CONFORMED COPY
U.S. $1,000,000,000
MULTICURRENCY REVOLVING CREDIT FACILITY AGREEMENT
between
INCENTIVE TREASURY AB (PUBL)
as borrower
INCENTIVE AB (PUBL)
as guarantor
DEUTSCHE BANK LUXEMBOURG S.A.
ENSKILDA, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
as arrangers
ENSKILDA, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
as agent
and
OTHERS
Clifford Chance
Frankfurt
CONTENTS
Clause Page No.
Part 1
INTERPRETATION
1. Interpretation........................................... 1
Part 2
THE FACILITY
2. The Facility............................................. 9
3. Purpose.................................................. 9
4. Conditions Precedent..................................... 9
5. Nature of Banks' Obligations............................. 9
Part 3
UTILISATION OF THE FACILITY
6. Utilisation of the Facility.............................. 10
Part 4
INTEREST
7. Interest................................................. 13
8. Market Disruption and Alternative Interest Rates......... 13
Part 5
REPAYMENT AND CANCELLATION
9. Repayment................................................ 14
10. Cancellation............................................. 14
i
Part 6
CHANGES IN CIRCUMSTANCES
11. Taxes.................................................... 15
12. Tax Receipts and Mitigation.............................. 16
13. Increased Costs.......................................... 16
14. Illegality............................................... 17
Part 7
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
15. Representations.......................................... 19
16. Financial Information.................................... 22
17. Covenants................................................ 24
18. Events of Default........................................ 31
Part 8
GUARANTEE
19. Guarantee................................................ 34
20. Preservation of Rights................................... 34
Part 9
DEFAULT INTEREST AND INDEMNITY
21. Default Interest and Indemnity........................... 36
Part 10
PAYMENTS
22. Currency of Account and Payment.......................... 39
23. Payments................................................. 39
24. Set-Off.................................................. 41
25. Redistribution of Payments............................... 41
ii
Part 11
FEES, COSTS AND EXPENSES
26. Fees..................................................... 43
27. Costs and Expenses....................................... 43
Part 12
AGENCY PROVISIONS
28. The Agent, the Arrangers and the Banks................... 44
Part 13
ASSIGNMENT'S AND TRANSFERS
29. Benefit of Agreement..................................... 48
30. Assignments and Transfers by the Obligors................ 48
31. Assignments and Transfers by Banks....................... 48
32. Disclosure of Information................................ 49
Part 14
MISCELLANEOUS
33. Calculations and Evidence of Debt........................ 50
34 Remedies and Waivers..................................... 51
35. Partial Invalidity....................................... 51
36. Notices.................................................. 51
Part 15
LAW AND JURISDICTION
37. Law...................................................... 52
38. Jurisdiction............................................. 52
iii
THE SCHEDULES
THE FIRST SCHEDULE The Banks
THE SECOND SCHEDULE Form of Transfer Certificate
THE THIRD SCHEDULE Condition Precedent Documents
THE FOURTH SCHEDULE Notice of Drawdown
THE FIFTH SCHEDULE Opinion of the Borrower's and Guarantor's Swedish Counsel
THE SIXTH SCHEDULE Opinion of the Banks' Swedish Counsel
iv
THIS AGREEMENT is made the 4th day of March 1996
BETWEEN
(1) INCENTIVE TREASURY AB (PUBL) (the "Borrower");
(2) INCENTIVE AB (PUBL) (the "Guarantor");
(3) DEUTSCHE BANK LUXEMBOURG S.A. and ENSKILDA, SKANDINAVISKA ENSKILDA
BANKEN AB (PUBL) (the "Arrangers");
(4) ENSKILDA, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) (the "Agent"); and
(5) THE FINANCIAL INSTITUTIONS named in the First Schedule (the "Banks").
NOW IT IS HEREBY AGREED as follows:
Part 1
INTERPRETATION
1. Interpretation
1.1 In this Agreement:
"Advance" means, save as otherwise provided herein, an advance made or to be
made by the Banks hereunder;
"ASEA AB Share Disposal" means the sale, transfer, grant, lease or other
disposal by a Permitted Owner other than to another Permitted Owner (including
as permitted under Clause 17.4 but excluding any ASEA AB Share Transaction) of
any of the shares or any of the voting rights in ASEA AB (other than as a result
of a re-organisation of the shares of ASEA AB pursuant to which such shares are
substituted by shares of equivalent value and representing the same assets);
"ASEA AB Share Transaction" means the entering into by a Permitted Owner of any
short term sale and repurchase transaction in respect of any of the shares or
any voting rights in ASEA AB (including any such transaction permitted under
Clause 17.4);
"ASEA AB Share Encumbrance" means the creation by a Permitted Owner of any
encumbrance over any of the shares or any of the voting rights in ASEA AB
(including any such encumbrance permitted under clause 17.3);
"Available Commitment" means, in relation to a Bank at any time and save as
otherwise provided herein, its Commitment at such time less the aggregate of its
portions of the Dollar Amounts of the Advances which are then outstanding
Provided that such amount shall not be less then zero;
"Available Facility" means, at any time, the aggregate amount of the Available
Commitments at such time;
"Commitment" means, in relation to a Bank at any time and save as otherwise
provided herein, the amount set opposite its name in the First Schedule;
"Consolidated Relevant Total Assets" means the consolidated total assets of the
Group as shown in the latest audited consolidated accounts of the Guarantor less
(a) the Relevant Total Assets of any member of the Group which is listed
on a recognised Stock Exchange and which is not a Principal
Subsidiary;
(b) the Relevant Total Assets of WABCO at any time when WABCO is not a
Principal Subsidiary; and
(c) the value of all intangible assets (including goodwill),
in each case as such assets in (a), (b) or (c) are reflected in the latest
audited consolidated accounts of the Guarantor;
"Dollar Amount" means:
(i) in relation to any Advance, the amount thereof requested in
the Notice of Drawdown relating thereto (as the same may be
reduced pursuant to Clause 6.8); and
(ii) in relation to the Loan, the aggregate of the Dollar Amounts
of the outstanding Advances;
"Event of Default" means any of those events specified in Clause 18.1;
"Facility" means the multicurrency revolving credit facility granted to the
Borrower in this Agreement;
"Facility Office" means, in relation to the Agent or any Bank, the office
identified with its signature below (or, in the case of a Transferee, at the end
of the Transfer Certificate to which it is a party as Transferee) or such other
office as it may from time to time select;
"Final Maturity Date" means the day which is 60 months after the date hereof;
2
"Financing Subsidiary" means a subsidiary of the Borrower the sole or principal
activity of which is to provide finance to the Group;
"Financial Indebtedness" means indebtedness for or in respect of money borrowed
or raised by whatever means including, without limitation, by means of
acceptances under any acceptance credit facility, the issue of loan stock and
any obligations evidenced by bonds, debentures, notes or other similar
instruments, any liability in respect of leases entered into for the purpose of
raising or obtaining finance or deposits, the entering into swaps or other
derivative instruments or any other transaction having the commercial effect of
borrowing;
"Gambro" means Gambro AB of Lund, Sweden;
"Group" means the Guarantor and its subsidiaries for the time being;
"Group Pension Fund" means the Arbetsmarknadsforsakringar
pensionsforsakringsaktiebolag;
"Information Memorandum" means the document concerning the Obligors which, at
their request and on their behalf, was prepared in relation to this transaction
and distributed by the Arrangers to selected banks during February 1996;
"Instructed Group" means:
(i) whilst no Advances are outstanding hereunder, a Bank or group
of Banks whose Commitments amount (or, if each Bank's
Commitment has been reduced to zero, did immediately before
such reduction to zero, amount) in aggregate to more than
fifty per cent. (50%) of the Total Commitments; or
(ii) whilst at least one Advance is outstanding hereunder, a Bank
or group of Banks to whom in aggregate more than fifty per
cent. (50%) of the Dollar Amount of the Loan is owed;
"LIBOR" means, in relation to any Advance or unpaid sum, the rate per annum
determined by the Agent to be equal to (a) the offered rates (if any) appearing
on page 3740 or, as applicable, 3750 of the Telerate screen which displays
British Bankers Association Interest Settlement Rates for deposits in the
currency in which such Advance or unpaid sum is to be or is denominated (or such
other page as may replace that page) for the specified period at 11:00 a.m.
London time on the Quotation Date for such period or, if no such rates are
quoted, (b) the arithmetic mean (rounded upwards, if not already such a
multiple, to the nearest whole multiple of one-sixteenth of one per cent.) of
the rates (as notified to the Agent) at which each of the Reference Banks was
offering to prime banks in the London Interbank Market deposits in the currency
in which such Advance or unpaid sum is to be denominated and for the specified
period at or about 11.00 a.m. London time on the Quotation Date for such period
and, for the purposes of this definition,
3
"specified period" means the Term of such Advance or, as the case may be, the
period in respect of which LIBOR falls to be determined in relation to such
unpaid sum;
"Loan" means the aggregate principal amount for the time being outstanding
hereunder;
"Margin" means 0.175 per cent. per annum;
"Material Subsidiary" means the Borrower or any other subsidiary of the
Guarantor whose assets or revenues represent more than 10 per cent. of the
consolidated total assets or revenues of the Group as shown in the latest
audited consolidated accounts of the Guarantor;
"Notice of Drawdown" means a notice substantially in the form set out in the
Fourth Schedule;
"Obligors" means the Borrower and the Guarantor;
"Optional Currency" means any eurocurrency (other than dollars and excluding ECU
and sterling) which is freely transferable and freely convertible into dollars;
"Original Financial Statements" means:
(i) in relation to the Borrower, its audited financial statements
for its financial year ended December 31st, 1994; and
(ii) in relation to the Guarantor, its audited consolidated and
unconsolidated financial statements for its financial year
ended December 31st, 1994;
"Permitted Owner" means the Guarantor or one or more directly or indirectly
wholly owned subsidiaries of the Guarantor;
"Potential Event of Default" means any event which may become (with the passage
of time, the giving of notice, the making of any determination hereunder or any
combination thereof) an Event of Default;
"Principal Subsidiaries" means (a) the Borrower and its subsidiaries, (b) any
other subsidiary of the Guarantor in which the Guarantor holds directly or
indirectly more than 90 per cent. of the share capital or the voting rights and
which is not listed on a recognised Stock Exchange, (c) any other subsidiary of
the Guarantor in which the Guarantor holds directly or indirectly 95 per cent.
or more of the share capital and the voting rights and which is listed on a
recognised Stock Exchange, (d) at all times, Gambro and (e) any other subsidiary
of the Guarantor nominated as a Principal Subsidiary by the Guarantor (until
such time as the Guarantor notifies the Agent that such Subsidiary is no longer
to be a Principal Subsidiary), provided that the Guarantor shall at all times
ensure that Relevant Total Assets of the Guarantor and the Principal
Subsidiaries shall be at least 80 per cent. of Consolidated Relevant Total
Assets;
4
"Proportion" means, in relation to a Bank:
(i) whilst no Advances are outstanding hereunder, the proportion
borne by its Commitment to the Total Commitments (or, if the
Total Commitments are then zero, by its Commitment to the
Total Commitments immediately prior to their reduction to
zero); or
(ii) whilst at least one Advance is outstanding hereunder, the
proportion borne by its share of the aggregate Dollar Amounts
of the Advance(s) to the aggregate Dollar Amounts of the
Advance(s);
"Quotation Date" means, in relation to any period for which an interest rate is
to be determined hereunder, the day on which quotations would ordinarily be
given by prime banks in the London interbank market for deposits in the currency
in relation to which such rate is to be determined for delivery on the first day
of that period Provided that, if for any such period quotations would ordinarily
be given on more than one date, the Quotation Date for that period shall be the
last of those dates;
"Reference Banks" means Deutsche Bank Luxembourg S.A. and the principal London
offices of Enskilda, Skandinaviska Enskilda Banken AB (publ) and Citibank
International Plc or such other bank or banks as may from time to time be agreed
between the Borrower and an Instructing Group;
"Relevant Total Assets" means in relation to any member of the Group its total
assets as shown in its latest audited unconsolidated accounts less
(i) the aggregate of all receivables due from other members of the
Group in each case as shown in its latest audited
unconsolidated accounts; and
(ii) the value of all intangible assets (including goodwill) in
each case as shown in its latest audited unconsolidated
accounts;
"Repayment Date" means, in relation to any Advance, the last day of the Term
thereof;
"Term" means, save as otherwise provided herein, in relation to any Advance, the
period for which such Advance is borrowed as specified in the Notice of Drawdown
relating thereto;
"Total Borrowings" means the aggregate of all Financial Indebtedness of the
Guarantor and the Principal Subsidiaries less
(i) any Financial Indebtedness between the Guarantor and the
Principal Subsidiaries or between Principal Subsidiaries;
5
(ii) any Financial Indebtedness of the Guarantor or the Principal
Subsidiaries to a Group Pension Fund; and
(iii) any Financial Indebtedness of a Principal Subsidiary existing
on the date of it becoming a Principal Subsidiary (which was
not incurred in contemplation or in connection with it
becoming a Principal Subsidiary) until the first anniversary
of the date of it becoming a Principal Subsidiary;
"Total Commitments" means the aggregate for the time being of the Banks'
Commitments;
"Transfer Certificate" means a certificate substantially in the form set out in
the Second Schedule signed by a Bank and a Transferee whereby:
(i) such Bank seeks to procure the transfer to such Transferee of
all or a part of such Bank's rights and obligations hereunder
upon and subject to the terms and conditions set out in Clause
31; and
(ii) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the
Agent as is contemplated in Clause 31.3;
"Transfer Date" means, in relation to any Transfer Certificate, the date for the
making of the transfer as specified in the schedule to such Transfer
Certificate;
"Transferee" means a bank or other financial institution to which a Bank seeks
to transfer all or part of such Bank's rights and obligations hereunder; and
"WABCO" means Westinghouse Air Brake Company (WABCO).
1.2 Any reference in this Agreement to:
the "Agent" or any "Bank" shall be construed so as to include its and any
subsequent successors, Transferees and assigns in accordance with their
respective interests;
"applicable tax" means any tax imposed by an Obligor's jurisdiction of
incorporation or any jurisdiction through which or from which any payment is
made;
a "business day" shall be construed as a reference to a day (other than a
Saturday or Sunday) on which banks are generally open for business in London,
Luxembourg and New York City and, if such reference relates to the date for the
payment or purchase of any sum denominated in any Optional Currency, a day on
which banks are generally open for business in the principal financial centre of
the country of such Optional Currency;
6
a "Clause" shall, subject to any contrary indication, be construed as a
reference to a clause hereof;
an "encumbrance" shall be construed as a reference to a mortgage, charge,
pledge, lien or other encumbrance securing any obligation of any person or any
other type of preferential arrangement (including, without limitation, title
transfer and retention arrangements) having a similar effect;
the "equivalent" on any given date in one currency (the "first currency") of an
amount denominated in another currency (the "second currency") is a reference to
the amount of the first currency which could be purchased with the amount of the
second currency at the spot rate of exchange quoted by the Agent at or about
11:00 a.m. on such date for the purchase of the first currency with the second
currency;
a "holding company" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned company or
corporation is a subsidiary;
"indebtedness" shall be construed so as to include any obligation (whether
incurred as principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
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 succeeding calendar
month save that, where any such period would otherwise end on a day which is not
a business day, it shall end on the next succeeding business day, unless that
day falls in the next calendar month, in which case it shall end on the
immediately preceding business day Provided that, if a period on the last
business day in calendar month or 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 later month (and references to "months" shall be construed
accordingly);
a "Part" shall, subject to any contrary indication, be construed as a reference
to a part hereof;
a "person" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any associate or
partnership (whether or not having separate legal personality) of two or more of
the foregoing;
"recognised" in the context of "recognised Stock Exchange" means a body declared
to be a recognised investment exchange for purposes of the Financial Services
Xxx 0000 and which is based in a principal financial centre in Western Europe,
Japan or U.S.A.;
a "Schedule" shall, subject to any contrary indication, be construed as a
reference to a schedule hereof;
a "subsidiary" of a company or corporation shall be construed as a reference to
any company or corporation:
7
(i) which is controlled, directly or indirectly, by the first-mentioned
company or corporation; or
(ii) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(iii) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation
and, for these purposes, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to direct its
affairs and/or to control the composition of its board of directors or
equivalent body;
"tax" shall be construed so as to include any tax, levy, impost, duty or other
charge of a similar nature (including, without limitation, any penalty or
interest payable in connection with any failure to pay or any delay in paying
any of the same);
"VAT" shall be construed as a reference to value added tax including any similar
tax which may be imposed in place thereof from time to time; and
the "winding-up", "dissolution" or "administration" of a company or corporation
shall be construed so as to include any equivalent or analogous proceedings
under the law of the jurisdiction in which such company or corporation is
incorporated or any jurisdiction in which such company or corporation carries on
business including the seeking of liquidation, winding-up, reorganisation,
dissolution, administration, arrangement, adjustment, protection or relief of
debtors.
1.3 "$" and "dollars" denote lawful currency of the United States of America,
"sterling" denotes lawful currency of the United Kingdom, "ECU" denotes the unit
for account for the time being used in the European Union and "Swedish Kronor"
denotes lawful currency of the Kingdom of Sweden.
1.4 Save where the contrary is indicated, any reference in this Agreement to:
(i) this Agreement or any other agreement or document shall be construed
as a reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may from time to
time be, amended, varied, novated or supplemented;
(ii) a statute shall be construed as a reference to such statute as the
same may have been, or may from time to time be, amended or
re-enacted; and
(iii) a time of day shall, unless otherwise stated, be construed as a
reference to London time.
1.5 Clause, Part and Schedule headings are for ease of reference only.
8
Part 2
THE FACILITY
2. The Facility
The Banks grant to the Borrower, upon the terms and subject to the conditions
hereof, a multicurrency revolving credit facility in an aggregate amount of
$1,000,000,000 or its equivalent from time to time in Optional Currencies.
3. Purpose
3.1 The Facility is intended to finance the purchase by the Borrower of the
publicly held B shares of Gambro and for general corporate purposes and,
accordingly the Borrower shall apply all amounts raised by it hereunder in or
towards satisfaction thereof
3.2 Neither the Agent, the Arrangers and the Banks nor any of them shall be
obliged to concern themselves with the application of amounts raised hereunder.
4. Conditions Precedent
Save as the Banks may otherwise agree, the Borrower may not deliver any Notice
of Drawdown hereunder unless the Agent has confirmed to the Borrower and the
Banks that it has received all of the documents listed in the Third Schedule and
that each is, in form and substance, satisfactory to the Agent.
5. Nature of Banks' Obligations
5.1 The obligations of each Bank hereunder are several.
5.2 The failure by a Bank to perform its obligations hereunder shall not affect
the obligations of the Borrower or the Guarantor towards any other party hereto
nor shall any other party be liable for the failure by such Bank to perform its
obligations hereunder.
5.3 The amounts outstanding at any time hereunder from the Borrower to any of
the other parties hereto shall be a separate and independent debt, and each such
party shall be entitled, subject to having given prior notice thereof to the
Agent, to protect and enforce its individual rights arising out this Agreement
independently of any other party, and it shall not be necessary for any party
hereto to be joined as an additional party in any proceedings for such purposes.
9
Part 3
UTILISATION OF THE FACILITY
6. Utilisation of the Facility
6.1 Save as otherwise provided herein, the Borrower may from time to time
request the making of an Advance under the Facility by the delivery to the
Agent, not earlier than the tenth nor later than 10 a.m. on the fourth (10 a.m.
on the third in the case of an Advance to be denominated in dollars) business
day before the proposed date for the making of such Advance, of a duly completed
Notice of Drawdown therefor.
6.2 Each Notice of Drawdown delivered to the Agent pursuant to Clause 6.1 shall
be irrevocable and shall specify:
(i) the proposed date for the making of the Advance requested,
which shall be a business day falling one month or more before
the Final Maturity Date and which shall be at least five
business days after the date upon which the previous Advance
(if any) was made hereunder;
(ii) the currency of denomination of the Advance requested, which
shall be dollars or an Optional Currency Provided that, if the
Borrower selects an Optional Currency, the Borrower may also
select dollars to apply if its first selection becomes
ineffective pursuant to Clause 6.5;
(iii) the amount of the Advance requested, which shall be a minimum
Dollar Amount of $50,000,000 and an integral multiple of
$10,000,000 or an amount equal to the Available Facility and
the Dollar Amount of which shall not exceed the Available
Facility adjusted to take account of:
(a) any reduction in the Commitment of a Bank scheduled to
be made prior to the commencement of the Term in respect
of the proposed Advance; and
(b) the Dollar Amounts of any Advances which are scheduled
to be made or repaid on or before the date of drawdown
of the proposed Advance;
(iv) the proposed Term of the Advance requested, which shall be a
period of one, three or six months ending on or before the
Final Maturity Date; and
(v) the account to which the proceeds of the proposed drawdown are
to be paid.
6.3 The Agent shall, promptly after receipt by it of a Notice of Drawdown,
notify the Banks of its receipt of such Notice of Drawdown specifying:
10
(i) the proposed date of drawdown;
(ii) the Dollar Amount, the currency and the Term of the proposed
Advance; and
(iii) the participation of the relevant Bank in such Advance
expressed in dollars and (where the proposed Advance is to be
denominated in an Optional Currency) not later than 2:00 p.m.
on the third business day preceding the first day of the Term
of such Advance, expressed in the relevant Optional Currency.
6.4 The Borrower may not request more than eight (8) Advances to be outstanding
at any time and may not request more than one Advance to be made on any one day
and may not deliver any Notice of Drawdown between the date of any other Notice
of Drawdown made hereunder and the proposed date of drawdown relating to such
other Notice of Drawdown.
6.5 If the Borrower requests that an Advance be denominated in an Optional
Currency and:
(i) no later than 12:00 noon on the third business day preceding
the first day of the Term of such Advance, any Bank notifies
the Agent that it does not agree to such request; or
(ii) no later than 11:00 a.m. on the Quotation Date for such
Advance, the Agent notifies the Borrower and the Banks that
the Agent is of the opinion that it is not feasible for such
Advance to be made in such Optional Currency; or
(iii) to give effect to such request would cause the Loan to be
denominated in more than six (6) different currencies,
then, unless the Borrower and the Banks otherwise agree, such Advance shall not
be made unless the Borrower specified in the Notice of Drawdown in respect of
such Advance that in such event such Advance should be denominated in dollars in
which case such Advance shall be made in dollars in an amount equal to the
Dollar Amount relating to such Notice of Drawdown.
6.6 If the Borrower requests an Advance in accordance with the preceding
provisions of this Clause 6 and, on the proposed date for the making of such
Advance:
(i) neither of the events mentioned in Clauses 8(i) and 8(ii)
shall have occurred;
(ii) the Dollar Amount of such Advance does not exceed the
Available Facility; and
(iii) either:
11
(a) no Event of Default or Potential Event of Default has
occurred; and
(b) the representations set out in Clause 15 (except
sub-Clauses 15.2(v), (viii) and (xiv)) are true on and
as of the proposed date for the making of such Advance
or each of the Banks agrees (notwithstanding any matter
mentioned at (a) or (b) above) to participate in the
making of such Advance.
Except as otherwise provided herein, such Advance will be made in accordance
with the provisions [____________] in dollars in an amount equal to the Dollar
Amount requested or, if such Advance is to be denominated in an Optional
Currency, in an amount which is the equivalent in such Optional Currency of the
Dollar Amount requested, calculated as at the business day prior to the
Quotation [_________] such Advance (such equivalent amount to be notified by the
Agent to the Banks promptly [__________] determination).
Each Bank will participate through its Facility Office in each Advance made
pursuant to this [_________] in the proportion borne by its Available Commitment
to the Available Facility immediately [__________] the making of that Advance.
If a Bank's Commitment is reduced in accordance with the terms hereof after the
Agent has received the Notice of Drawdown for an Advance and such reduction was
not taken into account pursuant to Clause 6.2(iii)(a), then both the Dollar
Amount and the actual amount of that Advance will be reduced accordingly.
12
Part 4
INTEREST
7. Interest
7.1 On the Repayment Date relating to each Advance the Borrower shall pay
accrued interest on that Advance.
7.2 The rate of interest applicable to an Advance from time to time during its
Term shall be the rate per annum which is the sum of the Margin and LIBOR
applicable to such Advance on the Quotation Date therefor.
8. Market Disruption and Alternative Interest Rates
If, in relation to any Advance:
(i) the Agent determines that at or about 11:00 a.m. on the
Quotation Date for the Term in respect of such Advance no
rates are quoted on page 3740 or, as applicable, page 3750 of
the Telerate screen for the relevant currency (or such other
page as may replace such page) and none or only one of the
Reference Banks was offering to prime banks in the London
Interbank Market deposits in dollars for the proposed duration
of such Term; or
(ii) before the close of business in London on the Quotation Date
for such Term the Agent has been notified by a Bank or each of
a group of Banks to whom in aggregate thirty-five per cent. or
more of the Dollar Amount of the Loan is (or, if an Advance
were then made, would be) owed that LIBOR as determined by the
Agent does not accurately reflect the cost to it of obtaining
such deposits,
then, notwithstanding the provisions of Clause 6:
(a) the Agent shall notify the other parties hereto of such event;
(b) such Advance shall not be made; and
(c) if the Agent or the Borrower so requires, within five days of
such notification the Agent and the Borrower shall enter into
negotiations with a view to agreeing a substitute basis for
determining the rates of interest which may be applicable to
Advances in the future and any such substitute basis that is
agreed shall take effect in accordance with its terms and be
binding on each party hereto Provided that the Agent may not
agree any such substitute basis without the prior consent of
each Bank.
13
Part 5
REPAYMENT AND CANCELLATION
9. Repayment
9.1 The Borrower shall repay each Advance made to it in full on the Repayment
Date relating thereto.
9.2 The Borrower shall not repay all or any part of any Advance outstanding
hereunder except at the times and in the manner expressly provided herein but,
subject to the terms and conditions hereof, shall be entitled to reborrow any
amount repaid.
10. Cancellation
10.1 The Borrower may, by giving to the Agent not less that thirty (30) days'
prior written notice to that effect, cancel the whole or any part (being a
minimum amount of $50,000,000 and an integral multiple of $10,000,000 or an
amount equal to the Available Facility) of the Total Commitments. Any such
cancellation shall reduce the Commitment of each Bank rateably.
10.2 Any notice of cancellation given by the Borrower pursuant to Clause 10.1
shall be irrevocable and shall specify the date upon which such cancellation is
to be made and the amount of such cancellation.
10.3 If any Bank claims indemnification from the Borrower under Clause 11.2 or
Clause 13.1, the Borrower may, within thirty days thereafter and by not less
that fifteen days' prior written notice to the Agent (which notice shall be
irrevocable), cancel such Bank's Commitment whereupon such Bank shall cease to
be obliged to participate in further Advances and its Commitment shall be
reduced to zero.
14
Part 6
CHANGES IN CIRCUMSTANCES
11. Taxes
11.1 All payments to be made by either of the Obligors to any person hereunder
shall be made free and clear of and without deduction for or on account of any
applicable tax unless such Obligor is required to make such a payment subject to
the deduction or withholding of tax, in which case the sum payable by such
Obligor in respect of which such deduction or withholding is required to be made
shall be increased to the extent necessary to ensure that, after the making of
the required deduction or withholding, such person receives and retains (free
from any liability in respect of any such deduction or withholding) a net sum
equal to the sum which it would have received and so retained had no such
deduction or withholding been made or required to be made.
11.2 Without prejudice to the provisions of Clause 11.1, if any person or the
Agent on its behalf is required to make any payment on account of any applicable
tax (not being a tax imposed on the net income of its Facility Office by the
jurisdiction in which it is incorporated or in which its Facility Office is
located) or otherwise on or in relation to any sum received or receivable
hereunder by such person or the Agent on its behalf (including, without
limitation, any sum received or receivable under this Clause 11) or any
liability in respect of any such payment is asserted, imposed, levied or
assessed against such person or the Agent on its behalf, the Borrower shall,
upon demand of the Agent, promptly indemnify such person against such payment or
liability, together with any interest, penalties and expenses payable or
incurred in connection therewith.
11.3 A Bank intending to make a claim pursuant to Clause 11.2 shall notify the
Agent of the event by reason of which it is entitled to do so, whereupon the
Agent shall notify the Borrower thereof Provided that nothing herein shall
require such Bank to disclose any confidential information relating to the
organisation of its affairs.
11.4 If a Bank receives the benefit of a tax credit or an allowance resulting
from a payment which includes an additional amount paid by an Obligor under
Clause 11.1 or if it is otherwise left in a position which is more favourable to
it than would be the case if such withholding or deduction and resultant
additional payment by the Obligor had not been made, it shall (to the extent
that it can do so without prejudice to the retention of such credit or allowance
and to the extent that it is not unlawful or contrary to any official directive
for it so to do) pay to the relevant Obligor such part of that benefit as is, in
the sole opinion of that Bank, attributable to the withholding or deduction
giving rise to the payment of that additional amount, provided that such Bank
shall;
(a) be the sole judge of the amount of any such benefit to be so paid to
the relevant Obligor and of the date on which it is received;
15
(b) have an absolute discretion as to the order and manner in which it
employs or claims tax credits and allowances to it or as to the
manner in which it arranges its tax affairs; and
(c) not be obliged to disclose to any Obligor or any other person any
information regarding its tax affairs or tax computations.
12. Tax Receipts and Mitigation
12.1 If, at any time, either of the Obligors is required by law to make any
deduction or withholding from any sum payable by it hereunder (or if thereafter
there is any change in the rates at which or the manner in which such deductions
or withholdings are calculated), such Obligor shall promptly notify the Agent.
12.2 If either of the Obligors makes any payment hereunder in respect of which
it is required to make any deduction or withholding, it shall pay the full
amount required to be deducted or withheld to the relevant taxation or other
authority within the time allowed for such payment under applicable law and
shall deliver to the Agent for each Bank, within thirty days after it has made
such payment to the applicable authority, and original receipt (or a certified
copy thereof) issued by such authority evidencing the payment to such authority
of all amounts so required to be deducted or withheld in respect of that Bank's
share of such payment.
12.3 If in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in (i) an increase in the amount of any payment to
be made to it for its account pursuant to Clause 11.1 or (ii) a claim for
indemnification pursuant to Clause 11.2 then, without in any way limiting,
reducing or otherwise qualifying the obligations of the Obligors under this
Agreement, such Bank shall, promptly upon its Facility Office becoming aware of
the same and the possible results thereof, notify the Agent thereof and, in
consultation with the Agent and the Borrower, take such steps as such Bank in
its bona fide opinion considers appropriate to mitigate the effects of such
circumstance including the transfer of its Facility Office to another
jurisdiction or the transfer of its rights and obligations hereunder to another
bank willing to participate in the Facility Provided that such Bank shall be
under no obligation to take any such steps if, in the bona fide opinion of such
Bank, such steps would or might have an adverse effect upon its, or its holding
company's business, operations or financial condition or tax affairs.
13. Increased Costs
13.1 If, by reason of (i) any change in law after the date hereof or in its
interpretation or administration and/or (ii) compliance with any request from or
requirement (whether or not having the force of law) of any central bank or
other fiscal, monetary or other authority made or imposed after the date hereof
(including, without limitation, a request or requirement which affects the
manner in which a Bank or any holding company of such Bank is required to or
does maintain capital resources having regard to such Bank's obligations
hereunder and to amounts owing to it hereunder):
(a) a Bank or any holding company of such Bank incurs a cost as a result
of such Bank's having entered into and/or performing its obligations
under this
16
Agreement and/or assuming or maintaining a commitment under this
Agreement and/or making one or more advances hereunder;
(b) a Bank or any holding company of such Bank is unable to obtain the
rate of return on its overall capital which it would have been able
to obtain for such Bank having entered into and/or performing its
obligations and/or assuming or maintaining a commitment under this
Agreement;
(c) there is any increase in the cost to a Bank or any holding company
of such Bank of funding or maintaining all or any of the advances
comprised in a class of advances formed by or including the advances
made or to be made by such Bank hereunder; or
(d) a Bank or any holding company of such Bank becomes liable to make
any payment on account of tax or otherwise (not being a tax imposed
on the net income of such Bank's Facility Office by the jurisdiction
in which it is incorporated or in which its Facility Office is
located) on or calculated by reference to the amount of the advances
made or to be made by such Bank hereunder and/or to any sum received
or receivable by it hereunder,
then the Borrower shall, from time to time on demand of the Agent, promptly pay
to the Agent for the account of that Bank amounts sufficient to indemnify that
Bank or any such holding company against, as the case may be, (1) such cost, (2)
such reduction in such rate of return (or such proportion of such reduction as
is, in the opinion of that Bank, attributable to its obligations hereunder), (3)
such increased cost (or such proportion of such increased cost as is, in the
opinion of that Bank, attributable to its funding or maintaining advances
hereunder), or (4) such liability.
13.2 A Bank intending to make a claim pursuant to Clause 13.1 shall no later
than 3 months after becoming aware of the event by reason of which it is
entitled to make such claim in relation to any payments notify the Agent and the
Borrower of the event by reason of which it is entitled to do so Provided that
nothing herein shall require such Bank to disclose any confidential information
relating to the organisation of its affairs.
14. Illegality
If, at any time, it is unlawful for a Bank to make, fund or allow to remain
outstanding all or any of the Advances made or to be made by it hereunder, then
that Bank shall, promptly after becoming aware of the same and where the
illegality has not yet occurred notify the Borrower through the Agent and that
Bank and the Agent shall negotiate in good faith with the Borrower with a view
to agreeing substitute terms for participating in the Facility on a lawful
basis. Where the illegality has occurred the relevant Bank shall deliver to the
Borrower through the Agent a certificate to that effect and:
(i) such Bank shall not thereafter be obliged to make advances
hereunder and the amount of its Commitment shall be
immediately reduced to zero; and
17
(ii) if the Agent on behalf of such Bank so requires, the Borrower
shall on such date as the Agent shall have specified repay
such Bank's share of any outstanding Advances together with
accrued interest thereon and all other amounts owing to such
Bank hereunder.
18
Part 7
REPRESENTATIONS, COVENANTS AND EVENTS OF DEFAULT
15. Representations
15.1 Each of the Obligors represents that:
(i) it is a corporation duly organised under the laws of Sweden
with power to enter into this Agreement and to exercise its
rights and perform its obligations hereunder and all corporate
and other action required to authorise its execution of this
Agreement and its performance of its obligations hereunder has
been duly taken;
(ii) under the laws of Sweden in force at the date hereof, it will
not be required to make any deduction or withholding from any
payment it may make hereunder;
(iii) under the laws of Sweden in force at the date hereof, the
claims of the Agent, the Arrangers and the Banks against such
Obligor under this Agreement 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 laws of general application;
(iv) in any proceedings taken in Sweden in relation to this
Agreement, it will not be entitled to claim for itself or any
of its assets immunity from suit, execution, attachment or
other legal process;
(v) in any proceedings taken in Sweden in relation to this
Agreement, the choice of English law as the governing law of
this Agreement will be recognised;
(vi) all acts, conditions and things required to be done, fulfilled
and performed in order (a) to enable it lawfully to enter
into, exercise its rights under and perform and comply with
the obligations expressed to be assumed by it in this
Agreement, (b) to ensure that the obligations expressed to be
assumed by it in this Agreement are legal, valid and binding
and (c) to make this Agreement admissible in evidence in
Sweden (save for a translation of the Agreement) have been
done, fulfilled and performed;
(vii) under the laws of Sweden in force at the date hereof, it is
not necessary that this Agreement be filed, recorded or
enrolled with any court or other authority in such
jurisdiction or that any stamp, registration or similar tax be
paid on or in relation to this Agreement;
19
(viii) the obligations expressed to be assumed by either Obligor in
this Agreement are legal and valid obligations binding on it
enforceable in accordance with the terms hereof;
(ix) it is not necessary under the laws and constitution of Sweden
(a) in order to enable the Agent, the Arrangers and the Banks
or any of them to enforce their rights under the Facility
Agreement or (b) by reason of the execution of the Facility
Agreement or the performance by each of them of its
obligations thereunder, that any of them should be licensed,
qualified or otherwise entitled to carry on business in
Sweden; and
(x) neither the Agent nor any of the Arrangers or Banks is or will
be deemed to be resident, domiciled or carrying on business in
Sweden by reason only of the execution, performance and/or
enforcement of the Facility Agreement.
15.2 Each of the Obligors further represents that:
(i) no member of the Group has taken any corporate action nor have
any other steps been taken or legal proceedings been started
or (to the best of the Guarantor's knowledge and belief)
threatened against any member of the Group for its winding-up,
dissolution or administration 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;
(ii) no member of the Group is in breach of or in default under any
agreement to which it is a party or which is binding on it or
any of its assets to an extent or in a manner which might have
a material adverse effect on the business or financial
condition of any member of the Group;
(iii) no action or administrative proceeding of or before any court
or agency which might have a material adverse effect on the
business or financial condition of any member of the Group has
been started or threatened;
(iv) the Original Financial Statements of the Borrower and the
Guarantor were prepared in accordance with accounting
principles generally accepted in Sweden and consistently
applied and give (in conjunction with the notes thereto) a
true and fair view of the financial condition of the Borrower,
the Guarantor or, as the case may be, the Group at the date as
of which they were prepared and the results of the Borrower's,
the Guarantor's or, as the case may be, the Group's operations
during the financial year then ended;
(v) at the date hereof amounts which are being or are capable of
being secured by any existing encumbrances do not in aggregate
exceed by
20
more than 10 per cent. the amounts disclosed in the Original
Financial Statements of the Guarantor and stated therein as
being secured by any encumbrances;
(vi) since the date to which the Original Financial Statements of
the Borrower or the Guarantor relate, there has been no
material adverse change in the business, assets or financial
condition of either Obligor, which change would give
sufficient ground to conclude that either Obligor may not or
will be unable to, perform or observe its respective
obligations hereunder;
(vii) neither the Borrower nor any other member of the Group had, as
at the date as of which the Original Financial Statements of
the Borrower or, as the case may be, the Guarantor were
prepared, any liabilities (contingent or otherwise) which were
not disclosed thereby (or by the notes thereto) or reserved
against therein nor were there at that date any unrealised or
anticipated losses of the Borrower or, as the case may be, any
other member of the Group arising from commitments entered
into by it which were not so disclosed or reserved against;
(viii) the information contained in the Information Memorandum and
all of the other written information supplied by any member of
the Group to the Agent, the Arrangers and the Banks in
connection herewith is true, complete and accurate in all
material respects and it is not aware of any material facts or
circumstances that have not been disclosed to the Agent, the
Arrangers and the Banks and which might, if disclosed,
adversely affect the decision of a person considering whether
or not to provide finance to the Borrower or to provide such
finance against the security of a guarantee issued by the
Guarantor;
(ix) save as permitted by Clause 17.3, no encumbrance exists over
all or any of the present or future revenues or assets of the
Guarantor or the Principal Subsidiaries;
(x) the execution by each Obligor of this Agreement and such
Obligor's exercise of its rights and performance of its
obligations hereunder will not result in the existence of nor
oblige any member of the Group to create any encumbrance over
all or any of its present or future revenues or assets;
(xi) the execution by each Obligor of this Agreement and such
Obligor's exercise of its rights and performance of its
obligations hereunder do not and will not:
(a) conflict with any agreement, mortgage, bond or other
instrument or treaty to which such Obligor is a party or
which is binding upon it or any of its assets;
21
(b) conflict with such Obligor's certificate of registration
and articles of association and internal rules and
regulations; or
(c) conflict with any applicable law, regulation or official
or judicial order;
(xii) the execution by each Obligor of this Agreement constitutes,
and such Obligor's exercise of its rights and performance of
its obligations hereunder will constitute, private and
commercial acts done and performed for private and commercial
purposes;
(xiii) each member of the Group maintains insurances on and in
relation to its business and assets with reputable
underwriters or insurance companies against such risks and to
such extent as is usual for companies carrying on a business
such as that carried on by such member of the Group whose
practice is not to self insure;
(xiv) a Permitted Owner is the legal and beneficial owner of, with
unencumbered title to, 25 per cent. of the shares and 32.9 per
cent. of the voting rights of ASEA AB; and
(xv) the Borrower is a wholly-owned subsidiary of the Guarantor.
15.3 The representations in Clauses 15.1 and 15.2 (except sub-Clauses 15.2 (v),
(viii) and (xiv)) shall be deemed to be repeated by each Obligor on each date on
which an Advance is made hereunder as if made with reference to the facts and
circumstances existing at each such date and as if references in sub-Clauses
15.2 (iv) and 15.2 (vii) were references to the most recent financial statements
delivered to the Agent.
16. Financial Information
16.1 Each of the Obligors shall:
(i) as soon as the same become available, but in any event within
150 days after the end of each of its financial years, deliver
to the Agent in sufficient copies for the Banks its financial
statements (including, in the case of the Guarantor, the
consolidated financial statements of the Group) for such
financial year together with a certificate issued by the
auditors and counter-signed by a duly authorised officer of
the Guarantor (a) setting out in reasonable detail the names
of the Principal Subsidiaries and the calculation of Relevant
Total Assets, Consolidated Relevant Total Assets and Total
Borrowings at the end of such financial year and (b)
confirming that the Guarantor has been in compliance with its
obligations under Clauses 17.7 and 17.8 (if applicable) during
such financial year;
22
(ii) as soon as the same become available, but in any event within
90 days after the end of the first half of each of its
financial years, deliver to the Agent in sufficient copies for
the Banks its financial statements (including, in the case of
the Guarantor, the consolidated financial statements of the
Group) for such period together with certificates signed by a
duly authorised officer of the Guarantor (a) setting out in
reasonable detail the names of the Principal Subsidiaries and
the calculation of Relevant Total Assets, the Consolidated
Relevant Total Assets and Total Borrowings at the end of such
period and the amounts of Financial Indebtedness owed by the
Guarantor or a Principal Subsidiary and allowed pursuant to
Clause 17.5 (i) - (v) inclusive and (b) confirming that the
Guarantor has been in compliance with its obligations under
Clauses 17.7 and 17.8 (if applicable) during such financial
half year;
(iii) in the event of any ASEA AB Share Disposal, promptly notify
the Agent thereof or in the event of any ASEA AB Share
Transaction or ASEA AB Share Encumbrance, notify the Agent at
least 3 business days prior to any such ASEA AB Share
Transaction or ASEA AB Share Encumbrance and, in each case,
furnish the Agent (a) within 10 days of such ASEA AB Share
Disposal, ASEA AB Share Transaction or ASEA AB Share
Encumbrance with forecast figures setting out in reasonable
detail that for the period from the date of such ASEA AB Share
Disposal, ASEA AB Share Transaction or ASEA AB Share
Encumbrance until the end of the next full quarter of its
financial year, the Guarantor shall be in compliance with its
obligations under Clause 17.8 and (b) promptly at the end of
each financial quarter (excluding the quarter in which such
ASEA AB Share Disposal, ASEA AB Share Transaction or ASEA AB
Share Encumbrance has occurred) during the calendar year in
which such ASEA AB Share Disposal, ASEA AB Share Transaction
or ASEA AB Share Encumbrance has occurred with (x) financial
statements for such quarter and (y) a certificate signed by a
duly authorised officer of the Guarantor confirming that the
Guarantor has been in compliance with its obligations under
Clause 17.8 during such financial quarter year; and
(iv) from time to time on the request of the Agent, furnish the
Agent with such information about the business, assets,
operations or financial condition of the Group as the Agent or
any Bank through the Agent may reasonably require unless
furnishing such information violates any Swedish law or stock
exchange regulations.
16.2 Each of the Obligors shall ensure that:
(i) each set of financial statements delivered by it pursuant to
Clause 16.1 is prepared on the same basis as was used in the
preparation of its
23
Original Financial Statements and in accordance with
accounting principles generally accepted in Sweden and
consistently applied;
(ii) each set of financial statements delivered by it pursuant to
Clause 16.1 is certified by a duly authorised officer of such
Obligor as giving a true and fair view of its financial
condition (including, in the case of financial statements of
the Guarantor, the financial condition of the Group) as at the
end of the period to which those financial statements relate
and of the results of its (or, as the case may be, the
Group's) operations during such period; and
(iii) each set of financial statements delivered by it pursuant to
paragraph (i) of Clause 16.1 has been audited by an
internationally recognised firm of independent auditors
licensed to practise in Sweden Provided that should the Agent
at any time following consultation with the Banks' Swedish
Counsel inform any Obligor that it is common practice or a
requirement for companies comparable to such Obligor to have
audited financial statements relating to the first half of
financial years, then the next following, and each subsequent,
set of financial statements delivered by such Obligor pursuant
to (ii) of Clause 16.1 shall also be audited by an
internationally recognised firm of independent auditors
licensed to practise in Sweden.
17. Covenants
17.1 Each of the Obligors shall:
(i) ensure that each Obligor shall obtain, comply with the terms
of and do all that is necessary to maintain in full force and
effect all authorisations, approvals, licenses and consents
required in or by the laws and regulations of its jurisdiction
of incorporation to enable it lawfully to enter into and
perform its obligations under this Agreement or to ensure the
legality, validity, enforceability or admissibility in
evidence in its jurisdiction of incorporation of this
Agreement;
(ii) after the delivery of any Notice of Drawdown and before the
proposed making of the Advance requested therein, notify the
Agent of the occurrence of any event which results in or may
reasonably be expected to result in any of the representations
contained in Clause 15 being untrue at or before the time of
the proposed making of such Advance;
(iii) ensure that each Obligor shall promptly inform the Agent of
the occurrence of any Event of Default or Potential Event of
Default (and of the steps, if any, being taken to remedy it)
and, upon receipt of a written request to that effect from the
Agent, confirm to the Agent that, save as previously notified
to the Agent or as notified in such
24
confirmation, no Event of Default or Potential Event of
Default has occurred; and
(iv) ensure that at all times the claims of the Agent, the
Arrangers and the Banks against it under this Agreement rank
at least pari passu with the claims of all its other unsecured
creditors save those whose claim are preferred by any
bankruptcy, insolvency, liquidation or other similar laws of
general application.
17.2 Each of the Obligors shall ensure that
(i) (a) the Guarantor shall not merge with any person or cease
to carry on all or a substantial part of its current
business; or
(b) a Material Subsidiary shall not cease to carry on all or
substantially all of its current business
if such merger or cessation, as the case may be, would result
in a material change of circumstances which might adversely
affect the ability of either Obligor to perform its
obligations hereunder; and
(ii) neither the Guarantor nor a Principal Subsidiary shall (save
in the ordinary course of business) make any loans, grant any
credit or give any guarantee or indemnity, provide any other
financial assistance to or for the benefit of any member of
the Group which is not a Principal Subsidiary or otherwise
voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any member of the
Group which is not a Principal Subsidiary.
17.3 Each of the Obligors shall ensure that neither the Guarantor nor any
Principal Subsidiary shall, without the written prior consent of an Instructing
Group, at any time while any amounts remain outstanding from the Borrower or, as
the case may be, may be due from the Guarantor, create or permit to subsist any
encumbrance over all or any of its present or future revenues or assets as
security for any indebtedness of any person other than:
(i) any encumbrance existing prior to the date hereof provided
that the principal amount secured thereby may not be
subsequently increased;
(ii) any encumbrance arising solely by operation of law which
arises in the ordinary course of business and which is
discharged within 60 days of its creation;
(iii) any encumbrance on goods (including retention of title
arrangements) or related documents of title and/or other
related documents arising or created in the ordinary course of
business as security only for indebtedness directly relating
to such goods or documents of title and/or
25
other related documents or services to be provided in
connection with such goods;
(iv) any encumbrance on goods, or related documents of title and/or
other related documents or other assets (in particular
receivables) arising or created in the ordinary course of
business as security only for indebtedness under export credit
or trade finance facilities relating to such goods and any
encumbrance securing advance payment guarantees created in the
ordinary course of business;
(v) any encumbrance over assets acquired or developed for fair
market value subsequent to the execution of this Agreement and
securing only such purchase price or development costs which
shall not exceed the fair market value of such assets;
(vi) in case of any company or corporation which becomes a
Principal Subsidiary of the Guarantor after the date of this
Agreement, (a) any encumbrance existing on or over its assets
when it becomes or, as the case my be, became a subsidiary and
not created in contemplation of or in connection with it
becoming a subsidiary and (b) any encumbrance existing on or
over its assets when it becomes a Principal Subsidiary which
was created after the date of it becoming a subsidiary but not
in contemplation of or in connection with it becoming a
Principal Subsidiary provided that any encumbrance permitted
under (b) hereof shall be discharged prior to the first
anniversary of the date on which it became a Principal
Subsidiary;
(vii) any encumbrance created in substitution for any encumbrance
existing or created under (i) - (vi) above provided that the
indebtedness so secured is not increased and the periods
referred to in (ii) and (vi) above are not extended;
(viii) any encumbrance created pursuant to mandatory provisions of
Swedish law, securing the payment of the purchase price by the
Guarantor or a Principal Subsidiary, in favour of minority
shareholders of a company or corporation the shares of which
are subject to a compulsory sale (tvangsinlosen) to the
Guarantor or a Principal Subsidiary;
(ix) any encumbrance created by the Guarantor or a Principal
Subsidiary which secures only indebtedness denominated in
Swedish Kronor and which arises out of borrowing by the
Guarantor or such Principal Subsidiary from the Group Pension
Fund in accordance with and subject to the provisions of
Clause 17.5 (iii) provided the Group Pension Fund requires
such encumbrance to be created and refuses to accept a
guarantee or other support from the Guarantor or the parent
company of the relevant Principal Subsidiary as applicable, in
order to make such borrowings available;
26
(x) any encumbrance created as a result of short-term sale and
repurchase transactions entered into by the Borrower pursuant
to Clause 17.4 (ii) or any encumbrance over cash deposited
with any bank, financial institution, stock exchange or
clearinghouse with which the Guarantor or a Principal
Subsidiary enter into back to back, foreign exchange, swap or
derivative transactions in the ordinary course of business and
which cash has to be deposited in order for such transactions
to be entered into, provided that the amount of cash so
encumbered (a) does not at any time exceed 20 per cent. of the
aggregate exposure of the relevant counterparties to the
Guarantor or a Principal Subsidiary under such transactions at
such time or (b) does not at any time exceed 10 per cent. of
consolidated total assets of the Group as shown in the latest
audited consolidated accounts of the Guarantor; and
(xi) any other encumbrances other than those referred to in
sub-paragraphs (i) - (x) above, over or affecting assets the
aggregate book value of which is less than seven and a half
per cent, (7.5%) of the book value of the total assets of the
Group as shown in the most recent audited consolidated
financial statements of the Guarantor (adjusted from time to
time to take into account acquisitions and/or disposals after
the date to which such financial statements relate).
17.4 Each Obligor shall ensure that neither the Guarantor nor any Principal
Subsidiary shall, without the prior consent of an Instructing Group, either in a
single transaction or in a series of transactions, whether related or not and
whether voluntarily or involuntarily, sell, transfer, grant or lease or
otherwise dispose of all or any part of its assets, other than
(i) a disposal of assets on an arm's length basis for market
value;
(ii) a disposal under short term sale and repurchase transactions
with banks or other financial institutions which transact such
business on a regular basis on market terms and in respect of
marketable securities held for investment purposes;
(iii) a disposal of assets in any one financial year the aggregate
book value of which is less than 5% of the total assets of the
Group as shown in the then most recent audited consolidated
financial statements (adjusted from time to time to take into
account acquisitions and/or disposal after the date to which
such financial statements relate);
(iv) a disposal of assets from a Principal Subsidiary (other than
the Borrower) to another Principal Subsidiary; or
(v) a disposal of the ASEA AB shares under stocklending
transactions provided that such disposal is collateralised as
to 100% of the then market value of such ASEA AB shares by
cash cover or as to 120% of the then market value of such ASEA
AB shares by government
27
securities rated at least Aa3 by Moody's Investors Service,
Inc. or AA-by Standard and Poor's Ratings Group, a division of
McGraw-Hill, Inc. and, in each case, such collateral is held
in a manner satisfactory to the Agent.
17.5 Each Obligor shall ensure that no Principal Subsidiary (other than the
Borrower and its Financing Subsidiaries) will incur or permit to subsist any
Financial Indebtedness with any bank or other institution providing banking
services other than
(i) Financial Indebtedness owing by a member of the Group to
another member of the Group; or
(ii) Financial Indebtedness not exceeding Swedish Kronor
2,000,000,000 of Nybrovikens Kraft AB to the National Pension
Insurance Fund in connection with the purchase by Nybrovikens
Kraft AB of hydropower assets from the National Pension
Insurance Fund; or
(iii) Financial Indebtedness of the Guarantor or a Principal
Subsidiary to the Group Pension Fund where such Financial
Indebtedness is in the form of re-borrowing from the Group
Pension Fund of pension funds deposited with the Group Pension
Fund and provided such Financial Indebtedness in aggregate in
respect of the Guarantor and the Principal Subsidiaries shall
not exceed Swedish Kronor 300,000,000; or
(iv) Financial Indebtedness of Gambro not exceeding the Swedish
Kronor equivalent of $300,000,000 above the level of
borrowings as at the date hereof (which shall include any
undrawn portion of the revolving credit facility dated 15
December 1995 between Gambro AB as borrower, Banque Nationale
de Paris as agent and the financial institutions named therein
as lenders) and as disclosed to the Agent in the letter from
the Borrower to the Agent dated February, 1996; or
(v) Financial Indebtedness (other than that referred to in
sub-paragraphs (i), (ii), (iii) or (iv) above) of subsidiaries
not exceeding in aggregate the higher of 20 per cent. of Total
Borrowings and Swedish Kronor 1,000,000,000
Provided that in the case of a company or corporation becoming a Principal
Subsidiary after the date hereof the above shall not apply in respect of
Financial Indebtedness existing on the date of such company or corporation
becoming a Principal Subsidiary (which was not incurred in contemplation or in
connection with it becoming a Principal Subsidiary) until the first anniversary
of such date.
17.6 Each Obligor shall ensure that so long as any one or more Permitted Owner
(other than the Guarantor) is the legal and beneficial owner of any of the
shares or any of the voting rights of ASEA AB such Permitted Owner will not
incur or permit to subsist any Financial Indebtedness other than Financial
Indebtedness to another member of the Group.
28
17.7 Each Obligor shall ensure that at all times the consolidated financial
condition of the Guarantor as evidenced by the then latest financial statements
prepared on the same basis as was used in the preparation of the Original
Financial Statements of the Guarantor, shall be such that the ratio of
Consolidated Net Interest Bearing Debt to Consolidated Adjusted Equity shall not
exceed 1.0 : 1.0.
17.8 Each Obligor shall ensure that for each quarter of the financial year in
which any ASEA AB Share Disposal, ASEA AB Share Transaction or ASEA AB Share
Encumbrance occurs (other than in respect of the quarter in the financial year
in which such ASEA AB Share Disposal, ASEA AB Share Transaction or ASEA AB Share
Encumbrance occurs) and for each six monthly period ending 30 June or 31
December thereafter the consolidated financial condition of the Guarantor, as
evidenced by the then latest quarterly, half yearly or yearly financial
statements prepared on the same basis as was used in the preparation of the
Original Financial Statements of the Guarantor and as evidenced by the
certificate delivered pursuant to Clause 16.1(iii), shall be such that the ratio
of Consolidated Earnings before Financial Items plus Consolidated Interest
Income to Consolidated Interest Expenses shall not be less than 2.0 : 1.0.
17.9 In Clauses 17.7 and 17.8:
(i) "Consolidated Net Interest Bearing Debt" means at any time the
aggregate amount of Consolidated Interest Bearing Liabilities
less the amount of Consolidated Liquid Assets; and
(ii) "Consolidated Adjusted Equity" means at any time the aggregate
of the amounts paid up or credited as paid up on the issued
share capital of the Guarantor and the aggregate amount of
reserves including but not limited to:
(a) restricted reserves and unrestricted reserves;
(b) any balance standing to the credit of the income
statement;
(c) minority interest; and
(d) any surplus value in the Guarantor's consolidated share
portfolio (being the difference between the market value
of the shares and the bookvalue or the shares recorded
in the relevant financial statements)
but deducting:
(e) any debit balance on the income statement;
all as determined by reference to the Guarantor's then most
recent audited annual or, as the case may be, unaudited
semi-annual or quarterly consolidated financial statements
(adjusted in each case, as
29
appropriate, to take account of any changes in circumstances
which occur after the date to which such consolidated
financial statements refer);
(iii) "Consolidated Earnings before Financial Items" means in any
relevant period the aggregate of revenues less (a) operating
expenses and (b) depreciation (including amortisation of
goodwill) according to plan, all as determined by reference to
the Guarantor's then most recent audited annual or, as the
case may be, unaudited semi-annual or quarterly consolidated
financial statements (adjusted in each case, as appropriate,
to take account of any changes in circumstances which occur
after the date to which such consolidated financial statements
refer);
(iv) "Consolidated Interest Expense" means in any relevant period
the aggregate, of all interest expense as determined by
reference to the Guarantor's then most recent audited annual
or, as the case may be, unaudited semi-annual or quarterly
consolidated financial statements (adjusted in each case, as
appropriate, to take account of any changes in circumstances
which occur after the date to which such consolidated
financial statements refer);
(v) "Consolidated Interest Income" means in any relevant period
the aggregate, of all interest income as determined by
reference to the Guarantor's then most recent audited annual
or, as the case may be, unaudited semi-annual or quarterly
consolidated financial statements (adjusted in each case, as
appropriate, to take account of any changes in circumstances
which occur after the date to which such consolidated
financial statements refer);
(vi) "Consolidated Interest Bearing Liabilities" means at any time
the aggregate of inter alia (a) long term loans, (b)
short-term loans and short-term part of long-term loans, (c)
utilised part of overdraft facility, (d) promissory note loans
and (e) any other liability on which interest is payable all
as determined by reference to the Guarantor's then most recent
audited annual or, as the case may be, unaudited semi-annual
or quarterly consolidated financial statements (adjusted in
each case, as appropriate, to take account of any changes in
circumstances which occur after the date to which such
consolidated financial statements refer); and
(vii) "Consolidated Liquid Assets" means at any time cash and
marketable securities as determined by reference to the
Guarantor's then most recent audited annual or, as the case
may be, unaudited semi-annual or quarterly consolidated
financial statements (adjusted in each case, as appropriate,
to take account of any changes in circumstances which
30
occur after the date to which such consolidated financial
statements refer).
All expressions used in the definitions of this Clause 17.9 which are not
otherwise defined herein shall be construed in accordance with generally
accepted accounting principles in the Kingdom of Sweden consistently applied (as
used in the Guarantor's most recent audited annual consolidated financial
statements).
18. Events of Default
18.1 If:
(i) either of the Obligors shall fail to pay when due any sum
which shall have become due hereunder and, if the non-payment
is solely due to technical or administrative reasons the
non-payment continues unremedied for three business days from
the due date; or
(ii) any representation or statement made or deemed repeated by
either of the Obligors in this Agreement or in any notice or
other document, certificate or statement delivered by it
pursuant hereto or in connection herewith is or proves to have
been incorrect or misleading in any material respect when
made; or
(iii) either of the Obligors fails duly to perform or comply with
any of the obligations expressed to be assumed by it in Clause
16 or 17; or
(iv) either of the Obligors fails duly to perform or comply with
any other obligation expressed to be assumed by it in this
Agreement and such failure is not remedied (if capable of
remedy) within thirty days after the Agent has given notice
thereof to such Obligor; or
(v) (a) any material indebtedness of the Guarantor or any Material
Subsidiary is not paid when due after any applicable grace
period (expressly provided for in the instrument governing
such indebtedness) or if no grace period is provided in such
instrument and such non-payment is solely due to technical or
administrative reasons after three business days after the due
date, or (b) any material indebtedness of the Guarantor or any
Material Subsidiary is declared to be or otherwise becomes due
and payable prior to its specified maturity by reason of a
default or an event of default (however described), or (c) any
creditor or creditors of the Guarantor or any Material
Subsidiary become entitled to declare any material
indebtedness of the Guarantor or such Material Subsidiary due
and payable prior to its specified maturity (for the purpose
of this Clause 18.1(v), "material indebtedness" means any
indebtedness the aggregate amount of which exceeds US$
15,000,000 or equivalent) provided that any prepayment, or
right to call for prepayment, of the Swedish Kronor 750
million
31
bonds dated 6th July, 1994 issued by the Borrower and
guaranteed by the Guarantor with a maturity of 6th July, 1999
or any right to call for prepayment of the Swedish Kronor 250
million floating rate notes dated 6th July, 1994 issued by the
Borrower and guaranteed by the Guarantor with a maturity of
16[h June, 1999 solely as a result of an ASEA AB Share
Disposal shall not constitute an Event of Default under sub-
paragraphs (b) or (c) of this Clause 18.1(v); or
(vi) the Guarantor or any Material Subsidiary is unable to pay its
debts as they fall due, commences negotiations with any one or
more of its creditors with a view to the general readjustment
or rescheduling of its indebtedness or makes a general
assignment for the benefit of or a composition with its
creditors; or
(vii) the Guarantor or any Material Subsidiary takes any corporate
action or other steps are taken or legal proceedings are
started 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 revenues and assets; or
(viii) any execution or distress is levied and is not discharged
within 30 days of being levied against, or an encumbrancer
takes possession of the whole or any part of, the property,
undertaking or assets of the Guarantor or any Material
Subsidiary; or
(ix) by or under the authority of any government, (a) the
management of the Guarantor or any Material Subsidiary is
wholly or partially displaced or the authority of the
Guarantor or any Material Subsidiary in the conduct of its
business is wholly or partially curtailed or (b) all or a
majority of the issued shares of the Guarantor or any Material
Subsidiary or the whole or any part (the book value of which
is twenty per cent. or more of the book value of the whole) of
its revenues or assets is seized, nationalised, expropriated
or compulsorily acquired; or
(x) the Borrower ceases to be a wholly-owned subsidiary of the
Guarantor; or
(xi) either of the Obligors repudiates this Agreement or expresses
its intention to repudiate this Agreement; or
(xii) at any time any act, condition or thing required to be done,
fulfilled or performed in order (a) to enable either of the
Obligors lawfully to enter into, exercise its rights under and
perform the obligations expressed to be assumed by it in this
Agreement, (b) to ensure that the obligations expressed to be
assumed by either of the Obligors in this Agreement are legal,
valid and binding or (c) to make this Agreement admissible
32
in evidence in each Obligor's jurisdiction of incorporation is
not done, fulfilled or performed; or
(xiii) at any time it is or becomes unlawful for either of the
Obligors to perform or comply with any or all of its
obligations hereunder or any of the obligations of either of
the Obligors hereunder are not or cease to be legal, valid and
binding; or
(xiv) a material adverse change occurs in the business, assets or
financial condition of either Obligor, which change gives, in
the reasonable opinion of an Instructing Group, sufficient
grounds to conclude that either Obligor may not, or will be
unable to, perform or observe its respective obligations
hereunder,
then, and in any such case and at any time thereafter, the Agent may (and, if so
instructed by an Instructing Group, shall) by written notice to the Borrower:
(a) declare the Advances to be immediately due and payable
(whereupon the same shall become so payable together with
accrued interest thereon and any other sums then owed by the
Borrower hereunder) or declare the Advances to be due and
payable on demand of the Agent, and/or
(b) declare that the Facility shall be cancelled, whereupon the
same shall be cancelled and the Commitment of each Bank shall
be reduced to zero.
18.2 If, pursuant to Clause 18.1, the Agent declares the Advances to be due and
payable on demand of the Agent, then, and at any time thereafter, the Agent may
(and, if so instructed by an Instructing Group, shall) by written notice to the
Borrower call for repayment of the Advances on such date as it may specify in
such notice (whereupon the same shall become due and payable on such date
together with accrued interest thereon and any other sums then owed by the
Borrower hereunder) or withdraw its declaration with effect from such date as it
may specify in such notice.
18.3 If, pursuant to Clause 18.1(a), the Agent declares the Advances to be due
and payable on demand, the Term in respect of any such Advance shall, if the
Agent subsequently demands payment before the scheduled Repayment Date in
respect of such Advance, be deemed (except for the purposes of Clause 21.4) to
be of such length that it ends on the date that such demand is made.
33
Part 8
GUARANTEE
19. Guarantee
The Guarantor hereby irrevocably and unconditionally:
(i) guarantees to the Agent, the Arrangers and the Banks the due
and punctual observance and performance of all the terms,
conditions and covenants on the part of the Borrower contained
in this Agreement and agrees to pay to the Agent from time to
time on demand any and every sum or sums of money which the
Borrower shall at any time be liable to pay to the Agent, the
Arrangers and the Banks or any of them under or pursuant to
this Agreement and which shall not have been paid at the time
such demand is made; and
(ii) agrees as a primary obligation to indemnify the Agent, the
Arrangers and the Banks from time to time on demand by the
Agent from and against any loss incurred by the Agent, the
Arrangers and the Banks or any of them as a result of any of
the obligations of the Borrower under or pursuant to this
Agreement being or becoming void, voidable, unenforceable or
ineffective as against the Borrower for any reason whatsoever,
whether or not known to the Agent, the Arrangers and the Banks
or any of them or any other person, the amount of such loss
being the amount which the person or persons suffering it
would otherwise have been entitled to recover from the
Borrower.
20. Preservation of Rights
20.1 The obligations of the Guarantor herein contained shall be in addition to
and independent of every other security which the Agent, the Arrangers and the
Banks or any of them may at any time hold in respect of any of the Borrower's
obligations hereunder.
20.2 The obligations of the Guarantor herein contained shall constitute and be
continuing obligations notwithstanding any settlement of account or other matter
or thing whatsoever, and in particular but without limitation, shall not be
considered satisfied by any intermediate payment or satisfaction of all or any
of the obligations of the Borrower under this Agreement and shall continue in
full force and effect until final payment in full of all amounts owing by the
Borrower hereunder and total satisfaction of all the Borrower's actual and
contingent obligations hereunder.
20.3 Neither the obligations of the Guarantor herein contained nor the rights,
powers and remedies conferred in respect of the Guarantor upon the Agent, the
Arrangers and the Banks or any of them by this Agreement or by law shall be
discharged, impaired or otherwise affected by:
34
(i) the winding-up, dissolution, administration or re-organisation
of the Borrower or any other person or any change in its
status, function, control or ownership;
(ii) any of the obligations of the Borrower or any other person
hereunder or under any other security taken in respect of any
of its obligations hereunder being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
(iii) time or other indulgence being granted or agreed to be granted
to the Borrower in respect of its obligations hereunder or
under any such other security;
(iv) any amendment to, or any variation, waiver or release of, any
obligation of the Borrower hereunder or under any such other
security;
(v) any failure to take, or fully to take, any security
contemplated hereby or otherwise agreed to be taken in respect
of the Borrower's obligations hereunder;
(vi) any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any
security taken in respect of the Borrower's obligations
hereunder; or
(vii) any other act, event or omission which, but for this Clause
20.3, might operate to discharge, impair or otherwise affect
any of the obligations of the Guarantor herein contained or
any of the rights, powers or remedies conferred upon the
Agent, the Arrangers and the Banks or any of them by this
Agreement or by law.
20.4 Any settlement or discharge between the Guarantor and the Agent, the
Arrangers and the Banks or any of them shall be conditional upon no security or
payment to the Agent, the Arrangers and the Banks or any of them by the Borrower
or the Guarantor or any other person on behalf of the Borrower or, as the case
may be, the Guarantor being avoided or reduced by virtue of any provisions or
enactments relating to bankruptcy, insolvency, liquidation or similar laws of
general application for the time being in force and, if any such security or
payment is so avoided or reduced, the Agent, the Arrangers and the Banks shall
each be entitled to recover the value or amount of such security or payment from
the Guarantor subsequently as if such settlement or discharge had not occurred.
20.5 Neither the Agent, the Arrangers and the Banks nor any of them shall be
obliged before exercising any of the rights, powers or remedies conferred upon
them in respect of the Guarantor by this Agreement or by law:
(i) to make any demand of the Borrower;
35
(ii) to take any action or obtain judgment in any court against the
Borrower;
(iii) to make or file any claim or proof in a winding-up or
dissolution of the Borrower; or
(iv) to enforce or seek to enforce any other security taken in
respect of any of the obligations of the Borrower hereunder.
20.6 The Guarantor agrees that, so long as any amounts are or may be owed by the
Borrower hereunder or the Borrower is under any actual or contingent obligations
hereunder, the Guarantor shall not exercise any rights which the Guarantor may
at any time have by reason of performance by it of its obligations hereunder:
(i) to be indemnified by the Borrower; and/or
(ii) to claim any contribution from any other guarantor of the
Borrower's obligations hereunder; and/or
(iii) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Agent, the
Arrangers and the Banks hereunder or of any other security
taken pursuant to, or in connection with, this Agreement by
all or any of the Agent, the Arrangers and the Banks.
Part 9
DEFAULT INTEREST AND INDEMNITY
21. Default Interest and Indemnity
21.1 If any sum due and payable by either of the Obligors hereunder is not paid
on the due date therefor in accordance with the provisions of Clause 23 or if
any sum due and payable by either of the Obligors under any judgment of any
court in connection herewith is not paid on the date of such judgment, the
period beginning on such due date or, as the case may be, the date of such
judgment and ending on the date upon which the obligation of such Obligor to pay
such sum (the balance thereof for the time being unpaid being herein referred to
as an "unpaid sum") is discharged shall be divided into successive periods, each
of which (other than the first) shall start on the last day of the preceding
such period and the duration of each of which shall (except as otherwise
provided in this Clause 21) be selected by the Agent.
21.2 During each such period relating thereto as is mentioned in Clause 21.1 an
unpaid sum shall bear interest at the rate per annum which is the sum from time
to time of one per cent., the Margin and LIBOR on the Quotation Date therefor
Provided that:
(i) if, for any such period, LIBOR cannot be determined, the rate
of interest applicable to such unpaid sum shall be the sum
from time to
36
time of one per cent., the Margin and the rate per annum
determined by the Agent to be the weighted arithmetic mean
(rounded upwards, if not already such a multiple, to the
nearest whole multiple of one-sixteenth of one per cent.) of
the rates notified by each Bank to the Agent before the last
day of such period to be those which express as a percentage
rate per annum the cost to it of funding from whatever source
it may select its portion of such unpaid sum for such period;
and
(ii) if such unpaid sum is all or part of an Advance which became
due and payable on a day other than the last day of the Term
thereof, the first such period applicable thereto shall be of
a duration equal to the unexpired portion of that Term and the
rate of interest applicable thereto from time to time during
such period shall be that which exceeds by one per cent. the
rate which would have been applicable to it had it not so
fallen due.
21.3 Any interest which shall have accrued under Clause 21.2 in respect of any
unpaid sum shall be due and payable and shall be paid by the Obligor owing such
unpaid sum at the end of the period by reference to which it is calculated or on
such other date or dates as the Agent may specify by written notice to such
Obligor.
21.4 If any Bank or the Agent on its behalf receives or recovers all or any part
of such Bank's share of an Advance otherwise than on the last day of the Term
thereof, the Borrower shall pay to the Agent on demand for account of such Bank
an amount equal to the amount (if any) by which (i) the additional interest
which would have been payable on the amount so received or recovered had it been
received or recovered on the last day of the Term thereof exceeds (ii) the
amount of interest which in the opinion of the Agent would have been payable to
the Agent on the last day of the Term thereof in respect of a deposit in the
currency of the amount so received or recovered equal to the amount so received
or recovered placed by it with a prime bank in London for a period starting on
the third business day following the date of such receipt or recovery and ending
on the last day of the Term thereof.
21.5 The Borrower undertakes to indemnify:
(i) each of the Agent, the Arrangers and the Banks against any
cost, claim, loss, expense (including legal fees) or liability
together with any VAT thereon, which any of them may sustain
or incur as a consequence of the occurrence of any Event of
Default or any default by the Borrower in the performance of
any of the obligations expressed to be assumed by it in this
Agreement;
(ii) the Agent against any loss it may suffer as a result of its
entering into, or performing, any foreign exchange contract
for the purposes of Part 10;
37
(iii) each Bank against any loss it may suffer as a result of its
funding its portion of an Advance requested by the Borrower
hereunder but not made by reason of the operation of any one
or more of the provisions hereof; and
(iv) each Bank against any loss it may suffer as a result of an
Advance having been requested in an Optional Currency and such
Bank funding its portion of such Advance in such Optional
Currency but such Advance being denominated in dollars and
being made in dollars by reason of the provisions of Clause
6.5(ii).
21.6 Any unpaid sum shall (for the purposes of this Clause 21 and Clause 13.1)
be treated as an advance and accordingly in this Clause 21 the term "Advance"
includes any unpaid sum and "Term", in relation to an unpaid sum, includes each
such period relating thereto as is mentioned in Clause 21.1.
38
Part 10
PAYMENTS
22. Currency of Account and Payment
22.1 The dollar is the currency of account and payment for each and every sum at
any time due from either the Obligors hereunder Provided that:
(i) each repayment of an Advance or a part thereof shall be made
in the currency in which such Advance is denominated at the
time of that repayment;
(ii) each payment of interest shall be made in the currency in
which the sum in respect of which such interest is payable is
denominated;
(iii) each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
(iv) each payment pursuant to Clause 11.2 or Clause 13.1 shall be
made in the currency specified by the party claiming
thereunder; and
(v) any amount expressed to be payable in a currency other than
dollars shall be paid in that other currency.
22.2 If any sum due from either of the Obligors under this Agreement or any
order or judgment given or made in relation hereto has to be converted from the
currency (the "first currency") in which the same is payable hereunder or under
such order or judgment into another currency (the "second currency") for the
purpose of (i) making or filing a claim or proof against such Obligor, (ii)
obtaining an order or judgment in any court or other tribunal or (iii) enforcing
any order or judgment given or made in relation hereto, the Borrower shall
indemnify and hold harmless each of the persons to whom such sum is due from and
against any loss suffered as a result of any discrepancy between (a) the rate of
exchange used for such purpose to convert the sum in question from the first
currency into the second currency and (b) the rate or rates of exchange at which
such person may in the ordinary course of business purchase the first currency
with the second currency upon receipt of a sum paid to it in satisfaction, in
whole or in part, of any such order, judgment, claim or proof.
23. Payments
23.1 On each date on which this Agreement requires an amount to be paid by
either of the Obligors or any of the Banks hereunder, such Obligor or, as the
case may be, such Bank shall make the same available to the Agent:
(i) where such amount is denominated in dollars, by payment in
dollars and in same day funds (or in such other funds as may
for the time being be customary in New York City for the
settlement in New York
39
City of international banking transactions in dollars) to the
Agent's account number 0000000 chips id: 269680 with
Skandinaviska Enskilda Banken, New York, N.Y. USA (or such
other account or bank as the Agent may have specified for this
purpose); or
(ii) where such amount is denominated in an Optional Currency, by
payment in such Optional Currency and in immediately
available, freely transferable, cleared funds to such account
with such bank in the principal financial centre of the
country of such Optional Currency as the Agent shall have
specified for this purpose.
23.2 If, at any time, it shall become impracticable (by reason of any action of
any governmental authority or any change in law, exchange control regulations or
any similar event) for either of the Obligors to make any payments hereunder in
the manner specified in Clause 23.1, then such Obligor may agree with each or
any of the Banks alternative arrangements for the payment direct to such Bank of
amounts due to such Bank hereunder Provided that, in the absence of any such
agreement with any Bank, such Obligor shall be obligated to make all payments
due to such Bank in the manner specified herein. Upon reaching such agreement
such Obligor and such Bank shall immediately notify the Agent thereof and shall
thereafter promptly notify the Agent of all payments made direct to such Bank.
23.3 Save as otherwise provided herein, each payment received by the Agent for
the account of another person pursuant to Clause 23.1 shall:
(i) in the case of a payment received for the account of the
Borrower, be made available by the Agent to the Borrower by
application:
(a) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due
from the Borrower hereunder to the person from whom the
amount was so received or in or towards the purchase of
any amount of any currency to be so applied; and
(b) secondly, in or towards payment (on the date, and in the
currency and funds, of receipt) to such account with
such bank in the principal financial centre of the
country of the currency of such payment as the Borrower
shall have previously notified to the Agent for this
purpose; and
(ii) in the case of any other payment, be made available by the
Agent to the person for whose account such payment was
received (in the case of a Bank, for the account of the
Facility Office) for value the same day by transfer to such
account of such person with such bank in the principal
financial centre of the country of the currency of such
payment as such person shall have previously notified to the
Agent.
40
23.4 All payments required to be made by either of the Obligors hereunder shall
be calculated without reference to any set-off or counterclaim and shall be made
free and clear of and without any deduction for or on account of any set-off or
counterclaim.
23.5 All moneys received, recovered or realised by a Bank by virtue of Clause 19
may, in that Bank's discretion, be credited to a suspense or impersonal account
and may be held in such account for so long as such Bank thinks fit pending the
application from time to time (as such Bank may think fit) of such moneys in or
towards the payment and discharge of any amounts owing by either of the Obligors
to such Bank hereunder.
23.6 Where a sum is to be paid hereunder to the Agent for account of another
person, the Agent shall not be obliged to make the same available to that other
person or to enter into or perform any exchange contract in connection therewith
until it has been able to establish to its satisfaction that it has actually
received such sum, but if it does so and it proves to be the case that it had
not actually received such sum, then the person to whom such sum or the proceeds
of such exchange contract was so made available shall on request refund the same
to the Agent together with an amount sufficient to indemnify the Agent against
any cost or loss it may have suffered or incurred by reason of its having paid
out such sum or the proceeds of such exchange contract prior to its having
received such sum.
24. Set-Off
Each of the Obligors authorises each Bank to apply any credit balance to which
such Obligor is entitled on any account of such Obligor with that Bank in
satisfaction of any sum due and payable from such Obligor to such Bank hereunder
but unpaid; for this purpose, each Bank is authorised to purchase with the
moneys standing to the credit of any such account such other currencies as may
be necessary to effect such application. No Bank shall be obliged to exercise
any right given to it by this Clause 24.
25. Redistribution of Payments
25.1 If, at any time, the proportion which any Bank (a "Recovering Bank") has
received or recovered (whether by payment, the exercise of a right of set-off or
combination of accounts or otherwise) in respect of its portion of any payment
(a "relevant payment") to be made under this Agreement by either of the Obligors
for account of such Recovering Bank and one or more other Banks is greater (the
portion of such receipt or recovery giving rise to such excess proportion being
herein called an "excess amount") than the proportion thereof so received or
recovered by the Bank or Banks so receiving or recovering the smallest
proportion thereof, then:
(i) such Recovering Bank shall pay to the Agent an amount equal to
such excess amount;
(ii) there shall thereupon fall due from such Obligor to such
Recovering Bank an amount equal to the amount paid out by such
Recovering Bank pursuant to paragraph (i) above, the amount so
due being, for the
41
purposes hereof, treated as if it were an unpaid part of such
Recovering Bank's portion of such relevant payment; and
(iii) the Agent shall treat the amount received by it from such
Recovering Bank pursuant to paragraph (i) above as if such
amount had been received by it from such Obligor in respect of
such relevant payment and shall pay the same to the persons
entitled thereto (including such Recovering Bank) pro rata to
their respective entitlements thereto,
Provided that to the extent that any excess amount is attributable to a payment
to a Bank pursuant to Clause 23.3(i)(a) such portion of such excess amount as is
so attributable shall not be required to be shared pursuant hereto.
25.2 If any sum (a "relevant sum") received or recovered by a Recovering Bank in
respect of any amount owing to it by either the Obligors becomes repayable and
is repaid by such Recovering Bank, then:
(i) each Bank which has received a share of such relevant sum by
reason of the implementation of Clause 25.1 shall, upon
request of the Agent, pay to the Agent for account of such
Recovering Bank an amount equal to its share of such relevant
sum together with its share of such amount (if any) as is
necessary to reimburse the Recovering Bank for any interest it
shall have been obliged to pay to either of the Obligors in
respect thereof when repaying such relevant sum to such
Obligor; and
(ii) there shall thereupon fall due from such Obligor to each such
Bank an amount equal to the amount paid out by it pursuant to
paragraph (i) above, the amount so due being, for the purposes
hereof, treated as if it were the sum payable to such Bank
against which such Bank's share of such relevant sum was
applied.
25.3 A Bank shall not be obliged to share any amount pursuant to clause 25.1 if
it has received or recovered such amount as a result of taking legal proceedings
with any other Bank which had an opportunity to participate in those legal
proceedings but did not do so and did not separately take equivalent legal
proceedings.
42
Part 11
FEES, COSTS AND EXPENSES
26. Fees
26.1 The Borrower shall pay to the Agent for account of each Bank a commitment
commission on the amount of such Bank's Available Commitment from day to day
during the period beginning on the date hereof and ending on the Final Maturity
Date, such commitment commission to be calculated at the rate of 0.0875 per
cent. per annum and such commitment commission to be payable in arrear on the
last day of each successive period of three months which ends during such period
and on the Final Maturity Date.
26.2 The Borrower shall pay to the Agent the fees specified in the letter of
even date herewith from the Arrangers to the Borrower at the times, and in the
amounts, specified in such letter.
26.3 The Borrower shall pay to the Agent the agency fees specified in the letter
of even date herewith from the Agent to the Borrower at the times, and in the
amounts, specified in such letter.
27. Costs and Expenses
27.1 The Borrower shall, from time to time on demand of the Agent, reimburse the
Agent and the Arrangers for all reasonable costs and expenses (including legal
fees) together with any VAT thereon incurred by it in connection with the
negotiation, preparation and execution of this Agreement and the completion of
the transactions herein contemplated.
27.2 The Borrower shall, from time to time on demand of the Agent, reimburse the
Agent, the Arrangers and the Banks for all costs and expenses (including legal
fees) together with any VAT thereon incurred in or in connection with the
preservation and/or enforcement of any of the rights of the Agent, the Arrangers
and the Banks under this Agreement.
27.3 The Borrower shall pay all stamp, registration and other taxes to which
this Agreement or any judgment given in connection herewith is or at any time
may be subject and shall, from time to time on demand of the Agent, indemnify
the Agent, the Arrangers and the Banks against any liabilities, costs, claims
and expenses resulting from any failure to pay or any delay in paying any such
tax.
27.4 If the Borrower fails to perform any of its obligations under this Clause
27, each Bank shall, in its Proportion, indemnify each of the Agent and the
Arrangers against any loss incurred by any of them as a result of such failure
and the Borrower shall forthwith reimburse each Bank for any payment made by it
pursuant to this Clause 27.4.
43
Part 12
AGENCY PROVISIONS
28. The Agent, the Arrangers and the Banks
28.1 Each Arranger and each Bank hereby appoints the Agent to act as its agent
in connection herewith and authorises the Agent to exercise such rights, powers,
authorities and discretions as are specifically delegated to the Agent by the
terms hereof together with all such rights, powers, authorities and discretions
as are reasonably incidental thereto.
28.2 The Agent may:
(i) assume that:
(a) any representation made by either of the Obligors in
connection herewith is true;
(b) no Event of Default or Potential Event of Default has
occurred:
(c) neither of the Obligors is in breach of or default under its
obligations hereunder; and
(d) any right, power, authority or discretion vested herein upon
an Instructing Group, the Banks or any other person or group
of persons has not been exercised,
unless it has, in its capacity as agent for the Banks, received
notice to the contrary from any other party hereto or (in case of a
payment default hereunder) gained actual acknowledge to the
contrary;
(ii) assume that the Facility Office of each Bank is that identified with
its signature below (or, in the case of a Transferee, at the end of
the Transfer Certificate to which it is a party as Transferee) until
it has received from such Bank a notice designating some other
office of such Bank to replace its Facility Office and act upon any
such notice until the same is superseded by a further such notice;
(iii) engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services may
to it seem necessary, expedient or desirable and rely upon any
advice so obtained;
(iv) rely as to any matters of fact which might reasonably be expected to
be within the knowledge of either of the Obligors upon a certificate
signed by or on behalf of such Obligor;
(v) rely upon any communication or document believed by it to be
genuine;
44
(vi) refrain from exercising any right, power or discretion vested in it
as agent hereunder unless and until instructed by an Instructing
Group as to whether or not such right, power or discretion is to be
exercised and, if it is to be exercised, as to the manner in which
it should be exercised;
(vii) refrain from beginning any legal action or proceeding in connection
with this Agreement on behalf of any Bank until such Bank has given
its written consent thereto;
(viii) refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising
out of or in connection with this Agreement until it shall have
received such security as it may require (whether by way of payment
in advance or otherwise) for all costs, claims, losses, expenses
(including legal fees) and liabilities together with any VAT thereon
which it will or may expend or incur in complying with such
instructions; and
(ix) if it is unable to obtain instructions or communicate with a Bank
after making reasonable attempts to do so, either refrain from
acting as Agent on behalf of such Bank or take such action on behalf
of such Bank as it in its absolute discretion deems appropriate and
reasonable and shall not be liable to such Bank as a result of any
such action or inaction.
28.3 The Agent shall:
(i) promptly inform each Bank of the contents of any notice or document
received by it in its capacity as Agent from either of the Obligors
hereunder;
(ii) promptly notify each Bank of the occurrence of any Event of Default
or any default by either of the Obligors in the due performance of
or compliance with its obligations under this Agreement of which the
Agent, in its capacity as agent for the Banks, has received express
notice from any other party hereto or (in the case of a payment
default hereunder) gained actual knowledge,
(iii) save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it by an Instructing
Group, which instructions shall be binding on all of the Arrangers
and the Banks; and
(iv) if so instructed by an Instructing Group, refrain exercising any
right, power or discretion vested in it as agent hereunder.
28.4 Notwithstanding anything to the contrary expressed or implied herein.
neither the Agent nor any of the Arrangers shall:
(i) be bound to enquire as to:
(a) whether or not any representation made by either of the
Obligors in connection herewith is true;
45
(b) the occurrence or otherwise of any Event of Default or
Potential Event of Default;
(c) the performance by either of the Obligors of its obligations
hereunder; or
(d) any breach of or default by either of the Obligors of or under
its obligations hereunder;
(ii) be bound to account to any Bank for any sum or the profit element of
any sum received by it for its own account;
(iii) be bound to disclose to any other person any information relating to
any member of the Group if such disclosure would or might in its
opinion constitute a breach of any law or regulation or be otherwise
actionable at the suit of any person; or
(iv) be under any obligations other than those for which express
provision is made herein.
28.5 Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent (to the extent the Agent has not previously been
indemnified by the Borrower), against any and all costs, claims, losses,
expenses (including legal fees) and liabilities together with any VAT thereon
which the Agent may incur, otherwise than by reason of its own gross negligence
or wilful misconduct, in acting in its capacity as agent hereunder.
28.6 Neither the Agent and the Arrangers nor any of them accepts any
responsibility for the accuracy and/or completeness of the Information
Memorandum or any other information supplied by either of the Obligors in
connection herewith or for the legality, validity, effectiveness, adequacy or
enforceability of this Agreement and neither the Agent and the Arrangers nor any
of them shall be under any liability as a result of taking or omitting to take
any action in relation to this Agreement, save in the case of gross negligence
or wilful misconduct.
28.7 Each of the Banks agrees that it will not assert or seek to assert against
any director, officer or employee of the Agent or any Arranger any claim it
might have against any of them in respect of the matters referred to in Clause
28.6.
28.8 The Agent and each of the Arrangers may accept deposits from, lend money to
and generally engage in any kind of banking or other business with any member of
the Group.
28.9 The Agent may resign its appointment thereunder at any time without
assigning any reason therefor by giving not less than thirty days' prior written
notice to that effect to each of the other parties hereto or an Instructing
Group may at any time terminate the appointment of the Agent by giving not less
than sixty days' prior written notice to the Agent, copied to all parties
hereto. Provided that no such resignation or termination shall be
46
effective until a successor for the Agent is appointed in accordance with the
succeeding provisions of this Clause 28.
28.10 If the Agent gives notice of its resignation, or its appointment is
terminated, pursuant to Clause 28.9, then any reputable and experienced bank or
other financial institution may be appointed as a successor to the Agent by an
Instructing Group during the period of such notice but, if no such successor is
so appointed, the Agent may appoint such a successor itself which shall be a
reputable and experienced bank or other financial institution.
28.11 If a successor to the Agent is appointed under the provisions of Clause
28.10, then (i) the retiring Agent shall be discharged from any further
obligation hereunder but shall remain entitled to the benefit of the provisions
of this Clause 28 and (ii) its successor and each of the other parties hereto
shall have the same rights and obligations amongst themselves as they would have
had if such successor had been a party hereto.
28.12 It is understood and agreed by each Bank that it has itself been, and will
continue to be, solely responsible for making its own independent appraisal of
and investigations into the financial condition, creditworthiness, condition,
affairs, status and nature of each member of the Group and, accordingly, each
Bank warrants to the Agent and the Arrangers that it has not relied on and will
not hereafter rely on the Agent and the Arrangers nor any of them:
(i) to check or enquire on its behalf into the adequacy, accuracy
or completeness of any information provided by either of the
Obligors in connection with this Agreement or the transactions
herein contemplated (whether or not such information has been
or is hereafter circulated to such Bank by the Agent and the
Arrangers or any of them); or
(ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or
nature of any member of the Group.
28.13 In acting as Agent for the Banks, the Agent's agency division shall be
treated as a separate entity from any other of its divisions or departments and,
notwithstanding the foregoing provisions of this Clause 28, in the event that
the Agent should act for any member of the Group in any capacity in relation to
any other matter, any information given by such member of the Group to the Agent
in such other capacity may be treated as confidential by the Agent.
47
Part 13
ASSIGNMENTS AND TRANSFERS
29. Benefit of Agreement
This Agreement shall be binding upon and enure to the benefit of each party
hereto and its or any subsequent successors, Transferees and assigns.
30. Assignments and Transfers by the Obligors
Neither of the Obligors shall be entitled to assign or transfer all or any of
its rights, benefits and obligations hereunder.
31. Assignments and Transfers by Banks
31.1 Any Bank may, at any time, assign all or any of its rights and benefits
hereunder or transfer in accordance with Clause 31.3 all or any of its rights,
benefits and obligations hereunder Provided that (i) no such assignment or
transfer (other than (i) to an affiliate of such Bank having its Facility Office
in a country in which another Bank has its Facility Office or (ii) to a Bank)
may be made without the prior written consent of the Borrower, such consent not
to be unreasonably withheld or delayed and to be deemed to have been given if a
response to a request for such consent is not received from the Borrower by such
Bank within fifteen business days of such request (incorporating such fifteen
business days deadline) being made, and (ii) no such transfer or assignment may
be made if the result thereof, at the time of such transfer or assignment or
immediately thereafter would be that either Obligor would be liable to pay an
additional amount or amounts pursuant to Clauses 11.1 or 13.1 which additional
amount or amounts would not have been payable had no such transfer or assignment
occurred unless the transferee or assignee accept responsibility to reimburse
such Obligor for any additional amount or amounts.
31.2 If any Bank assigns all or any of its rights and benefits hereunder in
accordance with Clause 31.1, then, unless and until the assignee has agreed with
the Agent, the Arrangers and the other Banks that it shall be under the same
obligations towards each of them as it would have been under if it had been an
original party hereto as a Bank, the Agent, the Arrangers and the other Banks
shall not be obliged to recognise such assignee as having the rights against
each of them which it would have had if it had been such a party hereto.
31.3 If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations hereunder as contemplated in Clause 31.1, then such transfer may be
effected by the delivery to the Agent of a duly completed and duly executed
Transfer Certificate in which event, on the later of the Transfer Date specified
in such Transfer Certificate and the fifth business day after (or such earlier
business day endorsed by the Agent on such Transfer Certificate falling on or
after) the date of delivery of such Transfer Certificate to the Agent:
48
(i) to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer its rights, benefits and obligations
hereunder, each of the Obligors and such Bank shall be
released from further obligations towards one another
hereunder and their respective rights against one another
shall be cancelled (such rights, benefits and obligations
being referred to in this Clause 31.3 as "discharged rights
and obligations");
(ii) each of the Obligors and the Transferee party thereto shall
assume obligations towards one another and/or acquire rights
against one another which differ from such discharged rights
and obligations only insofar as such Obligor and such
Transferee have assumed and/or acquired the same in place of
such Obligor and such Bank; and
(iii) the Agent, the Arrangers, such Transferee and the other Banks
shall acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and
assumed had such Transferee been an original party hereto as a
Bank with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer.
31.4 On the date upon which a transfer takes effect pursuant to Clause 31.3, the
Transferee in respect of such transfer shall pay to the Agent for its own
account a transfer fee of $800, payable under pre-advice, and notwithstanding
the provisions of Clause 31.3 such transfer shall not be effective until such
transfer fee is received by the Agent.
32. Disclosure of Information
Any Bank may disclose to any actual or potential assignee or Transferee or to
any person who may otherwise enter into contractual relations with such Bank in
relation to this Agreement such information about this Agreement or the Obligors
and the Group as such Bank shall consider appropriate.
49
Part 14
MISCELLANEOUS
33. Calculations and Evidence of Debt
33.1 Interest and commitment commission shall accrue from day to day and shall
be calculated on the basis of a year of 360 days (or in any case where market
practice differs, in accordance with market practice) and the actual number of
days elapsed.
33.2 Any repayment of an Advance denominated in an Optional Currency shall
reduce the amount of such Advance by the amount of such Optional Currency repaid
and shall reduce the Dollar Amount of such Advance proportionately.
33.3 If on any occasion a Reference Bank or Bank fails to supply the Agent with
a quotation required of it under the foregoing provisions of this Agreement, the
rate for which such quotation was required shall be determined from those
quotations which are supplied to the Agent.
33.4 Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it hereunder.
33.5 The Agent shall maintain on its books a control account or accounts in
which shall be recorded (i) the amount of any Advance made or arising hereunder
and each Bank's share therein, (ii) the amount of all principal, interest and
other sums due or to become due from either of the Obligors to any of the Banks
hereunder and each Bank's share therein and (iii) the amount of any sum received
or recovered by the Agent hereunder and each Bank's share therein.
33.6 In any legal action or proceeding arising out of or in connection with this
Agreement, the entries made in the accounts maintained pursuant to Clauses 33.4
and 33.5 shall in the absence of manifest error be conclusive evidence of the
existence and amounts of the obligations of the Obligors therein recorded.
33.7 A certificate of a Bank as to (i) the amount by which a sum payable to it
hereunder is to be increased under Clause 11.1 or (ii) the amount for the time
being required to indemnify it against any such cost, payment or liability as is
mentioned in Clause 11.2 or 13.1 shall, in the absence of manifest error, be
conclusive for the purposes of this Agreement.
33.8 A certificate of the Agent as to the amount at any time due from the
Borrower hereunder or the amount which, but for any of the obligations of the
Borrower hereunder being or becoming void, voidable, unenforceable or
ineffective, at any time would have been due from the Borrower hereunder shall,
in the absence of manifest error, be conclusive for the purposes of Part 8.
50
34. Remedies and Waivers
No failure to exercise, nor any delay in exercising, on the part of the Agent,
the Arrangers and the Banks or any of them, any right or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise thereof or the exercise of
any other right or remedy. The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies provided by law.
35. Partial Invalidity
If, at any time, any provision hereof is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction. neither the
legality, validity or enforceability of the remaining provisions hereof nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby.
36. Notices
36.1 Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by telex, telefax or letter save that any
Notice of Drawdown or other communication of instructions for payment to be made
by one person to another hereunder shall be made by telex or letter.
36.2 Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has by
fifteen days' written notice to the Agent specified another address) be made or
delivered to that other person at the address identified with its signature
below (or, in the case of a Transferee, at the end of the Transfer Certificate
to which it is a party as Transferee) and shall be deemed to have been made or
delivered when despatched (and the appropriate answerback received) (in the case
of any communication made by telex) or (in the case of any communication made by
letter) when left at that address or (as the case may be) ten days after being
deposited in the post postage prepaid in an envelope addressed to it at that
address or (in the case of any communication by telefax) when actually received
Provided that any communication or document to be made or delivered to the Agent
shall be effective only when received by the Agent and then only if the same is
expressly marked for the attention of the department identified with the Agent's
signature below (or such other department as the Agent shall from time to time
specify for this purpose) and provided further that if the time of receipt of
any communication or document is not a business day in the country of the
addressee or is not within working hours, such communication or document shall
be deemed to have been received at the opening of business on the next business
day.
36.3 Each communication and document (except for the documents set out in
paragraphs 1 and 2 of the Third Schedule) made or delivered by one party to
another pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an officer of
the person making delivering the same) as being a true and accurate translation
thereof and, in this case, the English translation shall be conclusive unless
the communication or document is a statutory or other official document.
51
Part 15
LAW AND JURISDICTION
37. Law
This Agreement shall be governed by, and shall be construed in accordance with,
English law.
38. Jurisdiction
38.1 Each of the parties hereto irrevocably agrees for the benefit of each of
the Agent, the Arrangers and the Banks that the courts of England shall have
jurisdiction to hear and determine any suit, action or proceeding, and to settle
any disputes, which may arise out of or in connection with this Agreement and,
for such purposes, irrevocably submits to the jurisdiction of such courts.
38.2 Each of the Obligors irrevocably waives any objection which it might now or
hereafter have to the courts referred to in Clauses 38.1 being nominated as the
forum to hear and determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this Agreement and agrees
not to claim that any such court is not a convenient or appropriate forum.
38.3 Each of the Obligors agrees that the process by which any suit, action or
proceeding is begun may be served on it by being delivered in England, to
Incentive Group Limited, x/x Xxxxxxx Xxx, Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxx
XX00 0XX, Xxxxxxx or other its principal place of business for the time being.
If the appointment of the person mentioned in this Clause 38.3 ceases to be
effective in respect of either or both Obligors, such Obligor or Obligors shall
immediately appoint a further person in England to accept service of process on
its behalf in England and, failing such appointment within 15 days, the Agent
shall be entitled to appoint such a person by notice to such Obligor or
Obligors. Nothing contained herein shall affect the right to serve process in
any other manner permitted by law.
38.4 The submission to the jurisdiction of the courts referred to in Clauses
38.1 shall not (and shall not be construed so as to) limit the right of the
Agent, the Arrangers and the Banks or any of them to take proceedings against
either of the Obligors in any other court of competent jurisdiction nor shall
the taking of proceedings in any one or more jurisdictions preclude the taking
of proceedings in any other jurisdiction (whether concurrently or not) if and to
the extent permitted by applicable law.
38.5 Each of the Obligors hereby consents generally in respect of any legal
action or proceeding arising out of or in connection with this Agreement to the
giving of any relief or the issue of any process in connection with such action
or proceeding including, without limitation, the making. enforcement or
execution against any property whatsoever (irrespective of its use or intended
use) of any order or judgment which may be made or given in such action or
proceeding.
52
38.6 To the extent that either of the Obligors may in any jurisdiction claim for
itself or its assets immunity from suit, execution, attachment (whether in aid
of execution, before judgment or otherwise) or other legal process and to the
extent that in any such jurisdiction there may be attributed to itself or its
assets such immunity (whether or not claimed), such Obligor hereby irrevocably
agrees not to claim and hereby irrevocably waives such immunity to the full
extent by the laws of such jurisdiction.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
53
THE FIRST SCHEDULE
The Banks
Bank Commitment (US$)
Deutsche Bank Luxembourg S.A. 75,000,000
Enskilda, Skandinaviska Enskilda Banken AB (publ) 75,000,000
Banque Nationale de Paris London Branch 60,000,000
Commerzbank International S.A. 60,000,000
Den Danske Bank Aktieselskab 60,000,000
Societe Generale 60,000,000
The Sumitomo Bank, Limited 60,000,000
Svenska Handelsbanken AB (publ) 60,000,000
Union Bank of Switzerland 60,000,000
Bayerische Landesbank Girozentrale 45,000,000
The Dai-Ichi Kangyo Bank, Limited 45,000,000
Dresdner Bank Luxembourg S.A. 45,000,000
Morgan Guaranty Trust Company of New York 45,000,000
Nordbanken AB (publ) 45,000,000
Swedbank - Sparbanken Sverige 45,000,000
ABN AMRO Bank N.V., Stockholm Branch 20,000,000
Banque et Caisse d'Epargne de L'Etat, Luxembourg 20,000,000
Barclays Bank PLC 20,000,000
Citibank International Plc, Sweden Branch 20,000,000
Credit Lyonnais Franch bankfilial 20,000,000
The Mitsubishi Bank, Limited 20,000,000
The Sanwa Bank, Limited 20,000,000
Scotiabank (Ireland) Limited 20,000,000
----------
Total 1,000,000,000
54
THE SECOND SCHEDULE
Form of Transfer Certificate
To: Enskilda, Skandinaviska Enskilda Banken AB (publ) in its capacity as Agent
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated 4 March, 1996 whereby a
$1,000,000,000 multicurrency revolving credit facility was made available to
Incentive Treasury AB (publ) as borrower under the guarantee of Incentive AB
(publ) as guarantor by a group of banks on whose behalf Enskilda, Skandinaviska
Enskilda Banken AB (publ) acted as agent in connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank and Transferee are
defined in the schedule hereto.
2. The Bank (i) confirms that the details in the schedule hereto under the
heading "Bank's Commitment" or "Advance(s)" accurately summarises its Commitment
and/or, as the case may be, its participation in, and the Term and Repayment
Date of, one or more existing Advances and (ii) requests the Transferee to
accept and procure the transfer to the Transferee of the portion specified in
the schedule hereto of, as the case may be, its Commitment and/or its
participation in such Advance(s) by counter-signing and delivering this Transfer
Certificate to the Agent at its address for the service of notices specified in
the Facility Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of Clause 31.3
of the Facility Agreement so as to take effect in accordance with the terms
thereof on the Transfer Date or on such later date as may be determined in
accordance with the terms thereof.
4. The Transferee confirms that it has received a copy of the Facility Agreement
together with such other information as it has required in connection with this
transaction and that it has not relied and will not hereafter rely on the Bank
to check or enquire on its behalf into the legality, validity, effectiveness,
adequacy, accuracy or completeness of any such information and further agrees
that it has not relied and will not rely on the Bank to assess or keep under
review on its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of any member of the Group.
5. The Transferee hereby undertakes with the Bank and each of the other parties
to the Facility Agreement that it will perform in accordance with their terms
all those obligations which by the terms of the Facility Agreement will be
assumed by it after delivery of this Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which this Transfer
Certificate is expressed to take effect.
55
6. The Bank makes no representation or warranty and assumes no responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any document relating thereto and
assumes no responsibility for the financial condition of any member of the Group
or for the performance and observance by the Borrower or the Guarantor of any of
its obligations under the Facility Agreement or any document relating thereto
and any and all such conditions and warranties, whether express or implied by
law or otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Facility Agreement
(or any document relating thereto) shall oblige the Bank to (i) accept a
re-transfer from the Transferee of the whole or any part of its rights, benefits
and/or obligations under the Facility Agreement transferred pursuant hereto or
(ii) support any losses directly or indirectly sustained or incurred by the
Transferee for any reason whatsoever including, without limitation, the
non-performance by the Borrower, the Guarantor or any other party to the
Facility Agreement (or any document relating thereto) of its obligations under
any such document. The Transferee hereby acknowledges the absence of any such
obligation as is referred to in (i) or (ii) above.
8. This Transfer Certificate and the rights and obligations of the parties
hereunder shall be governed by and construed in accordance with English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Commitment:
Bank's Commitment Portion Transferred
5. Advance(s):
Amount of Term and
Bank's Participation Repayment Date Portion Transferred
[Transferor Bank] [Transferee Bank]
By: By:
56
Date: Date:
57
Administrative Details of Transferee
Address:
Contact Name:
Account for Payments
in dollars:
Telex:
Telephone:
Facsimile:
58
THE THIRD SCHEDULE
Condition Precedent Documents
1. In relation to each of the Obligors:
(i) a copy, certified a true copy by a duly authorised officer of
such Obligor. of the certificate of registration, issued by
the Patent- and Registration Office, and the articles of
association of such Obligor; and
(ii) a copy, certified a true copy by a duly authorised officer of
such Obligor, of a Board Resolution of such Obligor approving
the execution, delivery and performance of this Agreement and
the terms and conditions hereof.
59
2. An opinion of the Borrower's and Guarantor's Swedish Counsel dated on or
after the date of this Agreement and in substantially the form set out in the
Fifth Schedule.
3. An opinion of the Banks' Swedish Counsel dated on or after the date of this
Agreement and in substantially the form set out in the Sixth Schedule.
4. An opinion of Clifford Chance, solicitors to the Agent dated on or after the
date of this Agreement and, in substantially the form distributed to the Banks
prior to the execution hereof.
5. Evidence that Incentive Group Limited, c/o Munters Ltd. Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxx XX00 0XX, Xxxxxxx has agreed to act as the agent of the
Obligors for the service of process in England.
60
THE FOURTH SCHEDULE
Notice of Drawdown
From: Incentive Treasury AB (publ)
To: Enskilda, Skandinaviska Enskilda Banken AB (publ)
Dated:
Dear Sirs,
1. We refer to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated 4 March, 1996 and made between
Incentive Treasury AB (publ) as borrower, Incentive AB (publ) as guarantor,
Deutsche Bank Luxembourg S.A. and Enskilda, Skandinaviska Enskilda Banken AB
(publ) as arrangers, Enskilda, Skandinaviska Enskilda Banken AB (publ) as agent
and the financial institutions named therein as banks. Terms defined in the
Facility Agreement shall have the same meaning in this notice.
2. We hereby give you notice that, pursuant to the Facility Agreement and upon
the terms and subject to the conditions contained therein, we wish an Advance to
be made to us as follows:
(i) Currency:
(ii) Dollar Amount:
(iii) Drawdown Date:
(iv) Term:
[3. If it is not possible, pursuant to Clause 6.5 Of the Facility Agreement, for
the Advance to be made in the currency specified, we would wish the Advance to
be denominated in dollars.]
[3/4.] We confirm that, at the date hereof, the representations set out in
Clause 15.1 and 15.2 (except sub-Clauses 15.2 (v), (viii) and (xiv)) of the
Facility Agreement are true and no Event of Default or Potential Event of
Default has occurred.
[4/5.] The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully
for and on behalf of
Incentive Treasury AB (publ)
61
THE FIFTH SCHEDULE
Opinion of the Borrower's and Guarantor's Swedish Counsel
To: Enskilda, Skandinaviska Enskilda Banken AB (publ) as agent on its own
behalf and for and on behalf of the Arrangers and the Banks referred to in
the Facility Agreement mentioned below.
Dear Sirs,
1. We have acted on behalf of Incentive Treasury AB (publ) and Incentive AB
(publ) in connection with an agreement (the "Facility Agreement") dated 4 March,
1996 and made between Incentive Treasury AB (publ) as borrower, Incentive AB
(publ) as guarantor, Deutsche Bank Luxembourg S.A. and Enskilda, Skandinaviska
Enskilda Banken AB (publ) as arrangers, Enskilda, Skandinaviska Enskilda Banken
AB (publ) as agent and the financial institutions defined therein as Banks.
2. Terms defined in the Facility Agreement shall have the same meaning herein.
3. We have examined a signed copy of the Facility Agreement and such other
documents as we have considered it necessary or desirable to examine and, on the
assumption that the Facility Agreement is valid and legally binding under
English law (and subject as mentioned below), we are of the opinion that
(A) the statements set out in Clause 15.1 (i) - (x) of the Facility
Agreement are true insofar as the same relate to the Obligors; and
(B) a judgement obtained in a court in England is enforceable in Sweden
pursuant to the rules of the 1988 Lugano Convention on Jurisdiction
and the Enforcement of Judgements in Civil Matters (the "Lugano
Convention") as implemented in Sweden. If such judgment does not
satisfy the applicable enforcement provisions of the Lugano
Convention then, we believe, although there is no legislative
authority on the subject, that in view of the judicial developments
in Sweden that Swedish courts would give an enforceable Swedish
judgment on the basis of a judgment for money obtained in an English
court provided that such English judgment was given by a competent
court in England, had gained legal force according to the applicable
procedural rules in England and is not contrary to public policy in
Sweden.
4. This opinion is confined to matters of Swedish law and no opinion is
expressed as to the laws of any other jurisdiction.
5. We have assumed the following:
62
1. The Facility Agreement is within the capacity and power of and has been
validly authorized, executed and delivered by and is binding on the
parties thereto, other than the Obligors, which matters we have not
independently verified; and
2. The genuineness of all signatures and the authenticity of all documents
submitted to us as originals and the conformity with the originals of all
documents submitted to us as copies thereof, and we have found nothing to
indicate that such assumptions are not fully justified.
The qualifications to which this opinion is subject are as follows:
1. The availability in Swedish courts of equitable remedies, such as
injunction and specific performance, is restricted under Swedish law.
2. Swedish courts may award judgments expressed in foreign currencies, but an
enforcement in Sweden by the execution authorities of a payment order in
the judgment can generally only be performed in Swedish Kronor.
Enforcement in Sweden of such judgments would, if implemented in Swedish
Kronor, be generally at the rate of exchange prevailing at the date of
enforcement rather than at the date of judgment.
3. Nothing in this opinion must be taken as indicating that obligations would
be specifically enforceable and an enforcement of any agreement or
instrument may be limited by bankruptcy, insolvency, liquidation,
reorganisation, limitation, and other laws of general application
regarding or affecting the rights or creditors.
4. Pursuant to the Swedish Contract Act, a contract term may be modified or
set aside if it is adjudged to be unreasonable. Where any party to an
agreement is vested with a discretion or may determine a matter in its
opinion, Swedish law may require that such discretion is exercised
reasonably or that such opinion is based on reasonable grounds and a
provision that a certain determination is conclusive and binding will not
prevent judicial enquiry into the merits of any claim by an aggrieved
party.
5. A Swedish court may reject the right to take proceedings in Sweden if
proceedings which may have or may lead to a judgment which is enforceable
in Sweden have already been taken in another court of competent
jurisdiction within or outside Sweden.
6. In giving the foregoing opinion, we have relied as to certain factual
matters upon certificates of officers of the Obligors and of public
officials.
7. This opinion is confirmed to and is given on the basis of Swedish law as
it exists at the date hereof. We have made no investigations of the laws
of England as a basis for this opinion and do not express or imply any
opinion thereon.
63
8. This opinion is strictly limited to the matters stated herein and is not
to be read as extending by implication to any other matters in connection
with the Facility Agreement referred to herein or the transactions
contemplated by such agreement.
This opinion is addressed to you and, without our express consent, is not to be
transmitted to any other person, nor is it to be relied upon by any other person
or for any purpose.
Yours faithfully,
ADVOKATFIRMAN VINGE
Xxxx Xxxxx
64
THE SIXTH SCHEDULE
Opinion of the Banks' Swedish Counsel
To: the Arrangers and the Banks
(each as defined in the Facility
Agreement referred to below)
and
Enskilda, Skandinaviska Enskilda Banken AB (publ)
as Agent
Stockholm, [ ] March, 1996
Dear Sirs,
Re: US $1,000,000,000 Multicurrency Revolving Credit Facility dated 4
March, 1996, (the "Facility Agreement") for Incentive Treasury AB (publ)
as Borrower and guaranteed by Incentive AB (publ) as Guarantor
1. We have acted as your legal advisers in Sweden in connection with the
Facility Agreement made between the Borrower, the Guarantor, the Arrangers, the
banks and other financial institutions listed on the signature pages of the
Facility Agreement as lenders participating in the Revolving Credit Facility and
the Agent.
2. For the purposes of this opinion, we have examined and relied upon:
(a) a conformed copy of the Facility Agreement;
(b) a copy of each of the Borrower's and the Guarantor's articles of
association;
(c) a copy of the registration certificate of the Borrower issued by the
Patent and Registration Office on [_________];
(d) a copy of the registration certificate of the Guarantor issued by
the Patent and Registration Office on [__________];
(e) a copy of a Board Resolution of the Borrower passed at a meeting of
its board of directors on [________] approving the entering into the
Facility Agreement;
65
(f) a copy of a board resolution of the Guarantor passed at a meeting of
its board of directors held on [__________] approving the giving of
its guarantee under the Facility Agreement;
(g) a copy of the power of attorney dated [______], 1996 authorizing Mr.
[____________] and Mr. [_____________] jointly to sign the Facility
Agreement on behalf of the Borrower; and
(h) a copy of the power of attorney dated [__________], 1996 authorizing
Mr. [______] and Mr. [__________] jointly to sign the Facility
Agreement on behalf of the Guarantor.
3. We have assumed the following:
(A) the Facility Agreement is within the capacity and power of and has
been validly authorized, executed and delivered by and is binding on
the parties thereto, other than the Borrower and the Guarantor,
which matters we have nor independently verified;
(B) the Facility Agreement and the rights and obligations created
thereby are valid and legally binding under the laws of England, by
which they are expressed to be governed; and
(C) the genuineness of all signatures and the authenticity of all
documents submitted to us as originals and the conformity with the
originals of all documents submitted to us as copies thereof;
and we have found nothing to indicate that such assumptions are not fully
justified.
Terms defined in the Facility Agreement shall, when used in this opinion, have
the same meanings herein as therein unless otherwise defined.
4. Based on the foregoing, we are of the opinion that:
(A) so far as the laws of Sweden are concerned that the statements set
out in Clause 15.1 of the Facility Agreement are true and correct as
far as they relate to each Obligor respectively; and
(B) a judgement obtained in a court in England is enforceable in Sweden
pursuant to the rules of the 1988 Lugano Convention on Jurisdiction
and the Enforcement of Judgments in Civil Matters (the "Lugano
Convention") as implemented in Sweden. If such judgment does not
satisfy the applicable enforcement provisions of the Lugano
Convention then, we believe, although there is no legislative
authority on the subject, that in view of the judicial developments
in Sweden that Swedish courts would give an enforceable Swedish
judgment on the basis of a judgment for money obtained in an English
court provided that such English judgment was given by a competent
court in
66
England, had gained legal force according to the applicable
procedural rules in England and is not contrary to public policy in
Sweden.
5. The qualifications to which this opinion is subject are as follows:
(1) The availability in Swedish courts of equitable remedies, such as
injunction and specific performance, is restricted under Swedish
law.
(2) Swedish courts may award judgments expressed in foreign currencies
(including $), but an enforcement in Sweden by the execution
authorities of a payment order in the judgment can generally only be
performed in Swedish kronor ("SEK"). Enforcement in Sweden of such
judgments would, if implemented in SEK, be generally at the rate of
exchange ruling at the date of enforcement rather than at the date
of judgment.
(3) Nothing in this opinion must be taken as indicating that obligations
would be specifically enforceable and an enforcement of any
agreement or instrument may be limited by bankruptcy, insolvency,
liquidation, reorganisation, limitation, and other laws of general
application regarding or affecting the rights of creditors.
(4) Pursuant to the Swedish Contract Act, a contract term may be
modified or set aside if it is adjudged to be unreasonable. Where
any party to an agreement is vested with a discretion or may
determine a matter in its opinion, Swedish law may require that such
discretion is exercised reasonably or that such opinion is based on
reasonable grounds and a provision that a certain determination is
conclusive and binding will not prevent judicial enquiry into the
merits of any claim by an aggrieved party. Although the Facility
Agreement is subject to English law, we cannot express any opinion
whether a Swedish court would find such equitable rules of the
Swedish Contracts Act applicable either directly or by reason of
Swedish public policy. However, in our opinion, having regard to all
the relevant circumstances, even if such rules of the Swedish
Contracts Act did apply, neither the Facility Agreement nor the
terms thereof would be subject to modification or being set aside
pursuant to such rules.
(5) A Swedish court may reject the right to take proceedings in Sweden
if proceedings which have or may lead to a judgment which is
enforceable in Sweden have already been taken in another court of
competent jurisdiction within or outside Sweden.
(6) In giving the foregoing opinion, we have relied as to certain
factual matters upon certificates by officers of the Borrower, the
Guarantor and by public officials.
(7) This opinion is confined to and is given on the basis of Swedish law
as it exists at the date hereof. We have made no investigations of
the laws of
67
England as a basis for this opinion and do not express or imply any
opinion thereon.
(8) This opinion is strictly limited to the matters stated herein and is
not to be read as extending by implication to any other matters in
connection with the Facility Agreement.
This opinion is addressed to you and, without our express consent, is not to be
transmitted to any other person, nor is it to be relied upon by any other person
(in each case other than your legal advisers) or for any purpose other than in
connection with the Facility Agreement.
Yours faithfully
Hellstrom & Partners
68
The Borrower
INCENTIVE TREASURY AB (PUBL)
By: XXXXXX XXXXXX XXXXXX XXXXXXXX
Address: Xxxxxxxxx 0
X.X. Xxx 0000
X-000 00 Xxxxxxxxx
XXXXXX
Tel: (++46 8) 000 0000
Fax: (++46 8) 679 75 06
The Guarantor
INCENTIVE AB (PUBL)
By: XXXXXX XXXXXX XXXXXX XXXXXXXX
Address: P.O. Box 7373
X-000 00 Xxxxxxxxx
XXXXXX
Tel: (++46 8) 000 00 00
Fax: (++ 46 8) 611 28 30
The Arrangers
DEUTSCHE BANK LUXEMBOURG S.A.
By: A. P. KLUBER
Address: 0, xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
GRAND DUCHY of LUXEMBOURG
Tele: (++352) 42 122 - 1
Fax: (++ 352) 42 122 - 287
Telex: 2772 DEUT LU
69
ENSKILDA, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
By: XXX XXXXXX
Address: 0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (x00 000) 000 0000
Fax: (x00 000) 000 0000
Telex: 8950281
The Agent
ENSKILDA, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
By: XXX XXXXXX
Address: 0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (x00 000) 000 0000
Fax: (x00 000) 000 0000
Telex: 0000000
The Banks
DEUTSCHE BANK LUXEMBOURG S.A.
By: A. P. KLUBER
Address: 0, xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
GRAND DUCHY of LUXEMBOURG
Tel: (++352) 42 122 - 1
Fax: (++ 352) 42 122 - 287
Telex: 2772 DEUT LU
70
ENSKILDA, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
By: XXX XXXXXX
Address: 0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (x00 000) 000 0000
Fax: (x00 000) 000 0000
Telex: 8950281
BANQUE NATIONALE DE PARIS LONDON BRANCH
By: XXX XXXXXX
Address: 0/00 Xxxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (++44 171) 000 00 00
Fax: (++44 171) 929 0310
Telex: 883412 BNPLNY G
COMMERZBANK INTERNATIONAL S.A.
By: XXX XXXXXX
Address: 00, xxx Xxxxx-Xxxx
X-0000 Xxxxxxxxxx
GRAND DUCHY of LUXEMBOURG
Tel: (++352) 000 000 0
Fax: (++352) 477 911 419
Telex: 1293 CBKLU LU
71
DEN DANSKE BANK AKTIESELSKAB
By: XXX XXXXXX
Address: 00 Xxxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (++44 171) 000 0000
Fax: (++44 171) 410 0031
Telex: 896229 / 896220
SOCIETE GENERALE
By: XXX XXXXXX
Address: ENTR/FIN/ING
Tour Societe Generale
00000 Xxxxx-Xx Defense Cedex
FRANCE
Tel: (++33 1) 00 00 00 00
Fax: (++33 1) 42 13 68 21
Telex: 280730 SGMAR
THE SUMITOMO BANK, LIMITED
By: XXX XXXXXX
Address: Temple Court
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (++44 171) 000 0000
Fax: (++44 171) 236 0049
Telex: 000000
00
XXXXXXX XXXXXXXXXXXXX XX (PUBL)
By: A. P. KLUBER
Address: Xxxxxxxxxxxxxxx 00
X-000 00 Xxxxxxxxx
XXXXXX
Tel: (++46 8) 000 0000
Fax: (++46 8) 701 1069
Telex: 11090 HANDST S
UNION BANK OF SWITZERLAND
By: A. P. KLUBER
Address: X.X. Xxx 000
000 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (++44 171) 000 0000
Fax: (++44 171) 901 3903
Telex: 941 3848/3944 UBS COR G
BAYERISCHE LANDESBANK GIROZENTRALE
By: A. P. KLUBER
Address: Xxxxxxxx Xxxxxxx 00
X-00000 Xxxxxx
XXXXXXX
Tel: (++49 89) 0000 0000
Fax: (++49 89) 2171 2200
Telex: 528620 XXX X
00
XXX XXX-XXXX XXXXXX XXXX, LIMITED
By: A. P. KLUBER
Address: DKB House
00 Xxxx Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (++44 171) 000 0000
Fax: (++44 171) 929 3197
Telex: 884042
DRESDNER BANK LUXEMBOURG S.A.
By: A. P. KLUBER
Address: 00, xxx xx Xxxxxx-xxx-Xxxxxx
X-0000 Xxxxxxxxxx
GRAND DUCHY of LUXEMBOURG
Tel: (++352) 4760-1
Fax: (++352) 4760 565
Telex: 2558 DRES LU
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: A. P. KLUBER
Address: P.O. Xxx 000
00 Xxxxxxxx Xxxxxxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (++44 171) 000 0000
Fax: (++44 171) 325 8114
Telex: 896631 MGT G
74
NORDBANKEN AB (PUBL)
By: X. XXXXXXXX
Address: International Finance, H64
X-000 00 Xxxxxxxxx
XXXXXX
Tel: (++46 8) 000 0000
Fax: (++46 8) 614 7630
Telex: 12399 NBBANK S
SWEDBANK - SPARBANKEN SVERIGE AB (PUBL)
By: X. XXXXXXXX
Address: Swedbank Markets/Large Corporates
X-000 00 Xxxxxxxxx
XXXXXX
Tel: (++46 8) 000 0000
Fax: (++46 8) 791 8634
Telex: 12701 SWECIA S
ABN AMRO BANK N.V., STOCKHOLM BRANCH
By: X. XXXXXXXX
Address: Box 7826
X-000 00 Xxxxxxxxx
XXXXXX
Tel: (++46 8) 000 00 00
Fax: (++46 8) 679 40 90
Telex: 12101 ABNSTO S
00
XXXXXX XX XXXXXX X'XXXXXXX XX X'XXXX, XXXXXXXXXX
By: X. XXXXXXXX
Address: 0-0 Xxxxx xx Xxxx
X-0000 Xxxxxxxxxx
XXXXX XXXXX of LUXEMBOURG
Tel: (++352) 0000 0000/4344
Fax: (++352) 4015 4284
Telex: 3417 EPPDA LU
BARCLAYS BANK PLC
By: X. XXXXXXXX
Address: BZW Structured Finance
St. Mary's Court
000, Xxxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (++44 171) 000 0000
Fax: (++ 44 171) 775 1077
Telex: 921763 BAREPO G
CITIBANK INTERNATIONAL PLC, SWEDEN BRANCH
By: X. XXXXXXXX
Address: Box 1422
Xxxxxxxxxxxxxx 00
X-000 00 Xxxxxxxxx
XXXXXX
Tel: (++46 8) 000 00 00
Fax: (++46 8) 611 48 43
Telex 00000 XXXXXX S
76
CREDIT LYONNAIS FRANCE BANKFILIAL
By: X. XXXXXXXX
Address: X.X. Xxx 00000
X-000 00 Xxxxxxxxx
XXXXXX
Tel: (++ 46 8) 000 00 00
Fax: (++ 46 8) 611 13 94
Telex: 12540 CRELYON S
THE MITSUBISHI BANK, LIMITED
By: X. XXXXXXXX
Address: 0 Xxxxxxxxx, Xxxxxx Xxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (++44 171) 000 0000
Fax: (++44 171) 334 0140
Telex: 8958931 BISHBK G
THE SANWA BANK, LIMITED
By: X. XXXXXXXX
Address: X.X. Xxx 00
Xxxx Xxxxx House
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
XXXXXXX
Tel: (++44 171) 000 0000
Fax: (++44 171) 330 5555
Telex: 888350
77
SCOTIABANK (IRELAND) LIMITED
By: X. XXXXXXXX
Address: IFSC House
Xxxxxx Xxxxx Xxxx
Xxxxxx 0
XXXXXXX
Tel: (++353 1) 0000000
Fax: (++353 1) 6700684
Telex: 91861
78
