent
agrees to deliver to the Lender no later than 15 days after the
commencement of each financial year end, the consolidated working budget
for the Group for the coming financial
year;
|
|
|
14.1.8
|
Bank Case: If the Bank
Case for the Target and the Group is amended due to changes in
assumptions, or provisions in the Acquisition Documents or in the
projected financial statements or for any other reason prior to Closing
and/or the Effective Date and/or materially is amended at a later time,
the Original Borrower is required to provide and updated Bank Case to the
Parent and the Lender for their
acceptance;
|
|
|
14.1.9
|
Other Information: The
Parent, the Guarantor and each of the Borrowers agrees to promptly notify
the Lender:
|
|
|
a)
|
If
it disposes of assets or a series of assets other than set out in Clause
14.1.10 below (including for the purposes of this Clause 14.1.9 enters
into a sale and lease back arrangement) and the value of the asset or
assets exceed 10 % of the total assets of the
Group;
|
|
|
b)
|
If
it sells or otherwise disposes of a material Group Company (which for the
purpose of this Clause 14.1.9 shall mean any company in the Group where
either (a) its EBITDA is equal to or greater than 10 % of the consolidated
EBITDA of the Group, or (b) its turnover to third parties is equal to or
greater than 10 % of the aggregate turnover of the Group, or (c) the value
of its gross assets is equal to or greater than 10 % of the aggregate
value of all gross assets owned by the Group, with profits, turnover and
value of assets being measured as at the end of each accounting
year);
|
|
|
c)
|
If
it does not receive any competition authority approval filed for following
the signing of the Acquisition
Documents;
|
|
|
d)
|
If
it changes its accounting principles for any reason or appoint new
auditors, without the prior consent from the
Lender;
|
|
|
e)
|
Of
any event which have occurred or may occur which may have a Material
Adverse Effect; and
|
|
|
f)
|
Of
any Event of Default or potential Event of Default of which it becomes
aware providing a reasonably detailed description thereof and it will
promptly notify the Lender of any facts and
circumstances;
|
|
14.1.10
|
Disposal of Assets: The
Borrowers and the Guarantor will not dispose of any asset or series of
disposals of assets which disposal would cause a Material Adverse Effect.
The Borrowers and the Guarantor will also ensure that no Group Company
will dispose of any asset or series of disposals of assets if such
disposal would have a Material Adverse Effect. These restrictions do not,
however, apply to:
|
32/54
|
a)
|
sales
in the ordinary course of business;
or
|
|
b)
|
disposals on arm’s length terms
for fair market value;
|
|
14.1.11
|
Negative Pledge: The
Borrowers and the Guarantor will not create or permit any security (“Security”) for
Financial Indebtedness over any of its assets. It will also ensure that no
Group Companies creates or permits any Security for Financial Indebtedness
over any of its assets. These prohibitions do not, however, apply to the
following:
|
|
|
14.1.11.1
|
any
Security already in existence at the date of this
Agreement;
|
|
|
14.1.11.2
|
liens
arising by operation of law;
|
|
|
14.1.11.3
|
any
Security on any asset of any company existing at the time that company is
acquired by a member of the Group. This exception will, however, only
apply to an acquisition made after the date of this Agreement where the
Security is:
|
|
|
(a)
|
not
created in contemplation of that
acquisition;
|
|
|
(b)
|
remains
confined to the asset it covered at the date of the acquisition;
and
|
|
|
(c)
|
does
not Secure any indebtedness not secured by it at the date of the
acquisition;
|
|
|
14.1.11.4
|
any
Security created on any asset acquired after the date of this Agreement to
secure Financial Indebtedness incurred solely for the purpose of financing
all or any part of the purchase price or acquisition cost of that asset.
This exception will, however, only apply if the Security remains confined
to that asset and attaches at the time of its
acquisition;
|
|
|
14.1.11.5
|
any
Security created with the prior written consent of the
Lender;
|
|
|
14.1.11.6
|
any
Security arising out of the refinancing of any Financial Indebtedness
secured by any Security permitted by any of sub-clause (1), (2), (3), (4)
or (5). This exception will, however, only apply if the amount of that
Financial Indebtedness is not increased and is not secured by any
additional assets;
|
|
|
14.1.11.7
|
any
Security which represents existing or future indebtedness secured by means
of a mortgage on real estate in Denmark or assumed in the ordinary course
of business; or
|
33/54
|
|
14.1.11.8
|
any
other Security securing Financial Indebtedness if the aggregate book value
of the assets covered by such Security does not exceed 10 % of the total
assets of the Group;
|
|
|
14.1.12
|
Insurance: The Borrowers
and the Guarantor will effect and maintain and will ensure that the Group
Companies effects and maintains insurance against risks relating to its
activities, property, assets and liabilities at commercially prudent
levels;
|
|
|
14.1.13
|
Compliance with
Laws: The
Borrowers and the Guarantor will comply, and will ensure that the Group
Companies complies in all material respects, with all applicable laws and
regulations, and the terms of all consents, authorisations, permits and
licences, which, for the avoidance of doubt, shall include environmental
laws and permits and
authorisations;
|
|
|
14.1.14
|
Change of Business: The
Borrowers and the Guarantor shall procure that no substantial change is
made to the general nature of the business of the Borrowers or the Group
from that carried on at the date of this Agreement without the consent of
the Lender, such consent not to unreasonably
withheld;
|
|
|
14.1.15
|
Merger. No Borrower or
Guarantor shall (and the Parent shall ensure that no other member of the
Group will) enter into any amalgamation, demerger, merger or corporate
reconstruction, which could reasonably be expected to have a Material
Adverse Effect and the Parent and any Borrower shall only enter into any
such amalgamation, demerger, merger or corporate reconstruction if the
Parent or Borrower shall be the surviving
company.
|
|
15.
|
EVENTS OF
DEFAULT
|
|
15.1
|
Any
of the following events shall be deemed to constitute an event of default
under this Agreement:
|
|
|
15.1.1
|
Payment Failure: Failure
by a Borrower to pay promptly and for value on the due date any sum
whatsoever due for payment by a Borrower to the Lender under this
Agreement except that any failure to pay any amount when due shall not
constitute an Event of Default if such failure is due to a clerical error
or is remedied within 3 (three) Banking Days following the remittance by
the Lender of a written Notice to the relevant Borrower of such payment
failure;
|
|
|
15.1.2
|
Other Non-compliance: If
a Borrower fails in complying with any other of its obligations according
to this Agreement, after having received 10 (ten) Banking Days’ Notice
from the Lender of such failure;
|
34/54
|
|
15.1.3
|
Misrepresentation. Any
representation or statement made or deemed to be made by a Borrower or the
Guarantor in the Finance Documents or any other document delivered by or
on behalf of a Borrower or the Guarantor under or in connection with any
Finance Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be
made;
|
|
|
15.1.4
|
Validity and
Enforceability: If a Finance Document or any other instrument or
document delivered hereunder has not been duly authorised, executed and
delivered or does not constitute legal, valid and binding obligations of a
Borrower or the Guarantor enforceable against that Borrower or the
Guarantor in accordance with its terms or cease to be enforceable by the
Lender for any reason whatsoever;
|
|
|
15.1.5
|
Null and void: If this
Agreement or any of the provisions thereof shall at any time for any
reason cease to be in full force and effect, be declared void or shall be
repudiated by a Borrower or the Guarantor or the validity or
enforceability thereof shall at any time be contested by a Borrower or the
Guarantor, or a Borrower or the Guarantor shall deny it has any or any
further liability or obligation
thereunder;
|
|
|
15.1.6
|
Inability: If a Borrower
or the Guarantor is unable or admits its inability to pay its
debts;
|
|
|
15.1.7
|
Liquidation and
Bankruptcy: If a Borrower or the Guarantor goes into voluntary
liquidation or is wound-up, suspends payments (de facto or by petition to
the applicable authorities), seeks a composition in respect of any
Financial Indebtedness, is declared bankrupt, is dissolved, liquidated,
reconstructed or petitions are raised for dissolution, liquidation or
bankruptcy, or similar proceedings are instituted by or against that
Borrower or the Guarantor;
|
|
|
15.1.8
|
Cross Default: Any
Financial Indebtedness of the Borrowers or the
Parent:
|
|
|
15.1.8.1
|
is
not paid or repaid when due or within any originally applicable grace
period; or
|
|
15.1.8.2
|
becomes
capable of being declared due and payable before its stated date of
payment,
|
unless
(i) the amount of Financial Indebtedness to which subclause 15.1.8.1 or 15.1.8.2 applies does not
exceed USD 10,000,000 (or the equivalent in any other currency) in total, or
(ii) such Financial Indebtedness is paid in full within one month from its due
date, or (iii) such Financial Indebtedness is contested (excepting for the
avoidance of doubt contest of Lender’s claim of cross default) in good faith by
the relevant Borrower or the Parent through appropriate
proceedings;
35/54
|
|
15.1.9
|
Ownership of the Group
Companies. A Borrower (other than the Parent) is not or ceases to
be a Subsidiary of the Parent;
|
|
|
15.1.10
|
Unlawfulness. It is or
becomes unlawful for a Borrower or the Guarantor to perform any of its
material obligations under the Finance
Documents;
|
|
|
15.1.11
|
Repudiation. A Borrower
or the Guarantor repudiates a Finance Document or evidences an intention
to repudiate a Finance Document.
|
|
15.2
|
No Implied Waiver: Any
remedy period granted as per Clause 15 (Events of
Default) or any other time or waiver otherwise granted by the
Lender in connection with the occurrence of an Event of Default shall have
no consequences as to any costs, increased interest or other amount
payable by the relevant Borrower or the Guarantor following the occurrence
of that Event of Default.
|
|
16.
|
INCREASED
COSTS
|
|
16.1
|
Notification: If as a
result of any change in, or any change in the interpretation or
application of, any law or regulation or any other provision having a
similar effect (whether having the force of law or not) or compliance with
any regulation made after the date of this Agreement, (including any law
or regulation relating to taxation, or reserve asset, special deposit,
cash ratio, liquidity or capital adequacy requirements or any other form
of banking or monetary control) the Lender incurs an Increased Cost then
and in each such case the Lender shall notify the Parent in writing of
such Increased Cost promptly upon it becoming aware of the same and the
Parent shall either:
|
|
|
16.1.1
|
Compensation Payment:
pay to the Lender such amount as shall compensate the Lender for
such Increased Cost relating to this Agreement upon demand from time to
time by the Lender. The Borrower may request reasonable evidence including
details of the Increased Cost and the events giving rise to it, but the
Lender does not necessarily need to disclose any information which is, in
its reasonable opinion, confidential or if disclosure would be contrary to
any of its banking policies as such banking policies are evidenced in
writing; or
|
|
|
16.1.2
|
Prepayment: prepay the
Loan in accordance with Clause 8 (Prepayment and
Cancellation); or
|
|
|
16.1.3
|
Transfer of Loan: enter
into negotiations with the Lender as set out in Clause 19 (Mitigation)
(unless to do so might, in the opinion of the Lender be prejudicial to the
Lender.
|
|
16.2
|
Clause 16 (Increased
Costs) does not apply to any Increased Cost provided for by the
operation of Clause
10.1.3 (Tax Indemnity) or attributable i) to any change in the rate
of tax on overall net income of the Lender; or ii) to any mandatory cost
existing and levied at the date hereof as a result of any regulatory
requirement.
|
36/54
|
17.
|
FORCE MAJEURE AND SIMILAR
EVENTS
|
|
17.1
|
Force Majeure: The
Lender and/or the Borrower/Parent/Guarantor shall not be liable for any
failure by such party to perform, or delays in performing, the whole or
any part of this Agreement due to reason of any causes beyond such party’s
reasonable control (including but not limited to war, acts of war or civil
commotion, floods, electricity power cuts, storms, action or regulation of
any governmental body or local authority, from strikes, employees’
meetings regarding matters concerning the trade, blockades or boycotts or
from other work stoppages relating to the collective agreements). Such
events will constitute force
majeure.
|
|
17.2
|
Similar Events:
Notwithstanding any other provisions of this Agreement, the
obligation of the Lender to make or maintain the Loan shall cease if funds
in the stipulated currency, markets, interest rates or interest periods
are unavailable or subject to conditions under which the Lender cannot
reasonably fulfil its obligations under this
Agreement.
|
|
18.
|
ACCELERATION
|
|
18.1
|
Event of Accelerated
Repayment: Each of the following events, (“Event of Accelerated
Repayment”), shall be deemed to constitute an event the occurrence
of which shall warrant a demand from the Lender for the immediate - and no
later than 10 (ten) days - repayment of the Facility and any other
outstanding hereunder:
|
|
|
18.1.1
|
Illegality: the making
or maintaining of the Facility in full or complying with the Finance
Documents becomes unlawful by any applicable law or
regulation;
|
|
|
18.1.2
|
Event of Default: the
occurrence of an Event of Default as per Clause 15 above (Events of
Default);
|
Consequences. Should an event
of illegality or an Event of Default occur and the Lender in its reasonable
opinion determines that the Event of Default is incapable of remedy within a
period of 30 days from the occurrence of the relevant event, the Lender is
entitled to demand immediate repayment of the outstanding Loan(s) in respect of
which such event of illegality or Event of Default has occurred with the
addition of accrued interest thereon - and in case of an Event of Default - in
addition to (subject to receipt of documentation of such costs) any costs and
expenses, loss or damage including but not limited to loss of margin to the
Lender) incurred by the Lender resulting from the event and from the resulting
termination of the Facility provided that any breakage costs or any loss of
Margin shall be calculated on the basis of the period until the next Interest
Payment Date(s) in respect of any Loan(s) forming part of the Facility, any
reasonable costs in connection with steps to protect the Lender’s interests, any
costs or loss sustained or incurred in connection with the funding of Loans
under the Facility in the market, any costs or loss which the Lender may sustain
because the Facility cannot be re-employed at the same rate of interest as
provided for in this Agreement and for any other reason whatsoever.
|
18.2
|
Event of Accelerated
Repayment: Should any Event of Accelerated Repayment as per Clause 18 (Acceleration)
occur the Lender is entitled to demand immediate repayment of the Facility
together with any interest due but unpaid, and any costs incurred in such
connection (including unwinding
costs).
|
37/54
|
18.3
|
Default Interest: After
the occurrence of an Event of Default, interest on the outstanding Loans
under the Facility and all other sums due shall be calculated at the rate
of the Default Interest as per Clause 7 (Default
Interest) until the Event of Default is remedied or the Facility
and such other sums are discharged.
|
|
19.
|
MITIGATION
|
|
19.1
|
Mitigation: If
circumstances arise in respect of the Lender which would, or would upon
the giving of notice, result in:
|
|
|
19.1.1
|
a
Borrower or the Guarantor being obliged to pay to the Lender additional
amounts pursuant to Clauses 10.1.3 (Tax
Indemnity), 10.1.4 (Gross-up) or any
amounts pursuant to Clause 16 (Increased
Costs); or
|
|
|
19.1.2
|
a
Borrower or the Guarantor being obliged to repay the Loan pursuant to Clause 18
(Acceleration);
|
then,
without in any way limiting, reducing or otherwise qualifying the relevant
Borrower’s and the Guarantors obligations under Clauses 10.1.3 (Tax
Indemnity), 10.1.4
(Gross-up) or 16
(Increased Costs) the Lender shall in consultation with that Borrower or
the Guarantor take such reasonable steps as may be open to them to mitigate or
remove such circumstances, including (without limitation) by way of transfer of
their rights and obligations under this Agreement to another bank or financial
institution acceptable to that Borrower and the Guarantor for a consideration
agreed between the Lender and the prospective transferee, unless to do so might
(in the reasonable opinion of the Lender) be prejudicial to the
Lender.
|
20.
|
CURRENCY
INDEMNITY
|
|
20.1
|
Indemnity: If the Lender
receives an amount in respect of a Borrower’s liability under the
Agreement or if that liability by a court order is converted into a
currency other than the currency (the “Contractual Currency”)
in which the amount is expressed to be payable under the
Agreement:
|
|
|
20.1.1
|
Conversion Loss: that
Borrower or the Guarantor shall indemnify the Lender as an independent
obligation against any loss or liability arising out of or as a result of
the conversion; and
|
|
|
20.1.2
|
Payment of Deficit: if
the amount received (the “Relevant Amount”) by the
Lender, when converted into the Contractual Currency at a market rate in
the usual course of its business, is less than the amount owed in the
Contractual Currency, that Borrower or the Guarantor shall forthwith pay
to the Lender an amount in the Contractual Currency equal to the deficit
and if the Relevant Amount is more than the amount owed in the Contractual
Currency, the Lender shall pay to that Borrower an amount in the
Contractual Currency equal to the Margin;
and
|
38/54
|
|
20.1.3
|
Exchange Costs and
Taxes: that Borrower or the Guarantor shall pay to the Lender any
exchange costs and Taxes payable in connection with any such
conversion.
|
|
20.2
|
Waiver: A Borrower
waives any right it may have in any jurisdiction to pay any amount under
the Agreement in a currency other than that in which it is expressed to be
payable.
|
|
21.
|
OTHER
INDEMNITIES
|
|
21.1
|
Subsequent Fees and Costs:
The Parent shall indemnify and/or reimburse the Lender against or
for all reasonable costs and expenses (subject to receipt of documentation
of such costs) (including, but not limited to the internal cost to the
Lender (as determined by the Lender in its reasonable opinion) towards
administration of the Facility upon the occurrence or threatening
occurrence of an Event of Default communicated to a Borrower and the
Parent by the Lender) incurred by
them:
|
|
|
21.1.1
|
in
protecting any of their rights, in enforcing any claim against the
relevant Borrower or in suing for or recovering any sum due to it under
this Agreement or any opinion or document contemplated hereby, subject to
such expenses and costs being incurred as a consequence of the relevant
Borrower not complying with the terms of this Agreement as determined by
the Lender;
|
|
|
21.1.2
|
as
a result of an amendment to this Agreement or any document contemplated
hereby, subject to such amendment being required for reasons attributable
to a Borrower.
|
|
21.2
|
Default Interest: All
such costs and expenses incurred by the Lender and reimbursable by the
Parent as per 21.1
(Subsequent Fees and Costs) shall carry interest for the period
commencing at the lapse of 14 (fourteen) days from the day written demand
was made by the Lender to the Parent until the day the Lender receives
reimbursement at the rate of the Default Interest as per Clause 7 (Default
Interest).
|
|
21.3
|
Amendments: In respect
of any amendment to this Agreement (including alterations or addenda to
the body of this document or to any Schedule hereto or any other
arrangement carried out with the purpose of amending the terms herein)
requested by the Parent and agreed to by the Lender, the Parent shall
indemnify and/or reimburse the Lender for any reasonable cost and expenses
incurred by it in arranging the amendment(s)
requested.
|
|
21.4
|
Base Currency Excess: If
the aggregate outstanding under this Facility, including outstanding in
Optional Currencies converted into the Base Currency using the exchange
rate applied by the Lender, exceeds 105 % of the aggregate Facility in the
Base Currency due to currency fluctuations or for other reasons measured
over the preceding 3 months period, the Borrowers or the Guarantor shall
prepay the amount of such excess on demand by the
Lender.
|
39/54
|
22.
|
ASSIGNMENT
|
|
22.1
|
Assignment by the Borrower:
The Borrowers and the Parent may not assign, transfer, novate or
dispose of any of its rights or obligations hereunder without the prior
written consent of the Lender, which may be denied by the Lender at its
sole discretion.
|
|
22.2
|
Assignment by the Lender:
The Lender may without costs or increased obligations to any of the
Borrowers (with respect to gross-up or otherwise), at any
time:
|
|
|
a)
|
assign,
transfer, novate or sub-participate all or any of its rights and benefits
and obligations under this Agreement within its group (either to a parent
company of the Lender or to a subsidiary of the Lender) provided that the
assignee provable is capable of continuing to fulfil the obligations of
the assignor; or
|
|
|
b)
|
sub-participate
(silent participation) any of its rights and benefits and obligations
under this Agreement to other banks or companies,
or
|
|
|
c)
|
assign,
transfer, novate or sub-participate all or any of its rights and benefits
and obligations under this Agreement to other banks or companies, subject
to the Parent’s prior approval not to be unreasonably
withheld.
|
|
22.3
|
Disclosure: The Lender
may disclose to any person with whom it is proposing to enter, or has
entered into, any kind of assignment, transfer, novation or
sub-participation:
|
|
|
22.3.1
|
a
copy of the Agreement; and/or
|
|
|
22.3.2
|
any
information which the Lender has received under or in connection with this
Agreement.
|
The right
to assign, transfer, novate or sub-participate is subject to the cost and
expense being paid by the assignee Lender entering into such
transaction;
|
22.4
|
Legal requirement to disclose:
The Lender may in any event disclose information obtained in
connection with this Agreement to a third party where such disclosure is
required by applicable law or regulation so
requires.
|
|
23.
|
CHANGES TO THE
BORROWERS
|
|
23.1
|
Additional Borrowers:
Subject to the following provisions of this Clause 23 (Changes to the
Borrowers), the Parent may request that any Group Company becomes
an Additional Borrower under the Agreement guaranteed by the Guarantor
according to Clause 12
(Guarantees and Indemnity).
|
|
23.2
|
Lender’s Discretion:
Upon receipt of such request as referred to in Clause 23.1 (Additional
Borrowers) from the Parent, the
Lender:
|
|
|
23.2.1
|
shall
within 10 (ten) days notify the Parent of its decision as to whether to
accept the relevant Group Company as an Additional Borrower;
and
|
40/54
|
|
23.2.2
|
shall
be obliged to give a reason, justification or explanation for its decision
if the request is denied.
|
|
23.3
|
Information: Subject to
Clause 23.2 (Lender’s
Discretion) the relevant Group Company shall become an Additional
Borrower if:
|
|
|
23.3.1
|
the
Lender approves the addition of that Group
Company;
|
|
|
23.3.2
|
the
Parent confirms that no Event of Default is continuing or would occur as a
result of that Group Company becoming an Additional Borrower;
and
|
|
|
23.3.3
|
the
Lender has received all of the documents and other evidence set out in
Clause 4.1 (Conditions
Precedent) in relation to that Additional Borrower each in form and
substance satisfactory to the Lender and an Accession Letter to this
Agreement executed by the Additional Borrower, the Parent and the
Guarantor.
|
|
23.4
|
Notification of Receipt of
Clause 23.3.3 Documentation: The Lender shall notify the Parent
promptly upon being satisfied that it has received (in form and substance
satisfactory to it) all the documents and other evidence required under
Clause
23.3.3.
|
|
23.5
|
Repetition of Representations:
delivery of an Accession Letter constitutes confirmation by the relevant
member of the Group that the representations and warranties referred to in
Clause 13 are true
and correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then
existing.
|
|
23.6
|
Resignation of a Borrower:
The Parent may request that a Borrower (other than the Parent)
ceases to be a Borrower by delivering to the Lender a Resignation Letter
substantially in the form set out in Schedule 4 (Resignation
Letter).
|
|
23.7
|
Acceptance of the Resignation
Letter: The Lender shall accept a Resignation Letter and notify the
Parent of its acceptance if:
|
|
|
23.7.1
|
the
Parent has confirmed that no Event of Default is continuing or would
result from the acceptance of the Resignation
Letter;
|
|
|
23.7.2
|
no
payment is due from the relevant Borrower and the relevant Borrower has no
further liabilities to the Lender;
and
|
|
|
23.7.3
|
the
relevant Borrower is under no contractual or contingent obligations as a
Borrower under the Finance
Documents.
|
|
23.8
|
Notification of Acceptance of
Resignation: Upon notification by the Lender to the Parent of its
acceptance of the resignation of the relevant Borrower, that Subsidiary
shall cease to be a Borrower and shall have no further rights or
obligations under the Finance Documents as a
Borrower.
|
41/54
|
24.
|
LIABILITY
|
|
24.1
|
Several Liability: The
obligations of each Borrower under the Finance Documents are several and
not joint, however subject to the Guarantors obligations in accordance
with Clause 12
(Guarantees and Indemnity).
|
|
25.
|
SET-OFF
|
|
25.1
|
Set-Off: The Lender may
set-off any matured obligation from the Borrowers under the Finance
Documents (to the extent beneficially owned by the Lender) against any
matured obligation owed by the Lender to the relevant Borrower, regardless
of the place of payment, booking branch or currency of either obligation.
If the obligations are in different currencies, the Lender may convert
either obligation into the Base Currency using the exchange rate applied
by the Lender and/or other currency at the Lenders discretion for the
purpose of the set-off.
|
|
26.
|
BORROWER’S
AGENT
|
|
26.1
|
Each
Borrower irrevocably appoints the Parent as its agent in relation to the
Finance Documents for the purposes of executing and delivering any Notice
of Drawdown, any Accession Letter and other documents required pursuant to
the Finance Documents on its behalf and generally agreeing and executing
any notices, documents, consents, waivers and amendments (howsoever
fundamental and notwithstanding any increase in obligations of or other
effect on a Borrower) entered into in connection with the Finance
Documents (including confirmation of continuation of obligations in
connection with any modification, waiver or amendment in relation to the
Facility) and receiving and acknowledging on its behalf all amendments and
other notices delivered to it pursuant to the terms of the Finance
Documents.
|
|
27.
|
COMMUNICATIONS
|
|
27.1
|
Communications: All
notices, advice, statements, requests, demands and other communications
(all of which hereinafter in this Clause and for the purposes of the
Agreement called “Notice”) shall be made
in writing and in the English language and shall be given or made (unless
provided otherwise in this Agreement) by airmail or air courier (but then,
in the event of non routine Notices, to be confirmed by airmail),
facsimile, telegram or cable and shall be addressed as
follows
|
In the
case of the Parent and the
Guarantor to:
Danfoss
A/S
(CVR-no
20165715)
Xxxxxxxxxxx
00
XX-0000
Xxxxxxxx
Xxxxxxx
Attn.:
Palle Dedenroth
Telephone: x00
00 00 00 00
Facsimile: x00
00 00 00 00
42/54
In the case of
Additional Borrowers
to:
Danfoss
A/S
(CVR-no
20165715)
Xxxxxxxxxxx
00
XX-0000
Xxxxxxxx
Xxxxxxx
Attn.:
Palle Dedenroth
|
Telephone:
|
x00
00 00 00 00
|
|
Facsimile:
|
x00
00 00 00 00
|
In the case of the
Lender, regarding Contact for Administration /
Operational Matters
(Drawdown Notice, Selection Notice etc.) to:
Danske
Bank A/S
(CVR-no
61126228)
Loans
& Deposits (3925)
0-00
Xxxxxxx Xxxxx
XX-0000-Xxxxxxxxxx
K
Denmark
Attn.:
Ole Loeike
|
Telephone:
|
x00
00 00 00 00
|
|
Facsimile:
|
x00
00 00 00 00
|
|
E-mail:
|
X0000xxx@xxxxxxxxxx.xx
|
In the case of the
Lender, regarding Contact for Credit / Documentation
Matters (Margin
Certificate, Financial Statements, Budget etc.) to:
Danske
Bank A/S
(CVR-no
61126228)
Specialised
Credits (4754)
0-00
Xxxxxxx Xxxxx
XX-0000-Xxxxxxxxxx
K
Denmark
Attn.:
Merete Ryvald Xxxxxxxxxxx
|
Telephone:
|
x00
00 00 00 00
|
|
Facsimile:
|
x00
00 00 00 00
|
|
E-mail:
|
xxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xx
|
or to
such other address as may from time to time be notified in writing by either
party to
the other, provided that any such variation shall take effect as from the third
day after
the day of receipt of the respective Notice by the other party (unless a later
date
should have been notified therein).
|
27.2
|
Effectively
Given Notice: Any Notice given hereunder shall be deemed received
by the party or other entity to whom notice is to be
given:
|
43/54
|
27.2.1
|
3
(three) days after the date of sending if sent by airmail;
or
|
|
27.2.2
|
2
(two) Banking Days after the date of sending if sent by air courier;
or
|
|
27.2.3
|
on
the date of transmission if sent by facsimile, telegram or cable unless
received on a non-working day or after business hours in the place of
receipt, in which event the Notice shall be deemed to have been received
on the next following working day in such
place.
|
|
27.3
|
No
Implied Waiver: The failure of a party to forward any Notice or the
failure thereof to arrive shall never be deemed to release the other
parties hereto from any of their respective obligations under the
Agreement or any other document envisaged
hereunder.
|
|
28.
|
APPLICABLE LAW AND LEGAL
VENUE
|
|
28.1
|
Governing
Law: This Agreement shall be governed by and construed in
accordance with the laws of the Kingdom of
Denmark.
|
|
28.2
|
Jurisdiction:
Disputes etc. in connection with this Agreement shall be submitted
to the jurisdiction of the City Court of Copenhagen (Københavns
Byret).
|
|
28.3
|
Enforceability:
The obligations of each Borrower and the Guarantor under this
Agreement constitutes unconditional unilateral payment obligations of that
Borrower and the Guarantor and shall be enforceable by the Lender in
accordance with the provisions of §478, 1st paragraph, no 5 of the Danish
Act no 905/1992-11-10
(“Retsplejeloven”).
|
|
28.4
|
Legal
Venue: Any dispute arising out of this Agreement which cannot be
solved amicable shall subject to Clause
28.3 (Enforceability) be subject to final and binding arbitration
in accordance with the rules of the Danish Institute of Arbitration in
force from time to time.
|
|
28.5
|
Language:
The language of any proceedings as per Clause
28.3 (Enforceability) and 28.4
(Legal Venue) shall be Danish, provided that the Lender and the
Parent explicitly agree that neither of the parties hereto shall be
required to translate any document filed or produced in preparation of or
in connection with such proceedings which has originally been drafted in
the English language (including but not limited to this Agreement and the
Schedules hereto) into the Danish language as a precondition for the
instigation or furtherance of any legal proceedings except to the extent
that it is required by law and regulation of mandatory application. In the
event that a translation of any document is required pursuant to
applicable law and regulation the submission thereof for the purposes of
any proceedings shall solely be permissible to the extent that such
translation has been prepared by an authorised translator appointed by the
Lender at its sole discretion and furthermore provided that any
discrepancy or ambiguity in any translated document shall be resolved by
reference to the English version thereof. Any cost incurred in connection
with such translation shall be for the account of the Parent as set out in
Clause
21 (Other Indemnities).
|
44/54
|
29.
|
MISCELLANEOUS
|
|
29.1
|
Entire
Agreement: This Agreement constitutes the entire agreement between
the Parent, the Borrower and the Guarantor and the Lender in relation to
the Facility and such documents shall not be varied in their terms by any
oral agreement or representation or otherwise than by a written document
of the same date or later than this Agreement executed by or on behalf of
the relevant parties.
|
|
29.2
|
Severability:
If any term or provision of these terms is to any extent held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining terms or provisions (and any other
application of the said terms or provisions) shall not in any way be
affected or impaired.
|
|
29.3
|
No
Implied Waiver: No failure or delay on the part of the Lender in
exercising any right, power or remedy will operate as a waiver of it nor
will any single or partial exercise of any such right, power or remedy
preclude any other or further exercise of such right, power or
remedy.
|
|
29.4
|
Binding
Agreement This Agreement and the pertaining documents shall be
binding upon and enure to the benefit of each party hereto and its or any
subsequent successors and permitted
assignees.
|
|
29.5
|
Counterparts
of Agreement: This Agreement is made in 3 (three) counterparts, 1
(one) for the Parent, 1 (one) for the Guarantor and 1 (one) for the
Lender. Each counterpart shall be considered as an
original.
|
|
30.
|
SIGNATORIES
|
IN
WITNESS WHEREOF each of the Parties hereto has caused this Agreement to
be signed on
the date of this Agreement.
|
Niels
Xxxxx Xxxxxxxxxxxx /
|
Xxxxxx
Xxxx Xxxxxxx /
|
|
|
Xxxxxx
Mads Xxxxxxx
|
Xxxxx
Xxxxx Xxxxxxxxxxxx
|
|
|
_____________________________
|
_____________________________
|
|
|
Danfoss
A/S
|
Danfoss
A/S
|
|
|
as
the Parent and the Original Borrower
|
as
the Guarantor
|
Xxxxxx
Xxxxxx /
Xxxx
Xxxxxx
_____________________________
Danske
Bank A/S
as the
Lender
45/54
SCHEDULE
1
FORM
OF DRAWDOWN NOTICE
[LETTERHEAD
OF THE BORROWER]
|
To:
|
Danske
Bank A/S (the “Lender”)
|
|
|
Loans
& Deposits (3925)
|
|
|
0-00
Xxxxxxx Xxxxx
|
|
|
XX-0000-Xxxxxxxxxx
K
|
|
|
Denmark
|
Facsimile: x00
00 00 00 00 or
E-mail:
X0000xxx@xxxxxxxxxx.xx
|
Dated:
[DD Month 20xx]
|
Re:
USD 600,000,000 Committed Multicurrency Term Loan and Revolving Credit
Facilities
Agreement dated 4 February 2008 (the “Agreement”) - Notice of
Drawdown
|
1)
|
We
refer to the Agreement. This is a Notice of Drawdown. Terms defined in the
Agreement have the same meaning in this Notice of Drawdown unless given a
different meaning in this Notice of
Drawdown.
|
|
2)
|
We
hereby request that a Loan is made as provided for by Clause
5 (Drawdown) of the Agreement as
follows:
|
· Amount:
· Currency:
· Interest
Period:
· Drawing
Date:
· End
Date:
|
3)
|
The
proceeds of this Loan shall be credited to our account, account number
[ ].
|
|
4)
|
We
confirm that each of the conditions specified in Clause
4 (Conditions Precedent) of the Agreement is satisfied, that the
representations and warranties as per Clause
13 (Representations and Warranties) are true and correct on the
date of this request and that no Event of Default is threatening or has
occurred.
|
|
5)
|
This
Drawdown Notice is irrevocable.
|
|
[Place
and date]
|
|
_____________________________
|
|
[BORROWER]
|
|
[SIGNATURES
OF DULY AUTHORISED PERSONS]
|
SCHEDULE
2
FORM
OF SELECTION NOTICE
[LETTERHEAD
OF THE BORROWER]
|
To:
|
Danske
Bank A/S (the “Lender”)
|
|
|
Loans
& Deposits (3925)
|
|
|
0-00
Xxxxxxx Xxxxx
|
|
|
XX-0000-Xxxxxxxxxx
K
|
|
|
Denmark
|
Facsimile: x00
00 00 00 00 or
E-mail:
X0000xxx@xxxxxxxxxx.xx
|
Dated:
[DD Month 20xx]
|
Re:
USD 600,000,000 Committed Multicurrency Term Loan and Revolving Credit
Facilities Agreement dated 4 February 2008 (the “Agreement”) – Selection
Notice
|
1)
|
We
refer to the Agreement. This is a Selection Notice. Terms defined in the
Agreement have the same meaning in this Selection Notice unless given a
different meaning in this Selection
Notice.
|
|
2)
|
We
refer to the following Facility [A/B/C Loan] in [identify currency] with
an Interest Period ending on [DD Month
20xx].
|
|
3)
|
[We
request that the above Facility [A/B/C Loan(s)] be divided into
[ ] Facility [A/B/C Loan(s)] with the following Base
Currency Amount and Interest
Periods]
|
or
[We
request that the next Interest Period for the above Facility [A/B/C Loan] is
[ ].]
|
4)
|
We
request that the above Facility [A/B/C Loan(s)] [is]/[are] [denominated in
the same currency for the next Interest Period]/[denominated in the
following currencies:
[ ]].
|
|
5)
|
The
proceeds of any change in currency should be credited to account, account
number [ ].
|
|
6)
|
We
confirm that each of the conditions specified in Clause
4 (Conditions Precedent) of the Agreement is satisfied, that the
representations and warranties as per Clause
13 (Representations and Warranties) are true and correct on the
date of this request and that no Event of Default is threatening or has
occurred.
|
|
7)
|
This
Selection Notice is irrevocable.
|
|
[Place
and date]
|
|
_____________________________
|
|
[BORROWER]
|
|
[SIGNATURES
OF DULY AUTHORISED
PERSONS]
|
47/54
SCHEDULE
3
FORM
OF ACCESSION LETTER
[LETTERHEAD
OF THE PARENT]
|
To:
|
Danske
Bank A/S (the “Lender”)
|
|
|
Specialised
Credits (4754)
|
|
|
0-00
Xxxxxxx Xxxxx
|
|
|
XX-0000-Xxxxxxxxxx
K
|
|
|
Denmark
|
Facsimile: x00
00 00 00 00 or
E-mail: xxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xx
|
From:
|
[Subsidiary]
and Danfoss A/S
|
|
Dated:
[DD Month 20xx]
|
Re:
USD 600,000,000 Committed Multicurrency Term Loan and Revolving Credit
Facilities Agreement dated 4 February 2008 (the “Agreement”) – Accession
Letter
|
1.
|
We
refer to the Agreement. This is an Accession Letter. Terms defined in the
Agreement have the same meaning in this Accession Letter unless given a
different meaning in this Accession
Letter.
|
|
2.
|
[SUBSIDIARY]
agrees to become an Additional Borrower and to be bound by the
terms of the Agreement, and the other Finance Documents as an Additional
Borrower pursuant to Clause
23.1 (Additional Borrowers). [SUBSIDIARY]
is a company duly incorporated under the laws of [NAME
OF RELEVANT JURISDICTION] and is a limited liability company with
registered number [NUMBER].
|
|
3.
|
[SUBSIDIARY]
administrative details are as
follows:
|
|
(A)
|
Address:
|
[ADDRESS]
|
|||
|
(B)
|
Fax
No.:
|
[NUMBER]
|
|||
|
(C)
|
E-Mail:
|
[E-MAIL
ADDRESS]
|
|||
|
(D)
|
Attention:
|
[SPECIFY]
|
|
4.
|
This
Accession Letter is governed by and construed in accordance with the laws
of the Kingdom of Denmark.
|
|
[Place
and date]
|
||
|
Accepted
as Parent and Guarantor:
|
Accepted
as Additional Borrower:
|
|
|
_______________________
|
_______________________
|
|
|
[PARENT
AND GUARANTOR]
|
[SUBSIDIARY]
|
|
|
[SIGNATURES
OF DULY AUTHORISED
PERSONS]
|
||
48/54
SCHEDULE
4
FORM
OF RESIGNATION LETTER
[LETTERHEAD
OF THE PARENT]
|
To:
|
Danske
Bank A/S (the “Lender”)
|
|
|
Specialised
Credits (4754)
|
|
|
0-00
Xxxxxxx Xxxxx
|
|
|
XX-0000-Xxxxxxxxxx
K
|
|
|
Denmark
|
Facsimile: x00
00 00 00 00 or
E-mail: xxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xx
|
From:
|
[Subsidiary]
and Danfoss A/S
|
Dated:[DD
Month 20xx]
Re:
USD 600,000,000 Committed Multicurrency Term Loan and Revolving Credit
Facilities Agreement dated 4 February 2008 (the “Agreement”) – Resignation
Letter
|
1.
|
We
refer to the Agreement. This is a Resignation Letter. Terms defined in the
Agreement have the same meaning in this Resignation Letter unless given a
different meaning in this Resignation
Letter.
|
|
2.
|
Pursuant
to Clause
23.6 (Resignation of a Borrower), we request that [RESIGNING
BORROWER] be released from its obligations as a Borrower under the
Agreement and the Finance
Documents.
|
|
3.
|
We
confirm that:
|
|
3.1
|
No
Event of Default is continuing or would result from the acceptance of this
request;
|
|
3.2
|
No
payment is due from [RESIGNING
BORROWER] and [RESIGNING
BORROWER] has no further liabilities to the Lender;
and
|
|
3.3
|
[RESIGNING
BORROWER] is under no contractual or contingent obligations as a
Borrower under the Finance
Documents.
|
|
4.
|
This
Resignation Letter is governed by and construed in accordance with the
laws of the Kingdom of Denmark.
|
|
[Place
and date]
|
||
|
_______________________
|
_______________________
|
|
|
[PARENT]
|
[RESIGNING
BORROWER]
|
|
|
[SIGNATURES
OF DULY AUTHORISED
PERSONS]
|
||
49/54
SCHEDULE
5
FORM
OF BOARD RESOLUTION
The board
of directors of [Original Borrower/Additional Borrower] hereby unanimously
authorises the utilisation in whole or in part of the facilities made available
by Danske Bank A/S (the Lender”)
under the USD 600,000,000 Committed Multicurrency Term Loan and Revolving Credit
Facilities Agreement dated 4 February 2008 (the “Agreement”)
between Danfoss A/S (the “Original
Borrower”, the “Guarantor”
and the “Parent”)
and the Lender [and the guarantee by the Guarantor of all of the obligations of
[Additional Borrower] under the Agreement].
|
[Place
and date]
|
|
__________________________
|
|
[ORIGINAL
BORROWER] [ADDITIONAL BORROWER]
|
|
[SIGNATURES
OF DULY AUTHORISED
PERSONS]
|
50/54
SCHEDULE
6
FORM
OF POWER OF ATTORNEY
|
To:
|
Danske
Bank A/S (the “Lender”)
|
|
|
Specialised
Credits (4754)
|
|
|
0-00
Xxxxxxx Xxxxx
|
|
|
XX-0000-Xxxxxxxxxx
K
|
|
|
Denmark
|
Facsimile: x00
00 00 00 00 or
E-mail: xxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xx
Re:
USD 600,000,000 Committed Multicurrency Term Loan and Revolving Credit
Facilities Agreement dated 4 February 2008 (the “Agreement”) – Power of
Attorney
The
undersigned [ ], [ ] jointly authorised to sign on behalf of Danfoss A/S (the
“Original
Borrower”, the “Guarantor”
and the “Parent”)
[ ], having its office at [ ], hereby authorise
[Name]
[Position]
(the “Attorney”)
Specimen
signature of the Attorney:
__________________________________________________________
to sign
on our behalf the USD 600,000,000 Committed Multicurrency Term Loan and
Revolving Credit Facilities Agreement dated 4 February 2008 (the “Agreement”)
entered into on 4 February 2008 between Danfoss A/S as the “Original
Borrower”, the “Guarantor”
and the “Parent”
and Danske Bank A/S as the “Lender”
and any other document which the Attorney may deem appropriate in connection
with the Agreement.
This
Power of Attorney shall be in force until 4 February 2015 or until the Lender
receives a written notice of termination or amendment to this Power of Attorney,
in each case duly signed by Authorised Persons of Danfoss A/S as the “Original
Borrower”, the “Guarantor”
and the “Parent”.
|
[Place
and date]
|
|
_______________________
|
|
[PARENT]
|
|
[SIGNATURES
OF DULY AUTHORISED PERSONS]
|
51/54
SCHEDULE
7
FORM
OF MARGIN CERTIFICATE
|
To:
|
Danske
Bank A/S (the “Lender”)
|
|
|
Specialised
Credits (4754)
|
|
|
0-00
Xxxxxxx Xxxxx
|
|
|
XX-0000-Xxxxxxxxxx
K
|
|
|
Denmark
|
Facsimile: x00
00 00 00 00 or
E-mail: xxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xx
|
Dated:
[DD Month 20xx]
|
Re:
USD 600,000,000 Committed Multicurrency Term Loan and Revolving Credit
Facilities Agreement dated 4 February 2008 (the “Agreement”) – Margin
Certificate
|
1
|
We
refer to the Agreement. This is a Margin Certificate. Terms defined in the
Agreement have the same meaning when used in this Margin Certificate
unless given a different meaning in this Margin
Certificate.
|
|
2
|
We
confirm the following financial details for the Calculation Period ending
on [DD Month 20xx], with reference to the attached
specifications:
|
a)
Consolidated EBITDA:
b)
Consolidated Net Interest Bearing Debt:
c)
Leverage Ratio:
|
3
|
We
confirm that no Event of Default has
occurred.
|
|
[Place
and date]
|
|
_______________________
|
|
[PARENT]
|
|
[SIGNATURES
OF DULY AUTHORISED PERSONS]
|
52/54
SCHEDULE 8
FORM
OF CERTIFICATE OF COMPLIANCE
|
To:
|
Danske
Bank A/S (the “Lender”)
|
|
|
Specialised
Credits (4754)
|
|
|
0-00
Xxxxxxx Xxxxx
|
|
|
XX-0000-Xxxxxxxxxx
K
|
|
|
Denmark
|
Facsimile: x00
00 00 00 00 or
E-mail: xxxxxxxxxxxxxxxxxx@xxxxxxxxxx.xx
|
Dated:
[DD Month 20xx]
|
Re:
USD 600,000,000 Committed Multicurrency Term Loan and Revolving Credit
Facilities Agreement dated 4 February 2008 (the “Agreement”) –Certificate of
Compliance
|
1
|
We
refer to the Agreement. This is a Certificate of Compliance. Terms defined
in the Agreement have the same meaning when used in this Certificate of
Compliance unless given a different meaning in this Certificate of
Compliance.
|
|
2
|
We
confirm the following financial details for the financial year ending on
[DD Month 20xx], with reference to the attached
specifications:
|
a)
Consolidated EBITDA:
b)
Consolidated Net Interest Bearing Debt:
c)
Leverage Ratio:
|
3
|
We
confirm that no Event of Default has
occurred.
|
|
[Place
and date]
|
| _______________________ |
|
[PARENT]
|
|
[SIGNATURES
OF DULY AUTHORISED PERSONS]
|
53/54
SCHEDULE
9
BANK
CASE
54/54
