CONFORMED COPY FACILITIES AGREEMENT DATED 31st March, 2003 US$850,000,000 FOR AUTOLIV, INC. AUTOLIV ASP, INC. and AUTOLIV AB ARRANGED BY BANK ONE EUROPE LIMITED COMMERZBANK AKTIENGESELLSCHAFT SEB MERCHANT BANKING and SOCIETE GENERALE INVESTMENT...
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CONFORMED COPY
DATED 31st March, 2003
US$850,000,000
FOR AUTOLIV, INC. AUTOLIV ASP, INC. and AUTOLIV AB
ARRANGED BY BANK ONE EUROPE LIMITED COMMERZBANK AKTIENGESELLSCHAFT SEB MERCHANT BANKING
and
SOCIETE GENERALE INVESTMENT BANKING
London BK:1045650.5 INDEX Clause Page 1. Interpretation * 2. The Facility * 3. Purpose * 4. Conditions Precedent * 5. Revolving Loans * 6. Swingline Loans * 7. Repayment * 8. Prepayment and Cancellation * 9. Interest Periods * 10. Interest * 11. Optional Currencies * 12. Payments * 13. Taxes * 14. Market Disruption * 15. Increased Costs * 16. Illegality * 17. Guarantee * 18. Representations and Warranties * 19. Undertakings * 20. Default * 21. The Agents and the Mandated Lead Arrangers * 22. Fees * 23. Expenses * 24. Stamp Duties * 25. Indemnities * 26. Evidence and Calculations * 27. Amendments and Waivers * 28. Changes to the Parties * 29. Disclosure of Information * 30. Set-Off * 31. Pro Rata Sharing * 32. Severability * 33. Counterparts * 34. Notices * 35. Language * 36. Jurisdiction * 37. Governing Law * 38. Integration * 39. Waiver of Jury Trial *
Schedules 1. Various Parties * 2. Conditions Precedent Documents * 3. Calculation of the Mandatory Cost * 4. Form of Request * 5. Form of Novation Certificate * 6. Form of Compliance Certificate * 7. Form of Renewal Request * 8. Form of Extension Request * Signatories * |
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THIS AGREEMENT is dated, 31st March, 2003 between:
(3) BANK ONE EUROPE LIMITED, COMMERZBANK AKTIENGESELLSCHAFT, SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA XXXXXX XX (publ) and SOCIETE GENERALE INVESTMENT BANKING as mandated lead arrangers (the "Mandated Lead Arrangers"); (4) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "Banks"); (5) SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA XXXXXX XX (publ) as facility agent (the "Facility Agent"); and (6) BANK ONE, NA as swingline agent (the "Swingline Agent"). IT IS AGREED as follows:
In this Agreement: "Affiliate" means a Subsidiary or a holding company of a person or any other Subsidiary of that holding company. "Affiliated Bank" means a Bank which is an Affiliate of another Bank. "Agent" means the Facility Agent or the Swingline Agent. "Bank" means a Revolving Credit Bank or a Swingline Bank. "Board" means the Board of Governors of the Federal Reserve System of the United States of America or any successor thereof. "Business Day" means a day (other than a Saturday or a Sunday): (a) on which banks are open for general business in: (i) London and Stockholm; (ii) New York; and (iii) in relation to a transaction involving an Optional Currency other than Sterling, the principal financial centre of the jurisdiction of that Optional Currency; and (b) in relation to a transaction involving Euros, which is a TARGET Day. "Code" means the United States Internal Revenue Code of 1986 and any rule or regulation issued thereunder from time to time in effect. "Commitment" means, in relation to a Bank, its Facility A Commitment or its Facility B Commitment. "Dangerous Substance" means any radioactive emissions and any natural or artificial substance (whether in solid or liquid form or in the form of a gas or vapour and whether alone or in combination with any other substance) capable of causing harm to man or any other living organism or damaging the environment or public health or welfare including but not limited to any controlled, special, hazardous, toxic, radioactive or dangerous waste. "Default" means an Event of Default or an event which, with the giving of notice, lapse of time, determination of materiality or fulfilment of any other applicable condition (or any combination of the foregoing), would constitute an Event of Default. "Drawdown Date" means the date of the advance of a Loan. "Environmental Claim" means any claim by any person as a result of or in connection with any violation of Environmental Law or any Environmental Contamination which could give rise to any remedy or penalty (whether interim or final) or liability for any Obligor or any Finance Party which could reasonably be expected to have a material adverse effect. "Environmental Contamination" means each of the following and their consequences: (a) any release, emission, leakage, or spillage of any Dangerous Substance into any part of the environment; or (b) any accident, fire, explosion or sudden event which is directly or indirectly caused by or attributable to any Dangerous Substance; or (c) any other pollution of the environment. "Environmental Law" means any national or supranational law, regulation or directive concerning the protection of human health or the environment or concerning Dangerous Substances. "Environmental License" means any authorization by any Environmental Law. "ERISA" means the United States Employee Retirement Income Security Act of 1974, as amended. "ERISA Affiliate" means each trade or business, whether or not incorporated, that would be treated as a single employer with any Obligor under section 414 of the United States Internal Revenue Code of 1986, as amended. When any provision of this Agreement relates to a past event, the term "ERISA Affiliate" includes any person that was an ERISA Affiliate of an Obligor at the time of that past event. "EURIBOR" means in relation to any Loan denominated in Euros: (a) the applicable Screen Rate; or (b) if no such Screen Rate is available for the currency or Interest Period of the relevant Loan, the arithmetic mean of the rates (rounded upwards if necessary to the nearest four decimal places) as supplied to the Facility Agent at its request quoted by the Reference Banks to leading banks in the European interbank market, at or about 11.00 a.m. (Brussels time) on the Rate Fixing Day for the offering of deposits in Euros for a period comparable to the relevant Interest Period. "Euro" and "e " means the single currency of the Participating Member States. "Event of Default" means an event specified as such in Clause 20.1 (Events of Default). "Existing Indebtedness" means the US$850,000,000 revolving credit facility dated 13th November, 2000 between, inter alia, the Parent, the Borrowers, SEB Merchant Banking, Skandinaviska Enskilda Xxxxxx XX (publ) as facility agent and Bank One, NA as swingline agent. "Extension Option" means the option of the Obligors' Agent to request an extension of the Facility B Maturity Date under Clause 2.8 (Extension Option). "Extension Request" means a request made by the Obligors' Agent under Clause 2.8 (Extension Option), substantially in the form of Schedule 8 (Form of Extension Request). "Facility" means Facility A or Facility B. "Facility A" means the multi-currency revolving credit facility with the Renewal Option referred to in Clause 2.1(a) (Facilities). "Facility A Commitment" means: (a) in relation to a Bank which is a Bank on the date of this Agreement, the amount in US Dollars set opposite its name in Part I of Schedule 1 and the amount of any other Bank's Facility A Commitment acquired by it under Clause 28 (Changes to the Parties); and (b) in relation to a Bank which becomes a Bank after the date of this Agreement, the amount of any other Bank's Facility A Commitment acquired by it under Clause 28 (Changes to the Parties), to the extent not cancelled, reduced or transferred under this Agreement. "Facility A Loan" means a Loan drawn down, or to be drawn down, under Facility A. "Facility A Maturity Date" means: (a) subject to Clause 2.7 (Renewal Option), the date falling a year less a day after the date of this Agreement; or (b) such later date as may be agreed under Clause 2.7 (Renewal Option). "Facility Agent's Spot Rate of Exchange" means the Facility Agent's spot rate of exchange for the purchase of the relevant Optional Currency in the London foreign exchange market with US Dollars at or about 11.00 a.m. on a particular day. "Facility B" means the multi-currency revolving credit and US Dollar swingline facilities referred to in Clause 2.1(b) (Facilities). "Facility B Commitment" means: (a) in relation to a Bank which is a Bank on the date of this Agreement, the amount in US Dollars set opposite its name in Part II of Schedule 1 and the amount of any other Bank's Facility B Commitment acquired by it under Clause 28 (Changes to the Parties); and (b) in relation to a Bank which becomes a Bank after the date of this Agreement, the amount of any other Bank's Facility B Commitment acquired by it under Clause 28 (Changes to the Parties), to the extent not cancelled, reduced or transferred under this Agreement. "Facility B Loan" means a Loan drawn down, or to be drawn down, under Facility B. "Facility B Maturity Date" means, in relation to the participation of each individual Bank: (a) subject to Clause 2.8 (Extension Option), the fifth anniversary of the date of this Agreement; or (b) such later date as may be agreed under Clause 2.8 (Extension Option). "Facility Office" means the office(s) notified by a Bank to the Facility Agent: (a) on or before the date it becomes a Bank; or (b) by not less than five Business Days' notice, as the office(s) through which it will perform all or any of its obligations under this Agreement. "Federal Funds Rate" means, on any day, the rate per annum determined by the Swingline Agent to be the Federal Funds Rate (as published by the Federal Reserve Bank of New York) at or about 1.00 p.m. (New York City time) on that day. "Fee Letters" means the letter from the Mandated Lead Arrangers to the Obligors and the letters from the Agents to the Obligors, each dated on or about the date of this Agreement and setting out (among other matters) the amount of the fees referred to in Clause 22 (Fees). "Finance Document" means this Agreement, the Fee Letters, a Novation Certificate or any other document designated as such by the Facility Agent and the Obligors' Agent. "Finance Party" means an Agent, a Mandated Lead Arranger or a Bank. "Financial Indebtedness" means any indebtedness in respect of:
"Group" means the Parent and its Subsidiaries. "Information Package" means the information package prepared by the Obligors in connection with this Agreement and dated February, 2003. "Interest Period" means each period determined in accordance with Clause 9 (Interest Periods). "LIBOR" means: (a) the applicable Screen Rate; or (b) if no such Screen Rate is available for the currency or Interest Period of the relevant Loan, the arithmetic mean (rounded upward if necessary to the nearest four decimal places) of the rates per annum as supplied to the Facility Agent at its request, quoted by the Reference Banks to leading banks in the London interbank market, at or about 11.00 a.m. on the applicable Rate Fixing Day for the offering of deposits in the currency of the relevant Loan for a period comparable to the relevant Interest Period. "Loan" means, subject to Clause 9 (Interest Periods), the principal amount of each borrowing by a Borrower under this Agreement or the principal amount outstanding of that borrowing. "Majority Banks" means, at any time, Banks: (a) whose Commitments then aggregate more than 662/3 per cent. of the Total Commitments; or (b) if the Total Commitments have been reduced to nil, whose Commitments aggregated more than 662/3 per cent. of the Total Commitments immediately before the reduction. "Mandatory Cost" means, in relation to each Bank which notifies the Facility Agent that it is incurring such costs, the cost imputed to the Bank of compliance with:
in each case as determined in accordance with Schedule 3. "Margin" means, subject to Clause 10.2 (Adjustment of Margin), 0.45 per cent. per annum. "Margin Stock" has the meaning assigned to such term in Regulation U of the Board. "Material Group Member" means any Subsidiary of the Parent: (a) (i) the book value of whose assets (consolidated if it itself has Subsidiaries) equals or exceeds 3 per cent. of the book value of the consolidated total assets of the Group; or (ii) whose revenues (consolidated if it itself has Subsidiaries) equal or exceed 3 per cent. of the revenues of the Group taken as a whole; or (iii) whose trading profits (consolidated if it itself has Subsidiaries) before interest and tax equal or exceed 3 per cent. of the trading profits before interest and tax of the Group as a whole, as determined by reference to the most recent accounts of the Subsidiary and the most recent consolidated accounts of the Group; or (b) any Subsidiary of the Parent which becomes a member of the Group after the date of the latest consolidated accounts of the Group at the time of determination and which would fulfil any of the tests in (a)(i), (ii) or (iii) above if tested on the basis of its latest accounts (consolidated if it itself has Subsidiaries) and those latest accounts of the Group; or (c) prior to the delivery of each set of accounts pursuant to Clause 19.2 (Financial information), any Subsidiary of the Parent to which has been transferred (whether by one transaction or a series of transactions, related or not) the whole or substantially the whole of the assets of a Subsidiary which immediately prior to such transaction or any of such transactions was a Material Group Member. "Material Subsidiary" means any Subsidiary of the Parent: (a) (i) the book value of whose assets (consolidated if it itself has Subsidiaries) equals or exceeds 10 per cent. of the book value of the consolidated total assets of the Group; or (ii) whose revenues (consolidated if it itself has Subsidiaries) equal or exceed 10 per cent. of the revenues of the Group taken as a whole; or (iii) whose trading profits (consolidated if it itself has Subsidiaries) before interest and tax equal or exceed 10 per cent. of the trading profits before interest and tax of the Group as a whole, as determined by reference to the most recent accounts of the Subsidiary and the most recent consolidated accounts of the Group; or (b) any Subsidiary of the Parent which becomes a member of the Group after the date of the latest consolidated accounts of the Group at the time of determination and which would fulfil any of the tests in (a)(i), (ii) or (iii) above if tested on the basis of its latest accounts (consolidated if it itself has Subsidiaries) and those latest accounts of the Group; or (c) prior to the delivery of each set of accounts pursuant to Clause 19.2 (Financial information), any Subsidiary of the Parent to which has been transferred (whether by one transaction or a series of transactions, related or not) the whole or substantially the whole of the assets of a Subsidiary which immediately prior to such transaction or any of such transactions was a Material Subsidiary. "Maturity Date" means the Facility A Maturity Date or the Facility B Maturity Date. "Moody's" means Xxxxx'x Investors Service, Inc. "Multiemployer Plan" means a "multiemployer plan" within the meaning of section 3(37) or 4001(a)(3) of ERISA. "National Currency Unit" means the unit of currency of a Participating Member State other than the euro unit. "Novation Certificate" has the meaning given to it in Clause 28.3 (Procedure for novations). "Obligor" means the Parent and each Borrower. "Obligors' Agent" means the Parent, or such other Obligor from time to time nominated by the Obligors' Agent to replace it as Obligors' Agent and approved for such purpose by the Facility Agent. "Optional Currency" means any currency (other than US Dollars) which is freely available and convertible into US Dollars, and deposits of which are readily available in the London interbank market. "Original Dollar Amount" in relation to a Loan, means: (a) if that Loan is denominated in US Dollars, the amount of that Loan; or (b) if that Loan is denominated in an Optional Currency, the equivalent in US dollars of the amount of that Loan, calculated at the Facility Agent's Spot Rate of Exchange one Business Day before the Rate Fixing Day applicable to that Loan. "Original Group Accounts" means the audited consolidated accounts of the Group for the year ended 31st December, 2002. "Participating Member State" means a member state of the European Union that adopts a single currency in accordance with the legislation of the European Union relating to European Economic and Monetary Union. "Party" means a party to this Agreement. "Plan" means an "employee benefit plan" within the meaning of section 3(3) of ERISA maintained by the Borrower or any ERISA Affiliate currently or at any time within the last five years, or to which the Borrower or any ERISA Affiliate is required to make payments or contributions or has made payments or contributions within the past five years. "Prime Rate" means the prime commercial lending rate in US Dollars from time to time announced by the Swingline Agent; each change in the interest rate on a Swingline Loan which results from a change in the Prime Rate becomes effective on the day on which the change in the Prime Rate becomes effective. "Rate Fixing Day" means: (a) the second Business Day before the first day of an Interest Period for a Revolving Loan denominated in any currency other than Sterling; or (b) in the case of a Revolving Loan denominated in Sterling only, the first day of the Interest Period for that Loan, or such other day as is generally treated as the rate fixing day by market practice in the relevant interbank market for leading banks to give quotations for deposits in the relevant currency for delivery on the first day of the relevant Interest Period, as determined by the Facility Agent. "Rating Agency" means Moody's or Standard & Poor's. "Reference Banks" means, subject to Clause 28.4 (Reference Banks), the Facility Agent, Bank One, NA and Société Générale. "Renewal Option" means the option of the Obligors' Agent to request an extension of the Facility A Maturity Date under Clause 2.7 (Renewal Option). "Renewal Request" means a request made by the Obligor's Agent under Clause 2.7 (Renewal Option), substantially in the form of Schedule 7 (Form of Renewal Request). "Reportable Event" means any of the events set forth in section 4043 of ERISA or the related regulations. "Request" means a request made by the Obligors' Agent for a Loan, substantially in the form of Schedule 4. "Restricted Margin Stock" means Margin Stock owned by any Obligor or any member of the Group, which represents not more than 33 1/3 per cent of the aggregate value (determined in accordance with Regulation U of the Board), on a consolidated basis, of the assets of each Obligor and all members of the Group (other than Margin Stock) that are subject to the provisions of Clause 19 (Undertakings) (including, without limitation, Clauses 19.8 (Negative pledge) and 19.9 (Transactions similar to security)). "Revolving Credit Bank" means, subject to Clause 28 (Changes to the Parties), a bank or financial institution listed in Part I and/or Part II of Schedule 1 in its capacity as a provider of Revolving Loans. "Revolving Credit Commitment" means: (a) in relation to a Revolving Credit Bank which is a Revolving Credit Bank on the date of this Agreement, the aggregate of the amounts in US Dollars set opposite its name in Parts I and II of Schedule 1 and the amount of any other Bank's Revolving Credit Commitment acquired by it under Clause 28 (Changes to the Parties); and (b) in relation to a Revolving Credit Bank which becomes a Revolving Credit Bank after the date of this Agreement, the amount of any other Bank's Revolving Credit Commitment acquired by it under Clause 28 (Changes to the Parties), to the extent not cancelled, reduced or transferred under this Agreement. "Revolving Loan" means, subject to Clause 11 (Optional Currencies), the principal amount of a borrowing by a Borrower: (a) under Facility A; or (b) provided by the Revolving Credit Banks under Facility B by means of a revolving loan, as set out in Clause 2.1(b)(i) (Facilities). "Screen Rate" means: (a) in relation to LIBOR, the British Bankers' Association Settlement Rate for the relevant currency and period; and (b) in relation to EURIBOR, the percentage rate per annum determined by the Banking Federation of the European Union for the relevant period, displayed on the appropriate page of either the Reuters or the Bloomberg Screen (as selected by the Facility Agent). If the relevant page is replaced or the service ceases to be available, the Facility Agent may (after consultation with the Obligors' Agent and the Banks) specify another page or service displaying the appropriate rate. "Security Interest" means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the effect of conferring security. "Standard & Poor's" means Standard & Poor's Rating Group, a division of XxXxxx-Xxxx Companies, Inc. "Sterling" means the currency for the time being of the United Kingdom. "Subsidiary" means an entity from time to time of which a person has direct or indirect control or owns directly or indirectly more than fifty per cent. (50%) of the share capital or similar right of ownership. "Swingline Bank" means, subject to Clause 28 (Changes to Parties), a bank or financial institution listed in Part III of Schedule 1 in its capacity as a participant in the Swingline Facility. "Swingline Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in New York. "Swingline Commitment" means: (a) in relation to a Swingline Bank, and subject to Clause 8.2 (Voluntary cancellation) and to Clause 28 (Changes to Parties), the obligation of such Swingline Bank to contribute to Swingline Loans hereunder up to the aggregate principal amount in US Dollars set opposite its name in part III of Schedule 1; or (b) in relation to a Bank which becomes a Swingline Bank after the date of this Agreement, the amount of any other Swingline Bank's Swingline Commitment acquired by it under Clause 28 (Changes to the Parties), to the extent not transferred, cancelled or reduced hereunder. "Swingline Facility" means the US Dollar swingline facility referred to in Clause 2.1(b)(ii) (Facilities). "Swingline Loan" means the principal amount of a borrowing by a Borrower under the Swingline Facility or (as the context requires) the principal amount thereof from time to time outstanding (together the "Swingline Loans"). "Swingline Rate" means, on any day, the higher of: (a) the Prime Rate; and (b) the aggregate of the Federal Funds Rate and 0.50 per cent. per annum. "TARGET Day" means a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open. "Total Commitments" means the aggregate of the Total Facility A Commitments and the Total Facility B Commitments. "Total Facility A Commitments" means the aggregate of the Facility A Commitments of all the Banks, being US$280,000,000 at the date of this Agreement. "Total Facility B Commitments" means the aggregate of the Facility B Commitments of all the Banks (including the Total Swingline Commitments of the Swingline Banks), being US$570,000,000 at the date of this Agreement. "Total Revolving Credit Commitments" means the aggregate for the time being of the Revolving Credit Commitments, being US$850,000,000 at the date of this Agreement. "Total Swingline Commitments" means the aggregate for the time being of the Swingline Commitments, being US$250,000,000 at the date of this Agreement. "Unrestricted Margin Stock" means any Margin Stock owned by either Obligor or any member of the Group which is not Restricted Margin Stock. "U.S.A." means the United States of America. "US Dollars" and "US$" means the currency for the time being of the U.S.A.
"assets" includes present and future properties, revenues and rights of every description; an "authorization" includes an authorization, consent, approval, resolution, licence, exemption, filing, registration and notarization; "control" means the power to direct the management and policies of an entity by controlling 50 per cent. or more of voting capital, whether through the ownership of voting capital, by contract or otherwise; a "material adverse effect" means:
a "month" is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
a "person" includes any individual, company, unincorporated association or body of persons (including a partnership, joint venture or consortium), government, state, agency, international organisation or other entity; a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; "winding up" also includes amalgamation, reconstruction, reorganisation, administration, dissolution, liquidation, merger or consolidation and any equivalent or analogous procedure under the law of any jurisdiction (but, for the avoidance of doubt, "reorganisation" does not include a mere transfer of assets from one member of the Group to another whether the transferor continues to exist);
(d) (i) Unless expressly provided to the contrary in a Finance Document, a person who is not a party to a Finance Document may not enforce any of its terms under the Contracts (Rights of Third Parties) Xxx 0000; and (ii) notwithstanding any term of any Finance Document, the consent of any third party is not required for any variation (including any release or compromise of any liability order) or termination of that Finance Document.
Subject to the terms of this Agreement, the Xxxxx xxxxx to the Borrowers: (a) a multicurrency revolving credit facility under which the Revolving Credit Banks will make Loans to a Borrower denominated in US Dollars or Optional Currencies ("Facility A"); and (b) (i) a multicurrency revolving credit facility under which the Revolving Credit Banks will make Loans to a Borrower denominated in US Dollars or Optional Currencies; and (ii) a US Dollar swingline facility under which the Swingline Banks will make Swingline Loans to a Borrower denominated in US Dollars, (together, "Facility B"). (1) all outstanding Loans due to be repaid on or before that Drawdown Date are repaid; and (2) all Loans to be made on or before that Drawdown Date and in respect of which a Request has been received by an Agent are made; and The obligations of each Bank under this Agreement are several. Failure of a Bank to carry out its obligations hereunder shall not relieve any other Party of any of its obligations under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents. The obligations of each Obligor towards each Finance Party hereunder are given to each of them as separate and independent rights. Each Finance Party may separately enforce its rights under each Finance Document, subject to the other terms of the Finance Documents. (ii) No Bank shall notify the Facility Agent of its acceptance of a Renewal Request prior to the date falling 30 days before the relevant Facility A Maturity Date. (e) If there are any Renewing Banks, then on the relevant Facility A Maturity Date: (i) the Facility A Maturity Date shall be extended to the Renewal Date; and (ii) the Facility A Commitment of each Non-renewing Bank shall be cancelled automatically. (f) Any Renewal Request is irrevocable and may not be withdrawn. (g) In this Clause 2.7: (i) the "relevant Facility A Maturity Date" shall mean the Facility A Maturity Date in effect on the date of a Renewal Request; and (ii) a "Renewing Bank" shall mean a Bank which notifies the Facility Agent, within the dates referred to in paragraph (d), that it accepts a Renewal Request; and (iii) a "Non-renewing Bank" shall mean a Bank which has a Facility A Commitment at the date of a Renewal Request but is not a Renewing Bank. (ii) No Relevant Bank which has or had an Affiliate with a Swingline Commitment may accept an Extension Option unless its Affiliate also agrees to extend its Swingline Commitment to the relevant Extension Date, unless otherwise agreed at the time by the Obligors and the Facility Agent. (iii) No Bank shall notify the Facility Agent of its acceptance of an Extension Request prior to the date falling 30 days before the relevant Extension Option Date. (i) refinancing the Existing Indebtedness; or (ii) as support for any commercial paper programme; or (iii) financing any acquisitions not prohibited by the terms of this Agreement. The Obligors' Agent may not deliver the first Request until the Facility Agent has notified the Borrower and the Banks that it has received all of the documents set out in Schedule 2 in form and substance satisfactory to it. The obligation of each Bank to participate in any Loan is subject to the further conditions precedent that: (a) on both the date of the Request and the Drawdown Date: (b) the making of the Loan would not cause Clause 2.2 (Facility Limits) to be contravened; and (c) the making of the Loan would not result in more than eight Loans being outstanding at any one time. A Borrower may borrow a Revolving Loan if the Facility Agent receives from the Obligors' Agent, not later than 11.00 a.m. two Business Days before the proposed Drawdown Date or, in the case of a Loan denominated in an Optional Currency, three Business Days before the proposed Drawdown Date, a duly completed Request. Each Request is irrevocable. A Request will not be regarded as having been duly completed unless: (a) it specifies that it is a utilisation of the revolving credit facility; (b) it specifies whether it relates to Facility A or Facility B; (c) it specifies the Borrower that will borrow the Loan; (d) the Drawdown Date is a Business Day falling on or before the Maturity Date of the relevant Facility; (e) the amount of the Loan is: (f) the amount selected under paragraph (e) above does not cause Clause 2.2 (Facility Limits) to be contravened; (g) the currency selected complies with Clause 11 (Optional Currencies); (h) the Interest Period selected complies with Clause 9 (Interest Periods) and does not extend beyond the Maturity Date of the relevant Facility which applies to the participation of any Bank; and (i) the payment instructions comply with Clause 12 (Payments). Each Request must specify one Revolving Loan only, but the Obligors' Agent may, subject to the other terms of this Agreement, deliver more than one Request on any one day. A Borrower may borrow a Swingline Loan if the Swingline Agent receives from the Obligors' Agent, not later than 11.00 a.m. (New York City time) on the proposed Drawdown Date, a duly completed Request. Each Request must be copied to the Facility Agent and is irrevocable. A Request for a Swingline Loan will not be regarded as having been duly completed unless: (a) it specifies that it is a utilisation of the Swingline Facility; (b) it specifies the Borrower that will borrow the Loan; (c) the Drawdown Date is a Swingline Business Day falling before the Facility B Maturity Date; (d) the amount of the Loan is: (i) a minimum of U.S.$25,000,000 and an integral multiple of U.S.$5,000,000; or (ii) the balance of the undrawn Total Swingline Commitments; or (iii) such other amount as the Swingline Agent may agree; (e) the amount selected under paragraph (d) does not cause Clause 2.2 (Facility Limits) to be contravened; (f) the Interest Period selected complies with Clause 9 (Interest Periods) and does not extend beyond the Facility B Maturity Date which applies to the participation of any Swingline Bank; and (g) the payment instructions comply with Clause 12 (Payments). Any payment under this Subclause does not reduce the obligations in aggregate of any Obligor. The relevant Borrower shall repay each Loan in full, on the last day of its Interest Period, to the Facility Agent or (in the case of a Swingline Loan) to the Swingline Agent for the relevant Bank(s) participating in that Loan. Subject to the other terms of this Agreement, any amounts repaid under Clause 7.1 (Repayment) may be re-borrowed. If: (a) a Borrower is required to pay to a Bank any additional amounts under Clause 13 (Taxes); or (b) a Borrower is required to pay to a Bank any amount under Clause 15 (Increased Costs); or (d) Clause 14 (Market Disruption) is in operation but no agreement has been reached under Clause 14.3 (Substitute basis), then, without prejudice to the obligations of the Borrowers under those Clauses, the Obligors' Agent may, whilst the relevant circumstances continue, serve a notice of prepayment and cancellation on that Bank through the Facility Agent. On the date falling five Business Days after the date of service of the notice: (i) all the Borrowers shall prepay the participations of that Bank and its Affiliated Bank (if any) in all the Loans; and (ii) the Commitments of that Bank and its Affiliated Bank (if any) shall be cancelled. If, at any time after the date of this Agreement: (a) it is or becomes unlawful for any Obligor to perform any of its obligations under the Finance Documents; or (b) any Borrower (other than the Parent) is not or ceases to be a Subsidiary of the Parent; or (c) any single person, or group of persons acting in concert, acquires control of the Parent; or (d) the guarantee of the Parent is not effective or is alleged by any Obligor to be ineffective for any reason, (e) then the Facility Agent may, and shall if so directed by the Majority Banks, by notice to the Obligors' Agent: (i) cancel the Total Commitments; and/or (ii) demand that all or part of the Loans, together with accrued interest and all other amounts accrued under the Finance Documents, be repaid forthwith, whereupon they shall be repaid forthwith. Each Loan has one Interest Period only. If an Interest Period for a Revolving Loan would otherwise end on a day which is not a Business Day, that Interest Period shall instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not). The Facility Agent shall notify each relevant Party of the duration of each Interest Period promptly after ascertaining its duration. (d) (i) If the Parent's long term unsecured and unsubordinated debt has assigned to it a credit rating by only one Rating Agency, the relevant Margin shall be the percentage rate per annum shown alongside that credit rating under the heading of the relevant Rating Agency in the table below; (ii) if the Parent's long term unsecured and unsubordinated debt has assigned to it a credit rating by both Rating Agencies and the level of both credit ratings is the same, the relevant Margin shall be the percentage rate per annum shown alongside those credit ratings in the table below; (iii) if the Parent's long term unsecured and unsubordinated debt has assigned to it a credit rating by both Rating Agencies but the level of both credit ratings is not the same, then: (A) if the credit ratings are different by only one level, the lower level will apply; (B) if the credit ratings are different by more than one level, then either: (I) the average credit rating will apply; or (II) if the average credit rating falls between two levels, the higher level will apply, and for the purposes of this clause, the "level" of a credit rating shall be that shown as such alongside that credit rating in the table below, with level 1 being the highest and level 4 being the lowest. |
|
Level |
Standard & Poor's rating |
Xxxxx'x rating |
Applicable Margin (per cent. per annum) |
|
1 |
A-or higher |
A3 or higher |
0.425 |
|
2 |
BBB+ |
Baa1 |
0.45 |
|
3 |
BBB |
Baa2 |
0.50 |
|
4 |
BBB - or lower |
Baa3 or lower |
0.75 |
|
(e) (i) On and from any date upon which neither Rating Agency continues to assign a credit rating to the Parent's long term unsecured and unsubordinated debt, the Margin shall be 0.75 per cent. per annum. (ii) the Margin as determined in accordance with sub-paragraph (e)(i) above shall continue until such time as one or both Rating Agency assigns a credit rating to the long term unsecured and unsubordinated debt of the Parent, at which time the remaining provisions of this Clause 10.2 shall apply. Except as otherwise provided in this Agreement, accrued interest on each Loan is payable by the relevant Borrower on the last day of the Interest Period for that Loan and also, if the Interest Period is longer than six months, on the dates falling at six monthly intervals after the first day of that Interest Period.
(B) in all other cases, the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Revolving Loan in the currency of the overdue amount for such successive Interest Periods of such duration as the Facility Agent may determine (each a "Designated Interest Period"). (i) if calculated by reference to the Swingline Rate, on each day; or (ii) if calculated by reference to LIBOR or EURIBOR on each Business Day or the first day of, or two Business Days before the first day of, the relevant Designated Interest Period, as appropriate. The relevant Agent shall promptly notify the Obligors' Agent and the relevant Banks of the determination of a rate of interest under this Agreement.
(b) The currency of each Loan must be US Dollars or an Optional Currency. (c) The Obligors' Agent may not choose a currency if as a result the Revolving Loans would be denominated at any one time in more than four currencies. (d) The Facility Agent shall notify each Revolving Credit Bank of the currency of each Revolving Loan, the applicable Facility Agent's Spot Rate of Exchange and the Original Dollar Amount promptly after they are ascertained. If before 9.30 a.m. on any Rate Fixing Day, the Facility Agent receives notice from a Revolving Credit Bank that: (a) it is impracticable for it to fund its participation in a Revolving Loan in the relevant Optional Currency during that Interest Period in the ordinary course of business in the London interbank market (or the European interbank market as appropriate); and/or (b) the use of the proposed Optional Currency might contravene any law or regulation, the Facility Agent shall give notice to the Obligors' Agent and to the Revolving Credit Banks to that effect before 11.00 a.m. on that day. In this event: (i) the Obligors' Agent and the Revolving Credit Banks may agree that the drawdown will not be made; or (ii) in the absence of agreement: (1) that Bank's participation in the Loan (or, if more than one Bank is similarly affected, those Banks' participations in the Loan) shall be treated as a separate Loan denominated in US Dollars during the relevant Interest Period; (2) in the definition of "LIBOR" (insofar as it applies to that Loan) in Clause 1.1 (Definitions): (A) there shall be substituted for the time "11.00 a.m." the time "1.00 p.m."; and (B) paragraph (b) of that definition shall apply.
All payments by an Obligor or a Bank under the Finance Documents shall be made to the Facility Agent or (if the payment relates to the Swingline Facility) the Swingline Agent to its account at such office or bank in the principal financial centre of the country of the relevant currency (or, in the case of Euros, in the principal financial centre of a Participating Member State, Stockholm or London) as it may notify to that Obligor or that Bank for this purpose. Notwithstanding the above, all payments by the Parent to the Mandated Lead Arrangers under Clauses 22 (Fees) and 23 (Expenses) shall be made to the Mandated Lead Arrangers in the manner agreed by the Mandated Lead Arrangers and the Parent. Payments under the Finance Documents to an Agent shall be made for value on the due date at such times and in such funds as the relevant Agent may specify as being customary at the time for the settlement of transactions in the relevant currency in the place for payment. All payments made by an Obligor under the Finance Documents shall be made without set-off or counterclaim.
All payments by an Obligor under the Finance Documents shall be made without any deduction and free and clear of and without any deduction for or on account of any taxes, except to the extent that the Obligor is required by law to make payment subject to any taxes. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by an Obligor, or paid or payable by an Agent to a Bank, under the Finance Documents, the Obligor shall pay such additional amounts as may be necessary to ensure that the relevant Bank receives a net amount equal to the full amount which it would have received had payment not been made subject to tax or any other deduction. All taxes required by law to be deducted or withheld by an Obligor from any amounts paid or payable under the Finance Documents shall be paid by the relevant Obligor when due and the Obligor shall, within 15 days of the payment being made, deliver to the relevant Agent evidence satisfactory to that Agent (including all relevant tax receipts) that the payment has been duly remitted to the appropriate authority. A party intending to make a claim pursuant to Clause 13.3 (Tax indemnity) shall, promptly upon becoming aware of the circumstances giving rise to such claim, notify the Facility Agent thereof, whereupon the Facility Agent shall notify the relevant Obligor thereof. of the United States Internal Revenue Service.
If LIBOR or EURIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply an offered rate by 11.30 a.m. on a Rate Fixing Day, the applicable LIBOR or EURIBOR shall, subject to Clause 14.2 (Market disruption), be determined on the basis of the quotations of the remaining Reference Banks. If: (a) (i) LIBOR or EURIBOR is to be determined by reference to the Reference Banks but no, or only one, Reference Bank supplies a rate, by 11.30 a.m. on a Rate Fixing Day; or (ii) the Facility Agent otherwise determines that adequate and fair means do not exist for ascertaining LIBOR or EURIBOR; or (b) the Facility Agent receives notification from Revolving Credit Banks whose participations in a Revolving Loan exceed 30 per cent. of that Loan that, in their opinion: (i) matching deposits may not be available to them in the London interbank market or (as applicable) the European interbank market in the ordinary course of business to fund their participations in that Loan for the relevant Interest Period; or (ii) the cost to them of obtaining matching deposits in the London interbank market or the European interbank market would be in excess of LIBOR or EURIBOR (as applicable) for the relevant Interest Period, the Facility Agent shall promptly notify the Obligors' Agent and the Revolving Credit Banks of the fact and that this Clause 14 is in operation. After any notification under Clause 14.2 (Market disruption), the relevant Loan shall not be made. However, within 5 Business Days of receipt of the notification, the Obligors' Agent and the Facility Agent shall enter into negotiations for a period of not more than 30 days with a view to agreeing a substitute basis for determining the rate of interest and/or funding applicable to the Loan and (to the extent required) any future Loans to be denominated in the currency of the affected Loan. Any substitute basis so agreed above shall be, with the prior consent of all the Banks, binding on all the Parties.
(including any law or regulation relating to taxation, change in currency of a country, or reserve asset, special deposit, cash ratio, liquidity or capital adequacy requirements or any other form of banking or monetary control). Clause 15.1 (Increased costs) does not apply to any increased cost: (a) compensated for by the payment of the Mandatory Cost; (b) compensated for by the operation of Clause 13 (Taxes); or (c) attributed to any change in the rate of, or change in the basis of calculating, tax on the overall net income of a Bank (or the overall net income of a division or branch of that Bank) imposed in the jurisdiction in which its principal office for the time being is situate. A Finance Party intending to make a claim for an Increased Cost must provide the Parent with a certificate confirming the amount of, and the events giving rise to, the claim. If it is or becomes unlawful in any jurisdiction for a Bank to give effect to any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan, then: (a) that Bank may notify the Obligors' Agent through the Facility Agent accordingly; and (b) (i) each Borrower shall forthwith prepay the participations of that Bank and its Affiliated Bank (if any) in all the Loans made to it; and (ii) the Commitments of that Bank and its Affiliated Bank (if any) shall forthwith be cancelled.
The Parent irrevocably and unconditionally: (a) as principal obligor guarantees to each Finance Party prompt performance by each Borrower of all its obligations under the Finance Documents; (b) undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, the Parent shall forthwith on demand by an Agent pay that amount as if the Parent instead of the Borrower were expressed to be the principal obligor; and (c) indemnifies each Finance Party on demand against any loss or liability suffered by it if any obligation guaranteed by the Parent is or becomes unenforceable, invalid or illegal. This guarantee is a continuing guarantee and will extend to the ultimate balance of all sums payable by the Borrowers under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part. This guarantee is a guarantee of payment and not of collectability. The obligations of the Parent under this Clause 17 will not be affected by an act, omission, matter or thing which, but for this provision, would reduce, release or prejudice any of its obligations under this Clause 17 or prejudice or diminish those obligations in whole or in part, including (whether or not known to it or any Finance Party): (a) any time or waiver granted to, or composition with, any Borrower or other person; (b) the release of any Obligor or any other person under the terms of any composition or arrangement with any creditors of any member of the Group; (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Borrower or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security; (d) any incapacity or lack of powers, authority or legal personality of or dissolution or change in the members or status of any Borrower or any other person; (e) any variation (however fundamental) or replacement of a Finance Document or any other document or security so that references to that Finance Document in this Clause 17 shall include each variation or replacement; (f) any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security, to the intent that the Parent's obligations under this Clause 17 shall remain in full force and its guarantee be construed accordingly, as if there were no unenforceability, illegality or invalidity; or (g) any postponement, discharge, reduction, non-provability or other similar circumstance affecting any obligation of any Borrower under a Finance Document resulting from any insolvency, liquidation or dissolution proceedings or from any law, regulation or order so that each such obligation shall for the purposes of the Parent's obligations under this Clause 17 be construed as if there were no such circumstance. The Parent waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Parent under this Clause 17. Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may: (a) refrain from applying or enforcing any other monies, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such a manner and order as it sees fit (whether against those amounts or otherwise) and the Parent shall not be entitled to the benefit of the same; and (b) hold in a suspense account any monies received from the guarantor or on account of the guarantor's liability under this Clause 17, without liability to pay interest on those monies. Until all amounts which may be or become payable by the Borrowers under or in connection with the Finance Documents have been irrevocably paid in full, the Parent shall not, after a claim has been made or by virtue of any payment or performance by it under this Clause 17: (a) be subrogated to any rights, security or monies held, received or receivable by any Finance Party (or any trustee or agent on its behalf) or be entitled to any right of contribution or indemnity in respect of any payment made or monies received on account of the Parent's liability under this Clause 17; (b) claim, rank, prove or vote as a creditor of any Borrower or its estate in competition with any Finance Party (or any trustee or agent on its behalf); or (c) receive, claim or have the benefit of any payment, distribution or security from or on account of any Borrower, or exercise any right of set-off as against any Borrower, unless the Facility Agent otherwise directs. The Parent shall hold in trust for and forthwith pay or transfer to the Facility Agent for the Finance Parties any payment or distribution or benefit of security received by it contrary to this Clause 17.7 or as directed by the Facility Agent. This guarantee is in addition to and is not in any way prejudiced by any other security now or subsequently held by any Finance Party.
Each Obligor makes the representations and warranties set out in this Clause 18 to each Finance Party. It has the power to enter into and perform, and has taken all necessary action to authorize the entry into, performance and delivery of, the Finance Documents to which it is or will be a party and the transactions contemplated by those Finance Documents. Each Finance Document to which it is or will be a party constitutes, or when executed in accordance with its terms will constitute, its legal, valid and binding obligation enforceable in accordance with its terms. The entry into and performance by it of, and the transactions contemplated by, the Finance Documents to which it is a party do not and will not: (a) conflict with any law or regulation or judicial or official order; or (b) conflict with the constitutional documents of any Obligor; or (c) conflict with any document which is binding upon any Obligor or any asset of any Obligor. It will not be required to make any deduction or withholding from any payment it may make to any Finance Party under the Finance Documents. In any proceedings taken in the United States of America, or any other relevant state or jurisdiction, in relation to the Finance Documents, it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process. Its obligations under the Finance Documents will rank at least pari passu with the claims of all its other unsecured creditors save those whose claims are preferred solely by any bankruptcy, insolvency, liquidation or other similar laws of general application. It has not taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against it for its winding-up, dissolution, administration or re-organisation or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of any or all of its assets or revenues. Other than as specifically disclosed to the Facility Agent prior to the date of this Agreement, each Obligor is and has been in compliance with all applicable Environmental Laws and Environmental Licences in all material respects and, so far as it is aware, there are no circumstances that may at any time prevent or interfere with continued compliance by it with all applicable Environmental Laws and Environmental Licences in all material respects. Other than as disclosed to the Facility Agent prior to the date of this Agreement, no Environmental Claim is pending or, to the best of its knowledge, threatened against it or any of its properties. Each Plan of the Obligors and their respective ERISA Affiliates complies in all material respects with all applicable requirements of law and regulation. No Reportable Event has occurred with respect to any Plan which might have a material adverse effect, and no steps have been taken to terminate any Plan. No Obligor or any Subsidiary or ERISA Affiliate of an Obligor has had a complete or partial withdrawal from any Multiemployer Plan or initiated any steps to do so. No Obligor is an "investment company" or a company "controlled" by an "investment company", within the meaning of the United States Investment Company Act of 1940, as amended. No Obligor is a "holding company", or an "affiliate" of a "holding company" or a "subsidiary company" of a "holding company", within the meaning of, or otherwise subject to regulation under, the United States Public Utility Holding Company Act of 1935, as amended. No Obligor is a "public utility" within the meaning of, or otherwise subject to regulation under, the United States Federal Power Act. No Obligor is subject to regulation under any United States Federal or State statute or regulation that limits its ability to incur or guarantee indebtedness. No stamp or registration duty or similar taxes or charges are payable in respect of any Finance Document. Other than as permitted by the provisions of Clause 19.8 (Negative pledge), no Security Interest exists over all or any of its present or future revenues or assets. There has been no material adverse change in the condition (financial or otherwise) of any Borrower or the Group as a whole since the date of the Original Group Accounts. The representations and warranties set out in this Clause 18: (a) are made on the date of this Agreement; and (b) (with the exception of Clause 18.10 (Information Package) and Clause 18.24 (Material adverse change)) are deemed to be repeated by each Obligor on the date of each Request and the first day of each Interest Period with reference to the facts and circumstances then existing.
The undertakings in this Clause 19 remain in force from the date of this Agreement for so long as any amount is or may be outstanding under this Agreement or any Commitment is in force. The Parent shall supply to the Facility Agent in sufficient copies for all the Banks: (a) as soon as the same are available (and in any event within 180 days (or, in the case of Autoliv AB, within 212 days) of the end of each of its financial years): (i) its audited consolidated accounts for that financial year; and (ii) the audited accounts of each Borrower for that financial year; (b) as soon as the same are available (and in any event within 90 days of the end of the first half-year of each of its financial years): (i) its unaudited consolidated accounts for that half-year; and (ii) the unaudited accounts of Autoliv ASP, Inc. for that half-year. (c) as soon as the same are available (and in any event within 60 days of the end of each financial quarter): (i) its unaudited consolidated accounts for that financial quarter; and (ii) the unaudited accounts of Autoliv ASP, Inc. for that financial quarter. Each Obligor shall supply to the Facility Agent: (a) all documents despatched by it to its shareholders (or any class of them) or its creditors (or any class of them) at the same time as they are despatched; and (b) (unless already provided to the Facility Agent) promptly upon becoming aware of them, details of any litigation, arbitration or administrative proceedings which are current, threatened or pending, and which might, if adversely determined, have a material adverse effect on the financial condition of any Material Subsidiary or on the Group as a whole or on the ability of any Obligor to perform its obligations under this Agreement; and (c) promptly, such further information in the possession or control of any member of the Group regarding its financial condition and operations as any Finance Party may reasonably request; and (d) immediately upon its occurrence, details of any change in the credit rating assigned to the Parent's long term unsecured and unsubordinated debt by either or both of the Rating Agencies. Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon its occurrence. The Parent shall supply to the Facility Agent: (a) within 5 Business Days of delivery of the accounts specified in Clause 19.2 (a)(i), (b)(i) and (c)(i) (Financial information); and (b) promptly at any other time, if the Facility Agent so requests, a Compliance Certificate signed by one of its senior officers on its behalf (substantially in the form set out in Schedule 6 (Form of Compliance Certificate)): (i) setting out computations as to compliance with Clause 19.22 (Financial Covenants) as at the date at which the accounts referred to in paragraph (a) above were drawn up; (ii) confirming the credit ratings which currently apply to the Parent's long term unsecured and unsubordinated debt; and (iii) certifying that no Default is outstanding or, if a Default is outstanding, specifying the Default and the steps, if any, being taken to remedy it. Each Obligor shall promptly: (a) obtain, maintain and comply with the terms of; and (b) supply certified copies to the Facility Agent of, any authorization required under any law or regulation to enable it to perform its obligations under, or for the validity or enforceability of, any Finance Document. Each Obligor shall procure that its obligations under the Finance Documents do and will rank at least pari passu with all its other present and future unsecured obligations, except for obligations mandatorily preferred by law applying to companies generally. in each case, in circumstances where the transaction is entered into primarily as a method of raising finance or of financing the acquisition of an asset, save where the aggregate of (a) financing raised or the amount involved in the financing of the acquisition of an asset in transactions described in this Clause 19.9 (Transactions similar to security) and (b) the Security Interests permitted by Clause 19.8(vii) (Negative pledge), does not exceed 5 per cent. of the book value of the consolidated total assets of the Group, as determined by reference to the most recent consolidated accounts of the Group delivered pursuant to Clause 19.2 (Financial Information). (iii) disposals made on an arms length basis for full market consideration; or (iv) disposals made with the prior written consent of the Majority Banks; or (v) any disposal of assets from: provided that all such disposals in this paragraph (v) are made for full market consideration, The Parent shall procure that no substantial change is made to the general nature or scope of the business of the Parent or of the Group from that carried on at the date of this Agreement. The Parent shall not, without the prior written consent of the Majority Banks, finalise or effectuate any amalgamation, demerger, merger or reconstruction. Each Obligor shall, and the Parent will procure that the Group taken as a whole will, effect and maintain such insurance over and in respect of its property, assets and business with reputable underwriters or insurance companies and in such a manner and to such extent as is reasonable and customary for a business enterprise engaged in the same or similar businesses and in the same or similar localities. No Obligor shall, and will ensure that no other member of the Group shall, without the prior consent of the Majority Banks, grant any guarantee, bond, indemnity, counter-indemnity or similar instrument in respect of any material obligation of a person other than a member of the Group, save for: Each Obligor that directly or indirectly owns, leases, occupies or uses real property in the United States shall, in all material respects, comply with: and for this purpose will implement procedures to monitor compliance with and to prevent any liability under Environmental Law. Each Obligor will give the Facility Agent prompt notice of the occurrence of any of the following events: In each notice delivered under this Clause, the relevant Obligor will include reasonable details concerning the occurrence that is the subject of the notice as well as the Obligor´s proposed course of action, if any. Delivery of a notice under this Clause will not affect the Obligor´s obligations to comply with any other provision of this Agreement. No Obligor will, either by act or omission, become, or permit any other Obligor to become, an "investment company" or a company "controlled" by an "investment company", within the meaning of the United States Investment Company Act of 1940, as amended. No Obligor will, either by act or omission, become or permit any other Obligor or, as a result of its obligations under this Agreement, the Bank to become subject to regulation under the United States Public Utility Holding Company Act of 1935, as amended, or the United States Federal Power Act. No Obligor will take any action or omit to take any action or permit any Subsidiary or ERISA Affiliate to take any action or omit to take any action with respect to any Plan that might result in the imposition of a lien or other Security Interest on any property of the Obligor or any Subsidiary or otherwise have a material adverse effect. The Obligors will use the proceeds of the Loans only for the purpose described in Clause 3 (Purpose). No Obligor will engage in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations U and X issued by the Board of Governors of the United States Federal Reserve System). The Obligors shall procure that none of the proceeds of the Loans will be used for any purpose that will violate or result in the violation of Section 7 of the Securities Exchange Act of 1934 (or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X). If requested by the Facility Agent, the Obligors' Agent will furnish to the Facility Agent in connection with any Loan hereunder a statement in conformity with the requirements of Federal Reserve Form U-1 referred to in Regulation U. The Parent will, at all times, maintain sufficient capital to conduct its current and proposed business and operations, maintain its ability to pay its debts as they become due, and continue to own property having a value – both at fair valuation and at present fair saleable value – greater than the total amount of the probable liability of the Parent on its debts and obligations (including this Agreement). (A) In this Clause 19.22: "Balance Sheet" means, at any time, the balance sheet forming part of the latest consolidated accounts of the Group (whether audited or unaudited) delivered to the Facility Agent under Clause 19.2 (Financial information) at that time. "Balance Sheet Date" means the date as at which a Balance Sheet is drawn up. "Borrowings" means: For the avoidance of doubt, the amount of any provision for pension liabilities made in the accounts delivered in accordance with Clause 19.2 (Financial information) shall not constitute Borrowings for the purposes of this definition. "EBITDA" means, in respect of any period, the consolidated pre-taxation income of the Group, before depreciation, amortisation of intangibles (including impairment write-offs) and Net Interest Expense for that period. "Interest Bearing Liabilities" means the amount of all liabilities of the Group which would, in accordance with U.S. Accounting Requirements, be classified as interest bearing liabilities (including, without limitation, pension liabilities, but excluding capitalised leasing obligations which would not constitute interest bearing liabilities on the basis of Reference Accounting Requirements). "Liquid Investments" means the aggregate amount of: (a) any credit balances on any bank or other deposit, savings or current account of a member of the Group; "Net Interest Bearing Debt" means Interest Bearing Liabilities less Liquid Investments. "Net Interest Expense" means, during any period ending on the date as at which a Balance Sheet is drawn up, the consolidated amount of interest expense of the Group during that period in accordance with Accounting Requirements, as shown in the Statement of Income delivered with that Balance Sheet, but in the case of a Statement of Income delivered under Clause 19.2(b) or (c) (Financial information) for an interim period, after adding: (i) interest expense of the Group for the immediately preceding financial year of the Group; less; (ii) interest expense of the Group for the corresponding interim period during that preceding financial year of the Group, in each case net of any interest income received or receivable by the Group during the same period. "Operating Profit" means, during any period ending on the date as at which a Balance Sheet is drawn up, the consolidated revenues of the Group during that period less operating costs and less any depreciation, but before amortisation of intangibles (including impairment write-offs), as shown in the Statement of Income delivered with that Balance Sheet as operating profit, but in the case of a Statement of Income delivered under Clause 19.2(b) or (c) (Financial information) for an interim period, after adding: (i) Operating Profit of the Group for the immediately preceding financial year of the Group; less (ii) Operating Profit of the Group for the corresponding interim period during that preceding financial year of the Group. "Reference Accounting Requirements" means the U.S. GAAP as applied to and used in connection with the Original Group Accounts. "Statement of Income" means at any time, the profit and loss account forming part of the latest consolidated accounts of the Group (whether audited or unaudited) delivered to the Agent under Clause 19.2 (Financial information) at that time. "Subsidiary Borrowings" means, at any time, the aggregate amount of all Borrowings of the Parent's Subsidiaries (other than the Borrowers) at that time (without double counting in relation to intra-Group Borrowings or guarantees given by one Subsidiary in relation to the Borrowings of another). (B) Each calculation to be made for the purposes of this Clause 19.22 shall be made on the following basis: (a) figures shall be expressed in US Dollars and, where any currency has to be converted into US Dollars for this purpose, such conversion shall be made at the rate of exchange applied in the relevant financial accounts delivered under Clause 19.2 (Financial information); (b) figures shall be taken from the most recent financial accounts delivered under Clause 19.2 (Financial information) or, as the case may be, the financial accounts delivered under that Clause relevant to the period or date in question, but shall be adjusted to remove any material inconsistencies between the figures contained in the Balance Sheet or (as the case may be) Statement of Income and the figures that would have been contained in that Balance Sheet (including notes thereto) or Statement of Income if it had been drawn up using Reference Accounting Requirements. (C) The Parent shall procure that: (a) the ratio of (i) Operating Profit to (ii) Net Interest Expense during the period of 12 months ending on a Balance Sheet Date, shall not at any time be less than 2.75 to 1.0; (b) the ratio of Net Interest Bearing Debt (on any Balance Sheet Date) to EBITDA (for the period of 12 months ending on the same Balance Sheet Date) shall not be greater than 3.0 to 1.0; (c) Subsidiary Borrowings shall at no time exceed US$150,000,000.
Each of the events set out in this Clause 20 is an Event of Default (whether or not caused by any reason whatsoever outside the control of an Obligor or any other person). An Obligor does not pay on the due date any amount payable by it under the Finance Documents at the place at and in the currency in which it is expressed to be payable and, if the non-payment is caused solely by administrative or technical error, or relates solely to non-payment of interest or fees, it is not remedied within three Business Days. An Obligor does not comply with any provision of the Finance Documents (other than those referred to in Clause 20.2 (Non-payment)), provided that, if such non-compliance is capable of remedy, such non-compliance remains unremedied for a period of 14 days. A representation, warranty or statement made or repeated or deemed to be repeated in or in connection with any Finance Document or in any document delivered by or on behalf of an Obligor under or in connection with any Finance Document is incorrect in any material respect when made or repeated or deemed to be repeated. Provided that no Event of Default shall occur under this Clause 20.5 unless the aggregate amount of all the Financial Indebtedness with respect to which an event or events under paragraphs (a) to (e) (inclusive) above occurs or occur is at least US$20,000,000 (or its equivalent in other currencies). Any attachment, sequestration, distress or execution affects any asset of an Obligor or any Material Subsidiary and is not discharged within 14 days. There occurs, in relation to an Obligor or any Material Subsidiary, any event anywhere which appears to correspond with any of those mentioned in Clauses 20.6 (Insolvency) to 20.9 (Creditors process) (inclusive). An Obligor or any Material Subsidiary ceases, or threatens to cease, to carry on all or a substantial part of its business. (c) demand that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Facility Agent acting on the instructions of the Majority Banks.
Except as specifically provided in this Agreement, no Arranger has any obligations of any kind to any other Party under or in connection with any Finance Document. The relationship between an Agent and the other Finance Parties is that of agent and principal only. Nothing in this Agreement constitutes an Agent as trustee or fiduciary for any other Party or any other person and an Agent need not hold in trust any monies paid to it for a Party or be liable to account for interest on those monies. Each Agent may act under the Finance Documents through its personnel and agents. Neither of the Agents or the Mandated Lead Arrangers is responsible to any other Party for: (a) the execution, genuineness, validity, enforceability or sufficiency of any Finance Document or any other document; (b) the collectability of amounts payable under any Finance Document; or (c) the accuracy of any statements (whether written or oral) made in or in connection with any Finance Document (including the Information Package). In the absence of manifest error or fraud, each Agent may: Without affecting the responsibility of any Borrower for information supplied by it or on its behalf in connection with any Finance Document, each Bank confirms that it: and shall forthwith notify the Facility Agent if either representation ceases to be correct. The Parent shall forthwith on demand pay each Agent for the reasonable cost of utilising its management time or other resources in connection with: (a) any amendment, waiver, consent or suspension of rights (or any proposal for any of the foregoing) requested by or on behalf of an Obligor and relating to a Finance Document or a document referred to in any Finance Document; or (b) the occurrence of a Default; or (c) the enforcement of, or the preservation of any rights under, any Finance Document. Any amount payable to an Agent under this Clause 21.17 will be calculated on the basis of such reasonable daily or hourly rates as that Agent may notify to the Obligors´ Agent, and is in addition to any fee paid or payable to an Agent under Clause 22 (Fees).
The Parent shall within five Business Days of the date of this Agreement (or on the first Drawdown Date if the first Drawdown Date falls before the fifth Business Day after the date of this Agreement) pay to the Facility Agent an arrangement fee in the amount agreed in the Fee Letter between the Mandated Lead Arrangers and the Obligors. This fee shall be distributed by the Facility Agent among the Mandated Lead Arrangers. The Parent shall within five Business Days of the date of this Agreement (or on the first Drawdown Date if the first Drawdown Date falls before the fifth Business Day after the date of this Agreement) pay to the Facility Agent a participation fee in the amount agreed in the Fee Letter between the Mandated Lead Arrangers and the Obligors. This fee shall be distributed by the Facility Agent among the Banks in accordance with the arrangements agreed by the Mandated Lead Arrangers with the Banks prior to the date of this Agreement. The Parent shall pay to the Facility Agent for its own account an agency fee in the amount agreed in the Fee Letter between the Facility Agent and the Obligors. The agency fee is payable annually in advance. The first payment of this fee is payable within five Business Days of the date of this Agreement and each subsequent payment is payable on each anniversary of the date of this Agreement for so long as any amount is or may be outstanding under this Agreement or any Commitment is in force. The Commitment fee will be payable on each day on which any Commitment is in force. For this purpose Loans shall be taken at their Original Dollar Amount. The Parent shall pay to the Swingline Agent for its own account an agency fee in the amounts and on the terms agreed in the Fee Letter between the Obligors and the Swingline Agent. Any fee referred to in this Clause 22 is exclusive of any value added tax or any other direct tax which might be chargeable in connection with that fee. If any value added tax or other direct tax is so chargeable, it shall be paid by the Borrower at the same time as it pays the relevant fee.
The Parent shall forthwith on demand pay the Agents and the Mandated Lead Arrangers the amount of all costs and expenses (including legal fees) reasonably incurred by any of them in connection with: (a) the negotiation, preparation, printing and execution of: (i) this Agreement and any other documents referred to in this Agreement; and (ii) any other Finance Document executed after the date of this Agreement; and (b) any amendment, waiver, consent or suspension of rights (or any proposal for any of the foregoing) requested by or on behalf of an Obligor or, in the case of Clause 2.9 (Change of currency), the Facility Agent, and relating to a Finance Document or a document referred to in any Finance Document. (c) any other matter, not of an ordinary administrative nature, arising out of or in connection with a Finance Document. The Parent shall forthwith on demand pay to each Finance Party the amount of all costs and expenses (including legal fees) incurred by it in connection with the enforcement of, or the preservation of any rights under, any Finance Document. The Parent shall pay and forthwith on demand indemnify each Finance Party against any liability it incurs in respect of, any stamp, registration and similar tax which is or becomes payable in connection with the entry into, performance or enforcement of any Finance Document.
The Parent shall forthwith on demand indemnify each Finance Party against any loss or liability which that Finance Party incurs as a consequence of: The Parent's liability in each case includes any loss of Margin or other loss or expense on account of funds borrowed, contracted for or utilised to fund any amount payable under any Finance Document, any amount repaid or prepaid or any Loan.
Accounts maintained by a Finance Party in connection with this Agreement are prima facie evidence of the matters to which they relate. Any certification or determination by a Finance Party of a rate or amount under the Finance Documents is, in the absence of manifest error, conclusive evidence of the matters to which it relates. Interest (including any applicable Mandatory Cost) and the fees payable under Clause 22.4 (Commitment fee) and Clause 22.5 (Utilisation fee) accrue from day to day and are calculated on the basis of the actual number of days elapsed and a year of 360 days or, where market practice otherwise dictates, 365 days.
is not binding on that Bank. The rights of each Finance Party under the Finance Documents: (a) may be exercised as often as necessary; (b) are cumulative and not exclusive of its rights under the general law; and (c) may be waived only in writing and specifically. Delay in exercising or non-exercise of any such right is not a waiver of that right.
No Obligor may assign, transfer, novate or dispose of any of, or any interest in, its rights and/or obligations under the Finance Documents. (ii) no transfer by a Bank of its Revolving Credit Commitment may result in its Swingline Commitment or that of its Affiliated Bank exceeding its Revolving Credit Commitment; (iii) a Bank may only transfer its Swingline Commitment to a New Bank if the New Bank is, or will be, a Revolving Credit Bank or an Affiliate of a Revolving Credit Bank; and (iv) the prior consent of the Parent is required for any such assignment, transfer or novation, unless the New Bank is another Bank or an Affiliate of a Bank or unless an Event of Default has occurred which is continuing. However, the prior consent of the Parent must not be unreasonably withheld or delayed and will be deemed to have been given if, within ten Business Days of receipt by the Parent of an application for consent, it has not been expressly refused. (i) accept a re-transfer from a New Bank of any of the Commitments and/or rights and/or obligations assigned, transferred or novated under this Clause 28; or (ii) support any losses incurred by the New Bank by reason of the non-performance by the Obligors of their obligations under the Finance Documents or otherwise. all on the date of execution of the Novation Certificate by the Facility Agent or, if later, the date specified in the Novation Certificate. If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of which it is an Affiliate) ceases to be a Bank, the Facility Agent shall (in consultation with the Borrower and the Banks) appoint another Bank or an Affiliate of a Bank to replace that Reference Bank. Each Bank shall keep confidential any and all information made available to it by any Obligor pursuant to or in connection with the Finance Documents, other than information: (a) which at the relevant time is in the public domain; or (b) which, after such information has been made available to that Bank, becomes generally available to third parties by publication or otherwise through no breach of this Clause 29 by that Bank; or (c) which was lawfully in the possession of that Bank or its advisers prior to such disclosure (as evidenced by that Bank's written records or the written records of that Bank's advisers) and which was not acquired directly or indirectly from an Obligor; or (d) the disclosure of which is required by law or any competent regulatory body (to the extent of that requirement) or which is necessitated by any legal proceeding or audit requirement; or (e) the disclosure of which is made to an Affiliate of that Bank in circumstances where it is that Bank's usual practice to make such disclosure or where such disclosure is required as part of that Bank's management or reporting policies or where such disclosure is in the reasonable opinion of that Bank required to protect its position, or to assist in the recovery of amounts, hereunder; or (f) the disclosure of which is made to any person with whom it is proposing to enter, or has entered, into any kind of transfer, participation or other agreement in relation to this Agreement; or (g) the disclosure of which is made by that Bank to its professional advisers; or (h) which is disclosed to another party to this Agreement in the specific circumstances whereby it is made available to that party, provided that, if a Bank makes such information available to any person in accordance with paragraphs (d), (e), (f) or (g) above, it takes reasonable endeavours to ensure that such party keeps that information confidential to the same extent as set out above. A Finance Party may set off any matured obligation owed by an Obligor under the Finance Documents (to the extent beneficially owned by that Finance Party) against any obligation (whether or not matured) owed by that Finance Party to that Obligor, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Finance Party may convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off. If either obligation is unliquidated or unascertained, the relevant Finance Party may set off in an amount estimated by it in good faith to be the amount of that obligation.
If any amount owing by an Obligor under the Finance Documents to a Finance Party (the "recovering Finance Party") is discharged by payment, set-off or any other manner other than in accordance with Clause 12 (Payments) (a "recovery"), then: (a) the recovering Finance Party shall, within three Business Days, notify details of the recovery to the Facility Agent; (b) the Facility Agent shall determine whether the recovery is in excess of the amount which the recovering Finance Party would have received had the recovery been received by the Facility Agent and distributed in accordance with Clause 12 (Payments); (c) subject to Clause 31.3 (Exceptions), the recovering Finance Party shall, within three Business Days of demand by the Facility Agent, pay to the Facility Agent an amount (the "redistribution") equal to the excess; (d) the Facility Agent shall treat the redistribution as if it were a payment by the relevant Obligor under Clause 12 (Payments) and shall pay the redistribution to the Finance Parties (other than the recovering Finance Party) in accordance with Clause 12.7 (Partial payments); and (e) after payment of the full redistribution, the recovering Finance Party will be subrogated to the portion of the claims paid under paragraph (d) above and the relevant Obligor will owe the recovering Finance Party a debt which is equal to the redistribution, immediately payable and of the type originally discharged. If under Clause 31.1 (Redistribution): (a) a recovering Finance Party must subsequently return a recovery, or an amount measured by reference to a recovery, to an Obligor; and (b) the recovering Finance Party has paid a redistribution in relation to that recovery, each Finance Party shall, within three Business Days of demand by the recovering Finance Party through the Facility Agent, reimburse the recovering Finance Party all or the appropriate portion of the redistribution paid to that Finance Party together with interest on the amount to be returned to the recovering Finance Party for a period whilst it held the re-distribution. Thereupon the subrogation in Clause 31.1(e) (Redistribution) will operate in reverse to the extent of the reimbursement. If a provision of any Finance Document is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect: (a) the validity or enforceability in that jurisdiction of any other provision of the Finance Documents; or (b) the validity or enforceability in other jurisdictions of that or any other provision of the Finance Documents. Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.
All notices or other communications under or in connection with this Agreement shall be given in writing and, unless otherwise stated, may be made by letter or facsimile or, in the case of information provided by the Parent or the Facility Agent in relation to Clauses 19.2 (Financial information) and 19.3 (Information - miscellaneous) only, by e-mail. Any such notice will be deemed to be given as follows: (a) if by letter, when delivered personally or on actual receipt; and (b) if by facsimile, when received in legible form. However, a notice given in accordance with the above but received on a non-working day or after business hours in the place of receipt will only be deemed to be given on the next working day in that place. Autoliv, Inc, Box 70381 XX-000 00 Xxxxxxxxx Xxxxxx Fax No: x00 0 00 00 00 Attention: Treasurer With a copy to: Fax No: x00 00 00 00 000 Attention: VP for Legal Affairs, General Counsel and Secretary or such other as the Parent may notify to the Facility Agent by not less than five Business Days' notice. Autoliv ASP, Inc. 0000 Xxxxxxx Xxxx Xxxxx Xxxx 00000 Fax No: x0 000 000 0000 Attention: Director of Finance Autoliv AB World Trade Center Xxxxxxxxxxxxxxxxxxx 00 XX Xxx 00000 XX-000 Xxxxxxxxx Fax No: x00 000 00 00 Attention: Treasurer With a copy to: Fax No: x00 00 00 00 000 Attention: VP for Legal Affairs, General Counsel and Secretary or such other as that Borrower may notify to the Facility Agent by not less than five Business Days' notice. Facility Agent: SEB Merchant Banking Foreign Credit Administration Xxxxxxxxxx 000 00000, Xxxxxxxxx Xxxxxx Fax No: x00 0 000 0000 Attention: Foreign Credit Administration With a copy to: SEB Merchant Banking Debt Capital Markets 0 Xxxxxx Xxxxxx Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx Fax No: x00 00 0000 0000 Attention: Loans Administration Swingline Agent: Bank One, NA 1 Bank Xxx Xxxxx Xxxxx 0000 Xxxxxxx XX 00000-0000, Fax No: + 0 000 000 0000/1158 Attention: Xxxxxxx Xxxxxx or such other as an Agent may notify to the other Parties by not less than five Business Days' notice.
Without prejudice to any other mode of service, each Obligor: Each Obligor: Nothing in this Clause 36 limits the right of a Finance Party to bring proceedings against an Obligor in connection with any Finance Document: This Agreement is governed by English law. The Finance Documents contain the complete agreement between the parties on the matters to which they relate and supersede all prior commitments, agreements and understandings, whether written or oral, on those matters. The Obligors and the Finance Parties waive any rights they may have to a jury trial of any claim or cause of action based on or arising from any Finance Document or the transactions contemplated by the Finance Documents. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. This Agreement has been entered into on the date stated at the beginning of this Agreement. VARIOUS PARTIES BANKS AND COMMITMENTS PART 1 Facility A Commitments |
|
Revolving Credit Banks |
Facility A Commitments US$ |
|
|
Bank One, NA |
28,000,000 |
|
|
Skandinaviska Enskilda Xxxxxx XX (publ) |
28,000,000 |
|
|
Société Générale Paris |
28,000,000 |
|
|
Mizuho Corporate Bank Nederland N.V. |
20,752,950 |
|
|
Banco Bilbao Vizcaya Argentaria S.A. |
20,752,950 |
|
|
Norddeutsche Landesbank, Stockholm Branch |
20,752,950 |
|
|
Xxxxxxxxxxx XX, Xxxxxxx Branch |
14,165,200 |
|
|
Commerzbank International (Ireland) S.A. |
13,834,800 |
|
|
Danske Bank A/S |
13,217,650 |
|
|
HSBC Bank plc |
13,217,650 |
|
|
KeyBank National Association |
13,217,650 |
|
|
Natexis Banques Populaires |
13,217,650 |
|
|
Nordea Bank Sweden AB (publ) |
13,217,650 |
|
|
BTM (Europe) Limited |
13,217,650 |
|
|
Credit Europeen SA |
13,217,650 |
|
|
Northern Trust Company |
6,608,800 |
|
|
Wachovia Bank National Association |
6,608,800 |
|
|
__________ |
||
|
Total Facility A Commitments |
||
|
_U.S. $280,000,000 |
||
|
PART II Facility B Commitments |
|
Revolving Credit Banks |
Facility B Commitments US$ |
|
|
Bank One, NA |
57,000,000 |
|
|
Skandinaviska Enskilda Xxxxxx XX (publ) |
57,000,000 |
|
|
Société Générale Paris |
57,000,000 |
|
|
Mizuho Corporate Bank Nederland N.V. |
42,247,050 |
|
|
Banco Bilbao Vizcaya Argentaria S.A. |
42,247,050 |
|
|
Norddeutsche Landesbank, Stockholm Branch |
42,247,050 |
|
|
Xxxxxxxxxxx XX, Xxxxxxx Branch |
28,836,300 |
|
|
Commerzbank International (Ireland) SA |
28,163,700 |
|
|
Danske Bank A/S |
26,907,350 |
|
|
HSBC Bank plc |
26,907,350 |
|
|
KeyBank National Association |
26,907,350 |
|
|
Natexis Banques Populaires |
26,907,350 |
|
|
Nordea Bank Sweden AB (publ) |
26,907,350 |
|
|
BTM (Europe) Limited |
26,907,350 |
|
|
Credit Europeen SA |
26,907,350 |
|
|
Northern Trust Company |
13,453,700 |
|
|
Wachovia Bank National Association |
13,453,700 |
|
|
__________ |
||
|
Total Facility B Commitments |
||
|
_U.S. $570,000,000 |
||
|
PART III Swingline Banks and Swingline Commitments |
|
Swingline Banks |
Swingline Commitments US$ |
|
Bank One, NA |
40,821,230 |
|
Commerzbank AG, New York Branch |
40,821,230 |
|
Skandinaviska Enskilda Xxxxxx XX (publ) |
40,821,230 |
|
Société Générale |
40,821,230 |
|
Danske Bank Cayman Islands Branch |
19,270,020 |
|
HSBC Bank USA |
19,270,020 |
|
KeyBank National Association |
19,270,020 |
|
Nordea Bank Sweden AB (publ) |
19,270,020 |
|
Wachovia Bank National Association |
9,635,000 |
|
__________ |
|
|
Total Swingline Commitments |
|
|
_U.S. $250,000,000 |
|
SCHEDULE 2 CONDITIONS PRECEDENT DOCUMENTS
(a) A copy of the memorandum and articles of association and certificate of incorporation of each Obligor. (b) A copy of a resolution of the board of directors of each Obligor: (c) A specimen of the signature of each person authorized by the resolution referred to in paragraph (b) above. (d) a certificate of a director of each Obligor confirming that the borrowing of the Commitment in full would not cause any borrowing limit binding on it to be exceeded. 2. Other documents (a) A certificate of an authorized signatory of the Parent certifying that each copy document specified in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. (c) Confirmation from the Parent that it is not, to the best of its knowledge and belief after full and due enquiry, in breach of any other agreement to which it is a party. (d) Evidence satisfactory to the Facility Agent that the Existing Indebtedness defined in Clause 1.1 (Definitions) has been repaid and cancelled in full or will be repaid and cancelled in full by means of the first drawing made under this Agreement. (e) A copy of any other authorization or other document, opinion or assurance which the Facility Agent considers to be necessary in connection with the entry into and performance of, and the transactions contemplated by, any Finance Document or for the validity and enforceability of any Finance Document. 3. Legal opinions (a) A legal opinion of Xxxxx & Xxxxx, New York, legal advisers in the State of New York, U.S.A. to the Finance Parties. (b) A legal opinion of Xxxxxx Xxxxxxx Xxxxxxxx, PC, legal advisers in the State of Indiana, U.S.A. to the Finance Parties. (c) A legal opinion of Xxxxx & Xxxxx, London, legal advisers in England to the Finance Parties. (d) A legal opinion of Advokatfirman Xxxxx XX, legal advisers in Sweden to the Finance Parties.
SCHEDULE 3 CALCULATION OF THE MANDATORY COST
1. General The Mandatory Cost recoverable by a Bank with respect to a Loan for each of its Interest Periods is the rate (rounded upward, if necessary, to four decimal places) notified to the Facility Agent by that Bank no later than 10 Business Days prior to the end of the relevant Interest Period and calculated in accordance with paragraphs 2 to 4 below. 2. For a Bank lending from a Facility Office in the U.K. (a) The relevant rate for a Bank lending from a Facility Office in the UK: in relation to a Loan denominated in Sterling: BY + S(Y-Z) + F x 0.01 % per annum = Mandatory Cost 100-(B + S) in relation to any other Loan: F x 0.01 % per annum = Mandatory Cost 300 where on the day of application of the formula: B is the percentage of the Bank's eligible liabilities (in excess of any stated minimum) which the Bank of England requires the Bank to hold on a non-interest-bearing deposit account in accordance with its cash ratio requirements; Y is LIBOR at or about 11.00 a.m. on that day for the relevant Interest Period; S is the percentage of the Bank's eligible liabilities which the Bank of England requires the Bank to place as a special deposit; Z is the interest rate per annum allowed by the Bank of England on special deposits; and F is the charge payable by the Bank to the Financial Services Authority under the fees rules (calculated as being the average of the rates of charge within fee-block Category A1 (Deposit acceptors) applicable to that Bank but, for this purpose, applying any applicable discount and ignoring any minimum fee required under the fees rules) and expressed in pounds per £1 million of the tariff base of the Bank. (b) For the purposes of this Schedule 3: (i) "eligible liabilities" and "special deposits" have the meanings given to them at the time of application of the formula by the Bank of England; and (ii) "fee rules" means the then current rules on periodic fees in the Supervision Manual of the FSA Handbook; and (iii) "tariff base" has the meaning given to it in the fees rules. (c) In the application of the formula, B, Y, S and Z are included in the formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%, BY is calculated as 0.5 x 15. (d) (i) Each formula is applied on the first day of each Interest Period. (ii) Each rate calculated in accordance with the formula is, if necessary, rounded upward to four decimal places. (e) If the Facility Agent determines that a change in circumstances has rendered, or will render, the formula inappropriate, the Facility Agent (after consultation with the Banks) shall notify the Obligors' Agent of the manner in which the Mandatory Cost will subsequently be calculated. The manner of calculation so notified by the Facility Agent shall, in the absence of manifest error, be binding on all the Parties. 3. For a Bank lending from a Facility Office in a Participating Member State The relevant rate for a Bank lending from a facility office in a Participating Member State is the percentage per annum notified by that Bank to the Facility Agent as its cost of complying with the minimum reserve requirements of the European Central Bank. 4. General If a Bank fails to notify a rate under paragraph 2 or 3 above, the Facility Agent will assume that the Bank has not incurred any such cost, or that any rate previously notified to them by that Bank as applying until further notice shall continue to so apply. SCHEDULE 4 FORM OF REQUEST
To: [AGENT] as Facility Agent]/[SWINGLINE AGENT] as Swingline Agent]* [cc: [AGENT]]** From: [OBLIGORS' AGENT] Date: [ ], 2003 Autoliv, Inc. US$850,000,000 Credit Agreement dated [ ], 2003 1. We wish to utilise the [Revolving Credit]/[Swingline]* Facility as follows: (a) Borrower: [ ] (b) Facility: [A/B] (c) Drawdown Date: [ ] (d) Amount: [ ] (e) Currency: [ ] (f) Interest Period: [ ] (g) Payment instructions: [ ] 2. We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Request.
By:
[OBLIGORS' AGENT] Authorized Signatory SCHEDULE 5 FORM OF NOVATION CERTIFICATE To: [AGENT] as Facility Agent From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ] Autoliv, Inc. US$850,000,000 Credit Agreement dated [ ], 2003 (the "Agreement") We refer to Clause 28.3 (Procedure for novations). 1. We [ ] (the "Existing Bank") and [ ] (the "New Bank") agree to the Existing Bank and the New Bank novating the Existing Bank's Commitment (or part) and/or rights and obligations referred to in the Schedule in accordance with Clause 28.3 (Procedure for novations). 2. The specified date for the purposes of Clause 28.3(c) is [date of novation]. 3. The Facility Office and address for notices of the New Bank for the purposes of Clause 34.2 (Addresses for notices) are set out in the Schedule. 4. This Novation Certificate is governed by English law. THE SCHEDULE Commitments/rights and obligations to be novated [Insert relevant details]
[Existing Bank] [New Bank] By: By: Date: Date: [New Bank] [Facility Office Address for notices] [AGENT] By: Date: SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE
To: SEB Merchant Banking, Skandinaviska Enskilda Xxxxxx XX (publ) as Facility Agent From: AUTOLIV INC. Date: [ ] Autoliv Inc., Autoliv ASP Inc. and Autoliv AB US$850,000,000 Credit Agreement dated [ ], 2003 (the "Agreement")
1. This is the Compliance Certificate referred to in Clause 19.5 (Compliance certificates) of the Agreement. 2. The calculations in this Compliance Certificate are made in accordance with the definitions in Clause 19.22 (Financial Covenants) of the Agreement. 3. We confirm that as at [ relevant Balance Sheet Date]: (a) The ratio of Operating Profit to Net Interest Expense was [ :1]. (Covenant level requirement not less than 2.75:1); Calculated on a rolling 12 month basis, as follows: |
|
Operating Profit: |
Operating Income Plus: Amortisation of Intangibles (including Impairment write-offs) |
_______________
_______________ |
|
TOTAL |
_______________ |
|
Net Interest Expense: |
Interest Expense |
_______________ |
|
Less: Interest Income |
_______________ |
|
|
TOTAL |
_______________ |
|
(b) The ratio of Net Interest Bearing Debt to EBITDA was [ :1]. (Covenant level requirement; not greater than 3.0:1); and Calculated as follows: |
|
Net Interest Bearing Debt: |
Short term Debt |
_______________ |
|
Plus: Long term Debt |
_______________ |
|
|
Pension Liabilities |
_______________ |
|
|
TOTAL |
_______________ |
|
EBITDA: |
Income before |
_______________ |
|
income taxes |
_______________ |
|
|
Plus: |
_______________ |
|
|
Net Interest Expense |
_______________ |
|
|
Depreciation Amortisation of Intangibles (including Impairment write-offs) |
|
|
|
TOTAL |
_______________ |
|
(c) Subsidiary Borrowings were [ ] (Covenant level requirement not more than US$ 150,000,000). 4. We confirm the credit ratings as at the date of this Compliance Certificate of the long term unsecured and unsubordinated debt of AUTOLIV INC. given by: (i) Moody's was [ ]; and (ii) Standard & Poor's was [ ]. 5. We confirm that no Default is outstanding as at the date of this Compliance Certificate. By:
SCHEDULE 7 FORM OF RENEWAL REQUEST
To: SEB Merchant Banking, Skandinaviska Enskilda Xxxxxx XX (publ) as Facility Agent From: [AUTOLIV INC.] as the Obligors' Agent Date: [ ]
Autoliv Inc., Autoliv ASP Inc. and Autoliv AB US$850,000,000 Credit Agreement dated [ ], 2003 (the ''Agreement'')
1. We refer to the Agreement. This is the renewal request referred to in Clause 2.7 (Renewal Option) of the Agreement. 2. We wish to request the extension of Facility A by a further 364 days to the Renewal Date of [ ]. 3. This request is irrevocable.
By:
SCHEDULE 8 FORM OF EXTENSION REQUEST
To: SEB Merchant Banking, Skandinaviska Enskilda Xxxxxx XX (publ) as Facility Agent From: [AUTOLIV INC.] as the Obligors' Agent Date: [ ]
Autoliv Inc., Autoliv ASP Inc. and Autoliv AB US$850,000,000 Credit Agreement dated [ ], 2003 (the ''Agreement'')
1. We refer to the Agreement. This is the extension request referred to in Clause 2.8 (Extension Option) of the Agreement. 2. We wish to request the extension of Facility B. The Extension Date is [ ]. 3. This is the [first/second] Extension Request. 4. This request is irrevocable.
By:
AUTOLIV INC. AUTOLIV INC.
SIGNATORIES
Borrowers AUTOLIV, INC. By: Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx
AUTOLIV ASP, INC. By: Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx
AUTOLIV AB By: Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx
Parent AUTOLIV, INC. By: Xxxxxx Xxxxxxxx Xxxxxx Xxxxxxxxx
Mandated Lead Arrangers
BANK ONE EUROPE LIMITED By: Xxxx Xxxxxx
COMMERZBANK AKTIENGESELLSCHAFT By: Xxxx Xxxxxx (by Power of Attorney)
SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA XXXXXX XX (publ) By: Åsa Samuelsson
SOCIETE GENERALE INVESTMENT BANKING By: Xxxxxxxx Xxxxxxx
Banks Revolving Credit Banks BANK ONE, NA By: Xxxx Xxxxxx
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) By: Åsa Samuelsson
SOCIETE GENERALE By: Xxxxxxxx Xxxxxxx
MIZUHO CORPORATE BANK NEDERLAND N.V. By: P.H.C. Hole
BANCO BILBAO VIZCAYA ARGENTARIA S.A. By: Xxxx Xxxxxx (by Power of Attorney)
NORDDEUTSCHE LANDESBANK, STOCKHOLM BRANCH By: Xxxx Xxxxxx (by Power of Attorney)
XXXXXXXXXXX XX, XXXXXXX BRANCH By: Xxxx Xxxxxx (by Power of Attorney)
COMMERZBANK INTERNATIONAL (IRELAND) S.A. By: Xxxx Xxxxxx (by Power of Attorney)
DANSKE BANK A/S By: Xxxx Xxxxxx (by Power of Attorney)
HSBC BANK plc By: Xxxx Xxxxxx (by Power of Attorney)
KEYBANK NATIONAL ASSOCIATION By: Xxxxx X. Xxxxx
NATEXIS BANQUES POPULAIRES By: Xxxxxx Xxxxx Fabien Thefo
NORDEA BANK SWEDEN AB (publ) By: Xxxx Xxxxxx (by Power of Attorney)
BTM (EUROPE) LIMITED By: Xxx Xxxxxxx
CREDIT EUROPEEN SA By: Xxxx Xxxxxx (by Power of Attorney)
NORTHERN TRUST COMPANY By: Xxxx Xxxxxx
WACHOVIA BANK NATIONAL ASSOCIATION By: Xxxx Xxxxxx (by Power of Attorney)
Swingline Banks BANK ONE, NA By: Xxxx Xxxxxx
COMMERZBANK AG, NEW YORK BRANCH By: Xxxx Xxxxxx (by Power of Attorney)
SKANDINAVISKA ENSKILDA XXXXXX XX (publ) By: Åsa Samuelsson
SOCIETE GENERALE By: Xxxxxxxx Xxxxxxx
DANSKE BANK CAYMAN ISLANDS BRANCH By: Xxxx Xxxxxx (by Power of Attorney)
HSBC BANK USA By: Xxxx Xxxxxx (by Power of Attorney)
KEYBANK NATIONAL ASSOCIATION By: Xxxxx X. Xxxxx
NORDEA BANK SWEDEN AB (publ) By: Xxxx Xxxxxx (by Power of Attorney)
WACHOVIA BANK NATIONAL ASSOCIATION By: Xxxx Xxxxxx (by Power of Attorney)
Facility Agent SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA XXXXXX XX (publ) By: Åsa Samuelsson
Swingline Agent BANK ONE, NA By: Xxxx Xxxxxx |
