EXHIBIT 4.4
[XXXXXXXX CHANCE LOGO] LIMITED LIABILITY PARTNERSHIP
CONFORMED COPY
DATED 23 JUNE 2003
ABB LTD
AS BORROWER
WITH
CREDIT SUISSE FIRST BOSTON
ACTING AS FACILITY AGENT
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AMENDMENT AGREEMENT
RELATING TO A
FACILITY AGREEMENT
DATED 17 DECEMBER 2002
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THIS AGREEMENT is dated 23 June 2003 and made between:
(1) ABB LTD a company incorporated in Switzerland whose registered office is
at Xxxxxxxxxxxxxxxx 00, XX-0000 Xxxxxx, Xxxxxxxxxxx ("ABB");
(2) ABB LTD in its capacity as Obligors' Agent for each Obligor (other than
ABB) and each Third Party Security Provider (as defined in the Original
Facility Agreement) (the "OBLIGORS' AGENT");
(3) CREDIT SUISSE FIRST BOSTON as agent of the Lenders (the "FACILITY
AGENT"); and
(4) CREDIT SUISSE FIRST BOSTON as security trustee (the "TRUSTEE").
WHEREAS the Facility Agent has received an Updated Liquidity Plan, an update to
the PWC Reports and a Divestment Asset List (incorporating Building Systems);
and
WHEREAS the Original Facility Agreement has previously been amended pursuant to
two amendment request letters from ABB and a confirmation of consent in respect
of each such request by the Majority Lenders dated 26 March 2003 and 3 June 2003
respectively from the Facility Agent, and the Parties wish to record such
amendments as set out in Schedule 1 to this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AMENDED AGREEMENT" means the Original Facility Agreement, as amended by
this Agreement.
"EFFECTIVE DATE" means the date of this Agreement.
"ORIGINAL FACILITY AGREEMENT" means the $1,500,000,000 Facilities
Agreement dated 17 December 2002 between ABB and certain subsidiaries of
ABB as borrowers and guarantors, the Facility Agent, Barclays Capital,
Bayerische Hypo-Und Vereinsbank AG, Credit Suisse First Boston and
Citigroup Global Markets Limited (formerly Salomon Brothers
International Limited) as arrangers and others, as amended as set out in
Schedule 1 (RECORD OF PRIOR AGREED AMENDMENTS).
1.2 INCORPORATION OF DEFINED TERMS
(a) 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.
(b) The principles of construction set out in the Original Facility
Agreement shall have effect as if set out in this Agreement.
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1.3 CLAUSES
(a) In this Agreement any reference to a "Clause" or "Schedule" is,
unless the context otherwise requires, a reference to a Clause
or Schedule of this Agreement.
(b) Clause and Schedule headings are for ease of reference only.
2. AMENDMENT
With effect from the Effective Date the Original Facility Agreement
shall be amended as set out in Schedule 2 (AMENDMENTS TO ORIGINAL
FACILITY AGREEMENT).
3. REPRESENTATIONS
ABB (in respect of itself and each Group Company) makes the Repeating
Representations and the representation in paragraph (f) of Clause 19.11
(FINANCIAL STATEMENTS AND LIQUIDITY PLANS) as if each reference in those
representations to "this Agreement" or "the Finance Documents" includes
a reference to (a) this Agreement and (b) the Amended Agreement.
4. CONTINUITY AND FURTHER ASSURANCE
4.1 CONTINUING OBLIGATIONS
The provisions of the Finance Documents shall, save as amended in this
Agreement (and as previously amended as set out in Schedule 1 (RECORD OF
PRIOR AGREED AMENDMENTS)), continue in full force and effect.
4.2 FURTHER ASSURANCE
ABB shall, at the request of the Facility Agent and at its own expense,
do all such acts and things necessary or desirable to give effect to the
amendments effected or to be effected pursuant to this Agreement.
5. FEES, COSTS AND EXPENSES
5.1 TRANSACTION EXPENSES
ABB shall promptly on demand pay the Facility Agent 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 and execution of this Agreement and any other documents
referred to in this Agreement.
5.2 ENFORCEMENT COSTS
ABB shall, within three 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 in connection with the
enforcement of, or the preservation of any rights under this Agreement.
5.3 STAMP TAXES
ABB shall pay and, within three Business Days of demand, indemnify each
Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration and other similar
Taxes payable in respect of this Agreement.
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6. MISCELLANEOUS
6.1 INCORPORATION OF TERMS
The provisions of clause 35 (PARTIAL INVALIDITY), clause 36 (REMEDIES
AND WAIVERS), clause 39 (GOVERNING LAW) and clause 40 (ENFORCEMENT) of
the Original Facility Agreement shall be incorporated into this
Agreement as if set out in full in this Agreement and as if references
in those clauses to "this Agreement" or "the Finance Documents" are
references to this Agreement.
6.2 COUNTERPARTS
This Agreement 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 this Agreement.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
RECORD OF PRIOR AGREED AMENDMENTS
1. Paragraph (a) of Clause 21.2 (FINANCIAL CONDITION) of the Original
Facility Agreement has been amended to replace the two relevant rows of
the table set out therein as follows:
QUARTER DATE RATIO
31 December 2002 2.5 : 1
31 March 2003 2.0 : 1
2. The Divestment Asset List has been amended to include Building Systems.
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SCHEDULE 2
AMENDMENTS TO ORIGINAL FACILITY AGREEMENT
1. The following definitions will be inserted into Clause 1.1
(DEFINITIONS):
"NEW CAPITAL MARKETS AMOUNT" means the amount of any New Capital Market
Proceeds raised prior to 1 October 2003.
"NEW CAPITAL MARKET PROCEEDS" means the cash proceeds of the issue of
any bonds, notes, loan stock or other similar instrument raised prior to
1 October 2003 PROVIDED THAT:
(a) such cash proceeds shall only constitute New Capital Market
Proceeds up to an amount of $500,000,000;
(b) such instrument is issued by a Borrower under this Agreement,
is not secured and there is no other recourse to the Group
other than a keep-well agreement from ABB;
(c) the covenants contained in the terms of such instrument are to
the extent equivalent to the covenants in this Agreement no
more onerous than the covenants in this Agreement and all other
covenants contained in the terms of such instrument are
typically included in such instruments; and
(d) the maturity date under such instrument falls after 16 December
2004.
"PERMITTED ASSET PREFINANCING" means the credit facility up to
$300,000,000 provided or to be provided in favour of a Group Company
that is the holding company of the non-core asset falling within the
divestment and special item line in the Original Liquidity Plan for June
2004.
2. The definition of "Term-Out Option" in Clause 1.1 (Definitions) will be
amended so the reference to "$750,000,000" is deleted and replaced by a
reference to "$750,000,000 less 50 per cent. of the New Capital Markets
Amount".
3. Sub-paragraph (ii) of Clause 7.1 (TERM-OUT OPTION) will be amended so
that the reference to "$750,000,000" is deleted and replaced by a
reference to "$750,000,000 less 50 per cent. of the New Capital Markets
Amount".
4. Paragraph (a) of Clause 7.4 (REDUCTION OF FACILITY) will be deleted and
replaced by the following:
"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 on such date:
REDUCTION DATES
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1 October 2003 An amount equal to 1,500,000,000 less
50 per cent. of the New Capital
Markets Amount.
1 November 2003 $1,200,000,000
1 December 2003 $1,000,000,000"
5. The definition of "Net Capital Markets Proceeds" will be amended to add
the following exclusions at paragraphs (viii) and (ix):
"(viii) the New Capital Market Proceeds; and
(ix) the Permitted Asset Prefinancing."
6. Sub-paragraph (c)(i)(2) of Clause 8.6 (MANDATORY PREPAYMENT OTHER
PROCEEDS) will be amended to delete all the text in parentheses at the
end of such sub-paragraph.
7. Paragraph (a) of Clause 8.7 (EXCESS AVAILABLE CASH) will be amended to
add the words "up to and including November 2003" after the words "on
the last Business Day of any calendar month".
8. A new clause 8.8 will be inserted as follows:
"8.8 PERMITTED ASSET PREFINANCING
(a) If on 1 July 2004 the Permitted Asset Prefinancing has
not been repaid and cancelled in full (the amount
outstanding or available to be drawn being the
"PREFINANCING AMOUNT"), ABB shall promptly notify the
Facility Agent.
(b) ABB shall procure an amount equal to the Prefinancing
Amount is applied in reduction of the Facility on 1 July
2004 in accordance with the provisions of Clause 8.9
(APPLICATION OF MANDATORY PREPAYMENTS)."
9. Clause 8.8 (APPLICATION OF MANDATORY PREPAYMENTS) will be renumbered as
Clause 8.9 and will be amended so that after the words "Clause 8.7
(EXCESS AVAILABLE CASH)" in line 3, the following is inserted:
"or Clause 8.8 (PERMITTED ASSET PREFINANCING)".
10. Paragraph (b) of Clause 19.25 (REPETITION) will be amended to delete
reference to "paragraph (e) of Clause 19.11" and replace it with
"paragraph (f) of Clause 19.11".
11. The definition of "Total Gross Debt" in Clause 21.1 (FINANCIAL
DEFINITIONS) will be amended to add the words "and adjusted to disregard
the debt constituted by the New Capital Markets Proceeds" after the
words "to repay debt" in the fourth line of that definition.
12. Clause 22.3 (NEGATIVE PLEDGE) will be amended to add the following
exclusion at paragraph (xxiii):
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"(xxiii) any Security over the shares of the non-core asset falling
within the divestment item line in the Original Liquidity Plan
for June 2004 provided in connection with the Permitted Asset
Prefinancing;"
13. Sub-paragraph (b)(xxiii) of Clause 22.3 (NEGATIVE PLEDGE) will be
renumbered as (b)(xxiv) and the following amendments will be made to
this sub-paragraph:
(a) the reference in line 1 to "(xxii)" will be amended to read
"(xxiii)"; and
(b) the reference in line 3 to "(xxii)" will be amended to read
"(xxiv)".
14. A new Clause 22.19 will be inserted as follows:
"22.19 PERMITTED ASSET PREFINANCING
(a) ABB shall procure that the terms of the documentation
entered into or to be entered into to effect the
Permitted Asset Prefinancing at all times comply with
the following:
(i) there is a maximum facility amount of
$300,000,000;
(ii) to the extent covenants apply or relate to
members of the Group other than the original
borrower or the relevant non-core asset under
the Permitted Asset Prefinancing those covenants
shall be no more onerous than the covenants in
this Agreement; and
(iii) the Permitted Asset Prefinancing shall not have
the benefit of any Security other than as
permitted under sub-paragraph (b) (xxiii) of
Clause 22.3 (NEGATIVE PLEDGE) and there shall be
no other recourse to any member of the Group
other than the original borrower of such
facility and ABB.
(b) ABB shall procure the Permitted Asset Prefinancing is
repaid on or prior to the disposal of the non-core asset
falling within the divestment and special item line in
the Original Liquidity Plan for June 2004 in order that
such asset is sold free of this debt. "
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SIGNATURES
ABB
ABB LTD
By: X. XXXXX (CFO)
X. XXXXXX (DEPUTY CFO)
OBLIGORS' AGENT
ABB LTD
By: X. XXXXX (CFO)
X. XXXXXX (DEPUTY CFO)
THE FACILITY AGENT
CREDIT SUISSE FIRST BOSTON
By: XXXXX XX XXXXXX
XXXXX XXXXXXXX
THE TRUSTEE
CREDIT SUISSE FIRST BOSTON
By: XXXXX XX XXXXXX
XXXXX XXXXXXXX
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