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27 JULY 2000
FIAT S.p.A.
CNH GLOBAL N.V.
FIAT FINANCE AND TRADE LTD. S.A.
NEW HOLLAND CREDIT COMPANY LLC
CASE CORPORATION
CASE CREDIT CORPORATION
AS BORROWERS
AND
THE BANKS
AND
CHASE MANHATTAN INTERNATIONAL LIMITED
AS FACILITY AGENT AND EURO SWING-LINE AGENT
AND
THE CHASE MANHATTAN BANK
AS US SWING-LINE AGENT
AND
ABN AMRO BANK N.V.
BANCA INTESA S.p.A.
CHASE MANHATTAN plc
AS ARRANGERS
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CREDIT AGREEMENT
RELATING TO A MULTICURRENCY REVOLVING CREDIT FACILITY
OF $2,000,000,000
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation.........................................1
2. Facilities............................................................12
3. Purpose...............................................................13
4. Conditions Precedent..................................................14
5. Drawdown..............................................................14
6. Alternative Currencies................................................16
7. Interest..............................................................18
8. Repayment And Prepayment..............................................20
9. Cancellation..........................................................21
10. Changes In Circumstances..............................................22
11. Payments..............................................................26
12. Co-Borrower's Covenants...............................................31
13. Additional Borrowers..................................................33
14. Representations And Warranties........................................34
15. Undertakings..........................................................36
16. Default...............................................................37
17. Pro Rata Sharing......................................................39
18. The Agents, The Arrangers And The Banks...............................40
19. Fees And Expenses.....................................................46
20. Amendments And Waivers................................................47
21. Miscellaneous.........................................................48
22. Notices...............................................................49
23. Assignments And Transfers.............................................50
24. Indemnities...........................................................52
25. Law And Jurisdiction..................................................54
Schedule 1 ..................................................................56
Part A The Banks......................................................56
Part B The Swing-Line Banks...........................................59
Schedule 2 ..................................................................60
Part A Original Borrowers Conditions Precedent........................60
Part B Acceding Borrower Conditions Precedent.........................61
Schedule 3 DRAWDOWN NOTICE.........................................62
Schedule 4 FORM OF TRANSFER CERTIFICATE............................63
Schedule 5 BORROWER ACCESSION MEMORANDUM...........................68
Schedule 6 FORM OF RESIGNATION NOTICE..............................69
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THIS AGREEMENT is made on 27 July 2000
BY:
(1) FIAT S.P.A., a company incorporated in the Republic of Italy whose
registered office is at Xxx Xxxxx 000, 00000 Xxxxx, Xxxxx ("FIAT");
(2) CNH GLOBAL N.V., a company incorporated in the Netherlands whose registered
office is at Schipol Boulevard 217, WTC Airport, 1118 BH Luchthaven
Schipol, The Netherlands;
(3) FIAT FINANCE AND TRADE LTD. S.A., a company incorporated in Luxembourg
whose registered office is at 00 Xxx Xxxxxxxxx. X-0000, Xxxxxxxxxx;
(4) NEW HOLLAND CREDIT COMPANY LLC, a limited liability company incorporated in
the state of Delaware, United States of America whose registered office is
at 00 Xxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, XX, 00000, Xxxxxx Xxxxxx of
America;
(5) CASE CORPORATION, a company incorporated in the state of Delaware, United
States of America whose registered office is at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxx XX 00000, Xxxxxx Xxxxxx of America; and
(6) CASE CREDIT CORPORATION, a company incorporated in the state of Delaware,
United States of America whose registered office is at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxxx XX 00000, Xxxxxx Xxxxxx of America;
(together the "ORIGINAL BORROWERS")
(7) THE BANKS listed in Schedule 1 (The Banks);
(8) CHASE MANHATTAN INTERNATIONAL LIMITED of Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx
Xxxxxx, Xxxxxx X0 0XX as the Facility Agent and Euro Swing-Line Agent (as
those terms are defined below);
(9) THE CHASE MANHATTAN BANK of 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx as US
Swing-Line Agent (as that term is defined below); and
(10) ABN AMRO BANK N.V. of 000 Xxxxxxxxxxx, Xxxxxx, XXXXX INTESA S.P.A., London
Branch of 0-0 Xxxxxxx Xxxxxx, Xxxxxx XX0X 0XX and CHASE MANHATTAN PLC of
000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX as the joint arrangers of the facility
made available under this Agreement (together the "ARRANGERS").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS In this Agreement:
"ADDITIONAL BORROWER" means any Subsidiary of Fiat which has become an
Additional Borrower in accordance with Clause 13 (Additional Borrowers).
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"ADDITIONAL COST RATE" means, in relation to a Participation of a Bank in
an Advance, the aggregate cost, if any, certified by such Bank as the cost
to it of complying with the reserve asset and other regulatory requirements
of the European Central Bank, the Bank of England and/or the Financial
Services Authority in relation to that Participation or any class of loans
of which that Participation forms part, expressed as a percentage rate per
annum for the relevant Interest Period.
"ADVANCE" means an advance made or to be made to a Borrower under the
Facility (and includes, unless the context otherwise requires, a Swing-Line
Advance), or, as the case may be, the outstanding principal amount of any
such advance.
"AGENCY FEES LETTER" means the letter dated on or about the date of this
Agreement from the Facility Agent to the Borrowers' Agent relating to
certain fees payable to the Facility Agent and the US Swing-Line Agent in
relation to this Agreement.
"AGENTS" means the Facility Agent, the US Swing-Line Agent and the Euro
Swing-Line Agent and "AGENT" means any one of them.
"ALTERNATIVE CURRENCY" means the Committed Currencies, Japanese Yen, Swiss
Francs, Canadian Dollars, Australian Dollars, Danish Krona and any other
freely convertible and transferable currency (other than Dollars) readily
available to the Banks in the relevant interbank market.
"ARRANGEMENT FEES LETTER" means the arrangement fee letter dated on or
about the date of this Agreement from the Arrangers and others to Fiat and
the Borrowers' Agent relating to certain fees and expenses payable to the
Arrangers by the Borrowers' Agent in relation to this Agreement.
"AVAILABLE COMMITMENT" means, in relation to a Bank, its Commitment less
the Original Dollar Amount of its Participations in all outstanding
Advances.
"AVAILABLE REVOLVING FACILITY" means the aggregate of the Available
Commitments.
"AVAILABLE SWING-LINE COMMITMENT" means, in relation to a Swing-Line Bank,
its Swing-Line Commitment less the Original Dollar Amount of its
Participations in the Swing-Line Advances.
"AVAILABLE SWING-LINE FACILITY" means the aggregate of the Available
Swing-Line Commitments.
"BANKS" means the banks and other financial institutions listed in Part A
of Schedule 1 (The Banks) and, unless the context otherwise requires, each
Swing-Line Bank and any Bank Transferee, together with their respective
successors in title, PROVIDED THAT any bank or financial institution which
transfers all of its Commitment in accordance with Clause 23.4 (Transfers
by Banks) shall cease to be a "Bank" and, if applicable, a "Swing-Line
Bank".
"BANK TRANSFEREE" has the meaning given to that term in sub-clause 23.4.2
of Clause 23.4 (Transfers by Banks).
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"BORROWER ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 5 (Borrower Accession Memorandum).
"BORROWERS" means each Original Borrower and each Additional Borrower,
PROVIDED THAT it has not been released from its rights and obligations
under this Agreement in accordance with Clause 13.3 (Resignation of a
Borrower).
"BORROWERS' AGENT" means Fiat Finance and Trade Ltd. S.A. or such other
Borrower appointed as such from time to time by Fiat by notice to the
Facility Agent.
"BUSINESS DAY" means:
(a) in relation to an Advance denominated in an Alternative Currency, a
day (other than a Saturday or a Sunday) on which banks are generally
open for business in London, New York and in the principal financial
centre of the country or state of that Alternative Currency, PROVIDED
THAT any reference to "Business Day" which relates to a payment or
rate fixing in Euros or other matter relating to Euros, means a day on
which the Trans-European Automated Real-time Gross Settlement Express
Transfer System (TARGET) is operating;
(b) in relation to Advances (other than Dollar Swing-Line Advances)
denominated in Dollars, a day (other than a Saturday or a Sunday) on
which banks are generally open for business in London and New York;
(c) in relation to Dollar Swing-Line Advances, a day (other than a
Saturday or a Sunday) on which banks are generally open for business
in New York; and
(d) for all other purposes, a day (other than a Saturday or a Sunday) on
which banks are generally open for business in London.
"CERTIFIED COPY" means, in relation to a document, a copy of that document
certified a true, complete and accurate copy of the original by a duly
authorised officer of the relevant company.
"CHANGE" means, in relation to a Bank (or any company of which that Bank is
a Subsidiary), the introduction, implementation, repeal, withdrawal or
change in, or in the official interpretation or application of, (a) any law
or regulation or (b) any official directive, requirement, request or
guidance (whether or not having the force of law but if not having the
force of law, one which applies generally to a class or category of
financial institutions of which that Bank (or that company) forms part and
compliance with which is in accordance with the general practice of those
financial institutions) of the European Community, any central bank
including the European Central Bank, Financial Services Authority, or any
other fiscal, monetary or regulatory authority.
"COMMITMENT" means, in relation to a Bank, the amount set out opposite its
name in Part A of Schedule 1 (The Banks) or, in relation to a Bank which
becomes a Bank after the date hereof, under the heading "Amount of
Revolving Commitment Transferred" in
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the schedule to the Transfer Certificate(s) pursuant to which it becomes a
Bank and in relation to a Bank that is also a Swing-Line Bank its
Commitment shall include its Swing-Line Commitment (in each case as
reduced, transferred or cancelled in accordance with this Agreement).
"COMMITTED CURRENCIES" means Sterling and Euro.
"DEFAULT" means any event specified as such in Clause 16.1 (Default).
"DOLLAR EQUIVALENT" means, in relation to an amount in an Alternative
Currency on the day on which the calculation falls to be made, the amount
of Dollars which could be purchased with that amount of the Alternative
Currency using the Facility Agent's spot rate of exchange for the purchase
in the London foreign exchange market of Dollars with the Alternative
Currency at or about 11.00 a.m. two Business Days before that date.
"DOLLAR PRIME RATE" means, for any day, the rate per annum which is the
prime rate of the US Swing-Line Agent in New York City, as publicly
announced from time to time, in force on such date.
"DOLLAR SWING-LINE ADVANCE" means an Advance denominated in Dollars made or
to be made under the Swing-Line Facility or, as the case may be, the
outstanding principal amount of any such Advance.
"DOLLAR SWING-LINE RATE" means for any day the rate per annum which is the
higher on such day of:
(a) the Dollar Prime Rate; and
(b) the aggregate of the Federal Funds Rate and 0.50 per cent. per annum.
"DOLLARS" and "$" means the lawful currency for the time being of the
United States of America.
"DRAWDOWN DATE" means the date on which an Advance is made, or is proposed
to be made.
"DRAWDOWN NOTICE" means a notice substantially in the form set out in
Schedule 3 (Drawdown Notice).
"DRAWDOWN PERIOD" means the period starting on the date of this Agreement
and ending on the date falling one month before the Termination Date.
"ENCUMBRANCE" means any mortgage, charge, pledge, lien or any other
security interest (other than arising by operation of law).
"ERISA" means the US Employee Retirement Income Security Act of 1974, as
amended from time to time.
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"EURIBOR" means, in relation to an Advance (other than a Euro Swing-Line
Advance) or overdue amount in Euros and in relation to a particular
Interest Period:
(a) the interest rate for deposits in Euros for a period equal to that
Interest Period which appears on the display designated "Page 248" on
the Telerate Service (or such other page or service as may replace it
for the purpose of displaying the interest rates offered in the
interbank market for deposits in Euros in the Participating Member
States) as of 11.00 a.m. (Brussels time) on the second Business Day
before the first day of that Interest Period; and
(b) if no such interest rate appears on the relevant display page on the
Telerate Service (or its replacement), the arithmetic mean (rounded
upwards to 4 decimal places) of the rates per annum (as quoted to the
Facility Agent at its request) at which each Euro Reference Bank was
offering deposits in Euros in an amount equal to that Advance or, as
the case may be, overdue amount to leading banks in the interbank
market for Euros in the Participating Member States for a period equal
to that Interest Period as of 11.00 a.m. (Brussels time) on the
applicable Rate Fixing Day.
"EURO" means the single currency of Participating Member States introduced
on 1 January 1999.
"EURO REFERENCE BANKS" means the principal offices in any Participating
Member State of ABN AMRO Bank N.V., Banca Intesa S.p.A. and The Chase
Manhattan Bank and/or such other bank or banks as may be agreed between the
Facility Agent (acting on the instructions of the Majority Banks) and the
Borrowers' Agent.
"EURO SWING-LINE ADVANCE" means an Advance denominated in Euros made or to
be made under the Swing-Line Facilities or, as the case may be, the
outstanding principal amount of any such Advance.
"EURO SWING-LINE AGENT" means Chase Manhattan International Limited in its
capacity as euro swing-line agent for the Swing-Line Banks and each
successor Euro Swing-Line Agent appointed in accordance with Clause 18.12
(Resignation).
"EURO SWING-LINE RATE" means, in relation to a Euro Swing-Line Advance for
any day the rate per annum which is the aggregate of: (a) the arithmetic
mean (rounded upwards to 4 decimal places) of the rates per annum (as
quoted to the Euro Swing-Line Agent at its request) of each Euro Reference
Bank for overnight deposits in Euros in an amount equal to that Euro
Swing-Line Advance as of 11.00 a.m. (Brussels time) on that day; and
(b) 0.50 per cent. per annum.
"FACILITY" means the Dollar denominated multi-currency revolving loan
facility incorporating optional Dollar and Euro denominated swing-line
facilities granted to the Borrowers under this Agreement.
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"FACILITY AGENT" means Chase Manhattan International Limited in its
capacity as agent for the Banks and each successor agent appointed in
accordance with Clause 18.12 (Resignation).
"FACILITY PERIOD" means the period starting on the date of this Agreement
and ending on the date on which all the obligations and liabilities of the
Borrowers under the Financing Documents are discharged in full and none of
the Agents and the Banks has any continuing obligation in relation to the
Facility.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to:
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a Business Day,
the average of the quotations for such day on such transactions
received by the US Swing-Line Agent from three federal funds brokers
of recognised standing selected by it.
"FINANCIAL YEAR" means, in relation to a Borrower, each accounting period
of 12 months in respect of which it prepares its financial statements.
"FINANCE PARTIES" means the Banks, the Agents and the Arrangers.
"FINANCING DOCUMENTS" means this Agreement, each Borrower Accession
Memorandum, the Agency Fees Letter and the Arrangement Fees Letter.
"GAAP" means, in relation to a company, accounting principles, concepts,
bases and policies generally adopted and accepted in the jurisdiction of
its incorporation or, if appropriate, the international accounting
principles formulated by the International Accounting Standards Committee.
"INDEBTEDNESS" means any obligation (whether incurred as principal or as
surety) for the payment or repayment of borrowed money, whether present or
future, including any contingent obligation in respect thereof by reason of
any guarantee or other assumption of liability for obligations of third
parties and any actual or contingent obligation in respect of any interest
rate swap or cross-currency swap or forward sale or purchase contract or
other form of interest or currency hedging transaction.
"INFORMATION MEMORANDUM" means the information memorandum dated June 2000
and prepared by Fiat in connection with this Agreement.
"INTEREST PERIOD" means each period determined in accordance with Clause 7
(Interest) for the purpose of calculating interest on Advances or overdue
amounts.
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"LENDING OFFICE" means:
(a) in relation to a Bank (other than in relation to such Bank in its
capacity as a Swing-Line Bank), the office (or offices) set out under
its name in Part A of Schedule 1 (The Banks) or in the schedule to its
relevant Transfer Certificate, or such other office (or offices)
through which that Bank's Commitment is maintained and through which
its Participation in the Facilities (other than in relation to
Swing-Line Advances) is made and maintained under this Agreement; and
(b) in relation to a Swing-Line Bank and in respect of Swing-Line
Advances, the relevant office set out opposite its name in Part B of
Schedule 1 (The Banks) or in the schedule to its relevant Transfer
Certificate, or such other office(s) through which that Swing-Line
Bank's Swing-Line Commitment is maintained and through which its
Participation in the Swing-Line Facilities is made and maintained
under this Agreement.
"LIBOR" means, in relation to an Advance or overdue amount and in relation
to a particular Interest Period:
(a) the interest rate for deposits in that currency for a period equal to
that Interest Period which appears on the screen display designated as
"Page 3750" or "Page 3740", as appropriate on the Telerate Service (or
such other screen display or service as may replace it for the purpose
of displaying British Bankers' Association LIBOR Rates for deposits in
that currency in the London interbank market) as of 11.00 a.m. on the
applicable Rate Fixing Day; and
(b) if no such interest rate appears on the Telerate Service (or such
replacement), the arithmetic mean (rounded upwards to 4 decimal
places) of the rates per annum (as quoted to the Facility Agent at its
request) at which each LIBOR Reference Bank was offering deposits in
that currency in an amount comparable with that Advance or overdue
amount, as the case may be, to leading banks in the London interbank
market for a period equal to that Interest Period as of 11.00 a.m. on
the applicable Rate Fixing Day.
"LIBOR REFERENCE BANKS" means the principal London offices of ABN AMRO Bank
N.V., Banca Intesa S.p.A. and The Chase Manhattan Bank and/or such other
bank or banks as may be agreed between the Facility Agent (acting on the
instructions of the Majority Banks) and the Borrowers' Agent.
"LOAN" means, at any time, the aggregate of all Advances outstanding at
that time.
"LONDON BUSINESS DAY" means a day (other than a Saturday or Sunday) on
which banks are open for general interbank business in London.
"MAJORITY BANKS" means a group of Banks whose Participations in the
Advances together exceed 662/3 per cent. of all Advances or, at any time
when no Advance is outstanding, a group of Banks whose Commitments (or, if
the Total Commitments
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have been reduced to zero, whose Commitments immediately prior to such
reduction) together exceed 662/3 per cent. of the Total Commitments (taking
no account, for the purposes of this definition, of the last sentence in
Clause 16.2 (Acceleration)).
"MARGIN" means 0.25 per cent. per annum.
"ORIGINAL DOLLAR AMOUNT" means:
(a) in relation to an Advance, or a Participation in an Advance,
denominated in Dollars, the amount of that Advance or that
Participation, as the case may be; and
(b) in relation to an Advance, or a Participation in an Advance,
denominated in an Alternative Currency, the Dollar Equivalent of the
amount of that Advance, or that Participation, as the case may be,
calculated in respect of the Drawdown Date of that Advance,
PROVIDED THAT if all or part of an Advance is not made or is repaid or
prepaid, the "Original Dollar Amount" of that Advance and of the
Participations of the Banks in that Advance shall be correspondingly
reduced.
"ORIGINAL FINANCIAL STATEMENTS" means the audited consolidated and
statutory financial statements of the Fiat Group (including the notes
thereto) for the financial year ended 31 December 1999.
"PARTICIPATION" means, in relation to a Bank and an Advance, the part of
that Advance made available or to be made available by that Bank and
thereafter the part of that Advance owing to that Bank from time to time.
"PARTICIPATING MEMBER STATE" means a state which adopts the single currency
in accordance with the Treaty establishing the European Community signed in
Rome on 25 March 1957, as amended from time to time.
"PARTY" means a party to this Agreement.
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance created or outstanding with the prior written consent
of the Majority Banks; or
(b) rights of set-off arising in the ordinary course of trading activities
between any Borrower and its suppliers or customers; or
(c) rights of set-off or netting arising by operation of law or by
contract by virtue of the provision to any Borrower of clearing bank
facilities or overdraft facilities; or
(d) any retention of title to goods supplied to any Borrower where such
retention is required by the supplier in the ordinary course of its
trading activities and on customary terms and the goods in question
are supplied on credit; or
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(e) Encumbrances (except floating charges) arising under finance leases,
hire purchase, conditional sale agreements or other agreements for the
acquisition of assets on deferred payment terms over the asset which
is the subject matter of the relevant agreement; or
(f) Encumbrances over any assets (or documents of title thereto) acquired
by any Borrower after the date of this Agreement, PROVIDED THAT:
(i) any such Encumbrance is in existence before such acquisition and
is not created in contemplation of such acquisition; and
(ii) the amount secured by such Encumbrance does not exceed, at any
time, the maximum amount secured or agreed to be secured thereby
(in accordance with the terms, as in force at the date of the
acquisition of the asset concerned on which such Encumbrance was
created) as at the date of acquisition; or
(g) any Encumbrance created in favour of a plaintiff or defendant in any
action of the court or tribunal before whom such action is brought as
security for costs or expenses where any Borrower is prosecuting or
defending such action in the bona fide interests of such Borrower; or
(h) any Encumbrance created pursuant to any order of attachment,
distraint, garnishee order or injunction restraining disposal of
assets or similar legal process arising in connection with court
proceedings; or
(i) any Encumbrances created in connection with the securitisation of
receivables of any Borrower over the receivables to be securitised; or
(j) any Encumbrance over any asset of any Borrower created to secure
Indebtedness incurred by such Borrower either to fund the purchase of
such asset or to fund the development and/or improvement of such
asset; or
(k) Encumbrances created by the Borrowers and not otherwise permitted by
paragraphs (a) to (j) above inclusive, PROVIDED THAT the aggregate
principal amount of Indebtedness secured by such Encumbrances shall
not exceed US$ 500,000,000 or its equivalent in other currencies.
"POTENTIAL DEFAULT" means an event which with the giving of notice or the
lapse of time or the making of any determination or fulfilment of any
condition provided for in Clause 16 (Default) would or could reasonably be
expected to constitute a Default.
"RATE FIXING DAY" means, in relation to any Interest Period, the day on
which quotes are customarily given in the relevant interbank market for
deposits in the relevant currency for delivery on the first day of that
Interest Period.
"REFERENCE BANKS" means the Euro Reference Banks and the LIBOR Reference
Banks.
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"REPAYMENT DATE" means the last day of an Interest Period.
"RESERVATIONS" means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court, the
limitation on enforcement as a result of laws relating to bankruptcy,
insolvency, liquidation, reorganisation, court schemes, moratoria,
administration and other laws affecting the rights of creditors generally,
the time-barring of claims under the Limitation Acts, rules against
penalties and similar principles of law in other jurisdictions relevant in
the context of the Financing Documents.
"RESIGNATION NOTICE" means a notice substantially in the form set out in
Schedule 6 (Form of Resignation Notice).
"REVOLVING ADVANCE" means any Advance other than a Swing-Line Advance.
"STERLING" and "(POUND)" means the lawful currency for the time being of
the United Kingdom.
"SUBSIDIARY" means a subsidiary within the meaning of section 736 of the
Companies Xxx 0000.
"SWING-LINE ADVANCE" means a Dollar Swing-Line Advance or a Euro Swing-Line
Advance.
"SWING-LINE BANK" means the banks and other financial institutions listed
in Part B of Schedule 1 (The Banks) in their capacity as providers of the
Swing-Line Facilities and any Bank Transferee of a Swing-Line Bank,
PROVIDED THAT any Swing-Line Bank which transfers all of its Swing-Line
Commitment in accordance with Clause 23.4 (Transfers by Banks) shall cease
to be a Swing-Line Bank.
"SWING-LINE COMMITMENT" means, in relation to a Swing-Line Bank, the
principal amount described as such set out opposite its name in Part B of
Schedule 1 (The Banks) or set out under the heading "Amount of Swing-Line
Commitment Transferred" in the schedule to any relevant Transfer
Certificate, in each case as reduced, transferred or cancelled in
accordance with this Agreement. "SWING-LINE FACILITIES" means the Dollar
and Euro denominated swing-line facilities forming part of the Facility
referred to in sub-clause 2.1.1 of Clause 2.1 (Facilities).
"TAXES" includes all present and future taxes, charges, imposts, duties,
levies or withholdings of any kind whatsoever, or any amount of a similar
nature (including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same); and "Tax" and
"Taxation" shall be construed accordingly.
"TERMINATION DATE" means the date falling 60 months after the date of this
Agreement.
"TOTAL COMMITMENTS" means the aggregate of the Commitments of the Banks.
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"TOTAL SWING-LINE COMMITMENTS" means the aggregate of the Swing-Line
Commitments.
"TRANSFER CERTIFICATE" means a document substantially in the form set out
in Schedule 4 (Form of Transfer Certificate).
"US SWING-LINE AGENT" means The Chase Manhattan Bank in its capacity as
dollar swing-line agent for the Swing-Line Banks and each successor US
Swing-Line Agent appointed in accordance with Clause 18.12 (Resignation).
"VAT" means value added tax as provided for in the Value Added Tax Xxx 0000
and legislation (or purported legislation and whether delegated or
otherwise) supplemental to that Act or in any primary or secondary
legislation promulgated by the European Community or any official body or
agency of the European Community, and any tax similar or equivalent to
value added tax imposed by any country other than the United Kingdom and
any similar Tax replacing or introduced in addition to any of the same.
1.2 HEADINGS The headings in this Agreement are for convenience only and shall
be ignored in construing this Agreement.
1.3 INTERPRETATION In this Agreement (unless otherwise provided):
(a) words importing the singular shall include the plural and vice versa;
(b) references to Clauses and Schedules are to be construed as references
to the clauses of, and schedules to, this Agreement;
(c) references to any Financing Document or any other document shall be
construed as references to that Financing Document or that other
document, as amended, varied, novated or supplemented;
(d) references to any statute or statutory provision include any statute
or statutory provision which amends, extends, consolidates or replaces
the same, or which has been amended, extended, consolidated or
replaced by the same, and shall include any orders, regulations,
instruments or other subordinate legislation made under the relevant
statute;
(e) references to a document being "IN THE AGREED FORM" means that
document the form and content of which has been approved by the
Facility Agent and which has endorsed on it the words "in the agreed
form" and which is initialled by or on behalf of the Facility Agent
and a Borrower;
(f) references to "AFFILIATE" shall mean, in relation to any person, a
Subsidiary of that person or a holding company of that person or any
Subsidiary of that holding company;
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(g) references to "ASSETS" shall include revenues and property and the
right to revenues and property and rights of every kind, present,
future and contingent and whether tangible or intangible (including
uncalled share capital);
(h) the words "INCLUDING" and "IN PARTICULAR" shall be construed as being
by way of illustration or emphasis only and shall not be construed as,
nor shall they take effect as, limiting the generality of any
preceding words;
(i) the words "OTHER" and "OTHERWISE" shall not be construed ejusdem
generis with any foregoing words where a wider construction is
possible;
(j) references to a "PERSON" shall be construed so as to include that
person's assigns, transferees or successors in title and shall be
construed as including references to an individual, firm, partnership,
joint venture, company, corporation, body corporate, unincorporated
body of persons or any state or any agency of a state;
(k) references to time are, unless a contrary intention is expressed, to
London time.
1.4 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement.
2. FACILITIES
2.1 FACILITIES
2.1.1 Subject to the terms of this Agreement, the Banks agree to make
available to the Borrowers a Dollar denominated multi-currency
revolving loan facility in the maximum principal amount of
$2,000,000,000, incorporating swing-line facilities in an aggregate
amount of $450,000,000 to be provided by the Swing-Line Banks.
2.1.2 Notwithstanding any other term of this Agreement:
(a) no Bank shall be obliged to lend more than its Commitment and
the Original Dollar Amount of all Advances shall not, at
anytime, exceed the Total Commitments; and
(b) no Swing-Line Bank shall be obliged to lend more than its
Swing-Line Commitment and the Original Dollar Amount of all
Swing-Line Advances shall not, at any time, exceed the Total
Swing-Line Commitments.
2.1.3 The Facilities (other than the Swing-Line Facilities, which shall
be available in Dollars and Euros only) shall be available in
Dollars, the Committed Currencies and, subject to Clause 6
(Alternative Currencies), any Alternative Currency.
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2.2 OBLIGATIONS SEVERAL
2.2.1 The obligations of the Finance Parties under this Agreement are
several.
2.2.2 The failure of a Finance Party to carry out its obligations under
this Agreement shall not relieve any other Party of any of its
obligations under this Agreement.
2.2.3 None of the Finance Parties shall be responsible for the
obligations of any other Party under this Agreement.
2.3 RIGHTS SEVERAL
2.3.1 The rights of the Finance Parties under this Agreement are several.
All amounts due, and obligations owed, to each of them are separate
and independent debts or, as the case may be, obligations.
2.3.2 Each Finance Party may, except as otherwise stated in this
Agreement, separately enforce its rights under this Agreement.
2.4 LENDING OFFICES
2.4.1 Subject as provided in sub-clause 2.4.3 below, each Bank will
participate in each Advance through its Lending Office. If any Bank
changes its Lending Office for the purpose of this Agreement, that
Bank will notify the Facility Agent and the Borrowers' Agent
promptly of such change and, until it does so, the Facility Agent
and the Borrowers' Agent will be entitled to assume that no such
change has taken place.
2.4.2 Any Bank may nominate a different Lending Office for the purposes
of making a particular Advance or particular type of Advance to any
Borrower, in which event such Lending Office shall for the purposes
of this Agreement be its Lending Office for that Advance or that
type of Advance but not otherwise.
2.4.3 If any Bank changes its Lending Office or nominates a different
Lending Office for the purpose of the Facility and that change or
nomination would (but for this sub-clause 2.4.3 and as a result of
laws or regulations in force or known to becoming into force at
that time) result on the occasion of any subsequent payment to that
Bank in any amounts being required to be paid by any Borrower under
Clause 10.2 (Increased Costs) or 11.9 (Grossing-up), the provisions
of sub-clause 23.5.4 of Clause 23.5 (Conditions to Assignments and
Transfers) shall apply.
3. PURPOSE
3.1 PURPOSE
The Borrowers shall use the proceeds of all Advances for general
corporate and working capital purposes of the Borrowers, including
back-stop financing for commercial paper facilities of the Borrowers,
PROVIDED THAT no Swing-Line Advance shall be used to refinance another
Swing-Line Advance.
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3.2 NO MONITORING
None of the Finance Parties shall be obliged to investigate or monitor the
use or application of the proceeds of the Advances.
4. CONDITIONS PRECEDENT
Notwithstanding any other term of this Agreement, none of the Finance
Parties shall be under any obligation to make the Facility available to the
Borrowers unless the Facility Agent has notified the Borrowers' Agent and
the Banks that it has received all the documents listed in Part A of
Schedule 2 (Conditions Precedent) (in form and content satisfactory to the
Facility Agent).
5. DRAWDOWN
5.1 DRAWDOWN PERIOD
Subject to the terms of this Agreement, an Advance shall be made to a
Borrower at any time during the Drawdown Period when requested by means of
a Drawdown Notice in accordance with this Clause 5. At the close of
business on the last day of the Drawdown Period the undrawn amount of each
Bank's Commitment shall be automatically cancelled.
5.2 CONDITIONS TO EACH ADVANCE
Subject to sub-clause 5.7.1 of Clause 5.7 (Automatic Revolving Advance),
the obligation of each Bank to make available its Participation in an
Advance is subject to the conditions that on the date on which the relevant
Drawdown Notice is given and on the Drawdown Date:
5.2.1 the representations and warranties in sub-clauses 14.1.1 to 14.1.4
and 14.1.11 of Clause 14.1 (Representations and Warranties) are
correct and will be correct immediately after the Advance is made;
and
5.2.2 no Default or Potential Default has occurred and is continuing or
would occur on the making of the Advance.
5.3 DRAWDOWN NOTICE
5.3.1 Whenever a Borrower wishes a Revolving Advance to be made, it shall
give a duly completed Drawdown Notice to the Facility Agent to be
received not later than 10.00 a.m. on the third Business Day before
the Drawdown Date.
5.3.2 Whenever a Borrower wishes to draw down a Dollar Swing-Line
Advance, it shall give a duly completed Drawdown Notice to the US
Swing-Line Agent (copied to the Facility Agent) to be received in
New York not later than 10.00 a.m. (New York time) on the relevant
Drawdown Date.
5.3.3 Whenever a Borrower wishes to draw down a Euro Swing-Line Advance,
it shall give a duly completed Drawdown Notice to the Euro
Swing-Line Agent (copied to the Facility Agent) to be received not
later than 10.00 a.m. (Brussels time) on the relevant Drawdown
Date.
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5.3.4 A Drawdown Notice for a Revolving Advance may only be given on a
London Business Day.
5.3.5 A Drawdown Notice shall be irrevocable and the relevant Borrower
shall be obliged to borrow in accordance with its terms.
5.4 LIMITATIONS ON ADVANCES
The following limitations apply to Advances (including, for the avoidance
of doubt, Swing-Line Advances):
5.4.1 the Drawdown Date of an Advance shall be a Business Day falling
before the end of the Drawdown Period;
5.4.2 subject to sub-clause 5.4.4 of this Clause 5.4, the principal
amount of an Advance to be denominated in Dollars shall be:
(a) a minimum of $50,000,000; or
(b) in the case of a Revolving Advance, the amount of the
Available Revolving Facility or, in the case of a Swing-Line
Advance, the Available Swing-Line Facility;
5.4.3 subject to sub-clause 5.4.4 of this Clause 5.4, the principal
amount of an Advance to be denominated in an Alternative Currency
shall be:
(a) in an Original Dollar Amount of at least US$50,000,000 (and a
round amount in that currency as the Facility Agent or, in the
case of a Euro Swing-Line Advance, the Euro Swing-Line Agent
and the relevant Borrower may agree); or
(b) in the case of a Revolving Advance, in an Original Dollar
Amount equal to the Available Revolving Facility or, in the
case of a Euro Swing-Line Advance, in an Original Dollar
Amount equal to the Available Swing-Line Facility;
5.4.4 no Advance (including, for the avoidance of doubt a Swing-Line
Advance) shall be made if the making of that Advance would result
in the aggregate Original Dollar Amount of all Advances (including,
for the avoidance of doubt Swing-Line Advances) exceeding the Total
Commitments;
5.4.5 no Swing-Line Advance shall be made if the making of that
Swing-Line Advance would result in the aggregate Original Dollar
Amount of all Swing-Line Advances exceeding the Total Swing-Line
Commitments;
5.4.6 no more than 10 Revolving Advances and 10 Swing-Line Advances may
be outstanding at any one time; and
5.4.7 in the case of an Advance denominated in an Alternative Currency
(other than a Committed Currency), no such Advance shall be made if
the requirements of Clause 6 (Alternative Currencies) are not met.
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5.5 NOTIFICATION TO BANKS AND AGENTS
Each Agent shall promptly notify each Bank or, as the case may be, each
Swing-Line Bank and, in any case, the other Agents of the details of each
Drawdown Notice received by it.
5.6 PARTICIPATIONS
5.6.1 Subject to the terms of this Agreement, each Bank acting through
its Lending Office shall make available to the Facility Agent or,
in relation to the Swing-Line Facilities, the Euro Swing-Line Agent
or, as the case may be, the US Swing-Line Agent on the Drawdown
Date for an Advance an amount equal to its Participation in that
Advance and in the currency specified in the Drawdown Notice for
that Advance.
5.6.2 For the purposes of sub-clause 5.6.1:
(a) the Participation of a Bank in a Revolving Advance shall be
the proportion borne by that Bank's Available Commitment to
the Available Revolving Facility on the Drawdown Date of that
Revolving Advance; and
(b) the Participation of a Swing-Line Bank in a Swing-Line Advance
shall be the proportion borne by that Swing-Line Bank's
Available Swing-Line Commitment to the Available Swing-Line
Facility on the Drawdown Date of that Swing-Line Advance.
5.7 AUTOMATIC REVOLVING ADVANCE
5.7.1 In the event that a Borrower does not repay a Swing-Line Advance in
full on its Repayment Date, on the Business Day immediately
following such Repayment Date, such Borrower shall be deemed to
have served a Drawdown Notice under Clause 5.3 (Drawdown Notice)
for a Revolving Advance in an amount equal to such Swing-Line
Advance denominated in the same currency as such Swing-Line Advance
and with an Interest Period of one month for the purpose of
repaying such Swing-Line Advance and such Revolving Advance shall,
subject to Clause 6 (Alternative Currencies) be made on the third
Business Day thereafter as if such Drawdown Notice had been served
by such Borrower under Clause 5.3 (Drawdown Notice) but on the
basis that the provisions of Clause 5.2 (Conditions to Each
Advance) will not apply to such Revolving Advance.
5.7.2 The Facility Agent is authorised by the Parties to apply the
proceeds of any Revolving Advance made pursuant to Clause 5.7.1 in
repayment of the relevant Swing-Line Advance.
6. ALTERNATIVE CURRENCIES
6.1 REQUESTS FOR ALTERNATIVE CURRENCY
Subject to Clause 6.2, a Borrower may request in a Drawdown Notice that a
Revolving Advance be denominated in an Alternative Currency.
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6.2 AVAILABILITY
A Borrower may request that a Revolving Advance be denominated in Dollars
or an Alternative Currency and that a Swing-Line Advance be denominated in
Dollars or Euro, PROVIDED THAT (other than in respect of a request for a
Committed Currency) the Facility Agent has confirmed to that Borrower that
the Alternative Currency is available for drawing under the Facility.
6.3 NOTIFICATION TO BANKS
Each Agent shall promptly notify each Bank or, as the case may be, each
Swing-Line Bank and, in any case, the other Agents of the currency and
Original Dollar Amount of each Revolving Advance or, as the case may be,
Swing-Line Advance to be denominated in an Alternative Currency.
6.4 NO ALTERNATIVE CURRENCY
If, no later than 5.00 p.m. on the third Business Day before the first day
of an Interest Period in relation to a Revolving Advance which is proposed
to be denominated in an Alternative Currency (other than a Committed
Currency), a Bank notifies the Facility Agent that:
6.4.1 the proposed Alternative Currency is not readily available to it in
the amount required to fund its Participation in that Revolving
Advance; or
6.4.2 compliance with its obligation to participate in a Revolving
Advance in the proposed Alternative Currency would contravene a law
or a regulation or guideline (having the force of law or being of a
type which banks in the relevant interbank market customarily
comply) applicable to it,
the Facility Agent shall notify the relevant Borrower and the Banks by 9.00
a.m. on the second Business Day before the first day of the Interest Period
relating to the Revolving Advance. In this event, the relevant Borrower and
the Banks may agree that the Revolving Advance shall not be made, PROVIDED
THAT, in the absence of such agreement by 11.00 a.m. on the same day, the
Revolving Advance shall be made and either (at the option of the relevant
Borrower) (a) the Revolving Advance will be denominated in its entire
amount in Dollars or a Committed Currency (as the relevant Borrower shall,
by notice served on the Facility Agent prior to such time, select) or (b)
each Bank will participate in the Revolving Advance in the chosen
Alternative Currency, save that each Bank that gives notice pursuant to
this Clause 6.4 will participate in the Revolving Advance in Dollars or a
Committed Currency (as the relevant Borrower shall, by notice served on the
Facility Agent prior to such time, select) in an amount equal to that
Bank's proportion of that Revolving Advance and its participation will be
treated as a separate Advance denominated in Dollars or, as the case may
be, the relevant Committed Currency during that Interest Period (with an
Interest Period as set out in the relevant Drawing Notice).
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7. INTEREST
7.1 INTEREST RATE
7.1.1 Interest shall accrue on each Revolving Advance from and including
the relevant Drawdown Date to but excluding the date the Advance is
repaid at the rate determined by the Facility Agent to be the
aggregate of:
(a) the Margin;
(b) LIBOR or, in the case of a Revolving Advance denominated in
Euro, EURIBOR; and
(c) the Additional Cost Rate (if any).
7.1.2 Interest shall accrue on each Swing-Line Advance denominated in
Dollars at the Dollar Swing-Line Rate from time to time from and
including the relevant Drawdown Date to but excluding the date that
Swing-Line Advance is repaid.
7.1.3 Interest shall accrue on each Swing-Line Advance denominated in
Euro at the Euro Swing-Line Rate from time to time from and
including the relevant Drawdown Date to but excluding the date that
Swing-Line Advance is repaid.
7.2 INTEREST PERIODS
7.2.1 Interest payable on each Revolving Advance shall be calculated by
reference to Interest Periods of 1, 2, 3 or 6 months' duration (or
such other Interest Period as the Facility Agent, acting on the
instructions of the Majority Banks, may allow) and interest payable
on each Swing-Line Advance shall be calculated by reference to
Interest Periods of up to 10 Business Days (or such other Interest
Period as the relevant Agent, acting on the instructions, in each
case of all the Swing-Line Banks, may allow) as selected by the
relevant Borrower in accordance with this Clause 7.2.
7.2.2 The relevant Borrower shall select an Interest Period for an
Advance in the Drawdown Notice.
7.2.3 If the relevant Borrower fails to select an Interest Period for an
Advance in accordance with sub-clause 7.2.2 of this Clause 7.2,
that Interest Period shall, subject to the other provisions of this
Clause 7, in relation to Revolving Advances be 1 month and, in
relation to Swing-Line Advances, be 4 Business Days.
7.2.4 If an Interest Period in respect of a Revolving Advance would
otherwise end on a day which is not a Business Day, that Interest
Period shall instead end on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day (if
there is not).
7.2.5 If an Interest Period in respect of a Revolving Advance begins on
the last Business Day in a calendar month or on a Business Day for
which there is no numerically corresponding day in the calendar
month in which that Interest
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Period is to end, it shall end on the last Business Day in that
later calendar month.
7.2.6 If an Interest Period in respect of any Advance would otherwise
extend beyond the Termination Date, it shall be shortened so that
it ends on the Termination Date.
7.3 ABSENCE OF QUOTATIONS
7.3.1 Subject to Clause 10.3 (Market Disruption), in relation to a
Revolving Advance and a particular Interest Period therefor, if
LIBOR or, as the case may be, EURIBOR is to be determined by
reference to the relevant Reference Banks but any such Reference
Bank does not supply a quotation by the specified time on the
applicable Rate Fixing Day, the applicable LIBOR or EURIBOR shall
be determined on the basis of the quotations of the remaining Euro
Reference Banks or LIBOR Reference Banks, as the case may be.
7.3.2 In relation to a Euro Swing-Line Advance, if a Euro Reference Bank
does not supply a quotation for determining the Euro Swing-Line
Rate by the specified time on the applicable Rate Fixing Day, the
Euro Swing-Line Rate shall be determined on the basis of the
quotations of the remaining Euro Reference Banks.
7.4 DEFAULT INTEREST
7.4.1 If a Borrower fails to pay any amount payable under any Financing
Document (other than in relation to a Swing-Line Advance) on the
due date, it shall pay default interest on the overdue amount from
the due date to the date of actual payment calculated by reference
to successive Interest Periods (each of such duration as the
Facility Agent may acting reasonably select and the first beginning
on the relevant due date) at the rate per annum being the aggregate
of (a) 1.00 per cent. per annum, (b) the Margin, (c) LIBOR or, in
the case of any sum denominated in Euros, EURIBOR and (d) the
Additional Cost Rate (if any).
7.4.2 If a Borrower fails to pay any amount payable in relation to a
Swing-Line Advance, it shall pay default interest on the overdue
amount from the due date to the date of actual payment at the rate
per annum being the aggregate of (a) 1.00 per cent. per annum and
(b) the Dollar Swing-Line Rate or, in the case of a Swing-Line
Advance denominated in Euros, the Euro Swing-line Rate.
7.4.3 So long as the overdue amount remains unpaid, the default interest
rate shall be recalculated in accordance with the provisions of
this Clause 7.4 on the last day of each such Interest Period and
any unpaid interest shall be compounded at the end of each Interest
Period.
7.5 CALCULATION AND PAYMENT OF INTEREST
7.5.1 At the beginning of each Interest Period, the relevant Agent shall
notify the Banks or, as the case may be, the Swing-Line Banks and
the relevant
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Borrower of the duration of that Interest Period and the rate and
amount of interest payable for the Interest Period (but in the case
of any default interest calculated under Clause 7.4 (Default
Interest), any such notification need not be made more frequently
than weekly). Each notification shall set out in reasonable detail
the basis of computation of the amount of interest payable.
7.5.2 Interest due from the Borrowers under this Agreement shall:
(a) accrue from day to day at the rate calculated under this
Clause 7;
(b) except as otherwise provided in this Agreement, be paid by the
relevant Borrower to, in the case of Revolving Advances, the
Facility Agent, or, in the case of Swing-Line Advances, to the
Euro Swing-Line Agent or, as the case may be, the US
Swing-Line Agent (for the account of the Banks, the Swing-Line
Banks, or the relevant Agent as the case may be) in arrear on
the Repayment Date relating to each Advance, PROVIDED THAT for
any Interest Period which is for longer than 6 months, the
relevant Borrower shall pay interest 6 monthly in arrear as
well as on the relevant Repayment Date;
(c) be calculated on the basis of the actual number of days
elapsed and a 360 day year or a 365 day year in the case of
interest on a Revolving Advance denominated in Sterling or, if
different, such number of days as is market practice for the
relevant currency; and
(d) be payable both before and after judgement.
7.6 AGENT'S DETERMINATION
The determination by the relevant Agent of any interest payable under this
Clause 7 shall be conclusive and binding on the relevant Borrower in the
absence of manifest error.
8. REPAYMENT AND PREPAYMENT
8.1 REPAYMENT
8.1.1 Subject to sub-clause 8.1.2 of this Clause 8, the relevant Borrower
shall repay each Revolving Advance and each Swing-Line Advance in
full on the Repayment Date relating to that Revolving Advance or,
as the case may be, Swing-Line Advance.
8.1.2 If all or part of an existing Revolving Advance made to a Borrower
is to be repaid from the proceeds of all or part of a new Revolving
Advance to be made to that Borrower and denominated in the same
currency as that existing Revolving Advance then, as between each
Bank and that Borrower, the amount to be repaid by that Borrower
shall be set off against the amount to be advanced by that Bank in
relation to the new Revolving Advance and the party to whom the
smaller amount is to be paid shall pay to the other party a sum
equal to the difference between the two amounts.
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8.2 VOLUNTARY PREPAYMENT
8.2.1 The Borrower of a Revolving Advance may, by giving the Facility
Agent not less than 3 Business Days' prior notice, prepay the whole
or part of that Revolving Advance (but if in part, in a minimum
Original Dollar Amount of $10,000,000 and an Original Dollar Amount
integral multiple of $10,000,000, rounded as the Facility Agent
may, after consultation with the relevant Borrowers, direct).
8.2.2 Any notice of prepayment shall be irrevocable, shall specify the
date on which the prepayment is to be made and the amount of the
prepayment, and shall oblige the relevant Borrower to make that
prepayment. The Facility Agent shall promptly notify the Banks of
receipt of any such notice.
8.3 ACCRUED INTEREST AND BROKEN FUNDING COSTS
Any prepayment shall be made together with accrued interest on the amount
prepaid and any amounts payable under Clause 24.1 (Breakage Costs
Indemnity).
8.4 EFFECT OF REPAYMENT OR PREPAYMENT
Any amount repaid or prepaid may, subject to the provisions of this
Agreement, be re-borrowed.
8.5 LIMITATION
The Borrowers may not repay or prepay all or any part of the Loan except as
expressly provided in this Agreement.
9. CANCELLATION
9.1 CANCELLATION
The Borrowers' Agent may during the Drawdown Period, by giving the Facility
Agent not less than 10 Business Days' prior notice, cancel all or part of
the Available Revolving Facility or the Available Swing-Line Facility (but
if in part, in a minimum amount of $50,000,000 and an integral multiple of
$50,000,000).
9.2 LIMITATION
The Borrowers' Agent may not cancel the Available Revolving Facility if it
would result in:
9.2.1 the Available Revolving Facility being less than the Available
Swing Line Facility; and/or
9.2.2 the Commitment of any Bank (which is also a Swing-Line Bank) being
less than the Swing-Line Commitment of such Bank (in its capacity
as a Swing-Line Bank).
9.3 NOTICE
Any notice of cancellation shall be irrevocable and shall specify the date
on which the cancellation shall take effect and the amount of the
cancellation. The Facility Agent shall promptly notify the Banks and the
other Agents of receipt of any such notice.
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9.4 EFFECT OF CANCELLATION
The Borrowers may not borrow any part of the Facility which has been
cancelled. Any cancellation made in accordance with this Clause 9:
9.4.1 of the Available Swing-Line Facility shall reduce the Swing-Line
Commitments rateably; and
9.4.2 of the Available Revolving Facility shall reduce the Commitments
rateably (but not the Swing-Line Commitments unless there is a
corresponding cancellation of the Available Swing-Line Facility).
9.5 LIMITATION
The Borrowers may not cancel all or part of the Facility except as
expressly provided in this Agreement.
10. CHANGES IN CIRCUMSTANCES
10.1 ILLEGALITY
If it is or becomes illegal for a Bank to maintain its Commitment or to
continue to make available or fund its Participation in any Advance, then:
10.1.1 that Bank shall notify the Facility Agent and the relevant Borrower
or Borrowers; and
10.1.2 the Commitment of that Bank shall be cancelled immediately; and
10.1.3 the relevant Borrower or Borrowers shall prepay to the Facility
Agent or, in the case of any Participation in Swing-Line Advances,
the relevant Swing-Line Agent (for the account of that Bank) that
Bank's Participation in all Advances (together with accrued
interest on the amount prepaid and all other amounts owing to that
Bank under this Agreement) within 5 Business Days of demand by that
Bank (or, if permitted by the relevant law and if requested by the
relevant Borrower, on the next Repayment Date of the relevant
Advances).
Any such prepayment under sub-clause 10.1.3 of this Clause 10.1 shall be
subject to Clause 24.1 (Breakage Costs Indemnity).
10.2 INCREASED COSTS
10.2.1 If, after the date of this Agreement, a Change occurs which causes
an Increased Cost (as defined in sub-clause 10.2.3 of this Clause
10.2) to a Bank (or any company of which that Bank is a Subsidiary)
then the relevant Borrower shall pay (as additional interest) to
the Facility Agent (for the account of that Bank) within 10
Business Days of demand all amounts which that Bank certifies to be
necessary to compensate that Bank (or any company of which that
Bank is a Subsidiary) for the Increased Cost.
10.2.2 Any demand made under sub-clause 10.2.1 of this Clause 10.2 shall
be made by the relevant Bank through the Facility Agent or, in the
case of a demand relating to a Swing-Line Advance, the relevant
Swing-Line Agent and shall set
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out in reasonable detail so far as is practicable the basis of
computation of the Increased Cost.
10.2.3 In this Clause 10.2:
"INCREASED COST" means any cost to, or reduction in the amount
payable to, or reduction in the return on capital or regulatory
capital achieved by, a Bank (or any company of which that Bank is a
Subsidiary) to the extent that it arises, directly or indirectly,
as a result of the Change and is attributable to the Commitment or
Participation in any Advance of that Bank or the funding of that
Bank's Participation in any Advance including any liability to make
any payment on account of Tax or otherwise (other than Tax on
Overall Net Income) on or calculated by reference to the amount of
such Bank's Participation in any Advance and/or any sum received or
receivable by it hereunder.
"TAX ON OVERALL NET INCOME" means, in relation to a Bank, Tax
(other than Tax deducted or withheld from any payment) imposed on
the net income of that Bank by the jurisdiction in which its
Lending Office or its head office is situated.
10.2.4 None of the Borrowers shall be obliged to make a payment in respect
of an Increased Cost under this Clause 10.2 if and to the extent
that the Increased Cost has been compensated for by the operation
of Clause 11.9 (Grossing-up) or the payment of the Additional Cost
Rate.
10.2.5 If any of the Borrowers is required to pay any amount to a Bank
under this Clause 10.2, then, without prejudice to that obligation
and so long as the circumstances giving rise to the relevant
Increased Cost are continuing and subject to the affected Borrowers
giving the Facility Agent and, if appropriate, the relevant
Swing-Line Agent and that Bank not less than 5 Business Days' prior
notice (which shall be irrevocable), the affected Borrowers may
prepay all, but not part, of that Bank's Participation in the
Advances together with accrued interest on the amount prepaid. Any
such prepayment shall be subject to Clause 24.1 (Breakage Costs
Indemnity). On any such prepayment the Commitment and/or, as the
case may be, Swing-Line Commitment of the relevant Bank shall be
automatically cancelled.
10.2.6 In the event that the affected Borrowers over-compensate a Bank
under this Clause 10.2, such Bank shall promptly return to the
relevant Borrower or Borrowers an amount equal to the amount of
over-compensation.
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10.3 MARKET DISRUPTION
10.3.1 If, in relation to a Revolving Advance and a particular Interest
Period therefor selected by the relevant Borrower in accordance
with sub-clause 7.2.2 of Clause 7.2 (Interest Periods):
(a) the Facility Agent determines that, because of circumstances
affecting the relevant interbank market generally, reasonable
and adequate means do not exist for ascertaining LIBOR or, as
the case may be, EURIBOR for that Revolving Advance for that
Interest Period; or
(b) no Reference Bank has supplied a quotation in accordance with
the definition of LIBOR or, as the case may be, EURIBOR; or
(c) the Facility Agent has been notified by a group of Banks whose
Commitments together exceed 51 per cent. of the Total
Commitments that in their reasonable opinion matching deposits
may not be available to them in the relevant interbank market
in the ordinary course of business to fund their
Participations in that Advance for that Interest Period,
the Facility Agent shall promptly notify the relevant Borrower
and the Banks of that event (such notice being a "MARKET
DISRUPTION NOTICE").
10.3.2 If a Market Disruption Notice applies to a proposed Revolving
Advance, that Revolving Advance shall not be made unless the
relevant Borrower so requests. The Facility Agent and the relevant
Borrower shall immediately enter into negotiations in good faith
for a period of not more than 30 days with a view to agreeing to a
substitute basis for calculating the interest rate for the
Revolving Advance or for funding the Revolving Advance (whether in
Dollars or another currency). Any substitute basis agreed by the
Facility Agent (with the consent of all the Banks) and the relevant
Borrower shall take effect in accordance with its terms and be
binding on all the Parties.
10.3.3 If a Market Disruption Notice applies to an outstanding Revolving
Advance or a proposed Revolving Advance that the relevant Borrower
has requested shall be made and, in each case, in respect of a
particular Interest Period, then:
(a) the Facility Agent and the relevant Borrower shall immediately
enter into negotiations in good faith for a period of not more
than 30 days with a view to agreeing a substitute basis for
calculating the rate of interest for the Revolving Advance
(whether in Dollars or another currency) for such Interest
Period;
(b) any substitute basis agreed under sub-clause 10.3.3(a) of this
Clause 10.3 by the Facility Agent (with the consent of all the
Banks) and the relevant Borrower shall take effect in
accordance with its terms and be binding on all the Parties;
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(c) if no substitute basis is agreed under sub-clause 10.3.3(a) of
this Clause 10.3, then, subject to sub-clause 10.3.4 of this
Clause 10.3, each Bank shall (through the Facility Agent)
certify 1 day before the first day of such Interest Period a
substitute basis for maintaining its Participation in the
Revolving Advance which shall reflect the cost to that Bank of
funding its Participation in the Revolving Advance from
whatever sources it selects plus the Margin; and
(d) each substitute basis so certified shall be binding on the
relevant Borrower and the certifying Bank and treated as part
of this Agreement.
10.3.4 So long as the circumstances giving rise to the Market Disruption
Notice continue and subject to the relevant Borrower giving the
Facility Agent and the Banks not less than 3 Business Days' prior
notice (which shall be irrevocable), the relevant Borrower may
prepay the Revolving Advance to which the Market Disruption Notice
applies together with accrued interest on the amount prepaid. Any
such prepayment shall be subject to Clause 24.1 (Breakage Costs
Indemnity).
10.3.5 If, in relation to a Euro Swing-Line Advance, none of the Euro
Reference Banks supplies a rate for the purposes of determining the
Euro Swing-Line Rate, the Euro Swing-Line Agent shall notify the
relevant Borrower and the Swing-Line Banks of that event and,
subject to sub-clause 10.3.6 of this Clause 10.3, such
Euro-Swing-Line Advance not be made and the Notice of Drawdown
pertaining thereto shall be cancelled.
10.3.6 If, within 1 hour of any notification referred to in sub-clause
10.3.5 of this Clause 10.3, the relevant Borrower has notified the
Euro Swing-Line Agent that it wishes such a Euro Swing-Line Advance
to be made, that Euro Swing-Line Advance shall be made and the rate
of interest applicable to that Euro Swing-Line Advance shall be
such rate that reflects the aggregate of (i) the cost of each
Swing-Line Bank of funding its Participation in that Euro
Swing-Line Advance from whatever sources it selects and (ii) 0.50%
per annum.
10.4 MITIGATION
If any circumstances arise in respect of any Bank which would, or upon the
giving of notice would, result in the operation of Clause 10.1
(Illegality), 10.2 (Increased Costs), 10.3 (Market Disruption) or 11.9
(Grossing-up) to the detriment of the relevant Borrower or Borrowers, then
that Bank shall:
10.4.1 promptly upon becoming aware of those circumstances and their
results, notify the Facility Agent and the relevant Borrower; and
10.4.2 in consultation with the Facility Agent and the relevant Borrower,
take all such steps as it determines are reasonably open to it to
mitigate the effects of those circumstances (including changing its
Lending Office or consulting with the relevant Borrower with a view
to transferring some or all of its rights and
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obligations under this Agreement to another bank or other financial
institution acceptable to the relevant Borrower) in a manner which
will avoid the circumstances in question and on terms acceptable to
the Facility Agent, the relevant Borrower and that Bank,
PROVIDED THAT no Bank shall be obliged to take any steps which in its
opinion would or might have an adverse effect on its business or
financial condition or the management of its Tax affairs or cause it to
incur any material costs or expenses.
10.5 CERTIFICATES
The certificate or notification of the Facility Agent or, as the case may
be, the relevant Bank as to any of the matters referred to in this Clause
10 shall be in reasonable detail and shall be prima facie evidence of the
matters to which they relate.
11. PAYMENTS
11.1 PLACE AND TIME
All payments by the Borrowers or a Bank under this Agreement shall in
respect of the Swing-Line Facilities be made to the Euro Swing-Line
Agent, or as the case may be, the US Swing-Line Agent and in all other
respects be made to the Facility Agent, in each case to the account of
the relevant Agent at such office or bank of the relevant Agent and at
such time as the relevant Agent may notify to the Borrowers or the Banks
for this purpose.
11.2 FUNDS
All payments to the Agents under this Agreement shall be made for value on
the due date in freely transferable and readily available funds.
11.3 DISTRIBUTION
11.3.1 Each payment received by the Agents under this Agreement for
another Party shall, subject to sub-clauses 11.3.2 and 11.3.3 of
this Clause 11.3, be made available by that Agent to that Party by
payment (on the date and in the currency and funds of receipt) to
its account with such office or bank as it may notify to that Agent
for this purpose by not less than 5 Business Days' prior notice.
11.3.2 An Agent may apply any amount received by it for the Borrowers in
or towards payment (on the date and in the currency and funds of
receipt) of any amount due from the Borrowers under this Agreement
or in or towards the purchase of any amount of any currency to be
so applied.
11.3.3 Where a sum is to be paid to an Agent under this Agreement for
another Party, that Agent is not obliged to pay that sum to that
Party until it has established that it has actually received that
sum. That Agent may, however, assume that the sum has been paid to
it in accordance with this Agreement, and, in reliance on that
assumption, make available to that Party a corresponding amount. If
the sum has not been made available but that Agent has paid a
corresponding amount to another Party, that Party shall immediately
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on demand by that Agent refund the corresponding amount together
with interest on that amount from the date of payment to the date
of receipt, calculated at a rate determined by that Agent to
reflect its cost of funds.
11.4 BUSINESS DAYS
If a payment under this Agreement is due on a day which is not a Business
Day, the due date for that payment shall instead be:
11.4.1 in relation to the Swing-Line Facilities the next Business Day; and
11.4.2 for all other purposes, the next Business Day in the same calendar
month (if there is one) or the preceding Business Day (if there is
not).
11.5 CURRENCY
All payments under this Agreement relating to costs, losses, expenses or
Taxes shall be made in the currency in which the relative costs, losses,
expenses or Taxes were incurred. Any other amount payable under this
Agreement shall, except as otherwise provided, be made in Dollars.
11.6 ACCOUNTS AS EVIDENCE
Each Bank shall maintain in accordance with its usual practice an account
which shall, as between the Borrowers and that Bank and, in the absence of
manifest error, be prima facie evidence of the amounts from time to time
advanced by, owing to, paid and repaid to that Bank under this Agreement.
11.7 PARTIAL PAYMENTS
11.7.1 If an Agent receives a payment insufficient to discharge all the
amounts then due and payable by a Borrower under this Agreement,
that Agent shall apply that payment towards the obligations of the
Borrowers under this Agreement in the following order:
(a) first, in or towards payment pro rata of any unpaid costs and
expenses of the Agents under this Agreement;
(b) second, in or towards payment pro rata of any accrued interest
due but unpaid under this Agreement;
(c) third, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(d) fourth, in or towards payment pro rata of any other sum due
but unpaid under this Agreement.
11.7.2 The Facility Agent shall, if so directed by all the Banks, vary the
order set out in sub-clauses 11.7.1(b) to 11.7.1(d) of this Clause
11.7.
11.7.3 Sub-clauses 11.7.1 and 11.7.2 of this Clause 11.7 shall override
any appropriation made by any Borrower.
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11.8 SET-OFF AND COUNTERCLAIM
All payments by a Borrower under this Agreement shall be made without
set-off or counterclaim.
11.9 GROSSING-UP
11.9.1 Subject to sub-clause 11.9.2 of this Clause 11.9, all sums payable
to any Finance Party pursuant to or in connection with any
Financing Document shall be paid in full free and clear of all
deductions or withholdings whatsoever except only as may be
required by law.
11.9.2 Subject to sub-clause 23.5.4 of Clause 23 (Assignments and
Transfers) if any deduction or withholding is required by law in
respect of any payment due from a Borrower to any Finance Party
pursuant to or in connection with any Financing Document that
Borrower shall:
(a) ensure or procure that the deduction or withholding is made
and that it does not exceed the minimum legal requirement
therefor;
(b) pay, or procure the payment of, the full amount deducted or
withheld to the relevant Taxation or other authority in
accordance with the applicable law;
(c) increase the payment in respect of which the deduction or
withholding is required so that the net amount received by the
payee (which expression when used in this sub-clause 11.9.2
shall mean any Finance Party) after the deduction or
withholding (and after taking account of any further deduction
or withholding which is required to be made as a consequence
of the increase) shall be equal to the amount which the payee
would have been entitled to receive in the absence of any
requirement to make any deduction or withholding; and
(d) upon request by any payee, promptly deliver or procure the
delivery to the relative payee of receipts reasonably
evidencing each deduction or withholding which has been made.
11.9.3 If any Agent is obliged to make any deduction or withholding from
any payment to any Bank (an "AGENCY PAYMENT") which represents an
amount or amounts received by that Agent from a Borrower under any
Financing Document, that Borrower shall, after being notified by
the relevant Bank of its intention to make a claim under this
sub-clause 11.9.3, pay directly to that Bank such sum (an "AGENCY
COMPENSATING SUM") as shall, after taking into account any
deduction or withholding which that Borrower is obliged to make
from the Agency Compensating Sum, enable that Bank to receive, on
the due date for payment of the Agency Payment, an amount equal to
the Agency Payment which that Bank would have received in the
absence of any obligation to make any deduction or withholding.
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11.9.4 If any Bank determines, in its absolute discretion, that it has
received, recovered, realised, utilised and retained a Tax benefit
by reason of any deduction or withholding in respect of which a
Borrower has made an increased payment or paid an Agency
Compensating Sum under this Clause 11.9, that Bank shall, PROVIDED
THAT each Finance Party has received all amounts which are then due
and payable by the Borrowers under any Financing Document, pay to
such Borrower (to the extent that that Bank can do so without
prejudicing the amount of the benefit or repayment and the right of
that Bank to obtain any other benefit, relief or allowance which
may be available to it) such amount, if any, as that Bank, in its
absolute discretion shall determine, will leave that Bank in no
worse position than it would have been in if the deduction or
withholding had not been required, PROVIDED THAT:
(a) each Bank shall have an absolute discretion as to the time at
which and the order and manner in which it realises or
utilises any Tax benefit and shall not be obliged to arrange
its business or its Tax affairs in any particular way in order
to be eligible for any credit or refund or similar benefit;
(b) no Bank shall be obliged to disclose any information regarding
its business, Tax affairs or Tax computations;
if a Bank has made a payment to a Borrower pursuant to this Clause
11.9.4 on account of any Tax benefit and it subsequently transpires
that that Bank did not receive that Tax benefit, or received a
lesser Tax benefit, that Borrower shall, on demand, pay to that
Bank such sum as that Bank may determine as being necessary to
restore its after-tax position to that which it would have been had
no adjustment under this sub-clause 11.9.4 been made, PROVIDED THAT
such sum shall not exceed the amount paid to that Borrower by the
Bank pursuant to this sub-clause 11.9.4.
11.9.5 No Bank shall be obliged to make any payment under sub-clause
11.9.4 of this Clause 11.9 if, by doing so, it would contravene the
terms of any applicable law or any notice, direction or requirement
of any governmental or regulatory authority (whether or not having
the force of law).
11.9.6 If a Borrower is required to make an increased payment for the
account of a Bank under sub-clause 11.9.2 or 11.9.3 of this Clause
11.9, then, without prejudice to that obligation and so long as
such requirement exists and subject to the relevant Borrower giving
the Facility Agent and that Bank not less than 5 Business Days'
prior notice (which shall be irrevocable), that Borrower may prepay
all, but not part, of that Bank's Participation in the Advances
together with accrued interest on the amount prepaid. Any such
prepayment shall be subject to Clause 24.1 (Breakage Costs
Indemnity). On any such prepayment the Commitment of the relevant
Bank shall be automatically cancelled.
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11.9.7 If, and to the extent that, the effect of Clause 10.2 (Increased
Costs) (such as it relates to Tax) or sub-clause 11.9.2 of Clause
11.9 (Grossing-up) can be mitigated by virtue of the provisions of
any double tax treaty or convention relating to the relief from
double taxation on income and capital (a "DOUBLE TAX CONVENTION")
(whether by a claim to repayment of any Tax, a claim to make
payments without any deduction or withholding or otherwise) each
Bank agrees to do all such things as are reasonably requested by
the Borrowers' Agent with a view to submitting any forms, documents
or completing any reasonable procedural formalities within a
reasonable time after its receipt from the Borrowers' Agent of a
notice requesting it to do so for the purpose of ensuring the
application of such Double Tax Convention, PROVIDED THAT no Bank
shall be required pursuant to this sub-clause 11.9.7 to take any
action which would entail the incurring of any cost or liability
(other than reasonable internal administrative costs in completing
and submitting the relevant forms or documents).
11.9.8 No additional amount will be payable to a Bank under Clause 10.2
(Increased Costs) or this Clause 11.9 (Grossing up) in respect of
any deduction, withholding or payment of Tax to the extent that
such additional amount would not be payable if that Bank had
complied with its obligations under sub-clause 11.9.7, (unless the
reason that Borrower is obliged to make such deduction, withholding
or payment of Tax is due to a change in any law or regulation, or
in the interpretation or application thereof, or in any practice or
concession of any relevant taxation authority after the date that
Bank became party to this Agreement).
11.10 Each Bank confirms to the Borrowers that, as at the date such Bank
becomes a Party, save to the extent it has notified the Facility
Agent and the Borrowers' Agent in writing otherwise, it is:
11.10.1 a person to whom payments by a Borrower (other than a Borrower
incorporated in Italy) may be made without deduction or withholding
for or on account of taxes whether by reason of an applicable
taxation treaty between the country in which the relevant Borrower
is incorporated and the country in which the relevant bank is, or
is treated as, resident or carrying on business or otherwise; and
11.10.2 a person to whom payments by a Borrower incorporated in Italy may
be made without any deduction or withholding for or on account of
taxes other than up to a maximum rate of 12.5%, whether by reason
of an applicable taxation treaty between Italy and the country in
which the relevant bank is, or is treated as, resident or carrying
on business or otherwise,
and, if it is able to confirm that sub-clause 11.10.1 and 11.10.2 applies
on the date on which such Bank becomes a Party, it shall notify the
Facility Agent and the Borrowers' Agent in writing should it become aware
that the relevant sub-clause subsequently ceases to be correct.
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12. CO-BORROWER'S COVENANTS
12.1 FIAT AS A CO-BORROWER
In respect of each Advance made under this Agreement to a Borrower
(other than Fiat) (each a "RELEVANT BORROWER"), Fiat shall be, and
hereby covenants and agrees to be, liable (on a joint and several basis
with the Relevant Borrower) for all of the obligations and liabilities
of the Relevant Borrower relating to or arising in connection with such
Advance and, subject to and with the benefit of the provisions in Clause
12.2 (Co-Borrowing Provisions), Fiat hereby unconditionally and
irrevocably covenants to the Finance Parties that if, for any reason, a
Relevant Borrower does not pay any sum from time to time payable by it
to any Finance Party under this Agreement (including any other amount of
whatever nature or additional amounts which may become payable under any
of the foregoing) as and when the same shall become due and payable
under any of the foregoing, it shall, within 5 Business Days of demand
(in writing) on it (which demand shall provide a confirmation by the
Facility Agent that the Relevant Borrower has failed to pay such sum
within any applicable grace periods) pay in the currency in which the
same falls due for payment under the terms of this Agreement, all moneys
which are now or at any time hereafter shall have become due or owing by
such Relevant Borrower to any or all of the Finance Parties pursuant to
this Agreement.
12.2 CO-BORROWING PROVISIONS
12.2.1 The covenant (the "COVENANT") given by Fiat pursuant to this Clause
12 is a continuing security and shall remain in full force and
effect until all moneys, obligations and liabilities referred to in
Clause 12.1 (Fiat as a Co-Borrower) have been paid, discharged or
satisfied in full notwithstanding the liquidation or other
incapacity or any change in the constitution of the Relevant
Borrowers or in the name and style of the Relevant Borrowers or any
settlement of account or other matter whatsoever.
12.2.2 The Covenant is in addition to and shall not merge with or
otherwise prejudice or affect or be prejudiced by any other right,
remedy, guarantee, indemnity or security and may be enforced
without first having recourse to the same or any other xxxx, note,
mortgage, charge, pledge or lien now or hereafter held by or
available to any Finance Party.
12.2.3 Notwithstanding that the Covenant ceases to be continuing for any
reason whatever any of the Finance Parties may continue any
accounts of the Relevant Borrowers or open one or more new accounts
and the liability of Fiat hereunder shall not be reduced or
affected by any subsequent transactions or receipts or payments
into or out of any such accounts.
12.2.4 Fiat hereby unconditionally and irrevocably agrees that any sum
expressed to be payable by the Relevant Borrowers under this
Agreement but which is for any reason (whether or not now known or
becoming known to the Relevant Borrowers, Fiat or any Finance
Party) not recoverable from Fiat on the basis of the provisions of
this Clause 12 will nevertheless be recoverable from it as
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if it were the sole principal debtor and will be paid by it to the
Finance Parties on demand. This indemnity constitutes a separate
and independent obligation from the other obligations in the
Covenant, gives rise to a separate and independent cause of action
and will apply irrespective of any indulgence granted by all or any
of the Finance Parties.
12.2.5 Fiat will be liable under the Covenant as if it were the sole
principal debtor and not merely a surety. The liability of Fiat
shall not be affected nor shall the Covenant be discharged or
diminished by reason of anything which would not discharge it or
affect its liability if it were the sole principal debtor,
including:
(a) any time, indulgence, waiver or consent at any time given to
the Relevant Borrowers or any other person;
(b) any amendment to the Financing Documents;
(c) the making or absence of any demand on the Relevant Borrowers
or any other person for payment;
(d) the enforcement or absence of enforcement of any of the
provisions of this Agreement;
(e) the release of any guarantee or indemnity;
(f) the dissolution, amalgamation, reconstruction or
reorganisation of the Relevant Borrowers or any other person;
(g) the illegality, invalidity or unenforceability of or any
defect in any provision of the Financing Documents or any of
the Relevant Borrowers' obligations under any of them; or
(h) any other act, event or omission which but for this sub-clause
12.2.5 might operate to discharge, impair or otherwise affect
the obligations expressed to be assumed by Fiat in this
Agreement or any of the rights, powers or remedies conferred
upon the Finance Parties by the Covenant or by law.
12.2.6 Fiat agrees that, during the Facility Period, it will not exercise
any right which it may at any time have by reason of the
performance by it of its obligations hereunder:
(a) to be indemnified by the Relevant Borrowers;
(b) to claim any contribution from any guarantor of the Relevant
Borrowers' obligations under or in respect of the Facility;
(c) to take the benefit (in whole or in part) of any security
enjoyed in connection with the Facility by any Finance Party;
or
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(d) to be subrogated to the rights of any Finance Party against
the Relevant Borrowers in respect of amounts paid by Fiat
under this Covenant.
12.2.7 Any settlement or discharge between Fiat and the Finance Parties or
any of them shall be conditional upon no payment to the Finance
Parties or any of them by the Relevant Borrowers or any other
person on a Relevant Borrower's behalf being avoided or reduced by
virtue of any laws relating to bankruptcy, insolvency, liquidation
or similar laws of general application for the time being in force
and, in the event of any such payment being so avoided or reduced,
the Finance Parties shall be entitled to recover the amount by
which such payment is so avoided or reduced from Fiat subsequently
as if such settlement or discharge had not occurred, PROVIDED THAT
such recovery is not contrary to any law applicable thereto.
12.2.8 If any payment received by a Finance Party is, on the subsequent
liquidation or insolvency of a Relevant Borrower, avoided under any
laws relating to liquidation or insolvency, such payment will not
be considered as having discharged or diminished the liability of
Fiat and the Covenant will continue to apply as if such payment had
at times remained owing by that Relevant Borrower.
12.2.9 The Finance Parties shall not be obliged before exercising any of
the rights, powers or remedies conferred upon them by Fiat or by
law:
(a) to make any demand of any Relevant Borrower;
(b) to take any action or obtain judgement in any court against
any Relevant Borrower or any other person; or
(c) to make or file any claim or proof in a bankruptcy or
liquidation of any Relevant Borrower or any other person.
13. ADDITIONAL BORROWERS
13.1 REQUEST FOR ADDITIONAL BORROWER
Fiat or the Borrowers' Agent may request that any of Fiat's Subsidiaries
incorporated in any OECD jurisdiction become an Additional Borrower by
delivering to the Facility Agent a Borrower Accession Memorandum duly
executed by Fiat and such Subsidiary, together with the documents and other
evidence listed in Schedule 2 Part B (Additional Conditions Precedent) in
relation to such Subsidiary.
13.2 ADDITIONAL BORROWER CONDITIONS PRECEDENT
A Subsidiary of Fiat, in respect of which Fiat or the Borrowers' Agent has
delivered a Borrower Accession Memorandum to the Facility Agent, shall
become an Additional Borrower and assume all the rights, benefits and
obligations of a Borrower as if it had been an Original Borrower on the
date on which the Facility Agent notifies Fiat or the Borrowers' Agent that
the Facility Agent has received, in form and substance
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satisfactory to it, all documents and other evidence listed in Schedule 2
Part B (Additional Conditions Precedent) in relation to such Subsidiary.
13.3 RESIGNATION OF A BORROWER
If at any time a Borrower (other than Fiat) is under no actual or
contingent obligation as a Borrower under or pursuant to any Financing
Document, Fiat or the Borrowers' Agent may request that such Borrower shall
cease to be a Borrower by delivering to the Facility Agent a Resignation
Notice. Such Resignation Notice shall be accepted by the Facility Agent on
the date on which it notifies Fiat or, as the case may be, the Borrowers'
Agent's that it is satisfied (acting reasonably) that such Borrower is
under no actual or contingent obligation as a Borrower under or pursuant to
any Financing Document and such Borrower shall immediately cease to be a
Borrower.
14. REPRESENTATIONS AND WARRANTIES
14.1 REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to each Finance Party that:
14.1.1 Status: it is a limited company duly incorporated under the laws of
its jurisdiction of incorporation and it possesses the capacity to
xxx and be sued in its own name and has the power to carry on its
business and to own its property and other assets;
14.1.2 Powers and authority: it has power to execute, deliver and perform
its obligations under the Financing Documents and to carry out the
transactions contemplated by those documents and all necessary
corporate, shareholder and other action has been taken to authorise
the execution, delivery and performance of the same;
14.1.3 Binding obligations: subject to the Reservations, its obligations
under the Financing Documents constitute its legal, valid, binding
and enforceable obligations;
14.1.4 Contraventions: the execution, delivery and performance by it of
the Financing Documents does not:
(a) contravene any applicable law or regulation or any order of
any governmental or other official authority, body or agency
or any judgement, order or decree of any court having
jurisdiction over it; or
(b) contravene or conflict with its constitutional documents;
14.1.5 Insolvency: it has not taken any action nor (to the best of its
knowledge, information and belief) have any steps been taken or
legal proceedings been started against it for its winding-up,
dissolution, administration or re-organisation or for the
appointment of a receiver, administrative receiver, or
administrator, trustee or similar officer of it or of a material
part of its assets;
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14.1.6 No default: to the best of its knowledge, information and belief it
is not in breach of or in default in any material respect under any
agreement relating to Indebtedness to which it is a party or which
is binding on it or any of its assets to an extent which would have
a material adverse effect on the ability of that Borrower to comply
with its payment obligations under this Agreement;
14.1.7 Litigation: to the best of its information, knowledge and belief,
no action, litigation, arbitration or administrative proceeding has
been commenced or is pending against it which would have a material
adverse effect on the ability of that Borrower to comply with its
payment obligations under the Financing Documents;
14.1.8 Original Financial Statements: the Original Financial Statements of
that Borrower were prepared in accordance with GAAP and give a true
and fair view of that Borrower's financial position at the date to
which they were prepared and the results of that Borrower's
operations during the Financial Year of that Borrower to which they
relate;
14.1.9 Information Memorandum:
(a) the information contained in the Information Memorandum is
true and accurate in all material respects as at its date; and
(b) the Information Memorandum did not omit any information which
would make any fact or statement in it misleading in any
material respect;
14.1.10 No material adverse change: since the date of the Original
Financial Statements no event has occurred which has had a material
adverse effect on its business or financial condition; and
14.1.11 Margin Stock: the proceeds of the Advances have not been and will
not be used to buy, purchase or maintain any Margin Stock which
would impose regulatory requirements under, and as such term is
defined in, Regulation U of the Board of Governors of the Federal
Reserve of the United States of America.
14.2 REPETITION
The representations and warranties in sub-clauses 14.1.1 to 14.1.4 and
14.1.11 of Clause 14.1 (Representations and Warranties) shall survive the
execution of this Agreement and shall be deemed to be repeated by each
Borrower on the date on which each Drawdown Notice is given and on the date
on which each Advance is made with reference to the facts and circumstances
existing at that time.
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15. UNDERTAKINGS
15.1 INFORMATION UNDERTAKINGS
Each Borrower undertakes that during the Facility Period it shall, unless
the Facility Agent (acting on the instructions of the Majority Banks)
otherwise agrees:
15.1.1 Annual Statements: as soon as the same become available (and in any
event within 210 days after the end of each of its Financial
Years), deliver to the Facility Agent in sufficient copies for all
the Banks its audited financial statements for each such Financial
Year, PROVIDED THAT a Borrower shall only be obliged to provide
such statements on a consolidated basis if it prepares such
statements on this basis;
15.1.2 Semi-annual statements: as soon as the same become available (and
in any event within 120 days after the end of the first half of
each of its Financial Years), deliver to the Facility Agent in
sufficient copies for all the Banks its interim financial
statements for each such half-year, PROVIDED THAT a Borrower shall
be obliged to provide such statements on an audited and/or
consolidated basis to the extent it prepares them on such basis;
and
15.1.3 Shareholders' documents: deliver to the Facility Agent as soon as
reasonably practicable in sufficient copies for all the Banks all
documents despatched by it to its creditors generally, or in the
case of Fiat and CNH Global N.V., to its shareholders generally.
15.2 POSITIVE UNDERTAKINGS
Each Borrower undertakes that during the Facility Period it shall, unless
the Facility Agent (acting on the instructions of the Majority Banks)
otherwise agrees:
15.2.1 Authorisations: obtain, maintain and comply with the terms of any
authorisation, approval, licence, consent, exemption, clearance,
filing or registration required in or by the laws and regulations
of its jurisdiction of incorporation to enable it to lawfully enter
into and perform its obligations under, or for the legality,
validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of, each Financing Document;
15.2.2 Ranking of obligations: ensure that its obligations under the
Financing Documents shall at all times rank at least pari passu
with all its other present and future unsecured and unsubordinated
obligations (whether actual, contingent, present or future) except
for any obligations which are mandatorily preferred by law;
15.2.3 Notification of Default: promptly, upon becoming aware of the same,
notify the Facility Agent of the occurrence of a Default or
Potential Default and, upon receipt of a written request to that
effect from the Facility Agent, confirm to the Facility Agent that,
save as previously notified to the Facility Agent or as notified in
such confirmation, no Default or Potential Default has occurred;
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15.2.4 ERISA: comply in all respects with ERISA where failure to do so
could reasonably be expected to have a material adverse effect on
its business or financial condition.
15.3 NEGATIVE PLEDGE
Each Borrower undertakes that during the Facility Period it shall not,
unless the Facility Agent (acting on the instructions of the Majority
Banks) otherwise agrees, create any Encumbrance, (other than a Permitted
Encumbrance), over any of its present or future assets, to prefer any of
its Indebtedness unless such Encumbrance or such other security as the
Facility Agent (acting on the instructions of the Majority Banks) considers
equivalent thereto, is at the same time extended equally and rateably to
the obligations of such Borrower under the Financing Documents.
16. DEFAULT
16.1 DEFAULT
Each of the following shall be a Default:
16.1.1 Non-payment: any of the Borrowers does not pay on the due date any
amount payable by it under this Agreement at the place and in the
currency and funds in which it is expressed to be payable unless
the failure to pay such amount is due solely to administrative or
technical delays in the transmission of funds and such amount is
paid within 5 Business Days after its due date for payment; or
16.1.2 Other defaults: any of the Borrowers breaches any of its
obligations under any Financing Document (other than the
obligations referred to in sub-clause 16.1.1 of this Clause 16.1)
and if that breach is capable of remedy, it is not remedied within
30 days after written notice of that breach has been given by the
Facility Agent to the relevant Borrower; or
16.1.3 Breach of representation or warranty: any representation, warranty
or statement made or deemed to be repeated by any of the Borrowers
under this Agreement or in any document delivered by it or on its
behalf under or in connection with this Agreement is or proves to
have been incorrect or misleading when made or deemed to have been
repeated; or
16.1.4 Unlawfulness or repudiation: it is unlawful for any of the
Borrowers to perform or comply with, or any of the Borrowers
repudiates, any of its obligations under any Financing Document or,
subject to the Reservations, any of those obligations is not legal,
valid, binding, effective and enforceable; or
16.1.5 Cross-acceleration: any or all of the Borrowers:
(a) becomes bound to repay prematurely any Indebtedness by reason
of a default by any of the Borrowers which default is followed
by an appropriate demand for such repayment; or
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(b) fails to make any payment of principal, premium or interest in
respect of any Indebtedness on the due date for such payment
or within any grace period specified in the agreement or other
instrument constituting such Indebtedness,
where such Indebtedness is in an aggregate amount in excess of (i)
US$50,000,000 in respect of any one Borrower and/or (ii)
US$75,000,000 in aggregate in respect of any two or more Borrowers
(or in either case its equivalent in other currencies), except
where such Borrower(s) is/are taking action by appropriate
proceedings in good faith to dispute the validity of the obligation
to repay prematurely such Indebtedness or to make such payment, as
the case may be, and unless such default or failure to pay shall
have been waived by the person to whom the relevant Indebtedness is
payable; or
16.1.6 Attachment or distress: a creditor or encumbrancer attaches or
takes possession of or a receiver or similar officer is appointed
over the whole or any material part of the assets of any of the
Borrowers, or a distress, execution, sequestration or other process
is levied or enforced upon or sued out against, the whole or any
material part of the assets of any of the Borrowers and such
process is not discharged within 30 days; or
16.1.7 Inability to pay debts: any of the Borrowers:
(a) suspends payment of its debts generally or is unable or admits
its inability to pay its debts generally as they fall due; or
(b) proposes or enters into any composition or other arrangement
for the benefit of its creditors generally; or
(c) has proceedings commenced against it with a view to the
readjustment or rescheduling of any of its Indebtedness which
it would not otherwise be able to pay as it fell due; or
16.1.8 Insolvency proceedings: any of the Borrowers:
(a) is adjudicated or found insolvent; or
(b) has an order made against it by any competent court or passes
a resolution for its winding-up or dissolution or for the
appointment of a liquidator, administrator, trustee, receiver,
administrative receiver or similar officer in respect of it or
the whole or any substantial part of its assets; or
16.1.9 Analogous proceedings: any event occurs which under the laws of any
jurisdiction has a similar or analogous effect to any of the events
mentioned in sub-clause 16.1.6, 16.1.7 or 16.1.8 of this Clause
16.1; or
16.1.10 Cessation of business: any of the Borrowers suspends, ceases or
threatens to suspend or cease to carry on its business unless such
cessation, or threatened
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cessation, is in connection with a merger, consolidation or any
other form of combination with another company and such company
assumes all obligations of any Borrower respectively under the
Financing Documents; or
16.1.11 Change of control: Fiat ceases to be the direct or indirect
beneficial owner of shares in the issued share capital of each of
the other Borrowers carrying the right to exercise more than 50 per
cent. of the votes exercisable at a general meeting of each of the
other Borrowers or otherwise ceases to exercise control over each
of the other Borrowers; or
16.1.12 Governmental intervention: all or a material part of the assets,
rights or revenues of, or shares or other ownership interests in,
any of the Borrowers are seized, nationalised, expropriated or
compulsorily acquired by or under the authority of any government.
16.2 ACCELERATION
If a Default occurs and remains unremedied the Facility Agent may, and
shall if so instructed by the Majority Banks, by notice to the Borrowers'
Agent:
16.2.1 cancel the Facility and require all relevant Borrowers immediately
to repay the Advances together with accrued interest and all other
sums payable under this Agreement, whereupon they shall become
immediately due and payable; or
16.2.2 place the Facility on demand, whereupon the Advances together with
accrued interest and all other sums payable under this Agreement
shall become repayable on demand made by the Facility Agent on the
instructions of the Majority Banks.
Upon the service of any such notice by the Facility Agent the Commitment of
each Bank shall be cancelled.
17. PRO RATA SHARING
17.1 REDISTRIBUTION
If any amount owing by a Borrower under this Agreement to a Bank (the
"SHARING BANK") is discharged by voluntary or involuntary payment, set-off
or any other manner other than through the relevant Agent in accordance
with Clause 11 (Payments), then:
17.1.1 the Sharing Bank shall immediately notify the Facility Agent of the
amount discharged and the manner of its receipt of recovery;
17.1.2 the Facility Agent shall determine whether the amount discharged is
in excess of the amount which the Sharing Bank would have received
had the amount discharged been received by the relevant Agent and
distributed in accordance with Clause 11 (Payments);
17.1.3 the Sharing Bank shall pay the Facility Agent an amount equal to
that excess (the "EXCESS AMOUNT") within 5 Business Days of demand
by the Facility Agent;
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17.1.4 the Facility Agent shall treat the Excess Amount as if it were a
payment by such Borrower under Clause 11 (Payments) and shall pay
the Excess Amount to the Banks (other than the Sharing Bank) in
accordance with Clause 11.7 (Partial Payments); and
17.1.5 as between such Borrower and the Sharing Bank, the Excess Amount
shall be treated as not having been received or recovered, and
accordingly such Borrower shall owe the Sharing Bank an immediately
payable debt equal to the Excess Amount.
17.2 LEGAL PROCEEDINGS
Notwithstanding Clause 17.1 (Redistribution), no Sharing Bank shall be
obliged to share any Excess Amount which it receives or recovers pursuant
to legal proceedings taken by it to recover any sums owing to it under this
Agreement with any other Bank which has a legal right to, but does not,
either join in such proceedings or commence and diligently pursue separate
proceedings to enforce its rights, unless the proceedings instituted by the
Sharing Bank are instituted by it without prior notice having been given to
such Bank through the Facility Agent and an opportunity to such Bank to
join in such proceedings.
17.3 REVERSAL OF REDISTRIBUTION
If any Excess Amount subsequently has to be wholly or partly refunded to a
Borrower by a Sharing Bank which has paid an amount equal to that Excess
Amount to the Facility Agent under Clause 17.1 (Redistribution), each Bank
to which any part of that amount was distributed shall on request from the
Sharing Bank repay to the Sharing Bank that Bank's proportionate share of
the amount which has to be so refunded by the Sharing Bank.
17.4 INFORMATION
Each Bank shall on request supply to the Facility Agent such information as
the Facility Agent may from time to time request for the purpose of this
Clause 17.
18. THE AGENTS, THE ARRANGERS AND THE BANKS
18.1 APPOINTMENT AND DUTIES
18.1.1 Each Bank irrevocably appoints the Facility Agent to act as its
agent in connection with this Agreement, and each Swing-Line Bank
irrevocably appoints each of the US Swing-Line Agent and the Euro
Swing-Line Agent to act as its agent in connection with the
operation of the Swing-Line Facilities and irrevocably authorises
each of the Agents on its behalf to perform the duties and to
exercise the rights, powers and discretions that are specifically
delegated to it under or in connection with this Agreement together
with any other incidental rights, powers and discretions, PROVIDED
THAT no Agent may commence any legal proceedings on behalf of any
Bank without such Bank's prior written consent.
18.1.2 The Agents shall have no duties or responsibilities except those
expressly set out in this Agreement. As to any matters not
expressly provided for, the
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Agents shall act in accordance with the instructions of the
Majority Banks (but in the absence of any such instructions shall
not be obliged to act). Any such instructions, and any action taken
by the Agents in accordance with those instructions, shall be
binding upon all the Banks.
18.1.3 Each of the Agents may:
(a) act in an agency, trustee, fiduciary or other capacity on
behalf of any other banks or financial institutions providing
facilities to any Borrower or any associated company of any
Borrower, as freely in all respects as if it had not been
appointed to act as agent for the Banks under this Agreement
and without regard to the effect on the Banks of acting in
such capacity; and
(b) subscribe for, hold, be beneficially entitled to or dispose of
shares or securities, or options or other rights to and
interests in shares or securities in any Borrower or any
associated company of any Borrower (in each case, without
liability to account).
18.1.4 Each division or department of each of the Agents (including, for
so long as Chase Manhattan International Limited is the Facility
Agent or the Euro Swing-Line Agent, the Loans Agency Department of
Chase Manhattan International Limited) shall be treated as a
separate entity from any other division or department of that
Agent. If any of the Agent's divisions or departments (including,
in the case of Chase Manhattan International Limited, its Loans
Agency Department) should act for any Borrower in any capacity
(whether as bankers or otherwise) in relation to any other matter,
any information given by that Borrower to any such division or
department may be treated as confidential and that Agent shall, as
between itself and the Banks, not be obliged to disclose the same
to any Bank or any other person. 18.1.5 It is acknowledged that the
role of the Arrangers is and has been confined solely to arranging
the Facility and that in such capacity they shall have no
obligations and liabilities in relation to this Agreement.
18.2 PAYMENTS
18.2.1 Each of the Agents shall promptly account to the Lending Office of
each Bank for such Bank's due proportion of all sums received by
that Agent for such Bank's account, whether by way of repayment or
prepayment of principal or payment of interest, fees or otherwise.
18.2.2 Each of the Agents shall maintain a memorandum account showing the
principal amount of each Advance outstanding under this Agreement
and the amount of each Bank's Participation in the Advances.
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18.2.3 Each Bank confirms in favour of the Facility Agent that, unless it
notifies the Facility Agent to the contrary:
(a) it will be the beneficial owner of any interest paid to it
under this Agreement; and
(b) it is either:
(i) a "bank" within Section 840A of the Income and Corporation
Taxes Xxx 0000; or
(ii) an entity not resident in the United Kingdom (for the
purposes of the Income and Corporation Taxes Act 1988);
and
(c) it will provide the Facility Agent with such evidence or
information as the Facility Agent may reasonably require from
time to time to enable the Facility Agent to comply with
statutory obligations relating to the performance of its
obligations under this Agreement.
18.3 DEFAULT
No Agent shall be obliged to monitor or enquire as to whether or not a
Default or Potential Default has occurred. Each of the Agents shall be
entitled to assume that no Default or Potential Default has occurred unless
it receives notice to the contrary from a Borrower or the Borrowers' Agent
or any Bank describing the Default or Potential Default and stating that
such notice is a "Default Notice" or unless it is aware of a payment
default under this Agreement, in which case it shall promptly notify each
Bank.
18.4 RELIANCE
Each of the Agents may:
18.4.1 rely on any communication or document believed by it to be genuine
and correct and to have been communicated or signed by the person
by whom it purports to be communicated or signed; and
18.4.2 engage, pay for and rely on the advice of any professional advisers
selected by it given in connection with this Agreement or any of
the matters contemplated by this Agreement,
and shall not be liable to any Party for any of the consequences of such
reliance except in case of negligence or wilful misconduct.
18.5 LEGAL PROCEEDINGS
18.5.1 No Agent shall be obliged to take or commence any legal action or
proceeding against any Borrower or any other person arising out of
or in connection with this Agreement until it shall have been
indemnified or secured to its satisfaction against all costs,
claims and expenses (including any costs award which may be made
against it as a result of any such legal action or
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proceeding not being successful) which it may expend or incur in
such legal action or proceeding.
18.5.2 Each of the Agents may refrain from doing anything which might in
its opinion constitute a breach of any law or any duty of secrecy
or confidentiality or be otherwise actionable at the suit of any
person.
18.6 NO LIABILITY
18.6.1 None of the Agents nor any of their officers, employees or agents
shall be liable for any action taken or not taken by it or any of
them under or in connection with this Agreement unless directly
caused by its or their negligence or wilful misconduct.
18.6.2 None of the Agents nor the Arrangers shall be responsible for any
statements, representations or warranties in this Agreement or for
any information supplied or provided to any Bank by any Agent or
Arrangers in respect of any Borrower or any other person or for any
other matter relating to this Agreement or for the execution,
genuineness, validity, legality, enforceability or sufficiency of
this Agreement or any other document referred to in this Agreement
or for the recoverability of any Advance or any other sum to become
due and payable under this Agreement.
18.7 CREDIT DECISIONS
18.7.1 Each Bank:
(a) acknowledges that it has, independently and without reliance
on any of the Agents and Arrangers, made its own analysis of
the transaction contemplated by, and reached its own decision
to enter into, this Agreement and made its own investigation
of the financial condition and affairs and its own appraisal
of the creditworthiness of each Borrower; and
(b) agrees that it shall continue to make its own independent
appraisal of the creditworthiness of each Borrower.
18.7.2 Each Bank agrees that it shall, independently and without reliance
on any of the Agents and Arrangers, make its own decision to take
or not take action under this Agreement.
18.8 INFORMATION
18.8.1 Each of the Agents shall provide the Banks with all information and
copies of all notices which are given to it and which by the terms
of this Agreement are to be provided or given to the Banks.
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18.8.2 Except as specifically provided in this Agreement, no Agent
shall be under any duty or obligation:
(a) either initially or on a continuing basis, to provide any
Bank with any credit information or other information with
respect to the financial condition of a Borrower or which
is otherwise relevant to the Facility; or
(b) to request or obtain any certificate, document or
information from a Borrower unless specifically requested
to do so by a Bank in accordance with this Agreement.
18.9 RELATIONSHIP WITH BANKS
18.9.1 In performing its functions and duties under this Agreement,
each of the Agents shall act solely as the agent for the Banks
and except as expressly provided in this Agreement shall not be
deemed to be acting as trustee for any Bank and shall not assume
or be deemed to have assumed any obligation as agent or trustee
for, or any relationship of agency or trust with, any Borrower.
18.9.2 None of the Agents, the Arrangers or any Bank shall be under any
liability or responsibility of any kind to any Borrower or any
other Bank arising out of or in relation to any failure or delay
in performance or breach by any Borrower or any other Bank of
any of its or their respective obligations under this Agreement.
18.10 AGENTS' POSITION
18.10.1 With respect to its own Participation in an Advance (if any),
each of the Agents shall have the same rights and powers under
and in respect of this Agreement as any other Bank and may
exercise those rights and powers as though it were not also
acting as agent for the Banks. Each of the Agents may, without
liability to account, accept deposits from, lend money to and
generally engage in any kind of banking, finance, advisory,
trust or other business with or for any Borrower as if it were
not the agent for the Banks under this Agreement.
18.10.2 Each of the Agents may retain for its own use and benefit (and
shall not be liable to account to any Bank for all or any part
of) any sums received by it by way of agency or management or
arrangement fees or by way of reimbursement of expenses incurred
by it.
18.11 INDEMNITY
Each Bank shall immediately on demand indemnify each of the Agents (to the
extent not reimbursed by the Borrowers) rateably according to the
proportion which that Bank's Commitment bears to the Total Commitments
from and against all liabilities, losses and expenses of any kind or
nature whatsoever (except in respect of any agency, management or other
fee due to that Agent) which may be incurred by that Agent in its capacity
as agent or trustee for the Banks or in any way relating to or arising out
of this Agreement or any action taken or omitted by that Agent in
enforcing or preserving the
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rights of the Banks or that Agent under this Agreement, PROVIDED THAT no
Bank shall be liable for any portion of such liabilities, losses or
expenses resulting from that Agent's gross negligence or wilful
misconduct.
18.12 RESIGNATION
18.12.1 An Agent may resign by giving at least 60 days' notice to the
Borrowers' Agent and each Bank. Upon receipt of a notice of
resignation the Borrowers' Agent and the Majority Banks may
select any bank or other financial institution as a successor
Agent.
18.12.2 If no bank or other financial institution selected by the
Borrowers' Agent and the Majority Banks shall have accepted such
appointment within 20 days after the relevant Agent has given a
notice of resignation then the Majority Banks may, after
consultation with the Borrowers' Agent, appoint any bank or
other financial institution as successor Agent.
18.12.3 If no bank or other financial institution selected by the
Majority Banks shall have accepted such appointment within 40
days after the relevant Agent has given a notice of resignation
then that resigning Agent may, after consultation with the
Borrowers' Agent, appoint any bank or other financial
institution of reputable standing with an office in the case of
the Facility Agent, London or, in the case of the Euro
Swing-Line Agent, London or, in the case of the US Swing-Line
Agent, New York, as successor Agent.
18.12.4 The resignation of the Agent and the appointment of any
successor Agent shall both become effective only upon the
successor Agent notifying the retiring Agent, the Borrowers'
Agent and each Bank that it accepts its appointment. On such
notification:
(a) the resigning Agent shall be discharged from its
obligations and duties as Agent under this Agreement but it
shall continue to be able to rely on the provisions of this
Clause 18 in respect of all matters relating to the period
of its appointment; and
(b) the successor Agent shall assume the role of Agent and
shall have all the rights, powers, discretions and duties
which that Agent has under this Agreement.
18.12.5 The resigning Agent shall make available to the successor Agent
all records and documents held by it as Agent, and shall
co-operate with the successor Agent to ensure an orderly
transition.
18.13 REMOVAL OF AN AGENT
The Majority Banks may remove an Agent from its role as Agent under this
Agreement by giving notice to that effect to each Party. Upon delivery of
such notice, the relevant Agent shall be deemed to have given notice of
resignation pursuant to sub-clause 18.12.1 of Clause 18.12 (Resignation)
and the provisions of Clause 18.12 (Resignation) shall apply to such
deemed notice.
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18.14 CHANGE OF OFFICE
Each of the Agents may at any time in its sole discretion by notice to the
Borrowers' Agent and each Bank designate a different office, in the case
of the Facility Agent, in the United Kingdom or, in the case of the Euro
Swing-Line Agent, London or, in the case of the US Swing-Line Agent, New
York, from which its duties as the Agent will be performed.
19. FEES AND EXPENSES
19.1 EXPENSES AND COSTS
Subject to any limits on and other matters relating to the same that may
previously have been agreed by the Arrangers prior to the date of this
Agreement, the Borrowers' Agent shall reimburse all reasonable expenses
incurred, and any VAT on those expenses:
19.1.1 by each of the Arrangers and the Agents in connection with the
negotiation, preparation and execution of the Financing
Documents and the other documents contemplated by the Financing
Documents;
19.1.2 by each of the Arrangers and the Agents in respect of the
syndication of the Facilities;
19.1.3 by each of the Agents or the Banks in connection with the
granting of any release, waiver or consent or in connection with
any amendment or variation of any Financing Document where such
release, waiver, consent, amendment or variation has been
requested by the Borrowers' Agent; and
19.1.4 by each of the Agents or the Banks in enforcing, perfecting,
protecting or preserving (or attempting so to do) any of their
rights, or in suing for or recovering any sum due from any
Borrower or any other person under any Financing Document,
upon presentation of a statement of account reasonably documented for
administrative and fiscal purposes.
19.2 ARRANGEMENT AND AGENCY FEES
The Borrowers' Agent shall pay to the Arrangers an arrangement fee in
accordance with the terms of the Arrangement Fees Letter and shall pay to
each of the Agents agency fees in accordance with the terms of the Agency
Fees Letter. For the avoidance of doubt, all liabilities and obligations
of the Borrowers' Agent under the Arrangement Fees Letter and the Agency
Fees Letter shall be deemed to be incurred under this Agreement.
19.3 COMMITMENT FEE
The Borrowers' Agent shall pay a commitment fee in Dollars to the Facility
Agent for the account of the Banks at the rate of 0.11 per cent. per annum
on the Available Revolving Facility. The commitment fee shall accrue from
day to day during the Drawdown Period and be calculated on the basis of
the actual number of days elapsed
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and a 360 day year in respect of the Drawdown Period and shall be due
quarterly in arrear (with the first payment due 3 months after the date of
this Agreement) and on the last day in the Drawdown Period or on any
earlier date on which the Total Commitments equal zero. The Borrowers'
Agent shall pay such commitment fees within 10 Business Days of receipt of
notification of the amount of such commitment fees from the Facility
Agent.
19.4 UTILISATION FEE
In respect of each day that the Original Dollar Amount of all Advances
equals or exceeds one half of the Total Commitments, the Borrowers' Agent
shall pay a utilisation fee in Dollars to the Facility Agent for the
account of the Banks at the rate of 0.075 per cent. per annum of the
Original Dollar Amount of all Advances. The utilisation fee shall be
calculated on the basis of the actual number of days elapsed and a 360 day
year and be due quarterly in arrear and on any earlier date on which the
Total Commitments equal zero. The Borrowers' Agent shall pay such
utilisation fees within 10 Business Days of receipt of notification of the
amount of such utilisation fees from the Facility Agent.
19.5 DOCUMENTARY TAXES INDEMNITY
All stamp, documentary, registration or other like duties or Taxes which
are imposed or chargeable on or in connection with this Agreement shall be
paid by the Borrowers' Agent. Each of the Agents shall be entitled but not
obliged to pay any such duties or Taxes (whether or not they are its
primary responsibility). If any Agent does so then that Agent shall notify
the Borrowers' Agent that any such payment has been made and the
Borrowers' Agent shall on demand indemnify that Agent against those duties
and Taxes and against any costs and expenses incurred by that Agent in
discharging them.
19.6 VAT
All payments made by the Borrowers under the Financing Documents are
calculated without regard to VAT. If any such payment constitutes the
whole or any part of the consideration for a taxable or deemed taxable
supply (whether that supply is taxable pursuant to the exercise of an
option or otherwise) by any of the Agents or a Bank, the amount of that
payment shall be increased by an amount equal to the amount of VAT which
is chargeable in respect of the taxable supply in question.
20. AMENDMENTS AND WAIVERS
20.1 MAJORITY BANKS
20.1.1 Subject to Clause 20.2 (All Banks), any term of this Agreement
may be amended or waived with the written agreement of the
Borrowers' Agent and the Majority Banks. The Facility Agent may
effect, on behalf of the Majority Banks and the Borrowers' Agent
may effect, on behalf of itself and the other Borrowers, an
amendment or waiver to which the Majority Banks or, as the case
may be, the Banks have agreed.
20.1.2 The Facility Agent shall promptly notify the Borrowers' Agent
and each Bank of any amendment or waiver effected under
sub-clause 20.1.1 of this Clause
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20.1 and any such amendment or waiver shall be binding on the Borrowers
and each Bank.
20.2 ALL BANKS
An amendment or waiver which relates to:
20.2.1 the definition of "Majority Banks" or "Margin" in Clause 1.1
(Definitions);
20.2.2 an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment under this Agreement;
20.2.3 an increase in a Bank's Commitment;
20.2.4 a term of this Agreement which expressly requires the consent of
each Bank; or
20.2.5 Clauses 2.2 (Obligations Several), 2.3 (Rights Several), 7
(Interest), 8 (Repayment and Prepayment), 12.1 (Fiat as a
Co-Borrower), 17 (Pro-Rata Sharing), 19.3 (Commitment Fee), 19.4
(Utilisation Fee) and 20 (Amendments and Waivers),
may not be effected without the prior written consent of each Bank.
20.3 NO IMPLIED WAIVERS; REMEDIES CUMULATIVE
The rights of each Agent and each Bank under this Agreement:
20.3.1 may be exercised as often as necessary;
20.3.2 are cumulative and not exclusive of its rights under the general
law; and
20.3.3 may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
21. MISCELLANEOUS
21.1 SEVERANCE
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
21.1.1 the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
21.1.2 the legality, validity or enforceability in any other
jurisdiction of that or any other provision of this Agreement.
21.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts and this
shall have the same effect as if the signatures on the counterparts were
on a single copy of this Agreement.
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22. NOTICES
22.1 METHOD
Each notice or other communication to be given under this Agreement shall
be given in writing in English and, unless otherwise provided, shall be
made by fax or letter.
22.2 DELIVERY
Any notice or other communication to be given by one Party to another
under this Agreement shall (unless one Party has by 15 days' notice to the
other Party specified another address) be given to that other Party, in
the case of the Borrowers' Agent and the Agents, at the respective
addresses given in Clause 22.3 (Addresses), and in the case of the Banks,
at the address notified in writing to the Facility Agent prior to or on
the date of this Agreement or, as the case may be, the schedule to its
relevant Transfer Certificate. Any notice or communication given to the
Borrowers' Agent shall be deemed to have been given to each of the
Borrowers.
22.3 ADDRESSES
The address and fax number of the Borrowers' Agent and the Agents are:
22.3.1 the Borrowers' Agent:
c/o Fiat Finance and Trade Ltd., Luxembourg
Succursale di Paradiso
Xxxx Xxxxxxxx 14-6902 Lugano Paradiso
Switzerland
Attention: The Finance Manager
Fax: x00 00 000 0000
22.3.2 the Facility Agent and Euro Swing-Line Agent:
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Attention: Xxxxx Xxxxxxxx, Loans Agency
Fax: 000 0000 0000
22.3.3 the US Swing-Line Agent:
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Attention: Xxxxx Xxxxxxxx, Loans Agency
Fax: 000 0000 0000
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22.4 DEEMED RECEIPT
Any notice or other communication given under this Agreement shall be
deemed to have been received:
22.4.1 if sent by fax, with a confirmed receipt of transmission from
the receiving machine, on the day on which transmitted;
22.4.2 in the case of a notice given by hand, on the day of actual
delivery; and
22.4.3 if posted, on the tenth Business Day following the day on which
it was despatched by first class mail postage prepaid or, as the
case may be, airmail postage prepaid,
PROVIDED THAT a notice given in accordance with the above but received on
a day which is not a Business Day or after normal business hours in the
place of receipt shall be deemed to have been received on the next
Business Day.
22.5 NOTICES THROUGH AGENT
Any notice or other communication from or to any Borrower under this
Agreement shall be sent through the Facility Agent.
23. ASSIGNMENTS AND TRANSFERS
23.1 BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
Party and its successors and assigns.
23.2 ASSIGNMENTS AND TRANSFERS BY A BORROWER
A Borrower shall not be entitled to assign or transfer any of its rights
or obligations under this Agreement.
23.3 ASSIGNMENTS BY BANKS
Any Bank may, subject to Clause 23.5 (Condition to Assignments and
Transfers), assign any of its rights and benefits under this Agreement to
another bank or other financial institution, PROVIDED THAT until the
assignee has confirmed to the Facility Agent and the other Banks that it
shall be under the same obligations towards each of them as it would have
been under if it had been a party to this Agreement as a Bank, the
Facility Agent and the other Banks shall not be obliged to recognise the
assignee as having the rights against each of them which it would have had
if it had been such a party to this Agreement.
23.4 TRANSFERS BY BANKS
23.4.1 Any Bank may, subject to Clause 23.5 (Conditions to Assignments
and Transfers), transfer, in accordance with this Clause 23.4,
any of its rights and obligations under this Agreement.
23.4.2 If any Bank (the "EXISTING BANK") wishes to transfer all or any
part of its Commitment or Participation in Advances to another
bank or other financial institution (the "BANK TRANSFEREE"),
such transfer may be effected by way of
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a novation by the delivery to, and the execution by, the
Facility Agent of a duly completed Transfer Certificate.
23.4.3 On the date specified in the Transfer Certificate:
(a) to the extent that in the Transfer Certificate the Existing
Bank seeks to transfer its Commitment or Participation in
Advances, the Borrowers and the Existing Bank shall each be
released from further obligations to each other under this
Agreement and their respective rights against each other
shall be cancelled (such rights and obligations being
referred to in this sub-clause 23.4.3 as "DISCHARGED RIGHTS
AND OBLIGATIONS");
(b) the Borrowers and the Bank Transferee shall each assume
obligations towards each other and/or acquire rights
against each other which differ from the Discharged Rights
and Obligations only insofar as the Borrowers and the Bank
Transferee have assumed and/or acquired the same in place
of the Borrowers and the Existing Bank; and
(c) each of the Parties and the Bank Transferee shall acquire
the same rights and assume the same obligations among
themselves as they would have acquired and assumed had the
Bank Transferee been a party under this Agreement as a Bank
with the rights and/or the obligations acquired and/or
assumed by it as a result of the transfer.
23.4.4 The Facility Agent shall promptly complete a Transfer
Certificate on request by an Existing Bank and upon payment by
the Bank Transferee of a fee of $1000 to the Facility Agent,
PROVIDED THAT such fee shall not be payable in respect of a
transfer to an affiliate of the Existing Bank or another Bank.
Each Party irrevocably authorises the Facility Agent to execute
any duly completed Transfer Certificate on its behalf, PROVIDED
THAT such authorisation does not extend to the execution of a
Transfer Certificate on behalf of either the Existing Bank or
the Bank Transferee named in the Transfer Certificate.
23.4.5 The Facility Agent shall promptly notify the Borrowers' Agent of
the receipt and execution on its behalf by the Facility Agent of
any Transfer Certificate.
23.5 CONDITIONS TO ASSIGNMENTS AND TRANSFERS
23.5.1 An assignment or transfer by a Bank shall be in respect of a
Commitment of at least $15,000,000 and an integral multiple of
$5,000,000.
23.5.2 A Bank which is a Swing-Line Bank shall only assign or transfer
all or a part of its Commitment (including its Swing-Line
Commitment) if either:
(i) such assignment or transfer would not result in its
Swing-Line Commitment exceeding its Commitment; or
(ii) it assigns or transfers an equal amount of its Commitment
and its Swing-Line Commitment.
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23.5.3 An assignment or transfer of any Commitment or Participation in
the Advances (other than any such assignment or transfer to a
Bank or to an affiliate of a Bank) shall be subject to the prior
approval of the Borrowers' Agent (such approval not to be
unreasonably withheld or delayed).
23.5.4 If:
(a) a Bank assigns or transfers any of its rights or
obligations under the Financing Documents to a Bank
Transferee (including, without limitation, to an affiliate
of such Bank); or
(b) a Bank changes any Lending Office which it selected on the
date it became a Party for the purpose of participating in
the Facility,
and as a result of circumstances existing at the date the
assignment, transfer or change of Lending Office occurs, a
Borrower would be obliged to make a payment to the Bank
Transferee or to the Bank acting through its new Lending Office
pursuant to Clause 10.2 (Increased Costs) or Clause 11.9
(Grossing-up), then that Bank Transferee or Bank acting through
its new Lending Office shall only be entitled to receive payment
under Clause 10.2 (Increased Costs) or, as the case may be,
Clause 11.9 (Grossing-up) to the same extent as the Existing
Bank or the Bank acting through its original Lending Office
would have been so entitled if the assignment, transfer or
change of Lending Office had not occurred.
23.6 CONSEQUENCES OF TRANSFER
A Borrower shall be under no obligation to pay any greater amount under
this Agreement following an assignment or transfer by a Bank of any of its
rights or obligations pursuant to this Clause 23 if, in the circumstances
existing at the time of such assignment or transfer, such greater amount
would not have been payable but for the assignment or transfer.
23.7 DISCLOSURE OF INFORMATION
Each Finance Party may disclose to each other, to their affiliates, to
their professional advisers and to any person with whom they are proposing
to enter, or have entered into, any kind of assignment, transfer,
novation, participation or other agreement in relation to this Agreement,
a copy of this Agreement and any information which that Finance Party has
acquired under or in connection with this Agreement, PROVIDED THAT any
such person shall first provide an undertaking in favour of the Borrowers
to keep the same confidential.
24. INDEMNITIES
24.1 BREAKAGE COSTS INDEMNITY
Each Borrower shall indemnify each Bank on demand against any reasonable
loss or expense (including any loss or expense on account of funds
borrowed, contracted for or utilised to fund any amount payable under this
Agreement, any amount repaid or
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prepaid under this Agreement or any Advance) which that Bank has sustained
or incurred as a consequence of:
24.1.1 an Advance not being made to such Borrower following the service
of a Drawdown Notice (except as a result of the failure of that
Bank to comply with its obligations under this Agreement) or the
service of a Market Disruption Notice in respect of an Advance
requested by such Borrower;
24.1.2 the failure of such Borrower to make payment on the due date of
any sum due under this Agreement;
24.1.3 the occurrence of any Default by such Borrower or the operation
of Clause 16.2 (Acceleration) in relation to such Borrower; or
24.1.4 any prepayment or repayment of an Advance otherwise than on a
Repayment Date relative to that Advance, such loss or expense
being equal to the amount (if any) by which (a) the additional
interest excluding the Margin which would have been payable on
the amount so received or recovered had it been received or
recovered on the related Repayment Date exceeds (b) the amount
of interest which in the opinion of the relevant Agent would
have been payable to that Agent on the related Repayment Date in
respect of a deposit in the currency of the amount so received
or recovered equal to the amount so received or recovered placed
by it with a prime bank in London for a period starting on the
third or, in the case of a prepayment in accordance with Clause
8.2 (Voluntary Prepayment), the second Business Day following
the date of such receipt or recovery and ending on the related
Repayment Date.
24.2 CURRENCY INDEMNITY
24.2.1 Any payment made to or for the account of or received by any
Finance Party in respect of any moneys or liabilities due,
arising or incurred by a Borrower to any Finance Party in a
currency (the "CURRENCY OF PAYMENT") other than the currency in
which the payment should have been made under this Agreement
(the "CURRENCY OF OBLIGATION") in whatever circumstances
(including as a result of a judgement against any Borrower) and
for whatever reason shall constitute a discharge to that
Borrower only to the extent of the Currency of Obligation amount
which that Finance Party is able on the date of receipt of such
payment (or if such date of receipt is not a Business Day, on
the next succeeding Business Day) to purchase with the Currency
of Payment amount at its spot rate of exchange (as reasonably
determined by that Finance Party) in the London foreign exchange
market.
24.2.2 If the amount of the Currency of Obligation which that Finance
Party is so able to purchase falls short of the amount
originally due to that Finance Party under this Agreement, then
the relevant Borrower shall promptly on demand indemnify that
Finance Party against any loss or damage arising as a result of
that shortfall by paying to that Finance Party that amount in
the Currency of Obligation certified by that Finance Party as
necessary so to indemnify it.
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24.2.3 Each indemnity in this Clause 24.2 shall constitute a separate
and independent obligation from the other obligations contained
in this Agreement, shall give rise to a separate and independent
cause of action, shall apply irrespective of any indulgence
granted from time to time and shall continue in full force and
effect notwithstanding any judgement or order for a liquidated
sum or sums in respect of amounts due under this Agreement or
under any such judgement or order.
24.3 GENERAL
The certificate of the relevant Finance Party as to the amount of any loss
or damage sustained or incurred by it shall be prima facie evidence to the
Borrowers in the absence of manifest error.
25. LAW AND JURISDICTION
25.1 LAW
This Agreement is governed by and shall be construed in accordance with
English law.
25.2 JURISDICTION
25.2.1 The Parties agree that the courts of England shall have
jurisdiction to settle any disputes which may arise in
connection with this Agreement and that any judgement or order
of an English court in connection with this Agreement is
conclusive and binding on them and may be enforced against them
in the courts of any other jurisdiction. This sub-clause 25.2.1
is for the benefit of each Finance Party only and shall not
limit the right of each Finance Party to bring proceedings
against a Borrower in connection with this Agreement in any
other court of competent jurisdiction or concurrently in more
than one jurisdiction.
25.2.2 Each Borrower:
(a) waives any objections which it may have to the English
courts on the grounds of venue or forum non conveniens or
any similar grounds as regards proceedings in connection
with this Agreement; and
(b) consents to service of process by mail or in any other
manner permitted by the relevant law.
25.3 AGENT FOR SERVICE
Each Borrower not incorporated in England and Wales shall at all times
maintain an agent for service of process in England. That agent shall be
Fiat UK Limited of Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx X0X 6AL.
Any claim form, writ, summons, judgement or other notice of legal process
shall be sufficiently served on a Borrower if delivered to that agent at
its address for the time being. A Borrower shall not revoke the authority
of that agent. If for any reason any such agent no longer serves as agent
of a Borrower to receive service of process, then that Borrower shall
promptly appoint another such agent and immediately advise the Facility
Agent of that appointment.
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IN WITNESS WHEREOF the Parties have caused this Agreement to be duly executed on
the date set out above.
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SCHEDULE 1
PART A
THE BANKS
BANK LENDING OFFICE REVOLVING COMMITMENT ($)
ARRANGERS
ABN AMRO Bank N.V. Amsterdam Branch 62,000,000
Banca Intesa S.p.A., London Branch US Borrowers: New York Branch 62,000,000
Other Borrowers: London Branch
The Chase Manhattan Bank London Branch 61,000,000
CO-ARRANGERS
Banca Nazionale del Lavoro S.p.A., London Italian Borrowers: Torino Branch 55,000,000
Branch US Borrowers: New York Branch
Other Borrowers: London Branch
Bank of America, N.A., Milan Branch Corso London Branch 55,000,000
Matteotti
The Bank of New York New York Branch 55,000,000
Bank One, NA London Branch 55,000,000
BNP PARIBAS Paris Branch 55,000,000
Barclays Bank PLC London Branch 55,000,000
Bayerische Landesbank Girozentrale, London Branch 55,000,000
Filiale di Milano
Caixa Geral de Depositos, S.A. Paris Branch 55,000,000
Caja Madrid Madrid Branch 55,000,000
Citibank, N.A. London Branch 55,000,000
Credit Agricole Indosuez Paris Branch 55,000,000
Credit Industriel et Commercial Paris Branch 55,000,000
Deutsche Bank Luxembourg S.A. Luxembourg Branch 55,000,000
Dresdner Bank Luxembourg S.A. Luxembourg Branch 55,000,000
First Union National Bank, London Branch London Branch 55,000,000
HSBC Bank plc London Branch 55,000,000
The Industrial Bank of Japan, Limited US Borrowers: New York 55,000,000
Other Borrowers: London Branch
ING Bearings Rotterdam Branch 55,000,000
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BANK LENDING OFFICE REVOLVING COMMITMENT ($)
Natexis Banques Populaires S.A. Paris Branch 55,000,000
Societe Generale Finance (Ireland) Limited Dublin Branch 55,000,000
Toronto Dominion (Texas) Inc. US Borrowers: Houston Branch 55,000,000
Other Borrowers: London Branch
UniCredito Italiano S.p.A., London Branch US Borrowers: New York 55,000,000
Other Borrowers: London Branch
UBS AG London Branch 55,000,000
Westdeutsche Landesbank Girozentrale, New New York Branch 55,000,000
York Branch
LEAD MANAGERS
Banca di Roma S.p.A., London Branch US Borrowers: New York 27,500,000
Other Borrowers: London Branch
Banca Monte dei Paschi di Siena S.p.A. US Borrowers: New York Branch 27,500,000
Other Borrowers: London Branch
Banca Popolare di Bergamo - Credito Lyon Branch 27,500,000
Varesino s.c.r.l.
BANESTO X.X. Xxxxxx Branch 27,500,000
Bank of Montreal Chicago Branch 27,500,000
Bayerische Hypo-und Vereinsbank AG London Branch 27,500,000
BBVA Ireland Plc Dublin Branch 27,500,000
Comerica Bank Detroit Branch 27,500,000
Credit Suisse First Boston London Branch 27,500,000
Fleet National Bank, London Branch London Branch 27,500,000
Xxxxxx Guaranty Trust Company of New York London Branch 27,500,000
KBC Bank N.V. Dublin Branch US Borrowers: New York Branch 27,500,000
Other Borrowers: Dublin Branch
Mellon Bank N.A. London Branch 27,500,000
RBC Finance B.V. Amsterdam Branch 27,500,000
San Paolo IMI S.p.A. US Borrowers: New York Branch 27,500,000
Other Borrowers: Torino Branch
Scotiabank (Ireland) Limited Dublin Branch 27,500,000
Standard Chartered Bank London Branch 27,500,000
The Sumitomo Bank, Limited London Branch 27,500,000
TOTAL 2,000,000,000
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PART B
THE SWING-LINE BANKS
BANK LENDING OFFICE: EURO LENDING SWING-LINE COMMITMENT
SWING-LINE OFFICE: ($)
DOLLAR
SWING-LINE
ABN AMRO Bank N.V. Amsterdam Branch Chicago Branch 40,000,000
Banca Intesa S.p.A., New York US Borrowers: New York New York Branch 40,000,000
Branch Branch
Other Borrowers: London
Branch
The Chase Manhattan Bank London Branch New York Branch 40,000,000
Banca Nazionale del Lavoro US Borrowers: New York New York Branch 27,500,000
Branch
Other Borrowers: London
Branch
Bank of America, N.A., Milan London Branch Chicago Branch 27,500,000
Branch Corso Matteotti
The Bank of New York New York Branch New York Branch 27,500,000
Bank One, NA London Branch Chicago Branch 27,500,000
BNP PARIBAS Paris Branch New York Branch 27,500,000
Barclays Bank PLC London Branch New York Branch 27,500,000
Bayerische Landesbank London Branch New York Branch 27,500,000
Girozantrale, Filiale di Milano
Caixa Geral de Depositos, S.A. Paris Branch New York Branch 27,500,000
Citibank, N.A. London Branch Delaware Branch 27,500,000
First Union National Bank London Branch Xxxxxxxxx Xxxxxx 27,500,000
The Industrial Bank of Japan US Borrowers: New York New York Branch 27,500,000
Branch
Other Borrowers: London
Branch
Natexis Banques Populaires S.A. Paris Branch New York Branch 27,500,000
TOTAL 450,000,000
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SCHEDULE 2
PART A
ORIGINAL BORROWERS CONDITIONS PRECEDENT
1. A Certified Copy of the constitutional documents of each Borrower.
2. Certified Copies of documents evidencing that the officers of each Borrower
who act as signatories for that Borrower in relation to the Financing
Documents have the relevant corporate authority to bind that Borrower and
also setting out specimen signatures of such officers.
3. The Agency Fees Letter and the Arrangement Fees Letter duly executed by the
Borrowers' Agent.
4. A letter addressed by Fiat UK Limited to the Facility Agent in which it
agrees to act as each Borrower's agent for service of process in England
for the purposes of this Agreement.
5. Legal opinions from each of:
(i) Xxxxxxxx Chance;
(ii) Xxxxx Dutilh for CNH Global N.V.;
(iii) Xx Xxxxx, Xxx Xxxxx, Lagae & Xxxxxx, Luxembourg external counsel for
Fiat Finance and Trade Ltd. S.A.; and
(iv) internal counsel for Case Credit Corporation, Case Corporation, New
Holland Credit Company LLC and Fiat S.p.A.
6. Evidence of the full repayment and cancellation (in accordance with the
terms of the relevant agreements) of the $1.1 billion revolving credit and
guarantee agreement made available to Case Corporation and the $1.2 billion
revolving credit and guarantee agreement made available to Case Credit
Corporation, each dated 23 August 1996.
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PART B
ACCEDING BORROWER CONDITIONS PRECEDENT
1. A Certified Copy of the constitutional documents of the proposed Additional
Borrower.
2. Certified Copies of documents evidencing that the officers of the proposed
Additional Borrower who act as signatories for that proposed Additional
Borrower in relation to the Financing Documents have the relevant corporate
authority to bind that proposed Additional Borrower and also setting out
specimen signatures of such officers.
3. In the case of a Proposed Borrower incorporated in a Jurisdiction other
than England and Wales, a letter addressed by Fiat UK Limited to the
Facility Agent in which it agrees to act as the proposed Additional
Borrower's agent for service of process in England for the purposes of this
Agreement.
4. Legal opinions from counsel approved by the Facility Agent (acting
reasonably) in the jurisdiction of incorporation of the proposed Additional
Borrower.
5. A Certified Copy of the proposed Additional Borrower's latest financial
statements.
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SCHEDULE 3
DRAWDOWN NOTICE
To: [The Facility Agent/The Euro Swing-Line Agent/The US Swing-Line Agent]
From:
*[date]
Dear Sirs,
$2,000,000,000 CREDIT AGREEMENT DATED * 2000 (THE "CREDIT AGREEMENT")
Terms defined in the Credit Agreement have the same meaning in this notice.
We request an Advance to be drawn down under the Credit Agreement as follows:
1. Amount of Advance:
2. Type of Advance: [Revolving/Euro Swing-Line/Dollar Swing-Line]
3. Currency: [o/Euro/$]
4. Drawdown Date:
5. Duration of first Interest Period:
6. Payment instructions: (if applicable)
We confirm that today and on the Drawdown Date:
(a) the representations and warranties in sub-clause 14.1.1 to 14.1.4 and
14.1.11 of Clause 14.1 (Representations and Warranties) inclusive to be
repeated are and will be correct; and
(b) no Default or Potential Default has occurred and is continuing or will
occur on the making of the Advance.
SIGNED
For and on behalf of
[o]
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SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
TRANSFER CERTIFICATE
To: The Facility Agent
and the other parties to the Credit Agreement (as defined below)
This transfer certificate ("TRANSFER CERTIFICATE") relates to a credit agreement
dated * 2000 and made between (1) Fiat S.p.A. and others as Borrowers, (2)
certain banks, (3) Chase Manhattan International Limited, (4) The Chase
Manhattan Bank, (5) ABN AMRO Bank N.V., (6) Chase Manhattan Plc and (7) Banca
Intesa S.p.A., London Branch in respect of a multicurrency revolving and
swing-line loan facility (the "CREDIT AGREEMENT", which term shall include any
amendments or supplements to it).
Terms defined and references construed in the Credit Agreement shall have the
same meanings and construction in this Transfer Certificate.
1. *[insert full name of Existing Bank] (the "EXISTING BANK"):
(a) confirms that to the extent that details appear in the schedule to
this Transfer Certificate under the headings "Existing Bank's
Revolving Commitment", "Existing Bank's Swing-Line Commitment",
"Existing Bank's Participation in Revolving Advances" and "Existing
Bank's Participation in Swing-Line Advances", those details accurately
summarise its Commitments and its Participations in Advances all or
part of which is to be transferred; and
(b) requests *[insert full name of Bank Transferee] (the "Bank
Transferee") to accept and procure, in accordance with Clause 23
(Assignments and Transfers) of the Credit Agreement, the substitution
of the Existing Bank by the Bank Transferee in respect of the amount
of its Commitment(s) and its Participation(s) in Advances to be
transferred as specified in the schedule to this Transfer Certificate
by signing this Transfer Certificate.
2. The Bank Transferee requests each of the Parties to accept this executed
Transfer Certificate as being delivered under and for the purposes of
Clause 23 (Assignments and Transfers) of the Credit Agreement so as to take
effect in accordance with the provisions of that Clause on *[insert date of
transfer].
3. The Bank Transferee:
(a) confirms that it has received a copy of the Credit Agreement together
with such other documents and information as it has requested in
connection with this transaction;
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(b) confirms that it has not relied and will not rely on the Existing Bank
to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such
documents or information; and
(c) agrees that it has not relied and will not rely on the Finance Parties
to assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of the
Borrowers.
4. The Bank Transferee undertakes with the Existing Bank and each of the other
Parties that it will perform, in accordance with its terms, all those
obligations which, by the terms of the Credit Agreement, will be assumed by
it upon delivery of the executed copy of this Transfer Certificate to the
Facility Agent.
5. On execution of this Transfer Certificate by the Facility Agent on their
behalf, the Parties accept the Bank Transferee as a party to the Credit
Agreement in substitution for the Existing Bank with respect to all those
rights and/or obligations which, by the terms of the Credit Agreement, will
be assumed by the Bank Transferee after delivery of the executed copy of
this Transfer Certificate to the Facility Agent.
6. None of the Finance Parties:
(a) makes any representation or warranty or assumes any responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Credit Agreement; or
(b) assumes any responsibility for the financial condition of any Borrower
or any other party to the Credit Agreement or any other document or
for the performance and observance by any Borrower or any other party
to the Credit Agreement or any other document of its or their
obligations and any and all conditions and warranties, whether express
or implied by law or otherwise, are excluded.
7. The Bank Transferee confirms that its Lending Office and address for
notices for the purposes of the Credit Agreement are as set out in the
schedule to this Transfer Certificate.
8. The Existing Bank gives notice to the Bank Transferee (and the Bank
Transferee acknowledges and agrees with the Existing Bank) that the
Existing Bank is under no obligation to re-purchase (or in any other manner
to assume, undertake or discharge any obligation or liability in relation
to) the transferred Commitment(s) and Participation(s) at any time after
this Transfer Certificate shall have taken effect.
9. Following the date upon which this Transfer Certificate shall have taken
effect, without limiting the terms of this Transfer Certificate, each of
the Bank Transferee and the Existing Bank acknowledges and confirms to the
other that, in relation to the transferred Commitment(s) and
Participation(s), variations, amendments or alterations to any of the terms
of the Credit Agreement arising in connection with any
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renegotiation or rescheduling of the obligations under the Credit Agreement
shall apply to and be binding on the Bank Transferee alone.
10. This Transfer Certificate is governed by and shall be construed in
accordance with English law.
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THE SCHEDULE
Existing Bank's Revolving Commitment Amount of Revolving Commitment Transferred
Existing Bank's Swing-Line Commitment Amount of Swing-Line Commitment Transferred
Existing Bank's Participation in Revolving Advances Amount of Revolving Participation Transferred
Existing Bank's Participation in Swing-Line Advances Amount of Swing-Line Participation Transferred
*[insert full name of Bank Transferee] Address for notices
* *
*[Bank Transferee]
By:
------------------------------------
(Duly authorised)
*[Existing Bank]
By:
------------------------------------
(Duly authorised)
The Facility Agent on behalf of itself and all other parties to the Credit
Agreement
By:
------------------------------------
(Duly authorised)
Dated:
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SCHEDULE 5
BORROWER ACCESSION MEMORANDUM
To: The Facility Agent
From: [Subsidiary]
and
[Fiat S.p.A.] / [The Borrowers' Agent]
Dated: [o]
Dear Sirs,
1. We refer to a credit agreement (the "CREDIT AGREEMENT") dated [o] 2000
between a group of borrowers including Fiat S.p.A. ("FIAT"), Chase
Manhattan International Limited as facility agent, the financial
institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. Fiat requests that [Subsidiary] become an Additional Borrower pursuant to
Clause 13 (Request for Additional Borrowers) of the Credit Agreement.
4. [Subsidiary] is a company duly organised under the laws of [name of
relevant jurisdiction].
5. [Subsidiary] confirms that it has received from [Fiat] / [The Borrowers'
Agent] a true and up-to-date copy of the Credit Agreement.
6. [Subsidiary] undertakes, upon its becoming a Borrower, to perform all the
obligations expressed to be undertaken under the Credit Agreement by a
Borrower and agrees that it shall be bound by the Credit Agreement in all
respects as if it had been an original party thereto as an Original
Borrower (for the avoidance of doubt, the Subsidiary shall upon its
accession to the Credit Agreement, make the representations and warranties
contained in Clause 14.1 (Representations and Warranties) in respect of
itself only and, in respect of the representations and warranties in
sub-clause 14.1.10, in respect of its then latest audited financial
statements).
7. Fiat confirms that, if [Subsidiary] is accepted as an Additional Borrower,
its obligations pursuant to Clause 12 (Co-Borrower's Covenants) of the
Credit Agreement will apply to all the obligations of [Subsidiary] under
the Financing Documents in all respects in accordance with the terms of the
Credit Agreement.
8. This Memorandum shall be governed by English law.
Fiat S.p.A. [Subsidiary]
By: By:
----------------------------- ---------------------------
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SCHEDULE 6
FORM OF RESIGNATION NOTICE
To: [Insert name of Facility Agent]
From: [Fiat S.p.A.] / [The Borrowers' Agent]
Dated: [o]
Dear Sirs,
1. We refer to a credit agreement (the "CREDIT AGREEMENT") dated [o] 2000
between a group of borrowers including Fiat S.p.A. ("FIAT"), Chase
Manhattan International Limited as facility agent, the financial
institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. We declare that [name of Borrower] is under no actual or contingent
obligation under any Finance Document in its capacity as a Borrower.
4. Pursuant to Clause 13.3 (Resignation of a Borrower) we hereby request that
[name of Borrower] shall cease to be a Borrower under the Credit Agreement.
Yours faithfully
for and on behalf of
[FIAT S.P.A.] / [THE BORROWERS' AGENT]
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THE BORROWERS
SIGNED by )
)
for and on behalf of )
FIAT S.P.A. )
SIGNED by )
)
for and on behalf of )
CNH GLOBAL N.V. )
SIGNED by )
)
for and on behalf of )
FIAT FINANCE AND )
TRADE LTD. S.A. )
SIGNED by )
)
for and on behalf of )
NEW HOLLAND CREDIT )
COMPANY LLC )
SIGNED by )
)
for and on behalf of )
CASE CORPORATION )
SIGNED by )
)
for and on behalf of )
CASE CREDIT CORPORATION )
68
71
THE BANKS
SIGNED by )
)
for and on behalf of )
ABN AMRO BANK N.V. )
SIGNED by )
)
for and on behalf of )
BANCA INTESA S.P.A., )
LONDON BRANCH )
SIGNED by )
)
for and on behalf of )
THE CHASE MANHATTAN BANK )
SIGNED by )
)
for and on behalf of )
BANCA NAZIONALE DEL LAVORO )
S.P.A., LONDON BRANCH )
SIGNED by )
)
for and on behalf of )
BANK OF AMERICA, N.A., MILAN )
BRANCH CORSO MATTEOTTI )
SIGNED by )
)
for and on behalf of )
THE BANK OF NEW YORK )
69
72
SIGNED by )
)
for and on behalf of )
BANK ONE, NA )
SIGNED by )
)
for and on behalf of )
BNP PARIBAS )
SIGNED by )
)
for and on behalf of )
BARCLAYS BANK PLC )
SIGNED by )
)
for and on behalf of )
BAYERISCHE LANDESBANK )
GIROZENTRALE, FILIALE DI MILANO )
SIGNED by )
)
for and on behalf of )
CAIXA GERAL DE DEPOSITOS, S.A. )
SIGNED by )
)
for and on behalf of )
CAJA MADRID )
SIGNED by )
)
for and on behalf of )
CITIBANK, N.A. )
70
73
SIGNED by )
)
for and on behalf of )
CREDIT AGRICOLE INDOSUEZ )
SIGNED by )
)
for and on behalf of )
CREDIT INDUSTRIEL ET COMMERCIAL )
SIGNED by )
)
for and on behalf of )
DEUTSCHE BANK LUXEMBOURG S.A. )
SIGNED by )
)
for and on behalf of )
DRESDNER BANK LUXEMBOURG S.A. )
SIGNED by )
)
for and on behalf of )
FIRST UNION NATIONAL BANK, )
LONDON BRANCH )
SIGNED by )
)
for and on behalf of )
HSBC BANK PLC )
SIGNED by )
)
for and on behalf of )
THE INDUSTRIAL BANK OF JAPAN, )
LIMITED )
71
74
SIGNED by )
)
for and on behalf of )
ING BEARINGS )
SIGNED by )
)
for and on behalf of )
NATEXIS BANQUES POPULAIRES S.A. )
SIGNED by )
)
for and on behalf of )
SOCIETE GENERALE FINANCE )
(IRELAND) LIMITED )
SIGNED by )
)
for and on behalf of )
TORONTO DOMINION (TEXAS) INC. )
SIGNED by )
)
for and on behalf of )
UNICREDITO ITALIANO S.P.A., )
LONDON BRANCH )
SIGNED by )
)
for and on behalf of )
UBS AG )
SIGNED by )
)
for and on behalf of )
WESTDEUTSCHE LANDESBANK )
GIROZENTRALE, NEW YORK BRANCH )
72
75
SIGNED by )
)
for and on behalf of )
BANCA DI ROMA S.P.A., )
LONDON BRANCH )
SIGNED by )
)
for and on behalf of )
BANCA MONTE DEI PASCHI DI )
SIENA S.P.A. )
SIGNED by )
)
for and on behalf of )
BANCA POPOLARE DI BERGAMO )
- CREDITO VARESINO S.C.R.L. )
SIGNED by )
)
for and on behalf of )
BANESTO S.A. )
SIGNED by )
)
for and on behalf of )
BANK OF MONTREAL )
SIGNED by )
)
for and on behalf of )
BAYERISCHE HYPO-UND )
VEREINSBANK AG )
73
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SIGNED by )
)
for and on behalf of )
BBVA IRELAND PLC )
SIGNED by )
)
for and on behalf of )
COMERICA BANK )
SIGNED by )
)
for and on behalf of )
CREDIT SUISSE FIRST BOSTON )
SIGNED by )
)
for and on behalf of )
FLEET NATIONAL BANK, LONDON )
BRANCH )
SIGNED by )
)
for and on behalf of )
XXXXXX GUARANTY TRUST )
COMPANY OF NEW YORK )
SIGNED by )
)
for and on behalf of )
KBC BANK N.V. DUBLIN BRANCH )
SIGNED by )
)
for and on behalf of )
MELLON BANK N.A. )
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SIGNED by )
)
for and on behalf of )
RBC FINANCE B.V. )
SIGNED by )
)
for and on behalf of )
SAN PAOLO IMI S.P.A. )
SIGNED by )
)
for and on behalf of )
SCOTIABANK (IRELAND) LIMITED )
SIGNED by )
)
for and on behalf of )
STANDARD CHARTERED BANK )
SIGNED by )
)
for and on behalf of )
THE SUMITOMO BANK, LIMITED )
THE FACILITY AGENT
SIGNED by )
)
for and on behalf of )
CHASE MANHATTAN )
INTERNATIONAL LIMITED )
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THE EURO SWING-LINE AGENT
SIGNED by )
)
for and on behalf of )
CHASE MANHATTAN )
INTERNATIONAL LIMITED )
THE US SWING-LINE AGENT
SIGNED by )
)
for and on behalf of )
THE CHASE MANHATTAN BANK )
THE ARRANGERS
SIGNED by )
)
for and on behalf of )
ABN AMRO BANK N.V. )
SIGNED by )
)
for and on behalf of )
BANCA INTESA S.P.A., LONDON )
BRANCH )
SIGNED by )
)
for and on behalf of )
CHASE MANHATTAN PLC )
For the purposes of Article 1 of the Protocol annexed to the Brussels Convention
on jurisdiction and the enforcement of judgments in civil and commercial matters
signed at Brussels on 27 September 1968, Fiat Finance and Trade Ltd. S.A.
expressly and specifically agrees to and accepts the jurisdiction of the Courts
of England.
-----------------------------------------------
for and on behalf of
FIAT FINANCE AND TRADE LTD. S.A.
76
