EXHIBIT 4.3
[XXXXXXXX CHANCE LOGO]
LIMITED LIABILITY PARTNERSHIP
EXECUTION COPY
$1,500,000,000
FACILITIES AGREEMENT
dated 17 December 2002
for
ABB LTD
CERTAIN SUBSIDIARIES OF ABB LTD
as Borrowers and Guarantors
Arranged by
BARCLAYS CAPITAL
BAYERISCHE HYPO-UND VEREINSBANK AG
CREDIT SUISSE FIRST BOSTON
SALOMON BROTHERS INTERNATIONAL LIMITED
with
CREDIT SUISSE FIRST BOSTON
acting as Facility Agent and Trustee
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MULTICURRENCY REVOLVING FACILITIES AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation....................................................................1
2. The Facilities...................................................................................20
3. Purpose..........................................................................................22
4. Conditions of Utilisation........................................................................22
5. Utilisation......................................................................................24
6. Optional Currencies..............................................................................26
7. Term-Out Option and Repayment....................................................................27
8. Prepayment and cancellation......................................................................30
9. Interest.........................................................................................37
10. Interest Periods.................................................................................37
11. Changes to the calculation of interest...........................................................38
12. Fees.............................................................................................39
13. Tax Gross Up and Indemnities.....................................................................41
14. Increased costs..................................................................................44
15. Other indemnities................................................................................45
16. Mitigation by the Lenders........................................................................47
17. Costs and expenses...............................................................................48
18. Guarantee and indemnity..........................................................................50
19. Representations..................................................................................54
20. Information undertakings.........................................................................59
21. Financial Covenants..............................................................................62
22. General Undertakings.............................................................................66
23. Events of Default................................................................................73
24. Changes to the Lenders...........................................................................77
25. Changes to the Obligors..........................................................................80
26. Role of the Facility Agent and the Mandated Lead Arrangers.......................................83
27. Role of Trustee..................................................................................89
28. Conduct of business by the Finance Parties.......................................................95
29. Sharing among the Finance Parties................................................................95
30. Payment mechanics................................................................................97
31. Set-off..........................................................................................99
32. Security and Proceeds............................................................................99
33. Notices.........................................................................................101
34. Calculations and certificates...................................................................104
35. Partial invalidity..............................................................................104
36. Remedies and waivers............................................................................105
37. Amendments and waivers..........................................................................105
38. Counterparts....................................................................................106
39. Governing Law...................................................................................107
40. Enforcement.....................................................................................107
SCHEDULE 1 THE ORIGINAL PARTIES
Part I The Original Lenders
Part II The Original Obligors
SCHEDULE 2 CONDITIONS PRECEDENT
Part I Conditions precedent to initial Utilisation
Part II Additional Obligor Conditions Precedent
SCHEDULE 3 REQUESTS
Part I Utilisation Request
Part II Selection Notice
SCHEDULE 4 ADDITIONAL COST RATE
SCHEDULE 5 FORM OF TRANSFER CERTIFICATE
SCHEDULE 6 FORM OF COMPLIANCE CERTIFICATE
SCHEDULE 7 FORM OF BORROWER ACCESSION LETTER
SCHEDULE 8 FORM OF RESIGNATION LETTER
SCHEDULE 9 TIMETABLES
SCHEDULE 10 PRO FORMA LIQUIDITY PLAN
THIS AGREEMENT is dated 17 December 2002 and made between:
(1)
ABB LTD, a company incorporated in Switzerland whose registered office
is at Xxxxxxxxxxxxxxxx 00, XX-0000 Xxxxxx, Xxxxxxxxxxx ("ABB");
(2) THE SUBSIDIARIES OF ABB listed in Part 2 of Schedule 1 (THE ORIGINAL
PARTIES) as original borrowers (the "ORIGINAL BORROWERS");
(3) THE SUBSIDIARIES OF ABB listed in Part 2 of Schedule 1 (THE ORIGINAL
PARTIES) and ABB as original guarantors (the "ORIGINAL GUARANTORS");
(4) ABB REAKTOR GESELLSCHAFT MIT BESCHRANKTER HAFTUNG, ABB FLAKT GMBH and
ABB AG (the "Third Party Security Providers";
(5) BARCLAYS CAPITAL, BAYERISCHE HYPO-UND VEREINSBANK AG, CREDIT SUISSE
FIRST BOSTON and SALOMON BROTHERS INTERNATIONAL LIMITED in their
respective capacities as mandated lead arrangers (the "MANDATED LEAD
ARRANGERS");
(6) THE FINANCIAL INSTITUTIONS listed in Part 1 of Schedule 1 (THE ORIGINAL
LENDERS) in their respective capacities as original lenders (the
"ORIGINAL LENDERS");
(7) CREDIT SUISSE FIRST BOSTON in its capacity as facility agent (the
"FACILITY AGENT"); and
(8) CREDIT SUISSE FIRST BOSTON as security trustee for the Secured Parties
(the "TRUSTEE").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a letter substantially in the form set out in
Schedule 7 (FORM OF BORROWER ACCESSION LETTER).
"ADDITIONAL BORROWER" means any Subsidiary of ABB which has become an
Additional Borrower in accordance with Clause 25.2 (ADDITIONAL
BORROWERS).
"ADDITIONAL COST RATE" has the meaning given to it in Schedule 4
(ADDITIONAL COST RATE).
"ADDITIONAL GUARANTOR" means any Subsidiary of ABB which has become an
Additional Guarantor in accordance with Clause 25.4 (ADDITIONAL
GUARANTORS).
"ADDITIONAL OBLIGOR" means an Additional Borrower or an Additional
Guarantor.
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"AFFILIATE" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"AGREED JURISDICTION" means any of the United States of America,
Switzerland, Guernsey, any country that is, at the date hereof, a member
of the European Union and any other country approved by all the Lenders.
"AMENDMENT AGREEMENT" means the amendment agreement in respect of
certain Intercompany Loans described in paragraph 2(iii) of Schedule 2
(CONDITIONS PRECEDENT).
"APPROVED FUNDING BALANCE" has the meaning given to such term in
sub-paragraph (c) of Clause 8.6 (MANDATORY PREPAYMENT - OTHER PROCEEDS).
"APPROVED FUNDING REQUIREMENTS" means:
(a) the provision of cash collateral in respect of bilateral credit
lines, including without limitation funded facilities, foreign
exchange, swaps and similar market contracts, and bonding
facilities;
(b) the replacement of credit previously available under such
bilateral credit lines that has been withdrawn;
(c) the provision of funding in the event of delayed receipt of any
amount of Net Proceeds in respect of Divestment Assets to the
extent of the amount assumed to be received in the Original
Liquidity Plan but not so received;
or such other requirements as may be approved by the Majority Lenders.
"ASBESTOS MILESTONE" means the filing by CE of a petition pursuant to
Chapter XI of the US Bankruptcy Code.
"AUDITORS" means Ernst & Young.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABILITY PERIOD" means:
(a) in relation to Facility A, the period from and including the date
of this Agreement up to the day falling one Business Day prior to
the Termination Date; and
(b) in relation to Facility B, the period from and including the date
that the Milestones are satisfied up to the day falling one
Business Day prior to the Termination Date.
"AVAILABLE CASH" means cash from time to time held within the Treasury
Services Operations (other than in Brazil, Norway and Australia) to the
extent such cash is freely transferable under applicable law and
regulation by the unit that holds it and excluding:
(a) any cash which is subject to Security permitted under the terms
of paragraph (b) of Clause 22.3 (NEGATIVE PLEDGE);
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(b) any cash of any Group Company posted as collateral by the
counterparty under any interest rate or currency swaps or other
derivative contracts entered into in the ordinary course of Group
treasury activities; and
(c) any cash constituting the Discretionary Funding Balance and/or
the Approved Funding Balance (if any).
"AVAILABLE COMMITMENT" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the Base Currency Amount of its participation in any outstanding
Loans under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency Amount
of its participation in any Loans that are due to be made under
that Facility on or before the proposed Utilisation Date,
other than that Lender's participation in any Loans that are due to be
repaid or prepaid on or before the proposed Utilisation Date.
"AVAILABLE FACILITY" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
"BASE CURRENCY" means dollars.
"BASE CURRENCY AMOUNT" means, in relation to a Loan, the amount
specified in the Utilisation Request for that Loan (or, if the amount
requested is not denominated in the Base Currency, that amount converted
into the Base Currency at the Facility Agent's Spot Rate of Exchange on
the date which is three Business Days before the Utilisation Date or, if
later, on the date the Facility Agent receives the Utilisation Request)
adjusted to reflect any repayment or prepayment of the Loan.
"BORROWERS" means each Original Borrower and each Additional Borrower,
PROVIDED THAT it has not been released from its rights and obligations
under this Agreement in accordance with Clause 25.3 (RESIGNATION OF A
BORROWER).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest (excluding the Margin) which a Lender should have
received for the period from the date of receipt of all or any
part of its participation in a Loan or Unpaid Sum to the last day
of the current Interest Period in respect of that Loan or Unpaid
Sum, had the principal amount or Unpaid Sum received been paid on
the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing
an amount equal to the principal amount or Unpaid Sum received by
it on deposit with a leading bank in the Relevant Interbank
Market for a period starting on the Business Day following
receipt or recovery and ending on the last day of the current
Interest Period.
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"BUSINESS DAY" means:
(a) a day (other than a Saturday or Sunday) on which banks are open
for general business in London and (in relation to any date for
payment or purchase of a currency other than euro) in the
principal financial centre of the country of that currency; or
(b) (in relation to any date for payment or purchase of euro) any
TARGET Day.
"BUSINESS PLAN" means the 12 month business plan, profit and loss
account, balance sheet and cashflow of the Group prepared by ABB for
2004.
"CE" means Combustion Engineering Inc.
"CHARGED PROPERTY" means all the assets of the Obligors which from time
to time are, or are expressed to be, the subject of the Transaction
Security.
"XXXXXXXX CHANCE REPORT" means the report dated 6 December 2002 from
Xxxxxxxx Chance Limited Liability Partnership in relation to asbestos
liabilities of CE.
"COMMITMENT" means a Facility A Commitment or Facility B Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 6 (FORM OF COMPLIANCE CERTIFICATE).
"DEFAULT" means an Event of Default or any event or circumstance
specified in Clause 23 (EVENTS OF DEFAULT) which (with the expiry of a
grace period or the giving of notice specified in Clause 23 (EVENTS OF
DEFAULT)) would be an Event of Default.
"DELEGATE" means any delegate, agent, attorney or co-trustee appointed
by the Trustee.
"DISCRETIONARY FUNDING BALANCE" has the meaning given to such term in
sub-paragraph (c) of Clause 8.6 (MANDATORY PREPAYMENT - OTHER PROCEEDS).
"DISCRETIONARY FUNDING PLAN" means the plan in agreed form provided by
ABB prior to the date hereof describing in detail the methods by which
ABB is permitted to generate up to $500,000,000 from the monetisation of
assets and other funding methods described therein as from the date of
the Original Liquidity Plan PROVIDED THAT there is no material adverse
impact on the Transaction Security (or the value thereof) and for these
purposes if the relevant proceeds were remitted to the Treasury Services
Operations for use in the ordinary course of the Group's treasury
operations, and provided the provisions of Clause 22.11 (INTERCOMPANY
LOANS) are complied with, this shall be deemed not to have a material
impact on the Transaction Security.
"DISPOSAL" means a sale, transfer or other disposal (including by way of
lease or loan) by a person of all or part of its assets, whether by one
transaction or a series of transactions and whether at the same time or
over a period of time.
"DIVESTMENT ASSETS" means those assets that are on the list of
Divestment Assets in agreed form and provided by ABB prior to the date
hereof.
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"DUTCH BORROWER" means each Borrower incorporated or established in The
Netherlands.
"ENVIRONMENTAL CLAIM" means any claim or proceeding by any person
pursuant to any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in
which any member of the Group conducts business which relates to the
pollution or protection of the environment or harm to or the protection
of human health or the health of animals or plants.
"ERISA" means the Employee Retirement Income Security Act of 1974 of the
United States of America and the regulations promulgated and the rulings
issued thereunder.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of that
Loan) the arithmetic mean of the rates (rounded upwards to 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;
as of the Specified Time on the Quotation Day for the offering of
deposits in euro for a period comparable to the Interest Period of the
relevant Loan.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 23 (EVENTS OF DEFAULT).
"EXCLUDED LOANS" means Intercompany Loans made to a borrower where the
aggregate amount of all Intercompany Loans to that borrower is less than
$25,000,000.
"EXECUTIVE SUMMARY" means the summary of the transaction dated 27
November 2002 prepared at the request of ABB and circulated to the
Lenders.
"EXEMPTION REGULATION" means the exemption regulation dated 26 June 2002
of the Ministry of Finance of The Netherlands.
"EXISTING SECURITISATIONS" means each of:
(a) the securitisation programme established by various Group
Companies and Toedi Limited and currently including Credit Suisse
First Boston, New York Branch as Programme Administrator, such
programme being initially established on 19 December 2000;
(b) the securitisation programme established by various Group
Companies and arranged by Citibank, N.A. (as Operating Agent),
such programme being initially established on or around 17
December 1999,
each as may be modified, supplemented, renewed, substituted, varied or
amended, including any local programmes PROVIDED THAT:
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(i) the aggregate net proceeds of all such programmes does
not at any time exceed $900,000,000;
(ii) the terms of such programme are commercially reasonable;
and
(iii) such programme shall not include any Subsidiary which is
identified as a divestment asset in the Original
Liquidity Plan or, if it does relate to such a
Subsidiary, provided there is no material adverse impact
on the Transaction Security (or the value thereof) and
for these purposes if the relevant proceeds were remitted
to the Treasury Services Operations for use in the
ordinary course of the Group's treasury operations, and
PROVIDED THE provisions of Clause 22.11 (INTERCOMPANY
LOANS) are complied with, this shall be deemed not to
have a material impact on the Transaction Security. For
the avoidance of doubt, there shall be deemed to be no
adverse impact on the Transaction Security or its value
where the proceeds of the existing Securitisations are
used by the relevant Group Company to fund its working
capital needs.
"FACILITY" means Facility A or Facility B.
"FACILITY A" means the revolving loan facility made available under this
Agreement as described in Clause 2 (THE FACILITIES).
"FACILITY A COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility A
Commitment" in Part I of Schedule 1 (THE ORIGINAL PARTIES) and
the amount of any other Facility A Commitment transferred to it
under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency
of any Facility A Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY A LOAN" means a loan made or to be made under Facility A or
the principal amount outstanding for the time being of that loan.
"FACILITY AGENT'S SPOT RATE OF EXCHANGE" means the Facility Agent's spot
rate of exchange for the purchase of the relevant currency with the Base
Currency in the London foreign exchange market at or about 11:00 a.m. on
a particular day.
"FACILITY B" means the revolving loan facility made available under this
Agreement as described in Clause 2 (THE FACILITIES).
"FACILITY B COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Facility B
Commitment" in Part I of Schedule 1 (THE ORIGINAL PARTIES) and
the amount of any other Facility B Commitment transferred to it
under this Agreement; and
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(b) in relation to any other Lender, the amount in the Base Currency
of any Facility B Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY B LOAN" means a loan made or to be made under Facility B or
the principal amount outstanding for the time being of that loan.
"FACILITY OFFICE" means, in relation to a Lender, the office identified
as such opposite such Lender's name in Part 1 of Schedule 1 (THE
ORIGINAL LENDERS) (or, in the case of a transferee, at the end of the
Transfer Certificate to which it is a party as transferee) or such other
office as it may from time to time select.
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between the Mandated Lead Arrangers and the Borrower (or
the Facility Agent and the Borrower) setting out any of the fees
referred to in Clause 12 (FEES).
"FINANCE DOCUMENT" means this Agreement, any Accession Letter, any
Resignation Letter, the Security Documents, any Fee Letter and any other
document designated in writing as such by the Facility Agent and ABB.
"FINANCE PARTY" means the Facility Agent, the Mandated Lead Arranger,
the Trustee or a Lender.
"GAAP" means, in relation to the consolidated financial statements of
ABB, generally accepted accounting principles in the United States of
America and, in relation to any other company, generally accepted
accounting principles in its jurisdiction of incorporation or in the
United States of America (as applicable).
"GROUP" means ABB and its Subsidiaries and "GROUP COMPANY" means any one
of them.
"GROUP A LOAN" means each Intercompany Loan designated as a category A
loan in Schedule 2 of the Amendment Agreement and each Intercompany Loan
made by an Intercompany Lender after the date hereof that is a term loan
with a maturity date falling after 16 December 2004.
"GROUP B LOAN" means each Intercompany Loan designated as a category B
loan in Schedule 2 of the Amendment Agreement and each Intercompany Loan
made by an Intercompany Lender after the date hereof that is a term loan
with a maturity date the same as the maturity date or conversion date of
the relevant debt or part thereof the repayment of which is funded by
such Intercompany Loan.
"GROUP C LOAN" means each Intercompany Loan designated as a category C
loan in Schedule 2 of the Amendment Agreement and each Intercompany Loan
made by an Intercompany Lender after the date hereof that is a term loan
but which is not a Group A Loan or a Group B Loan.
"GROUP D LOAN" means each Intercompany Loan designated as a category D
loan in Schedule 2 of the Amendment Agreement and each Intercompany Loan
made by an Intercompany Lender after the date hereof that is a revolving
loan.
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"GROUP STRUCTURE CHART" means the summary group structure chart showing
all Obligors and certain other material Group Companies.
"GUARANTORS" means each Original Guarantor and each Additional
Guarantor, PROVIDED THAT it has not been released from its rights and
obligations under this Agreement, in accordance with Clause 25.6
(RESIGNATION OF A GUARANTOR).
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"INDEBTEDNESS" means, in relation to a person, its obligations (whether
present or future, actual or contingent, as principal or surety) for the
payment or repayment of money (whether in respect of interest, principal
or otherwise) incurred in respect of:
(a) moneys borrowed;
(b) any bond, note, loan stock, debenture or similar instrument;
(c) any acceptance credit, xxxx discounting, note purchase, factoring
or documentary credit facility;
(d) any lease required under GAAP to be treated as a finance lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any guarantee, bond, stand-by letter of credit or other similar
instrument issued in connection with the performance of payment
obligations;
(g) any interest rate or currency swap agreement or any other hedging
or derivatives instrument or agreement;
(h) any arrangement entered into primarily as a method of raising
finance pursuant to which any asset sold or otherwise disposed of
by that person is or may be leased to or re-acquired by a Group
Company (whether following the exercise of an option or
otherwise);
(i) any guarantee, indemnity or similar insurance against financial
loss given in respect of the obligation of any person falling
within any of paragraphs (a) to (h) above.
"INTERCOMPANY LENDER" means each of:
(a)
ABB Ltd;
(b) ABB Financial Services AB;
(c) ABB Treasury Center (USA), Inc.;
(d) ABB Capital B.V.;
(e) ABB International Finance Ltd;
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(f) ABB Finance Inc.; and
(g) from the date on which it issues public debt, ABB Financial
Services Australia Ltd.
"INTERCOMPANY LOAN" means each loan made by an Intercompany Lender to a
Group Company.
"INTERCREDITOR AGREEMENT" means the intercreditor agreement entered into
or to be entered into by the Trustee and certain providers of bilateral
credit facilities in the agreed form or in such form as the Trustee
(acting on the reasonable instructions of the Lenders) agrees.
"INTEREST PERIOD" means, in relation to a Loan, each period determined
in accordance with Clause 10 (INTEREST PERIODS) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 9.3
(DEFAULT INTEREST).
"LENDER" means:
(a) any Original Lender; and
(b) any bank which has become a Party in accordance with Clause 24
(CHANGES TO THE LENDERS),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Facility Agent
at its request quoted by the Reference Banks to leading banks in
the London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to the
Interest Period for that Loan.
"LIQUIDITY PLAN" means the most recently delivered monthly liquidity
forecast for the Group certified without personal liability by the duly
authorised signatories in respect of the calendar month in which it is
delivered pursuant to Clause 20.4 (LIQUIDITY PLAN AND BUSINESS PLAN), in
the form set out in Schedule 10 (PRO FORMA LIQUIDITY PLAN) calculated
using the same principles used for the Original Liquidity Plan
consistently applied.
"LOAN" means a Facility A Loan or a Facility B Loan or, if the Term-Out
Option has been exercised, a Term Loan.
"LMA" means the Loan Market Association.
"MAJORITY LENDERS" means a Lender or Lenders whose Commitments aggregate
more than 66 2/3% of the Total Commitments.
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"MARGIN" means:
(a) prior to the Termination Date, 3.5 per cent. per annum; and
(b) thereafter 4.00 per cent. per annum.
"MATERIAL ADVERSE DEVIATION" means a deviation resulting in the
predicted borrowing requirement for the current or any future Month
specified in the most recent Liquidity Plan being greater than the
Monthly Borrowing Limit for such Month.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the business, operations, property or condition (financial or
otherwise) of the Group taken as a whole;
(b) the ability of an Obligor to perform its material obligations
(including but not limited to payment obligations and compliance
with the financial covenants set out in Clause 21 (FINANCIAL
COVENANTS)) under the Finance Documents; or
(c) the validity or enforceability of the Finance Documents or the
rights or remedies of any Finance Party under the Finance
Documents.
"MATERIAL COMPANY" shall mean each Obligor and:
(a) each Group Company in respect of whose shares the Lenders have
Transaction Security; and
(b) ABB Reaktor GmbH and ABB Flakt GmbH; and
(c) any other Group Company the proportion of whose total assets or
revenues (or, where the Group Company in question prepares
consolidated accounts, whose total consolidated assets or
consolidated revenues, as the case may be) attributable to ABB
represents not less than 5% of the total consolidated assets or
consolidated revenues of ABB, all as calculated by reference to
the then latest accounts of such Group Company and the then
latest audited consolidated accounts of ABB and its consolidated
Group Companies; or
(d) each Group Company to which is transferred all or substantially
all the assets and undertakings of a Group Company which
immediately prior to such a transfer is a Material Company (in
which case the transferor shall, upon such transfer, cease to be
a Material Company).
"MILESTONES" means the Asbestos Milestone and the PwC Milestone.
"MONTH" means 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) (subject to paragraph (c) below) if the numerically corresponding
day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to
end if there is one, or if there is not, on the immediately
preceding Business Day;
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(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest Period
is to end.
The above rules will only apply to the last Month of any period.
"MONTHLY BORROWING LIMIT" means in respect of each Month prior to the
Termination Date (and without prejudice to the provisions of Clause 8
(REPAYMENT AND CANCELLATION)), the amount set out below:
MONTH AMOUNT ($)
December 2002 Zero
January 2003 500,000,000
February 2003 650,000,000
March 2003 750,000,000
April 2003 1,500,000,000
May 2003 1,500,000,000
June 2003 1,500,000,000
July 2003 1,500,000,000
August 2003 1,500,000,000
September 2003 1,500,000,000
October 2003 1,500,000,000
November 2003 1,200,000,000
December 2003 1,000,000,000.
"NEW AMOUNT" means, in relation to each Specified Loan which is not
denominated in the Base Currency, the amount of the Base Currency which
could be purchased with the amount of the Specified Loan in the relevant
Optional Currency, at the Facility Agent's Spot Rate of Exchange at the
Specified Time.
"OBLIGOR" means a Borrower or a Guarantor and "OBLIGORS" means all of
them.
"OBLIGORS' AGENT" has the meaning given to such term in Clause 2.5
(OBLIGORS' RIGHTS AND OBLIGATIONS HEREUNDER).
"OGP" means ABB Oil & Gas Inc. and each of its Subsidiaries and the
Offshore Systems division in Norway.
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"OPTIONAL CURRENCY" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.3 (CONDITIONS
RELATING TO OPTIONAL CURRENCIES).
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to ABB, its audited consolidated financial statements
for its financial year ended 31 December 2001; and
(b) in relation to each other Obligor, its audited financial
statements (consolidated and audited if applicable) for its
financial year ended 31 December 2001.
"ORIGINAL LIQUIDITY PLAN" means the liquidity plan of the Group dated 18
November 2002 in the agreed form.
"PARALLEL DEBT" has the meaning given to such term in Clause 32.7
(PARALLEL SECURITY).
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Community relating to
Economic and Monetary Union.
"PARTY" means a party to this Agreement.
"PMP" means a professional market party within the meaning of the
Exemption Regulation, as promulgated in connection with the Dutch Act on
the Supervision of Credit Institutions 1992 (WET TOEZICHT KREDIETWEZEN
1992).
"PROJECT COMPANY" means any Group Company of ABB:
(a) which is a single purpose company whose primary purpose is to
invest in, lend to or carry out a specific project or portfolio
of projects; and
(b) none of whose liabilities to repay Project Finance Indebtedness
are the subject of security or a guarantee, indemnity or any
similar form of assurance, undertaking or support by any Group
Company save to the extent described in the definition of Project
Finance Indebtedness.
"PROJECT FINANCE INDEBTEDNESS" means in relation to any Project Company:
(a) any Indebtedness of a Project Company incurred to finance the
project constituted by the assets and business of such Project
Company or any Indebtedness of such Project Company incurred to
refinance any such aforementioned Indebtedness; and
(b) where neither the persons to whom such Indebtedness is owed
(whether or not a Group Company) nor any other person shall have
any recourse whatsoever to any Group Company (other than such
Project Company) for the repayment or payment of any sum relating
to such Indebtedness other than recourse directly or indirectly
to any Group Company under any form of assurance or undertaking,
which recourse (1) is limited to the enforcement of any share
pledge granted by a Group Company over its shares in such Project
Company or the enforcement of any security granted over a
shareholder loan between a
- 12 -
Group Company and such Project Company and/or (2) is limited to a
claim for damages for breach of an obligation (not being a
payment obligation) of the person against whom that recourse is
available and/or (3) entitles the creditor for that Indebtedness
or the relevant Project Company, upon default by the Project
Company (or in other circumstances specified in the documentation
relating to the project) to require a payment to be made (whether
to or for the benefit of that creditor, the Project Company or
another person), PROVIDED THAT, in the case of (3), where that
payment is capable of being for an amount which is material
either alone or as a percentage of the Indebtedness financing
that project, such recourse is capable of being called on only
during the period on or prior to practical completion of the
project or of that portion of that project being financed by that
Indebtedness; or
(c) which the Majority Lenders shall have agreed to treat as Project
Finance Indebtedness for the purposes of this Agreement.
"PwC" means PricewaterhouseCoopers.
"PwC LETTER OF ENGAGEMENT" means the letter of engagement dated 17
November 2002 between PwC, ABB and the Lenders.
"PwC MILESTONE" means:
(a) delivery by PwC to the Facility Agent of the PwC Report (Phase
II) including the timing of disposals by the Group, the business
plan, liquidity forecast and budget for 2003 (including
sensitivities) by 31 January 2003; and
(b) the Majority Lenders (who shall act in good faith on credit
grounds on the basis of the matters disclosed in the PwC Report
(Phase II) and after consultation with ABB) having not rejected
the PwC Report (Phase II) within a period of 2 weeks of the
Facility Agent receiving it.
"PwC REPORT (PHASE I)" has the meaning given to such term in the PwC
Letter of Engagement.
"PwC REPORT (PHASE II)" has the meaning given to such term in the PwC
Letter of Engagement.
"QUALIFYING LENDER" has the meaning given to it in Clause 13.1
(DEFINITIONS).
"QUALIFYING SUBSIDIARY" means any Subsidiary of ABB that is incorporated
in an Agreed Jurisdiction.
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is domestic sterling) the first day of that
period;
(b) (if the currency is euro) two TARGET Days before the first day of
that period; or
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(c) (for any other currency) two Business Days before the first day
of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Facility Agent in accordance with market practice in
the Relevant Interbank Market (and if quotations would normally be given
by leading banks in the Relevant Interbank Market on more than one day,
the Quotation Day will be the last of those days).
"RECEIVER" means a receiver or receiver and manager or administrative
receiver or administrator of the whole or any part of the Charged
Property.
"REDUCTION DATE" means each of those dates specified in Clause 7.4
(REDUCTION OF FACILITY).
"REFERENCE BANKS" means, in relation to LIBOR, the principal London
offices of Citibank, N.A., Credit Suisse First Boston, Barclays Bank PLC
and Bayerische Hypo-Und Vereinsbank AG and, in relation to EURIBOR, the
principal London offices of Citibank, N.A., Credit Suisse First Boston,
Barclays Bank PLC and Bayerische Hypo-und Vereinsbank AG, or such other
banks as may be appointed by the Facility Agent in consultation with
ABB.
"RELEVANT INTERBANK MARKET" means in relation to euro, the European
interbank market, and, in relation to any other currency, the London
interbank market.
"RELEVANT JURISDICTION" means:
(a) the jurisdiction of incorporation of each member of the Group;
and
(b) the jurisdiction where any asset subject to or intended to be
subject to the Transaction Security is situated.
"REPAYMENT DATE" means each of the dates set out in Clause 7.2
(REPAYMENT OF TERM LOANS).
"REPAYMENT INSTALMENT" means each instalment for repayment of the Term
Loans referred to in Clause 7.2 (REPAYMENT OF TERM Loans).
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clauses 19.1 (STATUS) to 19.6 (GOVERNING LAW AND ENFORCEMENT), Clause
19.9 (NO DEFAULT), paragraph (d) of Clause 19.10 (NO MISLEADING
INFORMATION), Clause 19.13 (PARI PASSU RANKING), Clause 19.17 (RANKING)
to Clause 19.21 (LEGAL AND BENEFICIAL OWNER) and Clause 19.24 (AGGREGATE
AMOUNT OF INDEBTEDNESS).
"RESERVATIONS" means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court and
damages may be regarded as an adequate remedy, the limitation of
enforcement by laws relating to bankruptcy, insolvency, liquidation,
reorganisation, court schemes, moratoria, fraudulent transfer or
obligation, administration and other laws generally affecting the rights
of creditors, the principle that a security interest may not be
perfected or may be recharacterised if the relevant chargee does not
exercise sufficient control over the relevant asset, the possibility
that under German law rights and claims under profit and loss pooling
- 14 -
agreements may not be pledged to third parties, the time-barring of
claims under the Limitation Acts (and similar legislation), the
possibility that a court may choose not to give effect to a governing
law clause in relation to a contract, the possibility that an
undertaking to assume liability for or to indemnify a person against
non-payment of stamp duty may be void, the fact that a court may refuse
to give effect to a purported contractual obligation to pay costs
imposed upon another party in respect of the costs of any unsuccessful
litigation brought against that party or may not award by way of costs
all of the expenditure incurred by a successful litigant in proceedings
brought before that court, or that a court may stay proceedings if
concurrent proceedings based on the same grounds and between the same
parties have previously been brought before another court, that a court
may not give effect to the provisions of Clause 35 (PARTIAL INVALIDITY)
(or any similar provision in another Finance Document), that interest at
a default rate on overdue amounts may be a penalty and not recoverable
and that under Swedish law a security assignment of rights in respect of
debt will not be perfected in relation to third parties unless the
debtor has been duly notified of the assignment and the assignor has
been effectively barred from independently exercising such assigned
rights.
"RESIGNATION LETTER" means a letter substantially in the form set out in
Schedule 8 (FORM OF RESIGNATION LETTER).
"ROLLOVER LOAN" means one or more Loans:
(a) made or to be made on the same day that a maturing Loan is due to
be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Loan;
(c) in the same currency as the maturing Loan (unless it arose as a
result of the operation of Clause 6.2 (UNAVAILABILITY OF A
CURRENCY)); and
(d) made or to be made for the purpose of refinancing a maturing
Loan.
"SCREEN RATE" means:
(a) in relation to LIBOR, the British Bankers' Association Interest
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 the Telerate screen. If the agreed
page is replaced or service ceases to be available, the Facility Agent
may specify another page or service displaying the appropriate rate
after consultation with ABB and the Lenders.
"SECURED OBLIGATIONS" means all obligations at any time due, owing or
incurred by any Obligor to any Secured Party under the Finance
Documents, whether present or future, actual or contingent (and whether
incurred solely or jointly and whether as principal or surety or in some
other capacity) and, for the avoidance of doubt, including any Parallel
Debt.
"SECURED PARTIES" means the Trustee, any Receiver or Delegate, the
Facility Agent, and each Lender from time to time party to this
Agreement.
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"SECURITY" means a mortgage, charge, pledge, lien or other security
interest entered into for the purpose of securing any obligation of any
person or any other agreement or arrangement having a similar effect.
"SECURITY DOCUMENTS" means each of the documents listed under
sub-paragraphs (i) to (xiii) of paragraph 2 and sub-paragraph (a) of
paragraph 3 of Part 1 of Schedule 2 (CONDITIONS PRECEDENT) together with
any other document entered into by any Obligor or any other provider of
Security in respect of the Secured Obligations creating or expressed to
create any Security over all or any part of its assets in respect of the
obligations of any of the Obligors under any of the Finance Documents.
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 3 (REQUESTS).
"SENIOR LIABILITIES" means all present and future sums, liabilities and
obligations whatsoever (actual or contingent) payable, owing, due or
incurred by any Obligor to any of the Facility Agent, Trustee or Lender
under the Finance Documents.
"SENIOR MANAGEMENT" means the chief financial officer and chief
executive officer of ABB from time to time.
"SPECIFIED LOAN" has the meaning given to such term in sub-paragraph
(a)(i) of Clause 7.1 (TERM-OUT OPTION).
"SPECIFIED TIME" means a time determined in accordance with Schedule 9
(TIMETABLES).
"STRATEGIC BUSINESS PLAN" means the three year profit and loss forecast
for the Group prepared for the 8 November 2002 analysts meeting.
"SUBSIDIARY" means a subsidiary within the meaning of section 736 of the
Companies Xxx 0000.
"SYNDICATION PACKAGE" means the Xxxxxxxx Chance Report, the Executive
Summary, the Strategic Business Plan, the Original Liquidity Plan and
the PwC Report (Phase I).
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement of
payments in euro.
"TAX" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"TAXES ACT" means the Income and Corporation Xxxxx Xxx 0000.
"TERM FACILITY" means Facility A as converted into a term loan facility
in accordance with the Term-Out Option.
"TERM LOANS" means each of the Loans outstanding hereunder after the
Termination Date.
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"TERM-OUT LOAN" has the meaning given to such term in Clause 7.1
(TERM-OUT OPTION).
"TERM-OUT OPTION" means the option of ABB, acting on behalf of the
relevant Borrowers, to require (pursuant to Clause 7.1 (TERM OUT
OPTION)) that Facility A Loans with an aggregate Base Currency Amount
not greater than $750,000,000 be converted to Term Loans with effect
from the Termination Date.
"TERMINATION DATE" means 16 December 2003.
"TOTAL COMMITMENTS" means the aggregate of the Total Facility A
Commitments and the Total Facility B Commitments, being $1,500,000,000
at the date of this Agreement.
"TOTAL FACILITY A COMMITMENTS" means the aggregate of the Facility A
Commitments, being $1,000,000,000 at the date of this Agreement.
"TOTAL FACILITY B COMMITMENTS" means the aggregate of the Facility B
Commitments, being $500,000,000 at the date of this Agreement.
"TRANSACTION SECURITY" means the Security created or expressed to be
created pursuant to the Security Documents.
"TRANSFER CERTIFICATE" means:
(a) a certificate substantially in the form set out in Schedule 5
(FORM OF TRANSFER CERTIFICATE);
(b) a certificate substantially in the form of the Transfer
Certificate (par) published by the LMA from time to time; or
(c) any other form agreed between the Facility Agent and ABB.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Facility Agent executes the Transfer
Certificate.
"TREASURY SERVICES OPERATIONS" means the units of the Group reporting
under Treasury Services Operations responsible for the concentration of
cash within the Group.
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"UTILISATION" means a utilisation of a Facility.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"UTILISATION REQUEST" means a notice substantially in the form set out
in Part I of Schedule 3 (REQUESTS).
"VAT" means value added tax as provided for in the Value Added Tax Xxx
0000 and any other tax of a similar nature.
- 17 -
1.2 CONSTRUCTION
(a) Unless a contrary indication appears, any reference in this
Agreement to:
(i) the "FACILITY AGENT", the "MANDATED LEAD ARRANGER", the
"TRUSTEE", any "FINANCE PARTY", any "SECURED PARTY", any
"LENDER", any "OBLIGOR" or any "PARTY" shall be construed
so as to include its successors in title, permitted
assigns and permitted transferees and, in the case of the
Trustee, any person for the time being appointed as
trustee or trustees in accordance with this Agreement;
(ii) "ASSETS" includes present and future properties, revenues
and rights of every description;
(iii) "BARCLAYS CAPITAL" is a reference to Barclays Capital,
the investment banking division of Barclays Bank PLC;
(iv) "DULY AUTHORISED SIGNATORIES" means the Chief Financial
Officer and any other officer of ABB authorised to sign
the relevant documentation from time to time;
(v) the "EUROPEAN INTERBANK MARKET" means the interbank
market for euro operating in Participating Member States;
(vi) a "FINANCE DOCUMENT" or any other agreement or instrument
is a reference to that Finance Document or other
agreement or instrument as amended or novated;
(vii) a "FINANCIAL YEAR" in relation to ABB, means a period in
respect of which it is required to produce annual audited
financial statements;
(viii) "INDEBTEDNESS" includes any obligation (whether incurred
as principal or as surety) for the payment or repayment
of money, whether present or future, actual or
contingent;
(ix) a "PERSON" includes any person, firm, company,
corporation, government, state or agency of a state or
any association, trust or partnership (whether or not
having separate legal personality) of two or more of the
foregoing;
(x) a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having
the force of law but, if not having the force of law, the
compliance with which is customary) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation;
(xi) a provision of law is a reference to that provision as
amended or re-enacted; and
(xii) a time of day is a reference to London time.
(b) Where there is a reference in this Agreement to any amount, limit
or threshold specified in dollars, in ascertaining whether or not
that amount, limit or threshold
- 18 -
has been attained, broken or achieved, as the case may be, a
non-dollar amount shall, unless the context otherwise requires or
the contrary is indicated, be counted on the basis of the
equivalent in dollars of that amount using the Facility Agent's
Spot Rate of Exchange EXCEPT FOR the purposes of calculating the
dollar equivalent of Total Gross Debt which is not denominated in
dollars for the purposes of the covenants set out in paragraphs
(b) and (e) of Clause 21.2 (FINANCIAL CONDITION), in which case
the dollar exchange rate set out in the letter sent by ABB to the
Facility Agent on or prior to the date hereof shall be used.
(c) Section, Clause and Schedule headings are for ease of reference
only.
(d) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(e) A Default is "CONTINUING" if it has not been remedied or waived.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"$" and "DOLLARS" denote lawful currency of the United States of America
"L" and "STERLING" denotes lawful currency of the United Kingdom and
"EUR" and "EURO" means the single currency unit of the Participating
Member States.
1.4 THIRD PARTY RIGHTS
A person who is not a Party has no right under the Contracts (Rights of
Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any term
of this Agreement.
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SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available to
the Borrowers:
(a) a multicurrency revolving loan facility, in an aggregate amount
equal to the Total Facility A Commitments, and benefiting from
the Term-Out Option; and
(b) a multicurrency revolving loan facility in an aggregate amount
equal to the Total Facility B Commitments.
2.2 ABB shall ensure that on and following each Utilisation hereunder each
of ABB Capital B.V., ABB Asea Xxxxx Boveri Ltd and ABB Structured
Finance Investment B.V. shall be a borrower of an amount that is
approximately equal to at least that amount of the Loan set out opposite
their name below:
(a) ABB Capital B.V. - 60 per cent. of the aggregate amount of all
Facility A Loans and Facility B Loans outstanding at such time;
(b) ABB Asea Xxxxx Boveri Ltd - 30 per cent. of the aggregate amount
of all Facility A Loans and Facility B Loans outstanding at such
time; and
(c) ABB Structured Finance Investment B.V. - $1,000,000 for so long
as any Loan is outstanding hereunder.
2.3 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
(a) The obligations of each Finance Party under the Finance Documents
are several. Failure by a Finance Party to perform its
obligations under the Finance Documents does not affect the
obligations of any other Party under the Finance Documents. No
Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents.
(b) The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Finance Party from
an Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
2.4 FACILITY OFFICES AND NOMINATED AFFILIATE
(a) Subject to paragraph (b) below, a Lender may (i) change its
Facility Office for the purpose of this Agreement and/or (ii)
nominate a different Facility Office for the purposes of making a
particular Loan to any Borrower, in which event such Facility
Office shall for the purposes of this Agreement be its Facility
Office for that Loan but not otherwise.
- 20 -
(b) If a Lender changes its Facility Office or nominates a different
Facility Office, (i) that Lender will notify the Facility Agent
and ABB promptly (and, in any event, within 5 Business Days) of
such change or, as the case may be, nomination, and until it does
so, the Facility Agent and ABB will be entitled to assume that no
such change has taken place and (ii) if the country of such
Facility Office is not subject to the Financial Action Task Force
any such change or, as the case may be, nomination shall be
subject to the prior written consent of the Facility Agent.
(c) Subject to the terms of this Agreement, the relevant portion of
any Loan made to a Borrower incorporated in the United States of
America in which The Bank of Tokyo-Mitsubishi, Ltd ("BOT-M")
participates shall be funded by BTM (Europe) Limited ("BTME").
The following facility office shall be deemed to be the Facility
Office relevant to BOT-M, as Lender, for the purposes of such
Loans only:
BTM(Europe) Limited, Xxxxxxxx Xxxxxx Xxxxx, 00-00 Xxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX.
BOT-M and BTME shall be treated as a single Lender whose
Commitment is the amount set out opposite BOT-M's name in Part 1
of Schedule 1 (ORIGINAL PARTIES), and BOT-M's Available
Commitment shall be reduced to the extent of any amounts funded
by BTME as contemplated by this sub-paragraph (c). If BOT-M
assigns all of its rights or transfers all of its rights and
obligations to a New Lender, BTME shall cease to have any
obligations under this Agreement.
(d) Subject to the terms of this Agreement, the relevant portion of
any Loan made to an Additional Borrower in which Citibank, N.A.
("CNA") participates may at the discretion of Citibank, N.A., be
funded by one or more Facility Offices of Citibank International
Plc ("CIP"). CNA and CIP shall be treated as a single Lender
whose Commitment is the amount set out opposite CNA's name in
Part I of Schedule 1 (THE ORIGINAL PARTIES) and CNA's Available
Commitment shall be reduced to the extent of any amounts provided
by CIP as contemplated by this sub-paragraph (d). If CNA assigns
all of its rights or transfers all of its rights and obligations
to a New Lender, CIP shall cease to have any obligations under
this Agreement.
2.5 OBLIGORS' RIGHT AND OBLIGATIONS HEREUNDER
(a) Each Obligor (other than ABB) and each Third Party Security
Provider by its execution of this Agreement or an Accession
Letter irrevocably appoints ABB to act on its behalf as its agent
in relation to the Finance Documents and irrevocably authorises
(i) ABB on its behalf to supply all information concerning itself
contemplated by this Agreement to the Finance Parties and to give
all notices and instructions (including, in the case of a
Borrower, Utilisation Requests), to execute on its behalf any
Accession Letter and to make such agreements capable of being
given or made by any Obligor or Third Party Security Provider
notwithstanding that they may affect such Obligor or Third Party
Security Provider, without further reference to or the consent of
such Obligor or Third Party Security Provider and (ii) each
Finance Party to give any notice, demand or other communication
to such
- 21 -
Obligor or Third Party Security Provider pursuant to the Finance
Documents to ABB on its behalf, and in each case such Obligor or
Third Party Security Provider shall be bound thereby as though
such Obligor or Third Party Security Provider itself had given
such notices and instructions (including, without limitation, any
Utilisation Requests) or executed or made such agreements or
received any such notice, demand or other communication.
(b) Every act, omission, agreement, undertaking, settlement, waiver,
notice or other communication given or made by the Obligors'
Agent or given to the Obligors' Agent under this Agreement, or in
connection with this Agreement (whether or not known to any other
Obligor and whether occurring before or after such other Obligor
became an Obligor under this Agreement) shall be binding for all
purposes on all other Obligors as if the other Obligors had
expressly made, given or concurred with the same. In the event of
any conflict between any notices or other communications of the
Obligors' Agent and any other Obligor, those of the Obligors'
Agent shall prevail.
(c) An Obligors' Agent may resign its appointment hereunder by giving
not less than ten Business Days' prior written notice to that
effect to the Facility Agent, PROVIDED THAT no such resignation
shall be effective until a successor consents in writing to the
Facility Agent to be appointed.
3. PURPOSE
3.1 PURPOSE
Each Borrower shall apply all amounts borrowed by it under Facility A or
Facility B towards funding the liquidity requirements of the Group in
accordance with the Original Liquidity Plan (as updated by the most
recently delivered Liquidity Plan) and for general corporate purposes.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
No Borrower may deliver a Utilisation Request unless the Facility Agent
has received all of the documents and other evidence listed in Part I of
Schedule 2 (CONDITIONS PRECEDENT) in form and substance reasonably
satisfactory to the Facility Agent. The Facility Agent shall notify ABB
and the Lenders promptly upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
(a) The Lenders will only be obliged to comply with Clause 5.4
(LENDERS' PARTICIPATION) if on the date of the Utilisation
Request and on the proposed Utilisation Date:
(i) no Event of Default or, in each case other than in the
case of a Rollover Loan, Default is continuing or would
result from the proposed Loan; and
- 22 -
(ii) the Repeating Representations to be made by ABB pursuant
to Clause 19.25 (REPETITION) are true in all respects.
(b) A Loan will not be made if it would result in the Base Currency
Amount of all Loans exceeding the Total Commitments.
4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
A currency will constitute an Optional Currency in relation to a Loan if
it is Sterling or Euro, or it is readily available in the amount
required and freely convertible into the Base Currency in the Relevant
Interbank Market on the Quotation Day and the Utilisation Date for that
Loan PROVIDED THAT there may not at any time be Loans outstanding
denominated in more than 5 Optional Currencies.
4.4 MAXIMUM NUMBER OF LOANS
(a) No Borrower may deliver a Utilisation Request if as a result of
the proposed Utilisation:
(i) 21 or more Facility A Loans would be outstanding; or
(ii) 11 or more Facility B Loans would be outstanding.
(b) Any Loan made by a single Lender under Clause 6.2 (UNAVAILABILITY
OF A CURRENCY) shall not be taken into account in this
Clause 4.4.
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SECTION 3
UTILISATION
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST AND CONDITIONS THERETO
Save in respect of a Term-Out Loan, any Borrower may utilise a Facility
by delivery to the Facility Agent of a duly completed Utilisation
Request not later than the Specified Time.
(a) Each Utilisation Request shall have attached thereto a
certificate from ABB confirming that:
(i) the aggregate amount of Available Cash is, or will at
some point during the period of 28 days after the
relevant Utilisation Date because of net cash outgoings
occurring within such period in accordance with the most
recently delivered Liquidity Plan be, less than
$300,000,000 (or its equivalent in other currencies);
(ii) the amount requested in such Utilisation Request is,
having taken into account the aggregate of the amounts
requested in each other Utilisation Request delivered
after the delivery of the most recently delivered
Liquidity Plan (if any), consistent with the level of
borrowings forecast in the most recently delivered
Liquidity Plan (if any) in respect of the next 28 days;
and
(iii) there is no Material Adverse Deviation.
(b) No Utilisation Request in respect of a Loan to be advanced in any
Month may be delivered if as a result thereof the aggregate Base
Currency Amount of all Loans outstanding would exceed the Monthly
Borrowing Limit for such Month.
(c) No Utilisation Request may be delivered by any Borrower with
respect to a Utilisation of Facility B unless Facility A has
been, or will on the first proposed Utilisation Date for Facility
B be utilised in full.
(d) No Utilisation Request may be delivered by any Borrower with
respect to a Utilisation of the Facilities:
(i) at any time after either:
(A) the Majority Lenders (acting in good faith on
credit grounds on the basis of the matters
disclosed in the PwC Report (Phase II) and after
consultation with ABB) reject the PwC Report
(Phase II) within 2 weeks of the Facility Agent
receiving it; or
(B) 31 January 2003, if the PwC Report (Phase II) has
not been delivered to the Facility Agent on or
before such date;
(ii) at any time after 28 February 2003 if the Asbestos
Milestone has not been met.
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5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be regarded
as having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day within
the Availability Period applicable to that Facility;
(iii) the currency and amount of the Utilisation comply with
Clause 5.3 (CURRENCY AND AMOUNT); and
(iv) the proposed Interest Period complies with Clause 10
(INTEREST PERIODS).
(b) Only one Loan may be requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be the Base
Currency or an Optional Currency.
(b) The amount of the proposed Loan must be:
(i) if the currency selected is the Base Currency, a minimum
of $25,000,000 for Facility A and $25,000,000 for
Facility B or in either case, if less, the Available
Facility; or
(ii) if the currency selected is an Optional Currency, the
minimum amount (and, if required, integral multiple)
specified by the Facility Agent or, if less, the
Available Facility; and
(iii) in any event such that its Base Currency Amount is less
than or equal to the Available Facility,
or in each case such lesser amount as is required by the terms of
the most recently delivered Liquidity Plan and/or to comply with
Clause 2.2 of Clause 2 (THE FACILITIES).
5.4 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met, each
Lender shall make its participation in each Loan available by the
Utilisation Date through its Facility Office.
(b) Subject to Clause 6.2 (UNAVAILABILITY OF A CURRENCY) the amount
of each Lender's participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available
Facility immediately prior to making the Loan.
(c) The Facility Agent shall determine the Base Currency Amount of
each Loan which is to be made in an Optional Currency and shall
notify each Lender of the amount, currency and the Base Currency
Amount of each Loan and the amount of its participation in that
Loan, in each case by the Specified Time.
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6. OPTIONAL CURRENCIES
6.1 SELECTION OF CURRENCY
The relevant Borrower shall select the currency of a Loan in the
Utilisation Request.
6.2 UNAVAILABILITY OF A CURRENCY
If before the Specified Time on any Quotation Day:
(a) a Lender notifies the Facility Agent that the Optional Currency
(other than Euro or Sterling) requested is not readily available
to it in the amount required; or
(b) a Lender notifies the Facility Agent that compliance with its
obligation to participate in a Loan in the proposed Optional
Currency (other than Euro or Sterling) would contravene a law or
regulation applicable to it,
the Facility Agent will give notice to the relevant Borrower to that
effect by the Specified Time on that day. In this event, any Lender that
gives notice pursuant to this Clause 6.2 will be required to participate
in the Loan in the Base Currency (in an amount equal to that Lender's
proportion of the Base Currency Amount, or in respect of a Rollover
Loan, an amount equal to that Lender's proportion of the Base Currency
Amount of the Rollover Loan that is due to be made) and its
participation will be treated as a separate Loan denominated in the Base
Currency during that Interest Period.
6.3 NOTIFICATION
The Facility Agent shall notify the Lenders and the relevant Borrower of
Optional Currency amounts (and the applicable Facility Agent's Spot Rate
of Exchange) promptly after they are ascertained.
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SECTION 4
TERM-OUT OPTION, REPAYMENT, PREPAYMENT AND CANCELLATION
7. TERM-OUT OPTION AND REPAYMENT
7.1 TERM-OUT OPTION
(a)
(i) The Obligor's Agent shall be entitled subject to the
provisions of sub-paragraph (ii) below, once, at any time
during the period falling 30 Business Days prior to the
Termination Date, upon the provision of not less than
five Business Days' notice in writing to the Facility
Agent, to require that:
(A) each Facility A Loan specified in such notice
(each a "SPECIFIED LOAN") which would be
outstanding on the Termination Date be converted
into a Term Loan on the Termination Date; and
(B) all or any part of the Available Facility under
Facility A on the day falling one Business Day
prior to the Termination Date be drawn down as a
Term Loan on the Termination Date (the "TERM-OUT
LOAN").
(ii) Any notice delivered by ABB pursuant to sub-paragraph (i)
above shall identify, with respect to each Specified Loan
and the Term-Out Loan, the Borrower thereof and the Base
Currency Amount thereof. The aggregate of the Base
Currency Amount of all of the Specified Loans and the
Term-Out Loan may not exceed $750,000,000.
(b) The Facility Agent shall notify the Lenders of any notice
received by it pursuant to the provisions of paragraph (a) above
as soon as reasonably practicable after receipt thereof.
(c) If ABB delivers a notice under paragraph (a) above and if on the
Termination Date:
(i) no Default is continuing assuming availability of the
Term-Out Loan;
(ii) the Repeating Representations to be made by each Obligor
are true in all material respects;
(iii) a Business Plan has been delivered to the Facility Agent
on or after 1 December 2003 which demonstrates, on the
assumption that the Term-Out Option is available, that
the minimum aggregate amount of Available Cash at all
times during the year which commences on 1 January 2004
is $300,000,000 (or its equivalent in other currencies),
and such Business Plan had attached thereto a certificate
from Senior Management of ABB confirming without personal
liability that they have been advised by their Auditors
that the assumptions underlying such Business Plan will
be accepted by the Auditors in the context of their audit
work for the year which commenced on 1 January 2003; and
- 27 -
(iv) the Facility Agent has received, for the account of the
Lenders, a fee in an amount equal to 1.00 per cent. on
the aggregate of the Base Currency Amount of all of the
Specified Loans and the Term-Out Loan, then:
(A) each Specified Loan outstanding on the
Termination Date shall be converted into a Term
Loan;
(B) each Lender shall make its participation in the
Term-Out Loan available on the Termination Date
through its Facility Office,
and, the Term Loans made to each Borrower shall be
aggregated and thereafter treated as a single Term Loan
to such Borrower. On the Termination Date the Available
Commitment of each Bank shall be cancelled and reduced to
zero.
(d) On the Termination Date, with respect to each Specified Loan
which is not denominated in the Base Currency:
(i) each Lender shall pay an amount equal to its portion of
the New Amount of such Specified Loan to the Facility
Agent, who shall hold the same on behalf of such Lender;
(ii) the Facility Agent shall:
(A) apply the amount so made available to it by each
Lender in or towards the purchase of such
Lender's portion of the amount of such Specified
Loan in the currency in which it is denominated
and pay the amount so purchased to such Lender;
and
(B) pay any portion of the amount made available to
it by the Lenders and not applied in accordance
with sub-paragraph (A) above to the Borrower of
such Specified Loan; and
(iii) the Borrower of such Specified Loan shall pay to the
Facility Agent for the account of each Lender a sum equal
to the amount (if any) by which such Lender's share of
the existing Specified Loan exceeds the amount paid by
the Facility Agent to such Lender pursuant to
sub-paragraph (ii)(A) above.
(e) Each Lender will participate through its Facility Office in each
Term Loan made pursuant to paragraph (a) of this Clause 7.1 in
the same proportion as it participated in the corresponding
Facility A Loan immediately prior to the making of such Term
Loan.
(f) The period for which the Term Loans are outstanding shall be
divided into successive interest periods each of which (other
than the first which shall start on the Termination Date) shall
start on the last day of the preceding such period.
(g) The duration of each Interest Period for the Term Loans shall be
determined in accordance with the provisions of Clause 10.1
(SELECTION OF INTEREST PERIODS). Any Interest Period containing a
Repayment Date shall be chosen so as to end on that Repayment
Date.
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(h) For the avoidance of doubt, if the fee referred to in paragraph
(c)(iv) of this Clause is paid to the Facility Agent and no Term
Loan is made or permitted to remain outstanding on the
Termination Date, then the Lenders will procure that that fee is
refunded to ABB.
7.2 REPAYMENT OF TERM LOANS
ABB shall procure that the Borrowers shall repay the Term Loans such
that the aggregate amount of the Term Loans is on the dates set out
below reduced by the amounts set out below:
REPAYMENT DATE AMOUNT $
1 July 2004 150,000,000
1 October 2004 250,000,000
15 December 2004 350,000,000
PROVIDED THAT if the amount termed-out on the Termination Date (the
"TERM-OUT AMOUNT") is less than $750,000,000 the above amounts shall be
reduced in inverse chronological order by an amount equal to the amount
by which $750,000,000 exceeds the Term-Out Amount.
7.3 REPAYMENT OF FACILITY A LOANS AND FACILITY B LOANS
Prior to and on the Termination Date, each Borrower shall repay each
Facility A Loan or, as the case may be, Facility B Loan made to it on
the last day of the Interest Period for such Facility A Loan or, as the
case may be, such Facility B Loan save for any Specified Loan permitted
to remain outstanding under the terms of Clause 7.1 (TERM-OUT OPTION).
7.4 REDUCTION OF FACILITY
(a) The Total Commitments shall be reduced in instalments on each
date specified below (each a "REDUCTION DATE") such that the
Total Commitments on any date do not exceed the amount set out
below on such date:
REDUCTION DATES
1 November 2003 $ 1,200,000,000
1 December 2003 $ 1,000,000,000
(b) Any reduction of Commitments required pursuant to paragraph (a)
shall be applied first against Total Facility B Commitments and
once the Total Facility B Commitments have been reduced to zero,
against the Total Facility A Commitments.
(c) The Company shall ensure that sufficient Loans are repaid on a
Reduction Date to the extent necessary so that the aggregate of
the Base Currency Amounts of the outstanding Loans under the
relevant Facility (after that repayment) is equal to or less than
the reduced amount of the relevant Commitments.
(d) Any reduction of the Total Facility B Commitments shall reduce
rateably the Facility B Commitment of each Lender. Any reduction
of the Total Facility A Commitments shall reduce rateably the
Facility A Commitment of each Lender.
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8. PREPAYMENT AND CANCELLATION
For the purposes of this Clause 8:
"DIVESTMENTS NET DISPOSALS PROCEEDS" means in relation to a Disposal to
a non-Group member of all or any part of the Divestment Assets, 50 per
cent. of all Net Disposal Proceeds received by a member of the Group
excluding the first $1,350,000,000 of such Net Disposal Proceeds.
"EXCLUDED PROCEEDS" means:
(a) cash proceeds received in respect of a transaction within
sub-paragraphs (a)(iii) to (a)(vii) inclusive of Clause 22.4
(DISPOSALS);
(b) cash proceeds received in respect of individual Disposals with an
individual value of up to $50,000,000 (or its equivalent in other
currencies) except to the extent that such cash proceeds are cash
proceeds contemplated by paragraph (c) below;
(c) cash proceeds received in respect of Disposals with an individual
value of more than $10,000,000 (or its equivalent in other
currencies) where the amount of such cash proceeds, when
aggregated with other such cash proceeds received by Group
Companies, is $50,000,000 (or its equivalent in other currencies)
or less;
(d) cash proceeds received in respect of Disposals of receivables
pursuant to the Existing Securitisations;
(e) cash proceeds received in respect of Disposals of marketable
securities in the ordinary course of treasury activities of the
disposing Group Company or in the ordinary course of investment
management activities in the case of a Group Company that is an
insurance or re-insurance company;
(f) cash proceeds received in respect of Disposals by a Group Company
(other than ABB) which is not an Obligor to other Group
Companies; and
(g) cash proceeds received by a Group Company in 2004 in respect of
Disposals of assets which are not Divestment Assets but which
fall within the divestment and special item line in the Original
Liquidity Plan for June 2004 up to a maximum amount of
$600,000,000.
"NET CAPITAL MARKETS PROCEEDS" means the cash proceeds of the issue of
any bonds, notes, debentures, loan stock, other similar instrument,
securitisation or other financing (after deducting reasonable fees and
expenses incurred by any Group Company in relation to such issues or
financings) other than cash proceeds received pursuant to:
(i) issues of commercial paper or medium term notes outside
of the Group by an Obligor or ABB Financial Services
Australia Ltd or any successor issuer of commercial paper
in Australia with a maturity of one year or less;
(ii) the Existing Securitisations;
(iii) cash pooling arrangements made in the course of
day-to-day cash management of the Group;
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(iv) Project Finance Indebtedness;
(v) financing between members of the Group;
(vi) any single bank loan facility, repo facility, committed
FX lines, swaps and similar market contracts made
available to a Group Company; and
(vii) facilities made available to Group Companies for the
purposes of refinancing a facility made available by a
bank or a branch of a bank in the same jurisdiction of
incorporation as the relevant Group Company (a "LOCAL
BILATERAL FACILITY") to the extent of the amount of the
Local Bilateral Facility actually repaid or cancelled.
"NET DISPOSAL PROCEEDS" means the cash proceeds (including any amount
received in repayment of intercompany debt) of any Disposal after
deducting:
(a) reasonable fees and expenses incurred by any Group Company due to
such disposal;
(b) VAT paid or payable by the seller or any other Group Company due
to such Disposal; and
(c) any tax incurred and required to be paid by the seller or any
other Group Company in connection with such Disposal (as
reasonably determined by the seller or such Group Company, acting
in good faith, on the basis of existing rates and taking account
of any available credit, deduction or allowance).
"NET EQUITY PROCEEDS" means the cash proceeds of any issue of shares or
stock of any Group Company excluding shares of ABB where such shares
are:
(a) held as treasury stock in relation to any convertible bond issued
by ABB;
(b) issued as part of an employee share option plan for a Group
Company; or
(c) issued pursuant to any financing plan in connection with the
Chapter XI filing of CE,
and after deducting:
(i) reasonable fees and expenses incurred by any Group
Company due to such issue of shares;
(ii) VAT paid or payable by any Group Company due to such
issue; and
(iii) any tax incurred and required to be paid by a Group
Company in connection with such issue.
"NON OGP/DIVESTMENT DISPOSAL PROCEEDS" means any Net Disposal Proceeds
from a Disposal of any asset of any Group Company excluding:
(a) Excluded Proceeds;
(b) the Net Disposal Proceeds in relation to OGP; and
- 31 -
(c) the Net Disposal Proceeds in relation to the Divestment Assets.
"OGP NET DISPOSAL PROCEEDS" means in relation to a Disposal of all or
any part of OGP:
(a) the first $750,000,00 of any Net Disposal Proceeds; and
(b) 50 per cent. of any excess over $1,500,000,000 of the Net
Disposal Proceeds.
8.1 LENDER ILLEGALITY
If it becomes unlawful in any jurisdiction for a Lender to perform any
of its obligations as contemplated by this Agreement or to fund its
participation in any Loan:
(a) that Lender shall promptly notify the Facility Agent upon
becoming aware of that event;
(b) unless the repayment referred to in paragraph (c) below avoids
such unlawfulness, upon the Facility Agent notifying ABB, the
Commitment of that Lender will be immediately cancelled; and
(c) each Borrower shall, to the extent necessary to avoid such
unlawfulness, repay that Lender's participation in the Loans made
to it on the last day of the Interest Period for each Loan
occurring after the Facility Agent has notified ABB or, if
earlier, the date specified by the Lender in the notice delivered
to the Facility Agent (being no earlier than 5 Business Days
after receipt of such notice or, if earlier, the last day of any
applicable grace period permitted by law).
8.2 BORROWER ILLEGALITY
If it is or becomes unlawful for a Borrower to perform any of its
obligations under the Finance Documents, save where such obligations are
not, or could reasonably be considered not to be, material to the
interests of the Lenders under the Finance Documents, the Borrowers
shall within 15 Business Days of being served with notice by the
Facility Agent so to do, repay all Loans, together with accrued interest
and all other amounts accrued under the Finance Documents. On the
service of any such notice the Facility shall be cancelled and the
Commitments will be reduced to zero.
8.3 MANDATORY PREPAYMENT ON CHANGE OF CONTROL
(a) If any person (whether alone or together with any associated
person) becomes the beneficial owner of shares in the issued
share capital of ABB carrying the right to more than 50% of the
votes exercisable at a general meeting of ABB:
(i) ABB shall promptly notify the Facility Agent upon
becoming aware of that event; and
(ii) the Facility Agent may (on the instructions of the
Majority Lenders), by not less than 10 Business Days'
notice to ABB and having consulted with ABB, cancel the
Facility and declare all Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents immediately due and payable, whereupon the
Facility will be cancelled and all such outstanding
amounts will become immediately due and payable.
- 32 -
For the purposes of this Clause 8.3, "ASSOCIATED PERSON" means,
in relation to any person, a person who is (i) "acting in
concert" (as defined in the City Code on Takeovers and Mergers)
with that person or (ii) a "connected person" (as defined in
section 839 of the Income and Corporate Taxes Act 1988) of that
person.
(b) On any cancellation of the Facility pursuant to this Clause 8.3,
the Commitments will be reduced to zero.
8.4 MANDATORY PREPAYMENT - OGP
(a) If a Group Company receives any Net Disposal Proceeds in relation
to a Disposal of all or any part of OGP, ABB shall promptly
notify the Facility Agent upon becoming aware of the same.
(b) ABB shall procure that the OGP Net Disposal Proceeds are applied
in reduction of the Facility, as soon as reasonably practicable
and in any event within 5 Business Days of receipt by any Group
Company in accordance with the provisions of Clause 8.8
(APPLICATION OF MANDATORY PREPAYMENTS).
8.5 MANDATORY PREPAYMENT - DIVESTMENT ASSETS
(a) If a Group Company receives any Net Disposal Proceeds in relation
to a Disposal of all or any part of the Divestment Assets, ABB
shall promptly notify the Facility Agent upon becoming aware of
the same.
(b) ABB shall procure that the Divestments Net Disposal Proceeds are
applied in reduction of the Facility, as soon as reasonably
practicable and in any event within 5 Business Days of receipt by
any Group Company, in accordance with the provisions of Clause
8.8 (APPLICATION OF MANDATORY PREPAYMENTS).
8.6 MANDATORY PREPAYMENT - OTHER PROCEEDS
(a) If a Group Company receives:
(i) any Non OGP/Divestment Disposal Proceeds;
(ii) any Net Capital Markets Proceeds; and/or
(iii) any Net Equity Proceeds,
ABB shall promptly notify the Facility Agent upon becoming aware
of the same.
(b) ABB shall procure that:
(i) any Non OGP/Divestment Disposal Proceeds;
(ii) any Net Capital Market Proceeds; and/or
(iii) any Net Equity Proceeds,
are applied in reduction of the Facility, as soon as reasonably
practicable and in any event within 5 Business Days of receipt by
any Group Company, in accordance with the provisions of Clause
8.8 (APPLICATION OF MANDATORY PREPAYMENTS).
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(c) Paragraph (b) above shall not apply to the extent that ABB, by
written notice to the Facility Agent, elects to retain up to
$500,000,000 generated in accordance with the Discretionary
Funding Plan PROVIDED THAT:
(i) ABB sends a written notice to the Facility Agent
certifying that:
(1) the first $250,000,000 of such amount (the
"DISCRETIONARY FUNDING BALANCE") will be utilised
by ABB for the discretionary funding requirements
of the Group; and
(2) the second $250,000,000 of such amount (the
"APPROVED FUNDING BALANCE") will be utilised by
ABB for the Approved Funding Requirements of the
Group (to the extent the Approved Funding Balance
has not been designated by ABB to meet the
covenant at paragraph (e) of Clause 21.2
(FINANCIAL CONDITION)); and
(ii) pending the application by ABB of the Approved Funding
Balance towards Approved Funding Requirements, ABB
deposits the Approved Funding Balance in an interest
bearing blocked account in the name of ABB Capital B.V.
held with Citibank, N.A. and grants Security in form and
substance reasonably required by the Majority Lenders
over such amount as security for the Secured Obligations
and on the basis that such Security shall be released to
allow amounts to be utilised in accordance with the
Approved Funding Requirements.
(d) ABB's obligations pursuant to this Clause 8.6 to procure
prepayment of the Facility from Non OGP/Divestment Disposal
Proceeds or Net Capital Markets Proceeds shall only be to the
extent that such Non OGP/Divestment Disposal Proceeds or Net
Capital Markets Proceeds (as the case may be) can be transferred
to a Borrower for the purpose of the relevant prepayment and
cancellation without contravening any applicable laws PROVIDED
FURTHER HOWEVER that each Group Company shall use its best
endeavours to effect such transfer of Non OGP/Divestment Disposal
Proceeds or Net Capital Markets Proceeds (as the case may be) and
if such transfer cannot be made without contravening applicable
laws shall use its reasonable endeavours to procure that the
relevant prepayment is made from other available cash reserves of
Group Companies.
8.7 EXCESS AVAILABLE CASH
(a) If on the last Business Day of any calendar month, the Available
Cash of the Group is more than $500,000,000 (the amount in excess
of $500,000,000 on such date being the "EXCESS AMOUNT"), ABB
shall promptly notify the Facility Agent upon becoming aware of
the same.
(b) ABB shall procure that the Excess Amount in respect of the last
day of any calendar month is applied in reduction of the
Facility, as soon as reasonably practicable and in any event
within 5 Business Days of the end of the relevant calendar month
in accordance with the provisions of Clause 8.8 (APPLICATION OF
MANDATORY PREPAYMENTS).
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8.8 APPLICATION OF MANDATORY PREPAYMENTS
Any reduction of the Facility made under Clause 8.4 (MANDATORY
PREPAYMENT - OGP), Clause 8.5 (MANDATORY PREPAYMENT - DIVESTMENT
ASSETS), Clause 8.6 (MANDATORY PREPAYMENT - OTHER PROCEEDS) or Clause
8.7 (EXCESS AVAILABLE CASH) shall be applied as follows:
(a) Prior to the Termination Date:
(i) first, in prepayment and, save in the case of a
prepayment under Clause 8.7 (EXCESS AVAILABLE CASH),
cancellation of Facility B and the Facility B Commitment
of the Lenders shall be cancelled rateably; and
(ii) secondly, in prepayment and, save in the case of a
prepayment under Clause 8.7 (EXCESS AVAILABLE CASH),
cancellation of Facility A and the Facility A Commitment
of the Lenders shall be cancelled rateably; and
(b) on and following the Termination Date, in repayment of the Loan;
and
(c) any repayment of the Loan following the Termination Date shall
satisfy the remaining obligations under Clause 7.2 (REPAYMENT OF
TERM LOANS) in inverse chronological order.
8.9 VOLUNTARY CANCELLATION
ABB may, if it gives the Facility Agent not less than 5 Business Days'
(or such shorter period as the Majority Lenders may agree) prior notice,
cancel the whole or any part (being a minimum amount of $25,000,000 and
an integral multiple of $5,000,000) of the Available Facility. Any such
cancellation shall be applied first in cancellation of Facility B and
secondly in cancellation of Facility A. Any cancellation under this
Clause 8.9 shall reduce rateably the Commitments under the relevant
Facility.
8.10 VOLUNTARY PREPAYMENT
A Borrower may, if it gives the Facility Agent not less than 5 Business
Days' (or such shorter period as the Majority Lenders may agree) prior
notice, prepay the whole or any part of a Loan made to it (but if in
part, being an amount that reduces the Base Currency Amount of the Loan
by a minimum amount of $25,000,000 and rounded as the Facility Agent may
reasonably require). The Borrower must prepay and cancel all of Facility
B before applying any prepayment against Facility A.
8.11 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
(a) If:
(i) any sum payable to any Lender by ABB or an Obligor is
required to be increased under paragraph (c) of Clause
13.2 (TAX GROSS-UP); or
(ii) any Lender claims indemnification from ABB or a Borrower
under Clause 13.3 (TAX INDEMNITY) or Clause 14.1
(INCREASED COSTS),
then ABB may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Facility Agent
notice of cancellation of the Commitment of that Lender and its
intention to procure the repayment of that Lender's participation
in the Loans.
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(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period in respect of a Loan
which ends after ABB has given notice under paragraph (a) above
(or, if earlier, the date specified by ABB in that notice), each
Borrower to which a Loan is outstanding shall repay that Lender's
participation in that Loan.
8.12 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under
this Clause 8 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or
dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
(c) Any prepayment of the Loan following the Termination Date shall
satisfy the remaining obligations under Clause 7.2 (REPAYMENT OF
TERM LOANS) in inverse chronological order.
(d) Unless a contrary indication appears in this Agreement, any part
of the Facility which is prepaid prior to the Termination Date
may be reborrowed in accordance with the terms of this Agreement.
(e) No Borrower shall repay or prepay all or any part of the Loans or
cancel all or any part of the Commitments except at the times and
in the manner expressly provided for in this Agreement.
(f) No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.
(g) If the Facility Agent receives a notice under this Clause 8.12 it
shall promptly forward a copy of that notice to the affected
Borrower or the affected Lender, as appropriate.
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SECTION 5
COSTS OF UTILISATION
9. INTEREST
9.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR or, in relation to any Loan in euro, EURIBOR; and
(c) the Additional Cost Rate (where applicable).
9.2 PAYMENT OF INTEREST
(a) Each Borrower shall pay accrued interest on each Loan made to it
on the last day of each Interest Period (and, if the Interest
Period is longer than six Months, on the dates falling at six
monthly intervals after the first day of the Interest Period).
(b) If a Tax Deduction is required by law to be made by an Obligor in
one of the circumstances set out in paragraph (c) of Clause 13.2
(TAX GROSS-UP), the amount of the payment due from that Obligor
shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would have
been due if no Tax Deduction had been required.
9.3 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual payment
(both before and after judgment) at a rate 2.00 per cent higher
than the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Loan in the
currency of the overdue amount for successive Interest Periods,
each of a duration selected by the Facility Agent (acting
reasonably). Any interest accruing under this Clause 9.3 (DEFAULT
INTEREST) shall be immediately payable by the relevant Obligor on
demand by the Facility Agent.
(b) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain
immediately due and payable.
9.4 NOTIFICATION OF RATES OF INTEREST
The Facility Agent shall promptly notify the Lenders and ABB of the
determination of a rate of interest under this Agreement.
10. INTEREST PERIODS
10.1 SELECTION OF INTEREST PERIODS
(a) The relevant Borrower may select an Interest Period for a Term
Loan which commences after the Termination Date, in a Selection
Notice.
- 37 -
(b) Each Selection Notice for a Term Loan is irrevocable and must be
delivered to the Facility Agent by the relevant Borrower not
later than the Specified Time.
(c) If the relevant Borrower fails to deliver a Selection Notice to
the Facility Agent in accordance with paragraph (b) above, the
relevant Interest Period will be one Month.
(d) Subject to this Clause 10, each Interest Period, for any Loan
made prior to the Termination Date shall be one Month or any
other period of less than one Month to end on the Termination
Date or to comply with Clause 7.4 (REDUCTION OF FACILITY) or any
other period agreed between such Borrower and the Facility Agent
(acting on the instructions of all the Lenders) Provided that
each Interest Period for a Loan in an amount of $1,000,000
borrowed by ABB Structured Finance Investment B.V. may be one,
two, three or six Months. Each Interest Period for any Loan
outstanding after the Termination Date shall be one, two, three
or six Months or any other period of less than one Month to
comply with Clause 7.2 (REPAYMENT OF TERM LOANS) or any other
period agreed between the relevant Borrower and the Facility
Agent (acting on the instructions of all the Lenders).
(e) An Interest Period for a Facility A Loan or a Facility B Loan
shall not extend beyond the Termination Date.
(f) Each Facility A Loan and each Facility B Loan has one Interest
Period only save for any Facility A Loan permitted to remain
outstanding under the terms of Clause 7.1 (TERM-OUT OPTION).
10.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next Business
Day in that calendar month (if there is one) or the preceding Business
Day (if there is not).
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 ABSENCE OF QUOTATIONS
Subject to Clause 11.2 (MARKET DISRUPTION), if LIBOR or, if applicable,
EURIBOR is to be determined by reference to the Reference Banks but a
Reference Bank does not supply a quotation by the Specified Time on the
Quotation Day, the applicable LIBOR or EURIBOR shall be determined on
the basis of the quotations of the remaining Reference Banks.
11.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share
of that Loan for the Interest Period shall be the rate per annum
which is the sum of:
(i) the Margin;
(ii) the rate notified to the Facility Agent, ABB and the
relevant Borrower by that Lender in a certificate (which
sets out the details of the computation of the relevant
rate and shall be prima facie non-binding evidence of the
same)
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as soon as practicable and in any event before interest
is due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per annum
the cost to that Lender of funding its participation in
that Loan from whatever source it may reasonably select;
and
(iii) the Additional Cost Rate, if any, applicable to that
Lender's participation in the Loan.
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none
or only one of the Reference Banks supplies a rate to the
Facility Agent to determine LIBOR or, if applicable,
EURIBOR for the relevant currency and Interest Period; or
(ii) before close of business in London on the Quotation Day
for the relevant Interest Period, the Facility Agent
receives notifications from a Lender or Lenders (whose
participations in a Loan exceed 50 per cent. of that
Loan) that the cost to it of obtaining matching deposits
in the Relevant Interbank Market would be in excess of
LIBOR or, if applicable, EURIBOR.
11.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Facility Agent or ABB
so requires, the Facility Agent and ABB shall enter into
negotiations (for a period of not more than thirty days) with a
view to agreeing a substitute basis for determining the rate of
interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and ABB, be
binding on all Parties.
11.4 BREAK COSTS
(a) Each Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by such Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Facility Agent, provide to ABB and the relevant
Borrower a certificate (which shall constitute prima facie
non-binding evidence of the matters to which it refers) addressed
to the Facility Agent, ABB and the relevant Borrower confirming
the amount of its Break Costs for any Interest Period in which
they accrue and setting out the manner of computing such Break
Costs.
12. FEES
12.1 COMMITMENT FEE
(a) ABB shall pay to the Facility Agent (for the account of each
Lender) a fee in the Base Currency computed at the rate of:
(i) 1.00 per cent. per annum on that Lender's Available
Commitment under Facility A for the Availability Period
applicable to Facility A; and
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(ii) 1.00 per cent, per annum on that Lender's Available
Commitment under Facility B for the Availability Period
applicable to Facility B.
(b) The accrued commitment fee is payable on the last day of each
successive period of three Months which ends during the relevant
Availability Period, on the last day of the Availability Period
and, if cancelled in full, on the cancelled amount of the
relevant Lender's Commitment at the time the cancellation is
effective.
12.2 PARTICIPATION FEE
ABB shall pay to the Mandated Lead Arrangers for and on behalf of the
Lenders the participation fees in the amount and at the times agreed in
a Fee Letter.
12.3 AGENCY FEE
ABB shall pay to the Facility Agent (for its own account) an agency fee
in the amount and at the times agreed in a Fee Letter.
12.4 TRUSTEE FEE
ABB shall pay to the Trustee (for its own account) the trustee fee in
the amount and at the times agreed in a Fee Letter.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13. TAX GROSS UP AND INDEMNITIES
13.1 DEFINITIONS
(a) In this Clause 13:
"INITIAL BORROWER JURISDICTION" means any of The Netherlands, the
United States of America, Switzerland, Sweden or Guernsey.
"PROTECTED PARTY" means a Finance Party which is or will be, for
or on account of Tax, subject to any liability or required to
make any payment in relation to a sum received or receivable (or
any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
"QUALIFYING LENDER" means:
(i) in respect of a payment by a Borrower resident in
Switzerland for the purposes of Swiss tax, a Lender which
is a bank;
(ii) in respect of a payment by a Borrower incorporated in the
United States of America, a Lender which is:
(A) created or organised under the laws of the United
States of America or of any state (including the
District of Columbia) thereof; or
(B) resident in a jurisdiction having a double
taxation agreement with the United States of
America which makes provision for full exemption
from tax imposed by the United States of America
on interest and which does not carry on a
business in the United States of America through
a permanent establishment with which that
Lender's participation in the Facility is
effectively connected; or
(C) entitled to receive payments under the Finance
Documents without deduction or withholding of any
United States federal income taxes,
and which has complied with any procedural requirements
within its control necessary to receive such payment
without the imposition of United States withholding tax;
or
(iii) in respect of a payment by a Borrower incorporated in any
jurisdiction except the United States of America or
Switzerland, any Lender.
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
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"TAX PAYMENT" means an increased payment made by ABB or an
Obligor to a Finance Party under Clause 13.2 (TAX GROSS-UP) or a
payment made by ABB or an Obligor under Clause 13.3 (TAX
INDEMNITY).
In this Clause a reference to "determines" or "determined" means,
save where expressly stated to the contrary, a determination made
in the absolute discretion of the person making the determination
acting in good faith.
13.2 TAX GROSS-UP
(a) ABB and each Obligor shall make all payments to be made by it
without any Tax Deduction, unless a Tax Deduction is required by
law.
(b) ABB, an Obligor or a Lender shall promptly upon becoming aware
that ABB or an Obligor (as the case may be) must make a Tax
Deduction (or that there is any change in the rate or the basis
of a Tax Deduction) notify the Facility Agent accordingly. If the
Facility Agent receives such notification from a Lender it shall
notify ABB and the relevant Obligor.
(c) If a Tax Deduction is required by law to be made by ABB or an
Obligor in one of the circumstances set out in paragraph (d)
below, the amount of the payment due from ABB or that Obligor
shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would have
been due if no Tax Deduction had been required.
(d) The circumstances referred to in paragraph (c) above are where a
person entitled to the payment:
(i) is the Facility Agent or an Mandated Lead Arranger (on
its own behalf);
(ii) is a Qualifying Lender; or
(iii) is not or has ceased to be a Qualifying Lender to the
extent that this altered status results from any change
after the date hereof in (or in the interpretation,
administration, or application of) any law or double
taxation agreement or any published practice or published
concession of any relevant taxing authority.
(e) If ABB or an Obligor is required to make a Tax Deduction, it
shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and in
the minimum amount required by law.
(f) Within 30 days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, ABB or the
relevant Obligor (as the case may be) shall deliver to the
Facility Agent for the Finance Party entitled to the payment
original receipts or certified copies thereof or if not
available, other evidence reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
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(g) Each Finance Party, ABB and the Obligors shall co-operate in
completing any procedural formalities necessary for ABB or an
Obligor to make a payment to which the Finance Party is entitled
without a Tax Deduction or with a reduced Tax Deduction. Each
Finance Party shall on the reasonable written request of ABB or
an Obligor complete and deliver to ABB or that Obligor all
documentation reasonably required by ABB or that Obligor in order
to enable it to make such payments without a Tax Deduction or
with a reduced Tax Deduction (so long as the completion or
delivery of such documentation would not prejudice the legal or
commercial position of the relevant Finance Party).
13.3 TAX INDEMNITY
(a) ABB or the Borrowers shall (within three Business Days of written
demand by the Facility Agent) pay to a Protected Party an amount
equal to the loss, liability or cost which that Protected Party
determines will be or has been (directly or indirectly) suffered
for or on account of Tax by that Protected Party in respect of a
Finance Document.
(b) Paragraph (a) above shall not apply with respect to any Tax
assessed on a Finance Party:
(i)
(A) under the law of the jurisdiction in which that
Finance Party is incorporated or, if different,
the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax
purposes;
(B) under the law of the jurisdiction in which that
Finance Party's Facility Office is located in
respect of amounts received or receivable in that
jurisdiction; or
(C) arising by reason of the making of a Loan to a
Borrower in an Initial Borrower Jurisdiction
under the law of such jurisdiction, except to the
extent arising by reason of a change in law or in
any regulation occurring after the date of this
Agreement, PROVIDED THAT this paragraph shall not
apply to any Tax assessed or imposed on the
Facility Agent,
if that Tax is imposed on or calculated by reference to
the net income received or receivable (including any sum
deemed to be received or receivable) by that Finance
Party; or
(ii) which is compensated for by Clause 13.2 (TAX GROSS UP)
(or would have been so compensated but for an exception
to that Clause).
(c) A Protected Party making, or intending to make a claim pursuant
to paragraph (a) above shall promptly notify the Facility Agent
of the event which will give, or has given, rise to the claim,
following which the Facility Agent shall notify ABB.
(d) A Protected Party shall, on receiving a payment from ABB under
this Clause 13.3, notify the Facility Agent.
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13.4 TAX CREDIT
If ABB or an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to ABB or (as the case may be)
that Obligor which that Finance Party determines, acting in good faith,
will leave that Finance Party (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been made by
ABB or that Obligor (as the case may be).
13.5 QUALIFYING LENDERS
Any Lender which ceases, for any reason, to be a Qualifying Lender shall
promptly notify ABB and the relevant Obligor(s) of its change of status.
13.6 STAMP TAXES
The Borrowers shall pay and, within 3 Business Days of demand, indemnify
each Finance Party against any cost, loss or liability such Finance
Party incurs in relation to all stamp duty, registration and other
similar Taxes payable in respect of any Finance Document, but not in
respect of any assignment or transfer pursuant to Clause 24 (CHANGES TO
THE LENDERS).
13.7 VALUE ADDED TAX
(a) All consideration payable under a Finance Document by ABB or the
Borrowers to a Finance Party shall be deemed to be exclusive of
any VAT. If VAT is chargeable on any supply made by any Finance
Party to ABB or the Borrowers in connection with a Finance
Document, ABB or the Borrowers (as the case may be) shall pay to
the Finance Party (in addition to and at the same time as paying
the consideration) an amount equal to the amount of the VAT.
(b) Where a Finance Document requires ABB or the Borrowers to
reimburse a Finance Party for any costs or expenses, ABB or the
Borrowers (as the case may be) shall also at the same time pay
and indemnify that Finance Party against all VAT directly
incurred by that Finance Party in respect of the costs or
expenses save to the extent that that Finance Party is entitled
to repayment or credit in respect of the VAT.
14. INCREASED COSTS
14.1 INCREASED COSTS
(a) Subject to Clause 14.3 (EXCEPTIONS) ABB or the Borrowers shall,
within 3 Business Days of a demand by the Facility Agent, pay for
the account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a
result of (i) the introduction of or any change in (or in the
interpretation or application of) any law or regulation or (ii)
compliance with any law or regulation made after the date hereof.
(b) In this Agreement "INCREASED COSTS" means:
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(i) a reduction in the rate of return from the Facility or on
a Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing
its obligations under any Finance Document.
14.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 14
(INCREASED COSTS) shall promptly notify the Facility Agent of the
event giving rise to the claim, following which the Facility
Agent shall promptly notify ABB.
(b) Each Finance Party shall, as soon as practicable after a demand
by the Facility Agent provide a certificate confirming the amount
of its Increased Costs with (subject to any rights or duties of
confidentiality the relevant Finance Party has in respect of such
information) full supporting details (which certificate shall
constitute prima facie non-binding evidence of the matters to
which it relates).
14.3 EXCEPTIONS
(a) Clause 14.1 (INCREASED COSTS) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be
made by ABB or an Obligor;
(ii) compensated for by Clause 13.3 (TAX INDEMNITY) (or would
have been compensated for under Clause 13.3 (TAX
INDEMNITY) but was not so compensated solely because one
of the exclusions in paragraph (b) of Clause 13.3 (TAX
INDEMNITY) applied);
(iii) not payable as provided in Clause 24.2 (CONDITIONS OF
ASSIGNMENT OR TRANSFER);
(iv) compensated for by the payment of the Additional Cost
Rate;
(v) attributable to the breach by the relevant Finance Party
or its Affiliates of any law or regulation; or
(vi) not notified to ABB within 3 months of being incurred.
(b) In this Clause 14.3, a reference to a "TAX DEDUCTION" has the
same meaning given to the term in Clause 13.1 (Definitions).
15. OTHER INDEMNITIES
15.1 CURRENCY INDEMNITY
(a) If any sum due from ABB or an Obligor under the Finance Documents
(a "SUM"), or any order, judgment or award given or made in
relation to a Sum, has to be
- 45 -
converted from the currency (the "FIRST CURRENCY") in which that
Sum is payable into another currency (the "SECOND CURRENCY") for
the purpose of:
(i) making or filing a claim or proof against ABB or any of
the Obligors;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
ABB or that Obligor (as the case may be) shall as an independent
obligation, within 3 Business Days of demand, indemnify each
Finance Party to whom that Sum is due against any cost, loss or
liability arising out of or as a result of the conversion
including any discrepancy between (A) the rate of exchange used
to convert that Sum from the First Currency into the Second
Currency and (B) the rate or rates of exchange available to that
person at the time of its receipt of that Sum.
(b) ABB and each Obligor waives any right it may have in any
jurisdiction to pay any amount under the Finance Documents in a
currency or currency unit other than that in which it is
expressed to be payable.
15.2 OTHER INDEMNITIES
ABB or the Borrowers shall indemnify each Lender upon presentation of
duly documented evidence thereof against any cost, loss or liability
directly incurred by that Lender as a result of:
(a) the occurrence of any Event of Default (but excluding any costs
of enforcement save as provided in Clause 17.3 (ENFORCEMENT
COSTS));
(b) a failure by ABB or an Obligor to pay any amount due under a
Finance Document on its due date, including without limitation,
any cost, loss or liability arising as a result of Clause 29
(SHARING AMONG THE FINANCE PARTIES);
(c) funding, or making arrangements to fund, its participation in a
Loan requested by a Borrower in a Utilisation Request but not
made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default,
negligence or wilful misconduct by that Lender alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by a Borrower.
15.3 INDEMNITY TO THE TRUSTEE
(a) Each Obligor shall (subject to Clause 18.9(a) (CONFIRMATIONS AND
RESTRICTIONS) in respect of Swedish Obligors) promptly indemnify
the Trustee and every Receiver and Delegate against any cost,
loss or liability directly incurred by any of them as a result
of:
(i) the taking, holding, protection or enforcement of the
Transaction Security,
(ii) the exercise of any of the rights, powers, discretions
and remedies vested in the Trustee and each Receiver and
Delegate by the Finance Documents or by law; and
- 46 -
(iii) any default by any Obligor in the performance of any of
the obligations expressed to be assumed by it in the
Finance Documents,
except to the extent the same arises from negligence or default
of the respective Trustee, Receiver or Delegate.
(b) The Trustee may, in priority to any payment to the Secured
Parties, indemnify itself out of the Charged Property in respect
of, and pay and retain, all sums necessary to give effect to the
indemnity in this Clause 15.3 and shall have a lien on the
Transaction Security and the proceeds of the enforcement of the
Transaction Security for all moneys payable to it.
15.4 INDEMNITY TO THE FACILITY AGENT
ABB or the Borrowers shall promptly indemnify the Facility Agent, upon
presentation of duly documented evidence thereof, against any reasonable
cost, loss or liability properly and directly incurred by the Facility
Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a
Default; or
(b) entering into or performing any foreign exchange contract for the
purposes of Clause 6 (OPTIONAL CURRENCIES); or
(c) acting or relying on any notice, request or instruction which it
reasonably believes (after due enquiry) to be genuine, correct
and appropriately authorised.
16. MITIGATION BY THE LENDERS
16.1 MITIGATION
(a) Each Finance Party shall, in consultation with ABB, take all
reasonable steps to mitigate any circumstances which arise and
which would result in any amount becoming payable under or
pursuant to, or cancelled pursuant to, any of Clause 8.1 (LENDER
ILLEGALITY), Clause 13 (TAX GROSS-UP AND INDEMNITIES) or Clause
14 (INCREASED COSTS) or which would result in any increased
amount being payable under this Agreement by reason of a change
in the Additional Cost Rate after the date hereof including (but
not limited to) transferring its rights and obligations under the
Finance Documents to another Affiliate (provided that such
Affiliate qualifies as a PMP) or Facility Office and, in such
circumstances a Lender will, at the request of ABB but subject to
ABB indemnifying it for the costs of so doing, transfer its
rights and obligations under the Finance Documents to another
Lender.
(b) Paragraph (a) above does not in any way limit the obligations of
the Obligors under the Finance Documents.
16.2 LIMITATION OF LIABILITY
(a) ABB or the Borrowers shall indemnify each Finance Party, upon
presentation of duly documented evidence thereof, for all costs
and expenses reasonably and directly incurred by that Finance
Party as a result of steps taken by it under Clause 16.1
(MITIGATION).
(b) A Finance Party is not obliged to take any steps under Clause
16.1 (MITIGATION) (other than a transfer of its rights and
obligations to another Lender where ABB or
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a Borrower indemnifies it for the cost of so doing) if, in the
opinion of that Finance Party (acting reasonably), to do so could
reasonably be expected to be prejudicial to it.
17. COSTS AND EXPENSES
17.1 TRANSACTION EXPENSES
ABB or the Borrowers shall promptly on demand pay, upon presentation of
duly documented evidence thereof, the Facility Agent and the Mandated
Lead Arrangers the amount of all costs and expenses (including legal
fees) reasonably and directly incurred by any of them in connection with
the negotiation, preparation, printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date hereof.
17.2 AMENDMENT COSTS
If (a) ABB requests an amendment, waiver or consent or (b) an amendment
is required pursuant to Clause 30.9 (CHANGE OF CURRENCY), ABB or the
Borrowers shall, within 3 Business Days of demand, reimburse the
Facility Agent, upon presentation of duly documented evidence thereof,
for the amount of all costs and expenses (including legal fees)
reasonably and directly incurred by the Facility Agent and which have
previously been agreed with ABB in responding to, evaluating,
negotiating or complying with that request or requirement.
17.3 ENFORCEMENT COSTS
ABB or the Borrowers shall, within 3 Business Days of demand, pay to
each Finance Party the amount of all costs and expenses (including legal
fees) directly incurred by that Finance Party at any time after the
service of a notice by the Facility Agent under Clause 23.14
(ACCELERATION) in connection with the enforcement of, or the
preservation of any rights under, any Finance Document.
17.4 FSA AND ECB COSTS
(a) This Clause 17.4 applies if, whether now or in the future,
either:
(i) a requirement to pay fees is imposed by the Financial
Services Authority under the Fees Rules; or
(ii) a reserve requirement is imposed by the European Central
Bank;
which, in either case, is applied to any Lender (and would be
applied generally to banks or financial institutions of a similar
nature to that Lender) as a consequence of its entering into
and/or performing its obligations under this Agreement and/or
assuming or maintaining its Commitment under this Agreement
and/or making one or more Loans under this Agreement. If, as a
result, that Lender's effective return on its overall capital is
reduced, ABB and the Borrowers agree to reimburse that Lender for
the amount claimed.
(b) In the event that paragraph (a) above applies, each Lender may
submit a certificate setting out a calculation of the amount
claimed by it (and, in the case of an amount
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claimed as a result of a reserve requirement being imposed by the
European Central Bank, certifying that such amount has been
reasonably determined) to the Facility Agent within the period
(the "CERTIFICATE PERIOD") of 10 Business Days after the end of
each Relevant Period. The Facility Agent will notify ABB of the
amount claimed by that Lender within 5 Business Days after the
end of the relevant Certification Period and ABB or the Borrowers
shall (absent manifest error in the relevant notice) reimburse
that Lender for the amount claimed within 3 Business Days after
the date of such notification.
(c) In this Clause 17.4, a "RELEVANT PERIOD" is, as appropriate:
(i) the period beginning on the date hereof and ending on 30
June 2003; and
(ii) the period which starts on 30 June 2003 and ends on the
Termination Date,
and "FEES RULES" means, as appropriate, either:
(i) the rules on periodic fees contained in the FSA
Supervision Manual; or
(ii) such other law or regulations as may be in force from
time to time relating to the payment of fees for the
acceptance of deposits.
17.5 TRUSTEE'S ONGOING COSTS
(a) In the event of the occurrence of (i) a Default or (ii) the
Trustee considering it necessary or expedient or (iii) being
requested by an Obligor or the Majority Lenders to undertake
duties which the Trustee and ABB agree to be of an exceptional
nature and/or outside the scope of the normal duties of the
Trustee under the Finance Documents, ABB or the relevant Borrower
shall pay to the Trustee any additional remuneration (together
with any applicable VAT) that may be agreed between them.
(b) If the Trustee and ABB fail to agree upon the nature of the
duties or upon any additional remuneration, that dispute shall be
determined by an investment bank (acting as an expert and not as
an arbitrator) selected by the Trustee and approved by ABB or,
failing approval, nominated (on the application of the Trustee)
by the President for the time being of the Law Society of England
and Wales (the costs of the nomination and of the investment bank
being payable by ABB and the determination of any investment bank
shall be final and binding upon the parties to this Agreement).
- 49 -
SECTION 7
GUARANTEE
18. GUARANTEE AND INDEMNITY
18.1 GUARANTEE AND INDEMNITY
Subject to the provisos and confirmations contained in Clause 18.9
(CONFIRMATIONS AND RESTRICTIONS) each Guarantor irrevocably and
unconditionally:
(a) guarantees to each Secured Party punctual performance by each
Obligor of all that Obligor's obligations under the Finance
Documents;
(b) undertakes with each Secured Party that whenever an Obligor does
not pay any amount when due under or in connection with any
Finance Document, the Guarantor shall immediately on demand pay
that amount as if it was the principal obligor; and
(c) indemnifies each Secured Party immediately on demand against any
cost, loss or liability suffered by that Secured Party if any
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal. The amount of the cost, loss or liability shall be
equal to the amount which that Secured Party would otherwise have
been entitled to recover.
18.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
18.3 REINSTATEMENT
If any payment by an Obligor or any discharge given by a Finance Party
or Bilateral Bank (whether in respect of the obligations of an Obligor
or any security for those obligations or otherwise) is avoided or
reduced as a result of insolvency or any similar event:
(a) the liability of the Guarantor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from the Guarantor, as if the
payment, discharge, avoidance or reduction had not occurred.
18.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 18 will not be
affected by an act, omission, matter or thing which, but for this
Clause, would reduce, release or prejudice any of its obligations under
this Clause 18 (without limitation and whether or not known to it or any
Finance Party) including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
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(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of any
Group Company;
(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 Obligor 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 power, authority or legal personality
of or dissolution or change in the members or status of an
Obligor or any other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
18.5 IMMEDIATE RECOURSE
Each Guarantor 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 Guarantor under this Clause 18. This waiver
applies irrespective of any law or any provision of a Finance Document
to the contrary.
18.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of any Guarantor's liability
under this Clause 18.
18.7 DEFERRAL OF GUARANTOR'S RIGHTS
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 and unless the Facility Agent otherwise directs, no Guarantor
will exercise any rights which it may have by reason of performance by
it of its obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
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(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents
by any Finance Party.
18.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance
Party.
18.9 CONFIRMATIONS AND RESTRICTIONS
(a) The obligations and liabilities of ABB Financial Services AB, or
any other Guarantor which is incorporated in Sweden, under this
Clause 18 shall be limited if required by an application of the
provisions of the Swedish Companies Act (Sw: AKTIEBOLAGSLAGEN)
(SFS 1975:1385)) in force from time to time regulating prohibited
loans and guarantees and distribution of assets (including
profits/dividends) and it is understood that the liability of any
such Swedish Obligor under this Clause 18 only applies to the
extent permitted by the above mentioned provisions of the Swedish
Companies Act.
The obligations and liabilities of ABB Financial Services AB, or
any other Guarantor which is incorporated in Sweden, under this
Clause 18 shall terminate if, and when, it ceases to be a
Borrower pursuant to Clause 25.3 (RESIGNATION OF A BORROWER).
The Guarantee of ABB Financial Services AB shall not extend to
the obligations of ABB Holding AG as a Guarantor.
(b) Any term or provision of this Clause 18 or any other term in this
Agreement or any Finance Document notwithstanding, the maximum
aggregate amount of the obligations for which any Guarantor which
is incorporated in any state of the United States of America (a
"US GUARANTOR") shall be liable shall not exceed the maximum
amount for which such US Guarantor can be liable without
rendering this Agreement or any other Finance Document, as it
relates to the US Guarantor, subject to avoidance under
applicable law relating to fraudulent conveyance or fraudulent
transfer (including section 548 of the Bankruptcy Code of the
United States or any applicable provisions of comparable state
law) (collectively "Fraudulent Transfer Laws"), in each case
after giving effect (a) to all other liabilities of the US
Guarantor, contingent or otherwise, that are relevant under such
Fraudulent Transfer Laws (specifically excluding, however, any
liabilities of the Guarantor in respect of intercompany
indebtedness to any Borrower to the extent that such indebtedness
would be discharged in an amount equal to the amount paid by the
US Guarantor hereunder) and (b) to the value as assets of the US
Guarantor (as determined under the applicable provisions of such
Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights held by
such US Guarantor pursuant to (i) applicable law or (ii) any
other agreement providing for an equitable allocation among the
US Guarantor and other Subsidiaries or affiliates of any Borrower
of obligations arising under this Agreement or any guarantees of
the obligations by such parties.
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(c) Each Obligor incorporated in Guernsey waives any right which that
Obligor may have under the existing or future law of the island
of Guernsey:
(i) whether by virtue of the "DROIT DE DIVISION" or otherwise
to require that any liability under this Agreement be
divided or apportioned with any other person or reduced
in any manner whatsoever; and
(ii) whether by virtue of the "DROIT DE DISCUSSION" or
otherwise to require that recourse be had to the assets
of any other person before any claim is enforced against
that Obligor in respect of any liability hereby assumed
by that Obligor.
(d) The obligations and liabilities of ABB Asea Xxxxx Boveri Ltd or
any Guarantor which is incorporated in Switzerland shall in
respect of all present and future conditional and unconditional
claims of the Secured Parties against any member of the Group
other than that Guarantor and its wholly owned subsidiaries
arising from time to time out of the Finance Documents shall only
be deemed to be undertaken or incurred to the extent and in the
maximum amount of that Guarantor's free reserves available for
distribution (being the positive difference between the assets of
that Guarantor and the aggregate of all liabilities, the amount
of the registered share capital and the mandatory reserves at any
given time, all these amounts to be established in accordance
with Swiss law), taking into account the deduction of Swiss
withholding tax at the rate of 35% (or such other rate in force
from time to time), subject to any applicable double taxation
treaty, levied on any such reserves made available for
distribution.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19. REPRESENTATIONS
ABB (in respect of itself and each Group Company) and each Obligor (in
respect of itself) makes the representations and warranties set out in
this Clause 19 to each Finance Party on the date of this Agreement. Each
Third Party Security Provider (in respect only of itself) makes the
representations and warranties set out in Clauses 19.1 (STATUS) to 19.8
(NO FILING OR STAMP TAXES) (inclusive), 19.16 (SECURITY) to 19.18
(TRANSACTION SECURITY) (inclusive), 19.21 (LEGAL AND BENEFICIAL OWNER)
and 19.22 (SHARES) to each Finance Party on the date of this Agreement.
19.1 STATUS
(a) It is a corporation, duly incorporated and validly existing under
the law of its jurisdiction of incorporation.
(b) It and each of its Subsidiaries has the power to own its assets
and carry on its business as it is being conducted.
19.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document
are, subject to the Reservations, legal, valid, binding and enforceable
obligations.
19.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents to which it is party do not and
will not conflict with:
(a) any law or regulation applicable to it;
(b) its or any of its Subsidiaries' constitutional documents; or
(c) any agreement or instrument binding upon it or any of its
Subsidiaries or any of its or any of its Subsidiaries' assets,
and in the case of paragraph (c) on any repetition after the date of
this Agreement, in a manner that could reasonably be expected to have a
Material Adverse Effect.
19.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
19.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required by ABB and each Obligor (including, in the
case of any Dutch Obligor, any works council advice):
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which it
is a party; and
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(b) to make the Finance Documents to which it is a party admissible
in evidence in each Relevant Jurisdiction,
have been obtained or effected and are in full force and effect.
19.6 GOVERNING LAW AND ENFORCEMENT
Subject to the Reservations, the choice of governing law of each of the
Finance Documents to which it is party will be recognised and enforced
in each Relevant Jurisdiction.
19.7 INSOLVENCY
Neither it nor, in the case of ABB, any of its Subsidiaries if it is a
Material Company has taken any action nor have any steps been taken or
legal proceedings been started against it or, in the case of ABB, any of
its subsidiaries if it is a Material Company for winding-up, dissolution
or re-organisation, the enforcement of any Security over its assets or
for the appointment of a receiver, administrative receiver, or
administrator, trustee or similar officer of it or any of its assets.
19.8 NO FILING OR STAMP TAXES
Under the law of each Relevant Jurisdiction it is not necessary that the
Finance Documents to which it is party be filed, recorded or enrolled
with any court or other authority in that jurisdiction or that any
stamp, registration or similar tax be paid on or in relation to those
Finance Documents or the transactions contemplated by those Finance
Documents other than in respect of the Transaction Security, which steps
will be taken prior to the first drawdown save in the case of the
Transaction Security created under the Security Document detailed in
paragraph 2(vii) of Part 1 of Schedule 2 (CONDITIONS PRECEDENT), which
steps shall be taken promptly after such document becomes effective in
accordance with its terms.
19.9 NO DEFAULT
(a) No Default or, on repetition, no Event of Default is continuing
or might reasonably be expected to result from the making of any
Utilisation.
(b) No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding
on it or any of its Subsidiaries or to which its (or its
Subsidiaries') assets are subject which could reasonably be
expected to have a Material Adverse Effect.
19.10 NO MISLEADING INFORMATION
(a) Taken as a whole and as updated prior to the date on which the
relevant element of the Syndication Package was finalised, any
factual information provided by it or any of its Subsidiaries for
the purposes of the Syndication Package was true and accurate in
all material respects as at the date it was provided or as at the
date (if any) at which it is stated.
(b) The Business Plan, when delivered, has been prepared on the basis
of recent historical information and on the basis of reasonable
assumptions.
(c) Nothing has occurred or been omitted from the information
provided by any member of the Group in relation to the
Syndication Package and no information
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has been given or withheld that results in the information
contained in the Syndication Package being untrue or misleading
in any material respect as at the date of the relevant component
of the Syndication Package.
(d) All written information supplied by any member of the Group after
the date hereof, in connection herewith is true, complete and
accurate in all material respects as at the date it was given and
is not misleading in any material respect.
(e) The schedule of Intercompany Loans referred to in paragraph 6(c)
of Schedule 2 (CONDITIONS PRECEDENT) provided by ABB to the
Lenders is true, complete and accurate in all material respects
as at the date to which it is drawn up.
19.11 FINANCIAL STATEMENTS AND LIQUIDITY PLANS
(a) Its Original Financial Statements were prepared in accordance
with GAAP consistently applied.
(b) Its Original Financial Statements fairly represent in all
material respects its financial condition and operations
(consolidated in the case of ABB and, where applicable, any other
Obligor) during the relevant financial year.
(c) Each of the latest financial statements required to be delivered
under Clause 20.1(a) (FINANCIAL STATEMENTS) fairly presents in
all material respects the financial position of the Group or, if
applicable, sub-group as at the date to which they were prepared
and for the period then ended.
(d) Each of the latest set of consolidated financial statements
required to be delivered under Clause 20.1(b) fairly presents in
all material respects the financial condition of ABB and its
Subsidiaries as at the date to which they were prepared and for
the period then ended.
(e) The projections and forecasts contained in the Original Liquidity
Plan are fair and based on reasonable assumptions as at the date
to which it was drawn up and the Original Liquidity Plan does not
omit any information which would make such projections and
forecasts materially misleading as at the date to which it was
drawn up.
(f) The projections and forecasts contained in the Liquidity Plan
most recently delivered to the Facility Agent are fair and based
on reasonable assumptions and such Liquidity Plan does not omit
any information which would make such projections and forecasts
materially misleading.
19.12 NO MATERIAL ADVERSE EFFECT
Since 30 September 2002:
(a) there has been no material adverse change in any of the business,
condition (financial or otherwise), operations, performance or
properties of the Group (taken as a whole); and
(b) no event or circumstance or series of events or circumstances
whether related or not has occurred which has a Material Adverse
Effect,
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PROVIDED THAT none of the facts or circumstances referred to in (i) the
Syndication Package or (ii) any public filings, announcements or press
releases issued by ABB or the rating agencies prior to the date hereof
shall, for the purposes of this representation, constitute a material
adverse change or a Material Adverse Effect as contemplated by the
paragraphs above.
19.13 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least PARI
PASSU with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
19.14 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which might reasonably be expected to
have a Material Adverse Effect have (to the best of its knowledge and
belief) been started or threatened against it or any of its Subsidiaries
save in relation to asbestos liabilities relating to CE's business.
19.15 ENVIRONMENTAL COMPLIANCE
Each Group Company has complied in all respects with all Environmental
Law save to the extent that non-compliance could not reasonably be
expected to have a Material Adverse Effect.
19.16 SECURITY
No Security exists over all or any of the present or future assets of
any member of the Group other than any Security permitted under Clause
22.3 (NEGATIVE PLEDGE).
19.17 RANKING
Subject to the Reservations, the Transaction Security has or will have
first ranking priority and it is not subject to any prior ranking or
PARI PASSU ranking Security save in respect of the Transaction Security
created or evidenced by the Security Document detailed at paragraph
2(vii) of Schedule 2 (CONDITIONS PRECEDENT) which, on becoming
effective, will constitute second ranking security.
19.18 TRANSACTION SECURITY
Subject to the Reservations, each Security Document to which it is a
party validly creates the Security which is expressed to be created by
that Security Document and evidences the Security it is expressed to
evidence.
19.19 GOOD TITLE TO ASSETS
It has good, valid and marketable title to, or valid leases or licences
of, and all appropriate Authorisations to use, the material assets
necessary to carry on its business as presently conducted.
19.20 PENSIONS
As of the last actuarial report, its pension plan is funded to the
levels required by applicable local laws.
19.21 LEGAL AND BENEFICIAL OWNER
It is the absolute legal owner and beneficial owner of the assets
subject to the Transaction Security to which it is a party.
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19.22 SHARES
The shares owned or purported to be owned by it which are subject to the
Transaction Security are fully paid and not subject to any option to
purchase or similar rights. The constitutional documents of companies
whose shares are subject to the Transaction Security do not restrict or
inhibit any transfer of those shares on creation or on enforcement of
the Transaction Security.
19.23 PROFESSIONAL MARKET PARTIES
Each Dutch Borrower represents, warrants and agrees that its financing
activities have been conducted and will be conducted in a manner so that
it has the benefit of the exemptive relief (the "EXEMPTIVE RELIEF")
available pursuant to article 2 of the Exemption Regulation to the
Netherlands Act on the Supervision of Credit Institutions 1992 (WET
TOEZICHT KREDIETWEZEN 1992) dated 26 June 2002 (VRIJSTELLINGSREGELING
WTK, hereinafter, as amended or restated from time to time, the
"EXEMPTION REGULATION") or (insofar as the period up to 1 July 2002 is
concerned) article 4 of the Ministerial Regulation of 4 February 1993,
and in particular it represents, warrants and agrees that:
(a) it has not received and will not receive any repayable funds
(OPVORDERBARE GELDEN) from a person other than a PMP or from
group companies (as defined in the Exemption Regulation); and
(b) it has ascertained through public registers that each of the
Original Lenders is a professional market party within the
meaning of the Exemption Regulation; and
(c) it has not failed to make any filing or notification that could
result in a loss of the Exemptive Relief and it will comply with
all filing and notification requirements pursuant to the
Exemption Regulation.
19.24 AGGREGATE AMOUNT OF INDEBTEDNESS
The maximum aggregate amount of Indebtedness arising under the Finance
Documents from time to time which is secured by the Transaction Security
granted by a Material Subsidiary does not at any time exceed an amount
which is equal to 20% of total consolidated assets of the Group at such
time less an amount equal to Other Secured Indebtedness.
In this Clause 19.24 "Indebtedness", "Material Subsidiary", "Permitted
Security Interest", "Securitization Indebtedness", "Security Interest"
shall have the meanings ascribed thereto in the Euro 500,000,000 9.50
per cent. Instruments due 2008 and L200,000,000 10.00 per cent.
Instruments due 2009 issued by ABB International Finance Ltd, and "Other
Secured Indebtedness" means Indebtedness which has the benefit of a
Security Interest which is not a Permitted Security Interest (within the
definition of (a) to (e) thereof inclusive) but shall exclude
Securitization Indebtedness.
19.25 REPETITION
(a) The Repeating Representations are deemed to be made by each
Obligor (by reference to the facts and circumstances then
existing) on the date of each Utilisation Request and the first
day of each Interest Period.
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(b) The representation set out in paragraph (e) of Clause 19.11
(FINANCIAL STATEMENTS) is deemed to be made by ABB on the first
day of the month to which the Liquidity Plan referred to therein
relates.
(c) The representation set out in paragraph (b) of Clause 19.10 (NO
MISLEADING INFORMATION) is deemed to be made by ABB on the date
the Business Plan is delivered to the Facility Agent.
20. INFORMATION UNDERTAKINGS
The undertakings in this Clause 20 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
20.1 FINANCIAL STATEMENTS
(a) ABB and each Obligor shall supply to the Facility Agent in
sufficient copies for all the Lenders as soon as the same become
available, but in any event on or before the day falling 20 days
prior to 16 May in each of its financial years in the case of ABB
and 150 days after the end of each of its financial years in the
case of any other relevant Group Company, its financial
statements and in the case of ABB the financial statements of
each Group Company in respect of whose shares the Lenders have
Transaction Security (which, in the case of ABB and any Obligor
where such financial statements are prepared, shall be its
audited and/or consolidated financial statements for that year).
(b) ABB shall supply to the Facility Agent in sufficient copies for
all the Lenders, as soon as the same become available, but in any
event within 45 days after the end of each quarter of each of its
financial years (save for the last quarter) its unaudited
consolidated financial statements for that quarter.
20.2 COMPLIANCE CERTIFICATE
(a) ABB shall supply to the Facility Agent, with each set of
financial statements delivered by it pursuant to paragraph (a)
and (b) of Clause 20.1 (FINANCIAL STATEMENTS), a Compliance
Certificate setting out (in reasonable detail) computations as to
compliance with Clause 21 (FINANCIAL COVENANTS) as at the balance
sheet date as at which those financial statements were drawn up.
(b) Each Compliance Certificate shall be signed without personal
liability by two duly authorised signatories of ABB.
20.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by an Obligor pursuant
to Clause 20.1 (FINANCIAL STATEMENTS) shall be certified without
personal liability by a director of the relevant company as
fairly representing its financial condition as at the date as at
which those financial statements were drawn up.
(b) ABB shall procure that each set of financial statements delivered
pursuant to Clause 20.1 (FINANCIAL STATEMENTS) is prepared using
GAAP.
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(c) ABB shall procure that each set of financial statements of an
Obligor delivered pursuant to Clause 20.1 (FINANCIAL STATEMENTS)
is prepared using GAAP, and accounting practices and financial
reference periods consistent with those applied in the
preparation of the Original Financial Statements unless, in
relation to any set of financial statements, it notifies the
Facility Agent that there has been a change in GAAP, or its
accounting practices or reference periods and the relevant
Obligor in consultation with its auditors delivers to the
Facility Agent:
(i) a description of any change necessary for those financial
statements to reflect the GAAP, accounting practices and
reference periods upon which that Obligor's Original
Financial Statements were prepared; and
(ii) in respect of changes affecting the consolidated accounts
of the Group, sufficient information, in form and
substance as may be reasonably required by the Facility
Agent, to enable the Lenders to determine whether Clause
21 (FINANCIAL COVENANTS) has been complied with and make
an accurate comparison between the financial position
indicated in those financial statements and that
Obligor's Original Financial Statements.
Any reference in this Agreement to those financial statements
shall be construed as a reference to those financial statements
as adjusted to reflect the basis upon which the Original
Financial Statements were prepared.
20.4 LIQUIDITY PLAN AND BUSINESS PLAN
(a) Prior to the Termination Date, on or prior to the fifteenth
Business Day of each calendar month or, in respect of each
calendar month that falls at the end of the financial quarter, on
or prior to the date on which ABB is obliged to deliver quarterly
financial statements under paragraph (b) of Clause 20.1
(FINANCIAL STATEMENTS), ABB shall supply to the Facility Agent
(in sufficient copies for all the Lenders) an up to date
Liquidity Plan together with a commentary from the chief
financial officer.
(b) ABB shall supply to the Facility Agent (in sufficient copies for
all the Lenders) with each set of financial statements delivered
pursuant to paragraph (b) of Clause 20.1 (FINANCIAL STATEMENTS) a
commentary from duly authorised signatories of ABB on the actual
performance of the Group as against projected performance
forecast in the Business Plan for the relevant quarter.
20.5 INFORMATION: MISCELLANEOUS
ABB shall supply to the Facility Agent (in sufficient copies for all the
Lenders, if the Facility Agent so requests):
(a) all documents dispatched by ABB to its shareholders (or any class
of them) or its creditors generally at the same time as they are
dispatched;
(b) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings or
Environmental Claim which are current, threatened or pending
against any member of the Group, and which might reasonably be
expected to have a Material Adverse Effect;
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(c) promptly, such further information regarding the financial
condition, business and operations of any member of the Group as
any Finance Party (through the Facility Agent) may reasonably
request;
(d) promptly upon becoming aware of a material development and at
least once every financial quarter, details of the progress of
the CE Chapter XI filing and any material change in the structure
of the Group; and
(e) at the end of each financial quarter details relating to the
funding of the Discretionary Funding Balance and the funding and
utilisation of the Approved Funding Balance (if any).
20.6 NOTIFICATION OF DEFAULT
(a) Each Obligor shall notify the Facility Agent of any Default (and
the steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence (unless that Obligor is aware
that a notification has already been provided by another
Obligor).
(b) If any Lender considers in good faith that a Default is
continuing, promptly upon a request by the Facility Agent, ABB
shall supply to the Facility Agent a certificate signed by two of
its authorised signatories (without personal liability) on its
behalf certifying that no Default is continuing (or if a Default
is continuing, specifying the Default and the steps, if any,
being taken to remedy it).
20.7 USE OF WEBSITES
(a) Any Obligor may satisfy its obligation under this Agreement to
deliver any information in relation to those Lenders (the
"WEBSITE LENDERS") who accept this method of communication by
posting this information onto an electronic website designated by
the Borrower and the Facility Agent (the "DESIGNATED WEBSITE")
if:
(i) the Facility Agent expressly agrees (after consultation
with each of the Lenders) that it will accept
communication of the information by this method;
(ii) both ABB and the Facility Agent are aware of the address
of and any relevant password specifications for the
Designated Website; and
(iii) the information is in a format previously agreed between
ABB and the Facility Agent.
If any Lender (a "PAPER FORM LENDER") does not agree to the
delivery of information electronically then the Facility Agent
shall notify ABB accordingly and ABB shall supply the information
to the Facility Agent (in sufficient copies for each Paper Form
Lender) in paper form. In any event ABB shall supply the Facility
Agent with at least one copy in paper form of any information
required to be provided by it.
(b) The Facility Agent shall supply each Website Lender with the
address of and any relevant password specifications for the
Designated Website following designation of that website by ABB
and the Facility Agent.
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(c) ABB shall promptly upon becoming aware of its occurrence notify
the Facility Agent if:
(i) the Designated Website cannot be accessed due to
technical failure;
(ii) the password specifications for the Designated Website
change;
(iii) any new information which is required to be provided
under this Agreement is posted onto the Designated
Website;
(iv) any existing information which has been provided under
this Agreement and posted onto the Designated Website is
amended; or
(v) ABB becomes aware that the Designated Website or any
information posted onto the Designated Website is or has
been infected by any electronic virus or similar
software.
If the Borrower notifies the Facility Agent under paragraph
(c)(i) or paragraph (c)(v) above, all information to be provided
by ABB under this Agreement after the date of that notice shall
be supplied in paper form unless and until the Facility Agent and
each Website Lender is satisfied that the circumstances giving
rise to the notification are no longer continuing.
(d) Any Website Lender may request, through the Facility Agent, one
paper copy of any information required to be provided under this
Agreement which is posted onto the Designated Website. ABB shall
comply with any such request within ten Business Days.
21. FINANCIAL COVENANTS
21.1 FINANCIAL DEFINITIONS
In this Clause 21:
"CONSOLIDATED NET WORTH" means total stockholders' equity, calculated
disregarding changes in total accumulated other comprehensive income as
from 1 January 2003 onwards, in each case as reflected in the ABB
consolidated statement of changes in stockholders' equity (part of the
consolidated financial statements of ABB) adjusted:-
(i) by excluding the amount of any provisions through the income
statements related to asbestos liabilities net of any deferred
tax assets that, on or after the date hereof but on or prior to
the last day of the relevant quarter of a financial year of ABB,
have been created as a result of such provisions (and for the
avoidance of doubt such deferred tax assets shall only be taken
into account in an amount up to the amount of such provisions)
provided such net amount does not exceed $300,000,000;
(ii) to disregard capital gains and losses from Disposals; and
(iii) to disregard negative effects on equity for treasury stock
transactions (excluding share buy-backs) and stock option
activity.
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"CONSOLIDATED PROFITS BEFORE INTEREST AND TAX" means, in respect of any
Relevant Period, the earnings before interest and taxes, as reflected in
the ABB consolidated income statement.
"EBITDA" means, for any Relevant Period, Consolidated Profits Before
Interest and Taxes before any amount attributable to the impairment or
amortisation of intangible assets and impairment, write-off or
depreciation of tangible assets (to the extent that the same occur after
30 September 2002) adjusted to disregard any impacts of (i) new
accounting standards adopted in 2003 and (ii) costs relating to the
Company's announced $800 million restructuring program to the extent
previously disclosed.
"QUARTER DATE" means the last day of each Relevant Period.
"RELEVANT PERIOD" means each period of twelve months ending on the last
day of ABB's financial year and each period of twelve months ending on
the last day of each quarter of ABB's financial year.
"TOTAL GROSS DEBT" means the aggregate of short-term borrowings and
current maturities on long-term borrowings and long-term borrowings in
each case as reflected in the ABB consolidated balance sheet less the
amount available under the Approved Funding Balance to repay debt. If
OGP is sold prior to the fourth financial quarter in 2003, the Total
Gross Debt Limit applicable to any reporting periods subsequent to the
sale but prior to the fourth financial quarter of 2003 will be reduced
by the Net Disposal Proceeds.
"TOTAL GROSS INTEREST" means, in respect of any Relevant Period, the
interest expense for financial liabilities and costs of the
securitisation programmes of the Group as reflected in the ABB
consolidated income statement (excluding any fees, taxes or commissions
and non cash expenses relating to currency xxxxxx of debt securities).
21.2 FINANCIAL CONDITION
ABB shall ensure that:
(a) The ratio of EBITDA to Total Gross Interest for each Relevant
Period ended on each Quarter Date specified below shall not be
less than the ratio set out below opposite such Quarter Date.
QUARTER DATE RATIO
31 December 2002 3.50:1
31 March 2003 2.50:1
30 June 2003 2.25:1
30 September 2003 2.50:1
31 December 2003 2.75:1
31 March 2004 2.75:1
30 June 2004 2.75:1
30 September 2004 3.00:1.
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(b) Total Gross Debt during any Relevant Period specified below shall
not at any time exceed the amount set out below opposite such
Relevant Period.
RELEVANT PERIOD TOTAL GROSS DEBT AMOUNT
Date hereof to 31 December 2002 $ 8,100,000,000
1 January to 31 March 2003 $ 8,350,000,000
1 April to 30 June 2003 $ 8,250,000,000
1 July to 30 September 2003 $ 8,350,000,000
1 October to 31 December 2003 $ 7,200,000,000
1 January to 31 March 2004 $ 6,800,000,000
1 April to 30 June 2004 $ 6,500,000,000
1 July to 30 September 2004 $ 6,150,000,000
1 October to 15 December 2004 $ 5,300,000,000.
(c) EBITDA for each Relevant Period ended on each Quarter Date
specified below shall not be less than the amount set out below
opposite such Quarter Date.
QUARTER DATE
31 December 2002 $ 959,000,000
31 March 2003 $ 878,000,000
30 June 2003 $ 884,000,000
30 September 2003 $ 1,065,000,000
31 December 2003 $ 1,168,000,000
31 March 2004 $ 1,218,000,000
30 June 2004 $ 1,281,000,000
30 September 2004 $ 1,364,000,000.
(d) Consolidated Net Worth shall not, as at the last day of any
quarter of a financial year of ABB, be less than the relevant
amount calculated in accordance with the following formula:
A + B,
where:
A = $1,400,000,000; and
B = in respect of a testing date for this paragraph (d)
ending on the last day of any quarter of a financial
year of XXX, 00 per cent. of the consolidated net
income (adjusted to exclude those amounts set out in
(i) and (ii) of the definition of Consolidated Net
Worth) of the Group for the period from 1 January
2003 until such last day of such financial quarter,
PROVIDED THAT if any quarterly amount is a negative
amount, such amount will be deemed to be zero for
the purposes of this paragraph (d).
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(e) The aggregate amount of Total Gross Debt (other than:
(i) Project Finance Indebtedness;
(ii) indebtedness owed by one Group Company to another Group
Company;
(iii) amounts borrowed by a finance company which is a Group
Company and which are on-lent, and remain on-lent, to an
Obligor;
(iv) amounts borrowed by a Group Company from a bank to which
cash-collateral (in a substantially equivalent amount)
has been granted by a Group Company in respect of the
relevant Group Company obligation to repay such amounts;
(v) any amounts borrowed by a Group Company which constitute
Total Gross Debt to the extent such amounts are borrowed
for the purposes of refinancing other borrowings
constituting Total Gross Debt so long as amounts so
borrowed are promptly applied in such manner; and
(vi) amounts owed to CE or any trust established in connection
with its Chapter XI filing),
of Subsidiaries which are not Borrowers shall not at any time
after the date hereof exceed $1,500,000,000 PROVIDED THAT there
is no material adverse impact on the Transaction Security (or the
value thereof) and for these purposes if the relevant proceeds
were remitted to the Treasury Services Operations for use in the
ordinary course of the Group's treasury operations and provided
the provisions of Clause 22.11 (INTERCOMPANY LOANS) are complied
with, this shall be deemed not to have a material impact on the
Transaction Security.
(f) The cumulative total of Net Disposal Proceeds received by a
member of the Group (and which shall exclude any amount of cash
over which Security is granted pursuant to paragraph (xviii) of
Clause 22.3 (NEGATIVE PLEDGE) unless and until such time as such
Security is released) in relation to a Disposal of Divestment
Assets and/or Net Equity Proceeds shall be at least the amount
set out below by each of the dates set out below as at that date:
DATE AMOUNT $
31 March 2003 $ 360,000,000
30 June 2003 $ 1,145,000,000
16 December 2003 $ 1,350,000,000
PROVIDED THAT ABB may from time to time by notice to the Facility
Agent elect to designate all or part of the Discretionary Funding
Balance and/or the Approved Funding Balance (if any) at such time
in meeting this covenant as at 31 March 2003 and 30 June 2003.
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21.3 FINANCIAL TESTING
The financial covenants set out in Clause 21.2 (FINANCIAL CONDITION)
shall be tested by reference to each of the financial statements and/or
each Compliance Certificate delivered pursuant to sub-paragraph (a) or
(b) of Clause 20.1 (FINANCIAL STATEMENTS) as applicable.
22. GENERAL UNDERTAKINGS
The undertakings in this Clause 22 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
22.1 AUTHORISATIONS
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in
full force and effect; and
(b) supply certified copies to the Facility Agent of,
any Authorisation (including, in the case of any Dutch Obligor, any
works council advice) required under any law or regulation of the
Relevant Jurisdictions to enable it to perform its obligations under the
Finance Documents and, subject to the Reservations, to ensure the
legality, validity, enforceability or admissibility in evidence in each
Relevant Jurisdiction of any Finance Document.
22.2 COMPLIANCE WITH LAWS
Each Obligor shall comply in all respects with all laws (including,
without limitation, Environmental Law and ERISA) to which it may be
subject, if failure so to comply would materially impair its ability to
perform its obligations under the Finance Documents.
22.3 NEGATIVE PLEDGE
(a) Neither ABB nor any Obligor shall (and ABB shall procure that no
other Group Company will) create or permit to subsist any
Security over any of its assets.
(b) Paragraph (a) above does not apply to:
(i) Transaction Security;
(ii) any Security over any bank account in favour of the bank
with which such account is held, in each case granted by
any Group Company in the ordinary course of its banking
arrangements for the purpose of netting debit and credit
balances;
(iii) any Security arising by operation of law;
(iv) any Security contained in a contract for sale or supply
entered into in the ordinary course of trading, where
such Security is granted to such seller or, as the case
may be, supplier and is limited in recourse to the asset
sold or, as the case may be, supplied;
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(v) any Security over or affecting any asset acquired by a
Group Company after the date of this Agreement if:
(A) the Security was not created in contemplation of
the acquisition of that asset by a Group Company;
(B) the principal amount secured has not been
increased in contemplation of, or since the
acquisition of that asset by a Group Company; and
(C) such Security is discharged within 3 months of
the acquisition of that asset by a Group Company;
(vi) any Security over or affecting any asset of a Group
Company acquired after the date of this Agreement, where
the Security is created prior to the date on which that
company becomes a Group Company, if:
(A) the Security was not created in contemplation of
the acquisition of that company;
(B) the principal amount secured has not increased in
contemplation of or since the acquisition of that
company;
(vii) any Security provided by one Group Company to another
Group Company which is an Obligor;
(viii) any Security arising pursuant to the Existing
Securitisations;
(ix) any Security over the assets of a Project Company, any
shareholder loan made to a Project Company or the shares
in a Project Company where such Security was created for
the purpose of securing Indebtedness incurred to acquire
and/or develop the assets of such Project Company and
where such Indebtedness constitutes Project Finance
Indebtedness of such Project Company, in each case where
the Project Company and Project Finance Indebtedness is
created or incurred in accordance with the usual business
of the Group carried on at the date hereof;
(x) any Security securing Indebtedness incurred by a Group
Company to refinance Indebtedness secured by Security of
the type referred to in paragraphs (iv) or (v) above
where such first-mentioned Security is over the same
asset and is of the same type as such second-mentioned
Security and the conditions referred to in paragraph (iv)
or, as the case may be, (v) above continue to be
satisfied, MUTATIS MUTANDIS; and
(xi) any Security provided by a Group Company which is an
insurance or reinsurance company in the ordinary course
of its business;
(xii) any Security provided in connection with cash
collateralised loans in the ordinary course of Group
treasury activities;
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(xiii) any Security arising under collateral arrangements
entered into in the ordinary course of Group treasury
activities in connection with interest rate and currency
swaps and other derivative contracts;
(xiv) any Security provided by a Group Company which is in the
structured finance/lease business of the Group in the
ordinary course of its business;
(xv) any Security over any real estate assets (being a
Divestment Asset) pursuant to a mortgage financing in an
amount up to $250,000,000;
(xvi) any Security arising pursuant to or in connection with a
facility agreement dated 26 November 2002 made between
ABB Credit Ltd, ABB and certain banks in relation to the
issue of letters of credit in a face amount not exceeding
$205,000,000 in favour of General Electric Capital
Corporation relating to the sale of the Structured
Finance Division;
(xvii) any Security listed in the letter from ABB to the
Facility Agent dated the date hereof and, following the
release of such Security, any other Security provided the
aggregate amount of the Indebtedness secured pursuant to
this paragraph shall at no time exceed $413,000,000;
(xviii) any Security arising in relation to the raising of
amounts forming part of the Approved Funding Balance and
any Security granted over or pursuant to the utilisation
of the Approved Funding Balance;
(xix) any Security over or affecting any asset created to
facilitate the Disposal of an asset by a Group Company
provided the aggregate amount of such Security shall at
no time exceed $75,000,000;
(xx) any Security provided by a Group Company over or
affecting the assets of that Group Company to secure its
own bonding lines provided that the total amount of
Indebtedness secured pursuant to this paragraph (xx)
shall at no time exceed $750,000,000;
(xxi) any Security securing liabilities of a member of the
Group under any bilateral credit facility (including
without limitation facilities in respect of swaps,
foreign exchange and similar market contracts but
excluding performance bonds or other instruments relating
to trading obligations) providing that the following
conditions are satisfied:
(A) the Security is over assets subject to Security
under the Security Document or such other asset
as may be approved by the Majority Lenders;
(B) the relevant bilateral lender has in respect of
the Security executed an Intercreditor Agreement
as a subordinated secured creditor in favour of
the Security Trustee;
(C) the Security is held by the Security Trustee;
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(D) the aggregate indebtedness (or, where relevant,
the net marked to market value of the relevant
swaps, foreign exchange and similar market
contract) secured pursuant to this sub-paragraph
(xxi) does not exceed $1,500,000,000.
(xxii) in cases where Security has been provided to a bilateral
lender pursuant to paragraph (xxi) above, Security over
cash proceeds advanced under the relevant bilateral
facility by way of cash collateral for exposure under a
local bilateral facility of the type referred to in
paragraph (xxi) above;
(xxiii) any Security to the extent not falling within any of
paragraphs (i) - (xxii) (inclusive) above PROVIDED THAT
the total amount of Indebtedness secured pursuant to this
paragraph (xxii) shall at no time exceed $87,000,000
PROVIDED ALWAYS THAT no Security shall be permitted to be
given by any Obligor over any of its loans which are made
to other Group Companies other than in respect of
Transaction Security.
(c) Notwithstanding the provisions of paragraph (b), the maximum
aggregate amount of Indebtedness that is secured pursuant to a
Security Interest granted by a Material Subsidiary under
paragraph (b) from time to time shall not exceed an amount which
is equal to 20% of total consolidated assets of the Group at such
time less an amount equal to Other Secured Indebtedness.
"Indebtedness", "Material Subsidiary", "Permitted Security
Interest", "Security Interest" and "Securitization Indebtedness"
shall have the meanings ascribed thereto in the Euro 500,000,000
9.50 per cent. Instruments due 2008 and L200,000,000 10.00 per
cent. Instruments due 2009 issued by ABB International Finance
Ltd, and "Other Secured Indebtedness" means Indebtedness which
has the benefit of a Security Interest which is not a Permitted
Security Interest (within paragraphs (a) to (e) inclusive of that
definition as set out in those Instruments) but shall exclude
Securitization Indebtedness.
22.4 DISPOSALS
ABB shall not (and shall ensure that no other Group Company will), enter
into a Disposal other than a Disposal:
(a)
(i) made on arm's length terms and, in respect of any such
Disposal having a value in excess of $25,000,000, for
cash consideration of at least 80% of total consideration
(or such greater amount or lesser percentage as the
Majority Lenders may approve in relation to a particular
Disposal, such approval not to be unreasonably withheld
or delayed); or
(ii) to a Group Company (subject to there being no material
adverse impact on the Transaction Security (or the value
thereof)); or
(iii) of cash or cash equivalents where such disposal is not
otherwise prohibited under this Agreement; or
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(iv) made in the ordinary course of the day to day business of
the disposing Group Company; or
(v) of cash and cash equivalents, notes, shares and
marketable securities, rights under insurance contracts
and real estate to or in connection with the trusts to be
established for the purpose of meeting claims in respect
of the Chapter XI Filing of CE up to the amount set out
in the Original Liquidity Plan; or
(vi) of receivables pursuant to the Existing Securitisations;
or
(vii) pursuant to the planned re-organisation of the Group
notified to the Facility Agent in writing on or prior to
the date hereof, and
(b) that, whether alone or together with any other Disposals by Group
Companies, does not, and could reasonably be expected not to
have, a Material Adverse Effect.
22.5 MERGER
Save in respect of the planned reorganisation of the Group notified in
writing to the Facility Agent, no Obligor shall (and ABB shall ensure
that no other member of the Group will) enter into any amalgamation,
demerger (excluding any disposal permitted by Clause 22.4 (DISPOSALS) or
solvent reorganisations not affecting Obligors where there is no
material adverse impact on the Transaction Security), merger or
corporate reconstruction.
22.6 INSURANCE
Each Obligor shall (and ABB shall ensure that each member of the Group
will) maintain insurances on and in relation to its business and assets
with reputable underwriters or insurance companies against those risks
and to the extent as is usual for companies carrying on the same or
substantially similar business in the relevant jurisdiction and taking
into account the availability of insurance generally.
22.7 ACQUISITIONS
No Obligor shall (and ABB shall ensure that no other member of the Group
will) acquire any company, business or undertaking or form or enter into
any joint venture, partnership, consortium or other like arrangement
save (in each case) pursuant to the ordinary course of business
practices of the Group carried on at the date hereof.
22.8 TREASURY SERVICES OPERATIONS
ABB shall ensure that cash of any Group Company that is freely
transferable under applicable law and regulation by such Group Company
is promptly remitted to the Treasury Service Operations in accordance
with the cash management policies of the Group carried on at the date
hereof.
22.9 CASH MANAGEMENT
ABB shall ensure that all Available Cash in excess of $100,000,000 at
any time is deposited with a Lender.
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22.10 DIVIDENDS
(a) ABB will not pay, make or declare any dividend, return on
capital, repayment of capital contribution or other distribution
(whether in cash or in kind) whatsoever to its shareholders or
their Affiliates.
(b) Excluding ABB Asea Xxxxx Boveri Ltd and ABB Holding AG, no
Guarantor, Third Party Security Provider or company in respect of
whose shares the Lenders have Transaction Security shall pay,
make or declare any dividend, return on capital, repayment of
capital contribution or other distribution (whether in cash or in
kind) whatsoever to its shareholders or their Affiliates save for
a dividend, return on capital, repayment of capital contribution
or other distribution utilising the proceeds of a Disposal.
(c) Paragraph (b) of this Clause 22.10 shall not apply to:
(i) any payment required to be made pursuant to the terms of
a domination agreement and/or profit and loss pooling
agreement detailed in paragraph (o) of Part 1 of Schedule
3 (CONDITIONS PRECEDENT); and
(ii) distributions of income under local tax sharing
arrangements between Group Companies incorporated in the
United States or Sweden where such payments are made in
accordance with the ordinary course of business practices
as carried on at the date hereof.
22.11 INTERCOMPANY LOANS
(a) No Obligor shall (and ABB shall ensure that no other member of
the Group will) pay, prepay, repay, defease, exchange, assign,
set-off or repurchase any amount under a Group A Loan or a Group
B Loan unless permitted by the Finance Documents.
(b) Each Intercompany Loan (save for Excluded Loans) shall be made on
the terms set out for the relevant category of Group A Loan,
Group B Loan, Group C Loan or Group D Loan set out in the
Amendment Agreement.
(c) ABB shall or shall procure that:
(i) fifteen Business Days after the end of each month, an up
to date schedule of all Intercompany Loans is delivered
to the Facility Agent, in sufficient copies for all the
Lenders;
(ii) Security is created in favour of the Trustee in respect
of all new Intercompany Loans that have been made since
the date of the previous schedule of Intercompany Loans
delivered to the Facility Agent and, in the case of ABB
Financial Services Australia Ltd once it becomes an
Intercompany Lender, this is effected within 30 days
after the end of each month in respect of any
Intercompany Loans made by it by its execution of a
document substantially in the form of the Security
Assignment detailed in paragraph 2(i) of Schedule 2
(CONDITIONS PRECEDENT) (PROVIDED THAT for these purposes
subsequent advances under revolving facilities in effect
from the date hereof will not be deemed to be new
Intercompany Loans); and
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(iii) notices and acknowledgements of assignment are sent to
and received from all debtors under the Intercompany
Loans assigned to the Trustee (save for Excluded Loans)
pursuant to paragraph (ii) above within 5 Business Days
of the relevant assignment.
22.12 ACCESS
ABB shall ensure that each Obligor and each Group Company whose shares
are the subject of the Transaction Security shall:
(a) on request of the Facility Agent, provide the Facility Agent and
Trustee with any information the Facility Agent or Trustee may
reasonably require about that company's business and affairs, the
Charged Property and its compliance with the terms of the
Security Documents; and
(b) permit the Trustee, its representatives, delegates, professional
advisers and contractors, free access at all reasonable times and
on reasonable notice at the cost of the Obligors, (i) to inspect
and take copies and extracts from the books, accounts and records
of that company and (ii) to view the Charged Property (without
becoming liable as mortgagee in possession).
22.13 PREPAYMENT OF GROUP FACILITIES
ABB shall not (and shall ensure that no other Group Company will)
voluntarily prepay any banking facility of a Group Company, purchase or
redeem prior to their stated maturity any bonds or other capital markets
instruments issued by a Group Company and ABB shall not (and shall
ensure that no other Group Company will) repurchase or redeem any shares
or stock issued by ABB PROVIDED THAT this shall not restrict any of the
following activities of the Group:
(a) the operation of cash-pooling arrangements in the ordinary course
of the Group's business;
(b) the prepayment of banking facilities of Group Companies to the
extent that such facilities are cash-collateralised and the cash
collateral is released upon such prepayment;
(c) the substitution of existing finance arrangements of Group
Companies with new finance arrangements of a comparable amount;
(d) the repayment of any overdraft facility of any Group Company; and
(e) transactions in the ordinary course of treasury and investment
activities of relevant Group Companies;
save that none of the provisos contained in paragraphs (a) to (e) above
shall apply in respect of the Group A Loans and the Group B Loans.
22.14 CHANGE OF BUSINESS
ABB shall procure that no substantial change is made to the general
nature of the business of the Group which would result in the core
businesses of the Group, taken as a whole, being other than the
businesses of power and automation technology.
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22.15 SECURITY
Each Obligor shall (and ABB shall ensure that each member of the Group
will) at its own expense take all such action as the Trustee may
reasonably require (to the extent legally possible and commercially
practicable) for the purpose of perfecting or protecting the Trustee's
rights under and preserving the Transaction Security and following the
making of any declaration pursuant to Clause 23.14 (ACCELERATION) for
facilitating the realisation of any such security or any part thereof.
22.16 INDEBTEDNESS
ABB shall procure that none of ABB Oil & Gas USA, Inc, ABB Schweiz
Holding AG or ABB Norden Holding AB incurs Indebtedness that is
materially higher than their respective levels of Indebtedness
outstanding at the date hereof.
22.17 JORF LASFAR
ABB shall use reasonable endeavours to procure that the third party
consents required before the Transaction Security created under the
Security Document detailed at paragraph 2(vii) of Schedule 2 (CONDITIONS
PRECEDENT) is expressed to become effective (taking into account any
requirement from such third party that the Lenders enter into a priority
agreement in respect thereof) is delivered to the Facility Agent.
22.18 ACCOUNTS OF ABB CAPITAL B.V.
(a) ABB shall procure that ABB Capital B.V. grants Security over each
of its current accounts held in New York to the Trustee as soon
as reasonably practicable after the date hereof. Such security
shall be in form and substance reasonably satisfactory to the
Facility Agent and shall provide for ABB Capital B.V. to have
access to the relevant account balances in a similar manner to
the equivalent provisions in the Security Document listed in
paragraph 3(a) of Part 1 of Schedule 2 (CONDITIONS PRECEDENT);
and
(b) ABB shall procure that ABB Capital B.V. utilises its bank
accounts in Germany, Spain and The Netherlands for the purposes
for which they are currently used in accordance with the ordinary
course of business practices carried on by ABB Capital B.V. at
the date hereof.
23. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 23 is an Event of
Default.
23.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical
error; and
(b) payment is made within 3 Business Days of its due date.
23.2 FINANCIAL COVENANTS AND INDEBTEDNESS
Any requirement of Clause 21 (FINANCIAL COVENANTS) is not satisfied.
- 73 -
23.3 OTHER OBLIGATIONS
An Obligor does not comply with any provision of the Finance Documents
(other than those referred to in Clause 23.1 (NON-PAYMENT) and Clause
23.2 (FINANCIAL COVENANTS)) and if the failure to comply is capable of
remedy, it is not remedied within 15 Business days of the Facility Agent
giving notice to ABB or ABB becoming aware of the failure to comply.
23.4 MISREPRESENTATION
Any representation or statement made or deemed (by virtue of Clause
19.25 (REPETITION)) to be made by ABB or an Obligor in this Agreement is
or proves to have been incorrect or misleading in any respect when made
or deemed to be made and, where the circumstances making such
representation or statement incorrect or misleading are capable of being
altered so that such representation or statement is correct, such
circumstances are not so altered within 15 Business Days of the Facility
Agent giving notice to ABB of such representation or statement being
incorrect.
23.5 CROSS DEFAULT
(a) Any Indebtedness of all or any of the Group Companies is not paid
when due nor within any originally applicable grace period.
(b) Any Indebtedness of all or any of the Group Companies has (i)
become capable of being declared and is declared to be or (ii)
otherwise becomes due and payable, in any case, prior to its
specified maturity as a result of a default or an event of
default (however described).
(c) Any commitment for any Indebtedness of all or any of the Group
Companies is cancelled or suspended by a creditor of all or any
of the Group Companies as a result of a default or an event of
default (however described).
(d) Any creditor of all or any of the Group Companies becomes
entitled to declare any Indebtedness of all or any of the Group
Companies due and payable prior to its specified maturity as a
result of a default or an event of default (however described).
(e) No Event of Default will occur under this Clause 23.5 if (1) the
Indebtedness falling within paragraphs (a) to (d) is Project
Finance Indebtedness or intra-Group Indebtedness or (2) the
aggregate amount of Indebtedness or commitment for Indebtedness
falling within paragraphs (a) to (d) (excluding any described in
(1) above) above is less than $50,000,000.
23.6 INSOLVENCY
(a) Any Material Company is unable or admits in writing inability to
pay its debts as they fall due, suspends making payments on any
of its debts or, by reason of actual or anticipated financial
difficulties, commences negotiations with one or more of its
creditors with a view to rescheduling any of its indebtedness.
(b) The value of the assets of any Obligor is less than its
liabilities (taking into account contingent and prospective
liabilities).
- 74 -
(c) A moratorium is declared in respect of any indebtedness of any
Material Company.
(d) This Clause 23.6 shall not apply in respect of CE.
23.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way
of voluntary arrangement, scheme of arrangement or otherwise) of
any Material Company other than a solvent liquidation or
reorganisation of any Material Company (other than ABB); or
(b) a composition, assignment or arrangement with any creditor of any
Material Company;
(c) the appointment of a liquidator (other than (i) a winding up
petition which is frivolous or vexatious and which is, in any
event, discharged within 30 days of its presentation or (ii) in
respect of a solvent liquidation of any Group Company (other than
a Material Company)), receiver, administrator, administrative
receiver, compulsory manager or other similar officer in respect
of any Material Company or any of its assets (having an aggregate
value of at least $50,000,000); or
(d) enforcement of any Security over any assets (having an aggregate
value of at least $50,000,000) of any Material Company or Obligor
by reason of a default or event of default (howsoever described)
occurring under the relevant agreement relating to the
Indebtedness secured by such Security,
or any analogous procedure or step is taken in any jurisdiction PROVIDED
THAT this Clause 23.7 shall not apply in respect of CE.
23.8 UNLAWFULNESS
Subject to Clause 8.2 (BORROWER ILLEGALITY), it is or becomes unlawful
for an Obligor to perform any of its material obligations under the
Finance Documents.
23.9 REPUDIATION
An Obligor repudiates a Finance Document or any of the Transaction
Security or evidences an intention to repudiate a Finance Document or
any of the Transaction Security.
23.10 CESSATION OF BUSINESS
The Group, taken as a whole, ceases or threatens to cease to do
business.
23.11 TRANSACTION SECURITY
(a) Subject to the Reservations (but excluding any material change of
law or judicial interpretation in respect of any matter contained
within the definition of Reservations after the date hereof) at
any time any of the Transaction Security is or becomes unlawful
or is not, or ceases to be legal, valid, binding or enforceable
or otherwise ceases to be effective.
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(b) Subject to the Reservations (but excluding any material change of
law or judicial interpretation in respect of any matter contained
within the definition of Reservations after the date hereof) at
any time, any of the Transaction Security fails to have first
ranking priority or is subject to any prior ranking or PARI PASSU
ranking Security save in respect of the Transaction Security
created or evidenced by the Security Documents detailed at
paragraph 2(vii) of Schedule 2 (CONDITIONS PRECEDENT) which on
becoming effective will constitute second ranking security.
23.12 MATERIAL AUDIT QUALIFICATION
The Auditors' report in respect of the annual consolidated financial
statements of ABB contains a qualification under US generally accepted
audit standards, excluding any reference to the asbestos-related issues
of CE.
23.13 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which has, or is reasonably likely to
have, a Material Adverse Effect after the date hereof.
23.14 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Facility Agent may, and shall if so directed by the
Majority Lenders, by notice to ABB:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled; and/or
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they
shall become immediately due and payable; and/or
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Facility Agent on the instructions of the Majority Lenders;
and/or
(d) exercise, or direct the Trustee to exercise, any or all of its
rights, authority, remedies and powers under or pursuant to any
of the Finance Documents.
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SECTION 9
CHANGES TO PARTIES
24. CHANGES TO THE LENDERS
24.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 24 and after consultation with ABB, a Lender (the
"EXISTING LENDER") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank (the "NEW LENDER").
24.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) No consent of any Obligor is required for an assignment or
transfer by a Lender (save that any assignment made pursuant to
this clause shall accord with the Law of Property (Miscellaneous
Provisions) (Guernsey) Law 1979 (as amended) where such law is
applicable).
(b) An assignment or transfer shall be in respect of a Commitment of
at least $5,000,000 or, if less, the whole of the Commitment of
the relevant assignor or transferor.
(c) An assignment will only be effective on receipt by the Facility
Agent of written confirmation from the New Lender (in form and
substance satisfactory to the Facility Agent) that the New Lender
will assume the same obligations to the other Finance Parties and
the Obligors as it would have been under if it was an Original
Lender and that the New Lender is a Qualifying Lender.
(d) A transfer will only be effective if the procedure set out in
Clause 24.5 (PROCEDURE FOR TRANSFER) is complied with.
(e) If:
(i) a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or changes its
Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would
be obliged, or at such date it is reasonably foreseeable
that an Obligor would be obliged, to make a payment to
the New Lender or Lender acting through its new Facility
Office under Clause 13 (TAX GROSS-UP AND INDEMNITIES) or
Clause 14 (INCREASED COSTS),
then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses to
the same extent as the Existing Lender or Lender acting through
its previous Facility Office would have been if the assignment,
transfer or change had not occurred.
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(f) If a Lender at any time assigns or transfers all or any of its
rights, benefits and obligations hereunder it will only do so to
an entity which qualifies as a PMP within the meaning of the
Exemption Regulation.
24.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Facility Agent (for its own account) a fee of
$1,500.
24.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents, the Transaction
Security or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document or any
other document,
and any representations or warranties implied by law are
excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition
and affairs of each Obligor and its related entities in
connection with its participation in this Agreement and
has not relied exclusively on any information provided to
it by the Existing Lender in connection with any Finance
Document; and
(ii) will continue to make its own independent appraisal of
the creditworthiness of each Obligor and its related
entities whilst any amount is or may be outstanding under
the Finance Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under this
Clause 24; or
(ii) support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by any
Obligor of its obligations under the Finance Documents or
otherwise.
24.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 24.2 (CONDITIONS OF
ASSIGNMENT OR TRANSFER) a transfer is effected in accordance with
paragraph (b) below when the Facility Agent executes an otherwise
duly completed Transfer Certificate delivered to it by the
Existing Lender and the New Lender. The Facility Agent
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shall, as soon as reasonably practicable after receipt by it of a
duly completed Transfer Certificate appearing on its face to
comply with the terms of this Agreement and delivered in
accordance with the terms of this Agreement, execute that
Transfer Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its rights
and obligations under the Finance Documents and in
respect of the Transaction Security each of the Obligors
and the Existing Lender shall be released from further
obligations towards one another under the Finance
Documents and in respect of the Transaction Security and
their respective rights against one another shall be
cancelled (being the "DISCHARGED RIGHTS AND
OBLIGATIONS");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor and
the New Lender have assumed and/or acquired the same in
place of that Obligor and the Existing Lender;
(iii) the Facility Agent, the Mandated Lead Arranger, the
Trustee, the New Lender and other Lenders shall acquire
the same rights and assume the same obligations between
themselves and in respect of the Transaction Security as
they would have acquired and assumed had the New Lender
been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of the
transfer and to that extent the Facility Agent, the
Mandated Lead Arranger, the Trustee and the Existing
Lender shall each be released from further obligations to
each other under the Finance Documents; and
(iv) the New Lender shall become a Party as a "Lender".
24.6 DISCLOSURE OF INFORMATION
(a) Any Lender may disclose to any of its Affiliates and any other
person:
(i) to (or through) whom that Lender assigns or transfers (or
may potentially assign or transfer) all or any of its
rights and obligations under this Agreement;
(ii) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation
to, or any other transaction under which payments are to
be made by reference to, this Agreement or any Obligor;
or
(iii) to whom, and to the extent that, information is required
to be disclosed by any applicable law or regulation,
any information about ABB, any Obligor, the Group and the Finance
Documents as that Lender shall consider appropriate if, in
relation to paragraphs (i) and (ii) above, the person to whom the
information is to be given has entered into a
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Confidentiality Undertaking. For the purpose of assignments or
transfers by the Lenders, any Obligor waives its banking secrecy
rights, if any.
(b) For the avoidance of doubt, any information provided to any of
the Finance Parties under any of the Finance Documents shall
without limitation be subject to the duties of confidentiality
implied under English law to dealings between banks and their
customers.
25. CHANGES TO THE OBLIGORS
25.1 ASSIGNMENTS AND TRANSFERS BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
25.2 ADDITIONAL BORROWERS
(a) ABB may request that any of its wholly-owned Subsidiaries become
an Additional Borrower. That Group Company shall become an
Additional Borrower if:
(i) the Group Company is incorporated in an Agreed
Jurisdiction or all the Lenders approve the addition of
that Group Company;
(ii) ABB confirms that no Default is continuing or would occur
as a result of that Group Company becoming an Additional
Borrower;
(iii) the Facility Agent has received all of the documents and
other evidence listed in Schedule 2 (CONDITIONS
PRECEDENT) in relation to that Additional Borrower, each
in form and substance reasonably satisfactory to the
Facility Agent;
(iv) (unless it would result in the contravention of any
applicable law, taking into account the jurisdiction of
incorporation of the relevant Group Company and subject
to sub-paragraph (b) of Clause 25.4 (ADDITIONAL
GUARANTORS)), the Group Company, prior to or at the same
time as it becomes an Additional Borrower, becomes an
Additional Guarantor in accordance with Clause 25.4
(ADDITIONAL GUARANTORS); and
(v) the Majority Lenders agree, such consent not to be
unreasonably withheld.
(b) The Facility Agent shall notify ABB and the Lenders promptly upon
receiving in form and substance reasonably satisfactory to it)
all the documents and other evidence listed in Schedule 2
(CONDITIONS PRECEDENT).
25.3 RESIGNATION OF A BORROWER
(a) ABB may request that a Borrower ceases to be a Borrower by
delivering to the Facility Agent a Resignation Letter.
(b) The Facility Agent shall accept a Resignation Letter and notify
ABB and the Lenders of its acceptance if:
(i) no Default would result from the acceptance of the
Resignation Letter (and ABB has confirmed this to be the
case);
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(ii) the relevant Borrower is under no actual or contingent
obligations under any Finance Documents; and
(iii) the Majority Lenders agree, such consent not to be
unreasonably withheld,
whereupon that company shall cease to be a Borrower and shall have no
further rights or obligations under the Finance Documents.
25.4 ADDITIONAL GUARANTORS
(a) ABB may request that any of its wholly-owned Subsidiaries become
an Additional Guarantor. That Group Company shall become an
Additional Guarantor if:
(i) the Group Company is incorporated in an Agreed
Jurisdiction or all the Lenders approve the addition of
that Group Company;
(ii) ABB delivers to the Facility Agent a duly completed and
executed Accession Letter;
(iii) ABB confirms that no Default is continuing or would occur
as a result of that Group Company becoming an Additional
Guarantor; and
(iv) the Facility Agent has received all of the documents and
other evidence listed in Schedule 2 (CONDITIONS
PRECEDENT) in relation to that Additional Guarantor, each
in form and substance reasonably satisfactory to the
Facility Agent.
(b) If legal counsel in the jurisdiction of incorporation of the
relevant Group Company so advise, ABB and the Lenders shall enter
into negotiations with a view to agreeing such amendments to
Clause 18 (GUARANTEE AND INDEMNITY) as may be necessary to enable
the Group Company to become an Additional Guarantor without
contravening any applicable laws.
(c) The Facility Agent shall notify ABB and the Lenders promptly upon
receiving (in form and substance reasonably satisfactory to it)
all the documents and other evidence listed in Schedule 2
(CONDITIONS PRECEDENT).
25.5 REPETITION OF REPRESENTATION
Delivery of an Accession Letter constitutes confirmation by the relevant
Group Company that the representations and warranties in Clause 19.5
(VALIDITY AND ADMISSIBILITY IN EVIDENCE) and the representations and
warranties deemed to be repeated pursuant to Clause 19.25 (REPETITION)
are true and correct in relation to it as at the date of delivery as if
made by reference to the facts and circumstances then existing.
25.6 RESIGNATION OF A GUARANTOR
(a) ABB may request that a Guarantor ceases to be a Guarantor by
delivering to the Facility Agent a Resignation Letter.
(b) Subject (and without prejudice) to paragraph (c) below, the
Facility Agent shall accept a Resignation Letter and notify ABB
and the Lenders of its acceptance if:
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(i) no Default would result from the acceptance of the
Resignation Letter (and ABB has confirmed this is the
case); and
(ii) in the case of an Original Guarantor, all the Lenders
have consented to ABB's request.
(c) In the case of a Resignation Letter delivered by ABB with respect
to a Guarantor which is incorporated in Sweden, the Facility
Agent shall accept such Resignation Letter if the Lenders have
accepted its resignation as a Borrower and notify ABB and the
Lenders of its acceptance.
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SECTION 10
THE FINANCE PARTIES
26. ROLE OF THE FACILITY AGENT AND THE MANDATED LEAD ARRANGERS
26.1 APPOINTMENT OF THE FACILITY AGENT
(a) Each other Finance Party (other than the Trustee) appoints the
Facility Agent to act as its agent under and in connection with
the Finance Documents.
(b) Each other Finance Party authorises the Facility Agent to
exercise the rights, powers, authorities and discretions
specifically given to the Facility Agent under or in connection
with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.
(c) The Facility Agent shall, unless ABB agrees otherwise, act out of
an office in London.
26.2 DUTIES OF THE FACILITY AGENT
(a) The Facility Agent shall promptly forward to a Party the original
or a copy of any document which is delivered to the Facility
Agent for that Party by any other Party.
(b) Except where a Finance Document specifically provides otherwise,
the Facility Agent is not obliged to review or check the
adequacy, accuracy or completeness of any document it forwards to
another Party.
(c) If the Facility Agent receives notice from a Party referring to
this Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify the
other Finance Parties.
(d) If the Facility Agent is aware of the non-payment of any
principal, interest, commitment fee or other fee payable to a
Finance Party (other than the Facility Agent, the Mandated Lead
Arrangers or the Trustee) under this Agreement it shall promptly
notify the other Finance Parties.
(e) The Facility Agent's duties under the Finance Documents are
solely mechanical and administrative in nature.
26.3 ROLE OF THE MANDATED LEAD ARRANGERS
Except as specifically provided in the Finance Documents, the Mandated
Lead Arrangers have no obligations of any kind to any other Party under
or in connection with any Finance Document.
26.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Facility Agent or any
of the Mandated Lead Arrangers as a trustee or fiduciary of any
other person.
(b) Neither the Facility Agent nor the Mandated Lead Arrangers shall
be bound to account to any Lender for any sum or the profit
element of any sum received by it for its own account.
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26.5 BUSINESS WITH THE GROUP
The Facility Agent and each of the Mandated Lead Arrangers may accept
deposits from, lend money to and generally engage in any kind of banking
or other business with any member of the Group.
26.6 RIGHTS AND DISCRETIONS OF THE FACILITY AGENT
(a) The Facility Agent may rely on:
(i) any representation, notice or document believed by it to
be genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or
within his power to verify.
(b) The Facility Agent may assume (unless it has received notice to
the contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge
of a Default arising under Clause 23.1 (NON-PAYMENT));
(ii) any right, power, authority or discretion vested in any
Party or the Majority Lenders has not been exercised; and
(iii) any notice or request made by the Borrower (other than a
Utilisation Request) is made on behalf of and with the
consent and knowledge of the Obligors.
(c) The Facility Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other experts.
(d) The Facility Agent may act in relation to the Finance Documents
through its personnel and agents.
(e) The Facility Agent may disclose to any other Party any
information it reasonably believes it has received as agent under
this Agreement unless it is aware that such information has been
received by it in breach of confidence.
(f) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Facility Agent nor the Mandated Lead
Arranger is obliged to do or omit to do anything if it would or
might in its reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of
confidentiality.
26.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, the
Facility Agent shall (i) exercise any right, power, authority or
discretion vested in it as Facility Agent in accordance with any
instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising any
right, power, authority or discretion vested in it as Facility
Agent) and (ii) not be liable for any
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act (or omission) if it acts (or refrains from taking any action)
in accordance with an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Finance Parties other than the Trustee.
(c) The Facility Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Facility Agent may act (or refrain
from taking action) as it considers to be in the best interest of
the Lenders.
(e) The Facility Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal or
arbitration proceedings relating to any Finance Document.
26.8 RESPONSIBILITY FOR DOCUMENTATION
None of the Facility Agent, any Mandated Lead Arranger or the Trustee:
(a) is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the
Facility Agent, any Mandated Lead Arranger, the Trustee, an
Obligor or any other person given in or in connection with any
Finance Document or the Syndication Package or the transactions
contemplated in the Finance Documents; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or the
Transaction Security or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in
connection with any Finance Document or the Transaction Security.
26.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, neither the Facility Agent
nor the Trustee will be liable for any action taken by it under
or in connection with any Finance Document or the Transaction
Security, unless directly caused by its negligence, wilful
default or wilful misconduct.
(b) No Party (other than the Facility Agent or, as the case may be,
the Trustee) may take any proceedings against any officer,
employee or agent of the Facility Agent or the Trustee in respect
of any claim it might have against the Facility Agent or Trustee
or in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document or any
Transaction Security and any officer, employee or agent of the
Facility Agent or of the Trustee may rely on this Clause.
(c) The Facility Agent will (absent negligence and wilful default)
not be liable for any delay (or any related consequences) in
crediting an account with an amount
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required under the Finance Documents to be paid by the Facility
Agent if the Facility Agent has taken all necessary steps as soon
as reasonably practicable to comply with the regulations or
operating procedures of any recognised clearing or settlement
system used by the Facility Agent for that purpose.
(d) The Trustee will not be liable to any Finance Party for any
losses to any person or any liability arising as a result of
taking or refraining from taking any action in relation to any of
the Finance Documents or the Transaction Security or otherwise,
whether in accordance with an instruction from the Facility Agent
or otherwise;
(e) The Trustee will not be liable to any Finance Party for (i) the
exercise of, or the failure to exercise, any judgment, discretion
or power given to it by or in connection with any of the Finance
Documents, the Transaction Security or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, or in connection with the Finance Documents or
the Transaction Security or (ii) any shortfall which arises on
the enforcement of the Transaction Security.
26.10 LENDERS' INDEMNITY TO THE FACILITY AGENT AND TRUSTEE
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify each
of the Facility Agent and the Trustee, within three Business Days of
demand, against any cost, loss or liability incurred by the Facility
Agent or the Trustee (otherwise than by reason of the Facility Agent's
or the Trustee's gross negligence or wilful misconduct) in acting as
Facility Agent or as Trustee under the Finance Documents (unless the
Facility Agent or the Trustee has been reimbursed by an Obligor pursuant
to a Finance Document).
26.11 RESIGNATION OF THE FACILITY AGENT
(a) The Facility Agent may resign and appoint one of its Affiliates
acting through an office in the United Kingdom as successor by
giving notice to the other Finance Parties and ABB.
(b) Alternatively the Facility Agent may resign by giving notice to
the other Finance Parties and ABB, in which case the Majority
Lenders (after consultation with the Borrower) may appoint a
successor Facility Agent.
(c) If the Majority Lenders have not appointed a successor Facility
Agent in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Facility Agent (after
consultation with ABB) may appoint a successor Facility Agent
(acting through an office in the United Kingdom).
(d) The retiring Facility Agent shall, at its own cost, make
available to the successor Facility Agent such documents and
records and provide such assistance as the successor Facility
Agent may reasonably request for the purposes of performing its
functions as Facility Agent under the Finance Documents.
(e) The Facility Agent's resignation notice shall only take effect
upon the appointment of a successor.
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(f) Upon the appointment of a successor, the retiring Facility Agent
shall be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 26. Its successor and each of the other Parties shall
have the same rights and obligations amongst themselves as they
would have had if such successor had been an original Party.
(g) After consultation with the Borrower, the Majority Lenders may,
by notice to the Facility Agent, require it to resign in
accordance with paragraph (b) above. In this event, the Facility
Agent shall resign in accordance with paragraph (b) above.
26.12 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties or, as the case may
be, trustee for the Secured Parties, the Facility Agent and the
Trustee shall be regarded as acting through its agency division,
or as appropriate, trustee division which shall be treated as a
separate entity from any other of its divisions or departments.
(b) If information is received by another division or department of
the Facility Agent or the Trustee, it may be treated as
confidential to that division or department and neither the
Facility Agent nor the Trustee shall not be deemed to have notice
of it.
(c) Notwithstanding any provision of any Finance Document to the
contrary, neither the Facility Agent nor any Mandated Lead
Arranger is obliged to disclose to any other person (i) any
confidential information or (ii) any other information if the
disclosure would or might in its reasonable opinion constitute a
breach of a fiduciary duty.
26.13 RELATIONSHIP WITH THE LENDERS
(a) The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility
Office unless it has received not less than five Business Days
prior notice from that Lender to the contrary in accordance with
the terms of this Agreement.
(b) Each Lender shall supply the Facility Agent with any information
required by the Facility Agent in order to calculate the
Additional Cost Rate in accordance with Schedule 4 (ADDITIONAL
COST RATE).
(c) Each Secured Party shall supply the Facility Agent with any
information that the Trustee may reasonably specify (through the
Facility Agent) as being necessary or desirable to enable the
Trustee to perform its functions as trustee. Each Lender shall
deal with the Trustee exclusively through the Facility Agent and
shall not deal directly with the Trustee.
26.14 CREDIT APPRAISAL BY THE SECURED PARTIES
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Secured Party confirms to the Facility Agent, the Mandated Lead
Arrangers and the Trustee that it has been, and will continue to be,
solely responsible for making its own independent appraisal and
investigation of all risks arising under or in connection with any
Finance Document including but not limited to:
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(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and the Transaction Security and any
other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document, Bilateral Document or the Transaction Security;
(c) whether that Secured Party has recourse, and the nature and
extent of that recourse, against any Party or any of its
respective assets under or in connection with any Finance
Document the Transaction Security, the transactions contemplated
by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with any Finance Document;
(d) the adequacy, accuracy and/or completeness of the Syndication
Package (to the extent it receives the same) and any other
information provided by the Facility Agent, the Trustee, any
Party or by any other person under or in connection with any
Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection
with any Finance Document; and
(e) the right or title of any person in or to, or the value or
sufficiency of any part of the Charged Property, the priority of
any of the Transaction Security or the existence of any Security
affecting the Charged Property.
26.15 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Facility Agent
shall (in consultation with the Borrower) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
26.16 FACILITY AGENT'S MANAGEMENT TIME
Any amount payable to the Facility Agent under Clause 15.4 (INDEMNITY TO
THE FACILITY AGENT), Clause 17 (COSTS AND EXPENSES) and Clause 26.10
(LENDERS' INDEMNITY TO THE FACILITY AGENT AND TRUSTEE) shall include the
cost of utilising the Facility Agent's management time or other
resources and will be calculated on the basis of such reasonable daily
or hourly rates as the Facility Agent may notify to the Borrower and the
Lenders, and is in addition to any fee paid or payable to the Facility
Agent under Clause 12 (Fees).
26.17 DEDUCTION FROM AMOUNTS PAYABLE BY THE FACILITY AGENT
If any Party owes an amount to the Facility Agent under the Finance
Documents the Facility Agent may, after giving notice to that Party,
deduct an amount not exceeding that amount from any payment to that
Party which the Facility Agent would otherwise be obliged to make under
the Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance
Documents that Party shall be regarded as having received any amount so
deducted.
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26.18 LENDER REPRESENTATION
Each Lender which is a party to this Agreement on the date hereof
represents and warrants to each Dutch Borrower on the date hereof and
(for so long as it remains a Lender under this Agreement) on the date on
which each Utilisation is made, and each person to whom any Lender
assigns any of its rights under this Agreement represents and warrants
to each Dutch Borrower on the date on which it becomes a party to this
Agreement as a Lender and thereafter (for so long as it remains a Lender
under this Agreement) on the date on which each Utilisation is made,
that it is a PMP.
27. ROLE OF TRUSTEE
27.1 TRUST
The Trustee declares that it shall hold the Transaction Security on
trust for the Secured Parties on the terms contained in this Agreement.
Each of the Secured Parties to this Agreement agrees that the Trustee
shall have only those duties, obligations and responsibilities expressly
specified in this Agreement or in the Security Documents (and no others
shall be implied).
27.2 NO INDEPENDENT POWER
The Secured Parties shall not have any independent power to enforce, or
have recourse to, any of the Transaction Security or to exercise any
rights or powers arising under the Security Documents except through the
Trustee.
27.3 TRUSTEE'S INSTRUCTIONS
The Trustee shall:
(a) unless a contrary indication appears in a Finance Document, act
in accordance with any instructions given to it by the Facility
Agent and shall be entitled to assume that (i) any instructions
received by it from the Facility Agent are duly given by or on
behalf of the Majority Lenders or, as the case may be, the
Lenders in accordance with the terms of the Finance Documents and
(ii) unless it has received actual notice of revocation that any
instructions or directions given by the Facility Agent have not
been revoked;
(b) be entitled to request instructions, or clarification of any
direction, from the Facility Agent as to whether, and in what
manner, it should exercise or refrain from exercising any rights,
powers and discretions and the Trustee may refrain from acting
unless and until those instructions or clarification are received
by it; and
(c) be entitled to, carry out all dealings with the Lenders through
the Facility Agent and may give to the Facility Agent any notice
or other communication required to be given by the Trustee to the
Lenders.
27.4 TRUSTEE'S ACTIONS
Subject to the provisions of this Clause 27:
(a) the Trustee may, in the absence of any instructions to the
contrary, take such action in the exercise of any of its powers
and duties under the Finance Documents
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which in its absolute discretion it considers to be for the
protection and benefit of all the Secured Parties; and
(b) at any time after receipt by the Trustee of notice from the
Facility Agent directing the Trustee to exercise all or any of
its rights, remedies, powers or discretions under any of the
Finance Documents, the Trustee may, and shall if so directed by
the Facility Agent, take any action as in its sole discretion it
thinks fit to enforce the Transaction Security.
27.5 TRUSTEE'S DISCRETIONS
(a) The Trustee may assume (unless it has received actual notice to
the contrary in its capacity as trustee for the Secured Parties)
that:
(i) no Default has occurred and no Obligor is in breach of or
default under its obligations under any of the Finance
Documents; and
(ii) any right, power, authority or discretion vested in any
person has not been exercised.
(b) The Trustee may, if it receives any instructions or directions
from the Facility Agent to take any action in relation to the
Transaction Security, assume that all applicable conditions under
the Finance Documents for taking that action have been satisfied.
(c) The Trustee may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other experts
(whether obtained by the Trustee or by any other Secured Party).
(d) The Trustee may rely upon any communication or document believed
by it to be genuine and, as to any matters of fact which might
reasonably be expected to be within the knowledge of a Secured
Party or an Obligor, upon a certificate signed by or on behalf of
that person.
(e) The Trustee may refrain from acting in accordance with the
instructions of the Facility Agent or Lenders (including bringing
any legal action or proceeding arising out of or in connection
with the Finance Documents) until it has received any
indemnification and/or security that it may in its absolute
discretion require (whether by way of payment in Loan or
otherwise) for all costs, losses and liabilities which it may
incur in bringing such action or proceedings.
27.6 TRUSTEE'S OBLIGATIONS
The Trustee shall promptly inform the Facility Agent of:
(a) the contents of any notice or document received by it in its
capacity as Trustee from any Obligor under any Finance Document;
and
(b) the occurrence of any Default of which the Trustee has received
notice from any other party to this Agreement.
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27.7 EXCLUDED OBLIGATIONS
The Trustee shall not:
(a) be bound to enquire as to the occurrence or otherwise of any
Default or the performance, default or any breach by an Obligor
of its obligations under any of the Finance Documents;
(b) be bound to account to any other Secured Party for any sum or the
profit element of any sum received by it for its own account;
(c) be bound to disclose to any other person (including any Secured
Party) (i) any confidential information or (ii) any other
information if disclosure would, or might in its reasonable
opinion, constitute a breach of any law or be a breach of
fiduciary duty;
(d) be under any obligations other than those which are specifically
provided for in the Finance Documents; or
(e) have or be deemed to have any duty, obligation or responsibility
to, or relationship of trust or agency with, any Obligor.
27.8 NO RESPONSIBILITY TO PERFECT TRANSACTION SECURITY
The Trustee shall not be liable for any failure to:
(a) require the deposit with it of any deed or document certifying,
representing or constituting the title of any Obligor to any of
the Charged Property;
(b) obtain any licence, consent or other authority for the execution,
delivery, legality, validity, enforceability or admissibility in
evidence of any of the Finance Documents or the Transaction
Security;
(c) register, file or record or otherwise protect any of the
Transaction Security (or the priority of any of the Transaction
Security) under any applicable laws in any jurisdiction or to
give notice to any person of the execution of any of the Finance
Documents or of the Transaction Security;
(d) take, or to require any of the Obligors to take, any steps to
perfect its title to any of the Charged Property or to render the
Transaction Security effective or to secure the creation of any
ancillary Security under the laws of any jurisdiction; or
(e) require any further assurances in relation to any of the Security
Documents.
27.9 INSURANCE BY TRUSTEE
(a) The Trustee shall not be under any obligation to insure any of
the Charged Property, to require any other person to maintain any
insurance or to verify any obligation to arrange or maintain
insurance contained in the Finance Documents. The Trustee shall
not be responsible for any loss which may be suffered by any
person as a result of the lack of or inadequacy of any such
insurance.
(b) Where the Trustee is named on any insurance policy as an insured
party, it shall not be responsible for any loss which may be
suffered by reason of, directly or
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indirectly, its failure to notify the insurers of any material
fact relating to the risk assumed by the insurers or any other
information of any kind, unless any Secured Party has requested
it to do so in writing and the Trustee has failed to do so within
fourteen days after receipt of that request.
27.10 CUSTODIANS AND NOMINEES
The Trustee may appoint and pay any person to act as a custodian or
nominee on any terms in relation to any assets of the trust as the
Trustee may determine, including for the purpose of depositing with a
custodian this Agreement or any document relating to the trust created
under this Agreement and the Trustee shall not be responsible for any
loss, liability, expense, demand, cost, claim or proceedings incurred by
reason of the misconduct, omission or default on the part of any person
appointed by it under this Agreement or be bound to supervise the
proceedings or acts of any person.
27.11 ACCEPTANCE OF TITLE
The Trustee shall be entitled to accept without enquiry, and shall not
be obliged to investigate, the right and title as each of the Obligors
may have to any of the Charged Property and shall not be liable for or
bound to require any Obligor to remedy any defect in its right or title.
27.12 REFRAIN FROM ILLEGALITY
The Trustee may refrain from doing anything which in its opinion will or
may be contrary to any relevant law, directive or regulation of any
jurisdiction which would or might otherwise render it liable to any
person, and the Trustee may do anything which is, in its opinion,
necessary to comply with any law, directive or regulation.
27.13 BUSINESS WITH THE OBLIGORS
The Trustee may accept deposits from, lend money to, and generally
engage in any kind of banking or other business with any of the
Obligors.
27.14 RELEASES
Upon a disposal of any of the Charged Property:
(a) pursuant to the enforcement of the Transaction Security by a
Receiver or the Trustee; or
(b) if that disposal is permitted under the Finance Documents,
the Trustee shall (at the cost of the Obligors) release that property
from the Transaction Security and is authorised to execute, without the
need for any further authority from the Secured Parties, any release of
the Transaction Security or other claim over that asset and to issue any
certificates of non-crystallisation of floating charges that may be
required or desirable.
27.15 WINDING UP OF TRUST
If the Trustee, with the approval of the Majority Lenders, determines
that (a) all of the Secured Obligations and all other obligations
secured by any of the Security Documents have been fully and finally
discharged and (b) none of the Finance Parties is under any commitment,
obligation or liability (actual or contingent) to make Loans or provide
other financial accommodation to any Obligor pursuant to the Finance
Documents, the trusts
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set out in this Agreement shall be wound up and the Trustee shall
release, without recourse or warranty, all of the Transaction Security
and the rights of the Trustee under each of the Security Documents.
27.16 PERPETUITY PERIOD
The perpetuity period under the rule against perpetuities, if applicable
to this Agreement, shall be the period of eighty years from the date of
this Agreement.
27.17 POWERS SUPPLEMENTAL
The rights, powers and discretions conferred upon the Trustee by this
Agreement shall be supplemental to the Trustee Acts 1925 and 2000 and in
addition to any which may be vested in the Trustee by general law or
otherwise.
27.18 DISAPPLICATION
Section 1 of the Trustee Act 2000 shall not apply to the duties of the
Trustee in relation to the trusts constituted by this Agreement. Where
there are any inconsistencies between the Trustee Acts 1925 and 2000 and
the provisions of this Agreement, the provisions of this Agreement
shall, to the extent allowed by law, prevail and, in the case of any
inconsistency with the Trustee Xxx 0000, the provisions of this
Agreement shall constitute a restriction or exclusion for the purposes
of that Act.
27.19 RESIGNATION OF TRUSTEE
(a) The Trustee may resign and appoint one of its Affiliates as
successor by giving notice to the other Parties (or to the
Facility Agent on behalf of the Lenders).
(b) Alternatively the Trustee may resign by giving notice to the
other Parties (or to the Facility Agent on behalf of the Lenders)
in which case the Majority Lenders may in consultation with ABB
appoint a successor Trustee.
(c) If the Majority Lenders have not appointed a successor Trustee in
accordance with paragraph (b) above within 30 days after the
notice of resignation was given, the Trustee (after consultation
with the Facility Agent and ABB) may appoint a successor Trustee.
(d) The retiring Trustee shall, at its own cost, make available to
the successor Trustee such documents and records and provide such
assistance as the successor Trustee may reasonably request for
the purposes of performing its functions as Trustee under the
Finance Documents.
(e) The Trustee's resignation notice shall only take effect upon (i)
the appointment of a successor and (ii) the transfer of all of
the Transaction Security to that successor.
(f) Upon the appointment of a successor, the retiring Trustee shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
Clauses 26 (ROLE OF THE FACILITY AGENT AND THE MANDATED LEAD
ARRANGERS) and 27 (ROLE OF TRUSTEE). Its successor and each of
the other Parties shall have the same rights and obligations
amongst themselves as they would have had if such successor had
been an original Party.
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(g) The Majority Lenders may, by notice to the Trustee, require it to
resign in accordance with paragraph (b) above. In this event, the
Trustee shall resign in accordance with paragraph (b) above.
27.20 DELEGATION
(a) The Trustee may, at any time, delegate by power of attorney or
otherwise to any person for any period, all or any of the rights,
powers and discretions vested in it by any of the Finance
Documents.
(b) The delegation may be made upon any terms and conditions
(including the power to sub-delegate) and subject to any
restrictions as the Trustee may think fit in the interests of the
Secured Parties and it shall not be bound to supervise, or be in
any way responsible for any loss incurred by reason of any
misconduct or default on the part of any delegate or
sub-delegate.
27.21 ADDITIONAL TRUSTEES
(a) The Trustee may at any time appoint (and subsequently remove) any
person to act as a separate trustee or as a co-trustee jointly
with it (i) if it considers that appointment to be in the
interests of the Secured Parties or (ii) for the purposes of
conforming to any legal requirements, restrictions or conditions
which the Trustee deems to be relevant or (iii) for obtaining or
enforcing any judgment in any jurisdiction, and the Trustee shall
give prior notice to ABB and the Facility Agent of that
appointment.
(b) Any person so appointed shall have the rights, powers and
discretions (not exceeding those conferred on the Trustee by this
Agreement) and the duties and obligations that are conferred or
imposed by the instrument of appointment.
(c) The remuneration that the Trustee may pay to any person, and any
costs and expenses incurred by that person in performing its
functions pursuant to that appointment shall, for the purposes of
this Agreement, be treated as costs and expenses incurred by the
Trustee.
27.22 GERMAN PROVISIONS
(a) The Trustee shall:
(i) hold and administer any Security which is security
assigned (SICHERUNGSEIGENTUM/SICHERUNGSABTRETUNG) or
otherwise transferred under a non-accessory security
right (NICHT AKZESSORISCHE SICHERHEIT) to it as Trustee
(TREUHANDER) for the benefit of the Secured Parties; and
(ii) administer any Security which is pledged (VERPFANDUNG) or
otherwise transferred to any Secured Parties party to the
agreement constituting such Security under an accessory
security right (AKZESSORISCHE SICHERHEIT).
(b) Each Secured Party hereby authorises the Trustee to accept as its
representative (STELLVERTRETER) any pledge or other creation of
any accessory right made to such Secured Party in relation to any
Finance Document.
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(c) Each of the Secured Parties hereby relieves the Trustee to the
full extent necessary from the restrictions of self-dealing
pursuant to Section 181 of the German Civil Code (BGB) to perform
its duties and obligations as Trustee hereunder.
28. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax.
29. SHARING AMONG THE FINANCE PARTIES
29.1 PAYMENTS TO FINANCE PARTIES
If a Finance Party (a "RECOVERING FINANCE PARTY") receives or recovers
any amount from an Obligor other than in accordance with Clause 30
(PAYMENT MECHANICS) or Clause 32 (SECURITY AND PROCEEDS) and applies
that amount to a payment due under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business Days,
notify details of the receipt or recovery, to the Facility Agent;
(b) the Facility Agent shall determine whether the receipt or
recovery is in excess of the amount the Recovering Finance Party
would have been paid had the receipt or recovery been received or
made by the Facility Agent and distributed in accordance with
Clause 30 (PAYMENT MECHANICS), without taking account of any Tax
which would be imposed on the Facility Agent in relation to the
receipt, recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days of
demand by the Facility Agent, pay to the Facility Agent an amount
(the "SHARING PAYMENT") equal to such receipt or recovery less
any amount which the Facility Agent determines may be retained by
the Recovering Finance Party as its share of any payment to be
made, in accordance with Clause 30.5 (PARTIAL PAYMENTS).
29.2 REDISTRIBUTION OF PAYMENTS
The Facility Agent shall treat the Sharing Payment as if it had been
paid by the relevant Obligor and distribute it between the Finance
Parties (other than the Recovering Finance Party) in accordance with
Clause 30.5 (PARTIAL PAYMENTS).
29.3 RECOVERING FINANCE PARTY'S RIGHTS
(a) On a distribution by the Facility Agent under Clause 29.2
(REDISTRIBUTION OF PAYMENTS), the Recovering Finance Party will
be subrogated to the rights of the Finance Parties which have
shared in the redistribution.
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(b) If and to the extent that the Recovering Finance Party is not
able to rely on its rights under paragraph (a) above, the
relevant Obligor shall be liable to the Recovering Finance Party
for a debt equal to the Sharing Payment which is immediately due
and payable.
29.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 29.2 (REDISTRIBUTION OF
PAYMENTS) shall, upon request of the Facility Agent, pay to the
Facility Agent for account of that Recovering Finance Party an
amount equal to the appropriate part of its share of the Sharing
Payment (together with an amount as is necessary to reimburse
that Recovering Finance Party for its proportion of any interest
on the Sharing Payment which that Recovering Finance Party is
required to pay); and
(b) that Recovering Finance Party's rights of subrogation in respect
of any reimbursement shall be cancelled and the relevant Obligor
will be liable to the reimbursing Finance Party for the amount so
reimbursed.
29.5 EXCEPTIONS
(a) This Clause 29 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to
this Clause, have a valid and enforceable claim against the
relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration
proceedings, if:
(i) it notified that other Finance Party of the legal or
arbitration proceedings; and
(ii) that other Finance Party had an opportunity to
participate in those legal or arbitration proceedings but
did not do so as soon as reasonably practicable having
received notice and did not take separate legal or
arbitration proceedings.
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SECTION 11
ADMINISTRATION
30. PAYMENT MECHANICS
30.1 PAYMENTS TO THE FACILITY AGENT
(a) On each date on which an Obligor or a Lender is required to make
a payment under a Finance Document, that Obligor or Lender shall
make the same available to the Facility Agent (unless a contrary
indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Facility
Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro,
in a principal financial centre in a Participating Member State
or London) with such bank as the Facility Agent specifies.
30.2 DISTRIBUTIONS BY THE FACILITY AGENT
Each payment received by the Facility Agent under the Finance Documents
for another Party shall, subject to Clause 30.3 (DISTRIBUTIONS TO AN
OBLIGOR), Clause 30.4 (CLAWBACK) and Clause 26.17 (DEDUCTION FROM
AMOUNTS PAYABLE BY THE FACILITY AGENT) be made available by the Facility
Agent as soon as practicable after receipt to the Party entitled to
receive payment in accordance with this Agreement (in the case of a
Lender, for the account of its Facility Office), to such account as that
Party may notify to the Facility Agent by not less than five Business
Days' notice with a bank in the principal financial centre of the
country of that currency (or, in relation to euro, in the principal
financial centre of a Participating Member State or London).
30.3 DISTRIBUTIONS TO AN OBLIGOR
The Facility Agent may (with the consent of the relevant Obligor or in
accordance with Clause 31 (SET-OFF)) apply any amount received by it for
that Obligor in or towards payment (on the date and in the currency and
funds of receipt) of any amount due from that Obligor under the Finance
Documents or in or towards purchase of any amount of any currency to be
so applied.
30.4 CLAWBACK
(a) Where a sum is to be paid to the Facility Agent under the Finance
Documents for another Party, the Facility Agent is not obliged to
pay that sum to that other Party (or to enter into or perform any
related exchange contract) until it has been able to establish to
its satisfaction that it has actually received that sum.
(b) If the Facility Agent pays an amount to another Party and it
proves to be the case that the Facility Agent had not actually
received that amount, then the Party to whom that amount (or the
proceeds of any related exchange contract) was paid by the
Facility Agent shall on demand refund the same to the Facility
Agent together with interest on that amount from the date of
payment to the date of receipt by the Facility Agent, calculated
by the Facility Agent to reflect its cost of funds.
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30.5 PARTIAL PAYMENTS
(a) If the Facility Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Facility Agent shall apply that
payment towards the obligations of that Obligor under the Finance
Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Facility Agent and the Trustee
(including of any Receiver or Delegate) under the Finance
Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this
Agreement;
(iii) THIRDLY, in or towards payment pro rata of any principal
due but unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment pro rata of any other sum
due but unpaid under the Finance Documents.
(b) The Facility Agent shall, if so directed by the Majority Lenders,
vary the order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made
by an Obligor.
30.6 NO SET-OFF BY OBLIGORS
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
30.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day
(if there is not).
(b) During any extension of the due date for payment of any principal
or Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due
date.
30.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, the Base Currency is the
currency of account and payment for any sum due from an Obligor
under any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid
Sum shall be made in the currency in which that Loan or Unpaid
Sum is denominated on its due date.
(c) Each payment of interest shall be made in the currency in which
the sum in respect of which the interest is payable was
denominated when that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are
incurred.
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(e) Any amount expressed to be payable in a currency other than the
Base Currency shall be paid in that other currency.
30.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the
currency of that country shall be translated into, or
paid in, the currency or currency unit of that country
designated by the Facility Agent (after consultation with
the Borrower); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of that
currency or currency unit into the other, rounded up or
down by the Facility Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent the Facility Agent (acting reasonably and
after consultation with the Borrower) specifies to be necessary,
be amended to comply with any generally accepted conventions and
market practice in the Relevant Interbank Market and otherwise to
reflect the change in currency.
31. SET-OFF
Without prejudice to the rights at law of each Finance Party, while an
Event of Default is continuing, a Finance Party may set off any matured
obligation due from an Obligor under the Finance Documents (to the
extent beneficially owned by that Finance Party) against any matured
obligation 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.
32. SECURITY AND PROCEEDS
32.1 ORDER OF APPLICATION
All moneys from time to time received or recovered by the Trustee in
connection with the realisation or enforcement of all or any part of the
Transaction Security shall be held by the Trustee on trust to apply them
at such times as the Trustee sees fit acting in good faith, to the
extent permitted by applicable law, in the following order of priority:
(a) first, in discharging any sums owing to the Trustee (in its
capacity as trustee), any Receiver or any Delegate;
(b) secondly, in discharging any fees owing to the Trustee (in its
capacity as trustee of the security granted by ABB or a Group
Company pursuant to Clause 22.3(xxi) (NEGATIVE PLEDGE));
(c) thirdly, in payment to the Facility Agent, on behalf of the
Finance Parties, for application towards the discharge of all
sums due and payable by any Obligor
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under any of the Finance Documents in accordance with Clause 30.5
(PARTIAL PAYMENTS);
(d) if none of the Obligors is under any further actual or contingent
liability under any Finance Document, in payment to any person to
whom the Trustee is obliged under any Finance Document to pay in
priority to any Obligor; and
(e) the balance, if any, in payment to the relevant Obligor.
32.2 INVESTMENT OF PROCEEDS
Prior to the application of the proceeds of the Transaction Security in
accordance with Clause 32.1 (ORDER OF APPLICATION) the Trustee may, at
its discretion, hold all or part of those proceeds in an interest
bearing suspense or impersonal account(s) in the name of the Trustee or
Facility Agent with any financial institution (including itself) and for
so long as the Trustee thinks fit (the interest being credited to the
relevant account) pending the application from time to time of those
monies at the Trustee's discretion in accordance with the provisions of
this Clause 32.
32.3 CURRENCY CONVERSION
(a) For the purpose of or pending the discharge of any of the Secured
Obligations the Trustee may convert any moneys received or
recovered by the Trustee from one currency to another, at the
spot rate at which the Trustee is able to purchase the currency
in which the Secured Obligations are due with the amount
received.
(b) The obligations of any Obligor to pay in the due currency shall
only be satisfied to the extent of the amount of the due currency
purchased after deducting the costs of conversion.
32.4 PERMITTED DEDUCTIONS
The Trustee shall be entitled (a) to set aside by way of reserve amounts
required to meet and (b) to make and pay, any deductions and
withholdings (on account of Tax or otherwise) which it is or may be
required by any applicable law to make from any distribution or payment
made by it under this Agreement, and to pay all Tax which may be
assessed against it in respect of any of the Charged Property, or as a
consequence of performing its duties, or by virtue of its capacity as
Trustee under any of the Finance Documents or otherwise (except in
connection with its remuneration for performing its duties under this
Agreement).
32.5 DISCHARGE OF SECURED OBLIGATIONS
(a) Any payment to be made in respect of the Secured Obligations by
the Trustee may be made to the Facility Agent on behalf of the
Lenders and that payment shall be a good discharge to the extent
of that payment, to the Trustee.
(b) The Trustee is under no obligation to make payment to the
Facility Agent in the same currency as that in which any Unpaid
Sum is denominated.
32.6 SUMS RECEIVED BY OBLIGORS
If any of the Obligors receives any sum which, pursuant to any of the
Finance Documents, should have been paid to the Trustee, that sum shall
promptly be paid to the Trustee for application in accordance with this
Clause.
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32.7 PARALLEL SECURITY
For the purpose of ensuring and preserving the validity and continuity
of the Security Documents and solely for such purpose and subject as
provided below, each and every Obligor hereby irrevocably and
unconditionally undertakes to pay the Security Trustee amounts equal to
any amounts owing by such Obligor to the Finance Parties (the
"BENEFICIARIES") under the Finance Documents, as and when the same fall
due for payment thereunder so that the Security Trustee shall be the
obligee of such covenant to pay on behalf of the Beneficiaries. The
Obligors and the Security Trustee acknowledge that for this purpose such
monetary obligations of the Obligors are several and are separate and
independent from, and without prejudice to, the obligations which the
Obligors have to the Beneficiaries under the Finance Documents, PROVIDED
THAT this shall not, at the same time, result in any Obligor incurring
an aggregate monetary obligation owed to the Beneficiaries and the
Security Trustee which is greater than the monetary obligations owed to
the Beneficiaries under the Finance Documents. For this purpose and
without prejudice to the foregoing, it is agreed that (i) the amounts
due and payable by an Obligor under this Clause 32.7 (PARALLEL SECURITY)
(the "PARALLEL DEBT") shall be decreased to the extent that such Obligor
has paid any amounts to the Beneficiaries or any of them in respect of
any indebtedness owed to the Beneficiaries and vice versa and (ii) the
Parallel Debt shall not exceed the aggregate of the corresponding
obligations which the Obligors owe to the Beneficiaries under the
Finance Documents. Nothing in this Clause 32.7 (PARALLEL SECURITY) shall
in any way negate, affect or increase the obligations of any Obligor to
the Beneficiaries under the Finance Documents. For the purpose of this
Clause 32.7 (PARALLEL SECURITY) the Security Trustee acts in its own
name and on behalf of itself and not as agent or representative of any
other party hereto and any security granted to the Security Trustee to
secure the Parallel Debt is granted to the Security Trustee in its
capacity as creditor of the Parallel Debt and solely for the purpose
referred to above. For the avoidance of doubt, any amounts received or
recovered by the Security Trustee in respect of the Parallel Debt shall
be applied in accordance with Clause 29 (SHARING AMONG THE FINANCE
PARTIES) and Clause 32 (SECURITY AND PROCEEDS).
33. NOTICES
33.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
33.2 ADDRESSES
(a) The address and fax number (and the department or officer, if
any, for whose attention the communication is to be made) of each
Party for any communication or document to be made or delivered
under or in connection with the Finance Documents is:
(i) in the case of the Original Obligors, that identified in
Part 2 of Schedule 1 (THE ORIGINAL OBLIGORS), with a copy
to ABB and ABB Capital B.V., Zurich Branch;
(ii) in the case of ABB, that identified in Clause 33.2(b);
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(iii) in the case of an Additional Obligor, that identified in
the Accession Letter relating to that Additional Obligor,
with a copy to ABB and ABB Capital B.V., Zurich Branch;
(iv) in the case of ABB Capital B.V., Zurich Branch, that
identified in Clause 33.2(b);
(v) in the case of each Lender, that notified in writing to
the Facility Agent on or prior to the date on which it
becomes a Party; and
(vi) in the case of the Facility Agent, that identified in
Clause 33.2(b),
or any substitute address, fax number or department or officer as
the Party may notify to the Facility Agent (or the Facility Agent
may notify to the other Parties, if a change is made by the
Facility Agent) by not less than 5 Business Days' notice.
(b)
(i) the Facility Agent:
Credit Suisse First Boston
0 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Attn: Loans Agency
Tel: 000 0000 0000
Fax: 000 0000 0000 / 020 7888 8398
(ii) ABB Capital B.V., Zurich Branch
Xxxxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Attn: President's Office
Fax: x00 0 000 0000
(iii)
ABB Ltd
Xxxxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Attn: Group Senior Officer - Group Financing and Taxes
Fax: x00 00 000 0000
x00 00 000 0000
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33.3 DELIVERY
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will
only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the
relevant address or ten Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address; or
(iii) if by way of telex, when despatched, but only if, at the
time of transmission, the correct answerback appears at
the start and at the end of the sender's copy of the
notice;
and, if a particular department or officer is specified as part
of its address details provided under Clause 33.2 (ADDRESSES), if
addressed to that department or officer.
(b) Any communication or document to be made or delivered to the
Facility Agent or to the Trustee will be effective only when
actually received by the Facility Agent or the Trustee and then
only if it is expressly marked for the attention of the
department or officer identified with the Facility Agent's or the
Trustee's signature below (or any substitute department or
officer as the Facility Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Facility Agent.
(d) Any communication or document made or delivered to the Borrower
in accordance with this Clause will be deemed to have been made
or delivered to the Guarantor.
(e) All notices to a Lender from the Trustee shall be sent through
the Facility Agent.
33.4 NOTIFICATION OF ADDRESS, FAX NUMBER AND TELEX NUMBER
Promptly upon receipt of notification of an address, fax number and
telex number or change of address, fax number or telex number pursuant
to Clause 33.2 (ADDRESSES) or changing its own address, fax number or
telex number, the Facility Agent shall notify the other Parties.
33.5 ELECTRONIC COMMUNICATION
(a) Any communication to be made between the Facility Agent or the
Trustee and a Lender under or in connection with the Finance
Documents may be made by electronic mail or other electronic
means, if the Facility Agent, the Trustee and the relevant
Lender:
(i) agree that, unless and until notified to the contrary,
this is to be an accepted form of communication;
(ii) notify each other in writing of their electronic mail
address and/or any other information required to enable
the sending and receipt of information by that means; and
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(iii) notify each other of any change to their address or any
other such information supplied by them.
(b) Any electronic communication made between the Facility Agent and
a Lender or the Trustee will be effective only when actually
received in readable form and in the case of any electronic
communication made by a Lender to the Facility Agent or the
Trustee only if it is addressed in such a manner as the Facility
Agent or Trustee shall specify for this purpose.
33.6 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document
must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Facility
Agent, accompanied by a certified English translation
and, in this case, the English translation will prevail
unless the document is a constitutional, statutory or
other official document.
34. CALCULATIONS AND CERTIFICATES
34.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are PRIMA FACIE evidence of the matters to
which they relate.
34.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
34.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
35. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
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36. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Secured Party or the Mandated Lead Arranger, any right or remedy under
the Finance Documents shall operate as a waiver, nor shall any single or
partial exercise of any right or remedy prevent any further or other
exercise or the exercise of any other right or remedy. The rights and
remedies provided in this Agreement are cumulative and not exclusive of
any rights or remedies provided by law.
37. AMENDMENTS AND WAIVERS
37.1 REQUIRED CONSENTS
(a) Subject to Clause 37.2 (EXCEPTIONS) and Clause 27.14 (RELEASES)
any term of the Finance Documents may be amended or waived only
with the consent of the Majority Lenders and the Obligors and any
such amendment or waiver will be binding on all Parties.
(b) The Facility Agent, or in respect of the Security Documents the
Trustee, may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
37.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1
(DEFINITIONS);
(ii) an extension to the date of payment of any amount under
the Finance Documents;
(iii) a reduction in the Margin or a reduction in the amount of
any payment of principal, interest, fees or commission
payable;
(iv) an increase in or an extension of any Commitment;
(v) any provision which expressly requires the consent of all
the Lenders;
(vi) Clause 2.3 (FINANCE PARTIES' RIGHTS AND OBLIGATIONS),
Clause 4.1 (INITIAL CONDITIONS PRECEDENT), Clause 8.4
(MANDATORY PREPAYMENT - OGP), Clause 8.5 (MANDATORY
PREPAYMENT - DIVESTMENT ASSETS), Clause 24 (CHANGES TO
THE LENDERS), Clause 25 (CHANGES TO THE OBLIGORS), Clause
29 (SHARING AMONG THE FINANCE PARTIES) or this Clause
37.2; or
(vii) the nature or scope of the Charged Property or the manner
in which the proceeds of enforcement of the Transaction
Security are distributed,
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations
of the Facility Agent, the Trustee or the Mandated Lead Arranger
may not be effected without the consent of the Facility Agent,
the Trustee or the Mandated Lead Arranger.
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38. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were
on a single copy of the Finance Document.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
39. GOVERNING LAW
This Agreement is governed by English law.
40. ENFORCEMENT
40.1 JURISDICTION OF ENGLISH COURTS
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "DISPUTE").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 40.1 is for the benefit of the Finance Parties only.
As a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties
may take concurrent proceedings in any number of jurisdictions.
(d) If ABB Capital B.V. is represented by an attorney or attorneys in
connection with the signing and/or execution and/or delivery of
this Agreement or any agreement or document referred to herein or
made pursuant hereto and the relevant power or powers of attorney
is or are expressed to be governed by the laws of a particular
jurisdiction, it is hereby expressly acknowledged and accepted by
the other parties hereto that such laws shall govern the
existence and extent of such attorney's or attorneys' authority
and the effects of the exercise thereof.
40.2 SERVICE OF PROCESS
ABB, the Third Party Security Providers and each Obligor incorporated in
a jurisdiction other than England and Wales agree that the documents
which start any Proceedings in England and any other documents required
to be served in relation to those Proceedings may be served on
ABB Ltd,
at Xxxxx Xxxxx, 0 Xxxxx Xx. Xxxxxx'x Xxxx, Xxxxxx XX0 or, if different,
its registered office, with a copy to ABB. If the appointment of the
person mentioned in this Clause 40.2 ceases to be effective, ABB and
each Obligor shall immediately appoint another person in England to
accept service of process on its behalf in England. If ABB or any
Obligor fails to do so (and such failure continues for a period of not
less than fourteen days), the Facility Agent shall be entitled to
appoint such a person by notice to ABB or the relevant Obligor (as the
case may be). Nothing contained herein shall restrict the right to serve
process in any other manner allowed by law
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
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SIGNATURES
THE BORROWERS
ABB TREASURY CENTER (USA), INC.
By: XXXXX XXXXXXXXX
ABB FINANCE INC.
By: XXXX-XXXXXX XXXXXXX
ABB CAPITAL B.V.
By: HANS ENHOERNING
ABB FINANCIAL SERVICES AB
By: GUNNAR BJOKENOR
ABB INTERNATIONAL FINANCE LTD
By: XXXXXXXXXXX XXXX
ABB ASEA XXXXX BOVERI LTD
By: HANS ENHOERNING XXXXXX XXXXXX
ABB STRUCTURED FINANCE INVESTMENT B.V.
By: GUNNAR BJOKENOR
THE GUARANTORS
ABB LTD
By: XXXXX XXXXX XXXXXX XXXXXX
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ABB TREASURY CENTER (USA), INC.
By: XXXXX XXXXXXXXX
ABB FINANCE INC.
By: XXXX-XXXXXX XXXXXXX
ABB CAPITAL B.V.
By: HANS ENHOERNING
ABB FINANCIAL SERVICES AB
By: GUNNAR BJOKENOR
ABB INTERNATIONAL FINANCE LTD
By: XXXXXXXXXXX XXXX
ABB OIL & GAS USA, INC.
By: E. XXXXX XXXX
ABB STRUCTURED FINANCE INVESTMENT B.V.
By: GUNNAR BJOKENOR
ABB HOLDING AG
By: XXXXX XXXXX XXXXXX XXXXXX
ABB ASEA XXXXX BOVERI LTD
By: XXXXXX XXXXXX XXXX ENHOERNING
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THIRD PARTY SECURITY PROVIDERS
ABB REAKTOR GESELLSCHAFT MIT BESCHRANKTER HAFTUNG
By: XXXXXX XXXXXXXXXX X. XXXXXXXX
ABB FLAKT GMBH
By: XXXXXX XXXXXXXXXX X. XXXXXXXX
ABB AG
By: XXXXXX XXXXXXXXXX X. XXXXXXXX
THE MANDATED LEAD ARRANGERS
BARCLAYS CAPITAL
By: XXXXXX XXXXX
BAYERISCHE HYPO-UND VEREINSBANK
By: XXXXXX XXXXX
CREDIT SUISSE FIRST BOSTON
By: XXXXXX XXXXX XXXXX X XXXXXXX
XXXXXXX XXXXXXXX INTERNATIONAL LIMITED
By: XXXXX WIRDNAM
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THE FACILITY AGENT
CREDIT SUISSE FIRST BOSTON
By: XXXXXX XXXXX XXXXX X XXXXXXX
THE TRUSTEE
CREDIT SUISSE FIRST BOSTON
By: XXXXXX XXXXX XXXXX X XXXXXXX
THE LENDERS
BARCLAYS BANK PLC
By: XXXXXX XXXXX
BAYERISCHE HYPO-UND VEREINSBANK AG
By: XXXXXX XXXXX
CITIBANK, N.A.
By: XXXXX XXXXXXXX
CITIBANK INTERNATIONAL PLC
By: XXXXX WIRDNAM
CREDIT SUISSE FIRST BOSTON
By: XXXXXX XXXXX XXXXX X XXXXXXX
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL)
By: XXXXXX XXXXX
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DRESDNER BANK, LUXEMBOURG S.A.
By: XXXXXX XXXXX
NORDEA BANK SWEDEN AB (PUBL)
By: XXXXXX XXXXX
COMMERZBANK AKTIENGESELLSCHAFT, MANNHEIM BRANCH
By: XXXXXX XXXXX
BNP PARIBAS SA
By: XXXXXX XXXXX
SVENSKA HANDELSBANKEN AB (PUBL)
By: XXXXXX XXXXX
DEUTSCHE BANK LUXEMBOURG S.A.
By: XXXXXX XXXXX
HSBC BANK PLC
By: XXXXXX XXXXX
BANK BRUSSELS XXXXXXX XX, BRUSSELS
By: XXXXXX XXXXX XXXXX WIRDNAM
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: XXXX XXXXXX XXXXX XXXXXXXXX
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CDC IXIS
By: XXXXXX XXXXX
THE BANK OF TOKYO-MITSUBISHI, LTD
By: XXXXX XXXXXX
BTM (EUROPE) LIMITED
By: XXXXX XXXXXX
SAUDI AMERICAN BANK
By: XXXXXX X X XXXX
DEN NORSKE BANK ASA
By: XXXXXX XXXXX
KBC BANK NV
By: XXXXXX XXXXX
STANDARD CHARTERED BANK
By: XXXXXX XXXXX XXXXXX
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