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EXHIBIT 4.2
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28TH OCTOBER 1999
[FIAT LOGO]
[NEW HOLLAND LOGO]
CREDIT AGREEMENT RELATING TO A
$2,400,000,000 TERM LOAN FACILITY
TO NEW HOLLAND N.V.
GUARANTEED BY FIAT S.P.A.
ARRANGED BY
CHASE MANHATTAN PLC
CREDIT SUISSE FIRST BOSTON
[CHASE LOGO] [CREDIT SUISSE/FIRST BOSTON LOGO]
[WILDE SAPTE LONDON LOGO]
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Conformed Copy
DATED 28TH October 1999
NEW HOLLAND N.V.
As Borrower
And
FIAT S.p.A.
As Guarantor
and
THE BANKS
And
CHASE MANHATTAN INTERNATIONAL LIMITED
As Agent
And
CHASE MANHATTAN plc
CREDIT SUISSE FIRST BOSTON
As Lead Arrangers
------------------------------------------------------------
CREDIT AGREEMENT
relating to a
dollar term loan facility
of $2,400,000,000
------------------------------------------------------------
WILDE SAPTE
0 Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Tel. 0000 000 0000
Fax 0000 000 0000
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TABLE OF CONTENTS
Clause Heading Page Number
------ ------- -----------
1. DEFINITIONS AND INTERPRETATION............................ 1
1.1 Definitions............................................... 1
1.2 Headings.................................................. 6
1.3 Interpretation............................................ 6
2. FACILITY.................................................. 7
2.1 Facility.................................................. 7
2.2 Obligations several....................................... 7
2.3 Rights several............................................ 7
3. PURPOSE................................................... 8
3.1 Purpose................................................... 8
3.2 No monitoring............................................. 8
4. CONDITIONS PRECEDENT...................................... 8
5. DRAWDOWN.................................................. 8
5.1 Drawdown Period........................................... 8
5.2 Conditions to each Advance................................ 8
5.3 Drawdown Notice........................................... 8
5.4 Limitations on Advances................................... 9
5.5 Notification to Banks..................................... 9
5.6 Participations............................................ 9
6. INTEREST.................................................. 9
6.1 Interest rate............................................. 9
6.2 Interest Periods.......................................... 9
6.3 Default interest.......................................... 10
6.4 Calculation and payment of interest....................... 10
6.5 Agent's determination..................................... 11
7. REPAYMENT AND PREPAYMENT.................................. 11
7.1 Repayment................................................. 11
7.2 Voluntary Prepayment...................................... 11
7.3 Mandatory Reduction and Prepayment........................ 11
7.4 Accrued interest and broken funding costs................. 12
7.5 Effect of repayment or prepayment......................... 12
7.6 Limitation................................................ 12
8. CANCELLATION.............................................. 12
8.1 Cancellation.............................................. 12
8.2 Notice.................................................... 12
8.3 Effect of cancellation.................................... 12
8.4 Limitation................................................ 12
9. CHANGES IN CIRCUMSTANCE................................... 12
9.1 Illegality................................................ 12
9.2 Increased Costs........................................... 13
9.3 Market disruption......................................... 14
9.4 Mitigation................................................ 15
9.5 Certificates.............................................. 15
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10. PAYMENTS................................................. 15
10.1 Place and time........................................... 15
10.2 Funds.................................................... 15
10.3 Distribution............................................. 15
10.4 Business Days............................................ 16
10.5 Currency................................................. 16
10.6 Accounts as evidence..................................... 16
10.7 Partial payments......................................... 16
10.8 Set-off and counterclaim................................. 17
10.8 Grossing-up.............................................. 17
11. GUARANTEE................................................ 18
11.1 Guarantee................................................ 18
11.2 Guarantee Provisions..................................... 19
12. REPRESENTATIONS AND WARRANTIES........................... 21
12.1 Representations and warranties........................... 21
12.2 Repetition............................................... 22
13. UNDERTAKING.............................................. 22
13.1 Information undertakings................................. 22
13.2 Positive undertakings.................................... 23
13.3 Negative pledge.......................................... 23
14. DEFAULT.................................................. 23
14.1 Default.................................................. 23
14.2 Acceleration............................................. 25
15. PRO RATA SHARING......................................... 25
15.1 Redistribution........................................... 25
15.2 Legal proceedings........................................ 26
15.3 Reversal of redistribution............................... 26
15.4 Information.............................................. 26
16. THE AGENT, THE LEAD ARRANGERS AND THE BANKS.............. 26
16.1 Appointment and duties................................... 26
16.2 Payments................................................. 27
16.3 Default.................................................. 28
16.4 Reliance................................................. 28
16.5 Legal proceedings........................................ 28
16.6 No liability............................................. 28
16.7 Credit decisions......................................... 29
16.8 Information.............................................. 29
16.9 Relationship with Banks.................................. 29
16.10 Agent's position......................................... 30
16.11 Indemnity................................................ 30
16.12 Resignation.............................................. 30
16.13 Change of office......................................... 31
17. FEES AND EXPENSES........................................ 31
17.1 Expenses and Costs....................................... 31
17.2 Arrangement and agency fees.............................. 31
17.3 Commitment fee........................................... 32
17.4 Documentary Taxes Indemnity.............................. 32
17.5 VAT...................................................... 32
18. AMENDMENTS AND WAIVERS................................... 32
18.1 Majority Banks........................................... 32
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18.2 All Banks............................................. 32
18.3 No implied waivers; remedies cumulative............... 33
19. MISCELLANEOUS......................................... 33
19.1 Severance............................................. 33
19.2 Counterparts.......................................... 33
20. NOTICES............................................... 33
20.1 Method................................................ 33
20.2 Delivery.............................................. 33
20.3 Addresses............................................. 34
20.4 Deemed receipt........................................ 34
20.5 Notices through Agent................................. 35
21. ASSIGNMENTS AND TRANSFERS............................. 35
21.1 Benefit of Agreement.................................. 35
21.2 Assignments and transfers by an Obligor............... 35
21.3 Assignment by Banks................................... 35
21.4 Transfers by Banks.................................... 35
21.5 Condition to assignments and transfers................ 36
21.6 Consequences of transfer.............................. 36
21.7 Disclosure of information............................. 36
22. INDEMNITIES........................................... 37
22.1 Breakage costs indemnity.............................. 37
22.2 Currency indemnity.................................... 37
22.3 General............................................... 38
23. LAW AND JURISDICTION.................................. 38
23.1 Law................................................... 38
23.2 Jurisdiction.......................................... 38
23.2 Agent for service..................................... 38
SCHEDULE 1 THE BANKS............................................. 39
SCHEDULE 2 CONDITIONS PRECEDENT.................................. 40
SCHEDULE 3 DRAWDOWN NOTICE....................................... 41
SCHEDULE 4 FORM OF TRANSFER CERTIFICATE.......................... 42
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THIS AGREEMENT is made on 28th October 1999
BY:
(1) NEW HOLLAND N.V., a company incorporated in the Netherlands whose
registered office is at Xxxxxxxx Xxxxxxxxx 000, XXX Xxxxxxx, 0000 XX
Xxxxxxxxxx Schiphol, The Netherlands (the "Borrower");
(2) FIAT S.p.A., a company incorporated in the Republic of Italy whose
registered office is at Xxx Xxxxx 000, 00000 Xxxxx, Xxxxx (the
"Guarantor");
(3) THE BANKS listed in Schedule 1;
(4) CHASE MANHATTAN INTERNATIONAL LIMITED of Xxxxxxx Xxxxx, 0 Xxxxxx Xxxx
Xxxxxx, Xxxxxx X0 0XX as the Agent (as that term is defined below);
and
(5) CHASE MANHATTAN plc of 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX and CREDIT
SUISSE FIRST BOSTON of 0-0 Xxxxx Xxxxxx, Xxxxxx X00 0XX as the joint
lead arrangers of the facility made available under this Agreement (the
"Lead Arrangers").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"ADDITIONAL COST RATE" means, in relation to a Participation of a Bank
in an Advance, the aggregate cost, if any, certified by such Bank as
the cost to it of complying with the reserve asset and other regulatory
requirements of the European Central Bank and/or the Financial Services
Authority in relation to that Participation or any class of loans of
which that Participation forms part, expressed as a percentage rate per
annum for the relevant Interest Period.
"ADVANCE" means an advance made or to be made to the Borrower under the
Facility or, as the case may be, the outstanding principal amount of
any such advance, and each advance into which an advance may be split
pursuant to Clause 6.2.4.
"AGENCY FEES LETTER" means the letter dated 17 September 1999 from the
Agent to the Obligors relating to certain fees payable to the Agent by
the Borrower in relation to this Agreement.
"AGENT" means Chase Manhattan International Limited in its capacity as
agent for the Banks and each successor agent appointed in accordance
with Clause 16.12.
"ARRANGEMENT FEES LETTER" means the letter dated 17 September 1999 from
the Lead Arrangers to the Obligors relating to certain fees payable to
the Lead Arrangers by the Borrower in relation to this Agreement.
"AVAILABLE COMMITMENT" means, in relation to a Bank, its Commitment
less its Participations in all outstanding Advances.
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"AVAILABLE FACILITY" means the aggregate of the Available Commitments
of the Banks.
"BANKS" means the banks and other financial institutions listed in
Schedule 1 and any Bank Transferee, together with their respective
successors in title, provided that any bank or financial institution
which transfers all of its Commitment in accordance with Clause 21.4
shall cease to be a "Bank".
"BANK TRANSFEREE" has the meaning given to that term in Clause 21.4.2.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general interbank business in London and New York.
"CERTIFIED COPY" means, in relation to a document, a copy of that
document certified a true, complete and accurate copy, of the original
by a duly authorized officer of the relevant company.
"CHANGE" means, in relation to a Bank (or any company of which that
Bank is a Subsidiary), the introduction, implementation, repeal,
withdrawal or change in, or in the official interpretation or
application of (a) any law or regulation or (b) any official
directive requirement, request or guidance (whether or not having the
force of law but if not having the force of law, one which applies
generally to a class or category of financial institution of which
that Bank (or that company) forms part and compliance with which is
in accordance with the general practice of those financial
institutions) of the European Community, any central bank including
the European Central Bank, Financial Services Authority, or any other
fiscal, monetary or regulatory authority.
"COMMITMENT" means, in relation to a Bank, the amount set out opposite
its name in Schedule 1 or, in relation to a Bank which becomes a Bank
after the date hereof, under the heading "Amount of Commitment
Transferred" in the schedule to the Transfer Certificate(s) pursuant
to which it becomes a Bank, in each case as reduced or cancelled in
accordance with this Agreement.
"DEFAULT" means any event specified as such in Clause 14.1.
"DOLLARS" and "$" means the lawful currency for the time being of the
United States of America.
"DRAWDOWN DATE" means the date on which an Advance is made, or is
proposed to be made.
"DRAWDOWN NOTICE" means a notice substantially in the form set out in
Schedule 3.
"DRAWDOWN PERIOD" means the period starting on the date of this
Agreement and ending on the date falling 60 days after the date of
this Agreement.
"ENCUMBRANCE" means any mortgage, charge, pledge, lien or any other
security interest (other than arising by operation of law).
"FACILITY" means the Dollar term loan facility granted to the Borrower
under this Agreement.
"FACILITY PERIOD" means the period starting on the date of this
Agreement and ending on the date on which all the obligations and
liabilities of the Obligors under the Financing
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Documents are discharge in full and none of the Agent and the Banks
has any continuing obligation in relation to the Facility.
"FINANCIAL YEAR" means, in relation to an Obligor, each accounting
period of 12 months in respect of which it prepares its financial
statements.
"FINANCE PARTIES" means the Banks, the Agent and the Lead Arrangers.
"FINANCING DOCUMENTS" means this Agreement, the Agency Fees Letter and
the Arrangement Fees Letter.
"GAAP" means, in relation to a company, accounting principles,
concepts, bases and policies generally adopted and accepted in the
jurisdiction of its incorporation or, if appropriate, the
international accounting principles formulated by the International
Accounting Standards Committee.
"INDEBTEDNESS" means any obligation (whether incurred a principal or
as surety) for the payment or repayment of borrowed money, whether
present or future, including any contingent obligation in respect
thereof by reason of any guarantee or other assumption of liability
for obligation in respect thereof by reason of any guarantee or other
assumption of liability for obligations of third parties and any
actual or contingent obligation in respect of any interest rate swap
or cross-currency swap or forward sale or purchase contract or other
form of interest or currency hedging transaction.
"INFORMATION MEMORANDUM" means the information memorandum dated
September 1999 and prepared by the Borrower in connection with this
Agreement.
"INTEREST DATE" means the last day of an Interest Period.
"INTEREST PERIOD" means each period determined in accordance with
Clause 6 for the purpose of calculating interest on Advances or
overdue amounts.
"LENDING OFFICE" means, in relation to a Bank, the office set out
under its name in Schedule 1 or in the schedule to its relevant
Transfer Certificate, or such other office through which that Bank's
Commitment is maintained an through which its Participation is made
and maintained under this Agreement.
"LIBOR" means, in relation to an Advance or overdue amount and in
relation to a particular Interest Period:
(a) the interest rate for Dollar deposits (or, as the case may
be, deposits in the currency of such overdue amount) for a
period equal to that Interest Period which appears on the
screen display designated a "Page 3750" on the Telerate
Service (or such other screen display or service as may
replace it for the purpose of displaying British Bankers'
Association LIBOR Rates for Dollar deposits in the London
interbank market) at or about 11:00 a.m. on the applicable
Rate Fixing Day; and
(b) if no such interest rate appears on the Telerate Service (or
such replacement), the arithmetic mean (rounded upwards to 4
decimal places) of the rates per annum (as quoted to the
Agent at its request) at which each Reference Bank was
offering Dollar deposits (or, as the case may be, deposits in
the currency of such overdue amount) in an amount comparable
with that Advance or overdue amount, as the
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case may be, to leading banks in the London
interbank market for a period equal to that
Interest Period at or about 11:00 a.m. on
the applicable Rate Fixing Day.
"LOAN" means, at any time, the aggregate of all Advances
outstanding at this time.
"MAJORITY BANKS" means a group of Banks whose Participations
in the Advances together exceed 66 2/3 per cent. of all
Advances or, at any time when no Advance is outstanding, a
group of Banks whose Commitments together exceed 66 2/3 per
cent. of the Total Commitments (taking no account, for the
purposes of this definition, of the last sentence in Clause
14.2).
"MARGIN" means 0.375 per cent. per annum.
"OBLIGORS" means the Borrower and the Guarantor, and
"OBLIGOR" shall be construed accordingly.
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to the Borrower, its audited
consolidated financial statements (including
the notes thereto) for its Financial Year ended
31 December 1998; and
(b) in relation to the Guarantor, its audited
consolidated financial statements (including the
notes thereto) for its Financial Year ended 31
December 1998.
"PARTICIPATION" means, in relation to a Bank and an Advance,
the part of that Advance made available or to be made
available by that Bank and thereafter the part of that
Advance owing to that Bank from time to time.
"PARTY" means a party to this Agreement.
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance created or outstanding with the
prior written consent of the Majority Banks; or
(b) rights of set-off arising in the ordinary course of
trading activities between either Obligor and its
suppliers or customers; or
(c) rights of set-off or netting arising by operation
of law or by contract by virtue of the provision to
either Obligor of clearing bank facilities or
overdraft facilities; or
(d) any retention of title to goods supplied to either
Obligor where such retention is required by the
supplier in the ordinary course of its trading
activities and on customary terms and the goods in
question are supplied on credit; or
(e) Encumbrances (except floating charges) arising
under finance leases, hire purchase, conditional
sale agreements or other agreements for the
acquisition of assets on deferred payment terms over
the asset which is the subject matter of the
relevant agreement; or
(f) Encumbrances over any assets (or documents of title
thereto) acquired by either Obligor after the date
of this Agreement provided that:
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(i) any such Encumbrance is in existence before such
acquisition and is not created in contemplation of
such acquisition; and
(ii) the amount secured by Encumbrance does not exceed,
at any time, the maximum amount secured or agreed to
be secured thereby (in accordance with the terms, as
in force at the date of the acquisition of the asset
concerned on which such Encumbrance was created as
at the date of acquisition; or
(g) any Encumbrance created in favour of a plaintiff or defendant
in any action of the court or tribunal before whom such
action is brought as security for costs or expenses where
either Obligor is prosecuting or defending such action in the
bona fide interest of such Obligor; or
(h) any Encumbrance created pursuant to any order of attachment,
distraint, garnishee order or injunction restraining disposal
of assets or similar legal process arising in connection with
court proceedings; or
(i) any Encumbrances created in connection with the
securitisation of receivables of either Obligor over
the receivables to be securitised; or
(j) any Encumbrance over any asset of either Obligor created to
secure Indebtedness incurred by such Obligor either to fund
the purchase of such asset or to fund the development and/or
improvement of such asset; or
(k) Encumbrances created by the Obligors and not otherwise
permitted by paragraphs (a) to (j) above inclusive provided
that the aggregate principal amount of Indebtedness secured by
such Encumbrances shall not exceed US$ 200,000,000 or its
equivalent in other currencies.
"POTENTIAL DEFAULT" means an event which with the giving of notice or
the lapse of time or the making any determination or fulfilment of any
condition provided for in Clause 14 would or could reasonably be
expected to constitute a Default.
"RATE FIXING DAY" means, in relation to any Interest Period, the day
on which quotes are customarily given in the London interbank market
for deposits in Dollars for delivery on the first day of that Interest
Period.
"REFERENCE BANKS" means the principal London offices of The Chase
Manhattan Bank, Credit Suisse First Boston and Deutsche Bank AG and
such other bank or banks as may be agreed between the Agent (acting on
the instructions of the Majority Banks) and the Borrower.
"REPAYMENT DATE" means the date falling 364 days after the date of
this Agreement.
"RESERVATIONS" means the principle that equitable remedies are
remedies which may be granted or refused at the discretion of the
court, the limitation on enforcement as a result of laws relating to
bankruptcy, insolvency, liquidation, reorganisation, court schemes,
moratoria, administration and other laws affecting the rights of
creditors generally, the time-barring of claims under the Limitation
Acts, rules against penalties and similar principles of law in other
jurisdictions relevant in the context of the Financing Documents.
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"SUBSIDIARY" means a subsidiary within the meaning of section 736 of
the Companies Xxx 0000.
"TAXES" includes all present and future taxes, charges, imposts,
duties, levies or withholdings of any kind whatsoever, or any amount of
a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same); and "Tax" and "Taxation" shall be construed accordingly.
"TOTAL COMMITMENTS" means the aggregate of the Commitments of the
Banks.
"TRANSFER CERTIFICATE" means a document substantially in the form set
out in Schedule 4.
"VAT" means value added tax as provided for in the Value Added Tax Xxx
0000 and legislation (or purported legislation and whether delegated or
otherwise) supplemental to that Act or in any primary or secondary
legislation promulgated by the European Community or any official body
or agency of the European Community, and any tax similar of equivalent
to value added tax imposed by any country other than the United Kingdom
and any similar tax replacing or introduced in addition to any of the
same.
1.2 HEADINGS
The headings in this Agreement are for convenience only and shall be
ignored in construing this Agreement.
1.3 INTERPRETATION
In this Agreement (unless otherwise provided):
(a) words importing the singular shall include the plural and
vice versa;
(b) references to Clauses and Schedules are to be construed as
references to the clauses of, and schedules to this
Agreement;
(c) references to any Financing Document or any other document
shall be construed as references to that Financing Document
or that other document, as amended, varied, novated or
supplemented;
(d) references to any statute or statutory provision include any
statute or statutory provision which amends, extends,
consolidates or replaces the same, or which has been amended,
extended, consolidated or replaced by the same, and shall
include any orders, regulations, instruments or other
subordinate legislation made under the relevant statute;
(e) references to a document being "in the agreed form" means
that document the form and content of which has been approved
by the Agent and which has endorsed on it the words "in the
agreed form" and which is initialled by or on behalf of the
Agent and the Borrower;
(f) references to "assets" shall included revenues and property
and the right to revenues and property and rights of every
kind, present, future and contingent and whether tangible or
intangible (including uncalled share capital);
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(g) the words "including" and "in particular" shall be construed
as being by way of illustration or emphasis only and shall
not be construed as, nor shall they take effect as, limiting
the generality of any preceding words;
(h) the words "other" and "otherwise" shall not be construed
ejusdem generis with any foregoing words where a wider
construction is possible;
(i) references to a "person" shall be construed so as to include
that person's assigns, transferees or successors in title and
shall be construed as including references to an individual,
firm, partnership, joint venture, company, corporation, body
corporate, unincorporated body of persons or any state or any
agency of a state; and
(j) references to time are to London time.
2. FACILITY
2.1 FACILITY
2.1.1 Subject to the terms of this Agreement, the Banks agree to make
available to the Borrower a Dollar term loan facility in the maximum
principal amount of $2,400,000,000.
2.1.2 Notwithstanding any other term of this Agreement, no Bank shall be
obliged to lend more than its Commitment.
2.2 OBLIGATIONS SEVERAL
2.2.1 The obligations of the Finance Parties under this Agreement are
several.
2.2.2 The failure of a Finance Party to carry out its obligations under this
shall not relieve any other Party of any of its obligations under
this Agreement.
2.2.3 None of the Finance Parties shall be responsible for the obligations of
any other Party under this Agreement.
2.3 RIGHTS SEVERAL
2.3.1 The rights of the Finance Parties under this Agreement are several. All
amounts due, and obligations owed, to each of them are separate and
independent debts or, as the case may be, obligations.
2.3.2 Each Finance Party may, except as otherwise stated in this Agreement;
separately enforce its rights under this Agreement.
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3. PURPOSE
3.1 PURPOSE
The Borrower shall use the proceeds of all Advances to finance a
portion of the consideration payable for the direct and/or indirect
acquisition by the Borrower of the entire issued share capital of Case
Corporation and the costs and expenses relating thereto.
3.2 NO MONITORING
None of the Finance Parties shall be obliged to investigate or monitor
the use or application of the proceeds of the Advances.
4. CONDITIONS PRECEDENT
Notwithstanding any other term of this Agreement, none of the Finance
Parties shall be under any obligation to make the Facility available
to the Borrower unless the Agent has notified the Borrower and the
Banks that it has received all the documents listed in Schedule 2 (in
form and content satisfactory to the Agent).
5. DRAWDOWN
5.1 DRAWDOWN PERIOD
Subject to the terms of this Agreement, an Advance shall be made to
the Borrower at any time during the Drawdown Period when requested by
means of a Drawdown Notice in accordance with this Clause 5. At the
close of business on the day of the Drawdown Period the undrawn amount
of each Bank's Commitment shall be automatically cancelled.
5.2 CONDITIONS TO EACH ADVANCE
The obligation of each Bank to make available its Participation in an
Advance is subject to the conditions that on the date on which the
relevant Drawdown Notice is given and on the Drawdown Date:
(a) the representations and warranties in Clauses 12.1(a) to (d)
inclusive to be repeated on those dates are correct and will be
correct immediately after the Advance is made; and
(b) no Default or Potential Default has occurred and is continuing or
would occur on the making of the Advance.
5.3 DRAWDOWN NOTICE
5.3.1 Whenever the Borrower wishes an Advance to be made, it shall give a
duly completed Drawdown Notice to the Agent to be received not later
than 10.00 a.m. on the third Business Day before the Drawdown Date.
5.3.2 A Drawdown Notice shall be irrevocable and the Borrower shall be
obliged to borrow in accordance with its terms.
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5.4 LIMITATIONS ON ADVANCES
The following limitations apply to Advances:
(a) the Drawdown Date of an Advance shall be a Business Day
falling before the end of the Drawdown Period;
(b) the principal amount of an Advance shall be:
(i) a minimum of $100,000,000 and an integral
multiple of $25,000,000; or
(ii) the amount of the Available Facility;
(c) no Advance shall be made if the making of that Advance
would result in the aggregate of all Advances exceeding the
Total Commitments; and
(d) no more than 6 Advances may be outstanding at any one time.
5.5 NOTIFICATION TO BANKS
The Agent shall promptly notify each Bank of the details of each
Drawdown Notice received by it.
5.6 PARTICIPATIONS
Subject to the terms of this Agreement, each Bank acting through its
Lending Office shall make available to the Agent on the Drawdown Date
for an Advance amount equal to its Participation in that Advance. A
Bank shall participate in an Advance in the proportion borne by its
Available Commitment to the Available Facility on the Drawdown Date
of that Advance.
6. INTEREST
6.1 INTEREST RATE
Interest shall accrue on each Advance from and including the relevant
Drawdown Date to but excluding the date the Advance is repaid at the
rate determined by the Agent to be the aggregate of:
(a) the Margin; and
(b) LIBOR.
6.2 INTEREST PERIODS
6.2.1 Interest payable on each Advance shall be calculated by reference to
successive Interest Periods of 1, 2, 3 or 6 months' duration (or such
other Interest Period as the Agent, acting on the instructions of all
the Banks, may allow) as selected by the Borrower in accordance with
this Clause 6.2.
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6.2.2 The Borrower shall select an Interest Period for an Advance in either
the Drawdown Notice (in the case of the first Interest Period for an
Advance) or (in the case of any subsequent Interest Period for an
Advance) by notice received by the Agent no later than 3 Business
Days before the commencement of that Interest Period.
6.2.3 The first Interest Period for an Advance shall begin on the Drawdown
Date of that Advance. Each succeeding Interest Period for that
Advance shall begin on the Interest Date of the previous Interest
Period.
6.2.4 The Borrower may, by notice to the Agent at least 3 Business Days
before an Interest Date relating to an Advance, elect that that
Advance be split into two or more Advances of at least $100,000,000
each (and being multiples of $25,000,000). Any such notice shall take
effect in accordance with its terms from that Interest Date, provided
that there shall not be more than 6 Advances outstanding at any one
time.
6.2.5 Subject to the other terms of this Agreement, if the Interest Periods
for two or more Advances end on the same day those Advances shall be
deemed to be a single Advance from that day.
6.2.6 If the Borrower fails to select an Interest Period for an Advance in
accordance with Clause 6.2.2, that Interest Period shall, subject to
the other provisions of this Clause 6, be 1 month.
6.2.7 If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
6.2.8 If an Interest Period begins on the last Business Day in a calendar
month or on a Business Day for which there is no numerically
corresponding day in the calendar month in which that Interest Period
is to end, it shall end on the last Business Day in that calendar
month.
6.2.9 If an Interest Period would otherwise extend beyond the Repayment
Date, it shall be shortened so that it ends on the Repayment Date.
6.3 DEFAULT INTEREST
6.3.1 If the Borrower fails to pay any amount payable under any Financing
Document on the due date, it shall pay default interest on the
overdue amount from the due date to the date of actual payment
calculated by reference to successive Interest Periods (each of such
duration as the Agent may acting reasonably select and the first
beginning on the relevant due date) at the rate per annum being the
aggregate of (a) 1.00 per cent. per annum, (b) the Margin and (c)
LIBOR.
6.3.2 So long as the overdue amount remains unpaid, the default interest
rate shall be recalculated in accordance with the provisions of this
Clause 6.3 on the last day of each such Interest Period and any
unpaid interest shall be compounded at the end of each Interest
Period.
6.4 CALCULATION AND PAYMENT ON INTEREST
6.4.1 At the beginning of each Interest Period, the Agent shall notify the
Banks and the Borrower of the duration of the Interest Period and the
rate and amount of interest payable for the Interest Period (but in
the case of any default interest calculated under Clause 6.3, any
such
16
notification need not be made more frequently than weekly). Each
notification shall set out in reasonable detail the basis of
computation of the amount of interest payable.
6.4.2 Interest due from the Borrower under this Agreement shall:
(a) accrue from day to day at the rate calculated under this
Clause 6;
(b) except as otherwise provided in this Agreement, be paid by
the Borrower to the Agent (for the account of the Banks or
the Agent, as the case may be) in arrear on each Interest
Date, provided that for any Interest Period which is for
longer than 6 months, the Borrower shall pay interest 6
monthly in arrear as well as on the relevant Interest Date;
(c) be calculated on the basis of the actual number of days
elapsed and a 360 day year; and
(d) be payable both before and after judgement.
6.5 AGENT'S DETERMINATION
The determination by the Agent of any interest payable under this
Clause 6 shall be conclusive and binding on the Borrower in the
absence of manifest error.
7. REPAYMENT AND PREPAYMENT
7.1 REPAYMENT
The Borrower shall repay the Loan to the Agent (for the account of the
Banks) on the Repayment Date.
7.2 VOLUNTARY PREPAYMENT
7.2.1 The Borrower may, by giving the Agent not less than 3 Business Days'
prior notice, prepay the whole or part (but if in part, in a minimum
amount of $10,000,000 and an integral multiple of $10,000,000) of any
Advance.
7.2.2 Any notice of prepayment shall be irrevocable, shall specify the date
on which the prepayment is to be made and the amount of the
prepayment, and shall oblige the Borrower to make that prepayment. The
Agent shall promptly notify the Banks of receipt of any such notice.
7.3 MANDATORY REDUCTION AND PREPAYMENT
7.3.1 The Total Commitments shall, on the date (a "REDUCTION DATE") the same
is received by the Borrower or any of its Subsidiaries, be cancelled
pro rata by the amount of the gross proceeds of any capital markets
issue of the Borrower or any of its Subsidiaries other than New
Holland Credit Company LLC, Case Capital Corporation and Subsidiaries
of Case Capital Corporation (but excluding (i) the proceeds of any
capital markets debt issue raised for working capital purposes and
(ii) the proceeds of any equity issue made in order to refinance an
equity bridging loan existing at the date of this Agreement).
17
7.3.2 Within 10 Business Days of a Reduction Date, the Borrower shall prepay
such part of the Loan (if any) as if necessary to ensure that the Loan
does not exceed the Total Commitments (as reduced on such Reduction
Date).
7.4 ACCRUED INTEREST AND BROKEN FUNDING COSTS
Any prepayment shall be made together with accrued interest on the
amount prepaid and any amounts payable under Clause 22.1.
7.5 EFFECT OF REPAYMENT OR PREPAYMENT
Any amount repaid or prepaid may not be re-borrowed and shall reduce
each Bank's Commitment rateably.
7.6 LIMITATION
The Borrower may not repay or prepay all or any part of the Loan
except as expressly provided in this Agreement.
8. CANCELLATION
8.1 CANCELLATION
The Borrower may, by giving the Agent not less than 3 Business Days'
prior notice, cancel all or part of the Available Facility (but if in
part, in a minimum amount of $10,000,000 and an integral multiple of
$10,000,000).
8.2 NOTICE
Any notice of cancellation shall be irrevocable and shall specify the
date on which the cancellation shall take effect and the amount of the
cancellation. The Agent shall promptly notify the Banks of receipt of
any such notice.
8.3 EFFECT OF CANCELLATION
The Borrower may not borrow any part of the Facility which has been
cancelled. Any cancellation shall reduce each Bank's Commitment
rateably.
8.4 LIMITATION
The Borrower may not cancel all or part of the Facility except as
expressly provided in this Agreement.
9. CHANGES IN CIRCUMSTANCES
9.1 ILLEGALITY
If it is or becomes illegal for a Bank to maintain its Commitment or
to continue to make available or fund its Participation in any
Advance, then:
18
(a) that Bank shall notify the Agent and the Borrower; and
(b) (i) the Commitment of that Bank shall be cancelled
immediately; and
(ii) the Borrower shall prepay to the Agent (for the
account of that Bank) that Bank's Participation in
all Advances (together with accrued interest on
the amount prepaid and all other amounts owing to
that Bank under this Agreement) within 5 Business
Days of demand by that Bank (or, if permitted by
the relevant law, on the next Interest Date of the
relevant Advances).
Any such prepayment under paragraph (b)(ii) above shall be subject to
Clause 22.1.
9.2 INCREASED COSTS
9.2.1 If, after the date of this Agreement, a Change occurs which causes an
Increased Cost (as defined in Clause 9.2.3) to a Bank (or any company
of which that Bank is a Subsidiary) then the Borrower shall pay (as
additional interest) to the Agent (for the account of that Bank)
within 10 Business Days of demand all amounts which that Bank
certifies to be necessary to compensate that Bank (or any company of
which that Bank is a Subsidiary) for the Increased Cost.
9.2.2 Any demand made under Clause 9.2.1 shall be made by the relevant Bank
through the Agent and shall set out in reasonable detail so far as is
practicable the basis of computation of the Increased Cost.
9.2.3 In this Clause 9.2:
"INCREASED COST" means any cost to, or reduction in the amount payable
to, or reduction in the return on capital or regulatory capital
achieved by, a Bank (or any company of which that Bank is a
Subsidiary) to the extent that it arises, directly or indirectly, as a
result of the Change and is attributable to the Commitment or
Participation in any Advance of that Bank or the funding of that
Bank's Participation in any Advance including any liability to make
any payment on account of Tax or otherwise (other than Tax on Overall
Net Income) on or calculated by reference to the amount of such Bank's
Participation in any Advance and/or any sum received or receivable by
it hereunder.
"TAX ON OVERALL NET INCOME" means, in relation to a person, Tax (other
than Tax deducted or withheld from any payment) imposed on the net
income of that person by the jurisdiction in which its Lending Office
or its head office is situated.
9.2.4 The Borrower shall not be obligated to make a payment in respect of an
Increased Cost under this Clause 9.2 if and to the extend that the
Increased Cost has been compensated for by the operation of Clause
10.9 or the payment of the Additional Cost Rate.
9.2.5 If the Borrower is required to pay any amount to a Bank under this
Clause 9.2, then, without prejudice to that obligation and so long as
the circumstances giving rise to the relevant Increased Cost are
continuing and subject to the Borrower giving the Agent and that Bank
not less than 5 Business Day's prior notice (which shall be
irrevocable), the Borrower may prepay all, but not part, of the Bank's
Participation in the Advances together with accrued interest on the
amount prepaid. Any such prepayment shall be subject to Clause 22.1.
On any such prepayment the Commitment of the relevant Bank shall be
automatically cancelled.
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9.2.6 In the event that the Borrower over-compensates a Bank under this
Clause 9.2, such Bank shall promptly return to the Borrower an amount
equal to the amount of over-compensation.
9.3 MARKET DISRUPTION
9.3.1 If, in relation to an Advance and a particular Interest Period
selected by the Borrower in accordance with Clause 6.2.2;
(a) the Agent determines that, because of circumstances
affecting the London interbank market generally, reasonable
and adequate means do not exist for ascertaining LIBOR for
the Advance for the Interest Period; or
(b) the Agent has been notified by a group of Banks whose
Commitments together exceed 51 per cent. of the Total
Commitments that in their reasonable opinion matching
deposits may not be available to them in the London
interbank market in the ordinary course of business to fund
their Participations in that Advance for that Interest
Period the Agent shall promptly notify the Borrower and the
Banks of that event (such notice being a "Market Disruption
Notice").
9.3.2 If a Market Disruption Notice applies to a proposed Advance, that
Advance shall not be made unless the Borrower so requests. The Agent
and the Borrower shall immediately enter into negotiations in good
faith for a period of not more than 30 days with a view to agreeing a
substitute basis for calculating the interest rate for the Advance of
for funding the Advance (whether in Dollars or another currency). Any
substitute basis agreed by the Agent (with the consent of all the
Banks) and the Borrower shall take effect in accordance with its terms
and be binding on all the Parties.
9.3.3 If a Market Disruption Notice applies to an outstanding Advance or
a proposed Advance that the Borrower has requested shall be made and,
in each case, in respect of a particular Interest Period, then:
(a) the Agent and the Borrower shall immediately enter into
negotiations in good faith for a period of not more that
30 days with a view to agreeing a substitute basis for
calculating the rate of interest for the Advance (whether
in Dollars or another currency) for such Interest Period;
(b) any substitute basis agreed under Clause 9.3.3(a) by the
Agent (with the consent of all the Banks) and the Borrower
shall take effect in accordance with its terms and be
binding on all the Parties;
(c) if no substitute basis is agreed under Clause 9.3.3(a),
then, subject to Clause 9.3.4, each Bank shall (through the
Agent) certify 1 day before the first day of such Interest
Period a substitute basis for maintaining its Participation
in the Advance which shall reflect the cost to the Bank of
funding its Participation in the Advance from whatever
sources it selects plus the Margin; and
(d) each substitute basis so certified shall be binding on the
Borrower and the certifying Bank and treated as part of this
Agreement.
9.3.4 So long as the circumstances giving rise to the Market Disruption
Notice continue and subject to the Borrower giving the Agent and the
Banks not less than 3 Business Days' prior notice (which shall be
irrevocable), the Borrower may prepay the Advance to which the
20
Market Disruption Notice applies together with accrued interest
on the amount prepaid. Any such prepayment shall be subject to
Clause 22.1.
9.4 MITIGATION
If any circumstances arise in respect of any Bank which would, or
upon the giving of notice would, result in the operation of
Clause 9.1, 9.2, 9.3 or 10.9 to the detriment of the Borrower,
then that Bank shall:
(a) promptly upon becoming aware of those circumstances and
their results, notify the Agent and the Borrower; and
(b) in consultation with the Agent and Borrower, take all such
steps as it determines are reasonably open to it to
mitigate the effects of those circumstances (including
changing its Lending Office or consulting with the
Borrower with a view to transferring some or all of its
rights and obligations under this Agreement to another
bank or other financial institution acceptable to the
Borrower) in a manner which will avoid the circumstances
in question and on terms acceptable to the Agent, the
Borrower and that Bank,
provided that no Bank shall be obliged to take any steps which in
its opinion would or might have an adverse effect on its business
or financial condition or the management of its Tax affairs or
cause it to incur any material costs or expenses.
9.5 CERTIFICATES
The certificate or notification of the Agent or, as the case may be,
the relevant Bank as to any of the matters referred to in this Clause
9 shall be in reasonable detail and shall be prima facie evidence of
the matters to which they relate.
10. PAYMENTS
10.1 PLACE AND TIME
All payments by the Borrower or a Bank under this Agreement shall be
made to the Agent to its account at such office or bank in New York at
such time as the Agent may notify to the Borrower or the Banks for
this purpose.
10.2. FUNDS
All payments to the Agent under this Agreement shall be made for value
on the due date in freely transferable and readily available funds.
10.3 DISTRIBUTION
10.3.1 Each payment received by the Agent under this Agreement for another
Party shall, subject to Clauses 10.3.2 and 10.3.3, be made available
by the Agent to that Party by payment (on the date and in the currency
and funds of receipt) to its account with such office or bank in New
York as it may notify to the Agent for this purpose by not less than 5
Business Days' prior notice.
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10.3.2 The Agent may apply any amount received by it for the Borrower in or
towards payment (on the date and in the currency and funds of receipt)
of any amount due from the Borrower under this Agreement or in or
towards the purchase of any amount of any currency to be so applied.
10.3.3 Where a sum is to be paid to the Agent under this Agreement for
another Party, the Agent is not obliged to pay that sum to that Party
until it has established that it has actually received that sum. The
Agent may, however, assume that the sum has been paid to it in
accordance with this Agreement, and, in reliance on that assumption,
make available to that Party a corresponding amount. If the sum has
not been made available but the Agent has paid a corresponding amount
to another Party, that Party shall immediately on demand by the Agent
refund the corresponding amount together with interest on that amount
from the date of payment to the date of receipt, calculated at a rate
determined by the Agent to reflect its cost of funds.
10.4 BUSINESS DAYS
If a payment under this Agreement is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
10.5 CURRENCY
All payments under this Agreement relating to costs, losses, expenses
or Taxes shall be made in the currency in which the relative costs,
losses, expenses or Taxes were incurred. Any other amount payable
under this Agreement shall, except as otherwise provided, be made in
Dollars.
10.6 ACCOUNTS AS EVIDENCE
Each Bank shall maintain in accordance with its usual practice an
account which shall, as between the Borrower and that Bank and, in the
absence of manifest error, be prima facie evidence of the amounts from
time to time advanced by, owing to, paid and repaid to that Bank under
this Agreement.
10.7 PARTIAL PAYMENTS
10.7.1 If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Borrower under this Agreement, the
Agent shall apply that payment towards the obligations of the Borrower
under this Agreement in the following order:
(a) first, in or towards payment of any unpaid costs and expenses
of the Agent under this Agreement;
(b) second, in or towards payment pro rata of any accrued interest
due but unpaid under this Agreement;
(c) third, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
22
(d) fourth, in or towards payment pro rata of any other sum due but
unpaid under this Agreement.
10.7.2 The Agent shall, if so directed by all the Banks, vary the order set
out in Clauses 10.1.(b) to (d).
10.7.3 Clauses 10.7.1 and 10.7.2 shall override any appropriation made by
the Borrower.
10.8 SET-OFF AND COUNTERCLAIM
ALL payments by an Obligor under this Agreement shall be made without
set-off or counterclaim.
10.9 GROSSING-UP
10.9.1 Subject to Clause 10.9.2, all sums payable to any Finance Party
pursuant to or in connection with any Financing Document shall be
paid in full free and clear of all deductions or withholdings
whatsoever except only as may be required by law.
10.9.2 If any deduction or withholding is required by law in respect of any
payment due from an Obligor to any Finance Party pursuant to or in
connection with any Financing Document that Obligor shall:
(a) ensure or procure that the deduction or withholding is made and
that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or
withheld to the relevant Taxation or other authority in
accordance with the applicable law;
(c) increase the payment in respect of which the deduction or
withholding is required so that the net amount received by the
payee (which expression when used in this Clause 10.9.2 shall
mean any Finance Party) after the deduction or withholding (and
after taking account of any further deduction or withholding
which is required to be made as a consequence of the increase)
shall be equal to the amount which the payee would have been
entitled to receive in the absence of any requirement to make
any deduction or withholding; and
(d) upon request by any payee, promptly deliver or procure the
delivery to the relative payee of receipts reasonably
evidencing each deduction or withholding which has been made.
10.9.3 If the Agent is obliged to make any deduction or withholding from any
payment to any Bank (an "Agency Payment") which represents an amount
or amounts received by the Agent from an Obligor under any Financing
Document, that Obligor shall, after being notified by the relevant
Bank of its intention to make a claim under this Clause 10.9.3, pay
directly to that Bank such sum (an "Agency Compensating Sum") as
shall, after taking into account any deduction or withholding which
the Borrower is obliged to make from the Agency Compensating Sum,
enable that Bank to receive, on the due date for payment of the Agency
Payment, an amount equal to the Agency Payment which that Bank would
have received in the absence of any obligation to make any deduction
or withholding.
23
10.9.4 If any Bank determines, in its absolute discretion, that it has
received, recovered, realised, utilised and retained a Tax benefit by
reason of any deduction or withholding in respect of which an Obligor
has made an increased payment or paid an Agency Compensating Sum under
this Clause 10.9, that Bank shall, provided that each Finance Party
has received all amounts which are then due and payable by the
Obligors under any Financing Document, pay to such Obligor (to the
extent that Bank can do so without prejudicing the amount of the
benefit or repayment and the right of that Bank to obtain any other
benefit, relief or allowance which may be available to it) such
amount, if any, as that Bank, in its absolute discretion shall
determine, will leave that Bank in no worse position than it would
have been in if the deduction or withholding had not been required,
provided that:
(a) each Bank shall have an absolute discretion as to the time at
which and the order and manner in which it realises or utilises
any Tax benefit and shall not be obliged to arrange its
business or its Tax affairs in any particular way in order to
be eligible for any credit or refund or similar benefit;
(b) no Bank shall be obliged to disclose any information regarding
its business, Tax affairs or Tax computations;
(c) if a Bank has made a payment to an Obligor pursuant to this
Clause 10.9.4 on account of any Tax benefit and it subsequently
transpires that Bank did not receive that Tax benefit, or
received a lesser Tax benefit, such Obligor shall, on demand,
pay to that Bank such sum as that Bank may determine as being
necessary to restore its after-tax position to that which it
would have been had no adjustment under this Clause 10.9.4 been
made provided that such sum shall not exceed the amount paid to
the Obligor by the Bank pursuant to this Clause 10.9.4.
10.9.5 No Bank shall be obliged to make any payment under Clause 10.9.4 if,
by doing so, it would contravene the terms of any applicable law or
any notice, direction or requirement of any governmental or regulatory
authority (whether or not having the force of law).
10.9.6 If an Obligor is required to make an increased payment for the
account of a Bank under Clause 10.9.2 or 10.9.3, then, without
prejudice to that obligation and so long as such requirement exists
and subject to the Borrower giving the Agent and that Bank not less
than 5 Business Days' prior notice (which shall be irrevocable), the
Borrower may prepay all, but not part, of that Bank's Participation in
the Advances together with accrued interest on the amount prepaid. Any
such prepayment shall be subject to Clause 22.1. On any such
prepayment the Commitment of the relevant Bank shall be automatically
cancelled.
10.9.7 Each Bank confirms to the Borrower that, as at the date such Bank
becomes a Party, the Borrower will be entitled to make payments to
that Bank in accordance with this Agreement without deduction or
withholding for or on account of any Taxes under the laws of the
Netherlands.
11. GUARANTEE
11.1 GUARANTEE
Subject to and with the benefit of the provisions in Clause 11.2, the
Guarantor hereby unconditionally and irrevocably guarantees to the
Finance Parties that if, for any reason, the Borrower does not pay any
sum from time to time payable by it to any Finance Party under
24
this Agreement (including any other amount of whatever nature or
additional amounts which may become payable under any of the
foregoing) as and when the same shall become due and payable under any
of the foregoing, it shall on demand pay in the currency in which the
same falls due for payment under the terms of this Agreement, all
moneys which are now or at any time hereafter shall have become due or
owing by the Borrower to any or all of the Finance Parties pursuant to
this Agreement.
11.2. GUARANTEE PROVISIONS
11.2.1 The guarantee (the "Guarantee") given pursuant to this clause 11 is a
continuing security and shall remain in full force and effect until
all moneys, obligations and liabilities referred to in Clause 11.1
have been paid, discharged or satisfied in full notwithstanding the
liquidation or other incapacity or any change in the constitution of
the Borrower or in the name and style of the Borrower or any
settlement of account or other matter whatsoever.
11.2.2 The Guarantee is in addition to and shall not merge with or otherwise
prejudice or affect or be prejudiced by any other right, remedy,
guarantee, indemnity or security and may be enforced without first
having recourse to the same or any other xxxx, note, mortgage, charge,
pledge or lien now or hereafter held by or available to any Finance
Party.
11.2.3 Notwithstanding that the Guarantee ceases to be continuing
for any reason whatever any of the Finance Parties may continue any
accounts of the Borrower or open one or more new accounts and the
liability of the Guarantor hereunder shall not be reduced or affected
by any subsequent transactions or receipts or payments into or out of
any such accounts.
11.2.4 The Guarantor hereby unconditionally and irrevocably agrees
that any sum expressed to be payable by the Borrower under this
Agreement but which is for any reason (whether or not now known or
becoming known to the Borrower, the Guarantor or any Finance Party)
not recoverable from the Guarantor on the basis of the Guarantee will
nevertheless be recoverable from it as if it were the sole principal
debtor and will be paid by it to the Finance Parties on demand. This
indemnity constitutes a separate and independent obligation from the
other obligations in this Guarantee, gives rise to a separate and
independent cause of action and will apply irrespective of any
indulgence granted by all or any of the Finance Parties.
11.2.5 The Guarantor will be liable under the Guarantee as if it were the
sole principal debtor and not merely a surety. The liability of the
Guarantor shall not be affected nor shall the Guarantee be discharged
or diminished by reason of anything which would not discharge it or
affect its liability if it were the sole principal debtor, including:
(a) any time, indulgence, waiver or consent at any time given to
the Borrower or any other person;
(b) any amendment to the Financing Documents;
(c) the making or absence of any demand on the Borrower or any
other person for payment;
(d) the enforcement or absence of enforcement of any of the
provisions of this Agreement;
(e) the release of any guarantee or indemnity;
25
(f) the dissolution, amalgamation, reconstruction or reorganisation
of the Borrower or any other person;
(g) the illegality, invalidity or unenforceability of or any defect
in any provision of the Financing Documents or any of the
Borrower's obligations under any of them; or
(h) any other act, event or omission which but for this paragraph
(h) might operate to discharge, impair or otherwise affect the
obligations expressed to be assumed by the Guarantor in this
Agreement or any of the rights, powers or remedies conferred upon
the Finance Parties by this Guarantee or by law.
11.2.6 The Guarantor agrees that, during the Facility Period, the Guarantor
will not exercise any right which the Guarantor may at any time have by
reason of the performance by the Guarantor of its obligations hereunder:
(a) to be indemnified by the Borrower;
(b) to claim any contribution from any other guarantor of the
Borrower's obligations under or in respect of the Facility;
(c) to take the benefit (in whole or in part) of any security enjoyed
in connection with the Facility by any Finance Party; or
(d) to be subrogated to the rights of any Finance Party against the
Borrower in respect of amounts paid by the Guarantor under this
Guarantee.
11.2.7 Any settlement or discharge between the Guarantor and the Finance
Parties or any of them shall be conditional upon no payment to the
Finance Parties or any of them by the Borrower or any other person on
the Borrower's behalf being avoided or reduced by virtue of any
laws relating to bankruptcy, insolvency, liquidation or similar laws
of general application for the time being in force and, in the event
of any such payment being so avoided or reduced, the Finance Parties
shall be entitled to recover the amount by which such payment is so
avoided or reduced from the Guarantor subsequently as if such
settlement or discharge had not occurred provided that such recovery
is not contrary to any law applicable thereto.
11.2.8 If any payment received by a Finance Party is, on the subsequent
liquidation or insolvency of the Borrower, avoided under any laws
relating to liquidation or insolvency, such payment will not be
considered as having discharged or diminished the liability of the
Guarantor and this Guarantee will continue to apply as if such
payment had at times remained owing by the Borrower.
11.2.9 The Finance Parties shall not be obliged before exercising any of the
rights, powers or remedies conferred upon them by the Guarantee or by
law:
(a) to make any demand of the Borrower;
(b) to take any action or obtain judgement in any court against the
Borrower or any other person; or
(c) to make or file any claim or proof in a bankruptcy or liquidation
of the Borrower or any other person.
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12 REPRESENTATIONS AND WARRANTIES
12.1 REPRESENTATIONS AND WARRANTIES
Each Obligor represents and warrants to each Finance Party that:
(a) STATUS: it is a limited company duly incorporated under the laws
of its jurisdiction of incorporation and it possesses the
capacity to xxx and be sued in its own name and has the power to
carry on its business and to own its property and other assets;
(b) POWERS AND AUTHORITY: it has power to execute, deliver and
perform its obligations under the Financing Documents and to
carry out the transactions contemplated by those documents and
all necessary corporate, shareholder and other action has been
taken to authorise the execution, delivery and performance of the
same;
(c) BINDING OBLIGATIONS: subject to the Reservations, its obligations
under the Financing Documents constitute its legal, valid,
binding and enforceable obligations;
(d) CONTRAVENTIONS: the execution, delivery and performance by it of
the Financing Documents does not:
(i) contravene any applicable law or regulation or any order of
any governmental or other official authority, body or
agency or any judgement, order or decree of any court
having jurisdiction over it, or
(ii) contravene or conflict with its constitutional documents;
(e) INSOLVENCY: it has not taken any action nor (to the best of its
knowledge, information and belief) have any steps been taken or
legal proceedings been started against it for its winding-up,
dissolution, administration or re-organisation or for the
appointment of a receiver, administrative receiver, or
administrator, trustee or similar officer of it or of a material
part of its assets;
(f) NO DEFAULT: to the best of its knowledge, information and belief
it is not in breach of or in default in any material respect
under any agreement relating to Indebtedness to which it is a
party or which is binding on it or any of its assets to an extent
which would have a material adverse effect on the ability of that
Obligor to comply with its payment obligations under this
Agreement;
(g) LITIGATION: to the best of its information, knowledge and belief,
no action, litigation, arbitration or administrative proceeding
has been commenced or is pending against it which would have a
material adverse effect on the ability of that Obligor to comply
with its payment obligations under the Financing Documents;
(h) ORIGINAL FINANCIAL STATEMENTS: the Original Financial Statements
of that Obligor were prepared in accordance with GAAP and give
a true and fair view of that Obligor's financial position at the
date to which they were prepared and the
27
results of that Obligor's operations during the Financial Year
of that Obligor to which they relate;
(i) INFORMATION MEMORANDUM:
(i) the information contained in the Information Memorandum is
true and accurate in all material respects as at its date;
and
(ii) the Information Memorandum did not omit any information
which would make any fact or statement in it misleading in
any material respect;
(j) NO MATERIAL ADVERSE CHANGE: since the date of its Original
Financial Statements no event has occurred which has had a
material adverse effect on its business or financial condition;
and
(k) MARGIN STOCK: the proceeds of the Advances have not been used to
buy, purchase or maintain any Margin Stock which would impose
regulatory requirements under, and as such term is defined in,
Regulation U of the Board of Governors of the Federal Reserve of
the United States of America.
12.2 REPETITION
The representations and warranties in Clause 12.1(a) to (d) shall
survive the execution of this Agreement and shall be deemed to be
repeated by each Obligor on the date on which each Drawdown Notice is
given and on the date on which each Advance is made with reference to
the facts and circumstances existing at that time.
13. UNDERTAKINGS
13.1 INFORMATION UNDERTAKINGS
Each Obligor undertakes that during the Facility Period it shall, unless
the Agent (acting on the instructions of the Majority Banks) otherwise
agrees:
(a) ANNUAL STATEMENTS: as soon as the same become available (and in
any event within 210 days after the end of each of its Financial
Years), deliver to the Agent in sufficient copies for all the
Banks its audited consolidated financial statements for each
such Financial Year;
(b) SEMI-ANNUAL STATEMENTS: as soon as the same become available (and
in any event within 120 days after the end of the first half of
each of its Financial Years), deliver to the Agent in sufficient
copies for all the Banks its unaudited consolidated interim
financial statements for each such half-year but, in relation to
the Borrower, only to the extent such unaudited interim financial
half year statements are actually being prepared by the Borrower;
and
(c) SHAREHOLDER'S DOCUMENTS: deliver to the Agent as soon as
reasonably practicable in sufficient copies for all the Banks all
documents despatched by it to its creditors generally, or in the
case of the Guarantor, to its shareholders generally.
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13.2 POSITIVE UNDERTAKINGS
Each Obligor undertakes that during the Facility Period it shall, unless
the Agent (acting on the instructions of the Majority Banks) otherwise
agrees:
(a) AUTHORISATIONS: obtain, maintain and comply with the terms of any
authorisation, approval, licence, consent, exemption, clearance,
filing or registration required in or by the laws and regulations
of its jurisdiction of incorporation to enable it to lawfully
enter into and perform its obligations under, or for the
legality, validity, enforceability or admissibility in evidence
in its jurisdiction of incorporation of, each Financing Document;
(b) RANKING OF OBLIGATIONS: ensure that its obligations under the
Financing Documents shall at all times rank at least pari passu
with all its other present and future unsecured and
unsubordinated obligations (whether actual, contingent, present
or future) except for any obligations which are mandatorily
preferred by law; and
(c) NOTIFICATION OF DEFAULT: promptly, upon becoming aware of the
same, notify the Agent of the occurrence of a Default or
Potential Default and, upon receipt of a written request to that
effect from the Agent, confirm to the Agent that, save as
previously notified to the Agent or as notified in such
confirmation, no Default or Potential Default has occurred.
13.3 NEGATIVE PLEDGE
Each Obligor undertakes that during the Facility Period it shall not,
unless the Agent (acting on the instructions of the Majority Banks)
otherwise agrees, create any Encumbrance (other than a Permitted
Encumbrance) over any of its present or future assets to prefer any
of its Indebtedness unless such Encumbrance or such other security as
the Agent (acting on the instructions of the Majority Banks) considers
equivalent thereto is at the same time extended equally and ratably
to the obligations of such Obligor under the Financing Documents.
14. DEFAULT
14.1 DEFAULT
Each of the following shall be a Default:
(a) NON-PAYMENT: either of the Obligors does not pay on the due date
any amount payable by it under this Agreement at the place at and
in the currency and funds in which it is expressed to be payable
unless the failure to pay such amount is due solely to
administrative or technical delays in the transmission of funds
and such amount is paid within 5 Business Days after its due date
for payment; or
(b) OTHER DEFAULTS: either of the Obligors breaches any of its
obligations under any Financing Document (other than the
obligations referred to in Clause 14.1(a)) and if that breach is
capable of remedy, it is not remedied within 30 days after
written notice of that breach has been given by the Agent to the
relevant Obligor; or
29
(c) BREACH OF REPRESENTATION OR WARRANTY: any representation, warranty
or statement made or deemed to be repeated by either of the
Obligors under this Agreement or in any document delivered by
it or on its behalf under or in connection with this Agreement is
or proves to have been incorrect or misleading when made or
deemed to have been repeated; or
(d) UNLAWFULNESS OR REPUDIATION: it is unlawful for either of the
Obligors to perform or comply with, or either of the Obligors
repudiates, any of its obligations under any Financing Document or,
subject to the Reservations, any of those obligations is not
legal, valid, binding, effective and enforceable; or
(e) CROSS-ACCELERATION: either or both of the Obligors;
(a) becomes bound to repay prematurely any Indebtedness by
reason of a default by either of the Obligors which default
is followed by an appropriate demand for such repayment; or
(b) fails to make any payment of principal, premium or interest
in respect of any Indebtedness on the due date for such
payment or within any grace period specified in the
agreement or other instrument constituting such
Indebtedness,
where such Indebtedness is in an aggregate amount in excess of
US$50,000,000 (or its equivalent in other currencies), except
where such Obligor is taking action by appropriate proceedings
in good faith to dispute the validity of the obligation to repay
prematurely such Indebtedness or to make such payment, as the
case may be, and unless such default or failure to pay shall have
been waived by the person to whom the relevant Indebtedness is
payable; or
(f) ATTACHMENT OR DISTRESS: a creditor or encumbrancer attaches or
takes possession of or a receiver or similar officer is appointed
over the whole or any material part of the assets of either of the
Obligors, or a distress, execution, sequestration or other process
is levied or enforced upon or sued out against, the whole or
any material part of the assets of either of the Obligors and
such process is not discharged within 30 days; or
(g) INABILITY TO PAY DEBTS: either of the Obligors:
(i) suspends payment of its debts generally or is unable or
admits its inability to pay generally as they fall due; or
(ii) proposes or enters into any composition or other arrangement
for the benefit of its creditors generally; or
(iii) has proceedings commenced against it with a view to the
readjustment or rescheduling of any of its Indebtedness
which it would not otherwise be able to pay as it fell
due; or
(h) INSOLVENCY PROCEEDINGS: either of the Obligors:
(i) is adjudicated or found insolvent; or
30
(ii) has an order made against it by any competent court or
passes a resolution for its winding-up or dissolution
or for the appointment of a liquidator, administrator,
trustee, receiver, administrative receiver or similar
officer in respect of it or the whole or any
substantial part of its assets; or
(i) ANALOGOUS PROCEEDINGS: any event occurs which under the laws of
any jurisdiction has a similar or analogous effect to any of the
events mentioned in Clause 14.1(f), (g) or (h); or
(j) CESSATION OF BUSINESS: either of the Obligors suspends, ceases
or threatens to suspend or cease to carry on its business unless
such cessation, or threatened cessation, is in connection with a
merger, consolidation or any other form of combination with
another company and such company assumes all obligations of the
Borrower or the Guarantor respectively under the Financing
Documents; or
(k) CHANGE OF CONTROL: the Guarantor ceases to be the beneficial
owner of shares in the issued share capital of the Borrower
carrying the right to exercise more than 50 per cent. of the
votes exercisable at a general meeting of the Borrower or
otherwise ceases to exercise control over the Borrower; or
(l) GOVERNMENTAL INTERVENTION: all or a material part of the assets,
rights or revenues of, or shares or other ownership interests in,
either of the Obligors are seized, nationalised, expropriated or
compulsorily acquired by or under the authority of any
government.
14.2 ACCELERATION
If a Default occurs and remains unremedied the Agent may, and shall if
so instructed by the Majority Banks, by notice to the Borrower:
(a) cancel the Facility and require the Borrower immediately to
repay the Loan together with accrued interest and all other sums
payable under this Agreement, whereupon they shall become
immediately due and payable; or
(b) place the Facility on demand, whereupon the Loan together with
accrued interest and all other sums payable under this Agreement
shall become repayable on demand made by the Agent on the
instructions of the Majority Banks.
Upon the service of any such notice by the Agent the Commitment of
each Bank shall be cancelled.
15. PRO RATA SHARING
15.1 REDISTRIBUTION
If any amount owing by an Obligor under this Agreement to a Bank (the
"Sharing Bank") is discharged by voluntary or involuntary payment,
set-off or any other manner other than through the Agent in accordance
with Clause 10, then:
31
(a) the Sharing Bank shall immediately notify the Agent of the
amount discharged and the manner of its receipt of recovery;
(b) the Agent shall determine whether the amount discharged is in
excess of the amount which the Sharing Bank would have received
had the amount discharged been received by the Agent and
distributed in accordance with Clause 10;
(c) the Sharing Bank shall pay the Agent an amount equal to that
excess (the "Excess Amount") within 5 Business Days of demand by
the Agent;
(d) the Agent shall treat the Excess Amount as it were a payment by
such Obligor under Clause 10 and shall pay the Excess Amount to
the Banks (other than the Sharing Bank) in accordance with Clause
10.7; and
(e) as between such Obligor and the Sharing Bank the Excess Amount
shall be treated as not having been received or recovered, and
accordingly the Borrower shall owe the Sharing Bank an
immediately payable debt equal to the Excess Amount.
15.2 LEGAL PROCEEDINGS
Notwithstanding Clause 15.1, no Sharing Bank shall be obliged to share
any Excess Amount which it receives or recovers pursuant to legal
proceedings taken by it to recover any sums owing to it under this
Agreement with any other Bank which has a legal right to, but does
not, either join in such proceedings or commence and diligently pursue
separate proceedings to enforce its rights, unless the proceedings
instituted by the Sharing Bank are instituted by it without prior
notice having been given to such Bank through the Agent and an
opportunity to such Bank to join in such proceedings.
15.3 REVERSAL OF REDISTRIBUTION
If any Excess Amount subsequently has to be wholly or partly refunded
to an Obligor by a Sharing Bank which has paid an amount equal to that
Excess Amount to the Agent under Clause 15.1, each Bank to which any
part of that amount was distributed shall on request from the Sharing
Bank repay to the Sharing Bank that Bank's proportionate share of the
amount which has to be so refunded by the Sharing Bank.
15.4 INFORMATION
Each Bank shall on request supply to the Agent such information as the
Agent may from time to time request for the purpose of this Clause 15.
16. THE AGENT, THE LEAD ARRANGERS AND THE BANKS
16.1 APPOINTMENT AND DUTIES
16.1.1 Each Bank irrevocably appoints the Agent to act as its agent in
connection with this Agreement and irrevocably authorises the Agent on
its behalf to perform the duties and to exercise the rights, powers
and discretions that are specifically delegated to it under or in
connection with this Agreement together with any other incidental
rights, powers and discretions.
32
16.1.2 The Agent shall have no duties or responsibilities except those
expressly set out in this Agreement. As to any matters not expressly
provided for, the Agent shall act in accordance with the instructions
of the Majority Banks (but in the absence of any such instructions
shall not be obliged to act). Any such instructions, and any action
taken by the Agent in accordance with those instructions, shall be
binding upon all the Banks.
16.1.3 The Agent may:
(a) act in an agency, trustee, fiduciary or other capacity on behalf
of any other banks or financial institutions providing facilities
to an Obligor or any associated company of an Obligor, as freely
in all respects as if it had not been appointed to act as agent
for the Banks under this Agreement and without regard to the
effect on the Banks of acting in such capacity; and
(b) subscribe for, hold, be beneficially entitled to or dispose of
shares or securities, or options or other rights to and interests
in shares or securities in an Obligor or any associated company
of an Obligor (in each case, without liability to account).
16.1.4 Each division or department of the Agent (including, for so long as
Chase Manhattan International Limited is the Agent, the Loans Agency
Department of Chase Manhattan International Limited) shall be treated
as a separate entity from any other division or department of the
Agent. If any of the Agent's divisions or departments (including,
in the case of Chase Manhattan International Limited, its Loans
Agency Department) should act for an Obligor in any capacity (whether
as bankers or otherwise) in relation to any other matter, any
information given by such Obligor to any such division or department
may be treated as confidential and the Agent shall, as between itself
and Banks, not be obliged to disclose the same to any Bank or any
other person.
16.1.5 It is acknowledged that the role of the Lead Arrangers is and has
been confined solely to arranging the Facility and that in such
capacity they shall have no obligations and liabilities in relation to
this Agreement.
16.2 PAYMENTS
16.2.1 The Agent shall promptly account to the Lending Office of each Bank
for such Bank's due proportion of all sums received by the Agent for
such Bank's account, whether by way of repayment or prepayment of
principal or payment of interest, fees or otherwise.
16.2.2 The Agent shall maintain a memorandum account showing the principal
amount of each Advance outstanding under this Agreement and the amount
of each Bank's Participation in the Advances.
16.2.3 Each Bank confirms in favour of the Agent that, unless it notifies
the Agent to the contrary:
(a) it will be the beneficial owner of any interest paid to it under
this Agreement; and
(b) it is either:-
(i) a "bank" within Section 840A of the Income and
Corporation Taxes Xxx 0000; or
33
(ii) an entity not resident in the United Kingdom (for the
purposes of the Income and Corporation Taxes Act
1988); and
(c) it will provide the Agent with such evidence or information as
the Agent may reasonably require from time to time to enable the
Agent to comply with statutory obligations relating to the
performance of its obligations under this Agreement.
16.3 DEFAULT
The Agent shall not be obliged to monitor or enquire as to whether or
not a Default or Potential Default has occurred. The Agent shall be
entitled to assume that no Default or Potential Default has occurred
unless it receives notice to the contrary from the Borrower or any
Bank describing the Default or Potential Default and stating that such
notice is a "Default Notice" or unless it is aware of a payment
default under this Agreement, in which case it shall promptly notify
each Bank.
16.4 RELIANCE
The Agent may:
(a) rely on any communication or document believed by it to be
genuine and correct and to have been communicated or signed by
the person by whom it purports to be communicated or signed; and
(b) engage, pay for and rely on the advice of any professional
advisers selected by it given in connection with this Agreement
or any of the matters contemplated by this Agreement,
and shall not be liable to any Party for any of the consequences of
such reliance except in case of negligence or wilful misconduct.
16.5 LEGAL PROCEEDINGS
16.5.1 The Agent shall not be obliged to take or commence any legal action
or proceeding against an Obligor or any other person arising out of or
in connection with this Agreement until it shall have been indemnified
or secured to its satisfaction against all costs, claims and expenses
(including any costs award which may be made against it as a result of
any such legal action or proceeding not being successful) which it may
expend or incur in such legal action or proceeding.
16.5.2 The Agent may refrain from doing anything which might in its opinion
constitute a breach of any law or any duty of secrecy or
confidentiality or be otherwise actionable at the suit of any person.
16.6 NO LIABILITY
16.6.1 Neither the Agent nor any of its officers, employees or agents shall
be liable for any action taken or not taken by it or any of them
under or in connection with this Agreement unless directly caused by
its or their negligence or wilful misconduct.
34
16.6.2 Neither the Agent nor the Lead Arrangers shall be responsible for any
statements, representations or warranties in this Agreement or for any
information supplied or provided to any Bank by the Agent or the Lead
Arrangers in respect of an Obligor or any other person or for any
other matter relating to this Agreement or for the execution,
genuineness, validity, legality, enforceability or sufficiency of this
Agreement or any other document referred to in this Agreement or for
the recoverability of any Advance or any other sum to become due and
payable under this Agreement.
16.7 CREDIT DECISIONS
16.7.1 Each Bank:
(a) acknowledges that it has, independently and without reliance on
the Agent and the Lead Arrangers, made its own analysis of the
transaction contemplated by, and reached its own decision to
enter into, this Agreement and made it own investigation of the
financial condition and affairs and its own appraisal of the
creditworthiness of each Obligor; and
(b) agrees that it shall continue to make its own independent
appraisal of the creditworthiness of each Obligor.
16.7.2 Each Bank agrees that it shall, independently and without reliance on
the Agent and the Lead Arrangers, make its own decision to take or
not take action under this Agreement.
16.8 INFORMATION
16.8.1 The Agent shall provide the Banks with all information and copies of
all notices which are given to it and which by the terms of this
Agreement are to be provided or given to the Banks.
16.8.2 Except as specifically provided in this Agreement, the Agent shall
not be under any duty or obligation:
(a) either initially or on a continuing basis, to provide any Bank
with any credit information or other information with respect to
the financial condition of an Obligor or which is otherwise
relevant to the Facility; or
(b) to request or obtain any certificate, document or information
from an Obligor unless specifically requested to do so by a Bank
in accordance with this Agreement.
16.9 RELATIONSHIP WITH BANKS
16.9.1 In performing its functions and duties under this Agreement, the
Agent shall act solely as the agent for the Banks and except as
expressly provided in this Agreement shall not be deemed to be acting
as trustee for any Bank and shall not assume or be deemed to have
assumed any obligation as agent or trustee for, or any relationship of
agency or trust with, an Obligor.
16.9.2 None of the Agent, the Lead Arrangers or any Bank shall be under any
liability or responsibility of any kind to either Obligor or any other
Bank arising out of or in relation to any failure or delay in
performance or breach by either Obligor or any other Bank of any of
its or their respective obligations under this Agreement.
35
16.10 Agent's position
16.10.1 With respect to its own Participation in an Advance, the Agent shall
have the same rights and powers under and in respect of this Agreement
as any other Bank and may exercise those rights and powers as though
it were not also acting as agent for the Banks. The Agent may, without
liability to account, accept deposits from, lend money to and
generally engage in any kind of banking, finance, advisory, trust or
other business with or for either Obligor as if it were not the agent
for the Banks under this Agreement.
16.10.2 The Agent may retain for its own use and benefit (and shall not be
liable to account to any Bank for all or any part of) any sums
received by it by way of agency or management or arrangement fees or
by way of reimbursement of expenses incurred by it.
16.11 Indemnity
Each Bank shall immediately on demand indemnify the Agent (to the
extent not reimbursed by the Borrower) rateably according to the
proportion which that Bank's Participation in the Advances bears to
all Advances (or, if no Advance shall then be outstanding, its
Commitment) from and against all liabilities, losses and expenses of
any kind or nature whatsoever (except in respect of any agency,
management or other fee due to the Agent) which may be incurred by the
Agent in its capacity as agent or trustee for the Banks or in any way
relating to or arising out of this Agreement or any action taken or
omitted by the Agent in enforcing or preserving the rights of the
Banks or the Agent under this Agreement, provided that no Bank shall
be liable for any portion of such liabilities, losses or expenses
resulting from the Agent's gross negligence or wilful misconduct.
16.12 Resignation
16.12.1 The Agent may resign by giving at least 60 days' notice to the
Borrower and each Bank. Upon receipt of a notice of resignation the
Borrower and the Majority Banks may select any bank or other financial
institution as successor Agent.
16.12.2 If no bank or other financial institution selected by the Borrower
and the Majority Banks shall have accepted such appointment within 20
days, after the Agent has given a notice of resignation then the
Majority Banks may, after consultation with the Borrower, appoint any
bank or other financial institution as successor Agent.
16.12.3 If no bank or other financial institution selected by the Majority
Banks shall have accepted such appointment within 40 days after the
Agent has given a notice of resignation then the resigning Agent may ,
after consultation with the Borrower, appoint any bank or other
financial institution of reputable standing with an office in London
as successor Agent.
16.12.4 The resignation of the Agent and the appointment of any successor
Agent shall both become effective only upon the successor Agent
notifying the retiring Agent, the Borrower and each Bank that it
accepts its appointment. On such notification:
(a) the resigning Agent shall be discharged from its obligations and
duties as Agent under this Agreement but it shall continue to be
able to rely on the provisions of this Clause 16 in respect of
all matters relating to the period of its appointment; and
(b) the successor Agent shall assume the role of Agent and shall
have all the rights, powers, discretions and duties which the
Agent has under this Agreement.
36
16.12.5 The resigning Agent shall make available to the successor Agent all
records and documents held by it as Agent, and shall co-operate with
the successor Agent to ensure an orderly transition.
16.13 CHANGE OF OFFICE
The Agent may at any time in its sole discretion by notice to the
Borrower and each Bank designate a different office in the United
Kingdom from which its duties as the Agent will be performed.
17. FEES AND EXPENSES
17.1 EXPENSES AND COSTS
17.1.1 Subject to any limits on and other matters relating to the same that
may previously have been agreed by the Lead Arrangers prior to the
date of this Agreement, the Borrower shall reimburse all reasonable
expenses incurred, and any VAT on those expenses:
(a) by the Lead Arrangers and the Agent in connection with the
negotiation, preparation and execution of the Financing
Documents and the other documents contemplated by the
Financing Documents;
(b) by the Lead Arrangers and the Agent in respect of the
syndication of the Facilities;
(c) by the Agent or the Banks in connection with the granting of
any release, waiver or consent or in connection with any
amendment or variation of any Financing Document where such
release, waiver, consent, amendment or variation has been
requested by an Obligor; and
(d) by the Agent or the Banks in enforcing, perfecting,
protecting or preserving (or attempting so to do) any of
their rights, or in suing for or recovering any sum due from
either Obligor or any other person under any Financing
Document,
upon presentation of a statement of account reasonably documented for
administrative and fiscal purposes.
17.1.2 The Borrower shall on demand pay to the Agent for the account of the
relevant Bank any amount notified to it by each Bank within 10
Business Days of the commencement of an Interest Period as being the
Additional Cost Rate for such Bank in respect of such Interest Period.
17.2 ARRANGEMENT AND AGENCY FEES
The Borrower shall pay to the Lead Arrangers an arrangement fee in
accordance with the terms of the Arrangement Fees Letter and to the
Agent an agency fee in accordance with the terms of the Agency Fees
Letter. For the avoidance of doubt, all liabilities and obligations
of the Borrower under the Arrangement Fees Letter and the Agency Fees
Letter shall be deemed to be incurred under this Agreement.
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17.3 COMMITMENT FEE
The Borrower shall pay a commitment fee in Dollars to the Agent for
the account of the Banks at the rate of 0.125 per cent per annum on
the Available Facility. The commitment fee shall accrue from day to
day and be calculated on the basis of the actual number of days
elapsed and a 360 day year in respect of the Drawdown Period and shall
be payable on the last day in the Drawdown Period or on any earlier
date on which the Available Facility equals zero.
17.4 DOCUMENTARY TAXES INDEMNITY
All stamp, documentary, registration or other like duties or Taxes
which are imposed or chargeable on or in connection with this
Agreement shall be paid by the Borrower. The Agent shall be entitled
but not obliged to pay any such duties or Taxes (whether or not they
are its primary responsibility). If the Agent does so the Agent shall
notify the Borrower that any such payment has been made and the
Borrower shall on demand indemnify the Agent against those duties and
Taxes and against any costs and expenses incurred by the Agent in
discharging them.
17.5 VAT
All payments made by the Borrower under the Financing Documents are
calculated without regard to VAT. If any such payment constitutes the
whole or any part of the consideration for a taxable or deemed taxable
supply (whether that supply is taxable pursuant to the exercise of an
option or otherwise) by the Agent or a Bank, the amount of that
payment shall be increased by an amount equal to the amount of VAT
which is chargeable in respect of the taxable supply in question.
18. AMENDMENTS AND WAIVERS
18.1 MAJORITY BANKS
18.1.1 Subject to Clause 18.2, any term of this Agreement may be amended or
waived with the written agreement of the Obligors and the Majority
Banks. The Agent may effect, on behalf of the Majority Banks, an
amendment or waiver to which the Majority Banks have agreed.
18.1.2 The Agent shall promptly notify the Obligors and each Bank of any
amendment or waiver effected under Clause 18.1.1 and any such
amendment or waiver shall be binding on the Obligors and each Bank.
18.2 ALL BANKS
An amendment or waiver which relates to:
(a) the definition of "Majority Banks" in Clause 1.1;
(b) an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment under this Agreement;
(c) an increase in a Bank's Commitment;
38
(d) a term of this Agreement which expressly requires the consent of
each Bank; or
(e) Clause 6, 7, 11.1, 15 or 17.3 or this Clause 18,
may not be effected without the prior written consent of each Bank.
18.3 NO IMPLIED WAIVERS; REMEDIES CUMULATIVE
The rights of the Agent and each Bank under this Agreement:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
19. MISCELLANEOUS
19.1 SEVERANCE
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
(b) the legality, validity or enforceability in any other
jurisdiction of that or any other provision of this Agreement.
19.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts and this
shall have the same effect as if the signatures on the counterparts
were on a single copy of this Agreement.
20. NOTICES
20.1 METHOD
Each notice or other communication to be given under this Agreement
shall be given in writing in English and, unless otherwise provided,
shall be made by fax or letter.
20.2 DELIVERY
Any notice or other communication to be given by one Party to another
under this Agreement shall (unless one Party has by 15 days' notice to
the other Party specified another address) be given to that other
Party, in the case of the Borrower and the Agent, at the respective
addresses given in Clause 20.3, and in the case of the Banks, at the
respective
39
addresses given in Schedule 1 or, as the case may be, the schedule to
its relevant Transfer Certificate.
20.3 ADDRESSES
The address and fax number of the Obligors and the Agent are:
(A) the Borrower:
c/o New Holland Limited
000 Xxxxx Xxxx Xxxx
Xxxxxxxxx
Xxxxxxxxx
XX0 0XX
Attention: The Treasurer
Fax: 0000 000 0000
(B) the Guarantor:
x/x Xxxx Xxxx, X.x.X.
Xxx Xxxxx 000
00000 Xxxxx
Xxxxx
Attention: The Treasurer
Fax: 00 00 000 000 0000
(C) the Agent:
Xxxxxxx Xxxxx
0 Xxxxxx Xxxx Xxxxxx
Xxxxxx X0 0XX
Attention: Xxxxx Xxxxxx, Loans Agency
Fax: 0000 000 0000
20.4 DEEMED RECEIPT
Any notice or other communication given under this Agreement shall be
deemed to have been received:
(a) if sent by fax, with a confirmed receipt of transmission from
the receiving machine, on the day on which transmitted;
(b) in the case of a notice given by hand, on the day of actual
delivery; and
(c) if posted, on the tenth Business Day following the day on which
it was despatched by first class mail postage prepaid or, as the
case may be, airmail postage prepaid.
40
provided that a notice given in accordance with the above but received
on a day which is not a Business Day or after normal business hours in
the place of receipt shall be deemed to have been received on the next
Business Day.
20.5 NOTICES THROUGH AGENT
Any notice or other communication from or to an Obligor under this
Agreement shall be sent through the Agent.
21. ASSIGNMENTS AND TRANSFERS
21.1 BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
Party and its successors and assigns.
21.2 ASSIGNMENTS AND TRANSFERS BY AN OBLIGOR
An Obligor shall not be entitled to assign or transfer any of its
rights or obligations under this Agreement.
21.3 ASSIGNMENTS BY BANKS
Any Bank may, subject to Clause 21.5, assign any of its rights and
benefits under this Agreement to another bank or other financial
institution provided that until the assignee has confirmed to the
Agent and the other Banks that it shall be under the same obligations
towards each of them as it would have been under if it had been a
party to this Agreement as a Bank, the Agent and the other Banks shall
not be obliged to recognise the assignee as having the rights against
each of them which it would have had if it had been such a party to
this Agreement.
21.4 TRANSFERS BY BANKS
21.4.1 Any Bank may, subject to Clause 21.5, transfer, in accordance with
this Clause 21.4, any of its rights and obligations under this
Agreement.
21.4.2 If any Bank (the "Existing Bank") wishes to transfer all or any part
of its Commitment or Participation in Advances to another bank or
other financial institution (the "Bank Transferee"), such transfer may
be effected by way of a novation by the delivery to, and the execution
by, the Agent of a duly completed Transfer Certificate.
21.4.3 On the date specified in the Transfer Certificate:
(a) to the extent that in the Transfer Certificate the Existing Bank
seeks to transfer its Commitment or Participation in Advances,
the Obligors and the Existing Bank shall each be released from
further obligations to each other under this Agreement and their
respective rights against each other shall be cancelled (such
rights and obligations being referred to in this Clause 21.4.3 as
"Discharged Rights and Obligations");
41
(b) the Obligors and the Bank Transferee shall each assume obligations
towards each other and/or acquire rights against each other which
differ from the Discharged Rights and Obligations only insofar as
the Obligors and the Bank Transferee have assumed and/or acquired
the same in place of the Borrower and the Existing Bank; and
(c) each of the Parties and the Bank Transferee shall acquire the same
rights and assume the same obligations among themselves as they
would have acquired and assumed had the Bank Transferee been a
party under this Agreement as a Bank with the rights and/or the
obligations acquired or assumed by it as a result of the transfer.
21.4.4 The Agent shall promptly complete a Transfer Certificate on request
by an Existing Bank and upon payment by the Bank Transferee of a fee of
$1000 to the Agent provided that such fee shall not be payable in
respect of a transfer to an affiliate of the Existing Bank or another
Bank. Each Party irrevocably authorises the Agent to execute any duly
completed Transfer Certificate on its behalf provided that such
authorisation does not extend to the execution of a Transfer Certificate
on behalf of either the Existing Bank or the Bank Transferee named in
the Transfer Certificate.
21.4.5 The Agent shall promptly notify the Borrower of the receipt and
execution on its behalf by the Agent of any Transfer Certificate.
21.5 CONDITION TO ASSIGNMENTS AND TRANSFERS
21.5.1 An assignment or transfer by a Bank shall be in respect of a Commitment
of at least $15,000,000 and an integral of $5,000,000.
21.5.2 An assignment or transfer of any Commitment or Participation in the
Advances shall be subject to the prior approval of the Borrower
(such approval not to be unreasonably withheld or delayed).
21.6 CONSEQUENCES OF TRANSFER
An Obligor shall be under no obligation to pay any greater amount under
this Agreement following an assignment or transfer by a Bank of any of
its rights or obligations pursuant to this Clause 21 if, in the
circumstances existing at the time of such assignment or transfer, such
greater amount would not have been payable but for the assignment or
transfer.
21.7 DISCLOSURE OF INFORMATION
Each Finance Party may disclose to each other, to their professional
advisers and to any person with whom they are proposing to enter, or
have entered into, any kind of assignment, transfer, novation,
participation or other agreement in relation to this Agreement, a copy
of this Agreement and any information which that Finance Party has
acquired under or in connection with this Agreement, provided that any
such person shall first provide an undertaking in favour of the Borrower
to keep the same confidential.
42
22. INDEMNITIES
22.1 BREAKAGE COSTS INDEMNITY
The Borrower shall indemnify each Bank on demand against any reasonable
loss or expense (including any loss or expense on account of funds
borrowed, contracted for or utilised to fund any amount payable under
this Agreement, any amount repaid or prepaid under this Agreement or
any Advance) which that Bank has sustained or incurred as a consequence
of:
(a) an Advance not being made following the service of a Drawdown
Notice (except as a result of the failure of that Bank to comply
with its obligations under this Agreement) or the service of a
Market Disruption Notice;
(b) the failure of the Borrower to make payment on the due date of any
sum due under this Agreement;
(c) the occurrence of any Default or the operation of Clause 14.2; or
(d) any prepayment or repayment of an Advance otherwise than on an
Interest Date relative to that Advance, such loss or expense being
equal to the amount (if any) by which (a) the additional interest
excluding the Margin which would have been payable on the amount so
received or recovered had it been received or recovered on the
related Interest Date exceeds (b) the amount of interest which in
the opinion of the Agent would have been payable to the Agent on
the Interest Date in respect of a deposit in the currency of the
amount so received or recovered equal to the amount so received or
recovered placed by it with a prime bank in London for a period
starting on the third or, in the case of a prepayment in accordance
with Clause 7.2, the second Business Day following the date of such
receipt or recovery and ending on the Interest Date.
22.2 CURRENCY INDEMNITY
22.2.1 Any payment made to or for the account of or received by any Finance
Party in respect of any moneys or liabilities due, arising or incurred
by an Obligor to any Finance Party in a currency (the "CURRENCY OF
PAYMENT") other than the currency in which the payment should have been
made under this Agreement (the "CURRENCY OF OBLIGATION") in whatever
circumstances (including as a result of a judgement against any Obligor)
and for whatever reason shall constitute a discharge to that Obligor
only to the extent of the Currency of Obligation amount which that
Finance Party is able on the date of receipt of such payment (or if such
date of receipt is not a Business Day, on the next succeeding Business
Day) to purchase with the Currency of Payment amount at its spot rate of
exchange (as reasonably determined by that Finance Party) in the London
foreign exchange market.
22.2.2 If the amount of the Currency of Obligation which that Finance Party is
so able to purchase falls short of the amount originally due to that
Finance Party under this Agreement, then the relevant Obligor shall
promptly on demand indemnify that Finance Party against any loss or
damage arising as a result of that shortfall by paying to that Finance
Party that amount in the Currency of Obligation certified by that
Finance Party as necessary so to indemnify it.
22.2.3 Each indemnity in this Clause 22.2 shall constitute a separate and
independent obligation from the other obligations contained in this
Agreement, shall give rise to a separate and independent cause of
action, shall apply irrespective of any indulgence granted from time to
43
time and shall continue in full force and effect notwithstanding any
judgment or order for a liquidated sum or sums in respect of amounts
due under this Agreement or under any such judgment or order.
22.3 GENERAL
The certificate of the relevant Finance Party as to the amount of any
loss or damage sustained or incurred by it shall be prima facie
evidence to the Obligors in the absence of manifest error.
23. LAW AND JURISDICTION
23.1 LAW
This Agreement is governed by and shall be construed in accordance
with English law;
23.2 JURISDICTION
23.2.1 The Parties agree that the courts of England shall have jurisdiction
to settle any disputes which may arise in connection with this
Agreement and that any judgment or order of an English court in
connection with this Agreement is conclusive and binding on them and
may be enforced against them in the courts of any other jurisdiction.
This Clause 23.2.1 is for the benefit of each Finance Party only and
shall not limit the right of each Finance Party to bring proceedings
against an Obligor in connection with this Agreement in any other
court of competent jurisdiction or concurrently in more than one
jurisdiction.
23.2.2 Each Obligor:
(a) waives any objections which it may have to the English courts on
the grounds of venue or forum non conveniens or any similar
grounds as regards proceedings in connection with this Agreement;
and
(b) consents to service of process by mail or in any other manner
permitted by the relevant law.
23.3 AGENT FOR SERVICE
Each Obligor shall at all times maintain an agent for service of
process in England. That agent shall be Fiat UK Limited of Xxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx Xxxxxx, Xxxxxx X0X 6AL. Any claim form, writ,
summons, judgment or other notice of legal process shall be
sufficiently served on an Obligor if delivered to that agent at its
address for the time being. An Obligor shall not revoke the authority
of that agent. If for any reason any such agent no longer serves as
agent of an Obligor to receive service of process, then that Obligor
shall promptly appoint another such agent and immediately advise the
Agent of that appointment.
IN WITNESS whereof the Parties have caused this Agreement to be duly executed on
the date set out above.
44
SCHEDULE 1
THE BANKS
BANK AND LENDING OFFICE ADDRESS FOR NOTICES COMMITMENT
A. C. Financial Services Dublin A. C. Financial Services Dublin $50,000,000
(Fortis Bank Group) 0xx Xxxxx - Xxxxx 0
0xx Xxxxx - Xxxxx 2 Custom House Xxxxx
Xxxxxx Xxxxx Xxxxx XXXX - Xxxxxx 0
IFSC - Xxxxxx 0 Xxxxxxx
Xxxxxxx
Attention: Xxxxx Xxxx
Fax: 00 000 0 000 0000
ABN AMRO Bank N.V. ABN AMRO Bank N.V. $25,000,000
Lending Department S F U Department
Xxx Xxxxxxxxx, 0 Xxx Xxxxxxxxx, 0
00000 Xxxxxx 00000 Xxxxxx
Xxxxx Italy
Attention: Xxxxx Xxxx/Xxxxxxxx
Xxxxxxxxxx
Fax: 00 00 00 000 00000
Arab Banking Corporation (BSC) Arab Banking Corporation (BSC) $50,000,000
Milan Branch Milan Branch
Credit Department Credit Department
Via Santa Xxxxx Fulcorina 8 Xxx Xxxxx Xxxxx Xxxxxxxxx 0
00000 Xxxxxx 00000 Xxxxxx
Xxxxx Italy
Attention: Xxxx Xxxxxx/Xxxxx Xxxxxxx
Fax: 00 00 00 000 00000
Xxxxxxxxxx, Xxxx Xxxxxx X Xxxxx Xxxxxxxxxx, Xxxx Xxxxxx X Banco $12,500,000
Hipotecario, S.A. Hipotecario, X.X.
Xxxxxxx, 37-28001 Xxxxxx Xxxxxxx, 00-00000 Xxxxxx
Xxxxx Spain
Attention: Xxxxx Xxxxx
Fax: 00 00 00 000 0000
Xxxxxxxxxx, Xxxx Xxxxxx X Xxxxx Xxxxxxxxxx, Xxxx Xxxxxx X Banco $12,500,000
Hipotecario, S.A. Hipotecario, S.A.
0 Xxxxx Xxxxx Xxxxxx 1 Great Tower Street
London London
EC3R 5HR XX0X 0XX
45
Attention: Xxxxx X Xxxxxxx
Fax: 0000 000 0000
Banca Antoniana Popolare Veneta Banca Antoniana Popolare Veneta $25,000,000
S.C.A.R.L. Luxembourg Branch
Luxembourg Branch 00, Xxxxxx Xxxxxxxxx
00, Xxxxxx Xxxxxxxxx 0000 Xxxxxxxxxx
1650 Luxembourg
Attention: Xx Xxxxxxx Xxxxxxx
Fax: 00 000 000 000
Banca Commerciale Italiana (Ireland) Banca Commerciale Italiana (Ireland) $75,000,000
plc plc
AIB International Centre AIB International Centre
IFSC IFSC
Xxxxxx 0 Xxxxxx 0
Ireland Ireland
Attention: Xxxxxxx Xxxxxx/Xxxxx
X'Xxxxxx
Fax: 00 000 0 000 0000
Banca di Roma Banca di Roma $50,000,000
00 Xxxxxxx Xxxxxx 87 Xxxxxxx Street
London London
EC2V 7NQ XX0X 0XX
Attention: Xxxx Xxxxx, Head of Loan
Admin
Fax: 0000 000 0000
Banca Monte Dei Paschi Di Siena SpA Banca Monte Dei Paschi Di Siena SpA $50,000,000
Grandi Gruppi Department Turin Branch
Piazza dell' Abbadia 7 Xxx Xxxxxxx 00/00
00000 Xxxxx 00000 Xxxxx
Xxxxx Italy
Attention: Xx Xxxxx Xxxxx
Fax: 00 00 000 0000000
Banca Nazionale del Lavoro S.p.A Banca Nazionale del Lavoro S.p.A $50,000,000
London Branch London Branch
Fitzwilliam House Fitzwilliam House
10 St Xxxx Axe 00 Xx Xxxx Xxx
Xxxxxx Xxxxxx
XX0X 0XX EC3A 8NA
Attention: Miss Xxxx Xxxxxx, Manager
Loans Department
Fax: 0000 000 0000
46
Banca Popolare Di Bergamo - Credito Banca Popolare Di Bergamo - Credito $50,000,000
Varesino s.c.r.l. Varesino s.c.r.l.
Succursale xx Xxxx Succursale de Lyon
Rue Xxxxxx Xxxxxxxxx, 000 Xxx Xxxxxx Xxxxxxxxx, 000
00000 Xxxx 00000 Xxxx
Xxxxxx France
Attention: Mr Luigi Forrini/Mirco
Xxxxxxxx
Fax: 00 00 000 000 000
Banca Popolare Di Milano Scarl (BPM) Banca Popolare Di Milano Scarl (BPM) $50,000,000
Sede Centrale Sede Centrale
Piazza F Meda 4 Xxxxxx X Xxxx 0
00000 Xxxxxx 00000 Xxxxxx
Xxxxx Italy
Attention: Xxxxxxxxxx Xxxxxxxx/Xxxxx
Xxxxxxx/Dal Xxxxx
Xxxxx/Xxxxxxxxx Xxxxxxxxx
Fax: 00 00 00 0000 0000
Banca Xxxxxxxx Xx Xxxxxx X.X. x X.X., Xxxxx Xxxxxxxx Xx Xxxxxx X.X.x X.X., $25,000,000
London Branch London Branch
Bucklersbury House Bucklersbury House
Walbrook Walbrook
London London
EC4N 8EL XX0X 0XX
Attention: Xxxxx Xxxxxxx, Manager,
Loans Administration
Department/Xxxx xx Xxxxxx,
Deputy General Manager
Fax: 0000 000 0000
Banco Bilbao Vizcaya S.A. - Milan Banco Bilbao Vizcaya S.A. - Milan $25,000,000
Branch Branch
Xxx Xxxx xxx Xxxx 0 Xxx Xxxx xxx Xxxx 0
1-20121 Milan 1-20121 Milan
Italy Italy
Attention: Xx Xxxxxx Xxxxx
Fax: 00 00 00 000 00000
Banco Di Napoli Spa, Milano Branch Banco Di Napoli Spa, Milano Branch $25,000,000
Xxxxxx Xxxxxxxx, 0 Xxxxxx Xxxxxxxx, 0
Xxxxxx Xxxxxx
Xxxxx Italy
Attention: Xx Xxxxx Xxxxxxxx -
Gestore 13
Fax: 00 00 00 000 00000
47
Banco Espanol De Credito, S.A. Banco Espanol de Credito, S.A. $25,000,000
Xxxx. Xxxx Xxx xx Xxxxxxxxx, 0 Xxxxx xx la Castellana 103
28043 Xxxxxx 00000, Xxxxxx
Xxxxx Spain
Attention: Xxxxxx Bennudo
Fax: 00 00 00 000 0000
Espirito Santo PLC. Espirito Santo PLC. $25,000,000
IFSC Xxxxx XXXX Xxxxx
Xxxxxx Xxxxx Xxxxxx Xxxxx
Custom House Quay Xxxxxx Xxxxx Xxxx
Xxxxxx 0 Xxxxxx 0
Xxxxxxx Ireland
Attention: Xxxx Morals Xxxxxxxx
Fax: 00 000 0 000 0000
Bank of America, N.A. Bank of America, N.A. $75,000,000
Xxxxx Xxxxxxxxx, 00 Xxxxx Xxxxxxxxx, 00
00000 Xxxxxx 00000 Xxxxxx
Xxxxx Italy
Attention: Xxxxxxxx Xxxxxxxxx/Xxxx
Xxxx
Fax: 00 00 00 00 000 000
Bank Austria Creditanstalt Bank Austria Creditanstalt $25,000,000
International AG International AG
International Finance Department International Finance Department
Wasagasse 2 Wasagasse 2
A-1090 Vienna X-0000 Xxxxxx
Xxxxxxx Austria
Attention: Monika Hye
Fax: 00 000 0 00000
Bank One, NA Bank One, NA $50,000,000
0 Xxxxxx Xxxxxx 0 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
XX0 0XX XX0 0XX
Attention: Dot X'Xxxxxxxx
Fax: 0000 000 0000
Banque National de Paris Banque National de Paris $50,000,000
Xxx Xxxxxxxx, 0 Xxxxx Xxxxxx
00000 Milano Xxx Xxxxxxxx, 0
Xxxxx 00000 Xxxxxx
Xxxxx
Attention: Mme E Braghe
Fax: 00 00 00 0000 0000
48
Barclays Bank Plc Barclays Capital $50,000,000
Xxx Xxxxx Xxxxxxx 00 Global Services Xxxx
00000 Xxxxxx 00, Xxx Xxxxx Xxxxxxxxx
Xxxxx Xxxxxx Xxxxx
Xxxxxx
X00 0XXX
Attention: Xxx Xxxxxxx, Manager
Operations
Fax: 0000 000 0000
Bayerische Landesbank Girozentrale Bayerische Landesbank Girozentrale $50,000,000
Xxxxxxx xx Xxxxxx Xxxxxxx xx Xxxxxx
Xxx Xxxxxxxx, 0 Xxx Xxxxxxxx, 0
0-00000 Xxxxxx 0-00000 Xxxxxx
Xxxxx Italy
Attention: Mr C Morgigno/Mr E Xxxxxx
Fax: 00 00 00 000 000
Natexis Banques Populaires Natexis Banques Populaires $50,000,000
000, xxx Xxxxxxxxx 00-00 xxxxxx Xxxxxxx Xxxxxxxxx
75002 Xxxxx 00000 Xxxxxxxxx Xx Xxxx
Xxxxxx France
Attention: Xxxxx-Xxxxxxxxx Xxxxxxxxx
Fax: 00 00 00 00 00 00 34
CARIPLO - Cassa di Risparmio delle CARIPLO - Cassa di Risparmio delle $50,000,000
Provincie Lombarde S.p.A., London Provincie Lombarde S.p.A., Xxxxxx
0 Xxxxxxx Xxxxxx 6 Lombard Street
London London
EC3V 9AA XX0X 0XX
Attention: The Manager, Loans
Administration
Fax: 0000 000 0000
CIBC World Markets Ireland Limited CIBC World Markets Ireland Limited $50,000,000
Xxxxxxx Xxxxx Xxxxxxx Xxxxx
00 Xxxxx Xxxxxx Xxxxxx 00 Xxxxx Xxxxxx Xxxxxx
Xxxxxx 0 Xxxxxx 0
Xxxxxxx Ireland
Attention: Xxxxxx Xxxxxx
Fax: 00 000 0 000 0000
Citibank, N.A. Citibank, N.A. $50,000,000
000 Xxx Xxxxxx, 000 Xxx Xxxxxx,
Xxxxxx, Xxxxxx,
XX0X 0XX XX0X 0XX
49
Attention: Gian Paolo Potsios
Fax: 0000 000 0000
Comerica Bank Comerica Bank $25,000,000
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx
International Finance Department International Financial Department
One Detroit Center One Detroit Center
00 Xxxxx 00 Xxxxx
Xxxxxxx Xxxxxxx
Xxxxxxxx 00000 Xxxxxxxx 00000
XXX USA
Attention: Xxxxxxxx Xxxxxxxx
Fax: 000 000 000 0000
Commerzbank Aktiengesellschaft Commerzbank Aktiengesellschaft $50,000,000
Xxxxxxx xx Xxxxxx Xxxxxxx xx Xxxxxx
Xxx Xxxxxxxx, 0 Xxx Xxxxxxxx, 0
00000 Xxxxx 00000 Xxxxx
Xxxxx Italy
Attention: Xxxxxxx Mirri/Xxxxxxx
Xxxxxxxxx
Fax: 00 00 00 00000-000
Commonwealth Bank of Australia Commonwealth Bank of Australia $25,000,000
Xxxxxxx Xxxxx Xxxxxxx Xxxxx
00 Xxxxx Xxxxxxxx Street 85 Queen Victoria Street
London London
EC4V 4HA XX0X 0XX
Attention: Xx Xxx Xxxxx
Fax: 0000 000 0000
Credit Agricole Indosuez Credit Agricole Indosuez $50,000,000
9 Quai du President Xxxx Xxxxxx 00-00 Xxxxxxxxx Xxxxxxx
00000-Xxxxx Xx Defense cedex 00000 Xxxxx
Xxxxxx France
Attention: Xxxxxxxx Xxxxxx
Fax: 00 00 00 00 00 00 71
Credit Commercial de France, London Credit Commercial de France, London $50,000,000
Branch Branch
0 Xxxxxxxxxxx Xxx 1 Paternoster Row
St Paul's St Paul's
London London
EC4M 7DH XX0X 0XX
Attention: Xxxx Blewert, Manager,
Banking Operations
Fax: 0000 000 0000
50
Credit Industrial et Commercial Credit Industrial et Commercial $50,000,000
00 xxx xx xx Xxxxxxxx CIC Centre Administratif
75009 Xxxxx 0, Xxxxx xx X'Xxxxxx
Xxxxxx 00000 Cergy Pontoise Cedex
France
Attention: Mme Dominique Procureur
/Mme Isabelle Paskeweiz
Fax: 00 00 00 00 00 00 44
Credit Lyonnais Credit Lyonnais $50,000,000
UAC Montgallet/UB Engagements 55 Avenue des Champs Elysees
00/00 xxx xx Xxxxxxx 00000, Xxxxx
00000, Xxxxx Xxxxxx
France
Attention: Severine de Coincy
Fax: 00 00 0 00 00 00 68
Credit Suisse First Boston Credit Suisse First Boston $75,000,000
Five Cabot Square Loan Services
London Five Xxxxx Xxxxxx
X00 0XX Xxxxxx
X00 0XX
Attention: Xxxxxx Xxxxxxx, Loan
Operations
Fax: 0000 000 0000
Den Danske Bank Akieselskab Den Danske Bank Akieselskab $50,000,000
00 Xxxx Xxxxxxx Xxxxxx Corporate Loans Administration
London 00 Xxxx Xxxxxxx Xxxxxx
XX0X 0XX Xxxxxx
XX0X 0XX
Attention: Xxxxx Xxxxxxxxxx
Fax: 0000 000 0000
Deutsche Bank Spa - Milan Deutsche Bank Spa - Milan $75,000,000
Xxx X. Xxxxx, 00 c/o G.C.I.-Global Banking Division
1-20122 Milano Xxx X. Xxxxx, 00
Xxxxx 0-00000 Xxxxxx
Xxxxx
Attention: Mr C Xxxxxx/Mr L Xxxxxxx
Fax 00 00 00 000 00000
First Union National Bank, London First Union National Bank, London $50,000,000
Branch Branch
3 Bishopsgate 0 Xxxxxxxxxxx
Xxxxxx Xxxxxx
XX0X 0XX XX0X 0XX
51
Attention: Xxxxxxx Xxxx, Head of Loans
Administration
Fax: 0000 000 0000
HSBC Bank plc HSBC Bank plc $50,000,000
Xxx xxxxx Xxxxxxx 0 Milan Branch
20121 Milan Xxx xxxxx Xxxxxxx 0
Xxxxx 00000 Xxxxx
Xxxxx
Attention: Xxxx Brugora
Fax: 00 00 00 00000 000
Xxxx Xxxxxxxxxxx Xxxxxxxxxx Xxxx Xxxxxxxxxxx Xxxxxxxxxx $25,000,000
Societe Anonyme Societe Anonyme
4 rue Xxxxxxxx Xxxxxxx 4 rue Xxxxxxxx Xxxxxxx
X-0000 Xxxxxxxxxx X-0000 Xxxxxxxxxx
Attention: Xxxxxx Xxxxxxx
Fax: 00 000 0000 0000
ICCRI Istituto Di Credito Delle Casse ICCRI SPA $25,000,000
Di Risparmio Italiane SpA Direzione Operativa Impieghi Funzione
Via Boncompagni 71/h Filiale Interna
00187 Roma Xxx Xxxxxxxxxxx 00/x
Xxxxxx 00000 Xxxx
Xxxxxx
Attention: Xxxxxx Xxxxxx - Sig.Ra
Xxxxxxx Xx Xxxxxx
Fax: 00 00 000 000 000
ING Bank NV ING Bank NV $50,000,000
Filiale di Milano Xxxxxxx xx Xxxxxx
Xxx Xxxxxxx, 00 Xxx Xxxxxxx, 00
00000 Xxxxxx 00000 Xxxxxx
Xxxxx Italy
Attention: Xxxxxx Pirelli
Fax: 00 00 00 00000 000
KBC Bank N.V. Dublin Branch KBC Bank N.V. Dublin Branch $25,000,000
KBC House KBC House
4 George's Dock 4 George's Dock
IFSC IFSC
Xxxxxx 0 Xxxxxx 0
Xxxxxxx Xxxxxxx
Attention: Xx. Xxxxxxx Xxxxxxx
Fax: 00 000 00 00 000
52
Mediocredito Centrale S.p.A. Mediocredito Centrale S.p.A. $25,000,000
Xxx Xxxxxxxx, 00 Xxxxxxxx Xxxxxxxxxxxxxxx Xxxxxxx
00000 Xxxx Xxxxxxxxxx
Xxxxx Xxx Xxxxxxxx, 00
00000 Xxxx
Xxxxx
Attention: Xxxxxxx Xxxxxxxxx/Xxxxxxx
Xxxxxx
Fax: 00 00 00 0000 000
Xxxxxx Guaranty Trust Company of Xxxxxx Guaranty Trust Company of $50,000,000
New York New York
60 Victoria Embankment 60 Victoria Embankment
London London
EC4Y 0JP XX0X 0XX
Attention: Loan Capital Markets -
Middle Office
Fax: 0000 000 0000
Raiffeisen Zentralbank Ostereich AG Raiffeisen Zentralbank Ostereich AG $25,000,000
XX Xxxxxxxxx 0 XX Xxxxxxxxx 0
X-0000 Xxxxxx A-1030 Vienna
Austria Austria
Attention: Xx Xxxxx Xxxxxx
Fax: 00 000 00000 0000
RBC Finance B.V. RBC Finance B.V. $25,000,000
Keizersgracht 604 Keizersgracht 604
1017 EP Amsterdam 1017 EP Amsterdam
The Netherlands The Netherlands
Attention: Mr M Xxxxxx
Fax: 00 00 00 0 000 000
SANPAOLO IMI S.p.A., London SANPAOLO IMI S.p.A., London $75,000,000
Branch Branch
Xxxx Xxxxx Xxxx Xxxxx
00 Xxxxxx Xxxx 00 Xxxxxx Xxxx
Xxxxxx Xxxxxx
XX0X 0XX XX0X 0XX
Attention: Xxxxxx Xxxxxx, Manager,
Loans Administration
Fax: 0000 000 0000
53
Societe Generale Finance (Ireland) Societe Generale Finance (Ireland) $50,000,000
Limited Limited
00/00 Xxxxxxxx Xxxxxxxx 00/00 Xxxxxxxx Xxxxxxxx
00 Xxxxxx Xxxxxx 00 Xxxxxx Xxxxxx
Xxxxxx 0 Xxxxxx 0
Xxxxxxx Ireland
Attention: Jacinra Xxxxxx
Fax: 00 000 0 0000 000
Xxx Xxxxx Xxxxxxxxx Bank The Chase Manhattan Bank $75,000,000
125 London Wall Eurocurrency / Global Money Market
Xxxxxx Xxxxxxxx
XX0X 0XX 0 Xxxxx Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxx
Xxx Xxxx 00000
XXX
Attention: Xxxxx Xxxxxx
Fax: 000 000 000 0000
The Industrial Bank of Japan, Limited - The Industrial Bank of Japan, Limited $50,000,000
Milan Branch London Branch
Xxx Xxxxxx 00/00 Xxxxxxxxx Xxxxxxxxxx
00000 Xxxxxx Xxxxxxx Xxxxx
Xxxxx One Xxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Attention: Xxxx Xxxxx/Xxxx Xxx
Fax: 0000 000 0000
AND COPY TO
The Industrial Bank of Japan, Limited -
Milan Branch
Operation Department
Xxx Xxxxxx 00/00
00000 Xxxxxx
Xxxxx
Attention: Ms. L Xxxxxxx
Fax: 00 00 00 000 000
The Sumitomo Bank, Limited The Sumitomo Bank, Limited $25,000,000
Temple Court Loans Administration Department
00 Xxxxx Xxxxxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxxx 11 Queen Victoria Street
EC4N 4TA Xxxxxx
XX0X 0XX
Attention: The Manager
Fax: 0000 000 0000
00
Xxx Xxxxxxx-Xxxxxxxx Xxxx Xxx Xxxxxxx-Xxxxxxxx Bank $50,000,000
Xxxxxx Xxxxx Xxxxxx Xxxxx
00/00 Xxxxxxxx Square 00/00 Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx
XX0X 0XX XX0X 0XX
Attention: Xxxxxx Xxxxx
Fax: 0000 000 0000
UniCredito Italiano S.p.A., London UniCredito Italiano S.p.A., London $50,000,000
Branch Branch
17 Moorgate 00 Xxxxxxxx
Xxxxxx Xxxxxx
XX0X 0XX XX0X 0XX
Attention: Mr I King
Fax: 0000 000 0000
Westdeutsche Landesbank Girozentrale, Westdeutsche Landesbank Girozentrale, $50,000,000
Brussels Branch Brussels Branch
Chaussee de La Hulpe, 166 Chaussee de La Hulpe, 166
B-1170 Brussels X-0000 Xxxxxxxx
Xxxxxxx Belgium
Attention: Head of Loan Administration
Department
Fax: 00 000 000 0000
55
SCHEDULE 2
CONDITIONS PRECEDENT
1. A Certified Copy of the constitutional documents of each Obligor.
2. Certified Copies of documents evidencing that the officers of each Obligor
who act as signatories for that Obligor in relation to the Financing
Documents have the relevant corporate authority to bind that Obligor and
also setting our specimen signatures of such officers.
3. The Agency Fees Letter and the Arrangement Fees Letter duly executed by
each Obligor together with the fees payable under each of those letters on
the execution of this Agreement.
4. A letter addressed by Fiat UK Limited to the Agent in which it agrees to
act as each Obligor's agent for service of process in England for the
purposes of this Agreement.
5. Legal opinions from each of:
(i) Wilde Sapte;
(ii) Xxxxx Dutilh for New Holland N.V.; and
(iii) internal counsel for Fiat S.p.A.
56
SCHEDULE 3
DRAWDOWN NOTICE
To: The Agent
From: New Holland N.V.
*[date]
Dear Sirs,
$2,400,000,000 Credit Agreement dated * 1999 (the "Credit Agreement")
Terms defined in the Credit Agreement have the same meaning in this notice.
We request an Advance to be drawn down under the Credit Agreement as follows:
1. Amount of Advance:
2. Drawdown Date:
3. Duration of first Interest Period:
4. Payment instructions:
(if applicable)
We confirm that today and on the Drawdown Date:
(a) the representations and warranties in Clauses 12.1(a) to (d) inclusive
to be repeated are and will be correct; and
(b) no Default or Potential Default has occurred and is continuing or will
occur on the making of the Advance.
SIGNED
For and on behalf of
NEW HOLLAND N.V.
57
SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
TRANSFER CERTIFICATE
To: The Agent
and the other parties to the Credit Agreement (as defined below)
This transfer certificate ("Transfer Certificate") relates to a credit agreement
dated * 1999 and made between (1) New Holland N.V., (2) Flat S.p.A., (3)
certain banks, (4) Chase Manhattan International Limited and (5) Chase
Manhattan Plc and Credit Suisse First Boston in respect of a dollar term loan
facility (the "Credit Agreement", which term shall include any amendments or
supplements to it).
Terms defined and references construed in the Credit Agreement shall have the
same meanings and construction in this Transfer Certificate.
1. *[insert full name of Existing Bank](the "Existing Bank"):
(a) confirms that to the extent that details appear in the schedule to
this Transfer Certificate under the headings "Existing Bank's
Commitment" and "Existing Bank's Participation in Advances", those
details accurately summarise its Commitment and its Participation in
Advances all or part of which is to be transferred; and
(b) requests *[insert full name of Bank Transferee](the "Bank
Transferee") to accept and procure, in accordance with Clause 21 of
the Credit Agreement, the substitution of the Existing Bank by the
Bank Transferee in respect of the amount of its Commitment and its
Participation in Advances to be transferred as specified in the
schedule to this Transfer Certificate by signing this Transfer
Certificate.
2. The Bank Transferee requests each of the Parties to accept this executed
Transfer Certificate as being delivered under and for the purposes of
Clause 21 of the Credit Agreement so as to take effect in accordance with
the provisions of that Clause on *[insert date of transfer].
3. The Bank Transferee:
(a) confirms that it has received a copy of the Credit Agreement together
with such other documents and information as it has requested in
connection with this transaction;
(b) confirms that it has not relied and will not rely on the Existing Bank
to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such
documents or information; and
58
(c) agrees that it has not relied and will not rely on the Finance
Parties to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature of
the Obligors.
4. The Bank Transferee undertakes with the Existing Bank and each of the
other Parties that it will perform, in accordance with its terms, all those
obligations which, by the terms of the Credit Agreement, will be assumed by
it upon delivery of the executed copy of this Transfer Certificate to the
Agent.
5. On execution of this Transfer Certificate by the Agent on their behalf,
the Parties accept the Bank Transferee as a party to the Credit Agreement
in substitution for the Existing Bank with respect to all those rights
and/or obligations which, by the terms of the Credit Agreement, will be
assumed by the Bank Transferee after delivery of the executed copy of this
Transfer Certificate to the Agent.
6. None of the Finance Parties:
(a) makes any representation or warranty or assumes any responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Credit Agreement; or
(b) assumes any responsibility for the financial condition of either
Obligor or any other party to the Credit Agreement or any other
document or for the performance and observance by either Obligor or
any other party to the Credit Agreement or any other document of its
or their obligations and any and all conditions and warranties,
whether express or implied by law or otherwise, are excluded.
7. The Bank Transferee confirms that its Lending Office and address for
notices for the purposes of the Credit Agreement are as set out in the
schedule to this Transfer Certificate.
8. The Existing Bank gives notice to the Bank Transferee (and the Bank
Transferee acknowledges and agrees with the Existing Bank) that the
Existing Bank is under no obligation to re-purchase (or in any other manner
to assume, undertake or discharge any obligation or liability in relation
to) the transferred Commitment and Participation at any time after this
Transfer Certificate shall have taken effect.
9. Following the date upon which this Transfer Certificate shall have
taken effect, without limiting the terms of this Transfer Certificate, each
of the Bank Transferee and the Existing Bank acknowledges and confirms to
the other that, in relation to the transferred Commitment and
Participation, variations, amendments or alterations to any of the terms of
the Credit Agreement arising in connection with any renegotiation or
rescheduling of the obligations under the Credit Agreement shall apply to
and be binding on the Bank Transferee alone.
10. This Transfer Certificate is governed by and shall be construed in
accordance with English law.
59
THE SCHEDULE
Existing Bank's Commitment Amount of Commitment Transferred
Existing Bank's Participation in Amount of Participation Transferred
Advances
*[insert full name of Bank Transferee]
Lending Office Address for notices
* *
Attention:
Fax:
60
*[Bank Transferee]
By:
--------------------------------
(Duly authorised)
*[Existing Bank]
By:
--------------------------------
(Duly authorised)
The Agent on behalf of itself and all other parties to the Credit Agreement
By:
--------------------------------
(Duly authorised)
Dated:
61
The Borrower
SIGNED by )
) XXXXXXXX XXXXX
for and on behalf of )
NEW HOLLAND N.V. )
The Guarantor
SIGNED by )
) XXXXXX XXXXX
for and on behalf of )
FIAT S.p.A. )
The Banks
SIGNED by )
) XXXX XXXXXX
)
for and on behalf of )
A.C. FINANCIAL SERVICES ) XXXX XXXXXX
DUBLIN (FORTIS BANK GROUP) )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
ABN AMRO BANK N.V. ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
ARAB BANKING CORPORATION ) XXXX XXXXXX
(BSC) )
62
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
ARGENTARIA, CAJA POSTAL Y ) XXXX XXXXXX
BANCO HIPOTECARIO, S.A. )
SIGNED by )
)
for and on behalf of ) DANIELE CUNEGO
BANCO ANTONIANA POPOLARE )
VENETA S.C.A.R.L. )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANCA COMMERCIALE ITALIANA ) XXXX XXXXXX
(IRELAND) plc )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANCA DI ROMA, LONDON ) XXXX XXXXXX
63
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANCA MONTE DEI PASCHI DI ) XXXX XXXXXX
SIENA SpA )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANCA NAZIONALE DEL LAVORO ) XXXX XXXXXX
S.p.A
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANCA POPOLARE DI BERGAMO- ) XXXX XXXXXX
CREDITO VARESINO s.c.r.l. )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANCA POPOLARE DI MILANO ) XXXX XXXXXX
SCARL (BPM) )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANCA POPOLARE DI NOVARA ) XXXX XXXXXX
S.C.a X.X. )
64
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANCO BILBAO VIZCAYA S.A. ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANCO DI NAPOLI Spa ) XXXXX XXXXX
SIGNED by )
) XXXXXXX XXXXXXXXXX
for and on behalf of )
BANCO ESPANOL DE CREDITO, ) ZUZKA XXXXXXX
X.X. )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
ESPIRITO SANTO PLC ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANK OF AMERICA, N.A. ) XXXX XXXXXX
65
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANK AUSTRIA CREDITANSTALT ) XXXX XXXXXX
INTERNATIONAL AG )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANK ONE, NA ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BANQUE NATIONAL DE PARIS ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BARCLAYS BANK PLC ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
BAYERISCHE LANDESBANK ) XXXX XXXXXX
GIROZENTRALE
66
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
NATEXIS BANQUES POPULAIRES ) XXXX XXXXXX
SIGNED by )
) XXXXXX XXXXXX
for and on behalf of )
CARIPLO-CASSA DI RISPARMIO ) XXXXXXXX XXXXX
DELLE PROVINCIE LOMBARDE )
S.p.A.
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
CIBC WORLD MARKETS IRELAND ) XXXX XXXXXX
LIMITED )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
CITIBANK, N.A. ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
COMERICA BANK ) XXXX XXXXXX
67
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
COMMERZBANK ) XXXX XXXXXX
AKTIENSGESELLSCHAFT )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
COMMONWEALTH BANK OF ) XXXX XXXXXX
AUSTRALIA )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
CREDIT AGRICOLE INDOSUEZ ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
CREDIT COMMERCIAL DE ) XXXX XXXXXX
FRANCE
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
CREDIT INDUSTRIAL ET ) XXXX XXXXXX
COMMERCIAL )
68
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
CREDIT LYONNAIS ) XXXX XXXXXX
SIGNED by )
) XXXXXXX XXXXX-XXXXXX
for and on behalf of )
CREDIT SUISSE FIRST BOSTON ) XXXXXX XX-XXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
DEN DANSKE BANK ) XXXX XXXXXX
AKTIESELSKAB )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
DEUTSCHE BANK SpA ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXX
for and on behalf of )
FIRST UNION NATIONAL BANK )
69
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
HSBC BANK PLC ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
HYPOVEREINBANK ) XXXX XXXXXX
LUXEMBOURG )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
ICCRI ISTITUTO DI CREDITO ) XXXX XXXXXX
DELLE CASSE DI RISPARMIO )
ITALIANE SpA )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
ING BANK NV ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
KBC BANK N.V. ) XXXX XXXXXX
70
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
MEDIOCREDITO CENTRALE S.p.A. ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
XXXXXX GUARANTY TRUST ) XXXX XXXXXX
COMPANY OF NEW YORK )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
RAIFFEISEN ZENTRALBANK ) XXXX XXXXXX
OSTERREICH AG
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
RBC FINANCE B.V. ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
SANPAOLO IMI S.p.A. ) XXXX XXXXXX
71
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
SOCIETE GENERALE FINANCE ) XXXX XXXXXX
(IRELAND) LIMITED )
SIGNED by )
) XXXXXX E TILL
for and on behalf of )
THE CHASE MANHATTAN BANK )
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
THE INDUSTRIAL BANK OF JAPAN ) XXXX XXXXXX
LIMITED
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
THE SUMITOMO BANK, LIMITED ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
THE TORONTO DOMINION BANK ) XXXX XXXXXX
72
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
UNICREDITO ITALIANO S.p.A. ) XXXX XXXXXX
SIGNED by )
) XXXX XXXXXX
for and on behalf of )
WESTDEUTSCHE LANDESBANK ) XXXX XXXXXX
GIROZENTRALE )
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The Agent
SIGNED by )
) XXXXXX X. TILL
for and on behalf of )
CHASE MANHATTAN )
INTERNATIONAL LIMITED )
The Lead Arrangers
SIGNED by )
) XXXXX XXXXXXX
for and on behalf of )
CHASE MANHATTAN Plc )
SIGNED by )
) XXXXXXX XXXXX-XXXXXX
for and on behalf of )
CREDIT SUISSE FIRST BOSTON ) XXXXXX XX-XXXXX
