as amended by a syndication and amendment agreement dated 10 December 2003) ABB LTD CERTAIN SUBSIDIARIES OF ABB LTD as Borrowers and Guarantors with BARCLAYS CAPITAL BAYERISCHE HYPO-UND VEREINSBANK AG BNP PARIBAS CITIGROUP GLOBAL MARKETS LIMITED...
Exhibit 4.3
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LIMITED LIABILITY PARTNERSHIP |
CONFORMED COPY
17 NOVEMBER 2003
(as amended by a syndication and amendment agreement dated 10 December 2003)
CERTAIN SUBSIDIARIES OF ABB LTD
as Borrowers and Guarantors
with
BARCLAYS CAPITAL
BAYERISCHE HYPO-UND VEREINSBANK AG
BNP PARIBAS
CITIGROUP GLOBAL MARKETS LIMITED
COMMERZBANK AKTIENGESELLSCHAFT
CREDIT SUISSE FIRST BOSTON
DEUTSCHE BANK XX
XXXXXXXX KLEINWORT XXXXXXXXXXX
HSBC BANK PLC
NORDEA BANK SWEDEN AB (PUBL)
SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL)
SVENSKA HANDELSBANKEN AB (PUBL)
as Mandated Lead Arrangers
and
CREDIT SUISSE FIRST BOSTON
acting as Facility Agent
US$1,000,000,000
MULTI-CURRENCY REVOLVING CREDIT AGREEMENT
CONTENTS
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THIS AGREEMENT is dated 17 November 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) THE SUBSIDIARIES of ABB listed in Part 2 of Schedule 1 (The Original Parties) as original borrowers (the “Original Borrowers”);
(3) ABB AND THE SUBSIDIARIES OF ABB listed in Part 2 of Schedule 1 (The Original Parties) as original guarantors (the “Original Guarantors”);
(4) BARCLAYS CAPITAL, BAYERISCHE HYPO-UND VEREINSBANK AG, BNP PARIBAS, CITIGROUP GLOBAL MARKETS LIMITED, COMMERZBANK AKTIENGESELLSCHAFT, CREDIT SUISSE FIRST BOSTON, DEUTSCHE BANK AG, DRESDNER KLEINWORT XXXXXXXXXXX, HSBC BANK PLC, NORDEA BANK SWEDEN AB (PUBL), SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL) and SVENSKA HANDELSBANKEN AB (PUBL) in their respective capacities as mandated lead arrangers (the “Mandated Lead Arrangers”);
(5) BANCO BILBAO VIZCAYA ARGENTARIA S.A., CDC IXIS, DEN NORSKE BANK ASA, ING BELGIUM NV, KBC BANK NV and SAUDI AMERICAN BANK (the “Arrangers”);
(6) THE FINANCIAL INSTITUTIONS listed in Part 1 of Schedule 1 (The Original Lenders) in their respective capacities as original lenders (the “Lenders”); and
(7) CREDIT SUISSE FIRST BOSTON in its capacity as facility agent (the “Facility Agent”).
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 Accession Letter).
“Additional Borrower” means any Subsidiary of ABB which has become an Additional Borrower in accordance with Clause 25.2 (Additional Borrowers).
“Additional Guarantor” means any Subsidiary of ABB which has become an Additional Guarantor in accordance with Clause 25.4 (Additional Guarantors).
1
“Additional Obligor” means an Additional Borrower or an Additional Guarantor.
“Advance” means an advance made or to be made under the Facility or the principal amount outstanding for the time being of that advance.
“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 Form Pledges” means the pledges contemplated from:
(a) ABB Oil & Gas USA Inc. in respect of the shares of ABB Offshore Systems Inc and ABB Vetco Xxxx Inc; and
(b) ABB Holding AG in respect of the shares of ABB Holding AS,
each in agreed form.
“Agreed Form Trust Deed” means the trust deed contemplated in respect of the Agreed Form Pledges, in agreed form.
“Agreed Jurisdiction” means any of the United States of America, Switzerland, Guernsey, any country that is, at the date of this Agreement, a member of the European Union and any other country approved by all the Lenders.
“Approved Reorganisation” means any of the amalgamations, demergers, mergers or corporate reconstructions set out in the group structure chart provided by ABB prior to the date of this Agreement provided that in relation to any Obligor, the Facility Agent has received a copy of an opinion from external counsel acceptable to the Facility Agent, acting reasonably, that the enforceability of that Obligor’s obligations under the Finance Documents will not be affected thereby.
“Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing or registration.
“Availability Period” means the period from and including 10 December 2003 to and including the date falling 1 Month prior to the Final Maturity Date.
“Available Commitment” means a Lender’s Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding Advances; and
(b) in relation to any proposed Utilisation, the Base Currency Amount of its participation in any Advances that are due to be made on or before the proposed Utilisation Date,
other than, in either case, that Lender’s participation in any Advances that are due to be repaid or prepaid on or before the proposed Utilisation Date.
“Available Facility” means the aggregate for the time being of each Lender’s Available Commitment.
2
“Base Currency” means Dollars.
“Base Currency Amount” means, in relation to an Advance, the amount specified in the Utilisation Request delivered by the relevant Borrower for that Advance (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 3 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 Advance.
“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 an Advance or Unpaid Sum to the last day of the current Interest Period in respect of that Advance 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.
“Business Day” means:
(a) in relation to any Advance, a day (other than a Saturday or Sunday) on which banks are open for general business in London, and:
(i) (in relation to any date for payment or purchase of a currency other than Euro) the principal financial centre of the country of that currency; or
(ii) (in relation to any date for payment or purchase of Euro) any TARGET Day; and
(b) for all other purposes, a day (other than a Saturday or Sunday) on which banks are open for general business in London.
“Business Plan” means the 3 year business plan (consisting of an income statement and balance sheet of the Group) dated 7 October 2003 prepared by ABB and as updated in accordance with Clause 20.4 (Liquidity Plan and Business Plan).
3
“Commitment” means:
(a) in relation to an Original Lender, the amount in the Base Currency set opposite its name under the heading “Commitment” in Part 1 of Schedule 1 (The Original Lenders) and the amount of any other Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this Agreement.
“Covenant Compliance Certificate” means a certificate substantially in the form set out in Schedule 11 (Form of Covenant Compliance Certificate).
“Credit Rating” means a senior, unsecured long term debt rating given by S&P or Moody’s.
“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 any notice specified in Clause 23 (Events of Default)) would be an Event of Default.
“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.
“Dutch Borrower” means each Borrower incorporated or established in The Netherlands.
“EBITDA” has the meaning given to such term in Clause 21.1 (Financial Definitions).
“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 Group Company 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 Advance in Euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the period of that Advance) 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,
4
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 Advance.
“Event of Default” means any event or circumstance specified as such in Clause 23 (Events of Default).
“Exemption Regulation” means the Dutch exemption regulation dated 26 June 2002 (Vrijstellingsregeling Wtk 1992) (as amended from time to time) as promulgated in connection with the WTK.
“Existing Credit Facility” means the US$1,500,000,000 revolving credit facility made available pursuant to a multicurrency revolving facilities agreement dated 17 December 2002.
“External Debt” means Indebtedness of any member of the Group (other than Project Finance Indebtedness, Indebtedness in respect of any Securitisation, Indebtedness in respect of cash collateralised loans (entered into for Group fiscal or regulatory purposes) and Indebtedness owed by one Group Company to another Group Company) incurred pursuant to the issuance of any note, bond or other debt security (whether issued to the public or by means of a private placement) or pursuant to the entry into any bank facility but excluding any such Indebtedness raised by a member of the Group locally and solely for financing local operating needs.
“Facility” means the revolving loan facility made available under this Agreement as described in Clause 2.1 (The Facility).
“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 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 the letter dated 27 October 2003 between the Mandated Lead Arrangers and ABB and any letter or letters between the Mandated Lead Arrangers and the Borrowers (or the Facility Agent and the Borrower) setting out any of the fees payable in relation to the Facility.
“Final Maturity Date” means the date falling 3 years from the date of this Agreement.
“Finance Document” means this Agreement, the letter dated 27 October 2003 between the Mandated Lead Arrangers and ABB, any Fee Letter, any Accession Letter, any Resignation Letter, any Security Document and any other document designated as such in writing by the Facility Agent and ABB.
“Finance Party” means any of the Facility Agent, the Mandated Lead Arrangers, the Lenders and any trustee appointed under any Security Document.
5
“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.
“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); or
(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.
“Information Package” means the summary of the transaction dated 14 October 2003 prepared by ABB and the Original Liquidity Plan.
“Interest Period” means, in relation to an Advance, 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).
6
“Lender” means:
(a) any Original Lender; and
(b) any bank which has become a Party as a Lender 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 Advance:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or period of that Advance) 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 Advance and for a period comparable to the Interest Period for that Advance.
“Liquidity Plan” means the most recent liquidity plan for the Group certified without personal liability by 2 duly authorised signatories of ABB, calculated using the same principles used for the Original Liquidity Plan consistently applied.
“Majority Lenders” means a Lender or Lenders whose Commitments aggregate 662/3% or more of the Total Commitments.
“Mandatory Cost” means the percentage rate per annum calculated by the Facility Agent in accordance with Schedule 9 (Mandatory Costs).
“Margin” means, at any time the rate per annum computed in accordance with the table set out in Schedule 4 (The Margin and Utilisation Fee) provided that:
(a) on any day that ABB has Credit Ratings from S&P and Moody’s which are divergent from each other, the applicable rate per annum for such day shall be the average of the rates applicable to the two Credit Ratings;
(b) on any day that only one of S&P or Moody’s assigns a Credit Rating to ABB, the applicable rate per annum for such day shall be the rate per annum for that Credit Rating; and
(c) on any day that neither S&P nor Moody’s assigns a Credit Rating to ABB the applicable rate per annum for such day shall be 225 basis points per annum,
in each case computed in accordance with the table set out in Schedule 4 (The Margin and Utilisation Fee).
“Material Adverse Effect” means a material adverse effect on:
7
(a) the business, operations, property or condition of the Group as a whole;
(b) the ability of the Obligors to perform payment obligations under the Finance Documents or, at any time prior to the Trigger Date, the ability of ABB to comply with its obligations under Clause 21.2 (Financial Condition); or
(c) the validity or enforceability of the Finance Documents.
“Material Subsidiary” means:
(a) those companies listed in Schedule 10 (Material Subsidiaries); and
(b) any Subsidiary that:
(i) is the holding company of a country (and not a region) that, together with its Subsidiaries, has combined third-party revenues or assets (from non-affiliated parties), prepared in accordance with accounting principles generally accepted in the United States, in excess of 5 percent of the consolidated revenues or consolidated total assets of the Group for the most recently completed fiscal year;
(ii) on a non-consolidated basis has combined third-party revenues or assets (from non-affiliated parties), prepared in accordance with accounting principles generally accepted in the United States, in excess of 5 percent of the consolidated revenues or consolidated total assets of the Group for the most recently completed fiscal year; or
(iii) has any notes, bonds, debenture stock, loan stock or other securities outstanding to non-affiliated third parties in respect of which a guarantee, keep-well agreement or other credit support has been provided by ABB;
provided always that for purposes of this definition, the term “revenues” and “assets” shall exclude any revenues or, as the case may be, assets attributable to activities classified by ABB as non-core or as discontinued operations.
“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;
(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.
8
The above rules will only apply to the last Month of any period.
“Moody’s” means Xxxxx’x Investor Services, Inc., or any successor thereto.
“Net Debt” has the meaning given to such term in Clause 21.1 (Financial Definitions).
“New Lender” has the meaning given to such term in Clause 24.1 (Assignments and transfers by the Lenders).
“Obligor” means a Borrower or a Guarantor.
“Obligors’ Agent” has the meaning given to such term in Clause 2.4 (Obligors’ rights and obligations hereunder).
“Obligor Group” means ABB, each Borrower and each Guarantor.
“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, the audited consolidated financial statements of the Group for the financial year ended 31 December 2002; and
(b) in relation to each Original Obligor other than ABB, its audited financial statements for its financial year ended 31 December 2002.
“Original Liquidity Plan” means the liquidity plan of the Group dated 7 October 2003 in the agreed form.
“Original Obligor” means an Original Borrower or an Original Guarantor.
“Outstandings” means the aggregate of the Base Currency Amount from time to time of each of the Advances.
“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 Union relating to European Monetary Union.
“Party” means a party to this Agreement and includes its successors in title, permitted assigns and permitted transferees.
“PMP” means a professional market party (professionele marktpartij) within the meaning of the Exemption Regulation.
“Policy Guidelines” means the Dutch Central Bank’s Policy Guidelines (issued in relation to the Exemption Regulation) dated 10 July 2002 (and as amended from time to time) (beleidsregel kernbegrippen markttoetreding en handhaving Wtk 1992).
“Project Company” means any Subsidiary 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
9
(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:
(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 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.
“Qualifying Lender” has the meaning given to such term in Clause 13.1 (Definitions).
“Quarter Date” has the meaning given to such term in Clause 21.1 (Financial definitions).
“Quotation Day” means, in relation to any period for which an interest rate is to be determined:
(a) (if the currency is Sterling) the first day of that period;
(b) (if the currency is Euro) two TARGET Days before the first day of that period; or
10
(c) (for any other currency) two Business Days (which for these purposes only shall mean a day on which banks are open for general business in London) 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).
“Reference Banks” means, in relation to LIBOR and Mandatory Costs, the principal London offices of Citibank, N.A., Credit Suisse First Boston, London and Dresdner Bank AG and the principal office of Deutsche Bank Luxembourg S.A. and, in relation to EURIBOR, the principal London offices of Citibank, N.A., Credit Suisse First Boston and Dresdner Bank AG and the principal office of Deutsche Bank Luxembourg S.A. 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.
“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 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 33 (Partial invalidity) (or any similar provision in another Finance Document) and that interest at a default rate on overdue amounts may be a penalty and not recoverable.
“Resignation Letter” means a letter substantially in the form set out in Schedule 8 (Form of Resignation Letter).
“Rollover Advance” means one or more Advances:
(a) made or to be made on the same day that a maturing Advance is due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing Advance;
11
(c) in the same currency as the maturing Advance (unless it arose as a result of the operation of Clause 6.2 (Unavailability of a currency)); and
(d) made or to be made to a Borrower for the purpose of refinancing a maturing Advance made to such Borrower.
“S&P” means Standard & Poor’s Ratings Group, a division of The XxXxxx-Xxxx Companies or any successor thereto.
“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.
“Securitisations” means:
(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;
(c) any other local or global securitisation programme from time to time established (including as of the date of this Agreement) by any Group Company,
each as may be modified, supplemented, renewed, substituted, varied or amended, provided that:
(i) the aggregate net proceeds of all such programmes does not at any time exceed $1,200,000,000; and
(ii) the terms of such programme are commercially reasonable involving the securitisation of receivables and for the avoidance of doubt not including whole business securitisation.
“Security” means any mortgage, charge, assignment by way of security, pledge, hypothecation, lien and any other security interest of any kind whatsoever.
“Security Documents” means the Agreed Form Pledges if executed, the Agreed Form Trust Deed if executed and any other document designated as such in writing by the Facility Agent and ABB.
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“Sirius” means Sirius International Försakrings AB (publ).
“Specified Time” means a time determined in accordance with Schedule 6 (Timetables).
“Subsidiary” means a subsidiary within the meaning of section 736 of the Companies Xxx 0000.
“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 Taxes Xxx 0000.
“Total Commitments” means the aggregate Commitments of the Lenders, being $1,000,000,000 as at the date of this Agreement.
“Total Outstandings” means the aggregate from time to time of the Outstandings.
“Transfer Certificate” means a certificate substantially in the form set out in Schedule 5 (Form of Transfer Certificate) or 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.
“Trigger Date” means the date on which either:
(a) the Credit Rating of ABB is investment grade (if at BBB-/Baa3, with stable outlook (or better)) from one of S&P or Xxxxx’x and (if the other agency is not at investment grade) no more than one notch lower from the other (therefore being, for the avoidance of doubt, no lower than BBB- and Ba1 or BB+ and Baa3); or
(b)
(i) the ratio of Net Debt to EBITDA for the most recently ended two consecutive financial quarters was 2.50:1 or lower; and
(ii) the Credit Rating of ABB is investment grade (if at BBB-/Baa3, with stable outlook (or better)) from either S&P or Xxxxx’x.
“Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents.
“Utilisation” means a utilisation of the Facility.
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“Utilisation Date” means the date of a Utilisation, being the date on which an Advance is to be made.
“Utilisation Request” means a notice substantially in the form set out in Part 1 of Schedule 3 (Utilisation Request).
“VAT” means value added tax as provided for in the Value Added Tax Xxx 0000 and any other tax of a similar nature.
“Verifiable PMP” means a PMP whose status as such may be determined on the basis of:
(a) its entry in Dutch public register (including on-line registers available on the internet) as referred to in Clauses 1.e.1 through 1.e.5 of the Exemption Regulation; or
(b) a public register published by a regulator of a country as referred to in Clause 1.e.11 of the Exemption Regulation exercising prudential supervision over the PMP to the extent generally accessible via the internet.
“WTK” means the Dutch Act on the Supervision of Credit Institutions 1992 (Wet toezicht kredietwezen 1992) (as amended from time to time).
1.2 Construction
(a) Any reference in this Agreement to:
(i) the “Facility Agent”, any “Mandated Lead Arranger”, any “Finance Party”, any “Lender”, any “Obligor” the “Obligors’ Agent” or any “Party” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
(ii) “agreed form” is a reference to a document that is initialled by ABB and the Facility Agent on or before the date of this Agreement as being agreed;
(iii) “assets” includes present and future properties, revenues and rights of every description;
(iv) the “European interbank market” means the interbank market for Euro operating in Participating Member States;
(v) 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;
(vi) 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) or two or more of the foregoing;
(vii) 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
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governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
(viii) a “financial year” in relation to ABB, means a period in respect of which it is required to produce annual audited financial statements;
(ix) a provision of law is a reference to that provision as amended or re-enacted; and
(x) unless a contrary indication appears, 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 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 covenant set out in Clause 21.3 (Restriction on Subsidiary Indebtedness), in which case the dollar exchange rate set out in the Financial Times on 1 July 2003 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.
(f) For the avoidance of doubt, if Xxxxx’x or S&P place a Credit Rating on credit watch, that shall not (regardless of outlook) constitute a change in such Credit Rating or be deemed to be no Credit Rating.
(g) Dresdner Kleinwort Xxxxxxxxxxx is a reference to the investment banking division of Dresdner Bank AG.
(h) Barclays Capital is a reference to Barclays Capital, the investment banking division of Barclays Bank PLC.
(i) Any certificate delivered by or on behalf of a Group Company shall be signed on behalf of that Group Company without personal liability in respect of the officers or other persons executing such certificate and “certificate”, “certified” and similar provisions shall be construed accordingly.
1.3 Currency Symbols and Definitions
“$” and “Dollars” denote the lawful currency of the United States of America, “£” and “Sterling” denote the lawful currency of the United Kingdom and “Euro” denotes the
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single currency unit of the European Union as constituted by the Treaty of Rome (as amended).
1.4 Third Party Rights
A person who is not a Party has no right under the Contract (Rights of Third Parties) Xxx 0000 to enforce any term of this Agreement.
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SECTION 2
THE FACILITY
2. THE FACILITY
2.1 The Facility
Subject to the terms of this Agreement, the Lenders make available to the Borrowers a multicurrency revolving credit facility in a maximum aggregate amount of $1,000,000,000.
2.2 Lenders’ rights and obligations
(a) The obligations of each Lender under the Finance Documents are several. Failure by a Lender 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 Lender under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Lender from any of the Borrowers 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.
2.3 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 Advance to any Borrower, in which event such Facility Office shall for the purposes of this Agreement be its Facility Office for that Advance but not otherwise.
(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.
2.4 Obligors’ right and obligations hereunder
(a) Each Obligor (other than ABB) 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 (in this capacity, the “Obligors’ Agent”) 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
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notwithstanding that they may affect such Obligor, without further reference to or the consent of such Obligor and (ii) each Finance Party to give any notice, demand or other communication to such Obligor pursuant to the Finance Documents to ABB on its behalf, and in each case such Obligor shall be bound thereby as though such Obligor 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 the Facility for the general corporate purposes of the Group.
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 Advance, Default is continuing or would result from the proposed Advance; and
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(ii) the representations to be made by ABB pursuant to Clause 19.19 (Repetition) are true in all respects.
(b) An Advance will not be made if it would result in the Base Currency Amount of all Advances exceeding the Total Commitments.
4.3 Conditions relating to Optional Currencies
A currency will constitute an Optional Currency in relation to an Advance 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 Advance provided that there may not at any time be Advances outstanding denominated in more than 5 Optional Currencies.
4.4 Maximum number of Advances
(a) No Borrower may deliver a Utilisation Request if as a result of the proposed Utilisation more than 10 Advances would be outstanding.
(b) Any Advance 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
A Borrower may utilise the Facility by delivery to the Facility Agent of a duly completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request delivered to the Facility Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request) is irrevocable and will not be regarded as having been duly completed unless:
(i) the proposed Utilisation Date is a Business Day within the Availability Period;
(ii) the currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount); and
(iii) the proposed Interest Period complies with Clause 10 (Interest Periods).
(b) Only one Advance may be requested in each Utilisation Request delivered to the Facility Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request).
5.3 Currency and amount
(a) The currency specified in a Utilisation Request delivered to the Facility Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request) must be the Base Currency or an Optional Currency.
(b) The amount of the proposed Advance must be:
(i) if the currency selected is the Base Currency, a minimum of $50,000,000 and an integral multiple of $10,000,000; or
(ii) if the currency selected is Euro, a minimum of Euro50,000,000 and an integral multiple of Euro10,000,000; or
(iii) if the currency selected is Sterling, a minimum amount of £25,000,000 and an integral multiple of £5,000,000; or
(iv) if the currency selected is an Optional Currency (other than Euro or Sterling), in such minimum amount and multiple as the Facility Agent and ABB may agree,
or, in any case, the amount of the Available Facility.
5.4 Lenders’ participation
(a) Subject to the other terms of this Agreement, each Lender shall, on the relevant Utilisation Date, make its participation in each Advance available through its Facility Office.
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(b) Subject to Clause 6.2 (Unavailability of a currency), the amount of each Lender’s participation in each Advance will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Advance.
(c) The Facility Agent shall notify each relevant Lender of the amount, currency and the Base Currency Amount of each Advance at the Specified Time.
6. OPTIONAL CURRENCIES
6.1 Selection of currency
The relevant Borrower shall select the currency of an Advance in a Utilisation Request.
6.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a) the Facility Agent has received notice from a Lender 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 an Advance 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 Advance in the Base Currency (in an amount equal to that Lender’s proportion of the Base Currency Amount or, in respect of a Rollover Advance, an amount equal to that Lender’s proportion of the Base Currency Amount of the maturing Advance that is due to be repaid) and its participation will be treated as a separate Advance 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 Facility Agent’s Spot Rate of Exchange) promptly after they are ascertained.
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT OF ADVANCES
(a) Each Borrower shall repay each Advance made to it on the last day of its Interest Period.
(b) All Advances must be repaid in full on the Final Maturity Date.
8. PREPAYMENT AND CANCELLATION
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 Advance:
(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 Advances made to it on the last day of the Interest Period for each Advance 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, that Borrower shall promptly repay all Advances borrowed by it together with accrued interest and all other amounts accrued under the Finance Documents provided that where such obligations are, or could reasonably be considered to be, material to the interests of the Lenders under the Finance Documents, all Borrowers shall within 15 Business Days of being served with notice by the Facility Agent so to do, repay all Advances, 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
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(ii) the Facility Agent shall, by not less than 15 Business Days’ notice to ABB and having consulted with ABB, cancel the Facility and declare all Advances, 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.
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 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 cancellation under this Clause 8.4 shall reduce rateably the Commitments.
8.5 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 an Advance made to it (but if in part, being an amount that reduces the Base Currency Amount of the Advance by a minimum amount of $25,000,000 and rounded as the Facility Agent may reasonably require).
8.6 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 Advances.
(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 an Advance which ends after ABB has given notice under paragraph (a) above (or, if earlier, the date
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specified by ABB in that notice), each Borrower to which an Advance is outstanding shall repay that Lender’s participation in that Advance.
8.7 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) Unless a contrary indication appears in this Agreement, any part of the Facility which is prepaid may be reborrowed in accordance with the terms of this Agreement.
(d) No Borrower shall repay or prepay all or any part of the Advances or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
(f) If the Facility Agent receives a notice under this Clause 8 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 Advance 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 Advance in Euro, EURIBOR; and
(c) Mandatory Costs.
9.2 Payment of interest
(a) Each Borrower shall pay accrued interest on each Advance 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 1.00 per cent higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted an Advance 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 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, ABB and the relevant Borrowers of the determination of a rate of interest under this Agreement.
10. INTEREST PERIODS
(a) The relevant Borrower may select an Interest Period for an Advance in the Utilisation Request for that Advance.
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(b) Subject to this Clause 10, a Borrower may select an Interest Period of 1, 2, 3 or 6 Months or any other period agreed between the relevant Borrower and the Facility Agent (acting on the instructions of all the Lenders).
(c) An Interest Period for an Advance shall not extend beyond the Final Maturity Date.
(d) Each Advance has one Interest Period only.
11. CHANGES TO THE CALCULATION OF INTEREST
11.1 Absence of quotations
Subject to Clause 11.2 (Market disruption), if LIBOR or 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 an Advance for any Interest Period, then the rate of interest on each Lender’s share of that Advance 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) 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 Advance from whatever source it may reasonably select; and
(iii) the Mandatory Costs, if any, applicable to that Lender’s participation in the Advance.
(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 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 an Advance exceed 50 per cent. of that Advance) that the cost to it or them of obtaining matching deposits in the Relevant Interbank Market would be in excess of LIBOR or, if applicable, EURIBOR.
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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 the Majority Lenders and ABB, be binding on all Parties.
11.4 Break Costs
(a) The relevant 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 an Advance or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Advance 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 commitment fee in the Base Currency computed at the rate of:
(i) at all times prior to the Trigger Date, the lower of 50 per cent. of the Margin from time to time and 0.75 per cent. per annum; and
(ii) at all times on and after the occurrence of the Trigger Date, the lower of 40 per cent. of the applicable Margin from time to time and 0.75 per cent. per annum,
in each case on that Lender’s Available Commitment for the Availability Period.
(b) The accrued commitment fee is payable on the last day of each successive period of three Months which ends during the 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 Utilisation Fee
(a) ABB shall pay to the Facility Agent (for the account of the Lenders pro rata to their portion of Total Outstandings) a utilisation fee in respect of the Total Outstandings calculated using the rate per annum computed in accordance with the table set out in Schedule 4 (The Margin and Utilisation Fee) provided that:
(i) on any day that ABB has Credit Ratings from S&P and Xxxxx’x which are divergent from each other, the applicable rate per annum for such day shall be the average of the rates applicable to the two Credit Ratings;
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(ii) on any day that only one of S&P or Xxxxx’x assigns a Credit Rating to ABB, the applicable rate per annum for such day shall be the rate per annum for that Credit Rating; and
(iii) on any day that neither S&P nor Xxxxx’x assigns a Credit Rating to ABB, the applicable rate per annum for such day shall be 50 basis points per annum for each day upon which Total Outstandings equal or exceed 33 per cent. of the Total Commitments and are less than 66% of the Total Commitments and 75 basis points per annum for each day upon which Total Outstandings equal or exceed 66% of the Total Commitments.
(b) The accrued utilisation fee is payable on the last day of each successive period of three Months commencing from the date of this Agreement.
12.3 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.
12.4 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.
12.5 Other Fees
ABB shall pay to the Mandated Lead Arrangers and/or the Facility Agent such other fees in the amounts and at the times as 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 or Switzerland.
“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:
(a) in respect of a payment by a Borrower incorporated or resident in Switzerland for the purposes of Swiss tax, a Lender which is a bank;
(b) in respect of a payment by a Borrower incorporated in the United States of America, a Lender which is:
(i) created or organised under the laws of the United States of America or of any state (including the District of Columbia) thereof; or
(ii) resident in a jurisdiction having and eligible for the benefit of 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
(iii) 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
(c) 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.
“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).
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(b) In this Clause 13 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 a 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 of this Agreement 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.
(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
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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 materially 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 an Advance 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 (b)(i)(C) 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). The relevant Finance Party shall endeavour, acting in good faith, to obtain, utilise and retain the Tax Credit save that it shall not be obliged to disclose any information relating to its tax or other affairs or any computations in respect thereof.
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 any Party in connection with a Finance Document, that Party 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
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in the interpretation or application of) any law or regulation or (ii) compliance with any law or regulation made after the date of this Agreement.
(b) In this Agreement “Increased Costs” means:
(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 14.1 (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 Mandatory Costs;
(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).
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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 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 28 (Sharing among the Lenders);
(c) funding, or making arrangements to fund, its participation in an Advance 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) an Advance (or part of an Advance) not being prepaid in accordance with a notice of prepayment given by a Borrower.
15.3 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
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(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 Mandatory Costs or a change in the reserve requirements imposed by the European Central Bank after the date of this Agreement including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office (in each case in accordance with the terms hereof) 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 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, but not limited to, legal fees) reasonably and directly incurred by any of them in connection with the negotiation, preparation, 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 of this Agreement.
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17.2 Amendment costs
If (a) ABB requests an amendment, waiver or consent or (b) an amendment is required pursuant to Clause 29.9 (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 23.13 (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 Advances 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 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 of this Agreement and ending on 30 June 2004; and
(ii) each subsequent period of six months starting on 30 June 2004 and ending on the Final Maturity Date,
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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.
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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 jointly and severally:
(a) guarantees to each Finance Party punctual performance by each Borrower of all that Borrower’s obligations under the Finance Documents;
(b) undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any cost, loss or liability suffered by that Finance 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 Finance 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 (whether in respect of the obligations of any 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 each Obligor 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 each Obligor, 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;
(b) the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;
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(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 Guarantors’ 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 or 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
(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
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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) Any term or provision of this Clause 18.9 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.
(b) The obligations and liabilities of each Guarantor (excluding ABB) which is incorporated in Switzerland shall in respect of all present and future conditional and unconditional claims of the Finance 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 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, where specified, each Group Company or each Material Subsidiary) and each other 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.
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 Group Company 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 a party do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement or instrument binding upon it or any Group Company or any of their 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 other Obligor (including, in the case of any Dutch Obligor and if applicable, 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
(b) to make the Finance Documents to which it is a party admissible in evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
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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 a party will be recognised and enforced in:
(a) its jurisdiction of incorporation; and
(b) in relation to any Security Document, the jurisdiction where the assets intended to be the subject of security under any Security Document are situated.
19.7 Insolvency
Neither it nor any Material Subsidiary (excluding Combustion Engineering Inc.) has taken any action nor have any steps been taken or legal proceedings been started against it 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 filings or stamp taxes
Under the law of:
(a) its jurisdiction of incorporation; and
(b) in relation to any Security Document, the jurisdiction where the assets intended to be the subject of security under any Security Document are situated,
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 security granted pursuant to any Security Document, which steps will be taken prior to the first drawdown if required under the provisions of paragraph 2 of Part 1 of Schedule 2 (Conditions Precedent).
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 a Group Company or to which their assets are subject which has had or could reasonably be expected to have a Material Adverse Effect.
19.10 No misleading information
(a) Any factual information provided by it or any of its Subsidiaries for the purposes of the Information 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 has been prepared on the basis of recent historical information and on the basis of assumptions considered in good faith by ABB to be reasonable.
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(c) Nothing has occurred or been omitted from the information provided by any Group Company in relation to the Information Package and no information has been given or withheld that results in the information contained in the Information Package being untrue or misleading in any material respect as at the date of the relevant component of the Information Package.
(d) All written information supplied by a Group Company after the date hereof in connection herewith is considered in good faith by ABB to be true, complete and accurate in all material respects as at the date it was given and is not misleading in any material respect as at such date.
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 present 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 audited consolidated financial statements required to be delivered under Clause 20.1(a) fairly presents in all material respects the financial position of the 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 the Group 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 assumptions considered in good faith by ABB to be reasonable as at the date to which it was drawn up and the Original Liquidity Plan does not omit any information known to ABB 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 assumptions considered in good faith by ABB to be reasonable on the date of delivery hereunder and such Liquidity Plan does not omit any information known to ABB as at such date which would make such projections and forecasts materially misleading.
19.12 No Material Adverse Effect
Since 30 June 2003:
(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 Information 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 the business of Combustion Engineering Inc.
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 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.
19.17 Pensions
As of the last actuarial report, its pension plan is funded to the levels required by applicable local laws.
19.18 Dutch Borrower Regulatory Compliance
The Dutch Borrower represents, warrants and agrees that it has the appropriate exemptive reliefs available pursuant to the Exemption Regulation and that it complies with article 4 of the Exemption Regulation including in particular that:
(a) on the date of this Agreement the Dutch Borrower has verified that each Lender qualifies as a PMP in accordance with the Policy Guidelines; and
(b) if on the date on which a New Lender becomes a party to this Agreement, it is a requirement of Dutch law that it is a PMP and that the Dutch Borrower must verify its PMP status in accordance with the Policy Guidelines, on such date the Dutch Borrower has verified that such New Lender qualifies as a PMP in accordance with the Policy Guidelines.
Each Lender represents and warrants to the Dutch Borrower on the date of this Agreement that it is a PMP and each New Lender to whom a Lender assigns or transfers any or all of its rights under this Agreement (if on the date such assignment or transfer becomes effective it is a requirement under Dutch law that such New Lender is a PMP)
44
will be deemed to have represented and warranted to the Dutch Borrower that on such date it is a PMP.
19.19 Repetition
(a) The representations and warranties in Clause 19.1 (Status) to Clause 19.6 (Governing law and enforcement), 19.9 (No Default), paragraph (d) of Clause 19.10 (No misleading information), paragraphs (c) and (d) of Clause 19.11 (Financial Statements) and Clause 19.13 (Pari passu ranking) 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.
(b) The representation and warranty in paragraph (f) of Clause 19.11 (Financial statements) is deemed to be made by ABB on the date of delivery of each Liquidity Plan in relation to that Liquidity Plan.
(c) The representation and warranty in paragraph (b) of Clause 19.10 (No misleading information) is deemed to be made by ABB on the day each Business Plan is delivered to the Facility Agent pursuant to Clause 20.4 (Liquidity Plan and Business Plan).
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 other 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 within 120 days after the end of each of its financial years in the case of ABB and within 150 days in the case of each other Obligor its statutory unconsolidated annual statements for that financial 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 before the date falling 120 days after the end of each of its financial years, its audited consolidated annual statements.
(c) 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 (except the fourth quarter) its consolidated financial statements for that quarter.
20.2 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 at which those financial statements were drawn up.
45
(b) Each set of financial statements delivered pursuant to Clause 20.1 (Financial statements) shall be prepared using GAAP.
(c) Each set of financial statements of an Obligor delivered pursuant to Clause 20.1 (Financial statements) shall be 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, ABB or the relevant Obligor 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 consolidated 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.
20.3 Covenant Compliance Certificate
(a) ABB shall supply to the Facility Agent, with each set of financial statements delivered by ABB pursuant to paragraph (b) or (c) of Clause 20.1 (Financial Statements), a Covenant Compliance Certificate setting out (in reasonable detail):
(i) computations as to compliance with Clause 21.2 (Financial Condition) and Clause 21.3 (Restriction on Subsidiary Indebtedness) as at the date as at which those financial statements were drawn up; and
(ii) a reconciliation of the available cash as set out in the Liquidity Plan delivered with that Covenant Compliance Certificate to the cash position as set out in the consolidated financial statements delivered with that Covenant Compliance Certificate,
provided that, at any time on and following the Trigger Date, a Covenant Compliance Certificate will only be required to be delivered with each set of financial statements delivered by ABB pursuant to paragraph (b) of Clause 20.1 (Financial Statements) and with each set of financial statements delivered by ABB pursuant to paragraph (c) of Clause 20.1 (Financial Statements) that relate to the end of the second quarter in any financial year).
46
(b) Each Covenant Compliance Certificate shall be signed by two officers of ABB without personal liability.
20.4 Liquidity Plan and Business Plan
(a) ABB shall supply to the Facility Agent (in sufficient copies for all the Lenders) with each Covenant Compliance Certificate delivered prior to the Trigger Date an up to date Liquidity Plan.
(b) ABB shall supply to the Facility Agent (in sufficient copies for all the Lenders), on or prior to 1 December of each financial year ending after 31 December 2003 an updated Business Plan (in respect of financial years ending in 2005 and 2006 for the Business Plan delivered on or prior to 1 December 2004 and in respect of the financial year ending in 2006 for the Business Plan delivered on or prior to 1 December 2005) together with a statement reconciling such updated Business Plan to the most recently delivered Liquidity Plan.
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 it 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 one or more Group Companies and which could reasonably be expected to have a Material Adverse Effect;
(c) promptly, such further information regarding the financial condition, business and operations of any Group Company as any Finance Party (acting through the Facility Agent) may reasonably request; and
(d) promptly upon becoming aware of a material development, details of the progress of the Combustion Engineering Inc Chapter XI filing and any change in the structure of the Group that is material to the interests of the Lenders.
20.6 Notification of default
(a) ABB and 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).
47
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. The Facility Agent shall notify each Website Lender when any document is posted to the Designated Website.
(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
48
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.
20.8 “Know your customer” checks
(a) Each Obligor shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective New Lender) in order for the Facility Agent, such Lender or any prospective New Lender to carry out and be satisfied with the results of all necessary “know your customer” or other checks in relation to any person that it is required to carry out pursuant to the transactions contemplated in the Finance Documents.
(b) Each Lender shall (save as may be prohibited by law) promptly upon the request of the Facility Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself) in order for the Facility Agent to carry out and be satisfied with the results of all necessary “know your customer” or other checks in relation to any person that it is required to carry out pursuant to the transactions contemplated in the Finance Documents.
(c) ABB shall, by not less than 10 Business Days’ written notice to the Facility Agent, notify the Facility Agent (which shall promptly notify the Lenders) of its intention to request that one of its Subsidiaries becomes an Additional Obligor pursuant to Clause 25 (Changes to the Obligors).
(d) Following the giving of any notice pursuant to paragraph (a) above, ABB shall promptly upon the request of the Facility Agent or any Lender supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Facility Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective New Lender) in order for the Facility Agent, such Lender or any prospective New Lender to carry out and be satisfied with the results of all necessary “know your customer” or other checks in relation to any person that it is required to carry out pursuant to the accession of such Subsidiary to this Agreement as an Additional Obligor.
21. FINANCIAL COVENANTS
21.1 Financial definitions
In this Clause:
“Asbestos Trusts” means the trusts established for the benefit of present and future claimants in the proceedings relating to Combustion Engineering Inc. under Chapter XI of the US Bankruptcy Code;
49
“Consolidated Net Worth” means total stockholders’ equity, calculated disregarding changes in total accumulated other comprehensive income/loss after 30 June 2003 onwards, in each case as reflected in ABB’s consolidated statement of changes in stockholders’ equity (part of the consolidated financial statements of ABB) adjusted:-
(a) by excluding the amount of any adjustment in respect of ABB’s shares to be contributed to the Asbestos Trusts and, when recognised as a provision, the amount of any contingent or prospective liability in respect of the obligation of members of the Group (as at the date hereof) to contribute cash to the Asbestos Trusts;
(b) to disregard capital gains and losses from disposals booked or recorded after 30 June 2003 of assets and businesses classified as non-core or discontinued operations as at 30 June 2003 (such as sales of businesses, long term assets, equity investments and including the abandonment/liquidation of businesses);
(c) to exclude changes since 30 June 2003 in market valuation resulting from the bifurcation of embedded derivatives and in the consequent related amortisation of any premium/discount on issuance in respect of the $968,000,000 convertible bonds issued by a member of the Group as well as any changes in the market value of any derivative put in place by the Group to hedge the embedded derivative in the bond;
(d) to disregard impairments and other write offs in respect of goodwill and other intangible assets to the extent the same occur after 30 June 2003;
(e) to disregard movements on deferred tax assets relating to discontinued operations to the extent the same occur after 30 June 2003; and
(f) to exclude the effects of changes in US GAAP or the application thereof effective after 30 June 2003.
“Consolidated Profits Before Interest and Tax” means, in respect of any Relevant Period, the earnings before interest and taxes, as reflected in ABB’s consolidated income statement.
“EBITDA” means, for any Relevant Period, Consolidated Profits Before Interest and Taxes and Minority Interest before any amount attributable to the impairment, write-off or amortisation of any intangible assets and impairment, write-off or depreciation of tangible assets (in each case to the extent that the same occur after 31 December 2002) adjusted to disregard any impact of:
(a) new accounting standards or the application thereof adopted in 2003 or thereafter;
(b) costs relating to ABB’s announced restructuring programme known as the “step change program” up to a maximum aggregate amount of $750,000,000 during the life of the Facility;
(c) restatements of previous quarters;
50
(d) charges or credits in respect of employee share plans and other employee incentive arrangements (including the “management incentive plan”) which are (in each case) in place as at the date hereof;
(e) impairments or write offs relating to marketable securities classified as available for sale and held by group insurance or reinsurance companies; and
(f) gains or losses arising by reasons of disposals (such as the sale of businesses, long term assets, equity investments and including the abandonment/liquidation of businesses) occurring after 30 June 2003.
“Net Debt” means Total Gross Debt less cash available in group treasury operations as disclosed in the Liquidity Plan and the reconciliation to balance sheet cash and equivalents as disclosed in the Covenant Compliance Certificate.
“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 ABB’s consolidated balance sheet as of the last day of the Relevant Period plus, as reported in the latest available Liquidity Plan, the obligation of members of the Group to make cash payments to the Asbestos Trusts plus (without double counting) the aggregate net proceeds of any Securitisation to the extent that the aggregate net proceeds thereof for the Group at any time exceed $650,000,000 (excluding any amount of such cash proceeds that are not freely transferable under applicable law and regulation to the group treasury operations as disclosed in the Covenant Compliance Certificate) on the last day of the Relevant Period excluding the impact of changes in US GAAP or the application thereof effective after 30 June 2003 and further excluding any changes from 30 June 2003 in the market valuation of derivatives embedded in the $968,000,000 convertible bond issued by a member of the Group and the related amortisation of discount on issuance resulting from the bifurcation of the embedded derivatives in such bond.
“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 ABB’s consolidated income statement (excluding items considered as other finance expense, such as, but not limited to any fees, taxes or commissions, foreign exchange gains or losses, gains or losses on marketable securities, gains or losses on derivatives, the effects arising from the bifurcation of the embedded derivatives in respect of the $968,000,000 convertible bond issued by a member of the Group and charges or credits in relation to management incentive plans).
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 (or, after the Trigger Date, each Relevant
51
Period ending on each 30 June and 31 December set out below) shall not be less than the ratio set out below opposite such date.
|
Date |
|
Ratio |
|
|
|
|
|
|
|
31 December 2003 |
|
2.45:1 |
|
|
|
|
|
|
|
31 March 2004 |
|
2.60:1 |
|
|
|
|
|
|
|
30 June 2004 |
|
2.60:1 |
|
|
|
|
|
|
|
30 September 2004 |
|
2.75:1 |
|
|
|
|
|
|
|
31 December 2004 |
|
3.00:1 |
|
|
|
|
|
|
|
31 March 2005 |
|
3.25:1 |
|
|
|
|
|
|
|
30 June 2005, and thereafter |
|
3.50:1 |
|
(b) The ratio of Net Debt to EBITDA for each Relevant Period ended on each Quarter Date specified below (or, after the Trigger Date, each Relevant Period ending on each 30 June and 31 December set out below) shall not be more than the ratio set out below opposite such date.
|
Quarter Date |
|
|
|
|
|
|
|
|
|
31 December 2003 |
|
4.40:1 |
|
|
|
|
|
|
|
31 March 2004 |
|
4.25:1 |
|
|
|
|
|
|
|
30 June 2004 |
|
3.75:1 |
|
|
|
|
|
|
|
30 September 2004 |
|
3.00:1 |
|
|
|
|
|
|
|
31 December 2004 |
|
2.75:1 |
|
|
|
|
|
|
|
31 March 2005, and thereafter |
|
2.50:1 |
|
(c) Consolidated Net Worth shall not, as at any Quarter Date (or, after the Trigger Date, half year of ABB), be less than the relevant amount calculated in accordance with the following formula:
A + B,
where:
A = $3,000,000,000; and
B = in respect of a Quarter Date, 50 per cent. of the Cumulative Consolidated Net Income of the Group for the period from 30 September 2003 until such Quarter Date. For these purposes, “Cumulative Consolidated Net Income” is the aggregate of the consolidated net income of the Group (adjusted to exclude those amounts set out in (a) to (f) of the definition of Consolidated Net Worth) for the fourth quarter of the 2003 financial year of ABB and
52
each completed financial year of ABB ending thereafter plus (if the relevant Quarter Date is not the last day of a financial year of the Group) the cumulative consolidated net income (adjusted as aforesaid) of the Group for the part financial year during which such Quarter Date falls provided that if the consolidated net income (as so adjusted) for any such financial year or the cumulative consolidated net income (as so adjusted) for any such part financial year ending on such Quarter Date is a negative amount, such amount will be deemed to be zero for the purposes of this paragraph (c).
21.3 Restriction on Subsidiary Indebtedness
The aggregate amount of Total Gross Debt (other than:
(a) Project Finance Indebtedness;
(b) Indebtedness owed by one Group Company to another Group Company;
(c) amounts borrowed by a finance company which is a Group Company and which are on-lent, and remain on-lent, to a member of the Obligor Group;
(d) 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’s obligation to repay such amounts;
(e) 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;
(f) Indebtedness relating to Sirius, ABB Export Bank and ABB Credit OY Leases (in each case as at the date of this Agreement);
(g) Indebtedness in respect of bonds and commercial paper issued by members of the Group that are capital market issuers; and
(h) amounts owed to Combustion Engineering Inc. or any trust established in connection with its Chapter XI filing),
of Group Companies which are not members of the Obligor Group shall not at any time after the date of this Agreement exceed $1,000,000,000.
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
53
(b) supply certified copies to the Facility Agent of,
any Authorisation (including, in the case of any Dutch Obligor, any applicable works council advice) required under any law or regulation of its jurisdiction of incorporation to enable it to perform its obligations under the Finance Documents and to ensure the legality, validity, and, subject to the Reservations (as they apply at the date of this Agreement only) enforceability or admissibility in evidence in its jurisdiction of incorporation 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 have a Material Adverse Effect.
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) 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;
(ii) any Security arising by operation of law;
(iii) 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;
(iv) 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; and
(B) the principal amount secured has not been increased in contemplation of, or since the acquisition of that asset by a Group Company;
(C) a Group Company uses all reasonable efforts promptly to discharge such Security within 3 months of the acquisition of that asset by a Group Company and, in any event, such Security is discharged within 6 months of the acquisition of that asset by a Group Company;
(v) 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:
54
(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;
(C) a Group Company uses all reasonable efforts promptly to discharge such Security within 3 months of the acquisition of that asset by a Group Company and, in any event, such Security is discharged within 6 months of the acquisition of that asset by a Group Company;
(vi) any Security arising pursuant to the Securitisations;
(vii) 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 of this Agreement;
(viii) 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 and the conditions referred to in paragraph (iv) or, as the case may be, (v) above continue to be satisfied, mutatis mutandis;
(ix) any Security provided by a Group Company which is an insurance or reinsurance company in the ordinary course of its business;
(x) any Security provided in connection with loans to Group Companies cash collateralised by other members of the Group, and interest rate and currency swaps and other derivative contracts, in the ordinary course of Group treasury activities;
(xi) any Security provided in respect of ABB Credit OY Leases as at the date of this Agreement;
(xii) any Security over any real estate assets pursuant to mortgage financings in a principal amount up to $150,000,000;
(xiii) any Security over or affecting any asset created to facilitate the Disposal of an asset by a Group Company (where such Disposal is permitted under paragraph (b) of Clause 22.4 (Disposals));
(xiv) any Security over or affecting assets having an aggregate market value not in excess of $750,000,000 to secure bonding lines of members of the Group;
55
(xv) any Security provided over the shares in Sirius securing indebtedness in a principal amount of not more than $200,000,000;
(xvi) any Security provided to or for the benefit of the Finance Parties pursuant to the Finance Documents;
(xvii) any Security provided in connection with any real estate-related defeasance structures, including without limitation U.S. tax leases; and
(xviii) any Security to the extent not falling within any of paragraphs (i) - (xvii) (inclusive) above provided that:
(A) the total amount of Indebtedness secured pursuant to this paragraph (xviii) shall at no time exceed $250,000,000; and
(B) Security may not be provided pursuant to this paragraph (xviii) in respect of Indebtedness in excess of $25,000,000 in relation to any single or series of related debt-financing transactions.
22.4 Disposals
(a) Neither ABB nor any Obligor shall (and ABB shall ensure that no other Group Company will), enter into a Disposal.
(b) Paragraph (a) above does not apply to a Disposal:
(i) of any asset, company or business classified as at 30 June 2003 as a non-core activity of ABB or as held for sale/discontinued operations (each a “Non-Core Undertaking”);
(ii) of any asset of a Non-Core Undertaking that is not a core asset of the Group;
(iii) prior to the Trigger Date, of any asset, company or business that is a core asset of the Group (each a “Core Undertaking”) or of any asset of a Core Undertaking:
(A) that when taken with all other such Disposals in the same financial year generates in aggregate net proceeds of not more than $750,000,000; and
(B) where two authorised signatories of ABB have certified in writing to the Lenders that on a historic basis for the most recent Quarter Date prior to such Disposal and looking forward for each Quarter Date during the term of the Facility (calculated in each case on a pro forma basis) such Disposal would not give rise to a breach of Clause 21.2 (Financial Condition),
Provided that any such Disposal that would not be permitted because of the limitation set out in paragraph (A) above may be made if details thereof have been provided to the Lenders and the Majority Lenders have not objected in writing to such Disposal within 30 Business Days;
56
(iv) at any time on or after the Trigger Date of a Core Undertaking or of an asset owned by a Core Undertaking provided that (in the case of a sale of the business or shares of a Core Undertaking or a revenue generating asset of a Core Undertaking) two authorised signatories of ABB have certified in writing to the Lenders that on a historic basis for the most recent Quarter Date prior to such Disposal and looking forward for each Quarter Date falling on 30 June and 31 December during the term of the Facility (calculated in each case on a pro forma basis), such Disposal would not give rise to a breach of Clause 21.2 (Financial condition);
(v) to a Group Company;
(vi) of cash or cash equivalents where such Disposal is not otherwise prohibited under this Agreement;
(vii) made in the ordinary course of business of the disposing Group Company;
(viii) 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;
(ix) of assets which are sold and leased back in circumstances not prohibited by the other terms hereof;
(x) of obsolete assets (not being businesses or shares in a company owning a business) which in the reasonable opinion of a Group Company are not required for the efficient operation of the business of the Group;
(xi) made by way of exchange for assets (not being businesses or shares in a company owning a business) of similar nature and value;
(xii) of receivables pursuant to the Securitisations,
Provided that all Disposals shall be made on arm’s length terms (other than distributions and other intra-group transactions where ABB considers in good faith that the fiscal benefits to the Group to be obtained from such transaction militate against such terms and such transactions would not be materially adverse to the interests of the Lenders hereunder).
(c) Prior to the Trigger Date, any Disposal (not being an intra-Group transaction) having a value in excess of $25,000,000 shall be for a cash consideration of at least 80% of total consideration (or such greater amount or lower percentage as the Majority Lenders may approve in relation to any such Disposal, such approval not to be unreasonably withheld or delayed).
57
22.5 Claims Pari Passu
ABB shall ensure that at all times the claims of the Finance Parties against each Obligor under the Finance Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors save those of such Obligor’s creditors whose claims are mandatorily preferred by law applying to companies generally.
22.6 Mergers and Acquisitions
(a) No Obligor shall enter into any amalgamation, demerger, merger or corporate reconstruction (excluding any Approved Reorganisation or any Disposal permitted under paragraph (b) of Clause 22.4 (Disposals) and save as permitted under Clause 23.7 (Insolvency Proceedings)) save where the Facility Agent is satisfied, acting reasonably, that ABB or the relevant Obligor’s obligations under the Finance Documents will continue to be ABB’s or the relevant Obligor’s legal, valid, binding and (subject to the Reservations) enforceable obligations.
(b) No Obligor shall (and ABB shall ensure that no Group Company shall) acquire any company, business or undertaking or form or enter into any joint venture, partnership, consortium or other like arrangement (any such joint venture, partnership, consortium or other like arrangement being hereafter a “JV”).
(c) Paragraph (b) above does not apply:
(i) prior to the Trigger Date, to any acquisition of an undertaking (by way of acquisition of shares or otherwise) or to any JV:
(A) that carries on a business currently conducted by a member of the Group or which is reasonably ancillary to any such business; and
(B)
(1) where the aggregate consideration (or, in the case of a JV, investment by Group Companies) is not in excess of $3,500,000; or
(2) where the aggregate consideration (or, in the case of a JV, investment by Group Companies), when taken with all other such acquisitions or investments in the same financial year (other than those in (i)(B)(1) above), is not in excess of $750,000,000 (provided that all or part of such amount may be carried forward from any applicable financial year to the following financial year where a transaction signs in the applicable financial year and closes in the first 3 months of the following financial year); and
(C) where two authorised signatories of ABB have certified in writing to the Lenders that on a historic basis for the most recent Quarter Date prior to such acquisition or other transaction and looking forward to each Quarter Date for the term of the Facility on a pro forma basis, such acquisition would not give rise to a breach of Clause 21.2 (Financial condition),
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Provided that any acquisition or other transaction that would not be permitted because of the limitation set out in paragraph (B) above may be made if details thereof have been provided to the Lenders and the Majority Lenders have not objected in writing to such acquisition or other transaction within 30 Business Days;
(ii) at any time after the Trigger Date, in circumstances where two authorised signatories of ABB have certified in writing to the Lenders that on a historic basis for the most recent Quarter Date prior to such acquisition or other transaction and looking forward for each Date falling on 30 June and 31 December during the term of the Facility on a pro forma basis, such acquisition or other transaction would not give rise to a breach of Clause 21.2 (Financial Condition);
(iii) to a solvent reorganisation not affecting the Obligors or any security contemplated or granted pursuant to the Agreed Form Pledges;
(iv) to JVs entered into by Group Companies provided the formation of such JV is pursuant to the core business of the Group and consistent with the ordinary business practices of the Group as at the date hereof.
22.7 Change of business
ABB shall procure that no change is made to the business of the Group which would result in the core business of the Group, taken as a whole, being something other than the business of power and automation technology.
22.8 Insurance
Each Obligor shall (and ABB shall ensure that each Group Company 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.
22.9 Prepayment of Group Facilities
Prior to the Trigger Date, ABB shall not (and shall ensure that no other Group Company will) voluntarily prepay, purchase or redeem any bonds or other capital markets instruments issued by a Group Company having in each case a maturity date falling after the Final Maturity Date provided that any Group Company may prepay any bonds or other capital market instruments out of the net cash proceeds of any capital markets instrument issued after the date of this Agreement with a maturity date not earlier than the bonds or capital markets instruments being prepaid.
22.10 Restrictions on making loans and guarantees
(a) ABB shall not (and shall ensure that no other Group Company shall) after the date of this Agreement make any loans or grant any credit or other financial accommodation (but excluding for the avoidance of doubt its own bank deposits) to or for the benefit of any person or grant any guarantee or indemnity in respect of the financial obligations or liabilities of any other person.
(b) Paragraph (a) above does not apply to:
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(i) trade credit or indemnities granted in the ordinary course of business and upon terms usual for such trade (including vendor financing in an aggregate amount in respect of the Group not materially greater than the amount outstanding as at the date of this Agreement);
(ii) any loan, credit or other financial accommodation between members of the Group;
(iii) loans to and other credit or financial accommodation to or for the benefit of Project Companies in an aggregate amount in respect of the Group not materially greater than the amount outstanding as at the date of this Agreement;
(iv) any loan, credit or other financial accommodation involving transactions with or for the benefit of employees, officers or directors of Group Companies relating to the provision of motor vehicles;
(v) any other loan, credit or other financial accommodation provided the aggregate amount of such transactions at any time does not exceed $25,000,000;
(vi) any loan, credit, other financial accommodation, guarantee or indemnity to facilitate the Disposal of the Oil, Gas & Petrochemical Division;
(vii) prior to the Trigger Date, any loan, credit, other financial accommodation, guarantee or indemnity to facilitate Disposals permitted under paragraph (b) of Clause 22.4 (Disposals) up to an aggregate amount not exceeding $150,000,000;
(viii) at any time on and after the Trigger Date, any loan, credit, other financial accommodation, guarantee or indemnity to facilitate Disposals permitted under paragraph (b) of Clause 22.4 (Disposals); and
(ix) guarantees or indemnities in respect of the obligations or liabilities of other members of the Group (where the relevant obligation or liability of such other member of the Group is permitted under this Agreement).
22.11 Material Subsidiaries
ABB shall maintain 100 per cent. (direct or indirect) ownership of all Material Subsidiaries subject to any Disposals permitted under paragraph (b) of Clause 22.4 (Disposals) and save as permitted under Clauses 22.6 (Mergers and Acquisitions) and 23.7 (Insolvency Proceedings).
22.12 Obligor Coverage
ABB shall ensure that if External Debt is incurred at any time on or after the date of this Agreement by a Group Company that is not an Obligor in circumstances where the proceeds of such External Debt are not on-lent to the Group through an Obligor or where the External Debt is incurred pursuant to a guarantee given by a Group Company that is not an Obligor, then, in each case, the Group Company that has incurred such External Debt or the Group Company that has on-lent such External Debt into the Group shall by
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the date falling no later than the date such External Debt is incurred, accede to this Agreement as an Additional Obligor pursuant to Clause 25 (Changes to the Obligors).
23. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clauses 23.1 (Non-payment) to 23.12 (Material Adverse Effect) inclusive 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, and in the currency, in which it is expressed to be payable unless:
(a) payment is made within 3 Business Days of its due date; and
(b) its failure to pay is due solely to administrative error or technical delays in the transmission of funds.
23.2 Financial Covenants
Any requirement of Clause 21 (Financial Covenants) is not satisfied.
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, 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 19.19 (Repetition)) to be made by ABB or any other 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 provided that no Event of Default shall occur under this Clause 23.4 by reason of the representation set out in Clause 19.18(a) or 19.18(b) (Dutch Borrower Regulatory Compliance) being untrue (but without prejudice to the rights of the Finance Parties under this Agreement other than under this Clause 23.4 or under applicable law and without prejudice to any other Event of Default which may occur by reason of any representation set out in Clause 19.18(a) or 19.18(b) (Dutch Borrower Regulatory Compliance) being untrue in any material respect or otherwise by reason of a Lender not being a PMP).
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).
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(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 Obligor or any Material Subsidiary is unable or admits in writing an 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).
(c) A moratorium is declared in respect of any indebtedness of any Obligor or any Material Subsidiary.
(d) This Clause 23.6 shall not apply in respect of Combustion Engineering Inc.
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 Obligor or any Material Subsidiary (excluding Combustion Engineering Inc) other than a solvent liquidation or reorganisation of any Material Subsidiary;
(b) a composition, assignment or arrangement with any creditor of any Obligor or any Material Subsidiary;
(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 an Obligor)), receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of any Obligor or Material Subsidiary or any of its assets (having an aggregate value of at least $50,000,000); or
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(d) enforcement of any Security over any assets (having an aggregate value of at least $50,000,000) of any Material Subsidiary 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 Combustion Engineering Inc.
23.8 Repudiation
ABB or an Obligor repudiates a Finance Document or evidences in writing an intention to repudiate a Finance Document.
23.9 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.
23.10 Cessation of business
The Group, taken as a whole, ceases or threatens to cease to carry out its core business.
23.11 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 Combustion Engineering Inc, which could reasonably be expected to give rise to a Material Adverse Effect.
23.12 Material Adverse Effect
Any event or circumstance occurs which has, or is reasonably likely to have, a Material Adverse Effect.
23.13 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;
(b) declare that all or part of the Advances, together with accrued interest, and all other amounts accrued 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 Advances 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 any or all of its rights, authorities, remedies and powers under or pursuant to any of the Finance Documents and in accordance with their terms.
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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 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) The consent of ABB is required for an assignment or transfer by a Lender, unless the assignment or transfer is to another Lender or an Affiliate of a Lender or unless an Event of Default has occurred and is continuing.
(b) The consent of ABB to an assignment or transfer must not to be unreasonably withheld or delayed. ABB will be deemed to have given its consent within 10 Business Days of receipt of a request for such consent unless expressly refused by ABB within that time.
(c) Nothing in this Agreement shall prevent any Lender from assigning or pledging all or any part of its rights or interests under this Agreement to any central bank or any supranational bank as security for its borrowings from that central bank or supranational bank, provided that such assignment or pledge does not involve a release of such Lender from any of its obligations under this Agreement.
(d) An assignment or transfer shall be in respect of a Commitment of at least $10,000,000 or, if less, the whole of the Commitment of the relevant assignor or transferor.
(e) An assignment will only be effective on:
(i) 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; and
(ii) performance by the Facility Agent of all “know your customer” or other checks relating to any person that it is required to carry out in relation to such assignment to a New Lender, the completion of which the Facility Agent shall promptly notify to the Existing Lender and the New Lender.
(f) A transfer will only be effective if the procedure set out in Clause 24.5 (Procedure for transfer) is complied with and, unless an Event of Default has occurred and is continuing, if the New Lender is a Qualifying Lender.
(g) If:
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(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.
(h) For so long as it is a requirement under Dutch law at the time of an assignment or transfer by way of novation that the New Lender qualifies as a PMP, a Lender may only assign or transfer by way of novation all or any of its rights, benefits and obligations hereunder to a New Lender if and to the extent that such new Lender qualifies as a PMP.
(i) For so long as it is a requirement of Dutch law that each Lender is a PMP and that the Dutch Borrower must verify the PMP status of a New Lender, a proposed New Lender which is not a Verifiable PMP shall provide the Dutch Borrower, through the Facility Agent, with information in respect of itself reasonably requested by the Dutch Borrower with a view to enabling the Dutch Borrower to verify its PMP status at least ten Business Days prior to the proposed Transfer Date or the proposed date of assignment in relation to any assignment or transfer pursuant to which it would become a New Lender hereunder.
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 or any other documents;
(ii) the financial condition of ABB or any Obligor;
(iii) the performance and observance by ABB or 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.
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(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 ABB and 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 ABB and 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 ABB or 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 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) The Facility Agent shall only be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender upon its completion of all “know your customer” or other checks relating to any person that it is required to carry out in relation to the transfer to such New Lender.
(c) 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 each of ABB, the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another shall be cancelled (being the “Discharged Rights and Obligations”);
(ii) each of ABB, 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 ABB, that
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Obligor and the New Lender have assumed and/or acquired the same in place of ABB, that Obligor and the Existing Lender;
(iii) the Facility Agent, the Mandated Lead Arrangers, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves 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 Arrangers and the Existing Lender shall each be released from further obligations to each other under this Agreement; and
(iv) the New Lender shall become a Party as a “Lender”.
24.6 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
(a) 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;
(b) 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
(c) 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 (a) and (b) above, the person to whom the information is to be given has entered into a confidentiality undertaking unless such person is any central bank or supranational bank in which case no confidentiality undertaking will be required.
Notwithstanding any of the provisions of the Finance Documents, the Obligors and the Finance Parties hereby agree that each Party and each employee, representative or other agent of each Party may disclose to any and all persons, without limitation of any kind, the “tax structure” and “tax treatment” (in each case within the meaning of the U.S. Treasury Regulation Section 1.6011-4) of the Facility and any materials of any kind (including opinions or other tax analyses) that are provided to any of the foregoing relating to such tax structure and tax treatment.
25. CHANGES TO THE OBLIGORS
25.1 Assignments and transfer by Obligors
Neither ABB nor any Obligor may assign any of its rights or transfer any of its rights or obligations under the Finance Documents.
25.2 Additional Borrowers
(a) Subject to compliance with the provisions of paragraph (c) and (d) of Clause 20.8 (Know Your Customer Checks), ABB may request by written notice that
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any of its wholly-owned Subsidiaries become an Additional Borrower. That Subsidiary shall become an Additional Borrower if:
(i) the Subsidiary is incorporated in an Agreed Jurisdiction or all the Lenders approve the addition of that Subsidiary;
(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 Subsidiary becoming an Additional Borrower;
(iv) the Facility Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Additional Obligor Conditions Precedent) in relation to that Additional Borrower, each in form and substance reasonably satisfactory to the Facility Agent; and
(v) (unless it would result in the contravention of any applicable law, taking into account the jurisdiction of incorporation of the relevant Subsidiary and subject to sub-paragraph (b) of Clause 25.4 (Additional Guarantors)), the Subsidiary, 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).
(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 Part II of Schedule 2 (Additional Obligor 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) the Majority Lenders approve the resignation of that Borrower;
(ii) no Default would result from the acceptance of the Resignation Letter (and ABB has confirmed this to be the case); and
(iii) the relevant Borrower is under no actual or contingent obligations under any Finance Documents,
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) Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 20.8 (Know Your Customer Checks), ABB may request that any of its wholly-
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owned Subsidiaries become an Additional Guarantor. That Subsidiary shall become an Additional Guarantor if:
(i) the Subsidiary is incorporated in an Agreed Jurisdiction, such accession is pursuant to Clause 22.12 (Obligor Coverage) or all the Lenders approve the addition of that Subsidiary;
(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 Subsidiary becoming an Additional Guarantor; and
(iv) the Facility Agent has received all of the documents and other evidence listed in Part II of Schedule 2 (Additional Obligor 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 Subsidiary 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 Subsidiary 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 Part II of Schedule 2 (Additional Obligor Conditions Precedent).
25.5 Repetition of Representation
Delivery of an Accession Letter constitutes confirmation by the relevant Subsidiary 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 19.19 (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:
(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.
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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 of the Mandated Lead Arrangers and the Lenders appoints the Facility Agent to act as its agent under and in connection with the Finance Documents.
(b) Each of the Mandated Lead Arrangers and the Lenders 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) 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 Lenders.
(c) The Facility Agent shall promptly notify the Lenders of any Default arising under Clause 23.1 (Non-payment).
(d) 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 a Mandated Lead Arranger as a trustee or fiduciary of any other person.
(b) Neither the Facility Agent nor any of 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.
26.5 Business with the Group
The Facility Agent and each Mandated Lead Arranger may accept deposits from, lend money to and generally engage in any kind of banking or other business with any of the Group Companies.
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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)); and
(ii) any right, power, authority or discretion vested in any Party or the Majority Lenders has not been exercised.
(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.
26.7 Majority Lenders’ instructions
(a) Unless a contrary indication appears in a Finance Document, the Facility Agent shall (a) act in accordance with any instructions given to it by the Majority Lenders (or, if so instructed by the Majority Lenders, refrain from acting or exercising any right, power, authority or discretion vested in it as Facility Agent) and (b) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with such 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.
(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.
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26.8 Responsibility for documentation
Neither the Facility Agent nor any of the Mandated Lead Arrangers:
(a) is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by the Facility Agent, a Mandated Lead Arranger, ABB, any Obligor or any other person given in or in connection with any Finance Document or the Information Memorandum; or
(b) is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Finance Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Finance Document.
26.9 Exclusion of liability
(a) Without limiting paragraph (b) below, the Facility Agent will not be liable for any action taken by it under or in connection with any Finance Document, unless directly caused by its negligence, wilful default or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or agent of the Facility Agent in respect of any claim it might have against the Facility Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Facility Agent may rely on this Clause.
(c) The Facility Agent will not (absent negligence, wilful default or wilful misconduct directly giving rise to such liability) be liable for any delay (or any related consequences) in crediting an account with an amount 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) Nothing in this Agreement shall oblige the Facility Agent or the Mandated Lead Arranger to carry out any “know your customer” or other checks in relation to any person on behalf of any Lender and each Lender confirms to the Facility Agent and the Mandated Lead Arrangers that it is solely responsible for any such checks it is required to carry out and that it may not rely on any statement in relation to such checks made by the Facility Agent or the Mandated Lead Arrangers.
26.10 Lenders’ indemnity to the Facility Agent
The Lenders shall (in proportion to their Commitments or, if the Total Commitments are then zero, to their Commitments immediately prior to their reduction to zero) severally indemnify the Facility Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Facility Agent (otherwise than by reason of the Facility Agent’s negligence or wilful misconduct) in acting as Facility Agent under the Finance Documents (unless the Facility Agent has been reimbursed by ABB or the Obligors pursuant to a Finance Document).
72
26.11 Resignation of the Facility Agent
(a) The Facility Agent may resign and appoint one of its Affiliates as successor by giving notice to the Lenders and ABB provided that such successor shall act out of an office in London.
(b) Alternatively the Facility Agent may resign by giving notice to the Lenders and ABB, in which case the Majority Lenders may appoint a successor Facility Agent which will act out of an office in London.
(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 resigning Facility Agent may appoint a successor Facility Agent which will act out of an office in London.
(d) A successor Facility Agent may only be appointed with the prior consent of ABB (such consent not to be unreasonably withheld or delayed).
(e) 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.
(f) Such Facility Agent’s resignation notice shall only take effect upon the appointment of a successor as contemplated in paragraphs (b) and (c) above.
(g) 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.
(h) After consultation with ABB, 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, the Facility Agent shall be regarded as acting through its agency 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, it may be treated as confidential to that division or department and the Facility Agent shall not be deemed to have notice of it.
(c) Notwithstanding any other 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
73
information if the disclosure would or might in its reasonable opinion constitute a breach of any law or 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 5 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 Mandatory Costs.
26.14 Credit appraisal by the Lenders
Without affecting the responsibility of each of ABB and the Obligors for information supplied by it or on its behalf in connection with any Finance Document, each Lender confirms to the Facility Agent and each Mandated Lead Arranger 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:
(a) the financial condition, status and nature of each Group Company;
(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document and any other agreement, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Finance Document;
(c) whether that Lender 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 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
(d) the adequacy, accuracy and/or completeness of the Information Memorandum and any other information provided by the Facility Agent, any other Party or by any other person under or in connection with any Finance Document, a Mandated Lead Arranger 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.
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 ABB) appoint another Lender or an Affiliate of a Lender to replace that Reference Bank.
74
27. 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.
28. SHARING AMONG THE LENDERS
28.1 Payments to Lenders
If a Lender (a “Recovering Lender”) receives or recovers any amount from ABB or an Obligor other than in accordance with Clause 29 (Payment mechanics) and applies that amount to a payment due under the Finance Documents then:
(a) the Recovering Lender shall, within 3 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 Lender would have been paid had the receipt or recovery been received or made by the Facility Agent and distributed in accordance with Clause 29 (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 Lender 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 Lender as its share of any payment to be made, in accordance with Clause 29.5 (Partial payments).
28.2 Redistribution of payments
The Facility Agent shall treat the Sharing Payment as if it had been paid by ABB or the relevant Obligor (as the case may be) and distribute it between the Finance Parties (other than the Recovering Lender) in accordance with Clause 29.5 (Partial payments).
28.3 Recovering Lender’s rights
(a) On a distribution by the Facility Agent under Clause 28.2 (Redistribution of payments), the Recovering Lender will be subrogated to the rights of the Finance Parties which have shared in the redistribution.
(b) If and to the extent that the Recovering Lender is not able to rely on its rights under paragraph (a) above, ABB or the relevant Obligor (as the case may be) shall be liable to the Recovering Lender for a debt equal to the Sharing Payment which is immediately due and payable.
75
28.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering Lender becomes repayable and is repaid by that Recovering Lender, then:
(a) each Lender which has received a share of the relevant Sharing Payment pursuant to Clause 28.2 (Redistribution of payments) shall, upon request of the Facility Agent, pay to the Facility Agent for the account of that Recovering Lender an amount equal to its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Lender for its proportion of any interest on the Sharing Payment which that Recovering Lender is required to pay); and
(b) that Recovering Lender’s rights of subrogation in respect of any reimbursement shall be cancelled and ABB or the relevant Obligor (as the case may be) will be liable to the reimbursing Lender for the amount so reimbursed.
28.5 Exceptions
(a) This Clause 28 shall not apply to the extent that the Recovering Lender would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against ABB or the relevant Obligor (as the case may be).
(b) A Recovering Lender is not obliged to share with any other Lender any amount which the Recovering Lender has received or recovered as a result of taking legal or arbitration proceedings, if:
(i) it notified the other Lenders of the legal or arbitration proceedings; and
(ii) the other Lender had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice or did not take separate legal or arbitration proceedings.
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SECTION 11
ADMINISTRATION
29. PAYMENT MECHANICS
29.1 Payments to the Facility Agent
(a) On each date on which ABB, an Obligor or a Lender is required to make a payment under a Finance Document, ABB, such Obligor or, as the case may be, such 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.
29.2 Distributions by the Facility Agent
Each payment received by the Facility Agent under the Finance Documents for another Party shall, subject to Clause 29.3 (Distributions to the Obligors) and Clause 29.4 (Clawback) 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 5 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, Stockholm or London).
29.3 Distributions to the Obligors
The Facility Agent may (with the consent of ABB or the relevant Obligor (as the case may be) or in accordance with Clause 30 (Set-off)) apply any amount received by it for ABB or that Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from ABB or that Obligor (as the case may be) under the Finance Documents or in or towards purchase of any amount of any currency to be so applied.
29.4 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 absolute satisfaction that it has actually received that sum (and the Facility Agent shall make such due enquiry as a diligent agent would make in so establishing).
(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
77
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.
(c) In the event that a Lender fails to make its participation in an Advance available to the Facility Agent (as defined in Clause 29.1 (Payments to the Facility Agent)) in accordance with the terms of this Agreement, such Lender hereby indemnifies the Facility Agent on demand against all costs, losses and expenses that the Facility Agent may incur as a result of such failure (including, without limitation, where the Facility Agent, at its sole option, makes arrangements to make available to the relevant Borrower an amount equal to said participation).
(d) For the purposes of paragraph (c) of this Clause 29.4, if a Lender makes its participation available to the Facility Agent after 3.00 p.m. (London time) on the due date, such participation shall be deemed to have been made available on the Business Day immediately succeeding the said due date.
29.5 Partial payments
(a) If the Facility Agent receives a payment that is insufficient to discharge all the amounts then due and payable by ABB or the Obligors under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of the Obligors 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 under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest 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 ABB or any Obligor.
29.6 No set-off by Obligors
All payments to be made by ABB or the Obligors under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
29.7 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).
78
(b) During any extension of the due date for payment of any principal or an Unpaid Sum under this Agreement interest is payable on the principal at the rate payable on the original due date.
29.8 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 ABB or the Obligors under any Finance Document.
(b) A repayment of an Advance or Unpaid Sum or a part of an Advance or Unpaid Sum shall be made in the currency in which that Advance 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.
(e) Any amount expressed to be payable in a currency other than the Base Currency shall be paid in that other currency.
29.9 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 ABB); 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 ABB) 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.
30. 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 ABB or 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 ABB or that Obligor (as the case may be), regardless of the place of payment, booking branch or currency of
79
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.
31. NOTICES
31.1 Communications in writing
(a) 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 or letter.
(b) With the consent of the relevant Lender, the Facility Agent may serve notices and other information on a Lender by way of electronic mail.
31.2 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 II 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 31.2(b);
(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 31.2(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 31.2(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: x00 00 0000 0000
80
Fax: + 44 20 7458 8204 / x00 00 0000 0000
(ii) ABB Capital B.V., Zurich Branch
Xxxxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Attn: Group Treasurer
Fax: x00 0 000 0000
Copy: Legal Department
Fax: + 41 43 317 7992
(iii) ABB Ltd and ABB Asea Xxxxx Boveri Ltd
Xxxxxxxxxxxxxxxx 00
XX-0000 Xxxxxx
Xxxxxxxxxxx
Attn: Deputy CFO
Fax: + 41 43 317 3929
Copy: Legal Department
Fax: + 41 43 317 7992
31.3 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 5 (in the case of domestic mail) or 10 (in the case of air mail) 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 electronic mail, when received.
and, if a particular department or officer is specified as part of its address details provided under Clause 31.2 (Addresses), if addressed to that department or officer, provided that if receipt is on a day that is not a working day in the country of receipt or is at a time outside normal business hours, such communication shall be effective on the next succeeding working day.
(b) Any communication or document to be made or delivered to the Facility Agent will be effective only when actually received by the Facility Agent and then only if it is expressly marked for the attention of the department or officer identified in Clause 31.2 (Addresses) (or any substitute department or officer as the Facility Agent shall specify for this purpose).
81
(c) All notices from or to ABB or an Obligor shall be sent through the Facility Agent.
31.4 Notification of address and fax number
Promptly upon receipt of notification of an address, fax number or change of address or fax number pursuant to Clause 31.2 (Addresses) or changing its own address or fax number, the Facility Agent shall notify the other Parties.
31.5 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.
32. CALCULATIONS AND CERTIFICATES
32.1 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.
32.2 Certificates and Determinations
Except where otherwise indicated, 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.
32.3 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.
33. 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.
34. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any Finance Party, 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
82
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.
35. AMENDMENTS AND WAIVERS
35.1 Required consents
(a) Subject to Clause 35.2 (Exceptions) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and ABB and any such amendment or waiver will be binding on all Parties.
(b) The Facility Agent may effect (and is hereby so authorised by each Finance Party), on behalf of any Finance Party, any amendment or waiver permitted by this Clause.
35.2 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 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 2.2 (Lenders’ rights and obligations), Clause 4.1 (Initial Conditions Precedent), Clause 24 (Changes to the Lenders), Clause 25 (Changes to the Obligors), Clause 28 (Sharing among the Lenders) or this Clause 35;
(vii) any change to the Obligors other than in accordance with Clause 25 (Changes to the Obligors); or
(viii) the nature or scope of the property secured under the Agreed Form Pledges (if executed) or the manner in which the proceeds of enforcement of such 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 or any Mandated Lead Arranger may not be effected without the consent of the Facility Agent or such Mandated Lead Arranger.
36. 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
37. GOVERNING LAW
This Agreement is governed by English law.
38. ENFORCEMENT
(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 38 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 (“Proceedings”) in any other courts with jurisdiction.
(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.
(e) Service of Process
ABB 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 Limited, at 00 Xxxxxxxxxxx, Xxxxxx, XX0X 0XX or, if different, its registered office, with a copy to ABB. If the appointment of the person mentioned in this Clause 38(e) 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.
84
SCHEDULE 1
THE ORIGINAL PARTIES
Part I
The Original Lenders
|
Name of Lender |
|
Commitment ($) |
|
|
|
|
|
|
|
Barclays Bank PLC |
|
70,833,333 |
|
|
|
|
|
|
|
Bayerische Hypo-und Vereinsbank AG |
|
70,833,333 |
|
|
|
|
|
|
|
BNP Paribas SA |
|
70,833,333 |
|
|
|
|
|
|
|
Citibank, N.A. |
|
70,833,334 |
|
|
|
|
|
|
|
Commerzbank Aktiengesellschaft |
|
70,833,333 |
|
|
|
|
|
|
|
Credit Suisse First Boston |
|
70,833,334 |
|
|
|
|
|
|
|
Deutsche Bank Luxembourg S.A. |
|
70,833,334 |
|
|
|
|
|
|
|
Dresdner Bank Luxembourg S.A. |
|
70,833,334 |
|
|
|
|
|
|
|
HSBC Bank plc |
|
70,833,333 |
|
|
|
|
|
|
|
Nordea Bank Sweden AB (publ) |
|
70,833,333 |
|
|
|
|
|
|
|
Skandinaviska Enskilda Xxxxxx XX (publ) |
|
70,833,333 |
|
|
|
|
|
|
|
Svenska Handelsbanken AB (publ) |
|
70,833,333 |
|
|
|
|
|
|
|
Banco Bilbao Vizcaya Argentaria S.A. |
|
25,000,000 |
|
|
|
|
|
|
|
CDC IXIS |
|
25,000,000 |
|
|
|
|
|
|
|
Den norske Bank ASA |
|
25,000,000 |
|
|
|
|
|
|
|
ING Belgium NV |
|
25,000,000 |
|
|
|
|
|
|
|
KBC Bank NV |
|
25,000,000 |
|
|
|
|
|
|
|
Saudi American Bank |
|
25,000,000 |
|
|
|
|
|
|
|
Total |
|
1,000,000,000 |
|
85
Part II
The Original Obligors
|
Name of Borrower |
|
Address |
|
Jurisdiction
of |
|
ABB Capital B.V. |
|
Burgemeester
Haspelslaan 65, 5/F |
|
Netherlands |
|
|
|
|
|
|
|
ABB Asea Xxxxx Boveri Ltd |
|
Xxxxxxxxxxxxxxxx
00 |
|
Switzerland |
|
Name of Guarantor |
|
Address |
|
Jurisdiction
of |
|
ABB Capital B.V. |
|
Burgemeester
Haspelslaan 65, 5/F |
|
Netherlands |
|
|
|
|
|
|
|
ABB Asea Xxxxx Boveri Ltd |
|
Xxxxxxxxxxxxxxxx
00 |
|
Switzerland |
86
|
|
|
Attention:Deputy
CFO |
|
|
|
|
|
|
|
|
|
|
Xxxxxxxxxxxxxxxx
00 |
|
Switzerland |
87
SCHEDULE 2
CONDITIONS PRECEDENT
Part I
Conditions Precedent to initial Utilisation
1. Corporate Documents
(a) A copy of the constitutional documents of each Obligor.
(b) A copy of a resolution of the board of directors of each Obligor (if applicable) or, in the case of the Dutch Obligors, a copy of a resolution of the board of managing directors (directie) or, in the case of ABB, a copy of an excerpt of the minutes of the board of directors of ABB:
(i) approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
(c) A copy of the Shareholders resolutions of the Dutch Obligor in form and substance reasonably satisfactory to the Facility Agent.
(d) A copy of a shareholders resolution of ABB Asea Xxxxx Boveri Ltd.
(e) A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.
(f) A certificate of each Obligor (signed without personal liability by an authorised signatory of each Obligor) confirming that borrowing or guaranteeing, as appropriate, the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on that relevant Obligor to be exceeded.
(g) A certificate of an authorised signatory of the relevant Obligor, certifying without personal liability that each copy document relating to it specified in paragraph 1 (a) - (f) of this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
(h) The group structure chart signed for the purposes of identification by an authorised signatory (without personal liability) of the Group.
2. Agreed Form Security Documents
If the sale of the Oil, Gas & Petrochemical Division (Upstream) has not completed:
88
(a) a copy of each of the Agreed Form Pledges and the Agreed Form Trust Deed duly executed by each relevant Obligor;
(b) a copy of the constitutional documents of each Group Company entering into an Agreed Form Pledge;
(c) a copy of a resolution of the board of directors of each Group Company entering into an Agreed Form Pledge and/or the Agreed Form Trust Deed:
(i) approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party;
(d) a copy of a shareholder’s resolution of ABB Holding AG;
(e) a specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above;
(f) a certificate of an authorised signatory of the relevant Group Company certifying without personal liability that each copy document relating to it specified in paragraph 2(b)-(e) of this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement;
(g) a legal opinion of Xxxxxxxx Chance LLP, New York, US counsel to the Mandated Lead Arrangers, substantially in the form distributed to the Original Lenders prior to signing this Agreement;
(h) a legal opinion of Wikborg, Rein & Co, Norwegian counsel to the Mandated Lead Arrangers, substantially in the form distributed to the Original Lenders prior to signing this Agreement;
(i) a legal opinion of Xxxxx & XxXxxxxx, Swiss counsel to the Mandated Lead Arrangers, substantially in the form distributed to the Original Lenders prior to signing this Agreement;
(j) with respect to a pledgor in respect of a security interest granted in the shares of a Group Company incorporated in the United States of America, all share certificates, stock transfer forms duly executed in blank in relation to the shares, a copy of the register of members and constitutional documents of each member of the Group whose shares are expressed to be the subject to Security;
(k) With respect to the pledgor in respect of a security interest granted in the shares of a Group Company incorporated in Norway:
89
(i) a notice addressed to that Group Company that its shares have been made subject to a security interest in favour of the Secured Parties in the form prescribed in the Security Document relating to the pledge of such shares and executed by authorised signatories of the pledgor; and
(ii) with respect to any recipient of a notice pursuant to sub-paragraph (i) above, acknowledgement by its authorised signatories of receipt of the notice referred to in (i) above together with evidence that the security interest has been noted in the register of shareholders of such Group Company; and
(iii) a power of attorney in favour of the Trustee in the form prescribed in the Security Document relating to the pledge of such shares executed by the authorised signatories of the pledgor.
Provided that if two authorised signatories of ABB certify in writing to the Lenders that ABB has received gross cash proceeds from Project Phoenix, a proposed bond issue (which will be unsecured and have a maturity on or beyond 1 January 2008 and which may include a tap issue) and/or asset sales in an amount equal to at least $3,000,000,000 and the gross cash proceeds of Project Phoenix and the asset sales equals at least $2,250,000,000 (of which the amount of the proceeds from asset sales cannot exceed $250,000,000), then nothing shall be required under this paragraph 2.
3. Legal Opinions
(a) A legal opinion of Xxxxxxxx Chance LLP legal advisers to the Mandated Lead Arrangers and the Facility Agent in England, substantially in the form distributed to the Original Lenders prior to signing this Agreement.
(b) If an Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Mandated Lead Arranger and the Facility Agent in the Relevant Jurisdiction, substantially in the form distributed to the Original Lenders prior to signing this Agreement.
4. Other documents and evidence
(a) Repayment and cancellation in full of the Existing Credit Facility.
(b) The Fee Letters executed on behalf of ABB.
(c) Evidence that any process agent referred to in Clause 38(e) (Service of process), if not an Obligor, has accepted its appointment.
(d) The Original Financial Statements of each Obligor.
(e) The Business Plan in form and substance reasonably satisfactory to the Lenders.
(f) The Original Liquidity Plan in form and substance reasonably satisfactory to the Lenders.
90
(g) Evidence that the fees, costs and expenses then due from ABB pursuant to Clause 12 (Fees), Clause 17 (Costs and Expenses) and Clause 13.6 (Stamp Taxes) have been paid or will be paid by the first Utilisation Date.
(h) Completion of Project Phoenix raising a gross amount of at least SFR 2,300,000,000 (approximately $1,750,000,000).
(i) The receipt by ABB of gross proceeds (excluding the amount of any deferred payment) from the sale of the Oil, Gas & Petrochemical Division and/or the gross proceeds from Project Phoenix and/or the gross proceeds of a proposed bond issue (which will be unsecured and have a maturity on or beyond 1 January 2008, and which may include a tap issue) and/or the gross proceeds of any other disposals (excluding the Oil, Gas & Petrochemical Division) made after the date of this Agreement (up to a maximum aggregate amount of $250,000,000) providing ABB with, in aggregate, gross cash proceeds in an amount of at least SFR 3,250,000,000.
In this Schedule, “Project Phoenix” means the share capital increase of ABB announced on 28 October 2003.
91
Part II
Additional Obligor Conditions
Precedent
1. An Accession Letter, duly executed by the Additional Obligor and ABB.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of a resolution of the board of directors, or other suitable authority, of the Additional Obligor:
(a) approving the terms of, and the transactions contemplated by, the Accession Letter and the Finance Documents and resolving that it execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices (including any Utilisation Request) to be signed and/or despatched by it under or in connection with the Finance Documents.
4. If required under applicable law, a copy of a resolution of the Additional Obligor as Guarantor stating that the shareholders resolve and approve the entering into, and the terms and conditions of, this Agreement, in particular, in relation to any Additional Obligor incorporated in Switzerland that is acceding as a Guarantor, the guarantee to be provided by such Additional Obligor as Guarantor for the purpose of securing the prompt and complete satisfaction of all present and future conditional and unconditional claims of the Finance Parties against any member of the Group other than such Additional Obligor as Guarantor and its wholly owned subsidiaries arising from time to time out of the Finance Documents.
5. A specimen of the signature of each person authorised by the resolution referred to in paragraph 3 above.
6. A certificate of the Additional Obligor (signed by two duly authorised signatories) confirming that borrowing or guaranteeing (as the case may be) the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded.
7. A certificate of an authorised signatory of the Additional Obligor certifying that each copy document listed in this Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Accession Letter.
8. A copy of any other Authorisation or other document, opinion or assurance which the Facility Agent reasonably considers to be necessary in connection with the entry into and performance of the transactions contemplated by the Accession Letter or for the validity and enforceability of any Finance Document.
9. If available, the latest audited financial statements of the Additional Obligor.
92
10. A legal opinion of Xxxxxxxx Chance Limited Liability Partnership, legal advisers to the Mandated Lead Arrangers and the Facility Agent in England.
11. If the Additional Obligor is incorporated in a jurisdiction other than England and Wales, a legal opinion of the legal advisers to the Mandated Lead Arrangers and the Facility Agent in the jurisdiction in which the Additional Obligor is incorporated.
12. If the proposed Additional Obligor is incorporated in a jurisdiction other than England and Wales, evidence that the process agent specified in Clause 38(e) (Service of process), if not an Obligor, has accepted its appointment in relation to the proposed Additional Obligor.
93
SCHEDULE 3
UTILISATION REQUEST
From: [Name of Borrower]
To: Credit Suisse First Boston as Facility Agent
Dated: [•]
Dear Sirs
ABB Ltd – $1,000,000,000
Credit Agreement dated [•]
(the “Credit Agreement”)
1. Words and expressions defined in the Credit Agreement have the same meaning when used herein.
2. We wish to borrow an Advance on the following terms:
|
Proposed Utilisation Date: |
[ • ] (or, if that is not a Business Day, the next Business Day) |
|
Currency of Advance: |
[ • ] |
|
Amount: |
[ • ] |
|
Interest Period: |
[ • ] |
3. We confirm that each condition specified in Clause 4.1 (Initial Conditions Precedent) is satisfied on the date of this Utilisation Request.
4. The proceeds of this Advance should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
|
|
|
|
|
|
authorised signatory for |
|
|
|
[Name of Borrower] |
|
94
SCHEDULE 4
THE MARGIN AND UTILISATION FEE
|
Margin and |
|
|
|
|
|
|
|
|
|
|
|
|
CREDIT RATING |
|||||||||||
|
BBB/Baa2 |
|
BBB-/Baa3 |
|
BB+/Ba1 |
|
BB/Ba2 |
|
BB-/Ba3 or |
|||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Margin |
|
80 |
|
110 |
|
145 |
|
185 |
|
225 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Utilisation(1) Fee |
|
12.5 |
|
12.5 |
|
25 |
|
25 |
|
50 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Utilisation(2) Fee |
|
25 |
|
25 |
|
50 |
|
50 |
|
75 |
|
Any adjustment to the Margin or Utilisation Fee will apply from:
(i) the date of publication of any relevant change to the Credit Rating of ABB; and/or
(ii) the date on which a Credit Rating ceases to be assigned to ABB by either S&P or Xxxxx’x.
(1) Each day upon which Outstandings equal or exceed 33% of the Total Commitments and are less than 66% of the Total Commitments.
(2) Each day upon which Outstandings equal or exceed 66% of the Total Commitments.
95
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: Credit Suisse First Boston as Facility Agent
From: [The Existing Lender] (the “Existing Lender”) and [The New Lender] (the “New Lender”)
Dated:
ABB Ltd – $1,000,000,000
Credit Agreement dated [•]
(the “Credit Agreement”)
1. Words and expressions defined in the Credit Agreement have the same meaning when used herein.
2. We refer to Clause 24.5 (Procedure for transfer) of the Credit Agreement:
(a) The Existing Lender and the New Lender agree to the Existing Lender and the New Lender transferring by novation all or part of the Existing Lender’s Commitment, rights and obligations referred to in the Schedule in accordance with Clause 24.5 (Procedure for transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details for notices of the New Lender for the purposes of Clause 31.2 (Addresses) are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing Lender’s obligations set out in paragraph (c) of Clause 24.4 (Limitation of responsibility of Existing Lenders).
4. The New Lender confirms on the Transfer Date that it is a PMP.
5. This Transfer Certificate is governed by English law.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert
relevant details]
[Facility
Office address, fax number and attention details for notices and account
details for payments,]
|
[Existing Lender] |
[New Lender] |
|
|
|
|
By: |
By: |
96
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [ ].
[Facility Agent]
By:
(1) Only to be included if it is a requirement under Dutch law at the time of such assignment or transfer, that the New Lender qualifies as a PMP.
97
SCHEDULE 6
TIMETABLES
|
|
|
Advances
in |
|
Advances
in |
|
Advances
in |
|
Advances
in |
|
|
|
|
|
|
|
|
|
|
|
Delivery of a duly completed Utilisation Request in accordance with Clause 5.1 (Delivery of a Utilisation Request) |
|
10 a.m. London time, 3 Business Days prior to the proposed Utilisation Date |
|
11 a.m. London time, 3 Business Days prior to the proposed Utilisation Date |
|
11 a.m. London time, 1 Business Day prior to the proposed Utilisation Date |
|
11 a.m. London time, 3 Business Days prior to the proposed Utilisation Date |
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|
|
|
|
|
|
|
|
|
|
Facility Agent determines (in relation to a Utilisation) the Base Currency Amount of the Advance, if required under Clause 5.4 (Lenders’ participation) |
|
11 a.m. London time, 3 Business Days prior to the proposed Utilisation Date |
|
N/A |
|
11 a.m. London time, 1 Business Day prior to the proposed Utilisation Date |
|
11 a.m. London time, 3 Business Days prior to the proposed Utilisation Date |
|
|
|
|
|
|
|
|
|
|
|
Facility Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (Lenders’ participation) |
|
Promptly upon receipt from the relevant Borrower |
|
Promptly upon receipt from the relevant Borrower |
|
Promptly upon receipt from the relevant Borrower |
|
Promptly upon receipt from the relevant Borrower |
|
|
|
|
|
|
|
|
|
|
|
Facility Agent receives a notification from a Lender under Clause 6.2 (Unavailability of a currency) |
|
N/A |
|
N/A |
|
N/A |
|
Quotation Day as of 9 a.m. London time |
98
|
|
|
Advances
in |
|
Advances
in |
|
Advances
in |
|
Advances
in |
|
|
|
|
|
|
|
|
|
|
|
Facility Agent gives notice in accordance with Clause 6.2 (Unavailability of a currency) |
|
N/A |
|
N/A |
|
N/A |
|
Upon receipt of notification from the Lenders |
|
|
|
|
|
|
|
|
|
|
|
LIBOR or EURIBOR is fixed |
|
Quotation Day as of 11.00 a.m. Brussels time |
|
Quotation Day as of 11.00 a.m. London time |
|
Quotation Day as of 11.00 a.m. London time |
|
Quotation Day as of 11. 00 a.m. London time |
99
SCHEDULE 7
FORM OF ACCESSION LETTER
To: Credit Suisse First Boston as Facility Agent
From: [Subsidiary] and ABB Ltd
Dated: [ • ]
Dear Sirs
ABB Ltd – $1,000,000,000
Revolving Credit Agreement dated [•]
(the “Agreement”)
1. We refer to the Agreement. This is an Accession Letter. Terms defined in the Agreement have the same meaning in this Accession Letter unless given a different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an [Additional Borrower]/[Additional Guarantor] and to be bound by the terms of the Agreement as an [Additional Borrower]/[ Additional Guarantor] pursuant to [Clause 25.2 (Additional Borrowers)]/[Clause 25.4 (Additional Guarantors)] of the Agreement.
3. [Subsidiary] is a company duly incorporated under the laws of [name of relevant jurisdiction].
4. [Subsidiary] is a Subsidiary of ABB Ltd.
5. [Subsidiary’s] administrative details are as follows:
Address:
Fax No:
Attention:
6. This Accession Letter is governed by English law.
[This Guarantor Accession Letter is entered into by deed].
|
ABB Ltd |
[Subsidiary] |
|
|
|
|
By: |
By: |
100
SCHEDULE 8
FORM OF RESIGNATION LETTER
To: Credit Suisse First Boston as Facility Agent
From: [resigning Obligor] and ABB Ltd
Dated: [ • ]
Dear Sirs
ABB Ltd – $1,000,000,000
Revolving Credit Agreement dated [•]
(the “Agreement”)
1. We refer to the Agreement. This is a Resignation Letter. Terms defined in the Agreement have the same meaning in this Resignation Letter unless given a different meaning in this Resignation Letter.
2. Pursuant to [Clause 25.3 (Resignation of a Borrower)]/[Clause 25.6 (Resignation of a Guarantor)], we request that [resigning Obligor] be released from its obligations as a [Borrower]/[Guarantor] under the Agreement.
3. We confirm that:
(a) no Default would result from the acceptance of this request; and
(b) [resigning Obligor] is under no actual or contingent liability under the Agreement.
4. This Resignation Letter is governed by English law.
|
ABB Ltd |
[Subsidiary] |
|
|
|
|
By: |
By: |
101
SCHEDULE 9
MANDATORY COSTS
The Mandatory Costs is an addition to the interest rate on an Advance denominated in Sterling to compensate the Lenders for the cost attributable to such Advance resulting from the imposition from time to time under or pursuant to the Bank of England Act 1998 (the “BoE Act”) of a requirement to place non-interest-bearing or Special Deposits (whether interest bearing or not) with the Bank of England calculated by reference to liabilities used to fund the Advance.
The Mandatory Costs shall be the rate determined by the Facility Agent to be equal to the arithmetic mean (rounded upward, if necessary, to 4 decimal places) of the respective rates notified by each Reference Bank to the Facility Agent as the rate resulting from the application (as appropriate) of the following formulae:
XL +
S(L - D)
100 - (X + S)
where on the day of application of a formula:
X is the percentage of Eligible Liabilities (in excess of any stated minimum) by reference to which that Reference Bank is required under or pursuant to the BoE Act to maintain cash ratio deposits with the Bank of England;
L is LIBOR applicable to the relevant Advance;
S is the level of interest bearing Special Deposits, expressed as a percentage of Eligible Liabilities, which that Reference Bank is required to maintain by the Bank of England (or other United Kingdom governmental authorities or agencies); and
D is the percentage rate per annum payable by the Bank of England to that Reference Bank on Special Deposits.
(X, L, S and D shall be expressed in the formula as numbers and not as percentages, e.g. if X = 0.15% and L = 7%, XL will be calculated as 0.15 x 7 and not as 0.15% x 7%. A negative result obtained from subtracting D from L shall be counted as zero.)
If any Reference Bank fails to notify any such rate to the Facility Agent, the Mandatory Costs shall be determined on the basis of the rate(s) notified to the Facility Agent by the remaining Reference Bank(s).
The Mandatory Costs attributable to an Advance or other sum for any period shall be calculated at or about 11.00 a.m. on the first day of that period for the duration of that period.
The determination of the Mandatory Costs in relation to any period shall, in the absence of manifest error, be conclusive and binding on the Parties.
If there is any change in circumstance (including the imposition of alternative or additional requirements) which in the reasonable opinion of the Facility Agent renders or will render the above formula (or any element of the formula, or any defined term used in the formula) inappropriate or inapplicable, the Facility Agent (following consultation with ABB and the
102
Majority Lenders) shall be entitled to vary the same by giving notice to the Parties. Any such variation shall, in the absence of manifest error, be conclusive and binding on the Parties and shall apply from the date specified in such notice.
For the purposes of this Schedule, Eligible Liabilities and Special Deposits have the meanings given to those terms under or pursuant to the BoE Act or by the Bank of England (as may be appropriate), on the day of the application of the formula.
103
SCHEDULE 10
MATERIAL SUBSIDIARIES
|
Company Name |
|
Jurisdiction |
|
ABB Interest (%) |
|
|
|
|
|
|
|
|
|
ABB Finance X.X. |
|
Xxxxxxxxxxx |
|
000 |
|
|
XXX Xxxxxxx X.X. |
|
Xxxxxxxxxxx |
|
100 |
|
|
ABB International Finance Limited |
|
Guernsey |
|
100 |
|
|
ABB Finance Inc. |
|
Xxxxxx Xxxxxx |
|
000 |
|
|
XXX Xxxxxxxx Xxx. |
|
Xxxxxx Xxxxxx |
|
100 |
|
|
ABB AG |
|
Germany |
|
100 |
|
|
ABB AB |
|
Xxxxxx |
|
000 |
|
|
XXX X.x.X. |
|
Xxxxx |
|
000 |
|
|
XXX Xxxxxxx Holding AG |
|
Xxxxxxxxxxx |
|
000 |
|
|
XXX Financial Services AB |
|
Xxxxxx |
|
000 |
|
|
XXX Treasury Center (Asia Pacific) Pte. Ltd |
|
Singapore |
|
100 |
|
|
ABB Financial Services Australia Limited |
|
Australia |
|
000 |
|
|
XXX Xxxxxxxx Xxxxxx (XXX) Xxx. |
|
Xxxxxx Xxxxxx |
|
100 |
|
|
ABB Vetco Xxxx Inc. |
|
United States |
|
100 |
|
|
ABB Offshore Systems AS |
|
Norway |
|
100 |
|
|
ABB Oy |
|
Finland |
|
100 |
|
|
ABB Ltd. |
|
England |
|
100 |
|
|
ABB Holding AS |
|
Xxxxxx |
|
000 |
|
|
XXX S.A. |
|
France |
|
100 |
|
|
Asea Xxxxx Boveri S.A. |
|
Spain |
|
100 |
|
|
ABB (China) Ltd |
|
China |
|
100 |
|
|
ABB Australia Pty Limited |
|
Australia |
|
000 |
|
|
Xxxxxx Xxxxxxxxxxxxx Xxxxxxxxxxx XX (publ) |
|
Sweden |
|
100 |
|
104
|
Company Name |
|
Jurisdiction |
|
ABB Interest (%) |
|
|
|
|
|
|
|
|
|
ABB Inc. |
|
Xxxxxx Xxxxxx |
|
000 |
|
|
XXX Ltda. |
|
Brazil |
|
100 |
|
105
SCHEDULE 11
FORM OF COVENANT COMPLIANCE CERTIFICATE
To: Credit Suisse First Boston as Facility Agent
From: ABB Ltd
Dated:
Dear Sirs
ABB Ltd $1,000,000,000 Multicurrency Revolving Credit Agreement dated [•] (the “Agreement”)
We refer to the Agreement. This is a Covenant Compliance Certificate delivered with the consolidated accounts of ABB dated [31 March, 30 June, 30 September] [2003] (the “Reference Date”). Terms defined in the Agreement have the same meaning when used in this Covenant Compliance Certificate unless given a different meaning.
We confirm that:
(a) EBITDA: Total Gross Interest
In respect of the Relevant Period ending on the Reference Date:
(i) EBITDA was [ ].
(ii) Total Gross Interest was [ ].
Therefore the ratio of EBITDA to Total Gross Interest in respect of such period was [ ] : [ ] and the covenant contained in paragraph 21.2(a) of Clause 21 (Financial Covenants) [has/has not] been complied with.
(b) Net Debt of the Group
(i) Short-term borrowings of the Group on the Reference Date were [ ].
(ii) Long Term Borrowings of the Group on the Reference Date were [ ].
(iii) Cash available in group treasury operations and disclosed (prior to the Trigger Date) in the Liquidity Plan and the reconciliation to balance sheet cash as disclosed in the quarterly compliance certificate was [•].
(iv) Total Gross Debt was [ ].
Therefore the ratio of Net Debt to EBITDA in respect of such period was [ ]:[ ] and the covenant contained in paragraph 21.2(b) of Clause 21 (Financial Covenants) [has/has not] been complied with.
(c) Consolidated Net Worth
(i) Consolidated Net Worth on the Reference Date was [ ].
106
(ii) Cumulative Consolidated Net Income of the Group from [date] to the reference Date was [ ].
Accordingly the calculation set out in clause 20.2(c) is as follows:
$3,000,000,000 + [insert 50% of consolidated net income figure or 0 if that figure is negative] = zero
Therefore Consolidated Net Worth on the Reference Date was at least [ ] and the covenant contained in paragraph 21.2(c) of Clause 21 (Financial Covenants) [has/has not] been complied with.
(d) Total Gross Debt of the Group excluding the Obligor Group
The aggregate amount of Total Gross Debt of Group Companies that are not members of the Obligor Group (excluding items set out in paragraphs (i) to (v) of paragraph 21.3 of Clause 21 (Financial Covenants)) [has/has not] since the date of the Credit Agreement exceeded $1,000,000,000.
|
|
|
|
|
|
Officer of ABB Ltd |
|
Officer of ABB Ltd |
|
|
(without personal liability) |
|
(without personal liability) |
|
107
SIGNATURES
The Original Borrowers
ABB CAPITAL B.V.
By: XXXXXXX XXXXXXXXXX XXXXX VAN REIJN
ABB ASEA XXXXX BOVERI LTD
By: XXX XXXXXXX XXXX XXXX
The Original Guarantors
ABB LTD
By: XXXXXX XXXXXX XXX XXXXXX
ABB CAPITAL B.V.
By: XXXXXXX XXXXXXXXXX XXXXX VAN REIJN
ABB ASEA XXXXX BOVERI LTD
By: XXX XXXXXXX XXXX XXXX
The Mandated Lead Arrangers
BARCLAYS CAPITAL
By: XXX XXXXXXX
BAYERISCHE HYPO-UND VEREINSBANK AG
By: XXXXX XXXXXXX XXXXXX XXXXXXXXXXXX
BNP PARIBAS
By: XXXXXX XXXXXXXXX XXXXXXXXX XXXXX
108
CITIGROUP GLOBAL MARKETS LIMITED
By: XXXXXX XXXX
COMMERZBANK AKTIENGESELLSCHAFT
By: XXXXXXX XXXXXX AXEL RICHEBAECHER
CREDIT SUISSE FIRST BOSTON
By: XXXXXX XXXXX XXXX XXXXX
DEUTSCHE BANK AG
By: MATTHIAS XXXX XXXX-XXXXX XXXXXXX
DRESDNER KLEINWORT XXXXXXXXXXX
By: XXXXXXX XXXXXX XXXXXXXX XXXXXXXXXX
HSBC BANK PLC
By: PER OLOV SYNNEMAR JAN-XXXX XX XXXX
NORDEA BANK SWEDEN AB (PUBL)
By: XXXX XXXXX XXXXXXXX XXXX
SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL)
By: XXXXXXX XXXXX
SVENSKA HANDELSBANKEN AB (PUBL)
By: XXXXXX XXXX SCHOGARNE
The Arrangers
109
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: XXXXX XXXXXXXXX XXXX XXXXXX
CDC IXIS
By: XXXXXXXX XXXXX XX XXXXXX XXXXX XXXXXX
DEN NORSKE BANK ASA
By: XXXXXX XXXXXX XXXXXX XXXXXXXXX
ING BELGIUM NV
By: XXXX XXXX XXXX XXXXX
KBC BANK NV
By: XXXXXXXX XXXXXXX XXXXXXX XXXXX
SAUDI AMERICAN BANK
By: XXXX XXXXX ALI
The Facility Agent
CREDIT SUISSE FIRST BOSTON
By: XXXXXX XXXXX XXXX XXXXX
The Lenders
BARCLAYS BANK PLC
By: XXX XXXXXXX
BAYERISCHE HYPO-UND VERINSBANK AG
By: XXXXX XXXXXXX XXXXXX XXXXXXXXXXXX
110
BNP PARIBAS SA
By: XXXXXX XXXXXXXXX XXXXXXXXX XXXXX
CITIBANK, N.A.
By: XXXXXX XXXX
COMMERZBANK AKTIENGESELLSCHAFT
By: XXXXXXX XXXXXX AXEL RICHEBAECHER
CREDIT SUISSE FIRST BOSTON
By: XXXXXX XXXXX XXXX XXXXX
DEUTSCHE BANK LUXEMBOURG S.A.
By: XXXXXX XXXXXXXXX XXXXXXXXX XXXXXXXXX
DRESDNER BANK LUXEMBOURG S.A.
By: XXXXXXX XXXXXX XXXXXXXX XXXXXXXXXX
HSBC BANK PLC
By: PER OLOV SYNNEMAR JAN-XXXX XX XXXX
NORDEA BANK SWEDEN AB (PUBL)
By: XXXX XXXXX XXXXXXXX XXXX
SKANDINAVISKA ENSKILDA XXXXXX XX (PUBL)
By: XXXXXXX XXXXX
111
SVENSKA HANDELSBANKEN AB (PUBL)
By: XXXXXX XXXX SCHOGARNE
BANCO BILBAO VIZCAYA ARGENTARIA S.A.
By: XXXXX XXXXXXXXX XXXX XXXXXX
CDC IXIS
By: XXXXXXXX XXXXX XX XXXXXX XXXXX XXXXXX
DEN NORSKE BANK ASA
By: XXXXXX XXXXXX XXXXXX XXXXXXXXX
ING BELGIUM NV
By: XXXX XXXX XXXX XXXXX
KBC BANK NV
By: XXXXXXXX XXXXXXX XXXXXXX XXXXX
SAUDI AMERICAN BANK
By: XXXX XXXXX ALI
112
