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EXHIBIT 4.1
INTERCOMPANY CREDIT FACILITY
THIS AGREEMENT is made and entered as of this 28th day of October 1999, by and
BETWEEN
(1) FIAT FINANCE AND TRADE Ltd. S.A., 00 Xxx Xxxxxxxxx, X-000X Xxxxxxxxxx
hereinafter referred to as the LENDER,
(2) NEW HOLLAND X.X.-Xxxxxxxx Xxxxxxxxx 000, XXX Xxxxxxx-0000XX Xxxxxxxxxx
Schiphol, Netherlands
hereinafter referred to as the BORROWER
IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Save as otherwise provided in this Agreement, the following words and
phrases have the following meanings throughout this Agreement:
ADVANCE: means the principal amount of an advance made or to be made by the
Lender under this Agreement;
AVAILABLE FACILITY: means at any time in relation to the Lender the amount of
the Facility less the amount of each Advance which has then been made hereunder;
BUSINESS DAY: means a day on which banks are open for foreign and domestic
business in London and New York;
EVENT OF DEFAULT: means any of the events specified in Clause 8;
INTEREST PERIOD: means each of the periods determined in accordance with this
Agreement for which a rate of interest is to be established hereunder;
US DOLLARS: means the lawful currency for the time being of the United States
of America;
FINAL MATURITY DATE: means 28th October 2000.
LIBOR: means in respect of any period and amount the rate for deposits for such
period in US Dollars which appears on the Reuters page FRBD (or such other page
as may replace it) as of 11:00 a.m. on the second Business Day before the first
day of that period. If no such rate is displayed in such page, Libor will be
determined on the basis of the cost to the Lender of funding the relevant
advance for the relevant duration, such cost to be comparable to the rate of
interest on annual basis then paid to the international market by prime banks
for deposit in the relevant duration;
LOAN: means the aggregate principal amount for the time being advanced and
outstanding pursuant to this Agreement;
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MARGIN: up to 0.25% per annum as shall have been agreed upon by the Lender and
the Borrower;
PREPAYMENT DATE: in relation to any Advance, means the time of expiry of a
notice of prepayment;
REPAYMENT DATE: in relation to any Advance, means the last day of the Interest
Period thereof;
REVOLVING CREDIT FACILITY or FACILITY: means the revolving credit facility
available in US Dollars granted to the Borrower in this Agreement.
2. THE FACILITY
2.1 Availability to the Borrower
The Lender grants to the Borrower, upon and subject to the conditions
of this Agreement, a Revolving Credit Facility in the aggregate
amount not exceeding USD 600,000,000 for a period of one year from
the date of this Facility Agreement.
3. UTILISATION OF THE FACILITY
3.1 Conditions of Utilisation
Save as otherwise provided in this Agreement, an Advance will be made
by the Lender to the Borrower on its request if:
3.1.1 the amount of such Advance does not exceed the Available
Facility.
3.1.2 the amount of the proposed Advance which shall be an amount
which is not less then USD 500,000.
3.1.3 the proposed term of such Advance shall be any period up to
6 months or such other longer period as may be agreed
between the Lender and the Borrower.
3.1.4 any Interest Period would otherwise and on a day which is
not a Business Day that Interest Period shall be extended
to the next succeeding Business Day.
3.1.5 no Event of Default has occurred as of the proposed date of
the making of such Advance.
3.2 Termination
The Lender has the right to terminate the Facility at any time, by
giving to the Borrower not less than thirty days' prior notice to
that effect (such notice hereinafter referred to as the "Termination
Notice") whereupon:
a) with effect from the date of expiry of such Termination Notice
the amount of the Available Facility, if any, shall be cancelled
and reduced to zero; and
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b) the loan with any interest and other amounts accrued and/or
owing hereunder shall be repaid at maturity to the Lender; and
c) upon repayment of all Advances the Facility shall be cancelled
and reduced to zero.
4. INTEREST
4.1 Date of Payment
On the Repayment Date, relating to each Advance, the Borrower shall
pay accrued interest on that Advance.
4.2 Rate of Interest
The rate of interest applicable to each Advance from time to time
during its interest period shall be the rate per annum which is the
sum of (1) Libor applicable to such Advance for such Interest Period
and (2) the Margin at such time.
4.3 Computation of Interest
All payments of interest hereunder shall be calculated on the basis
of the number of days elapsed and a year of 360.
5. REPAYMENT
5.1 Repayments Generally
Each Advance shall be repaid by the Borrower in full on the Repayment
Date relating thereto. The Borrower shall not repay all or any part
of any Advance outstanding hereunder except at the times and in the
manner expressly provided herein but, subject to the terms and
conditions hereof, shall be entitled to reborrow any amount repaid
under this Clause 5.
5.2 Requirement to Gross-up
All payments to be made by the Borrower under this Agreement shall be
made free and clear of and without deduction for or on account of tax
unless the Borrower is required by law to make such a payment subject
to the deduction or withholding of tax, in which case the sum payable
by the Borrower in respect of which such deduction or withholding is
required to be made shall be increased to the extent necessary to
ensure that, after the making of such deduction or withholding, the
Lender receives and retains (free from any liability in respect of any
such deduction or withholding) a net sum equal to the sum which it
would have received and so retained had no such deduction or
withholding been made or been required to be made.
6. PREPAYMENT
The Borrower will have the option, by giving to the Lender not less than 30
days' prior notice to that effect, to prepay in whole or in part (being an
amount or integral multiple of USD 500,000.) any advance as at the time of
expiry of such notice. In this case, the Borrower shall pay the
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advance (in whole or in part) together with accrued interest thereon on the
Prepayment date for such Advance in the currency in which it is denominated
without penalty subject to the payment to the Lender of the difference, if
negative, between (a) the amount of interest which the Lender is able to
obtain by placing an amount equal to the amount prepaid on deposit with
prime banks in the relevant interbank market for the remainder of the
relevant interest period, as soon as reasonably practicable after receipt
thereof from the Borrower and (b) the amount of interest which would
otherwise be payable to the Lender on the relevant amount received for the
remainder of the relevant interest period (less the margin).
7. CANCELLATION
The Borrower may, by giving to the Lender not less than 30 day's prior
notice to that effect, cancel the whole or any part of the Facility as at
the time of expiry of such notice. Any such notice shall take effect on its
expiry and shall reduce the Available Facility rateably.
8. EVENTS OF DEFAULT
8.1 the Borrower shall fail to pay when due any principal of or interest
on the Loan or any other amount payable hereunder; or
8.2 the Borrower shall default in the due performance and observance of
any other material provision contained in this Agreement and such
default (if capable of remedy) shall remain unremedied for thirty days
after notice thereof shall have been given by the Lender to the
Borrower; or
8.3 any representation, warranty or statement made or deemed to be
repeated in this Agreement by the Borrower hereunder or in connection
herewith shall be at any time incorrect in any respect or any such
representation, warranty or statement would, if made or repeated at
any time with reference to the facts and circumstances then
subsisting, be than incorrect; or
8.4 the Borrower shall propose, commence negotiations with a view to
enter into any arrangement or composition with or for the benefit of
its creditors or any of them, or if any receiver, trustee, custodian,
liquidator or similar officer is appointed for it or for all or any
part of its property, or if the Borrower is the subject, with or
without its own consent, of any bankruptcy, insolvency, readjustment
of debt, reorganisation, dissolution or other similar procedure, and
such procedure continues undismissed or unstrayed for thirty (30) days
after commencement; or
8.5 Fiat S.p.A., Turin, Italy shall cease to control directly or
indirectly at least 50% of the voting share capital of the Borrower
or, if the Borrower is merged into another company or such a merger is
approved by the relevant corporate bodies of the Borrower, the
surviving entity is no longer at least 50% directly or indirectly
controlled by Fiat S.p.A.;
at any time after the occurrence of any event set out in this Clause 8 when
such event is continuing unwaived, the Lender may by notice to the Borrower
declare that this Facility shall be terminated and demand immediate
repayment of all the Advances together with accrued interest to the date of
actual repayment and any other sum due under the Facility. The Borrower
shall indemnify the Lender against all losses or expenses reasonably
incurred as a result of the occurrence of an Event of Default.
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9. REPRESENTATIONS
The Borrower represents to the Lender as follows at present:
9.1 it is a company incorporated and validly existing and in good
standing under the laws of its incorporation;
9.2 it has necessary corporate power to borrow under this Facility and
has taken all necessary corporate and other action to authorise the
execution, delivery and performance of this Facility Letter;
9.3 this Facility Letter has been duly executed and delivered by the
Borrower, and constitutes legally binding, direct and unconditional
obligations enforceable against the Borrower in accordance with its
terms; and
9.4 the execution, delivery and performance of this Facility do not
violate any provision of any existing law or regulation or statute
applicable to it.
10. EXPENSES
The Borrower shall reimburse the Lender on demand for all reasonable
charges and expenses incurred in connection with the enforcement of, or the
preservation of any rights under, this Agreement (including legal and
out-of-pocket expenses and all value added tax thereon), upon presentation
of appropriate documentation.
Any notice to be given by either party hereunder to the other shall be
given in writing to such party at its address stated above or such other
address last notified to the other party for that purpose and shall be
deemed to be given when dispatched (if given by telex), or when hand
delivered to the relevant address or five days after posting (if given by
mail) provided that any such notice shall be effective only when received.
11. ASSIGNMENT
This Agreement may not be assigned by any party hereto without the prior
written consent of the other party.
12. LAW
This Agreement shall be governed by and construed in accordance with the
laws of England and Wales.
13. JURISDICTION
13.1 Each of the parties hereto agrees, without prejudice to the right of
either party to take proceedings in relation hereto before any other
court of competent jurisdiction, that the courts of London shall have
jurisdiction to hear and determine any suit, action or proceeding, and
to settle any disputes, which may arise in relation hereto and, for
such purposes, irrevocably submits to the jurisdiction of such courts.
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13.2 The Lender agree that the process by which any suit, action or
proceeding in the courts of England are begun may be served on
the lender by being delivered by hand to Fiat Finance and Trade
Ltd., UK Branch, Xxxxxxxx Xxxxxx, Xxxxxx X0X 0XX or its other
registered office for the time being.
13.3 The Borrower agree that the process by which any suit, action or
proceeding in the courts of England are begun may be served on
the Borrower by being delivered by hand to Fiat UK Limited,
Xxxxxxxx Xxxxxx, Xxxxxx X0X 0XX or its other registered office
for the time being.
14. SEVERABILITY OF PROVISIONS
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, which shall remain in full force and effect.
15. NOTICES
15.1 Addresses
15.1.1 Any notice required to be given to the Lender shall be
deemed properly given when addressed to the Lender at:
Fiat Finance and Trade Ltd., Luxembourg
c/o Fiat Finance and Trade Ltd., Luxembourg
Succursale di Paradiso
Xxxx Xxxxxxxx 00 - 0000 Xxxxxx Xxxxxxxx
Xxxxxxxxxxx
15.1.2 Any notice to be given to the Borrower hereunder should
be deemed properly given when addressed to the Borrower
at:
NEW HOLLAND N.V.
c/o NEW HOLLAND Limited
Attn. The Treasurer
000 Xxxxx Xxxx Xxxx
Xxxxxxxxx Xxxxxxxxx XX0 0XX
U.K.
16. COUNTERPARTS
This Agreement shall be executed in any number of counterparts, each of
which shall constitute an original.
