Facilities Agreement

Facilities Agreement

 

Exhibit 10.1

 

 

FACILITIES AGREEMENT

14 July 2016

US$1,100,000,000

 

 

for

 

 

AUTOLIV, INC., AUTOLIV ASP, INC. and AUTOLIV AB (publ)

 

 

with

 

 

HSBC BANK PLC, MIZUHO BANK, LTD. AND INVESTMENT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (publ)

as active bookrunners and co-ordinators

 

 

and

 

 

SKANDINAVISKA ENSKILDA BANKEN AB (publ)

as Facility Agent

 

 

Allen & Overy LLP

 

 


 

Contents

 

Clause

 

Page

1.

Interpretation

1

2.

Facilities

19

3.

Purpose

25

4.

Conditions Precedent

25

5.

Revolving Loans

26

6.

Swingline Loans

27

7.

Repayment

28

8.

Prepayment and Cancellation

30

9.

Interest Periods

32

10.

Interest

33

11.

Changes to the Calculation of Interest

36

12.

Optional Currencies

37

13.

Payments

38

14.

Taxes

42

15.

Increased Costs

47

16.

Illegality

48

17.

Guarantee

48

18.

Representations and Warranties

53

19.

Undertakings

57

20.

Default

66

21.

The Agents and the Co-ordinators

69

22.

Fees

77

23.

Expenses

78

24.

Stamp Duties

79

25.

Indemnities

79

26.

Evidence and Calculations

80

27.

Amendments and Waivers

80

28.

Changes to the Parties

83

29.

Disclosure of Information

87

30.

Confidentiality of Funding Rates and Reference Bank Quotations

89

31.

Set-Off

91

32.

Pro Rata Sharing

91

33.

Severability

92

34.

Counterparts

92

35.

Notices

92

36.

Language

95

37.

Jurisdiction

96

38.

Governing Law

97

39.

Integration

97

40.

Waiver of immunity

97

41.

Waiver of Jury Trial

97

42.

USA Patriot Act

98

 

 


 

Schedule

 

1.

Parties

99

 

Part 1

Revolving Credit Commitments

99

 

Part 2

US$ Swingline Lenders and US$ Swingline Commitments

100

 

Part 3

SEK Swingline Lenders and SEK Swingline Commitments

101

2.

Conditions Precedent Documents

102

 

Part 1

To be delivered before the first request

102

 

Part 2

For an Additional Borrower

104

3.

Form of Request

105

4.

Form of Novation Certificate

106

5.

Form of Compliance Certificate

107

6.

Form of Accession Agreement

108

7.

Form of Increase Confirmation

109

8.

Form of Substitute Affiliate Lender Designation Notice

111

 

 

 


 

THIS AGREEMENT is dated 14 July 2016 and is made BETWEEN:

(1)

AUTOLIV, INC. (incorporated under the laws of the State of Delaware, USA) (in this capacity, the Parent);

(2)

AUTOLIV, INC. (incorporated under the laws of the State of Delaware, USA) and AUTOLIV ASP, INC. (incorporated under the laws of the State of Indiana, USA) (each a Guarantor and together, the Guarantors);

(3)

AUTOLIV, INC. (incorporated under the laws of the State of Delaware, USA), AUTOLIV ASP, INC. (incorporated under the laws of the State of Indiana, USA) and AUTOLIV AB (publ) (corporate identity no 556036-1981, incorporated under the laws of Sweden) (each a Borrower and together, the Original Borrowers);

(4)

HSBC BANK PLC, MIZUHO BANK, LTD. and INVESTMENT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (publ) as active bookrunners and co-ordinators (the Co-ordinators);

(5)

THE PERSONS NAMED ON THE SIGNATURE PAGES TO THIS AGREEMENT as mandated lead arrangers (the Mandated Lead Arrangers);

(6)

THE PERSONS NAMED ON THE SIGNATURE PAGES TO THIS AGREEMENT as lead arrangers (the Lead Arrangers);

(7)

THE PERSONS NAMED ON THE SIGNATURE PAGES TO THIS AGREEMENT as arrangers (the Arrangers);

(8)

THE FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders (the Original Lenders);

(9)

SKANDINAVISKA ENSKILDA BANKEN AB (publ) as facility agent (the Facility Agent);

(10)

DNB BANK ASA, NEW YORK BRANCH as US$ swingline agent (the US$ Swingline Agent); and

(11)

SKANDINAVISKA ENSKILDA BANKEN AB (publ) as SEK swingline agent (the SEK Swingline Agent).

IT IS AGREED as follows:

1.

Interpretation

1.1

Definitions

In this Agreement:

Acceptable Bank means a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor's Rating Services or Fitch Ratings Ltd or A3 or higher by Moody's Investor Services Limited or a comparable rating from an internationally recognised credit rating agency.

Accession Agreement means a letter, substantially in the form of Schedule 6 (Form of Accession Agreement), with such amendments as the Facility Agent and the Parent may agree.

Additional Borrower means a member of the Group which becomes a Borrower after the date of this Agreement.

1


 

Affiliate means a Subsidiary or a holding company of a person or any other Subsidiary of that holding company.

Affiliated Lender means a Lender which is an Affiliate of another Lender.

AFM means The Netherlands Authority for the Financial Markets (Stichting Autoriteit Financiële Markten).

Agent means the Facility Agent or a Swingline Agent.

Available Commitment means a Lender's Commitment minus:

 

(a)

the Original Dollar Amount of its participation in any outstanding Loans; and

 

(b)

in relation to any proposed drawdown, the Original Dollar Amount of its participation in any Loans that are due to be made on or before the proposed Drawdown Date,

other than that Lender's participation in any Loans that are due to be repaid or prepaid on or before the proposed Drawdown Date.

Availability Period means the period from and including the date of this Agreement to and including the date one month before the latest Maturity Date then in force.

Basel II means the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel II: International Convergence of Capital Measurement and Capital Standards: a Revised Framework" published by the Basel Committee on Banking Supervision in June 2004 in the form existing on the date of this Agreement.

Basel III means:

 

(a)

the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated;

 

(b)

the rules for global systemically important banks contained in "Global systemically important banks: assessment methodology and the additional loss absorbency requirement – Rules text" published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and

 

(c)

any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".

Board means the Board of Governors of the Federal Reserve System of the United States of America or any successor thereof.

Borrower means an Original Borrower or an Additional Borrower.

2


 

Break Costs means the amount (if any) by which:

 

(a)

the interest (other than the part attributable to the Margin) which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

 

(b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

Business Day means a day (other than a Saturday or a Sunday):

 

(a)

on which banks are open for general business in:

 

(i)

London, Stockholm and New York; and

 

(ii)

in relation to a transaction involving an Optional Currency other than Sterling, the principal financial centre of the jurisdiction of that Optional Currency; and

 

(b)

in relation to a transaction involving Euros, which is a TARGET Day.

Change in Law means the occurrence, after the date of this Agreement, of any of the following:

 

(a)

the adoption or taking effect of any law, rule, regulation or treaty;

 

(b)

any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority;

 

(c)

the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; or

 

(d)

the implementation or application of or compliance with Basel III or CRD IV or any other law or regulation which implements Basel III or CRD IV (whether such implementation, application or compliance is by a Governmental Authority, Finance Party or any of its Affiliates.

Commitment means a Revolving Credit Commitment, a SEK Swingline Commitment or a US$ Swingline Commitment.

Compliance Certificate means a certificate substantially in the form set out in Schedule 5 (Form of Compliance Certificate).

CRD IV means:

 

(a)

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms; and

 

(b)

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms,

and as either of these may be amended, supplemented or restated from time to time.

3


 

Dangerous Substance means any radioactive emissions and any natural or artificial substance (whether in solid or liquid form or in the form of a gas or vapour and whether alone or in combination with any other substance) capable of causing harm to man or any other living organism or damaging the environment or public health or welfare including but not limited to any controlled, special, hazardous, toxic, radioactive or dangerous waste.

DCB means The Dutch Central Bank (De Nederlandsche Bank N.V.).

Default means an Event of Default or an event which, with the giving of notice, lapse of time, determination of materiality or fulfilment of any other applicable condition (or any combination of the foregoing), would constitute an Event of Default.

Defaulting Lender means any Lender:

 

(a)

which has failed to make its participation in a Loan available or has notified the Facility Agent that it will not make its participation in a Loan available by the Drawdown Date of that Loan in accordance with Clause 5.3 (Advance of Revolving Loans) or Clause 6.3 (Advance of Swingline Loans);

 

(b)

which has otherwise rescinded or repudiated a Finance Document; or

 

(c)

with respect to which an Insolvency Event has occurred and is continuing,

unless, in the case of paragraph (a) above:

 

(i)

its failure to pay is caused by:

 

(A)

administrative or technical error; or

 

(B)

a Disruption Event; and,

payment is made within three Business Days of its due date; or

 

(ii)

the Lender is disputing in good faith whether it is contractually obliged to make the payment in question.

DFSA means The Dutch Financial Supervision Act (Wet op het financieel toezicht, Wft) and all rules promulgated thereunder and pursuant thereto as well as communications and published guidelines of the DCB and the AFM.

Disruption Event means either or both of:

 

(a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

 

(b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

 

(i)

from performing its payment obligations under the Finance Documents; or

 

(ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

4


 

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

Drawdown Date means the date of the advance of a Loan.

Environmental Claim means any claim by any person as a result of or in connection with any violation of Environmental Law or any Environmental Contamination which could give rise to any remedy or penalty (whether interim or final) or liability for any Obligor or any Finance Party which could reasonably be expected to have a material adverse effect.

Environmental Contamination means each of the following and their consequences:

 

(a)

any release, emission, leakage, or spillage of any Dangerous Substance into any part of the environment; or

 

(b)

any accident, fire, explosion or sudden event which is directly or indirectly caused by or attributable to any Dangerous Substance; or

 

(c)

any other pollution of the environment.

Environmental Law means any national or supranational law, regulation or directive concerning the protection of human health or the environment or concerning Dangerous Substances.

Environmental License means any authorisation by any Environmental Law.

ERISA means the United States Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate means each trade or business, whether or not incorporated, that would be treated as a single employer with any Obligor under section 414 of the US Code.  When any provision of this Agreement relates to a past event, the term ERISA Affiliate includes any person that was an ERISA Affiliate of an Obligor at the time of that past event.

EURIBOR means, in relation to any Loan in Euro:

 

(a)

the applicable Screen Rate as of 11.00 a.m. (Brussels time) on the Rate Fixing Day for Euro and for a period equal in length to the Interest Period of that Loan; or

 

(b)

as otherwise determined pursuant to Clause 11.1 (Unavailability of Screen Rate),

and if, in either case, that rate is less than zero, EURIBOR shall be deemed to be zero.

Euro means the single currency of the Participating Member States.

Event of Default means an event specified as such in Clause 20.1 (Events of Default).

Existing Indebtedness means the Financial Indebtedness outstanding under the US$1,100,000,000 revolving credit facility dated 16 April 2011 between, inter alia, the Parent, the Borrowers, and Merchant Banking, Skandinaviska Enskilda Banken AB (publ) as facility agent (as amended from time to time, including pursuant to an amendment letter dated 8 October 2012).

Extension Request has the meaning set out in paragraph (a) of Clause 2.10 (Extension option).

Facility means the US$1,100,000,000 multi currency revolving credit facility made available under this Agreement (including as sublimits, the US$ Swingline Facility and SEK Swingline Facility).

5


 

Facility Agent's Spot Rate of Exchange means the Facility Agent's spot rate of exchange for the purchase of the relevant Optional Currency in such foreign exchange market as the Facility Agent selects, in each case with US Dollars at or about 11.00 a.m. on a particular day.

Facility Office means the office(s) notified by a Lender to the Facility Agent:

 

(a)

on or before the date it becomes a Lender; or

 

(b)

by not less than five Business Days' notice,

as the office(s) through which it will perform all or any of its obligations under this Agreement.

FATCA means:

 

(a)

Sections 1471 to 1474 of the US Code or any associated regulations;

 

(b)

any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to in paragraph (a) above; or

 

(c)

any agreement pursuant to the implementation of any treaty, law or regulation referred to in paragraphs (a) or (b) above with the United States Internal Revenue Service or any Governmental Authority.

FATCA Application Date means:

 

(a)

in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the US Code (which relates to payments of interest and certain other payments from sources within the USA), 1 July 2014;

 

(b)

in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the US Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the USA), 1 January 2019; or

 

(c)

in relation to a "passthru payment" described in section 1471(d)(7) of the US Code not falling within paragraphs (a) or (b) above, 1 January 2019,

or, in each case, such other date from which such payment may become subject to a deduction or withholding required by FATCA as a result of any change in FATCA after the date of this Agreement.

FATCA Deduction means a deduction or withholding from a payment under a Finance Document required by FATCA.

FATCA Exempt Party means a Party that is entitled to receive payments free from any FATCA Deduction.

Federal Funds Rate means, on any day, the rate per annum determined by the US$ Swingline Agent to be the Federal Funds Rate (as published by the Federal Reserve Bank of New York) at or about 1.00 p.m. (New York City time) on that day.

6


 

Fee Letters means:

 

(a)

the letter from the Co-ordinators to the Obligors and the letters from the Agents to the Obligors, each dated on or about the date of this Agreement and setting out (among other matters) the amount of the fees referred to in Clause 22 (Fees); and

 

(b)

any agreement setting out fees payable by the Parent to a Finance Party referred to in paragraph (e) of Clause 2.9 (Increase) of this Agreement or under any other Finance Document.

Finance Document means this Agreement, the Fee Letters, any Novation Certificate, any Accession Agreement, any Request, any Extension Request or any other document designated as such by the Facility Agent and the Obligors' Agent.

Finance Party means an Agent, a Co-ordinator or a Lender.

Financial Indebtedness means any indebtedness in respect of:

 

(a)

monies borrowed;

 

(b)

any debenture, bond, note, loan stock or other security;

 

(c)

any acceptance credit;

 

(d)

receivables sold or discounted (otherwise than on a non-recourse basis);

 

(e)

the acquisition cost of any asset to the extent payable before or after the time of acquisition or possession by the party liable where the advance or deferred payment is arranged primarily as a method of raising finance or financing the acquisition of that asset;

 

(f)

any lease entered into primarily as a method of raising finance or financing the acquisition of the asset leased;

 

(g)

any currency swap or interest swap, cap or collar arrangement or other derivative instrument (and when calculating the value of any such transaction, only the marked-to-market value shall be taken into account);

 

(h)

any amount raised under any other transaction having the commercial effect of a borrowing or raising of money; or

 

(i)

any guarantee, indemnity or similar assurance against financial loss of any person.

Funding Rate means any individual rate notified by a Lender to the Agent pursuant to paragraph (a)(ii) of Clause 11.4 (Cost of funds).

Governmental Authority means the government of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Group means the Parent and its Subsidiaries.

7


 

Impaired Agent means an Agent at any time when:

 

(a)

it has failed to make (or has notified a Party that it will not make) a payment required to be made by it under the Finance Documents by the due date for payment;

 

(b)

the relevant Agent otherwise rescinds or repudiates a Finance Document;

 

(c)

(if the Agent is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the definition of Defaulting Lender; or

 

(d)

an Insolvency Event has occurred and is continuing with respect to the Agent;

unless, in the case of paragraph (a) above:

 

(i)

its failure to pay is caused by:

 

(A)

administrative or technical error; or

 

(B)

a Disruption Event; and

payment is made within three Business Days of its due date; or

 

(ii)

the Agent is disputing in good faith whether it is contractually obliged to make the payment in question.

Increase Confirmation means a confirmation substantially in the form set out in Schedule 7 (Form of Increase Confirmation).

Increase Lender has the meaning given to that term in Clause ‎2.9 (Increase).

Insolvency Event in relation to a Finance Party means that the Finance Party:

 

(a)

is dissolved (other than pursuant to a consolidation, amalgamation or merger);

 

(b)

becomes insolvent or is unable to pay its debts, in each case under the laws of any relevant jurisdiction applicable to that Finance Party, or fails or admits in writing its inability generally to pay its debts as they become due;

 

(c)

makes a general assignment, arrangement or composition with or for the benefit of its creditors;

 

(d)

institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, all other than by way of an Undisclosed Administration, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;

8


 

 

(e)

has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:

 

(i)

results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or

 

(ii)

is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;

 

(f)

has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);

 

(g)

seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets, all other than by way of an Undisclosed Administration;

 

(h)

has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;

 

(i)

causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or

 

(j)

takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.

Interest Period means each period determined in accordance with Clause 9 (Interest Periods).

Interpolated Screen Rate means, in relation to any Loan, the rate (rounded to the same number of decimal places as the two relevant Screen Rates) which results from interpolating on a linear basis between:

 

(a)

the applicable Screen Rate for the longest period (for which that Screen Rate is available) which is less than the Interest Period of that Loan; and

 

(b)

the applicable Screen Rate for the shortest period (for which that Screen Rate is available) which exceeds the Interest Period of that Loan,

each as of:

 

(i)

in relation to any Loan in Euro, 11.00 a.m. (Brussels time);

 

(ii)

in relation to any Loan in Swedish Kronor, 11.00 a.m. (Swedish time), or

 

(iii)

in relation to any other Loan, 11.00 a.m.,

in each case, on the Rate Fixing Day for the currency of that Loan.

Lender means a Revolving Credit Lender or a Swingline Lender.

9


 

LIBOR means, in relation to any Loan:

 

(a)

the applicable Screen Rate as of 11.00 a.m. on the applicable Rate Fixing Day for the currency of that Loan and for a period equal in length to the Interest Period of that Loan; or

 

(b)

as otherwise determined pursuant to Clause 11.1 (Unavailability of Screen Rate),

and if, in either case, that rate is less than zero, LIBOR shall be deemed to be zero.

Loan means the principal amount of each borrowing by a Borrower under this Agreement or the principal amount outstanding of that borrowing.

Majority Lenders means, subject to Clause 27.3 (Disenfranchisement of Defaulting Lenders) at any time, a Lender or Lenders whose Commitments aggregate more than 662/3% of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 662/3% of the Total Commitments immediately prior to the reduction).

Margin means the rate per annum determined in accordance with Clause 10.2 (Adjustment of Margin).

Margin Stock has the meaning assigned to such term in Regulation U of the Board.

Material Subsidiary means any Subsidiary of the Parent:

 

(a)

 

(i)

 

the book value of whose assets (consolidated if it itself has Subsidiaries) equals or exceeds ten per cent. of the book value of the consolidated total assets of the Group; or

 

 

 

 

 

 

 

(ii)

 

whose revenues (consolidated if it itself has Subsidiaries) equal or exceed ten per cent. of the revenues of the Group taken as a whole; or

 

 

 

 

 

 

 

(iii)

 

whose trading profits (consolidated if it itself has Subsidiaries) before interest and tax equal or exceed ten per cent. of the trading profits before interest and tax of the Group as a whole,

as determined by reference to the most recent accounts of the Subsidiary and the most recent consolidated accounts of the Group; or

 

(b)

any Subsidiary of the Parent which becomes a member of the Group after the date of the latest consolidated accounts of the Group at the time of determination and which would fulfil any of the tests in (a)(i), (ii) or (iii) above if tested on the basis of its latest accounts (consolidated if it itself has Subsidiaries) and those latest accounts of the Group; or

 

(c)

prior to the delivery of each set of accounts pursuant to Clause 19.2 (Financial information), any Subsidiary of the Parent to which has been transferred (whether by one transaction or a series of transactions, related or not) the whole or substantially the whole of the assets of a Subsidiary which immediately prior to such transaction or any of such transactions was a Material Subsidiary.

Maturity Date means:

 

(a)

in respect of any Lender, the date falling five years after the date of this Agreement, subject to any extension in respect of that Lender pursuant to Clause 2.10 (Extension option); and

 

(b)

where used without a reference to a Lender and save as otherwise specified, the latest of the Maturity Dates then in force for any Lender.

10


 

Moody's means Moody's Investors Services Limited, or any successor to its rating business.

Multiemployer Plan means a "multiemployer plan" within the meaning of section 3(37) or 4001(a)(3) of ERISA.

New Lender has the meaning given to it in paragraph (a) of Clause 28.2 (Transfers by Lenders).

Novation Certificate has the meaning given to it in Clause 28.3 (Procedure for novations).

Obligor means the Parent, each Guarantor and each Borrower.

Obligors' Agent means the Parent, or such other Obligor from time to time nominated by the Obligors' Agent to replace it as Obligors' Agent and approved for such purpose by the Facility Agent.

Optional Currency means any currency (other than US Dollars) which is freely available and convertible into US Dollars, and deposits of which are readily available in the London interbank market and which has been previously agreed by all the Lenders.

Original Dollar Amount in relation to a Loan, means:

 

(a)

if that Loan is denominated in US Dollars, the amount of that Loan; or

 

(b)

if that Loan is denominated in an Optional Currency, the equivalent in US Dollars of the amount of that Loan, calculated at the Facility Agent's Spot Rate of Exchange one Business Day before the Rate Fixing Day applicable to that Loan.

Original Group Accounts means the audited consolidated accounts of the Group for the year ended 31 December 2015.

Participating Member State means a member state of the European Union that adopts a single currency in accordance with the legislation of the European Union relating to European Economic and Monetary Union.

Party means a party to this Agreement.

Plan means an "employee benefit plan" within the meaning of section 3(3) of ERISA maintained by an Obligor or any ERISA Affiliate currently or at any time within the last five years, or to which the an Obligor or any ERISA Affiliate is required to make payments or contributions or has made payments or contributions within the past five years.

Prime Rate means the prime commercial lending rate in US Dollars from time to time announced by the US$ Swingline Agent; each change in the interest rate on a US$ Swingline Loan which results from a change in the Prime Rate becomes effective on the day on which the change in the Prime Rate becomes effective.

Rate Fixing Day means:

 

(a)

the second Business Day before the first day of an Interest Period for a Revolving Loan denominated in any currency other than Sterling; or

 

(b)

in the case of a Revolving Loan denominated in Sterling only, the first day of the Interest Period for that Loan,

or such other day as is generally treated as the rate fixing day by market practice in the relevant interbank market for leading banks to give quotations for deposits in the relevant currency for delivery on the first day of the relevant Interest Period, as determined by the Facility Agent.

11


 

Rating Agency means Moody's or Standard & Poor's.

Reference Bank Quotation means any quotation supplied to an Agent by a Reference Bank.

Reference Bank Rate means:

 

(a)

the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Facility Agent at its request by the Reference Banks or the STIBOR Reference Banks (as applicable):

 

(i)

in relation to LIBOR:

 

(A)

(other than where paragraph (B) below applies) as the rate at which the relevant Reference Bank could borrow funds in the London interbank market in the relevant currency and for the relevant period were it to do so by asking for and then accepting interbank offers for deposits in reasonable market size in that currency and for that period; or

 

(B)

if different, as the rate (if any and applied to the relevant Reference Bank and the relevant currency and period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator;

 

(ii)

in relation to EURIBOR:

 

(A)

(other than where paragraph (B) below applies) as the rate at which the relevant Reference Bank believes one prime bank is quoting to another prime bank for interbank term deposits in Euro within the Participating Member States for the relevant period; or

 

(B)

if different, as the rate (if any and applied to the relevant Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator; or

 

(iii)

in relation to STIBOR:

 

(A)

(other than where paragraph (B) below applies) as the rate at which the relevant STIBOR Reference Bank is willing to lend SEK 100,000,000 for the relevant period without collateral to other banks active on the Swedish money market; or

 

(B)

if different, as the rate (if any and applied to the relevant STIBOR Reference Bank and the relevant period) which contributors to the applicable Screen Rate are asked to submit to the relevant administrator.

Reference Banks means, subject to Clause 28.8 (Reference Banks), the Facility Agent, DNB Bank ASA, Sweden Branch and Nordea Bank AB (publ), or such other banks as the Facility Agent may appoint in consultation with the Borrower, provided that no person may be appointed as Reference Bank without its consent.

Relevant Finance Party means, in respect of:

 

(a)

the Facility Agent, a Finance Party;

 

(b)

the US$ Swingline Agent, a US$ Swingline Lender; or

 

(c)

the SEK Swingline Agent, an SEK Swingline Lender.

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Reportable Event means any of the events set forth in section 4043 of ERISA or the related regulations as to which the notice requirement has not been waived by the PBGC.

Representative means any delegate, agent, manager, administrator, nominee, attorney, trustee or custodian.

Request means a request made by the Obligors' Agent for a Loan, substantially in the form of Schedule 3.

Restricted Margin Stock means Margin Stock owned by any Obligor or any member of the Group, which represents not more than 33⅓ per cent. of the aggregate value (determined in accordance with Regulation U of the Board), on a consolidated basis, of the assets of each Obligor and all members of the Group (other than Margin Stock) that are subject to the provisions of Clause 19 (Undertakings) (including, without limitation, Clauses 19.8 (Negative pledge) and 19.9 (Transactions similar to security)).

Revolving Credit Lender means, subject to Clause 28 (Changes to the Parties) and Clause 2.9 (Increase), a bank or financial institution listed in Part 1 of Schedule 1 in its capacity as a provider of Revolving Loans.

Revolving Credit Commitment means:

 

(a)

in relation to a Revolving Credit Lender which is a Revolving Credit Lender on the date of this Agreement, the aggregate of the amounts in US Dollars set opposite its name in Part 1 of Schedule 1 and the amount of any other Lender's Revolving Credit Commitment acquired by it under Clause 28 (Changes to the Parties) or assumed by it in accordance with and Clause 2.9 (Increase); and

 

(b)

in relation to a Revolving Credit Lender which becomes a Revolving Credit Lender after the date of this Agreement, the amount of any other Lender's Revolving Credit Commitment acquired by it under Clause 28 (Changes to the Parties) or assumed by it in accordance with and Clause 2.9 (Increase),

to the extent not cancelled, reduced or transferred under this Agreement.

Revolving Credit Facility means the multi-currency revolving credit facility made available under this Agreement as set out in Clause 2.1 (Revolving Credit Facility).

Revolving Loan means, subject to Clause 12 (Optional Currencies), the principal amount of a borrowing by a Borrower under the Revolving Credit Facility.

Sanctions Authority means:

 

(a)

the US Government, including the US Department of the Treasury (including its Office of Foreign Assets Control), the US Department of State, and the US Department of Commerce;

 

(b)

the United Nations Security Council;

 

(c)

the European Union (including sanctions imposed against certain states, organisations and individuals under the European Union’s Common Foreign and Security Policy);

 

(d)

the United Kingdom (including Her Majesty’s Treasury);

 

(e)

Japan; or

 

(f)

the Swedish Government,

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and any authority acting for on behalf of any of such entity in connection with administering and enforcing the Sanctions Laws.

Sanctions Laws means the economic or financial sanctions laws and/or sanctions regulations, sanctions-related trade embargoes and/or restrictive measures, or sanctions-related prohibitions imposed, administered, enacted or enforced from time to time by any Sanctions Authority.

Sanctions List means any list of persons or entities published in connection with Sanctions Laws or public announcements of Sanctions Laws or public designation or public identification made by or on behalf of any Sanctions Authority (including, providing such lists and information are publicly available, in the case of Her Majesty’s Treasury, the “Consolidated List of Financial Sanctions Targets and the Investment Ban List”, and, in the case of the Office of Foreign Assets Control of the United States Department of the Treasury, the “Specially Designated Nationals and Blocked Persons” list and the “Foreign Sanctions Evaders” list); or, providing such lists and information are publicly available, by any national authority implementing at a national level the published lists prescribed by the United Nations Security Council or the European Union, provided that the scope of any such national implementation shall not exceed the scope of such published lists.

Sanctions Restricted Party means a person:

 

(a)

that is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person or a country or territory that is subject to nationwide or territory wide Sanctions Laws which directly apply to that person);

 

(b)

that is directly or indirectly owned or controlled by or, acting on behalf of, a person referred to in (a) above; or

 

(c)

with whom a national of any country that is subject to the jurisdiction of, or otherwise bound by the prescriptions of, a Sanctions Authority would be prohibited or restricted by law from engaging in trade, business or other activities.

Screen Rate means:

 

(a)

in relation to LIBOR, the London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for the relevant currency and period displayed (before any correction, recalculation or republication by the administrator) on pages LIBOR01 or LIBOR02 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate);

 

(b)

in relation to EURIBOR, the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate);

 

(c)

in relation to STIBOR, the Stockholm interbank offered rate administered by the Swedish Bankers' Association (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page STIBOR= of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate),

or, in each case, on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters.  If any such page or service ceases to be available, the Facility Agent may specify another page or service displaying the relevant rate after consultation with the Obligors’ Agent and the Lenders.

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Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the effect of conferring security.

SEB Co-ordinator means Investment Banking, Skandinaviska Enskilda Banken AB (publ) in its capacity as Co-ordinator.

SEK and Swedish Kronor means the lawful currency for the time being of Sweden.

SEK Swingline Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Stockholm.

SEK Swingline Commitment means:

 

(a)

in relation to a SEK Swingline Lender, and subject to Clause 8.2 (Voluntary cancellation) and to Clause 28 (Changes to the Parties), the obligation of such SEK Swingline Lender to contribute to SEK Swingline Loans hereunder up to the aggregate principal amount in Swedish Kronor set opposite its name in Part 3 of Schedule 1 or assumed by it in accordance with Clause 2.9 (Increase); or

 

(b)

in relation to a Lender which becomes a SEK Swingline Lender after the date of this Agreement, the amount of any other SEK Swingline Lender's SEK Swingline Commitment acquired by it under Clause 28 (Changes to the Parties or assumed by it in accordance with Clause 2.9 (Increase)),

to the extent not transferred, cancelled or reduced hereunder.

SEK Swingline Facility means the Swedish Kronor swingline facility referred to in Clause 2.2 (Swingline Facilities).

SEK Swingline Lender means, subject to Clause 28 (Changes to the Parties) and Clause 2.9 (Increase), a bank or financial institution listed in Part 3 of Schedule 1 in its capacity as a participant in the SEK Swingline Facility.

SEK Swingline Loan means the principal amount of a borrowing by a Borrower under the SEK Swingline Facility or (as the context requires) the principal amount thereof from time to time outstanding.

SEK Swingline Rate means, on any day:

 

(a)

STIBOR; or if not available;

 

(b)

the SEK Swingline Agent's overnight offered rate;

plus, in each case, 0.50 per cent. per annum.

Separate Loan has the meaning given to that term in Clause 7.1 (Repayment).

Standard & Poor's means Standard & Poor's Credit Market Services Limited, or any successor to its rating business.

Sterling means the currency for the time being of the United Kingdom.

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STIBOR means, in relation to any Loan in Swedish Kronor:

 

(a)

the applicable Screen Rate as of 11.00 a.m. (Swedish time) on the Rate Fixing Day for Swedish Kronor and for a period equal in length to the Interest Period of that Loan; or

 

(b)

as otherwise determined pursuant to Clause 11.1 (Unavailability of Screen Rate),

and if, in either case, that rate is less than zero, STIBOR shall be deemed to be zero.

STIBOR Reference Banks means, subject to Clause 28.8 (Reference Banks) the SEK Swingline Agent, DNB Bank ASA, Sweden Branch and Nordea Bank AB (publ), or such other banks as the Facility Agent may appoint in consultation with the Borrower, provided that no person may be appointed as Reference Bank without its consent.

Subsidiary means an entity from time to time of which a person has direct or indirect control or owns directly or indirectly more than fifty per cent. (50%) of the share capital or similar right of ownership.

Swingline Agent means the US$ Swingline Agent or the SEK Swingline Agent or both as the case may be.

Swingline Commitment means the US$ Swingline Commitment or the SEK Swingline Commitment or both as the case may be.

Swingline Facility means the US$ Swingline Facility or the SEK Swingline Facility or both as the case may be.

Swingline Lender means a US$ Swingline Lender or a SEK Swingline Lender or both as the case may be.

Swingline Loan means a US$ Swingline Loan or a SEK Swingline Loan.

Swingline Rate means the US$ Swingline Rate or the SEK Swingline Rate.

TARGET Day means a day on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open.

Tax means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).

Total Commitments means the aggregate of the Commitments of all the Lenders.

Total Revolving Credit Commitments means the aggregate for the time being of the Revolving Credit Commitments, being US$1,100,000,000 at the date of this Agreement.

Total Swingline Commitments means the Total SEK Swingline Commitments or the Total US$ Swingline Commitments or both as the case may be.

Total SEK Swingline Commitments means the aggregate for the time being of the SEK Swingline Commitments, being SEK 1,000,000,000 at the date of this Agreement.

Total US$ Swingline Commitments means the aggregate for the time being of the US$ Swingline Commitments, being US$250,000,000 at the date of this Agreement.

Transfer Date has the meaning given to it in paragraph (c) of Clause 28.3 (Procedure for Novations).

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Undisclosed Administration means an undisclosed administration (stille curatele) applicable to a Lender, imposed by the DCB under or based on section 1:76 of the DFSA, as to Lenders which are supervised by the DCB under the DFSA and in relation to which the DCB has not publicly disclosed the appointment of a custodian (curator) with regard to the relevant Lender..

Unpaid Sum means any sum due and payable but unpaid by an Obligor under the Finance Documents.

Unrestricted Margin Stock means any Margin Stock owned by either Obligor or any member of the Group which is not Restricted Margin Stock.

US Code means the United States Internal Revenue Code of 1986.

US$ Swingline Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in New York.

US$ Swingline Commitment means:

 

(a)

in relation to a US$ Swingline Lender, and subject to Clause 8.2 (Voluntary cancellation) and to Clause 28 (Changes to the Parties), the obligation of such US$ Swingline Lender to contribute to US$ Swingline Loans hereunder up to the aggregate principal amount in US Dollars set opposite its name in Part 2 of Schedule 1 or assumed by it in accordance with Clause 2.9 (Increase); or

 

(b)

in relation to a Lender which becomes a US$ Swingline Lender after the date of this Agreement, the amount of any other US$ Swingline Lender's US$ Swingline Commitment acquired by it under Clause 28 (Changes to the Parties) or assumed by it in accordance with Clause 2.9 (Increase)),

to the extent not transferred, cancelled or reduced hereunder.

US$ Swingline Facility means the US Dollar swingline facility referred to in Clause 2.2 (Swingline Facilities).

US$ Swingline Lender means, subject to Clause 28 (Changes to the Parties) and Clause 2.9 (Increase), a bank or financial institution listed in Part 2 of Schedule 1 in its capacity as a participant in the US$ Swingline Facility.

US$ Swingline Loan means the principal amount of a borrowing by a Borrower under the US$ Swingline Facility or (as the context requires) the principal amount thereof from time to time outstanding.

US$ Swingline Rate means, on any day, the higher of:

 

(a)

the Prime Rate; and

 

(b)

the aggregate of the Federal Funds Rate and 0.50 per cent. per annum.

USA means the United States of America.

US Dollars and US$ means the currency for the time being of the USA

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US Tax Obligor means:

 

(a)

a Borrower which is resident for tax purposes in the USA; or

 

(b)

an Obligor some or all of whose payments under the Finance Documents are from sources within the USA for USA federal income tax purposes.

VAT means:

 

(a)

any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and

 

(b)

any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

1.2

Construction

(a)

In this Agreement, unless the contrary intention appears, a reference to:

 

(i)

an amendment includes a supplement, novation or re-enactment and amended is to be construed accordingly;

 

(ii)

assets includes present and future properties, revenues and rights of every description;

 

(iii)

an authorisation includes an authorisation, consent, approval, resolution, licence, exemption, filing, registration and notarisation;

 

(iv)

know your customer requirements are the identification checks that a Finance Party requests in order to meet its obligations under any applicable law or regulation to identify a person who is (or is to become) its customer;

 

(v)

a Default or an Event of Default is “continuing” if it has not been remedied or waived;

 

(vi)

a material adverse effect means:

 

(A)

a material adverse effect on the business or financial condition of the Parent or the Group as a whole; or

 

(B)

a material adverse effect on the ability of any Obligor to perform its payment obligations under any of the Finance Documents.

 

(vii)

a month is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:

 

(A)

if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last Business Day in that calendar month; or

 

(B)

if an Interest Period commences on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which it is to end;

 

(viii)

a person includes any individual, company, unincorporated association or body of persons (including a partnership, joint venture or consortium), government, state, agency, international organisation or other entity;

18


 

 

(ix)

a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;

 

(x)

winding up also includes amalgamation, reconstruction, reorganisation, administration, dissolution, liquidation, merger or consolidation and any equivalent or analogous procedure under the law of any jurisdiction (but, for the avoidance of doubt, reorganisation does not include a mere transfer of assets from one member of the Group to another whether the transferor continues to exist);

 

(xi)

a provision of law is a reference to that provision as amended or re-enacted;

 

(xii)

a Clause or a Schedule is a reference to a clause of or a schedule to this Agreement;

 

(xiii)

a person includes its successors, transferees and assigns;

 

(xiv)

a Finance Document or another document is a reference to that Finance Document or other document as amended; and

 

(xv)

a time of day is a reference to London time.

(b)

Unless the contrary intention appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.

(c)

The index to and the headings in this Agreement are for convenience only and are to be ignored in construing this Agreement.

 

(d)

 

(i)

 

Unless expressly provided to the contrary in a Finance Document, a person who is not a party to a Finance Document may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999; and

 

 

 

 

 

 

 

(ii)

 

notwithstanding any term of any Finance Document, the consent of any third party is not required for any variation (including any release or compromise of any liability order) or termination of that Finance Document.

2.

Facilities

2.1

Revolving Credit Facility

Subject to the terms of this Agreement, the Lenders grant to the Borrowers a multicurrency revolving credit facility under which the Revolving Credit Lenders will make Loans to a Borrower denominated in US Dollars or Optional Currencies.

2.2

Swingline Facilities

Subject to the terms of this Agreement:

 

(a)

the US$ Swingline Lenders make available to the Borrowers a U.S. Dollar swingline facility under which they will make US$ Swingline Loans denominated in US Dollars; and

 

(b)

the SEK Swingline Lenders make available to the Borrowers a SEK Swingline Facility under which they will make SEK Swingline Loans denominated in Swedish Kronor,

drawings under which are treated in each case as a usage of the Total Revolving Credit Commitments.

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2.3

Facility Limits

(a)

The aggregate Original Dollar Amount of all outstanding Revolving Loans shall not at any time exceed the Total Revolving Credit Commitments.

(b)

The Swingline Facilities are part of the Revolving Credit Facility and are not independent of the Revolving Credit Facility.  The aggregate Original Dollar Amount of all outstanding Loans (including Swingline Loans) shall not at any time exceed the Total Revolving Credit Commitments.

(c)

The aggregate amount of all outstanding US$ Swingline Loans shall not, at any time, exceed the Total US$ Swingline Commitments.

(d)

The aggregate Original Dollar Amount of all outstanding SEK Swingline Loans shall not, at any time, exceed the Total SEK Swingline Commitments.

2.4

A Lender's individual limit

(a)

A Lender is not obliged to participate in a Loan if it would cause its applicable Outstandings to exceed its Overall Commitment.

(b)

For the purpose of this Clause 2.4:

 

(i)

the applicable Outstandings of a Lender on any Drawdown Date means the aggregate Original Dollar Amount of the participations of that Lender and its Affiliates in all outstanding Loans which would be outstanding on that Drawdown Date, if:

 

(A)

all outstanding Loans due to be repaid on or before that Drawdown Date are repaid; and

 

(B)

all Loans to be made on or before that Drawdown Date and in respect of which a Request has been received by an Agent are made; and

 

(ii)

the Overall Commitment of a Lender means, in the case of a Lender which is a Revolving Credit Lender, its Revolving Credit Commitment or, in the case of a Swingline Lender which is not a Revolving Credit Lender, the Revolving Credit Commitment of its Affiliate which is a Revolving Credit Lender.

(c)

If the operation of Clauses 5.3 (Advance of Revolving Loans) or of Clauses 6.3 (Advance of Swingline Loans) would cause the applicable Outstandings of a Lender (the affected Lender) to exceed its Overall Commitment, then:

 

(i)

the affected Lender will participate in the relevant Loan only to the extent that its applicable Outstandings will not exceed its Overall Commitment;

 

(ii)

each other Lender's participation in the Loan under the Clauses referred to above will be re‑calculated in accordance with those Clauses, but for the purpose of the recalculation the affected Lender's Commitment will be deducted from the Total Revolving Credit Commitments or the Total Swingline Commitments (as appropriate) and the amount of the affected Lender's participation in that Loan (if any) will be deducted from the requested amount of the Loan; and

 

(iii)

the calculation in subparagraph (ii) above will be applied to each Lender in turn until the amount of its participation in the Loan under that Clause is determined.

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2.5

Lender Affiliates and Facility Office

(a)

In respect of a Revolving Loan or a US$ Swingline Loan or US$ Swingline Loans to a particular Borrower (each a Designated Loan) a Revolving Credit Lender or a US$ Swingline Lender (as applicable) (a Designating Lender) may:

 

(i)

in the case of a Revolving Loan, following receipt of notification from the Facility Agent pursuant to paragraph (a) of Clause 5.3 (Advance of Revolving Loans) and prior to making its participation in that Designated Loan available to the Facility Agent or such earlier date at the Facility Agent may agree in writing (at its discretion); and

 

(ii)

in the case of a US$ Swingline Loan or US$ Swingline Loans, at any time,

by written notice to the Facility Agent or the US$ Swingline Agent (as applicable) and the Parent:

 

(A)

designate a substitute Facility Office from which it will make that or those Designated Loan(s) (a Substitute Facility Office); or

 

(B)

nominate an Affiliate to act as the Revolving Credit Lender or US$ Swingline Lender (as applicable) of that or those Designated Loan(s) (a Substitute Affiliate Lender).

(b)

A notice to nominate a Substitute Affiliate Lender:

 

(i)

must be in the form set out in Schedule 8 (Form of Substitute Affiliate Lender Designation Notice) and be countersigned by the relevant Substitute Affiliate Lender confirming it will be bound as a Revolving Credit Lender or a US$ Swingline Lender (as applicable) under this Agreement in respect of the Designated Loan(s) in respect of which it acts as Revolving Credit Lender or US$ Swingline Lender (as applicable); and

 

(ii)

will not be regarded as having been duly delivered unless, where the notice is in respect of a Revolving Loan, the Facility Agent or, where the notice is in respect of a US$ Swingline Loan, the US$ Swingline Agent, has completed all know your customer requirements to its satisfaction in respect of the relevant Substitute Affiliate Lender.

(c)

The Designating Lender will act as the representative of any Substitute Affiliate Lender it nominates for all administrative purposes under this Agreement.  The Obligors, the Facility Agent and the other Finance Parties will be entitled to deal only with the Designating Lender, except that payments will be made in respect of Designated Loans to the Facility Office of the Substitute Affiliate Lender.  In particular the Commitments of the Designating Lender will not be treated as reduced by the introduction of the Substitute Affiliate Lender for voting purposes under this Agreement or the other Finance Documents.

(d)

Save as mentioned in paragraph (c) above, a Substitute Affiliate Lender will be treated as a Revolving Credit Lender or a US$ Swingline Lender (as applicable) for all purposes under the Finance Documents and having a Commitment equal to the principal amount of all Designated Loans in which it is participating if and for so long as it continues to be a Substitute Affiliate Lender under this Agreement.

(e)

A Designating Lender may revoke its designation of an Affiliate as a Substitute Affiliate Lender by notice in writing to the Facility Agent and the Parent provided that such notice may only take effect when there are no Designated Loans outstanding to the Substitute Affiliate Lender.  Upon such Substitute Affiliate Lender ceasing to be a Substitute Affiliate Lender the Designating Lender will automatically assume (and be deemed to assume without further action by any Party) all rights and obligations previously vested in the Substitute Affiliate Lender.

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(f)

Any Substitute Affiliate Lender or Designating Lender acting by a Substitute Facility Office is only entitled to receive payment under Clause 14 (Taxes) and Clause 15 (Increased Costs) to the same extent as the relevant Designating Lender would have been entitled prior to designating that Substitute Affiliate Lender or the Substitute Facility Office (as applicable), unless those payments arose as a result of circumstances which arose after such designation.

2.6

Finance Parties’ rights and obligations

(a)

The obligations of each Finance Party under the Finance Documents are several.  Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents.  No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.

(b)

The rights of each Finance Party under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor is a separate and independent debt in respect of which a Finance Party shall be entitled to enforce its rights in accordance with paragraph (c) below. The rights of each Finance Party include any debt owing to that Finance Party under the Finance Documents, any part of a Loan or any other amount owed by an Obligor which relates to a Finance Party's participation in the Facility or its role under a Finance Document (including any such amount payable to any Agent on its behalf) is a debt owing to that Finance Party by that Obligor.

(c)

A Finance Party may, except as specifically provided in the Finance Documents, separately enforce its rights under or in connection with the Finance Documents.

2.7

Appointment of Obligors' Agent

(a)

Each Obligor irrevocably authorises the Obligors' Agent to give all notices (including, without limitation, Requests and notices of prepayment and cancellation) and instructions and make such agreements (including, without limitation, to confirm the continuation of any guarantees or indemnities following any amendment or waiver, however fundamental, or in relation to an alternative basis for determining the rate of interest and/or funding applicable to a Loan (as described in paragraph (b) of Clause 11.4 (Cost of funds)) expressed to be capable of being given or made by the Obligors' Agent in this Agreement.

(b)

The authorisation of the Obligors' Agent shall be effective notwithstanding that the exercise of the Obligors' Agent's authority may affect the Obligors without further reference to or the consent of the Obligors.  Each Obligor shall, as regards each Agent and each Lender, be bound by any action taken by the Obligors' Agent on its behalf as though that Obligor had itself taken such action.

2.8

Change of currency

(a)

If more than one currency or currency unit are at the same time recognised by the central bank of any country as the lawful currency of that country, then:

 

(i)

any reference in the Finance Documents to, and any obligations arising under the Finance Documents in, the currency of that country shall be translated into, or paid in, the currency or currency unit of that country designated by the Facility Agent; and

 

(ii)

any translation from one currency or currency unit to another shall be at the official conversion rate recognised by the central bank for the conversion of that currency or currency unit into the other, rounded up or down by the Facility Agent acting reasonably.

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(b)

If a change in any currency of a country occurs, this Agreement will be amended to the extent the Facility Agent specifies to be necessary to reflect the change in currency and to put the Finance Parties in the same position, so far as possible, that it would have been in if no change in currency had occurred.

2.9

Increase

(a)

The Parent may by giving prior notice to the Facility Agent by no later than the date falling ten Business Days after the effective date of a cancellation of:

 

(i)

the Available Commitments of a Defaulting Lender in accordance with Clause 8.4 (Right of cancellation in relation to a Defaulting Lender); or

 

(ii)

the Commitments of a Lender in accordance with Clause 16 (Illegality),

request that the Total Commitments be increased (and the Total Commitments under the Facility shall be so increased) in an aggregate amount in US Dollars of up to the amount of the Available Commitments or Commitments so cancelled as follows:

 

(A)

the increased Commitments will be assumed by one or more Lenders or other banks or financial institutions (each an Increase Lender) selected by the Parent (each of which shall not be a member of the Group) and each of which confirms its willingness to assume (whether in the Increase Confirmation or otherwise) and does assume all the obligations of a Lender corresponding to that part of the increased Commitments which it is to assume, as if it had been an Original Lender;

 

(B)

each of the Obligors and any Increase Lender shall assume obligations towards one another and/or acquire rights against one another as the Obligors and the Increase Lender would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

(C)

each Increase Lender shall become a Party as a Lender and any Increase Lender and each of the other Finance Parties shall assume obligations towards one another and acquire rights against one another as that Increase Lender and those Finance Parties would have assumed and/or acquired had the Increase Lender been an Original Lender;

 

(D)

the Commitments of the other Lenders shall continue in full force and effect; and

 

(E)

any increase in the Total Commitments shall take effect on the date specified by the Parent in the notice referred to above or any later date on which the conditions set out in paragraph (b) below are satisfied.

(b)

An increase in the Total Commitments will only be effective on:

 

(i)

the execution by the Facility Agent of an Increase Confirmation from the relevant Increase Lender; and

 

(ii)

in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase, the performance by the Facility Agent of all necessary "know your customer" or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Commitments by that Increase Lender, the completion of which the Facility Agent shall promptly notify to the Parent and the Increase Lender;

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(c)

Each Increase Lender, by executing the Increase Confirmation, confirms that the Facility Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the increase becomes effective.

(d)

Unless the Facility Agent otherwise agrees or the increased Commitment is assumed by an existing Lender or Lenders, the Parent shall, on the date upon which the increase takes effect, pay to the Facility Agent (for its own account) a fee of US$2,500 and the Parent shall promptly on demand pay the Facility Agent the amount of all costs and expenses (including legal fees) reasonably incurred by it in connection with any increase in Commitments under this Clause 2.9.

(e)

The Parent may pay to the Increase Lender a fee in the amount and at the times agreed between the Parent and the Increase Lender in a separate Fee Letter.  

(f)

Paragraphs (g), (h) and (i) of Clause 28.2 (Transfers by Lenders) shall apply mutatis mutandis in this Clause ‎2.9 in relation to an Increase Lender as if references in that Clause to:

 

(i)

an Existing Lender were references to all the Lenders immediately prior to the relevant increase;

 

(ii)

the New Lender were references to that Increase Lender; and

 

(iii)

a re-transfer were references to a transfer.

2.10

Extension option

The Parent may request each Lender to extend its Maturity Date as follows:

 

(a)

the Parent may, by delivering a written request to that effect (the Extension Request) to the Facility Agent not earlier than 60 days and not later than 45 days before the first anniversary of the date of this Agreement, request an extension of the original Maturity Date by one year;

 

(b)

without prejudice to paragraph (a) above, the Parent may, by delivering an Extension Request not earlier than 60 days and not later than 45 days before the second anniversary of the date of this Agreement, request the extension of the Maturity Date (which may or may not have already been extended by one year pursuant to paragraph (a) above) by either:

 

(i)

an additional period of one year; or

 

(ii)

in  respect of the Lenders who had not previously agreed to the extension of the Maturity Date pursuant to paragraph (a) above only, by an additional period of two years from the original Maturity Date;

 

(c)

each Extension Request delivered pursuant to paragraph (a) or (b) above must specify whether, as at the date of that Extension Request, a Default is outstanding or, in the Parent’s opinion, might result from the extension requested in that Extension Request;

 

(d)

the Facility Agent must promptly notify the Lenders of the receipt of an Extension Request;

 

(e)

each Lender (in its absolute discretion) is free to decide whether or not to agree to each Extension Request under (a) or (b) above and the Maturity Date shall be extended in respect only of those Lenders which have so agreed;

24


 

 

(f)

each Lender that agrees to an Extension Request by written notice to the Facility Agent by the date falling 21 days before the anniversary of the date of this Agreement to which the Extension Request relates (the Relevant Cut-Off Date) will extend its Commitments for the period so requested of it and the Maturity Date with respect to that Lender will be extended accordingly upon payment of the fee payable pursuant to paragraph (a) of Clause 22.8 (Extension Fee) in respect of that extension.  The Facility Agent may notify the Lenders of that extension;

 

(g)

if a Lender fails to reply to the Facility Agent with respect to an Extension Request on or before the Relevant Cut-Off Date , it will be deemed to have refused the Extension Request;

 

(h)

any Extension Request under this Clause 2.10 is irrevocable.

3.

Purpose

(a)

Each Borrower shall apply each Revolving Loan towards:

 

(i)

its general corporate purposes; or

 

(ii)

refinancing the Existing Indebtedness; or

 

(iii)

financing any acquisitions not prohibited by the terms of this Agreement.

(b)

Each Borrower shall apply each Swingline Loan as support for any commercial paper programme.  No Swingline Loan will be used to repay an outstanding Swingline Loan;

(c)

Without affecting the obligations of any Obligor in any way, no Finance Party is bound to monitor or verify the application of any Loan.

4.

Conditions Precedent

4.1

Documentary conditions precedent

(a)

The Obligors' Agent may not deliver the first Request until the Facility Agent has notified the Borrower and the Lenders that it has received all of the documents set out in Part 1 of Schedule 2 in form and substance satisfactory to it.

(b)

Other than to the extent that the Majority Lenders notify the Facility Agent in writing to the contrary before the Facility Agent gives the notification described in paragraph (a) above, the Lenders authorise (but do not require) the Facility Agent to give that notification. The Facility Agent shall not be liable for any damages, costs or losses whatsoever as a result of giving any such notification.

4.2

Further conditions precedent

The obligation of each Lender to participate in any Loan is subject to the further conditions precedent that:

 

(a)

on both the date of the Request and the Drawdown Date:

 

(i)

the representations and warranties in Clause 18 (Representations and Warranties) to be repeated on those dates are correct and will be correct immediately after the Loan is made; and

 

(ii)

no Default is outstanding or might result from the Loan;

 

(b)

the making of the Loan would not cause Clause 2.3 (Facility Limits) to be contravened; and

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(c)

the making of the Loan would not result in more than eight Revolving Loans, three US$ Swingline Loans, and three SEK Swingline Loans being outstanding at any one time.  Any Separate Loan shall not be taken into account in this paragraph (c).

5.

Revolving Loans

5.1

Drawdown

A Borrower may borrow a Revolving Loan if the Facility Agent receives from the Obligors' Agent, not later than 9.00 a.m. (Swedish time) two Business Days before the proposed Drawdown Date or, in the case of a Loan denominated in an Optional Currency, three Business Days before the proposed Drawdown Date, a duly completed Request.  Each Request is irrevocable.

5.2

Completion of Requests

A Request will not be regarded as having been duly completed unless:

 

(a)

it specifies whether it is a utilisation of the Revolving Credit Facility, the US$ Swingline Facility, or the SEK Swingline Facility;

 

(b)

it specifies the Borrower that is intended borrow the Loan;

 

(c)

the Drawdown Date is a Business Day falling within the Availability Period;

 

(d)

the amount of the Loan is:

 

(i)

a minimum of US$25,000,000 and an integral multiple of US$5,000,000, or an equivalent amount in any Optional Currency; or

 

(ii)

the balance of the relevant undrawn Commitment; or

 

(iii)

such other amount as the Facility Agent (acting on the instructions of the Majority Lenders) may agree;

 

(e)

the amount selected under paragraph (d) above does not cause Clause 2.3 (Facility Limits) to be contravened;

 

(f)

the currency selected complies with Clause 12 (Optional Currencies);

 

(g)

the Interest Period selected complies with Clause 9 (Interest Periods) and does not extend beyond the Maturity Date in respect of any relevant Lender; and

 

(h)

the payment instructions comply with Clause 13 (Payments).

Each Request must specify one Revolving Loan only, but the Obligors' Agent may, subject to the other terms of this Agreement, deliver more than one Request on any one day.

5.3

Advance of Revolving Loans

(a)

The Facility Agent shall promptly notify each Revolving Credit Lender of the details of the requested Revolving Loan and the amount of its participation in the Revolving Loan.

(b)

Subject to the terms of this Agreement, each Revolving Credit Lender shall make its participation in the Revolving Loan available to the Facility Agent for the relevant Borrower in the currency in which it is to be borrowed, on the relevant Drawdown Date.

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(c)

The amount of each Revolving Credit Lender's participation in the Revolving Loan will be the proportion of the Loan which its Commitment in respect of the relevant Facility bears to the Total Revolving Credit Commitments in respect of the relevant Facility on the proposed Drawdown Date adjusted, if necessary, to reflect the operation of Clause 2.4 (A Lender's individual limit).

6.

Swingline Loans

6.1

Drawdown

(a)

A Borrower may borrow a Swingline Loan if the appropriate Swingline Agent receives from the Obligors' Agent a duly completed Request.  Each Request must be copied to the Facility Agent and is irrevocable.

(b)

Unless the Facility Agent and the appropriate Swingline Agent otherwise agree, the latest time for receipt:

 

(i)

by the US$ Swingline Agent and the Facility Agent of a duly completed Request for a US$ Swingline Loan is 9.00 a.m. (New York City time) on the proposed Drawdown Date; and

 

(ii)

by the SEK Swingline Agent of a duly completed Request for a SEK Swingline Loan is 10.00 a.m. (Stockholm time) on the proposed Drawdown Date.

(c)

Each Request for a Swingline Loan must be sent to the appropriate Swingline Agent to its address in New York City or, as the case may be, Stockholm, as well as to the Facility Agent at the same time.

6.2

Completion of Requests

A Request for a Swingline Loan will not be regarded as having been duly completed unless:

 

(a)

it specifies whether it is a utilisation of the US$ Swingline Facility or the SEK Swingline Facility;

 

(b)

it specifies the Borrower that is intended borrow the Loan;

 

(c)

the Drawdown Date is a US$ Swingline Business Day, or as appropriate, a SEK Swingline Business Day falling within the Availability Period;

 

(d)

the amount of the Loan is:

 

(i)

in the case of a US$ Swingline Loan, a minimum of US$25,000,000 and is an integral multiple of US$5,000,000;

 

(ii)

in the case of a SEK Swingline Loan, a minimum of SEK 100,000,000 and is an integral multiple of SEK 100,000,000;

 

(iii)

the balance of the undrawn Commitments under the relevant Swingline Facility; or

 

(iv)

such other amount as the Swingline Agent may agree;

 

(e)

the amount selected under paragraph (d) does not cause Clause 2.3 (Facility Limits) to be contravened;

 

(f)

the Interest Period selected complies with Clause 9 (Interest Periods) and does not extend beyond the Maturity Date with respect to any relevant Swingline Lender; and

 

(g)

the payment instructions comply with Clause 13 (Payments).

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6.3

Advance of Swingline Loans

(a)

In the case of a US$ Swingline Loan, the US$ Swingline Agent shall, not later than 11.00 a.m. (New York City time) on the proposed Drawdown Date, notify each US$ Swingline Lender of the details of the requested US$ Swingline Loan and the amount of its participation in the US$ Swingline Loan.

(b)

In the case of a SEK Swingline Loan, the SEK Swingline Agent shall not later than 11.00 a.m. (Stockholm time) on the proposed Drawdown Date notify each SEK Swingline Lender of the details of the requested SEK Swingline Loan and the amount of its participation in the SEK Swingline Loan.

(c)

Subject to the terms of this Agreement, each Swingline Lender shall make its participation in the Swingline Loan available to the Swingline Agent for the relevant Borrower on the relevant Drawdown Date.

(d)

The amount of each Swingline Lender's participation in the Swingline Loan will be the proportion of the Swingline Loan which its Swingline Commitment bears to the relevant Total Swingline Commitments on the date of receipt of the relevant Request, adjusted, if necessary, to reflect the operation of Clause 2.4 (A Lender's individual limit).

6.4

Non-payment of Swingline Loans

(a)

If a Swingline Loan is not repaid on its due date, each Lender must pay to the relevant Swingline Agent for the relevant Swingline Lenders an amount calculated as described below.

(b)

The amount (if any) required to be paid by a Lender is the proportion of the Swingline Loan not repaid (together with any interest accrued and unpaid on that amount from the Drawdown Date of the Swingline Loan to the date of payment by that Lender) which the Revolving Credit Commitment of that Lender bears to the Total Revolving Credit Commitments, less the amount of its share (or that of a Lender which is its Affiliate), before any adjustment under this Subclause, in the unpaid amount of the Swingline Loan.  If this produces a negative figure for a Lender no amount need be paid by that Lender.

(c)

On a payment under this Subclause, the paying Lenders will be subrogated to the rights of the Swingline Lenders which have shared in the payment received.

(d)

If and to the extent a paying Lender is not able to rely on its rights under paragraph (c) above, the relevant Borrower will be liable to that paying Lender for a debt equal to the amount that paying Lender has paid under this paragraph and the Borrower's liability to the Swingline Lender under paragraph (c) above will be reduced accordingly.

(e)

Any payment under this Subclause does not reduce the obligations in aggregate of any Obligor.

7.

Repayment

7.1

Repayment

(a)

Subject to paragraph (c) below, the relevant Borrower shall repay each Loan in full, on the last day of its Interest Period, to the Facility Agent or (in the case of a Swingline Loan) to the relevant Swingline Agent for the relevant Lender(s) participating in that Loan.

28


 

(b)

Without prejudice to each Borrower's obligation under paragraph (a) above:

 

(i)

if one or more Revolving Loans are to be made available to a Borrower:

 

(A)

on the same day that a maturing Revolving Loan is due to be repaid by that Borrower;

 

(B)

in the same currency as the maturing Revolving Loan (unless it arose as a result of the operation of Clause 12.2 (Revocation of currency); and

 

(C)

in whole or in part for the purpose of refinancing the maturing Revolving Loan; and

 

(ii)

the proportion borne by each Lender's participation in the maturing Revolving Loan to the amount of that maturing Revolving Loan is the same as the proportion borne by that Lender's participation in the new Revolving Loans to the aggregate amount of those new Revolving Loans,

the aggregate amount of the new Revolving Loans shall be treated as if applied in or towards repayment of the maturing Revolving Loan so that:

 

(A)

if the amount of the maturing Revolving Loan exceeds the aggregate amount of the new Revolving Loans:

 

I.

the relevant Borrower will only be required to pay an amount in cash in the relevant currency equal to that excess; and

 

II.

each Lender's participation (if any) in the new Revolving Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation (if any) in the maturing Revolving Loan and that Lender will not be required to make its participation in the new Loans available in cash; and

 

(B)

if the amount of the maturing Revolving Loan is equal to or less than the aggregate amount of the new Revolving Loans:

 

I.

the relevant Borrower will not be required to make any payment in cash; and

 

II.

each Lender will be required to make its participation in the new Revolving Loans available in cash only to the extent that its participation (if any) in the new Revolving Loans exceeds that Lender's participation (if any) in the maturing Revolving Loan and the remainder of that Lender's participation in the new Revolving Loans shall be treated as having been made available and applied by the Borrower in or towards repayment of that Lender's participation in the maturing Revolving Loan.

(c)

At any time when a Lender becomes a Defaulting Lender, the maturity date of each of the participations of that Lender in the Loans then outstanding will be automatically extended to the last day of the Availability Period and will be treated as separate Loans (the Separate Loans) denominated in the currency in which the relevant participations are outstanding.

(d)

A Borrower from whom a Separate Loan is outstanding may prepay that Loan by giving five Business Days' prior notice to the Facility Agent. The Facility Agent will forward a copy of a prepayment notice received in accordance with this paragraph (d) to the Defaulting Lender concerned as soon as practicable on receipt.

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(e)

Interest in respect of a Separate Loan will accrue for successive Interest Periods selected by the Borrower by the time and date specified by the Facility Agent (acting reasonably) and will be payable by that Borrower to the Defaulting Lender on the last day of each Interest Period of that Loan.

(f)

The terms of this Agreement relating to Loans generally shall continue to apply to Separate Loans other than to the extent inconsistent with paragraphs (b) to (e) above, in which case those paragraphs shall prevail in respect of any Separate Loan.

7.2

Re-borrowing

Subject to the other terms of this Agreement, any amounts repaid under Clause 7.1 (Repayment) may be re-borrowed.

8.

Prepayment and Cancellation

8.1

Automatic cancellation

The Commitments of each Lender shall, to the extent not already voluntarily cancelled under Clause 8.2 (Voluntary cancellation) or Clause 8.3 (Additional right of prepayment and cancellation), be automatically cancelled in full on the Maturity Date in respect of that Lender.

8.2

Voluntary cancellation

(a)

The Obligors' Agent may, by giving not less than five days' prior written notice to the Facility Agent (or such shorter period of notice as the Majority Lenders may agree), cancel in whole or in part the undrawn amount of the Total Revolving Credit Commitments (but the cancellation in part of either shall be in a minimum of US$25,000,000 and an integral multiple of US$5,000,000).

(b)

The Obligors' Agent may, by giving prior written notice to the US$ Swingline Agent, cancel the unutilised portion of the Total US$ Swingline Commitments in whole or in part (but if in part, in a minimum of US$25,000,000 and an integral multiple of US$5,000,000).

(c)

The Obligors' Agent may, by giving prior written notice to the SEK Swingline Agent, cancel the unutilised portion of the Total SEK Swingline Commitments in whole or in part (but if in part, in a minimum of SEK 200,000,000 and an integral multiple of SEK 50,000,000).

(d)

Any such cancellation shall reduce the Commitment of each Lender in respect of the relevant Facility pro rata.

(e)

The Obligors' Agent may not cancel the Total Revolving Credit Commitments if it would result in the Total US$ Swingline Commitments and the Total SEK Swingline Commitments exceeding the Total Revolving Credit Commitments.

8.3

Additional right of prepayment and cancellation

If:

 

(a)

any Lender makes a notification to the Facility Agent under Clause 11.3 (Market disruption);

 

(b)

any sum payable to any Lender by an Obligor is required to be increased under paragraph (c) of Clause 14.2 (Tax gross-up);

 

(c)

any Lender claims indemnification from the Parent under Clause 14.3 (Tax indemnity) or Clause 15.1 (Increased costs);

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(d)

an Obligor becomes obliged to pay any amount in accordance with Clause 16 (Illegality) to any Lender,

then, without prejudice to the obligations of the Borrowers under those Clauses, the Obligors' Agent may, whilst the relevant circumstances continue, serve a notice of prepayment and cancellation on that Lender through the Facility Agent.  On the date falling five Business Days after the date of service of the notice:

 

(i)

all the Borrowers shall prepay the participations of that Lender and its Affiliated Lender (if any) in all the Loans; and

 

(ii)

the Commitments of that Lender and its Affiliated Lender (if any) shall be cancelled.

8.4

Right of cancellation in relation to a Defaulting Lender

(a)

If any Lender becomes a Defaulting Lender, the Parent may, at any time whilst the Lender continues to be such, give the Facility Agent five Business Days' notice of cancellation of each Available Commitment of that Lender.

(b)

On the notice referred to in paragraph (a) above becoming effective, each Commitment of the Defaulting Lender shall immediately be reduced to zero.

(c)

The Facility Agent shall as soon as practicable after receipt of a notice referred to in paragraph (a) above, notify all the Lenders.

8.5

Mandatory Prepayment

(a)

If, at any time after the date of this Agreement:

 

(i)

it is or becomes unlawful for any Obligor to perform any of its obligations under the Finance Documents;

 

(ii)

any Borrower (other than the Parent) is not or ceases to be a Subsidiary of the Parent; or

 

(iii)

the guarantee of any Guarantor is not effective or is alleged by any Obligor to be ineffective for any reason,

then the Facility Agent may, and shall if so directed by the Majority Lenders, by notice to the Obligors' Agent:

 

(A)

cancel the Total Commitments; and/or

 

(B)

demand that all or part of the Loans, together with accrued interest and all other amounts accrued under the Finance Documents, be repaid forthwith, whereupon they shall be repaid forthwith.

(b)

If, at any time after the date of this Agreement:

 

(i)

a representation or warranty made, repeated or deemed to be repeated under Clause 18.26 (Sanctions) is incorrect in any material respect when made, repeated or deemed to be repeated; or

 

(ii)

an Obligor does not comply with Clause 19.25 (Sanctions),

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any Lender may, by notice to the Facility Agent (which shall promptly notify the Obligors’ Agent):

 

(A)

reduce its Commitments under the Facility to zero; and

 

(B)

demand that all or part of its share in the Loans, together with accrued interest and all its other amounts accrued and owing to it under the Finance Documents, be repaid forthwith, whereupon they shall be repaid immediately.

Any such notice will take effect in accordance with its terms.

(c)

If a change of control occurs, the Parent shall promptly notify the Facility Agent upon becoming aware of that change of control and any Lender shall have the right, within one month (or such longer period as the Parent and the Facility Agent acting on the instructions of all the Lenders may agree) of the Facility Agent receiving notice of the change of control under this paragraph, to require the Facility Agent to reduce, by notification to the Parent (the Notification of Reduction), its Commitments under the Facility to zero.  Thirty days following receipt of a Notification of Reduction with respect to a Lender, that Lender's Commitment will be cancelled in full and the Borrowers shall repay that Lender's participations in all Loans together with accrued interest and all other amounts accrued under the Finance Documents in respect of that Lender.

(d)

For the purposes of paragraph (c) above, a change of control occurs if a person or group of persons acting in concert at any time after the date of this Agreement acquires more than 50 per cent. of the shares which carry the right to vote in the Parent.

(e)

Any prepayment of a Loan pursuant to this Clause 8.5 shall be applied pro rata to each Lender's participation in that Loan.

8.6

Miscellaneous provisions

(a)

Any notice of prepayment and cancellation or notice of cancellation under this Agreement is irrevocable.  The Facility Agent shall notify the Lenders promptly of receipt of any such notice.

(b)

All prepayments under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, without premium or penalty.  All cancellations under this Agreement shall be made without penalty.

(c)

No prepayment or cancellation is permitted except in accordance with the express terms of this Agreement.

(d)

Subject to Clause 2.9 (Increase), no amount of a Commitment which is cancelled under this Agreement may subsequently be reinstated.

(e)

No amount prepaid under this Agreement may subsequently be re-borrowed.

9.

Interest Periods

9.1

General

Each Loan has one Interest Period only.

9.2

Selection

(a)

The Obligors' Agent may select an Interest Period for a Loan in the relevant Request.  Each Interest Period for a Loan will commence on its Drawdown Date.

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(b)

Subject to the following provisions of this Clause 9:

 

(i)

each Interest Period for a Revolving Loan will be one, two, three or six months or any other period agreed by the relevant Borrower and the Facility Agent (acting on the instructions of all the Lenders);

 

(ii)

each Interest Period for a US$ Swingline Loan will be a period not exceeding seven US$ Swingline Business Days; and

 

(iii)

each Interest Period for an SEK Swingline Loan will be a period not exceeding seven SEK Swingline Business Days.

(c)

No more than five Revolving Loans with Interest Periods of one month may be outstanding at any time.

9.3

Non-Business Days

If an Interest Period for a Revolving Loan would otherwise end on a day which is not a Business Day, that Interest Period shall instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).

9.4

Overrunning of the Maturity Date

If an Interest Period in respect of a Loan borrowed under the Facility would otherwise overrun the Maturity Date in respect of any Lender, it shall be shortened so that it ends on that Maturity Date.

9.5

Notification

The Facility Agent shall notify each relevant Party of the duration of each Interest Period promptly after ascertaining its duration.

10.

Interest

10.1

Interest rate

(a)

The rate of interest on each Revolving Loan for its Interest Period is the rate per annum determined by the Facility Agent to be the aggregate of the applicable:

 

(i)

Margin; and

 

(ii)

(A)       in relation to any Revolving Loan in Euro, EURIBOR;

(B)       in relation to any Revolving Loan in Swedish Kronor, STIBOR; or

(C)       in relation to any other Revolving Loan, LIBOR.

(b)

The rate of interest on each US$ Swingline Loan for its Interest Period is the rate per annum determined by the US$ Swingline Agent to be the US$ Swingline Rate for each day during its Interest Period.

(c)

The rate of interest on each SEK Swingline Loan for its Interest Period is the rate per annum determined by the SEK Swingline Agent to be the SEK Swingline Rate for each day during its Interest Period.

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10.2

Adjustment of Margin

(a)

In this Clause 10.2:

 

(i)

Margin Reset Date means any day upon which there is a change in the credit rating assigned to the Parent's long term unsecured and unsubordinated debt by either or both of the Rating Agencies, as notified to the Facility Agent in accordance with Clause 19.3 (Information - miscellaneous);

 

(ii)

Margin Period means the period from (and including) a Margin Reset Date to (but excluding) the next Margin Reset Date.

(b)

For the period from (and including) the date of this Agreement to (but excluding) the first Margin Reset Date, the Margin shall be 0.225 per cent. per annum.

(c)

On each Margin Reset Date, the Facility Agent shall determine the Margin (the relevant Margin) which will apply to all Interest Periods commencing during the Margin Period commencing on that Margin Reset Date.

 

(d)

 

(i)

 

If the Parent's long term unsecured and unsubordinated debt has assigned to it a credit rating by only one Rating Agency, the relevant Margin shall be the percentage rate per annum shown alongside that credit rating under the heading of the relevant Rating Agency in the table below;

 

 

 

 

 

 

 

(ii)

 

if the Parent's long term unsecured and unsubordinated debt has assigned to it a credit rating by both Rating Agencies and the level of both credit ratings is the same, the relevant Margin shall be the percentage rate per annum shown alongside those credit ratings in the table below;

 

(iii)

if the Parent's long term unsecured and unsubordinated debt has assigned to it a credit rating by both Rating Agencies but the level of both credit ratings is not the same, then:

 

(A)

if the credit ratings are different by only one level, the lower level will apply;

 

(B)

if the credit ratings are different by more than one level, then either:

 

I.

the average credit rating will apply; or

 

II.

if the average credit rating falls between two levels, the higher level will apply,

and for the purposes of this clause, the level of a credit rating shall be that shown as such alongside that credit rating in the table below, with level 1 being the highest and level 4 being the lowest.

 

Level

Standard & Poor's rating

Moody's rating

Applicable Margin

(per cent. per annum)

 

 

 

 

1

A- or higher

A3 or higher

0.225

 

 

 

 

2

BBB+

Baa1

0.275

 

 

 

 

3

BBB

Baa2

0.375

 

 

 

 

4

BBB- or lower

Baa3 or lower

0.55

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(e)

 

(i)

 

On and from any date upon which neither Rating Agency continues to assign a credit rating to the Parent's long term unsecured and unsubordinated debt, the Margin shall be 0.55 per cent. per annum.

 

 

 

 

 

 

 

(ii)

 

The Margin as determined in accordance with subparagraph (e)(i) above shall continue until such time as one or both Rating Agency assigns a credit rating to the long term unsecured and unsubordinated debt of the Parent, at which time the remaining provisions of this Clause 10.2 shall apply.

(f)

For so long as:

 

(i)

the Parent is in default of its obligations under this Agreement to notify the Facility Agent of any change in its long-term credit rating in accordance with Clause 19.3 (Information - miscellaneous); or

 

(ii)

an Event of Default is outstanding,

the Margin will be the highest applicable rate, being 0.55 per cent. per annum.

10.3

Due dates

Except as otherwise provided in this Agreement, accrued interest on each Loan is payable by the relevant Borrower on the last day of the Interest Period for that Loan and also, if the Interest Period is longer than six months, on the dates falling at six monthly intervals after the first day of that Interest Period.

10.4

Default interest

(a)

If an Obligor fails to pay any amount payable by it under the Finance Documents, it shall forthwith on demand by the Facility Agent pay interest on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate (the default rate) determined by the Facility Agent to be one per cent. per annum above, as applicable:

 

(i)

the rate on the overdue amount under Clause 10.1 (Interest rate) immediately before the due date (if of principal of a Loan to the end of the relevant Interest Period current at the due date of payment); or

 

(ii)

if the overdue amount relates to a US$ Swingline Loan, the US$ Swingline Rate; or

 

(iii)

if the overdue amount related to a SEK Swingline Loan, the SEK Swingline Rate; or

 

(iv)

in all other cases (including principal of a Loan following the relevant Interest Period current at the due date of payment), the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Revolving Loan in the currency of the overdue amount for such successive Interest Periods of such duration as the Facility Agent may determine (each a Designated Interest Period).

(b)

The default rate will be determined:

 

(i)

if calculated by reference to the relevant Swingline Rate, on each day; or

 

(ii)

if calculated by reference to LIBOR, EURIBOR or STIBOR on each Business Day or the first day of, or two Business Days before the first day of, the relevant Designated Interest Period, as appropriate.

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(c)

Default interest will be compounded monthly (if calculated by reference to the Swingline Rate) or at the end of each Designated Interest Period (if calculated by reference to LIBOR, EURIBOR or STIBOR).

10.5

Notification of rates of interest

(a)

The relevant Agent shall promptly notify the Obligors' Agent and the relevant Lenders of the determination of a rate of interest under this Agreement.

(b)

The Agent shall promptly notify the relevant Borrower of each Funding Rate relating to a Loan.

11.

Changes to the Calculation of Interest

11.1

Unavailability of Screen Rate

(a)

Interpolated Screen Rate: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR or STIBOR for the Interest Period of a Loan, the applicable LIBOR, EURIBOR or STIBOR shall be the Interpolated Screen Rate for a period equal in length to the Interest Period of that Loan.

(b)

Reference Bank Rate: If no Screen Rate is available for LIBOR or, if applicable, EURIBOR or STIBOR for:

 

(i)

the currency of a Loan; or

 

(ii)

the Interest Period of a Loan and it is not possible to calculate the Interpolated Screen Rate,

the applicable LIBOR, EURIBOR or STIBOR shall be the Reference Bank Rate as of 11.00 a.m. on the applicable Rate Fixing Day for the currency of that Loan and for a period equal in length to the Interest Period of that Loan.

(c)

Cost of funds: If paragraph (b) above applies but no Reference Bank Rate is available for the relevant currency or Interest Period there shall be no LIBOR, EURIBOR or STIBOR (as applicable) for that Loan and Clause 11.4 (Cost of funds) shall apply to that Loan for that Interest Period.

11.2

Calculation of Reference Bank Rate

(a)

Subject to paragraph (b) below, if LIBOR, EURIBOR or STIBOR is to be determined on the basis of a Reference Bank Rate but a Reference Bank or STIBOR Reference Bank (as applicable) does not supply a quotation by 11.30 a.m. on the applicable Rate Fixing Day the Reference Bank Rate shall be calculated on the basis of the quotations of the remaining Reference Banks or STIBOR Reference Banks (as applicable).

(b)

If at or about noon on the applicable Rate Fixing Day none or only one of the Reference Banks or STIBOR Reference Bank (as applicable) supplies a quotation, there shall be no Reference Bank Rate for the relevant Interest Period.

11.3

Market disruption

If before close of business in London on the applicable Rate Fixing Day for the relevant Interest Period the Facility Agent receives notifications from a Lender or Lenders (whose participations in a Loan exceed 50 per cent. of that Loan) that the cost to it of funding its participation in that Loan from the wholesale market for the relevant currency would be in excess of LIBOR, EURIBOR or STIBOR (as applicable) then Clause 11.4 (Cost of funds) shall apply to that Loan for the relevant Interest Period.

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11.4

Cost of funds

(a)

If this Clause 11.4 applies, the rate of interest on each Lender's share of the relevant Loan for the relevant Interest Period shall be the percentage rate per annum which is the sum of:

 

(i)

the Margin; and

 

(ii)

the rate notified to the Facility Agent by that Lender as soon as practicable and in any event no later than the date falling five Business Days before the date on which interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the relevant Lender of funding its participation in that Loan from whatever source it may reasonably select (such calculation of cost shall be certified in reasonable detail and disclosed to the Obligors’ Agent, provided that this shall not in any way require a Lender to reveal any information it considers to be confidential about itself or its operations).

(b)

If this Clause 11.4 applies and the Facility Agent or the Obligors’ Agent so requires, the Facility Agent and the Obligors’ Agent shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.

(c)

Any alternative basis agreed pursuant to paragraph (b) above shall, with the prior consent of all the Lenders and the Obligors’ Agent, be binding on all Parties.

11.5

Break Costs

(a)

Each Borrower shall, within three Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by that Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.

(b)

Each Lender shall, as soon as reasonably practicable after a demand by the Agent, provide a certificate confirming the amount of its Break Costs for any Interest Period in which they accrue.

12.

Optional Currencies

12.1

Selection

(a)

The Obligors' Agent may select the currency of a Revolving Loan in the relevant Request.

(b)

The currency of each Revolving Loan must be US Dollars or an Optional Currency.

(c)

The Obligors' Agent may not choose a currency if as a result the Revolving Loans would be denominated at any one time in more than four currencies.

(d)

The Facility Agent shall notify each Revolving Credit Lender of the currency of each Revolving Loan, the applicable Facility Agent's Spot Rate of Exchange and the Original Dollar Amount promptly after they are ascertained.

12.2

Revocation of currency

If before 9.30 a.m. on any Rate Fixing Day, the Facility Agent receives notice from a Revolving Credit Lender that:

 

(a)

it is impracticable for it to fund its participation in a Revolving Loan in the relevant Optional Currency during that Interest Period in the ordinary course of business in the London interbank market (or the European interbank market as appropriate); and/or

 

(b)

the use of the proposed Optional Currency might contravene any law or regulation,

37


 

the Facility Agent shall give notice to the Obligors' Agent and to the Revolving Credit Lenders to that effect before 11.00 a.m. on that day.  In this event:

 

(i)

the Obligors' Agent and the Revolving Credit Lenders may agree that the drawdown will not be made; or

 

(ii)

in the absence of agreement:

 

(A)

that Lender's participation in the Loan (or, if more than one Lender is similarly affected, those Lenders' participations in the Loan) shall be treated as a separate Loan denominated in US Dollars during the relevant Interest Period;

 

(B)

LIBOR shall be determined pursuant to Clause 11.1 (Unavailability of Screen Rate) save that, for the purposes of such determination, all references in Clause 11.1 (Unavailability of Screen Rate) and in the definition of Interpolated Screen Rate to “11.00 a.m.” shall be deemed to read “1.00 p.m.”.

12.3

Amount of Optional Currencies

(a)

If a Revolving Loan is to be drawn down in an Optional Currency, the amount of each Lender's participation in that Revolving Loan will be determined by converting into that Optional Currency that Lender's participation in the Original Dollar Amount of that Revolving Loan on the basis of the Facility Agent's Spot Rate of Exchange one Business Day before the Rate Fixing Day applicable to that Loan.

(b)

The Facility Agent shall notify the Lenders and the Obligors' Agent of Optional Currency amounts (and the applicable Facility Agent's Spot Rate of Exchange) promptly after they are ascertained.

13.

Payments

13.1

Place

All payments by an Obligor or a Lender under the Finance Documents shall be made to the Facility Agent or (if the payment relates to a Swingline Facility) the relevant Swingline Agent to its account at such office or bank in the principal financial centre of the country of the relevant currency (or, in the case of Euros, in the principal financial centre of a Participating Member State, Stockholm or London) as it may notify to that Obligor or that Lender for this purpose.  Notwithstanding the above, all payments by the Parent to the Co-ordinators under Clauses 22 (Fees) and 23 (Expenses) shall be made to the Co-ordinators in the manner agreed by the Co-ordinators and the Parent.

13.2

Funds

Payments under the Finance Documents to an Agent shall be made for value on the due date at such times and in such funds as the relevant Agent may specify as being customary at the time for the settlement of transactions in the relevant currency in the place for payment.

13.3

Distribution

(a)

Each payment received by an Agent under the Finance Documents for another Party shall, subject to paragraphs (b) to (e) below, be made available by that 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 the principal financial centre of the country of the relevant currency (or, in the case of Euros, in the principal financial centre of a Participating Member State, Stockholm or London) as it may notify to that Agent for this purpose by not less than five Business Days' prior notice.

38


 

(b)

Each Agent may apply any amount received by it for an Obligor in or towards payment (on the date and in the currency and funds of receipt) of any amount due from an Obligor under the Finance Documents or in or towards the purchase of any amount of any currency to be so applied.

(c)

Where a sum is to be paid to an Agent under the Finance Documents for another Party, that Agent is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.  

(d)

Unless paragraph (e) below applies, if an Agent pays an amount to another Party and it proves to be the case that that Agent had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid by that Agent shall on demand refund the same to that Agent together with interest on that amount from the date of payment to the date of receipt by that Agent, calculated by that Agent to reflect its cost of funds.

(e)

If an Agent has notified the Lenders that it is willing to make available amounts for the account of a Borrower before receiving funds from the Lenders then if and to the extent that that Agent does so but it proves to be the case that it does not then receive funds from a Lender in respect of a sum which it paid to a Borrower:

 

(i)

that Agent shall notify the Parent of that Lender's identity and the Borrower to whom that sum was made available shall on demand refund it to that Agent; and

 

(ii)

the Lender by whom those funds should have been made available or, if that Lender fails to do so, the Borrower to whom that sum was made available, shall on demand pay to that Agent the amount (as certified by that Agent) which will indemnify that Agent against any funding cost incurred by it as a result of paying out that sum before receiving those funds from that Lender.

13.4

Currency

(a)

A repayment or prepayment of a Loan or any part of a Loan is payable in the currency in which the Loan is denominated on its due date.

(b)

Interest is payable in the currency in which the relevant amount in respect of which it is payable is denominated.

(c)

Amounts payable in respect of costs, expenses and taxes and the like are payable in the currency in which they are incurred.

(d)

Any other amount payable under the Finance Documents is, except as otherwise provided in the Finance Documents, payable in US Dollars.

13.5

Set-off and counterclaim

All payments made by an Obligor under the Finance Documents shall be made without set-off or counterclaim.

13.6

Non-Business Days

(a)

If a payment under the Finance Documents 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).

(b)

During any extension of the due date for payment of any principal under this Agreement interest is payable on that principal at the rate payable on the original due date.

39


 

13.7

Impaired Agent

(a)

If, at any time, an Agent becomes an Impaired Agent, an Obligor or a Lender which is required to make a payment under the Finance Documents to the Agent in accordance with Clause 13.1 (Place) and Clause 13.2 (Funds) may instead either pay that amount direct to the required recipient or, if it is not reasonably practicable to pay that amount direct, pay that amount to an interest-bearing account held with an Acceptable Bank and in relation to which no Insolvency Event has occurred and is continuing, in the name of the Obligor or the Lender making the payment (the Paying Party) and designated as a trust account for the benefit of the Party or Parties beneficially entitled to that payment under the Finance Documents (the Recipient Party).  In each case such payments must be made on the due date for payment under the Finance Documents.

(b)

All interest accrued on the amount standing to the credit of the trust account shall be for the benefit of the Recipient Party or Recipient Parties pro rata to their respective entitlements.

(c)

A Party which has made a payment in accordance with this Clause ‎13.7 shall be discharged of the relevant payment obligation under the Finance Documents and shall not take any credit risk with respect to the amounts standing to the credit of the trust account.

(d)

Promptly upon the appointment of a successor Agent in accordance with Clause 21.12 (Resignation of an Agent), each Paying Party shall give all requisite instructions to the bank with whom the trust account is held to transfer the amount (together with any accrued interest) to the successor Agent for distribution to the relevant Recipient Party or Recipient Parties in accordance with Clause 13.3 (Distribution).

(e)

A Paying Party shall, promptly upon request by a Recipient Party and to the extent:

 

(i)

that it has not given an instruction pursuant to paragraph (d) above; and

 

(ii)

that it has been provided with the necessary information by that Recipient Party,

give all requisite instructions to the bank with whom the trust account is held to transfer the relevant amount (together with any accrued interest) to that Recipient Party.

13.8

Partial payments

(a)

If the Facility Agent receives a payment insufficient to discharge all the amounts then due and payable by the Borrowers under the Finance Documents, the Facility Agent shall apply that payment towards the obligations of the Borrowers under the Finance Documents in the following order:

 

(i)

first, in or towards payment pro rata of any unpaid, fees, costs and expenses of the Agents under the Finance Documents;

 

(ii)

secondly, in or towards payment pro rata of any accrued interest due but unpaid under this Agreement;

 

(iii)

thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and

 

(iv)

fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.

40


 

(b)

If a Swingline Agent receives a payment insufficient to discharge all the amounts then due and payable by the Borrowers to the relevant Swingline Lenders under this Agreement, the relevant Swingline Agent shall apply that payment towards the obligations of the Borrowers under the Finance Documents in respect of the relevant Swingline Facility in the following order:

 

(i)

first, in or towards payment pro rata of any unpaid fees, costs and expenses of the relevant Swingline Agent under the Finance Documents;

 

(ii)

secondly, in or towards payment pro rata of any accrued interest on a relevant Swingline Loan due but unpaid under this Agreement; and

 

(iii)

thirdly, in or towards payment pro rata of the principal of any relevant Swingline Loan due but unpaid under this Agreement.

(c)

The relevant Agent shall, if so directed by all the Lenders in the case of paragraph (a) above or all the relevant Swingline Lenders in the case of paragraph (b) above, vary the order set out in subparagraphs (a)(ii) to (iv) above or (b)(ii) and (iii) above, as appropriate.

(d)

Paragraphs (a), (b) and (c) above will override any appropriation made by any Borrower.

13.9

Disruption to Payment Systems

If either the Facility Agent determines (in its discretion) that a Disruption Event has occurred or the Facility Agent is notified by the Parent that a Disruption Event has occurred:

 

(a)

the Facility Agent may, and shall if requested to do so by the Parent, consult with the Parent with a view to agreeing with the Parent such changes to the operation or administration of the Facility as the Facility Agent may deem necessary in the circumstances;

 

(b)

the Facility Agent shall not be obliged to consult with the Parent in relation to any changes mentioned in paragraph (a) if, in its opinion, it is not practicable to do so in the circumstances and, in any event, shall have no obligation to agree to such changes;

 

(c)

the Facility Agent may consult with the Finance Parties in relation to any changes mentioned in paragraph (a) but shall not be obliged to do so if, in its opinion, it is not practicable to do so in the circumstances;

 

(d)

any such changes agreed upon by the Facility Agent and the Parent shall (whether or not it is finally determined that a Disruption Event has occurred) be binding upon the Parties as an amendment to (or, as the case may be, waiver of) the terms of the Finance Documents notwithstanding the provisions of Clause ‎27 (Amendments and Waivers);

 

(e)

the Facility Agent shall not be liable for any damages, costs or losses whatsoever (including, without limitation for negligence, gross negligence or any other category of liability whatsoever but not including any claim based on the fraud of the Facility Agent) arising as a result of its taking, or failing to take, any actions pursuant to or in connection with this Clause ‎13.9; and

 

(f)

the Facility Agent shall notify the Finance Parties of all changes agreed pursuant to paragraph (d) above.

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14.

Taxes

14.1

Definitions

(a)

In this Agreement:

Protected Party means a Finance Party which is or will be subject to any liability, or required to make any payment, for or on account of Tax in relation to a sum received or receivable (or any sum deemed for the purposes of Tax to be received or receivable) under a Finance Document.

Tax Credit means a credit against, relief or remission for, or repayment of any Tax.

Tax Deduction means a deduction or withholding for or on account of Tax from a payment under a Finance Document, other than a FATCA Deduction.  

Tax Payment means either the increase in a payment made by an Obligor to a Finance Party under Clause 14.2 (Tax gross-up) or a payment under Clause 14.3 (Tax indemnity).

(b)

Unless a contrary indication appears, in this Clause 14 a reference to determines or determined means a determination made in the absolute discretion of the person making the determination.

14.2

Tax gross-up

(a)

Each Obligor shall make all payments to be made by it without any Tax Deduction, unless a Tax Deduction is required by law.

(b)

The Parent shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the relevant Agent accordingly.  Similarly, a Lender shall notify the relevant Agent on becoming so aware in respect of a payment payable to that Lender.  If an Agent receives such notification from a Relevant Finance Party it shall notify the Parent and that Obligor.

(c)

If a Tax Deduction is required by law to be made by an Obligor, the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

(d)

If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.

(e)

Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.

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14.3

Tax indemnity

(a)

The Parent shall (within three Business Days of demand by the relevant Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party determines will be or has been (directly or indirectly) suffered for or on account of Tax by that Protected Party in respect of a Finance Document.

(b)

Paragraph (a) above shall not apply:

 

(i)

with respect to any Tax assessed on a Finance Party:

 

(A)

under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or

 

(B)

under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,

if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Finance Party; or

 

(ii)

to the extent a loss, liability or cost:

 

(A)

is compensated for by an increased payment under Clause 14.2 (Tax gross-up); or

 

(B)

would have been compensated for by an increased payment under Clause 14.2 (Tax gross-up); or

 

(C)

relates to a FATCA Deduction required to be made by a Party.

(c)

A Protected Party making, or intending to make, a claim under paragraph (a) above shall promptly notify the relevant Agent of the event which will give, or has given, rise to the claim, following which that Agent shall notify the Parent.

(d)

A Protected Party shall, on receiving a payment from an Obligor under this Clause 14.3, notify the relevant Agent.

14.4

US Taxation - delivery of forms and statements

(a)

Within 31 days after the date of this Agreement, each Lender (which is not a United States person as such term is defined in section 7701(a)(30) of the US Code) shall submit to the Obligors' Agent and the Facility Agent duly completed and signed copies of either:

 

(i)

Form W-8BEN-E (entitling the relevant Lender to a complete exemption from withholding on all amounts to be received by it, including fees, under the Finance Documents); or

 

(ii)

Form W-8ECI (relating to all amounts to be received by the relevant Lender, including fees, under the Finance Documents),

of the United States Internal Revenue Service.

(b)

Any New Lender (as defined in Clause 28.2 (Transfers by Lenders)) shall comply with the provisions of paragraph (a) above within 31 days, or earlier if requested, of it becoming a New Lender under this Agreement.

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(c)

Other than as set out in paragraphs (a) and (b) above, each Lender (and any New Lender) shall submit to the Obligors' Agent and the Facility Agent such additional duly completed and signed copies of the applicable forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may be:

 

(i)

reasonably requested by an Obligor or the Facility Agent from that Lender (or New Lender); and or

 

(ii)

required under then current United States law or regulations to determine the United States withholding taxes on payment in respect of all amounts to be received by that Lender (or New Lender), including fees, under the Finance Documents.

(d)

Upon the request of an Obligor or the Facility Agent, any New Lender that is a United States person (as such term is defined in Section 7701(a)(30) of the US Code) shall submit to the Obligors' Agent or the Facility Agent (as applicable) duly completed Internal Revenue Service Form W-9, establishing that it is such a United States person.

(e)

If any Lender (or any New Lender) determines that it is unable to submit any form or certificate that it is obliged to submit pursuant to this Clause 14.4, or that any information or declaration contained in any such form or certificate previously submitted has either ceased or will cease to be true, accurate and complete in all respects, it shall promptly notify the Obligors' Agent and the Facility Agent of such fact.

14.5

Tax credit

If an Obligor makes a Tax Payment and the relevant Finance Party determines that:

 

(a)

a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and

 

(b)

that Finance Party has obtained and utilised that Tax Credit,

the Finance Party shall pay an amount to the Obligor which that Finance Party determines will leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been required to be made by the Obligor.

14.6

VAT

(a)

All amounts expressed to be payable under a Finance Document by any Party to a Finance Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to paragraph (b) below, if VAT is or becomes chargeable on any supply made by any Finance Party to any Party under a Finance Document and such Finance Party is required to account to the relevant tax authority for the VAT, that Party must pay to such Finance Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and such Finance Party must promptly provide an appropriate VAT invoice to that Party).

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(b)

If VAT is or becomes chargeable on any supply made by any Finance Party (the Supplier) to any other Finance Party (the Recipient) under a Finance Document, and any Party other than the Recipient (the Relevant Party) is required by the terms of any Finance Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration):

 

(i)

(where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party must also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT.  The Recipient must (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and

 

(ii)

(where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party must promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT.

(c)

Where a Finance Document requires any Party to reimburse or indemnify a Finance Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Finance Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Finance Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.

(d)

Any reference in this Clause 14.6 to any Party shall, at any time when such Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term representative member to have the same meaning as in the Value Added Tax Act 1994).

(e)

In relation to any supply made by a Finance Party to any Party under a Finance Document, if reasonably requested by such Finance Party, that Party must promptly provide such Finance Party with details of that Party's VAT registration and such other information as is reasonably requested in connection with such Finance Party's VAT reporting requirements in relation to such supply.

14.7

FATCA Information

(a)

Subject to paragraph (c) below, each Party shall, within ten Business Days of a reasonable request by another Party:

 

(i)

confirm to that other Party whether it is:

 

(A)

a FATCA Exempt Party; or

 

(B)

not a FATCA Exempt Party;

 

(ii)

supply to that other Party such forms, documentation and other information relating to its status under FATCA as that other Party reasonably requests for the purposes of that other Party's compliance with FATCA; and

 

(iii)

supply to that other Party such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party's compliance with any other law, regulation, or exchange of information regime.

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(b)

If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.

(c)

Paragraph (a) above shall not oblige any Finance Party to do anything and paragraph (a)(iii) above shall not oblige any other Party to do anything, which would or might in its reasonable opinion constitute a breach of:

 

(i)

any law or regulation;

 

(ii)

any fiduciary duty; or

 

(iii)

any duty of confidentiality.

(d)

If a Party fails to confirm whether or not it is a FATCA Exempt Party or to supply forms, documentation or other information requested in accordance with paragraph (a)(i) or (ii) above (including where paragraph (c) above applies), then such Party shall be treated for the purposes of the Finance Documents (and payments under them) as if it is not a FATCA Exempt Party until such time as the Party in question provides the requested confirmation, forms, documentation or other information.

(e)

If a Borrower is a US Tax Obligor or an Agent reasonably believes that its obligations under FATCA or any other applicable law or regulation require it, each Relevant Finance Party shall, within ten Business Days of:

 

(i)

where a Borrower is a US Tax Obligor and the Relevant Finance Party is an Original Lender, the date of this Agreement;

 

(ii)

where a Borrower is a US Tax Obligor on a Transfer Date or a date on which an increase in Commitments takes effect pursuant to Clause 2.9 (Increase) and the Relevant Finance Party is a New Lender or an Increase Lender, the relevant Transfer Date or date on which an increase in Commitments takes effect pursuant to Clause 2.9 (Increase);

 

(iii)

the date a new US Tax Obligor accedes as a Borrower; or

 

(iv)

where a Borrower is not a US Tax Obligor, the date of a request from that Agent,

supply to that Agent:

 

(A)

a withholding certificate on Form W-8, Form W-9 or any other relevant form; or

 

(B)

any withholding statement or other document, authorisation or waiver as that Agent may require to certify or establish the status of such Relevant Finance Party under FATCA or that other law or regulation.

(f)

An Agent shall provide any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Relevant Finance Party pursuant to paragraph (e) above to the relevant Borrower.

(g)

If any withholding certificate, withholding statement, document, authorisation or waiver provided to an Agent by a Relevant Finance Party pursuant to paragraph (e) above is or becomes materially inaccurate or incomplete, that Relevant Finance Party shall promptly update it and provide such updated withholding certificate, withholding statement, document, authorisation or waiver to that Agent unless it is unlawful for that Relevant Finance Party to do so (in which case that Relevant Finance Party shall promptly notify that Agent). The relevant Agent shall provide any such updated withholding certificate, withholding statement, document, authorisation or waiver to the relevant Borrower.

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(h)

An Agent may rely on any withholding certificate, withholding statement, document, authorisation or waiver it receives from a Relevant Finance Party pursuant to paragraph (e) or (g) above without further verification.  No Agent shall be liable for any action taken by it under or in connection with paragraphs (e) to (g) above.

14.8

FATCA Deduction

(a)

Each Party may make any FATCA Deduction it is required to make by FATCA, and any payment required in connection with that FATCA Deduction, and no Party shall be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction.

(b)

Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of such FATCA Deduction), notify the Party to whom it is making the payment and, in addition, shall notify the Parent and the Facility Agent and the Facility Agent shall notify the other Finance Parties.

15.

Increased Costs

15.1

Increased costs

(a)

Subject to Clause 15.2 (Exceptions), the Parent shall forthwith on demand by a Finance Party pay to that Finance Party the amount of any increased cost incurred by it or any of its Affiliates as a result of:

 

(i)

any Change in Law; or

 

(ii)

compliance with any regulation made after the date of this Agreement,

(including any law or regulation relating to taxation, change in currency of a country, or reserve asset, special deposit, cash ratio, liquidity or capital adequacy requirements or any other form of banking or monetary control).

(b)

In this Agreement increased cost means:

 

(i)

an additional cost incurred by a Finance Party or any of its Affiliates as a result of it having entered into, or performing, maintaining or funding its obligations under, this Agreement;

 

(ii)

that portion of an additional cost incurred by a Finance Party or any of its Affiliates in making, funding or maintaining all or any advances comprised in a class of advances formed by or including that Finance Party's participations in the Loans made or to be made under this Agreement as is attributable to a Finance Party making, funding or maintaining those participations;

 

(iii)

a reduction in any amount payable to a Finance Party or any of its Affiliates or the effective return to a Finance Party or any of its Affiliates under this Agreement or (to the extent that it is attributable to this Agreement) on its capital; or

 

(iv)

the amount of any payment made by a Finance Party or any of its Affiliates, or the amount of any interest or other return foregone by a Finance Party or any of its Affiliates, calculated by reference to any amount received or receivable by that Finance Party or any of its Affiliates from any other Party under this Agreement.

(c)

As soon as practicable after becoming aware that the Parent is liable, or will become liable, to pay any amount in accordance with the provisions of paragraph (a) above, the Facility Agent will notify the Parent accordingly.

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15.2

Exceptions

Clause 15.1 (Increased costs) does not apply to any increased cost:

 

(a)

compensated for by the operation of Clause 14 (Taxes);

 

(b)

attributed to any change in the rate of, or change in the basis of calculating, tax on the overall net income of a Lender (or the overall net income of a division or branch of that Lender) imposed in the jurisdiction in which its principal office for the time being is situate;

 

(c)

attributable to the implementation or application of, or compliance with Basel II or any law or regulation that implements or applies Basel II (but excluding any amendment that arises out of Basel III); or

 

(d)

attributable to a FATCA Deduction required to be made by a Party.

15.3

Claims

(a)

A Finance Party intending to make a claim for an Increased Cost must provide the Parent with a certificate confirming the amount of (and the calculation leading to such amount, provided that this shall not in any way require a Finance Party to reveal any information it considers to be confidential about itself or its operations), and the events giving rise to, the claim.

(b)

Failure or delay on the part of any Finance Party to demand compensation pursuant to this Clause shall not constitute a waiver of such Finance Party’s right to demand such compensation; provided that the Parent shall not be required to compensate a Finance Party pursuant to this Clause for any increased costs incurred or reductions suffered more than six months prior to the date that such Finance Party notifies the Parent of such Finance Party’s intention to claim compensation therefor.

16.

Illegality

If it is or becomes unlawful in any jurisdiction for a Lender to give effect to any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan or it becomes unlawful for any Affiliate of a Lender for that Lender to do so, then:

 

(a)

that Lender may notify the Obligors' Agent through the Facility Agent accordingly; and

 

(b)

 

(i)

 

each Borrower shall forthwith prepay the participations of that Lender and its Affiliated Lender (if any) in all the Loans made to it; and

 

 

 

 

 

 

 

(ii)

 

the Commitments of that Lender and its Affiliated Lender (if any) shall forthwith be cancelled.

17.

Guarantee

17.1

Guarantee and Indemnity

Each Guarantor irrevocably and unconditionally jointly and severally:

 

(a)

as principal obligor guarantees to each Finance Party prompt performance by each Borrower of all its obligations under the Finance Documents;

 

(b)

undertakes with each Finance Party that whenever a Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall forthwith on demand by an Agent pay that amount as if that Guarantor instead of the Borrower were expressed to be the principal obligor; and

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(c)

agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnify that Finance Party immediately on demand against any cost, loss or liability it incurs as a result of a Borrower not paying any amount which would, but for that unenforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due.  The amount payable by a Guarantor under this indemnity will not exceed the amount it would have had to pay under this Clause 17 if the amount claimed had been recoverable on the basis of a guarantee.

17.2

Limitations of guarantee by Autoliv ASP, Inc.

The obligations of Autoliv ASP, Inc. under this Clause 17 only extend to the obligations of Autoliv Inc. as Borrower under this Agreement.

17.3

Continuing guarantee

This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.

17.4

Reinstatement

If any discharge, release or arrangement (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of each Guarantor under this Clause 17 will continue or be reinstated as if the discharge, release  or arrangement had not occurred.

17.5

Waiver of defences

The obligations of each Guarantor under this Clause 17 will not be affected by an act, omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its obligations under this Clause 17 (without limitation and whether or not known to it or any Finance Party) including:

 

(a)

any time, waiver or consent granted to, or composition with, any Obligor or other person;

 

(b)

the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Group;

 

(c)

the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;

 

(d)

any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;

 

(e)

any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Finance Document or any other document or security including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Finance Document or other document or security;

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(f)

any unenforceability, illegality or invalidity of any obligation of any person under any Finance Document or any other document or security; or

 

(g)

any insolvency or similar proceedings.

17.6

Guarantor intent

Without prejudice to the generality of Clause 17.5 (Waiver of defences), each Guarantor expressly confirms that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Finance Documents and/or any facility or amount made available under any of the Finance Documents for the purposes of or in connection with any of the following: business acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing.

17.7

Immediate recourse

Each Guarantor waives any right it may have of first requiring any Finance Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Guarantor under this Clause 17.  This waiver applies irrespective of any law or any provision of a Finance Document to the contrary.

17.8

Appropriations

Until all amounts which may be or become payable by the Obligors under or in connection with the Finance Documents have been irrevocably paid in full, each Finance Party (or any trustee or agent on its behalf) may:

 

(a)

refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in such manner and order as it sees fit (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and

 

(b)

hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 17.

17.9

Deferral of Guarantor's rights

Until all amounts which may be or become payable by the Borrowers under or in connection with the Finance Documents have been irrevocably paid in full and unless the Facility Agent otherwise directs, no Guarantor will exercise any rights which it may have by reason of performance by it of its obligations under the Finance Documents or by reason of any amount being payable, or liability arising, under this Clause 17:

 

(a)

to be indemnified by an Obligor;

 

(b)

to claim any contribution from any other guarantor of any Obligor's obligations under the Finance Documents;

 

(c)

to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;

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(d)

to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 18.1 (Guarantee and indemnity);

 

(e)

to exercise any right of set-off against any Obligor; and/or

 

(f)

to claim or prove as a creditor of any Obligor in competition with any Finance Party.

If a Guarantor receives any benefit, payment or distribution in relation to any such rights it shall hold that benefit, payment or distribution (to the extent necessary to enable all amounts which may be or become payable to the Finance Parties by the Obligors under or in connection with the Finance Documents to be repaid in full) on trust for the Finance Parties and shall promptly pay or transfer the same as the Facility Agent may direct for application in accordance with Clause 13 (Payments).

17.10

Release of Guarantors' right of contribution

If any Guarantor (a Retiring Guarantor) ceases to be a Guarantor in accordance with the terms of the Finance Documents for the purpose of any sale or other disposal of that Retiring Guarantor then on the date that Retiring Guarantor ceases to be a Guarantor:

 

(a)

that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and

 

(b)

each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.

17.11

Additional security

This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Finance Party.

17.12

Consideration and enforceability

(a)

Each Guarantor represents, warrants and agrees that:

 

(i)

it will receive valuable direct and indirect benefits as a result of the transactions financed by the Loans; and

 

(ii)

these benefits will constitute "reasonably equivalent value" and "fair consideration" as those terms are used in the fraudulent transfer laws.

(b)

Each Guarantor acknowledges and agrees that the Finance Parties have acted in good faith in connection with the guarantee granted under this Clause 17, and the transactions contemplated by this Agreement.

(c)

This Clause 17 shall be enforceable against each Guarantor to the maximum extent permitted by the fraudulent transfer laws.

(d)

Each Guarantor's liability under this Clause 17 shall be limited so that no obligation of, or transfer by, a Guarantor under this Clause 17 is subject to avoidance and turnover under the fraudulent transfer laws.

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(e)

For the purposes of this Clause, "fraudulent transfer laws" means applicable United States bankruptcy and state fraudulent transfer and conveyance statutes and the related case law.

17.13

US Guarantors

(a)

In this Agreement:

fraudulent transfer law means any applicable United States bankruptcy and State fraudulent transfer and conveyance statute and any related case law;

US Debtor means an Obligor that is incorporated or organised under the laws of the United States of America or any State of the United States of America (including the District of Columbia) or that has a place of business or property in the United States of America.

US Guarantor means any Guarantor that is a US Debtor; and

terms used in this subclause are to be construed in accordance with the fraudulent transfer laws.

(b)

Each US Guarantor acknowledges that:

 

(i)

it will receive valuable direct or indirect benefits as a result of the transactions financed by the Finance Documents;

 

(ii)

those benefits will constitute reasonably equivalent value and fair consideration for the purpose of any fraudulent transfer law; and

 

(iii)

each Finance Party has acted in good faith in connection with the guarantee given by that U.S. Guarantor and the transactions contemplated by the Finance Documents.

(c)

Each Finance Party agrees that each US Guarantor's liability under this Clause is limited so that no obligation of, or transfer by, any US Guarantor under this Clause is subject to avoidance and turnover under any fraudulent transfer law.

(d)

Each US Guarantor represents and warrants to each Finance Party that:

 

(i)

the aggregate amount of its debts (including its obligations under the Finance Documents) is less than the aggregate value (being the lesser of fair valuation and present fair saleable value) of its assets;

 

(ii)

its capital is not unreasonably small to carry on its business as it is being conducted;

 

(iii)

it has not incurred and does not intend to incur debts beyond its ability to pay as they mature; and

 

(iv)

it has not made a transfer or incurred any obligation under any Finance Document with the intent to hinder, delay or defraud any of its present or future creditors.

(e)

Each representation and warranty in this subclause:

 

(i)

is made by each US Guarantor on the date of this Agreement; and

 

(ii)

is deemed to be repeated by each US Guarantor on the date of each Request and the first day of each Interest Period; and

is, when repeated, applied to the circumstances existing at the time of repetition.

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18.

Representations and Warranties

18.1

Representations and warranties

Each Obligor makes the representations and warranties set out in this Clause 18 to each Finance Party.

18.2

Status

(a)

It is a limited liability company, duly incorporated and validly existing under the laws of the jurisdiction of its incorporation.

(b)

Each Material Subsidiary has the power to own its assets and carry on its business as it is being conducted.

18.3

Powers and authority

It has the power to enter into and perform, and has taken all necessary action to authorise the entry into, performance and delivery of, the Finance Documents to which it is or will be a party and the transactions contemplated by those Finance Documents.

18.4

Legal validity

Each Finance Document to which it is or will be a party constitutes, or when executed in accordance with its terms will constitute, its legal, valid and binding obligation enforceable in accordance with its terms.

18.5

Non-conflict

The entry into and performance by it of, and the transactions contemplated by, the Finance Documents to which it is a party do not and will not:

 

(a)

conflict with any law or regulation or judicial or official order; or

 

(b)

conflict with the constitutional documents of any Obligor; or

 

(c)

conflict with any document which is binding upon any Obligor or any asset of any Obligor in a manner which could reasonably be expected to have a material adverse effect.

18.6

No default

(a)

No Default is outstanding or might result from the making of any Loan.

(b)

No other event is outstanding which constitutes (or with the giving of notice, lapse of time, determination of materiality or the fulfilment of any other applicable condition or any combination of the foregoing, would constitute) a default under any document which is binding on any member of the Group or any asset of any member of the Group to an extent or in a manner which could reasonably be expected to have a material adverse effect.

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18.7

Authorisations

(a)

All authorisations which would reasonably be considered to be required in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, the Finance Documents to which it is a party have been obtained or effected (as appropriate) and are in full force and effect.

(b)

All acts, conditions and things required to be done, fulfilled and performed under the laws of the United States of America in order to make the Finance Documents admissible in evidence in the United States of America have been done, fulfilled and performed.

18.8

Accounts

(a)

In the case of the Parent, the audited consolidated accounts of the Group most recently delivered to the Facility Agent (which, at the date of this Agreement, are the Original Group Accounts):

 

(i)

have been prepared in accordance with accounting principles and practices generally accepted in the USA consistently applied; and

 

(ii)

fairly represent the consolidated financial condition of the Group as at the date to which they were drawn up.

(b)

In the case of each Borrower other than the Parent, its audited accounts most recently delivered to the Facility Agent:

 

(i)

have been prepared in accordance with accounting principles and practices generally accepted in the jurisdiction of its incorporation consistently applied; and

 

(ii)

fairly represent its financial condition as at the date to which they were drawn up.

18.9

Litigation

(a)

Other than as specifically disclosed to the Facility Agent prior to the date of this Agreement, no litigation, arbitration or administrative proceedings are current or, to its knowledge, pending or threatened, which are reasonably to be expected to be adversely determined, and which might, if adversely determined, have a material adverse effect.

(b)

In respect of any litigation, arbitration or administrative proceedings disclosed to the Facility Agent prior to the date of this Agreement, there has been no development in the conduct of those proceedings which might have a material adverse effect.

18.10

Taxes on payments

It will not be required to make any deduction or withholding from any payment it may make to any Finance Party under the Finance Documents.

18.11

No immunity

In any proceedings taken in England and Wales, the United States of America or any other relevant state or jurisdiction, in each case in relation to the Finance Documents, it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process.

18.12

Pari passu ranking

Its obligations under the Finance Documents will rank at least pari passu with the claims of all its other unsecured creditors save those whose claims are preferred solely by any bankruptcy, insolvency, liquidation or other similar laws of general application.

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18.13

Winding up: re-organisation etc.

It has not taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against it for its winding-up, dissolution, administration or re-organisation or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of any or all of its assets or revenues.

18.14

Environmental Law

Other than as specifically disclosed to the Facility Agent prior to the date of this Agreement, each Obligor is and has been in compliance with all applicable Environmental Laws and Environmental Licenses in all material respects and, so far as it is aware, there are no circumstances that may at any time prevent or interfere with continued compliance by it with all applicable Environmental Laws and Environmental Licenses in all material respects.  Other than as disclosed to the Facility Agent prior to the date of this Agreement, no Environmental Claim is pending or, to the best of its knowledge, threatened against it or any of its properties.

18.15

ERISA

Each Plan of the Obligors and their respective ERISA Affiliates complies in all material respects with all applicable requirements of law and regulation.  No Reportable Event has occurred with respect to any Plan which might have a material adverse effect, and no steps have been taken to terminate any Plan.  No Obligor or any Subsidiary or ERISA Affiliate of an Obligor has had a complete or partial withdrawal from any Multiemployer Plan or initiated any steps to do so.

18.16

Investment Company Act

No Obligor is an "investment company" or a company "controlled" by an "investment company", within the meaning of the United States Investment Company Act of 1940, as amended.

18.17

Federal Power Act

No Obligor is a "public utility" within the meaning of, or otherwise subject to regulation under, the United States Federal Power Act.

18.18

Other regulation

No Obligor is subject to regulation under any United States Federal or State statute or regulation that limits its ability to incur or guarantee indebtedness.

18.19

Margin Stock

(a)

The proceeds of the Loans have been and will be used only for the purposes described in Clause 3 (Purpose).

(b)

No Obligor is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations U and X of the Board of Governors of the United States Federal Reserve System).

(c)

None of the transactions contemplated in this Agreement (including, without limitation, the borrowings hereunder and the use of the proceeds thereof) will violate or result in a violation of Section 7 of the Securities Exchange Act of 1934 (or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X).

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18.20

Solvency

(a)

The Parent has not incurred and does not intend to incur or believe it will incur debts beyond its ability to pay as they mature.

(b)

The Parent has made no transfer or incurred any obligation under this Agreement with the intent to hinder, delay or defraud any of its present or future creditors.

(c)

For purposes of this Clause 18.20:

 

(i)

debt means any liability on a claim;

 

(ii)

claim means (A) any right to payment, whether or not that right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (B) any right to an equitable remedy for breach of performance if that breach gives rise to payment, whether or not the right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured; and

 

(iii)

terms used in this Clause 18.20 shall be construed in accordance with the applicable United States bankruptcy and New York fraudulent conveyance statutes and the related case law.

18.21

Stamp duties

No stamp or registration duty or similar taxes or charges are payable in respect of any Finance Document.

18.22

No Security Interests

Other than as permitted by the provisions of Clause 19.8 (Negative pledge), no Security Interest exists over all or any of its present or future revenues or assets.

18.23

Material adverse change

There has been no material adverse change in the condition (financial or otherwise) of any Borrower or the Group as a whole since the date of the Original Group Accounts.

18.24

Jurisdiction and governing law

(a)

Its:

 

(i)

irrevocable submission under this Agreement to the jurisdiction of the courts of England and New York;

 

(ii)

agreement that this Agreement and any non-contractual obligations arising out of it are governed by English law; and

 

(iii)

agreement not to claim any immunity to which it or its assets may be entitled,

are legal, valid and binding under the laws of its jurisdiction of incorporation.

(b)

Any judgment obtained in England or in New York will be recognised and be enforceable by the courts of its jurisdiction of incorporation.

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18.25

Anti-corruption law

Each member of the Group maintains policies designed to promote compliance with applicable anti-corruption laws and, to the best of its knowledge and belief, having made due and careful enquiry, each such member has conducted its business in accordance, and is in compliance, with those laws.

18.26

Sanctions

No Obligor, nor any of its respective Subsidiaries or its (or its respective Subsidiaries’) directors or officers or (to the best of its knowledge and belief, having made due and careful inquiry) its (or its respective Subsidiaries’) employees or agents:

 

(a)

is a Sanctions Restricted Party;

 

(b)

is, to the extent it is or should be aware, subject to or involved in any action, claim, suit, proceeding or investigation against it with respect to Sanctions Laws by any Sanctions Authority;

 

(c)

has, to the best of its knowledge and belief, having made due and careful inquiry, directly or indirectly engaged in transactions on behalf of the Group or any Obligor with a Sanctions Restricted Party save to the extent that such a transaction is expressly permitted by the relevant Sanctions Laws; or

 

(d)

has directly or indirectly has engaged in or engages in transactions on behalf of the Group or any Obligor that evade or violate, are intended to evade or violate or attempt to evade or violate, any Sanctions Laws.

The representations and warranties above shall not be made by nor apply to any Obligor in so far as they would violate or expose any Party (including such Obligor) or any of its Subsidiaries or any director, officer or employee thereof to any liability under any anti-boycott or blocking law, regulation or statute that is in force from time to time and applicable to such entity (including without limitation EU Regulation (EC) 2271/96 and Section 7 of the German Foreign Trade Ordinance (Verordnung zur Durchführung des Außenwirtschaftsgesetzes (Außen¬wirtschafts¬verordnung – AWV)).

18.27

Times for making representations and warranties

The representations and warranties set out in this Clause 18:

 

(a)

are made on the date of this Agreement; and

 

(b)

(with the exception of Clause 18.10 (Taxes on payments), Clause 18.21 (Stamp duties) and Clause 18.23 (Material adverse change)) are deemed to be repeated by each Obligor on the date of each Request, the date of each Extension Request, each date upon which an extension of the Maturity Date (whether requested in accordance with paragraph (a) or (b) of Clause 2.10 (Extension Option) takes effect in accordance with paragraph (f) of Clause 2.10 (Extension Option) and the first day of each Interest Period, in each case with reference to the facts and circumstances then existing.

19.

Undertakings

19.1

Duration

The undertakings in this Clause 19 remain in force from the date of this Agreement for so long as any amount is or may be outstanding under this Agreement or any Commitment is in force.

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19.2

Financial information

The Parent shall supply to the Facility Agent in sufficient copies for all the Lenders:

 

(a)

as soon as the same are available (and in any event within 180 days (or, in the case of Autoliv AB (publ), within 212 days) of the end of each of its financial years):

 

(i)

its audited consolidated accounts for that financial year; and

 

(ii)

the audited accounts of each Borrower for that financial year;

 

(b)

as soon as the same are available (and in any event within 90 days of the end of the first half-year of each of its financial years):

 

(i)

its unaudited consolidated accounts for that half-year; and

 

(ii)

the unaudited accounts of Autoliv ASP, Inc. for that half-year.

 

(c)

as soon as the same are available (and in any event within 60 days of the end of each financial quarter):

 

(i)

its unaudited consolidated accounts for that financial quarter; and

 

(ii)

subject to paragraph (d) below, the unaudited accounts of Autoliv ASP, Inc. for that financial quarter.

 

(d)

as soon as the same are available (and in any event within 120 days of the end of that financial quarter) the unaudited accounts of Autoliv ASP, Inc. for the fourth quarter of that financial year.

19.3

Information - miscellaneous

The Parent shall supply to the Facility Agent:

 

(a)

any press release issued by the Parent and any information in the possession or control of any member of the Group regarding its financial condition and operations about matters which are reasonably likely to affect any Finance Party’s rights under the Finance Documents; and

 

(b)

(unless already provided to the Facility Agent) promptly upon becoming aware of them, details of any litigation, arbitration or administrative proceedings which are current, threatened or pending, and which might, if adversely determined, have a material adverse effect on the financial condition of any Material Subsidiary or on the Group as a whole or on the ability of any Obligor to perform its obligations under this Agreement; and

 

(c)

promptly, such further information in the possession or control of any member of the Group regarding its financial condition and operations as any Finance Party may reasonably request;

 

(d)

immediately upon its occurrence, details of any change in the credit rating assigned to the Parent's long term unsecured and unsubordinated debt by either or both of the Rating Agencies;

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(e)

promptly upon becoming aware of them, the details of any claim, action, suit, proceeding or investigation pursuant to Sanctions Laws by any Sanctions Authority against it, any of its direct or indirect owners or any other member of the Group or any of their respective directors, officers or employees as well as information on what steps are being taken with regards to answer or oppose such; and

 

(f)

promptly upon becoming aware that it, any of its direct or indirect owners or any other member of the Group or any of their respective directors, officers or employees has become or is likely to become a Sanctions Restricted Party.

19.4

Notification of Default

Each Obligor shall notify the Facility Agent of any Default (and the steps, if any, being taken to remedy it) promptly upon its occurrence.

19.5

Compliance certificates

(a)

The Parent shall supply to the Facility Agent:

 

(i)

within five Business Days of delivery of the accounts specified in paragraph (a)(i), (b)(i) and (c)(i) of Clause 19.2 (Financial information); and

 

(ii)

promptly at any other time, if the Facility Agent so requests, a Compliance Certificate signed by one of its senior officers on its behalf:

 

(A)

setting out computations as to compliance with Clause 19.22 (Subsidiary Borrowings) as at the date at which the accounts referred to in paragraph (i) above were drawn up;

 

(B)

confirming the credit ratings which currently apply to the Parent's long term unsecured and unsubordinated debt; and

 

(C)

certifying that no Default is outstanding or, if a Default is outstanding, specifying the Default and the steps, if any, being taken to remedy it.

(b)

The Parent does not need to supply a Compliance Certificate (the First Certificate) with the audited consolidated accounts delivered in accordance with paragraph (a)(i) of Clause 19.2 (Financial information) if that First Certificate would be the same as the Compliance Certificate (the Second Certificate) supplied with the  unaudited consolidated accounts delivered in accordance with paragraph (c)(i) of Clause 19.2 (Financial information) in respect of the fourth financial quarter of that financial year.  The Parent must instead confirm in writing to the Facility Agent that the First Certificate would be the same as the Second Certificate.

19.6

Authorisations

Each Obligor shall promptly:

 

(a)

obtain, maintain and comply with the terms of; and

 

(b)

supply certified copies to the Facility Agent of,

any authorisation required under any law or regulation to enable it to perform its obligations under, or for the validity or enforceability of, any Finance Document.

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19.7

Pari passu ranking

Each Obligor shall procure that its obligations under the Finance Documents do and will rank at least pari passu with all its other present and future unsecured obligations, except for obligations mandatorily preferred by law applying to companies generally.

19.8

Negative pledge

(a)

No Obligor shall, and the Parent shall procure that no other member of the Group will, create or permit to subsist any Security Interest on any of its assets (other than Unrestricted Margin Stock).

(b)

Paragraph (a) does not apply to:

 

(i)

any lien arising by operation of law in the ordinary course of business and securing amounts not more than 30 days overdue;