AGREEMENT DATED 6 AUGUST, 2010 MULTICURRENCY REVOLVING CREDIT FACILITY FOR ARRANGED BY COMMERZBANK Aktiengesellschaft, pobočka zahraničnej banky, Bratislava, ING Bank N.V., pobočka zahraničnej banky, and Slovenská sporiteľňa, a.s. - as Mandated Lead...
EXECUTION
COPY
MULTICURRENCY
REVOLVING CREDIT FACILITY
FOR
U.
S. Steel Košice, s.r.o.
ARRANGED
BY
COMMERZBANK
Aktiengesellschaft, pobočka zahraničnej banky, Bratislava,
ING
Bank N.V., pobočka zahraničnej banky,
and
Slovenská
sporiteľňa, a.s.
- as
Mandated Lead Arrangers -
AND
Citibank
Europe plc, pobočka zahraničnej banky
and
HSBC Bank plc,
pobočka zahraničnej banky
- as Lead
Arrangers -
WITH
ING
Bank N.V., pobočka zahraničnej banky
as
Facility Agent
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0040772-0000059
BT:601674.7
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CONTENTS
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Clause
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Page
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1.
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Interpretation
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2
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2.
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Facility
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15
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3.
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Purpose
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15
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4.
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Conditions
precedent
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15
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5.
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Utilisation
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16
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6.
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Optional
Currencies
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17
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7.
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Repayment
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19
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8.
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Prepayment
and cancellation
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19
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9.
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Interest
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24
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10.
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Terms
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25
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11.
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Market
disruption
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25
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12.
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Taxes
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26
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13.
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Increased
Costs
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28
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14.
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Mitigation
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28
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15.
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Payments
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29
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16.
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Representations
and warranties
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31
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17.
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Information
covenants
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35
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18.
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General
covenants
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38
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19.
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Default
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40
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20.
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The
Administrative Parties
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42
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21.
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Evidence
and calculations
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47
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22.
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Fees
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48
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23.
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Indemnities
and Break Costs
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48
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24.
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Expenses
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50
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25.
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Amendments
and waivers
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50
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26.
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Changes
to the Parties
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51
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27.
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Disclosure
of information
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55
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28.
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Set-off
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56
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29.
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Pro
Rata Sharing
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56
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30.
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Severability
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58
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31.
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Counterparts
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58
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32.
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Notices
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58
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33.
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Language
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59
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34.
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Governing
law
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59
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35.
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Enforcement
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59
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Schedules
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1.
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Original
Parties
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62
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2.
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Conditions
precedent documents
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63
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3.
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Form
of Request
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64
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4.
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Form
of Transfer Certificate
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65
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5.
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Form
of Legal opinion of legal adviser to the Company
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67
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6.
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Form
of English legal opinion
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72
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7.
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Form
of Slovak legal opinion
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74
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Signatories
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79
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THIS AGREEMENT is dated 6
August, 2010
BETWEEN:
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(1)
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U. S. Steel Košice,
s.r.o. with its registered seat at Xxxxxxx xxxxx X. X. Xxxxx,
Xxxxxx 000 00, Xxxxxx Xxxxxxxx, registered in the Commercial Register of
District Court Košice I, insert No. 11711/V, section Sro, company
identification number (IČO):
36 199 222 as borrower (the Company);
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(2)
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(a)
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COMMERZBANK
Aktiengesellschaft, with its registered seat at Xxxxxxxxxxx 00, 000
00 Xxxxxxxxx xx Xxxx, Xxxxxxx Xxxxxxxx Germany, entered in the Commercial
Register at the District Court Frankfurt am Main under Entry HR B 32000,
acting through its organisational unit COMMERZBANK
Aktiengesellschaft, pobočka zahraničnej banky, Bratislava, with its
seat at Bratislava 1, Xxxxxx 00/X, Xxxxxxxx 000 00, Ident. No.: 30847737,
entered in the Commercial Register of the District Court Bratislava I,
Sec. Po, Insert No. 1121/B;
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(b)
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ING Bank N.V., with its
registered seat at Xxxxxxxxxxxx 000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, a
company limited by shares, registered in the Trade Register of Chamber of
Commerce and Industry for Amsterdam under file No. 33031431 acting through
its organisational unit ING
Bank N.V., pobočka zahraničnej banky, Xxxxxxxxxx 0/X, 000 00
Xxxxxxxxxx, Xxxxxx Xxxxxxxx, Identification No. 30 844 754, registered in
the Commercial register maintained by the District Court of Bratislava I,
in Section Po, inserted file No. 130/B;
and
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(c)
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Slovenská
sporiteľňa, a.s., with its registered seat at Xxxxxxxxxx 00, 000 00
Xxxxxxxxxx, Xxxxxx Xxxxxxxx, Identification No. 00 151 653, registered in
the Commercial register maintained by the District Court of Bratislava I,
in Section Sa, insert No. 601/B
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as
mandated lead arrangers (in this capacity the Mandated Lead Arrangers);
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(3)
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(a)
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Citibank Europe plc,
with its registered seat at North Wall Xxxx 0, Xxxxxx 0, Xxxxxxxx of
Ireland, registered with the Companies Registration Office under No.
132781, acting through its organisational unit Citibank Europe plc,
pobočka zahraničnej banky, with its registered office at Xxxxxxx
xxxx 00, 000 00 Xxxxxxxxxx, Xxxxxx Xxxxxxxx, Identification No. 36 861
260, registered in the Commercial register maintained by the District
Court of Bratislava I, in Section Po, insert No. 1662/B;
and
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(b)
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HSBC Bank plc, with its
registered office at 0 Xxxxxx Xxxxxx, Xxxxxx, X00 0XX, Xxxxxx Xxxxxxx of
Great Britain and Northern Ireland, registered by the Companies House
under number 14259 and acting through its organisational unit HSBC Bank
plc, pobočka zahraničnej banky, with its
registered office at Europeum Business Center, Xxxxx Xxxx 0, 000 00
Xxxxxxxxxx, Identification number (IČO): 35 929 979, registered in the
Commercial Register kept by the District Court Bratislava I, section:
Po, insert No.: 1258/B
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as lead
arrangers (in this capacity the Lead Arrangers, and together with
the Mandated Lead Arrangers the Arrangers);
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(4)
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THE FINANCIAL
INSTITUTIONS listed in Schedule 1 (Original Parties) as
original lenders (the Original Lenders);
and
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1
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(5)
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ING Bank N.V., with its
registered seat at Xxxxxxxxxxxx 000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, a
company limited by shares, registered in the Trade Register of Chamber of
Commerce and Industry for Amsterdam under file No. 33031431 acting through
its organisational unit ING
Bank N.V., pobočka zahraničnej banky, Xxxxxxxxxx 0/X, 000 00
Xxxxxxxxxx, Xxxxxx Xxxxxxxx, Identification No. 30 844 754, registered in
the Commercial register maintained by the District Court of Bratislava I,
in Section Po, inserted file No. 130/B as the agent of the Finance Parties
(in this capacity the Facility
Agent).
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IT IS AGREED as
follows:
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1.
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INTERPRETATION
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1.1
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Definitions
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In this
Agreement:
Administrative Party means the
Arrangers or the Facility Agent.
Affiliate means, in relation
to any person, a Subsidiary or a Holding Company of that person or any other
Subsidiary of that Holding Company.
Assets mean a person's present
and future business, undertaking, properties, assets and revenues (including
without limitation , any uncalled capital).
Availability Period means the
period from and including the date of this Agreement until (but excluding) the
Final Maturity Date.
Break Costs means the amount
(if any) that a Lender is entitled to receive under Clause 23.3 (Break Costs).
Business Day means a day
(other than a Saturday or a Sunday) on which banks are open for general business
in London, in New York and in Bratislava and:
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(a)
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if
on that day a payment in or a purchase of a currency (other than euro) is
to be made, the principal financial centre of the country of that
currency; or
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(b)
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if
on that day a payment in or a purchase of euro is to be made, which is
also a TARGET Day.
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Canadian Dollar means the lawful
currency for the time being of Canada.
Central Bank means the
National Bank of Slovakia.
Centre of Main Interests means
the "centre of main interests" of the Company for the purposes of the Council
Regulation (EC) No 1346/2000 of 29th May, 2000.
Commitment means:
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(a)
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for
an Original Lender, the amount set opposite its name in Schedule 1 (Original Parties) under
the heading "Commitments" and the
amount of any other Commitment it acquires;
and
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(b)
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for
any other Lender, the amount of any Commitment it
acquires,
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to the
extent not cancelled, transferred or reduced under this Agreement.
2
Czech Koruna means the lawful
currency for the time being of the Czech Republic.
Default means:
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(a)
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an
Event of Default; or
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(b)
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an
event or circumstance which, with the giving of notice, lapse of time or
fulfilment of any other applicable condition (or any combination of the
foregoing) set out in Clause 19 (Default), would
constitute an Event of Default.
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Defaulting Lender means any
Lender:
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(a)
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that
has failed to make its share in a Loan available within five Business Days
from the Utilisation Date of that Loan or has notified the Facility Agent
that it will not make its share in a Loan available by the Utilisation
Date of that Loan, in accordance with Clause 5.3 (Advance of Loan);
or
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(b)
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that
is the subject of bankruptcy, insolvency, or similar
proceedings,
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unless,
in case of paragraph (a) of this definition:
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(i)
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the
Lender's failure to pay is caused
by:
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(A)
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a
material disruption to those payment or communications systems or to those
financial markets which are, in each case, required to operate in order
for payments to be made in connection with the Facility (or otherwise in
order for the transactions contemplated by the Finance Documents to be
carried out) which disruption is not caused by, and is beyond the control
of, the Lender; or
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(B)
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the
occurrence of any other event that results in a disruption (of a technical
or systems-related nature) to the treasury or payments operations of the
Lender preventing that Lender:
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I.
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from
performing its payment obligations under the Finance Documents;
or
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II.
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from
communicating with other Parties in accordance with the terms of the
Finance Documents,
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and which
(in either such case) is not caused by, and is beyond the control of, the Lender
whose operations are disrupted;
and the
respective payment is made within 10 Business Days of its due date;
or
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(ii)
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the
Lender is disputing in good faith whether it is legally obliged to make
the payment in question.
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Downgraded Lender means a
Lender:
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(a)
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that:
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(i)
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is
rated by any of: (A) Moody’s Investors Service Limited; (B) Standard &
Poor’s Rating Services; (C) Fitch Ratings Ltd; or (D) other
internationally recognised rating agency;
and
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3
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(ii)
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does
not have or ceases to have a rating of at least: (A) Baa3 (or equivalent),
if rated by Moody’s Investors Service Limited; (B) BBB- (or equivalent),
if rated by Standard & Poor’s Rating Services; (C) BBB- or
equivalent), if rated by Fitch Ratings Ltd; or (D) investment grade
rating, if rated by another internationally recognised rating
agency,
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whereas,
for the avoidance of doubt, if a Lender is not rated by any agency specified in
paragraph (i) above, it shall not be considered a Downgraded Lender pursuant to
this paragraph (a) until it receives a rating non-compliant with paragraph (ii)
above; or
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(b)
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is
a Subsidiary of an entity, which is subject to bankruptcy, insolvency, or
similar proceedings.
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ERISA means the United States
Employee Retirement Income Security Act of 1974, to which the following
definitions apply:
- Code means the United States
Internal Revenue Code of 1986.
- ERISA Affiliate means any person
treated as a single employer with the Company for the purpose of
section 414 of the Code.
- Plan means an employee
benefit plan as defined in section 3(3) of ERISA:
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(a)
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maintained
by the Company or any ERISA Affiliate;
or
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(b)
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to
which the Company or any ERISA Affiliate is required to make any payment
or contribution.
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- Reportable Event
means:
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(c)
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an
event specified as such in section 4043 of ERISA or any related
regulation, other than an event in relation to which the requirement to
give notice of that event is waived by any regulation;
or
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(d)
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a
failure to meet the minimum funding standard under section 412 of the
Code or section 302 of ERISA, whether or not there has been any
waiver of notice or waiver of the minimum funding standard under
section 412 of the Code.
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Establishment means any place
of operations where the Company (as applicable) carries on non-transitory
economic activity with human means and goods, for the purposes of the Council
Regulation (EC) No 1346/2000 of 29th May, 2000.
EURIBOR means for a Term of
any Loan or overdue amount denominated in euro:
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(a)
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the
applicable Screen Rate; or
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(b)
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if
no Screen Rate is available for the Term of that Loan or overdue amount,
the arithmetic mean (rounded upward to four decimal places) of the rates
as supplied to the Facility Agent at its request quoted by the Reference
Banks to leading banks in the European interbank
market,
|
as of
11.00 a.m. on the Rate Fixing Day for the offering of deposits in euro for
a period comparable to the Term of that Loan.
4
euro or EUR or € means the single currency
of the Participating Member States.
Event of Default means an
event specified as such in Clause 19 (Default).
Existing Facility A means the
credit facility made available under the Existing Facility Agreement
A.
Existing Facility B means the
credit facility made available under the Existing Facility Agreement
B.
Existing Facility Agreement A means the facility
agreement on EUR 200,000,000 credit facility dated 2 July 2008 and entered into
between (inter alia)
the Company as borrower, COMMERZBANK Aktiengesellschaft, pobočka
zahraničnej banky, Bratislava, ING Bank N.V., pobočka zahraničnej banky and
Slovenská sporiteľňa, a.s. as mandated lead arrangers and lenders,
Citibank NA, Bahrain and HSBC Bank plc, pobočka
zahraničnej banky as lead arrangers, and ING Bank N.V., London Branch as
facility agent.
Existing
Facility Agreement
B means the
facility agreement on EUR 40,000,000 credit facility dated 8 October 2009 and
entered into between (inter
alia) the
Company as borrower, Citibank Europe plc, pobočka zahraničnej banky, ING
Bank N.V., pobočka zahraničnej banky, and Slovenská
sporiteľňa, a.s. as arrangers
and Citibank Europe plc, pobočka zahraničnej banky as facility agent.
Facility means the credit
facility made available under this Agreement.
Facility Office means the
office(s) notified by a Lender to the Facility Agent:
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(a)
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on
or before the date it becomes a Lender;
or
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(b)
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by
not less than five Business Days'
notice,
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as the
office(s) through which it will perform its obligations under this
Agreement.
Fee Letter means any letter
entered into by reference to this Agreement between one or more Administrative
Parties and the Company setting out the amount of certain fees referred to in
this Agreement.
Final Maturity Date means the
third anniversary of the date of this Agreement.
Finance Document
means:
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(a)
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this
Agreement;
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(b)
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a
Fee Letter;
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(c)
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a
Transfer Certificate; or
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(d)
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any
other document designated as such by the Facility Agent and the
Company.
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Finance Party means a Lender
or an Administrative Party.
Financial Indebtedness means,
without duplication, Indebtedness (whether being principal, premium, interest or
other amounts) for or in respect of:
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(a)
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money
borrowed;
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5
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(b)
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liabilities
under or in respect of any acceptance or acceptance
credit;
|
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(c)
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any
notes, bonds, debentures, debenture stock, loan stock or other debt
securities offered, issued or distributed whether by way of public offer,
private placing, acquisition consideration or otherwise and whether issued
for cash or in whole or in part for a consideration other than
cash;
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(d)
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any
interest rate and/or currency swap, forward foreign exchange transaction,
financial or commodity futures transaction, commodity swap or other
derivative transaction (and, when calculating the value of any of the
foregoing transactions, only the net amount of the marked to market value
shall be taken into account, to the extent such netting is
permitted);
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(e)
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liabilities
pursuant to any lease which are capitalised in accordance with USGAAP;
or
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(f)
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liabilities
under any guarantee, indemnity or other assurance against financial loss
given in relation to any of the
foregoing.
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Group means the Company and
its Subsidiaries.
Holding Company of any other
person, means an entity in respect of which that other person is a
Subsidiary.
IBOR means EURIBOR, LIBOR, or
PRIBOR.
Increased Cost
means:
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(a)
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an
additional or increased cost;
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(b)
|
a
reduction in the rate of return from a Facility or on a Finance Party's
(or its Holding Company's) overall capital;
or
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|
(c)
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a
reduction of an amount due and payable under any Finance
Document,
|
that is
incurred or suffered by a Finance Party or its Holding Company but only to the
extent attributable to that Finance Party having entered into any Finance
Document or funding or performing its obligations under any Finance
Document.
Indebtedness means any
obligation for the payment or repayment of money in whatever currency
denominated, whether as principal or as surety and whether present or future,
actual, deferred or contingent.
Interest Payment Date has the
meaning given to it in Clause 9.2 (Payment of
Interest).
Latest Accounts means the
audited consolidated financial statements of the Group last delivered to the
Facility Agent under Clause 17.2 (Financial
information).
Lender means:
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(a)
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an
Original Lender; or
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6
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(b)
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any
person that becomes a Lender after the date of this
Agreement.
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LIBOR means for a Term of any
Loan or overdue amount denominated in US Dollars or Canadian
Dollars:
|
(a)
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the
applicable Screen Rate; or
|
|
|
(b)
|
if
no Screen Rate is available for US Dollars or Canadian Dollars (as
applicable) or the Term of that Loan or overdue amount, the arithmetic
mean (rounded upward to four decimal places) of the rates, as supplied to
the Facility Agent at its request, quoted by the Reference Banks to
leading banks in the London interbank
market,
|
as of
noon on the Rate Fixing Day for the offering of deposits in US Dollars or
Canadian Dollars (as applicable) for a period comparable to the Term of that
Loan.
Loan means, unless otherwise
stated in this Agreement, the principal amount of each borrowing under this
Agreement or the principal amount outstanding of that borrowing.
Majority Lenders means, at any
time, Lenders:
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(a)
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whose
share in the outstanding Loans and whose undrawn Commitments then
aggregate 662/3 per
cent. or more of the aggregate of all the outstanding Loans and the
undrawn Commitments of all the
Lenders;
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(b)
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if
there is no Loan then outstanding, whose undrawn Commitments then
aggregate 662/3 per
cent. or more of the Total Commitments;
or
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(c)
|
if
there is no Loan then outstanding and the Total Commitments have been
reduced to zero, whose Commitments aggregated 662/3 per
cent. or more of the Total Commitments immediately before the
reduction.
|
Mandatory Cost means the cost
as reasonably determined by a Lender, imputed to that Lender of compliance
with:
|
|
(a)
|
any
banking supervision or other costs imposed by the Bank of England or the
United Kingdom Financial Services Authority;
and
|
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|
(b)
|
any
other applicable regulatory or central bank requirements relating to any
Loan, including any reserve asset requirements of the European Central
Bank or the Central Bank.
|
Margin means 2.50 per cent.
per annum.
Margin Regulations means
Regulations U and X issued by the Board of Governors of the United States
Federal Reserve System.
Margin Stock has the meaning
given to it in the Margin Regulations.
Maturity Date means the last
day of the Term of a Loan.
Participating Member State
means a member state of the European Communities that adopts or has adopted the
euro as its lawful currency under the legislation of the European Community for
Economic Monetary Union.
Party means a party to this
Agreement.
7
Permitted Disposal means any
of the following:
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(a)
|
disposals
of Assets in the ordinary course of trading at arms'
length;
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(b)
|
disposals
on normal commercial terms of obsolete Assets or Assets no longer used or
useful in the Company’s business;
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|
(c)
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payment
of cash as consideration for the acquisition of any Asset on normal
commercial terms;
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(d)
|
temporary
application of funds not immediately required in the Company’s business
for the purchase of investments or the realisation of such
investments;
|
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(e)
|
exchange
of Assets for other assets of a similar nature and value, or the sale of
Assets on normal commercial terms for cash that is payable in full on
completion of the sale and is to be, and is, applied toward the purchase
of similar Assets within six
months;
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(f)
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disposals
of Assets located outside the
Republic;
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(g)
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any
disposal that the Facility Agent agrees in writing is a Permitted
Disposal; and
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(h)
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any
disposal approved in writing by the Majority
Lenders.
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Permitted Merger
means:
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(a)
|
a
merger of any Subsidiary of the Company into the Company, such that the
Company acquires all the assets and liabilities of such Subsidiary and the
Company is the surviving legal entity, provided the Company's post-merger
consolidated net worth equals or exceeds the immediately preceding
pre-merger consolidated net worth of the Company and that Subsidiary as
determined on the basis of accounting principles and practices consistent
with the preparation of the Latest
Accounts;
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|
(b)
|
any
other merger or corporate restructuring approved in advance in writing by
the Facility Agent (acting on the instructions of the Majority
Lenders);
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|
(c)
|
a
merger of any Subsidiary of U. S. Steel into the Company, such that the
Company acquires all the assets and liabilities of such Subsidiary and the
Company is the surviving legal entity, provided the Company's post-merger
consolidated net worth equals or exceeds the immediately preceding
pre-merger consolidated net worth of the Company and that Subsidiary as
determined on the basis of accounting principles and practices consistent
with the preparation of the Latest
Accounts.
|
Permitted Security Interest
means any of the following:
|
|
(a)
|
Security
Interests existing on the date of this Agreement and disclosed to the
Facility Agent in writing;
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(b)
|
any
Security Interests incurred in connection with the acquisition of any
asset, the assumption of any Security Interest previously existing on such
acquired asset or any Security Interest existing on any asset of any
person when it becomes a Subsidiary of the Company in each case provided
that the Indebtedness secured by such Security Interest does not exceed
the fair market value of that asset as at the date of that
acquisition;
|
8
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(c)
|
easements,
rights-of-way, minor defects or irregularities in title and other similar
encumbrances on real property having no material adverse effect on the
then current use or value of such real property, or on the then current
conduct of the business of any member of the
Group;
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(d)
|
unexercised
liens for taxes not being delinquent or contested in good faith by
appropriate proceedings and for which reserves, adequate under USGAAP, are
being maintained;
|
|
|
(e)
|
any
Security Interest on equipment of the Company arising solely under leases
of such equipment that, in accordance with USGAAP, are required to be
capitalised, provided that any such Security Interest extends to no other
property and secures no other Indebtedness and the Indebtedness secured by
any such Security Interest does not exceed the fair market value of such
equipment;
|
|
|
(f)
|
purchase
money Security Interests on equipment acquired by the Company after the
date hereof incurred simultaneously with or within 180 days after the
completion of installation thereof solely to secure payment of all or part
of the purchase price thereof provided that each such Security Interest
secures no other Indebtedness and extends to no other property and the
Indebtedness secured by any such Security Interest does not exceed the
fair market value of such
equipment;
|
|
|
(g)
|
liens
arising solely by operation of law (or by an agreement evidencing the
same) in the ordinary course of Company's business in respect of
Indebtedness that either: (i) has been due for less than 90 days; or
(ii) is being contested in good faith by appropriate means and for
which reserves, adequate under USGAAP, are being
maintained;
|
|
|
(h)
|
Security
Interests arising out of title retention provisions in a supplier's
standard conditions of supply of goods acquired by Company in the ordinary
course of its business;
|
|
|
(i)
|
any
Security Interest approved by the Facility Agent with the approval of the
Majority Lenders;
|
|
|
(j)
|
liens
in favour of financial institutions arising from documentary letters of
credit in the ordinary course of business;
and
|
|
|
(k)
|
any
renewal of or substitution for any Security Interest permitted under any
preceding paragraph; and
|
|
|
(l)
|
liens
arising in the ordinary course of business in connection with: (i) the
performance of bids, trade contracts, (to the extent not covered by
sub-clause (b) of this definition), leases (to the extent a lease
constitutes a finance lease and not an operating lease), statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature; (ii) deposit accounts; and (iii) deposits
made in the ordinary course of business to cash collateralized letters of
credit, provided that the aggregate book value of Assets to which the
liens described in this Subclause (l) are attached does not exceed euro
50,000,000 or its equivalent at any time; provided, however, the maximum
amount under this sub-clause (l) does not apply to cash deposits that are
subject to any bank's general right of set-off but does apply in
situations where a specific security agreement exists, including, without
limitation, any specific security interest providing a creditor with the
treatment of a secured creditor with a right to separate satisfaction of
its claim under the Slovak Act No. 7/2005 Coll., on bankruptcy and
restructuring (as amended) or any similar right to separate satisfaction
in case of bankruptcy or similar proceedings under any applicable
laws.
|
9
PRIBOR means for a Term of any
Loan or overdue amount denominated in Czech Koruna:
|
|
(a)
|
the
applicable Screen Rate; or
|
|
|
(b)
|
if
no Screen Rate is available for Czech Koruna or the Term of that Loan or
overdue amount, the arithmetic mean (rounded upward to four decimal
places) of the rates, as supplied to the Facility Agent at its request,
quoted by the Reference Banks to leading banks in the Prague interbank
market,
|
as of
11.00 a.m. on the Rate Fixing Day for the offering of deposits in Czech Koruna
for a period comparable to the Term of that Loan.
Pro Rata Share
means:
|
|
(a)
|
for
the purpose of determining a Lender's share in a utilisation of the
Facility, the proportion which its Commitment bears to the Total
Commitments; and
|
|
|
(b)
|
for
any other purpose on a particular
date:
|
|
|
(i)
|
the
proportion which a Lender's share of the Loans (if any) bears to all the
Loans;
|
|
|
(ii)
|
if
there is no Loan outstanding on that date, the proportion which its
Commitment bears to the Total Commitments on that date;
or
|
|
|
(iii)
|
if
the Total Commitments have been cancelled, the proportion which its
Commitment bore to the Total Commitments immediately before being
cancelled.
|
Rate Fixing Day
means:
|
|
(a)
|
the
second Business Day before the first day of a Term for a Loan denominated
in any currency other than euro; or
|
|
|
(b)
|
the
second TARGET Day before the first day of a Term for a Loan denominated in
euro,
|
or such
other day as the Facility Agent determines is generally treated as the rate
fixing day by market practice in the relevant interbank market.
Reference Banks means the
Facility Agent, and any other bank or financial institution appointed as such by
the Facility Agent under this Agreement.
Relevant Taxes means Taxes
imposed or levied by the Republic (or any political subdivision or taxing
authority of the Republic) or by any other jurisdiction from or through which
any payment is made by the Company under the Finance Document, but excludes
Taxes imposed by the Republic which are so imposed as a direct consequence of
the relevant Finance Party maintaining a permanent establishment in the Republic
and of that establishment being directly involved in any Loan.
10
Repeating Representations
means the representations and warranties that are then made or deemed to be
repeated under Clause 16.21 (Times for making representations and
warranties).
Republic means the Slovak
Republic.
Request means a request for a
Loan, substantially in the form of Schedule 3 (Form of
Request).
Rollover Loan means one or
more Loans:
|
|
(a)
|
to
be made on the same day that a maturing Loan is due to be
repaid;
|
|
|
(b)
|
the
aggregate amount of which is equal to or less than the maturing
Loan;
|
|
|
(c)
|
in
the same currency as the maturing Loan;
and
|
|
|
(d)
|
to
be made for the purpose of refinancing a maturing
Loan.
|
Screen Rate means, for the
relevant currency and Term:
|
|
(a)
|
for
LIBOR, the London Interbank Offered Rate as displayed on Reuters page
LIBOR01;
|
|
|
(b)
|
for
EURIBOR, the Euro Interbank Offered Rate as displayed on Reuters page
LIBOR01;
|
|
|
(c)
|
for
PRIBOR, the Prague Interbank Offered Rate as displayed on Reuters page
PRIBOR01;
|
provided
that if the relevant page is replaced or the service ceases to be available, the
Facility Agent (after consultation with the Company and the Lenders) may specify
another page or service displaying the appropriate rate.
Security Interest means any
mortgage, pledge, lien, charge (including a floating charge), assignment
(whether conditional or otherwise), hypothecation or security interest or any
other agreement or arrangement having the effect of conferring security, or any
other arrangement having a similar economic effect including (without
limitation) total transfer, 'flawed asset', sale and repurchase, buyback or
conditional transfer arrangements.
Specified Lender means a
Defaulting Lender or a Downgraded Lender.
Subsidiary means an entity of
which a person has direct or indirect control or owns directly or indirectly
more than 50 per cent. of the voting capital or similar right of ownership and
control for this purpose
means the power to direct the management and the policies of the entity whether
through the ownership of voting capital, by contract or otherwise.
TARGET2 means the
Trans-European Automated Real-time Gross Settlement Express Transfer payment
system which utilises a single shared platform and which was launched on 19
November 2007.
TARGET Day means any day on
which TARGET2 is open for the settlement of payments in euro.
11
Tax means any tax, levy,
impost, duty or other charge or withholding of a similar nature (including any
related penalty or interest).
Tax Deduction means a
deduction or withholding for or on account of Tax from a payment under a Finance
Document.
Tax Payment means a payment
made by the Company to a Finance Party in any way relating to a Tax Deduction or
under any indemnity given by the Company in respect of Tax under any Finance
Document.
Term means each period
determined under this Agreement by reference to which interest on a Loan or an
overdue amount is calculated.
Total Commitments means the
aggregate of the Commitments of all the Lenders.
Transfer Certificate means a
certificate, substantially in the form of Schedule 4 (Form of Transfer
Certificate), with such amendments as the Facility Agent may approve or
reasonably require or any other form agreed between the Facility Agent and the
Company.
U.K. means the United
Kingdom.
US Dollars or USD mean the lawful currency
for the time being of the United States of America.
USGAAP means the generally
accepted accounting principles and practices in the United States of America in
effect from time to time.
U. S. Steel means United
States Steel Corporation, currently a corporation organized under the laws of
the State of Delaware, U.S.A., Delaware registration number
3396733.
Utilisation Date means each
date on which the Facility is utilised.
|
1.2
|
Construction
|
|
(a)
|
In
this Agreement, unless the contrary intention appears, a reference
to:
|
|
|
(i)
|
an
amendment includes
a supplement, novation, restatement or re-enactment and amended will be
construed accordingly;
|
|
|
(ii)
|
assets means assets as
defined in the Latest Accounts;
|
|
|
(iii)
|
an
authorisation
includes an authorisation, consent, approval, resolution, licence,
exemption, filing, registration or
notarisation;
|
|
|
(iv)
|
disposal means a sale,
transfer, grant, lease or other disposal, whether voluntary or
involuntary, and dispose will be
construed accordingly;
|
|
|
(v)
|
indebtedness includes
any obligation (whether incurred as principal or as surety) for the
payment or repayment of money;
|
|
|
(vi)
|
know your customer requirements are the
identification checks that a Finance Party requests in order to meet its
obligations under any applicable law or regulation to identify a person
who is (or is to become) its
customer;
|
12
|
|
(vii)
|
a
person includes
any individual, company, corporation, unincorporated association or body
(including without limitation a partnership, trust, joint venture or
consortium), government, state, agency, organisation or other entity
whether or not having separate legal
personality;
|
|
|
(viii)
|
a
regulation
includes any regulation, rule, official directive, request or guideline
(whether or not having the force of law but, if not having the force of
law, being of a type with which any person to which it applies is
accustomed to comply) of any governmental, inter-governmental or
supranational body, agency, department or regulatory, self-regulatory or
other authority or organisation;
|
|
|
(ix)
|
a
currency is a reference to the lawful currency for the time being of the
relevant country;
|
|
|
(x)
|
a
Default being outstanding means that
it has not been remedied or waived;
|
|
|
(xi)
|
a
provision of law is a reference to that provision as extended, applied,
amended or re-enacted and includes any subordinate
legislation;
|
|
|
(xii)
|
a
Clause, a Subclause or a Schedule is a reference to a clause or subclause
of, or a schedule to, this
Agreement;
|
|
|
(xiii)
|
a
Party or any other person includes its successors in title, permitted
assigns and permitted transferees;
|
|
|
(xiv)
|
a
Finance Document or another document is a reference to that Finance
Document or other document as
amended;
|
|
|
(xv)
|
the
word “will” shall be construed to have the same meaning and effect as the
word “shall”; and
|
|
|
(xvi)
|
a
time of day is a reference to Central European time (i.e. CET or CEST, as
applicable in the given time of the
year).
|
|
(b)
|
Unless
the contrary intention appears, a reference to a month is a reference to
a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month or the calendar
month in which it is to end, except
that:
|
|
|
(i)
|
if
the numerically corresponding day is not a Business Day, the period will
end on the next Business Day in that month (if there is one) or the
preceding Business Day (if there is
not);
|
|
|
(ii)
|
if
there is no numerically corresponding day in that month, that period will
end on the last Business Day in that month;
and
|
|
|
(iii)
|
notwithstanding
sub-paragraph (i) of this Clause 1.2(b), a period which commences on the
last Business Day of a month will end on the last Business Day in the next
month or the calendar month in which it is to end, as
appropriate.
|
|
(c)
|
Unless
expressly provided to the contrary in a Finance Document, a person who is
not a party to a Finance Document may not enforce any of its terms under
the Contracts (Rights of Third Parties) Xxx 0000 and, notwithstanding any
term of any Finance Document, no consent of any third party is required
for any amendment (including, without limitation, any release or
compromise of any liability) or termination of any Finance
Document.
|
13
|
(d)
|
Unless
the contrary intention appears:
|
|
|
(i)
|
a
reference to a Party will not include that Party if it has ceased to be a
Party under this Agreement;
|
|
|
(ii)
|
a
word or expression used in any other Finance Document or in any notice
given in connection with any Finance Document has the same meaning in that
Finance Document or notice as in this
Agreement;
|
|
|
(iii)
|
if
there is an inconsistency between this Agreement and any other Finance
Document, this Agreement will
prevail;
|
|
|
(iv)
|
any
non-payment obligations of the Company under the Finance Documents remain
in force for so long as any payment obligation of the Company is or may be
outstanding under the Finance Documents;
and
|
|
|
(v)
|
an
accounting term used in this Agreement is to be construed in accordance
with USGAAP.
|
|
(e)
|
The
headings in this Agreement do not affect its
interpretation.
|
|
1.3
|
Slovak
terms
|
In this
Agreement and any other Finance Document (except if expressly stipulated
otherwise in the relevant Finance Document), a reference to:
|
|
(a)
|
a
novation
includes privatívna novácia and
kumulatívna
novácia;
|
|
|
(b)
|
a
Security Interest
includes záložné
právo, zádržné
právo, zabezpečovací
prevod práva, and zabezpečovacie
postúpenie pohľadávky;
|
|
|
(c)
|
a
bankruptcy, insolvency or administration
includes konkurzné
konanie, konkurz, reštrukturalizačné
konanie,
reštrukturalizácia, and
nútená
správa;
|
|
|
(d)
|
being
bankrupt or insolvent includes being
v úpadku, predlžený, platobne neschopný,
v konkurze, v reštrukturalizácii,
and v nútenej
správe;
|
|
|
(e)
|
an
expropriation,
attachment, sequestration, distress, execution or analogous process
includes vyvlastnenie, exekúcia and výkon
rozhodnutia;
|
|
|
(f)
|
winding up, administration
or dissolution
includes likvidácia, zrušenie s likvidáciou,
zrušenie bez likvidácie
bez právneho nástupcu, konkurzné konanie,
konkurz, reštrukturalizačné
konanie, reštrukturalizácia,
and nútená
správa;
|
|
|
(g)
|
a
receiver, administrator,
administrative receiver, compulsory manager or similar officer includes
likvidátor, konkurzný správca
(including predbežný správca),
reštrukturalizačný správca, nútený správca, and
súdny
exekútor;
|
|
|
(h)
|
a
moratorium
includes reštrukturalizačné
konanie and reštrukturalizácia;
and
|
|
|
(i)
|
constitutional
documents includes
spoločenská
zmluva,
zakladateľská
listina, zakladateľská
zmluva,
zriaďovacia
listina, štatút, and stanovy.
|
14
|
2.
|
FACILITY
|
|
2.1
|
Facility
|
Subject
to the terms of this Agreement, the Lenders make available to the Company a
revolving credit facility in an aggregate amount equal to the Total
Commitments.
|
2.2
|
Nature
of a Finance Party's rights and
obligations
|
Unless
all the Finance Parties agree otherwise:
|
|
(a)
|
the
obligations of a Finance Party under the Finance Documents are
several;
|
|
|
(b)
|
failure
by a Finance Party to perform its obligations does not affect the
obligations of any other person under the Finance
Documents;
|
|
|
(c)
|
no
Finance Party is responsible for the obligations of any other Finance
Party under the Finance Documents;
|
|
|
(d)
|
the
rights of a Finance Party under the Finance Documents are separate and
independent rights;
|
|
|
(e)
|
a
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce those rights;
and
|
|
|
(f)
|
a
debt arising under the Finance Documents to a Finance Party is a separate
and independent debt.
|
|
3.
|
PURPOSE
|
|
3.1
|
Loans
|
Each Loan
may be used for general corporate purposes.
|
3.2
|
No
obligation to monitor
|
No
Finance Party is bound to monitor or verify the utilisation of the
Facility.
|
4.
|
CONDITIONS
PRECEDENT
|
|
4.1
|
Conditions
precedent documents
|
A Request
may not be given until the Facility Agent has notified the Company and the
Lenders that it has received all of the documents and evidence set out in
Schedule 2 (Conditions
precedent documents) in form and substance satisfactory to the Facility
Agent. The Facility Agent must give this notification to the Company
and the Lenders promptly upon being so satisfied.
|
4.2
|
Further
conditions precedent
|
|
(a)
|
The
first Request may not be given:
|
|
|
(i)
|
if
there are any borrowings under the Existing Facility A outstanding or to
be outstanding on both the date of the Request and the Utilisation Date,
until such outstanding borrowings are repaid or prepaid in whole by the
Company on or before the Utilisation Date in accordance with the terms of
the Existing Facility Agreement A;
and
|
15
|
|
(ii)
|
if
there are any amounts of any commitments of the lenders under the Existing
Facility A unutilised on both the date of the Request and the Utilisation
Date, until such unutilised amounts of such commitments are irrevocably
cancelled in whole by the Company on or before the Utilisation Date in
accordance with the terms of the Existing Facility Agreement
A.
|
|
(b)
|
The
obligations of each Lender to participate in any Loan are subject to the
further conditions precedent that on both the date of the Request and the
Utilisation Date for that Loan:
|
|
|
(i)
|
the
Repeating Representations are correct in all material respects;
and
|
|
|
(ii)
|
no
Default or, in the case of a Rollover Loan, no Event of Default is
outstanding or would result from the
Loan.
|
|
4.3
|
Drawstop
|
A Request
may not be made in any case where the Company is in default under the Existing
Facility B of any payment obligation (or payment obligations in aggregate) in an
amount equal to or in excess of EUR 500,000 or its equivalent in other
currencies (a Drawstop
Event). Following a Drawstop Event, no further Requests may be
made until the Facility Agent notifies the Company in writing that it may submit
a Request. The Facility Agent shall so notify the Company promptly after the
Facility Agent receives evidence reasonably satisfactory to it that such default
or defaults: (i) are no longer outstanding; or (ii) are waived in accordance
with the Existing Facility Agreement B; or (iii) a combination of (i) and (ii),
whereby, following such waivers (if any), such default or defaults (if any) are
in aggregate in an amount less than EUR 500,000 or its equivalent in other
currencies.
|
4.4
|
Maximum
number of Loans
|
Unless
the Facility Agent agrees, a Request may not be given if, as a result, there
would be more than five Loans outstanding.
|
5.
|
UTILISATION
|
|
5.1
|
Giving
of Requests
|
|
(a)
|
The
Company may borrow a Loan by giving to the Facility Agent a duly completed
Request.
|
|
(b)
|
Unless
the Facility Agent otherwise agrees, the latest time for receipt by the
Facility Agent of a duly completed Request is 11.00 a.m. one Business Day
before the Rate Fixing Day for the proposed
borrowing.
|
|
(c)
|
Each
Request is irrevocable unless otherwise agreed by the Facility Agent upon
the approval of the Majority
Lenders.
|
|
5.2
|
Completion
of Requests
|
A Request
will not be regarded as having been duly completed unless:
|
|
(a)
|
the
Utilisation Date is a Business Day falling within the Availability
Period;
|
|
|
(b)
|
the
amount of the Loan requested is:
|
16
|
|
(i)
|
a
minimum of €5,000,000 and an integral multiple of €250,000 or an amount
which complies with Clause 6 (Optional
Currencies);
|
|
|
(ii)
|
the
maximum undrawn amount available under the Facility on the proposed
Utilisation Date; or
|
|
|
(iii)
|
such
other amount as the Facility Agent may agree;
and
|
|
|
(c)
|
the
proposed currency and Term comply with this
Agreement.
|
Only one
Loan may be requested in a Request.
|
5.3
|
Advance
of Loan
|
|
(a)
|
The
Facility Agent must promptly notify each Lender of the details of the
requested Loan and the amount of its share in that
Loan.
|
|
(b)
|
The
amount of each Lender’s share of the requested Loan will be its Pro Rata
Share on the proposed Utilisation
Date.
|
|
(c)
|
No
Lender is obliged to participate in a Loan if, as a
result:
|
|
|
(i)
|
its
share in the Loans would exceed its Commitment;
or
|
|
|
(ii)
|
the
Loans would exceed the Total
Commitments.
|
|
(d)
|
If
the conditions set out in this Agreement have been met, each Lender must
make its share in the requested Loan available to the Facility Agent for
the Company through its Facility Office on the Utilisation
Date.
|
|
6.
|
OPTIONAL
CURRENCIES
|
|
6.1
|
General
|
In this
Clause:
Agent's Spot Rate of Exchange
means the Facility Agent's spot rate of exchange for the purchase of the
relevant currency in the London foreign exchange market with euros as of noon on
a particular day.
euro amount of a Loan or part of a
Loan means:
|
|
(a)
|
if
the Loan is denominated in euros, its amount;
or
|
|
|
(b)
|
if
the Loan is denominated in an Optional Currency, its equivalent in euros
calculated on the basis of the Facility Agent's Spot Rate of Exchange one
Business Day before the Rate Fixing Day for that
Term.
|
Optional Currency means any
currency (other than euros) in which a Loan may be denominated under this
Agreement.
|
6.2
|
Selection
|
|
(a)
|
The
Company must select the currency of a Loan in its
Request.
|
17
|
(b)
|
The
amount of a Loan requested in an Optional Currency must be a minimum
amount of the equivalent of €5,000,000 in the Optional Currency and in
integral multiples of the equivalent of €250,000 in the Optional
Currency.
|
|
(c)
|
Unless
the Facility Agent otherwise agrees, the Loans may not be denominated at
any one time in more than four
currencies.
|
|
6.3
|
Conditions
relating to Optional Currencies
|
|
(a)
|
A
Loan may be denominated in an Optional Currency for a Term
if:
|
|
|
(i)
|
that
Optional Currency is readily available in the amount required and freely
convertible into euros in the relevant interbank market on the Rate Fixing
Day and the first day of that Term;
and
|
|
|
(ii)
|
that
Optional Currency is Canadian Dollars, Czech Koruna or US Dollars or has
been previously approved by the Facility Agent (acting on the instructions
of all the Lenders).
|
|
(b)
|
If
the Facility Agent has received a request from the Company for a currency
(other than the Optional Currency specified in Clause 6.3(a)(ii)) to be
approved as an Optional Currency, the Facility Agent must, within five
Business Days, confirm to the
Company:
|
|
|
(i)
|
whether
or not the Lenders have given their approval;
and
|
|
|
(ii)
|
if
approval has been given, the minimum amount (and, if required, integral
multiples) for any Loan in that
currency.
|
|
6.4
|
Revocation
of currency
|
|
(a)
|
Notwithstanding
any other term of this Agreement, if before 9.30 a.m. on any Rate
Fixing Day the Facility Agent receives notice from a Lender
that:
|
|
|
(i)
|
the
Optional Currency requested is not readily available to it in the relevant
interbank market in the amount and for the period required;
or
|
|
|
(ii)
|
participating
in a Loan in the proposed Optional Currency might contravene any law or
regulation applicable to it,
|
the
Facility Agent must give notice to the Company to that effect promptly and in
any event before noon on that day.
|
(b)
|
In
this event:
|
|
|
(i)
|
that
Lender must participate in the Loan in euros;
and
|
|
|
(ii)
|
the
share of that Lender in the Loan and any other similarly affected
Lender(s) will be treated as a separate Loan denominated in euros during
that Term.
|
|
(c)
|
Any
part of a Loan treated as a separate Loan under this Subclause will not be
taken into account for the purposes of any limit on the number of Loans or
currencies outstanding at any one
time.
|
|
(d)
|
A
Loan will still be treated as a Rollover Loan if it is not denominated in
the same currency as the maturing Loan by reason only of the operation of
this Subclause.
|
18
|
6.5
|
Optional
Currency equivalents
|
The
equivalent in euros of a Loan or part of a Loan in an Optional Currency for the
purposes of calculating:
|
|
(a)
|
whether
any limit under this Agreement has been
exceeded;
|
|
|
(b)
|
the
amount of a Loan;
|
|
|
(c)
|
the
share of a Lender in a Loan;
|
|
|
(d)
|
the
amount of any repayment or prepayment of a Loan;
or
|
|
|
(e)
|
the
undrawn amount of a Lender's
Commitment,
|
is its
euro amount.
|
6.6
|
Notification
|
The
Facility Agent must notify the Lenders and the Company of the relevant euro
amount (and the applicable Agent's Spot Rate of Exchange) promptly after they
are ascertained.
|
7.
|
REPAYMENT
|
|
(a)
|
The
Company must repay each Loan made to it in full on its Maturity
Date.
|
|
(b)
|
Where
the Maturity Date for an outstanding Loan coincides with the Utilisation
Date for a new Loan to be denominated in the same currency as the
outstanding Loan, the Facility Agent will apply the new Loan in or towards
repayment of the outstanding Loan so
that:
|
|
|
(i)
|
where
the amount of the outstanding Loan exceeds the amount of the new Loan, the
Company will only be required to repay the
excess;
|
|
|
(ii)
|
where
the amount of the outstanding Loan is exactly the same as the amount of
the new Loan, the Company will not be required to make any
payment;
|
|
|
(iii)
|
where
the amount of the new Loan exceeds the amount of the outstanding Loan, the
Company will not be required to make any payment and the excess will be
advanced to the Company,
|
provided
that nothing in this paragraph (b) shall have the effect or be deemed to have
the effect of converting the whole of the Loan or any part of it into a term
loan.
|
(c)
|
Subject
to the other terms of this Agreement, any amounts repaid under paragraph
7(a) may be re-borrowed.
|
|
8.
|
PREPAYMENT
AND CANCELLATION
|
|
8.1
|
Mandatory
prepayment - illegality
|
|
(a)
|
If
at any time:
|
|
|
(i)
|
it
is necessary under the laws and constitution of the
Republic:
|
|
|
(A)
|
in
order to enable any Lender to enforce its rights under the Finance
Documents; or
|
19
|
|
(B)
|
by
reason only of the execution, delivery and performance of this Agreement
by any Lender,
|
that any
Lender should be licensed, qualified or otherwise entitled to carry on business
in the Republic;
|
|
(ii)
|
a
Lender is or will be deemed to be resident, domiciled or carrying on
business in or subject to the laws of the Republic by reason only of the
execution, delivery, performance and/or enforcement of any Finance
Document;
|
|
|
(iii)
|
in
any proceedings taken in the Republic in respect of any Finance Document
or for the enforcement of any Finance Document, the choice of English law
as the governing law of the Finance Document will not be recognised;
or
|
|
|
(iv)
|
it
is or becomes unlawful in any applicable jurisdiction for a Lender to give
effect to any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any
Loan,
|
and the
occurrence of any of the foregoing causes a Lender (acting reasonably) to
believe it is materially prejudiced thereby then:
|
(I)
|
the
relevant Lender must notify the Company (through the Facility Agent)
accordingly; and
|
|
(II)
|
the
Company shall prepay that Lender's participation in all the Loans on the
date specified in paragraph (b) of this Clause 8.1, together with all
other amounts payable by it to that Lender under the Finance Documents and
the Commitment of that Lender shall forthwith be reduced to
zero,
|
except
that paragraphs (i) and (ii) of this Clause 8.1 do not apply to any Lender
acting through its Facility Office or having a permanently established office or
branch in the Republic.
|
(b)
|
The
date for repayment or prepayment of a Lender's share in a Loan will
be:
|
|
|
(i)
|
the
last day of the current Term of that Loan;
or
|
|
|
(ii)
|
if
earlier, the date specified by the Lender in the notification under
paragraph (a)(iv)(I) of this Clause 8.1 and which must not be earlier than
the last day of any applicable grace period allowed by
law.
|
|
8.2
|
Mandatory
prepayment - change of control
|
|
(a)
|
The
Company shall, within one Business Day after the occurrence of a Change of
Control notify such to the Facility Agent, and the Facility Agent shall
promptly notify each Lender thereof. Such notice shall describe
in reasonable detail the facts and circumstances giving rise thereto and
the date of such Change of Control and each Lender may, by notice to the
Company and the Facility Agent given not later than ten days after the
date of such Change of Control, terminate its Commitment and declare any
amounts payable by the Company under the Finance Documents for its account
to be, and such amounts shall become, due and payable, in each case on the
Business Day following the date of delivery of the termination notice
without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by the
Company.
|
|
(b)
|
For
purposes of this Clause 8.2, the following terms have the following
meanings:
|
20
A Change of Control shall occur
if:
|
|
(i)
|
any
"person" (as such term is used in Sections 13 (d) and 14(d) of the U.S.
Securities Exchange Act of 1934, as amended, hereinafter, the "Exchange
Act") is or becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that for the purposes of this
sub-clause (i) such person shall be deemed to have "beneficial ownership"
of all shares that any such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 35% of either the aggregate ordinary
Voting Power or the aggregate equity value represented by the issued and
outstanding Equity Interests of U. S.
Steel;
|
|
|
(ii)
|
during
any period of twenty-five consecutive months, commencing before or after
the date of this Agreement, individuals who at the beginning of such
twenty-five month period were directors of U. S. Steel (together with any
replacement or additional directors whose election was recommended by the
incumbent directors of U. S. Steel or who were elected by a majority of
directors then in office) cease to constitute a majority of the board of
directors of U. S. Steel;
|
|
|
(iii)
|
the
adoption of a plan relating to the liquidation or dissolution of U. S.
Steel;
|
|
|
(iv)
|
the
merger or consolidation of U. S. Steel with or into another entity, or the
merger of another entity with or into U. S. Steel, other than a merger or
consolidation transaction in which holders of Equity Interests
representing 100% of the ordinary Voting Power represented by the Equity
Interests in U. S. Steel immediately prior to such transaction own
directly or indirectly at least a majority of the ordinary Voting Power
represented by the Equity Interests (or other securities into which such
securities are converted as part of such merger or consolidation
transaction) in the surviving person resulting from such merger or
consolidation transaction, and in substantially the same proportion as
before the transaction; or
|
|
|
(v)
|
the
sale of all or substantially all the assets of U. S. Steel (determined on
a consolidated basis) to another
person.
|
Equity Interests means: (i)
shares of capital stock, partnership interests, membership interests in a
limited liability company, beneficial interests in a trust or other equity
ownership interests in a Person; or (ii) any warrants, options or other rights
to acquire such shares or interests.
Voting Power as applied to the
stock of any corporation means the total voting power represented by all
outstanding Voting Stock of such corporation.
Voting Stock as applied to the
stock of any corporation means stock of any class or classes (however
designated) having ordinary voting power for the election of the directors of
such corporation, other than stock having such power only by reason of the
happening of a contingency.
|
8.3
|
Voluntary
prepayment
|
|
(a)
|
The
Company may, by giving not less than 30 Business Days' prior notice to the
Facility Agent, prepay any Loan at any time in whole or in
part.
|
|
(b)
|
A
prepayment of part of a Loan must be in a minimum amount of
€5,000,000 and an integral multiple of €250,000 (or its equivalent in
an Optional Currency).
|
21
|
(c)
|
A
prepayment of all or part of a Loan must be on an Interest Payment
Date.
|
|
8.4
|
Automatic
cancellation
|
The
Commitment of each Lender will be automatically cancelled at the close of
business on the last day of the Availability Period.
|
8.5
|
Voluntary
cancellation
|
|
(a)
|
The
Company may, by giving not less than five Business Days' prior notice to
the Facility Agent, cancel the unutilised amount of the Total Commitments
in whole or in part.
|
|
(b)
|
Partial
cancellation of the Total Commitments must be in a minimum amount of
€10,000,000 and an integral multiple of
€250,000.
|
|
(c)
|
Any
cancellation in part will be applied against the Commitment of each Lender
pro rata.
|
|
8.6
|
Right
of repayment and cancellation of a single
Lender
|
|
(a)
|
If
the Company is, or will be, required to pay to a
Lender:
|
|
|
(i)
|
a
Tax Payment; or
|
|
|
(ii)
|
an
Increased Cost,
|
the
Company may, while the requirement continues, give notice to the Facility Agent
requesting prepayment and cancellation in respect of that Lender.
|
(b)
|
After
notification under paragraph (a) of this Clause
8.6:
|
|
|
(i)
|
the
Company must repay or prepay that Lender's share in each Loan on the date
specified in paragraph (c) of this Clause 8.6;
and
|
|
|
(ii)
|
the
Commitment of that Lender will be immediately
cancelled.
|
|
(c)
|
The
date for repayment or prepayment of a Lender's share in a Loan will
be:
|
|
|
(i)
|
the
last day of the Term for that Loan;
or
|
|
|
(ii)
|
if
earlier, the date specified by the Company in its
notification.
|
|
8.7
|
Right
of repayment and cancellation of a Specified
Lender
|
|
(a)
|
If
any Lender becomes a Specified
Lender:
|
|
|
(i)
|
it
must notify the Company (through the Facility Agent) immediately;
and
|
|
|
(ii)
|
until
the Lender ceases to be a Specified Lender, the Company may (upon a prior
written consent of all Lenders other than the relevant Specified Lender,
such consent not to be unreasonably withheld or delayed) give notice to
the Facility Agent requesting repayment or prepayment and cancellation in
respect of that Specified Lender; provided, however,
that:
|
|
|
(A)
|
receipt
of the notice referred to in paragraph (i) above shall not be a condition
precedent to the giving of notice by the Company pursuant to this
paragraph (ii), and
|
22
|
|
(B)
|
the
Company may notify the Facility Agent of a repayment or prepayment and
cancellation and repayment in respect of a Specified Lender pursuant to
this Clause 8.7 without the prior written consent of the Lenders otherwise
required under this paragraph (ii) up to an aggregate amount of EUR
50,000,000, if on any of: (AA) the date of delivery of the repayment or
prepayment and cancellation notice to the Facility Agent or (BB) date of
making the repayment or prepayment (if any) there is no Default
outstanding.
|
|
(b)
|
The
Facility Agent shall as soon as practicable after receipt of a notice
under paragraph (a)(i) above, notify all the
Lenders.
|
|
(c)
|
After
notice under paragraph (a)(ii) of this Clause
8.7:
|
|
|
(i)
|
the
Company must repay or prepay that Specified Lender's share in each Loan on
the date specified in paragraph (d) of this Clause 8.7;
and
|
|
|
(ii)
|
the
Commitment of that Specified Lender will be immediately
cancelled.
|
|
(d)
|
The
date for repayment or prepayment of the Specified Lender's share in a Loan
will be:
|
|
|
(i)
|
the
last day of the Term for that Loan;
or
|
|
|
(ii)
|
if
earlier, the date specified by the Company in its notification under
paragraph (a)(ii) of this Clause
8.7.
|
|
8.8
|
Re-borrowing
of Loans
|
Any
voluntary prepayment of a Loan under Clause 8.3 (Voluntary prepayment) may be
re-borrowed on the terms of this Agreement. Any other prepayment of a Loan may
not be re-borrowed.
|
8.9
|
Miscellaneous
provisions
|
|
(a)
|
Any
notice of prepayment and/or cancellation under this Agreement is
irrevocable and must specify the relevant date(s) and the affected Loans
and Commitments. The Facility Agent must notify the Lenders promptly of
receipt of any such notice.
|
|
(b)
|
All
prepayments under this Agreement must be made with accrued interest on the
amount prepaid. No premium or penalty is payable in respect of any
prepayment except for Break Costs.
|
|
(c)
|
The
Majority Lenders may agree a shorter notice period for a voluntary
prepayment or a voluntary
cancellation.
|
|
(d)
|
No
prepayment or cancellation is allowed except in accordance with the
express terms of this Agreement.
|
|
(e)
|
No
amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
|
23
|
9.
|
INTEREST
|
|
9.1
|
Calculation
of interest
|
The rate
of interest on each Loan for its Term is the percentage rate per annum equal to
the aggregate of the applicable:
|
|
(a)
|
Margin;
|
|
|
(b)
|
IBOR;
and
|
|
|
(c)
|
Mandatory
Cost.
|
|
9.2
|
Payment
of interest
|
Except
where it is provided to the contrary in this Agreement, the Company must pay
accrued interest on each Loan made to it on the last day of each Term and also,
if the Term is longer than six months, on the dates falling at six-month
intervals after the first day of that Term (each an Interest Payment
Date).
|
9.3
|
Interest
on overdue amounts
|
|
(a)
|
If
the Company fails to pay any amount payable by it under the Finance
Documents, it must immediately on demand by the Facility Agent pay
interest on the overdue amount from its due date up to the date of actual
payment, both before, on and after
judgment.
|
|
(b)
|
Interest
on an overdue amount is payable at a rate determined by the Facility Agent
to be two per cent. per annum above the rate that would have been payable
if the overdue amount had, during the period of non-payment, constituted a
Loan in the currency of the overdue amount. For this purpose, the Facility
Agent may (acting reasonably):
|
|
|
(i)
|
select
successive Terms of any duration of up to three months;
and
|
|
|
(ii)
|
determine
the appropriate Rate Fixing Day for that
Term.
|
|
(c)
|
Notwithstanding
paragraph (b), if the overdue amount is a principal amount of a Loan and
becomes due and payable before the last day of its current Term,
then:
|
|
|
(i)
|
the
first Term for that overdue amount will be the unexpired portion of that
Term; and
|
|
|
(ii)
|
the
rate of interest on the overdue amount for that first Term will be one per
cent. per annum above the rate then payable on that
Loan.
|
After the
expiry of the first Term for that overdue amount, the rate on the overdue amount
will be calculated in accordance with paragraph (b) of this Clause
9.3.
|
(d)
|
Interest
(if unpaid) on an overdue amount will be compounded with that overdue
amount at the end of each of its Terms but will remain immediately due and
payable.
|
|
9.4
|
Notification
of rates of interest
|
The
Facility Agent must promptly notify each relevant Party of the determination of
a rate of interest under this Agreement.
24
|
9.5
|
Acknowledgement
|
The
Company acknowledges and confirms for the benefit of the Finance Parties who are
banks or branches of foreign banks incorporated in the Slovak Republic that it
has been informed about the amount of the annual percentage rate of interest of
the Loan and on the fees that the Company shall pay under the Finance Documents
in compliance with section 37(2) of the Slovak Act No. 483/2001 Coll. as
amended.
|
10.
|
TERMS
|
|
10.1
|
Selection
|
|
(a)
|
Each
Loan has one Term only.
|
|
(b)
|
The
Company must select the Term for a Loan in the relevant
Request.
|
|
(c)
|
Subject
to the following provisions of this Clause, each Term for a Loan will be
one or two weeks, or one, two, three or six
months.
|
|
10.2
|
No
overrunning the Final Maturity Date
|
If a Term
would otherwise overrun the Final Maturity Date, it will be shortened so that it
ends on the Final Maturity Date in which case the Company will have no
obligation to pay Break Costs or other costs arising from the
shortening.
|
10.3
|
Notification
|
The
Facility Agent must notify each relevant Party of the duration of each Term
promptly after ascertaining its duration.
|
11.
|
MARKET
DISRUPTION
|
|
11.1
|
Failure
of a Reference Bank to supply a
rate
|
If IBOR
is to be calculated by reference to the Reference Banks but a Reference Bank
does not supply a rate by noon on a Rate Fixing Day, the applicable IBOR will,
subject as hereinafter provided, be calculated on the basis of the rates of the
remaining Reference Banks.
|
11.2
|
Market
disruption
|
|
(a)
|
In
this Clause, each of the following events is a market disruption
event:
|
|
|
(i)
|
IBOR
is to be calculated by reference to the Reference Banks but no, or only
one, Reference Bank supplies a rate by noon on the Rate Fixing Day;
or
|
|
|
(ii)
|
the
Facility Agent receives by close of business on the Rate Fixing Day
notification from Lenders whose shares in the relevant Loan exceed 30 per
cent. of that Loan that the cost to them of obtaining matching deposits in
the relevant interbank market is in excess of IBOR for the relevant
Term.
|
|
(b)
|
The
Facility Agent must promptly notify the Company and the Lenders of a
market disruption event.
|
|
(c)
|
After
notification under paragraph (b), the rate of interest on each Lender's
share in the affected Loan for the relevant Term will be the aggregate of
the applicable:
|
25
|
|
(i)
|
Margin;
|
|
|
(ii)
|
rate
notified to the Facility Agent by that Lender as soon as practicable, and
in any event before interest is due to be paid in respect of that Term, to
be that which expresses as a percentage rate per annum the cost to that
Lender of funding its share in that Loan from whatever source it may
reasonably select; and
|
|
|
(iii)
|
Mandatory
Cost.
|
|
11.3
|
Alternative
basis of interest or funding
|
|
(a)
|
If
a market disruption event occurs and the Facility Agent or the Company so
requires, the Company and the Facility Agent must enter into negotiations
for a period of not more than 30 days with a view to agreeing an
alternative basis for determining the rate of interest and/or funding for
the affected Loan.
|
|
(b)
|
Any
alternative basis agreed will be, with the prior consent of all the
Lenders, binding on all the
Parties.
|
|
12.
|
TAXES
|
|
12.1
|
Gross-up
|
All
payments by the Company under the Finance Documents shall be made without any
deduction and free and clear of and without deduction for or on account of any
Taxes, except to the extent that the Company is required by law to make payment
subject to any Taxes. If any Relevant Tax or amounts in respect of
any Relevant Tax must be deducted from any amounts payable or paid by the
Company, or paid or payable by the Facility Agent to a Lender, under the Finance
Documents, the Company shall, subject to Clause 12.4 (Exception to the gross-up),
pay such additional amounts as may be necessary to ensure that the relevant
Lender receives a net amount equal to the full amount which it would have
received had payment not been made subject to Relevant Tax.
|
12.2
|
Tax
receipts
|
All Taxes
required by law to be deducted or withheld by the Company from any amounts paid
or payable under the Finance Documents shall be paid by the Company when due and
the Company shall, within 15 days of receipt of evidence of the payment being
made, deliver the same to the Facility Agent.
|
12.3
|
Reimbursement
of tax credit
|
If the
Company pays a Tax Payment under Clause 12.1 (Gross-up) for the account of
a Lender, and the Lender effectively obtains, or could have effectively obtained
by taking reasonable action (in which case the Lender shall be treated as
actually having obtained), a refund of Tax, or credit against Tax, by reason of
that Tax Payment (a Tax
Credit), then the Lender shall reimburse to the Company such amount as
the Lender shall reasonably determine to be the proportion of the Tax Credit as
will leave the Lender (after that reimbursement) in no better or worse position
than it would have been in if the Tax Payment had not been
required. Notwithstanding the foregoing, a Lender may choose not to
make or to limit the amount or alter the timing of any Tax Credit if to do
otherwise would result in a material adverse effect to the Lender or on its
relationship with the relevant Tax authority. Upon reasonable request
from the Company, the Lender shall provide the Company with a certification
concerning whether or not a Tax Credit was obtained or was attempted to be
obtained by the Lender as well as reasonable detail concerning the amount of the
Tax Credit. No Finance Party is obliged to disclose any information
regarding its Tax affairs or computations to any other person.
26
|
12.4
|
Exception
to the gross-up
|
The
Company is not required to pay an additional amount for the account of a Lender
under Clause 12.1 (Gross-up):
|
|
(i)
|
to
the extent that the obligation to pay the additional amount would not have
arisen but for the failure by that Lender to provide (within a reasonable
period after being requested to do so by the Company or the Facility Agent
and at the cost of the Company) any form, certificate or other
documentation:
|
|
|
(A)
|
the
provision of which would have relieved (in whole or in part) the Company
from the relevant withholding obligation;
and
|
|
|
(B)
|
which
it is fully within the power of the Lender to
provide;
|
|
|
(ii)
|
if
that Lender has not complied with its obligations under
Clause 12.5(a) (Tax
confirmation) for a period of 90 days from the date that Lender
became aware that it could not give the confirmation referred to in
Clause 12.5(a) (Tax
confirmation); or
|
|
|
(iii)
|
the
confirmation provided by that Lender under Clause 12.5(a) (Tax confirmation) is
incorrect when made.
|
|
12.5
|
Tax
confirmation
|
|
(a)
|
Each
Lender (other than a Lender with its Facility Office situated in the
Republic) confirms to the Company that on the date of this Agreement (or
if it only subsequently becomes a Party to this Agreement, on that date)
under the terms of a double taxation treaty between the jurisdiction in
which that Lender is resident and the Republic payments due to it under
the Finance Documents may be made without deduction or withholding on
account of any Tax imposed or levied by the Republic (or any political
subdivision or taxing authority of the Republic) under the laws of the
Republic, as interpreted and applied at that
time.
|
|
(b)
|
If
a Lender becomes aware that it could not, on any particular day, give the
confirmation referred to in paragraph (a) of this Clause 12.5, it shall
promptly but in any event within 90 days, notify such to the Company
(through the Facility Agent).
|
|
12.6
|
Stamp
taxes
|
The
Company must pay and indemnify each Finance Party against any stamp duty,
registration or other similar Tax payable in connection with the entry into,
performance or enforcement of any Finance Document, except for any such Tax
payable in connection with the entry into a Transfer Certificate.
|
12.7
|
Value
added taxes
|
|
(a)
|
Any
amount (including costs, fees and expenses) payable under a Finance
Document by the Company is exclusive of any value added tax or similar tax
that might be chargeable in connection with that amount. If any
such value added tax or similar tax is chargeable, the Company must pay
(in addition to and at the same time as it pays that amount) an amount
equal to the amount of that value added tax or similar
tax.
|
27
|
(b)
|
The
obligation of the Company under paragraph (a) of this Clause 12.7 will be
reduced to the extent that the Finance Party is entitled to repayment or a
credit in respect of the relevant value added tax or similar
tax.
|
|
13.
|
INCREASED
COSTS
|
|
13.1
|
Increased
Costs
|
Except as
hereinafter provided in this Clause, the Company must pay to a Finance Party the
amount of any Increased Cost incurred by that Finance Party or its Holding
Company as a result of:
|
|
(a)
|
the
introduction of, or any change in, or any change in the interpretation, or
application of, any law or regulation;
or
|
|
|
(b)
|
compliance
with any law or regulation made after the date of this
Agreement.
|
Each
Finance Party agrees to notify the Company promptly upon becoming aware that
this Clause 13.1 applies.
|
13.2
|
Exceptions
|
The
Company need not make any payment for an Increased Cost to the extent that the
Increased Cost is:
|
|
(a)
|
compensated
for under another Clause or would have been but for an exception to that
Clause;
|
|
|
(b)
|
a
tax on the overall net income of a Finance Party or its Holding
Company;
|
|
|
(c)
|
attributable
to a Finance Party or its Holding Company wilfully failing to comply with
any law or regulation; or
|
|
|
(d)
|
attributable
to the failure of the relevant Finance Party or its Holding Company to
notify the Company of that increased cost within 45 days of becoming aware
of it.
|
|
13.3
|
Claims
|
|
(a)
|
A
Finance Party intending to make a claim for an Increased Cost must notify
the Facility Agent of the circumstances giving rise to and the amount of
the claim, following which the Facility Agent will promptly notify the
Company.
|
|
(b)
|
Each
Finance Party must, as soon as practicable after a demand by the Facility
Agent, provide a certificate confirming the amount of its Increased
Cost.
|
|
14.
|
MITIGATION
|
|
14.1
|
Mitigation
|
If
circumstances arise that would, or would on the giving of notice, result
in:
|
|
(a)
|
any
additional amounts becoming payable under Clause 12 (Taxes);
or
|
|
|
(b)
|
any
amount becoming payable under Clause 13 (Increased Costs);
or
|
28
|
|
(c)
|
any
prepayment or cancellation under Clause 8 (Prepayment and
Cancellation); or
|
|
|
(d)
|
a
Finance Party incurring any cost of complying with the minimum reserve
requirements of its supervising and regulating
entity,
|
then,
without limiting the obligations of the Company under this Agreement and without
prejudice to the terms of Clauses 12 (Taxes), 13 (Increased Costs) and 8 (Prepayment and Cancellation),
the relevant Lender shall, in consultation with the Company, take such
reasonable steps as may be open to it to mitigate or remove the relevant
circumstance, including (without limitation) changing its Facility Office to one
in another jurisdiction or the transfer of its rights and obligations under this
Agreement to another person, unless to do so might (in the reasonable opinion of
the Lender) be materially prejudicial to it.
|
15.
|
PAYMENTS
|
|
15.1
|
Place
|
Unless a
Finance Document specifies that payments under it are to be made in another
manner, all payments by a Party (other than the Facility Agent) under the
Finance Documents must be made to the Facility Agent to its account at such
office or bank:
|
|
(a)
|
in
the principal financial centre of the country of the relevant currency;
or
|
|
|
(b)
|
in
the case of euro, in the principal financial centre of a Participating
Member State or London,
|
as it may
notify to that Party for this purpose by not less than ten Business Days' prior
notice.
|
15.2
|
Funds
|
Payments
under the Finance Documents to the Facility Agent must be made for value on the
due date at such times and in such funds as the Facility Agent may acting
reasonably specify to the Party concerned as being customary at the time for the
settlement of transactions in the relevant currency in the place for
payment.
|
15.3
|
Distribution
|
|
(a)
|
Each
payment received by the Facility Agent under the Finance Documents for
another Party must, except as hereinafter provided, be made available by
the Facility Agent to that Party by payment (as soon as practicable after
receipt) to its account with such office or
bank:
|
|
|
(i)
|
in
the principal financial centre of the country of the relevant currency;
or
|
|
|
(ii)
|
in
the case of euro, in the principal financial centre of a Participating
Member State or London,
|
as it may
notify to the Facility Agent for this purpose by not less than ten Business
Days' prior notice.
|
(b)
|
The
Facility Agent may apply any amount received by it for the Company in or
towards payment (as soon as practicable after receipt) of any amount due
from the Company under the Finance Documents or in or towards the purchase
of any amount of any currency to be so
applied.
|
29
|
(c)
|
Where
a sum is paid to the Facility Agent under this Agreement for another
Party, the Facility Agent is not obliged to pay that sum to that Party
until it has established that it has actually received
it. However, the Facility Agent may assume that the sum has
been paid to it, and, in reliance on that assumption, make available to
that Party a corresponding amount. If it transpires that the
sum has not been received by the Facility Agent, that Party must
immediately on demand by the Facility Agent refund any corresponding
amount made available to it together with interest on that amount from the
date of payment to the date of receipt by the Facility Agent at a rate
calculated by the Facility Agent to reflect its cost of
funds.
|
|
15.4
|
Currency
|
|
(a)
|
Unless
a Finance Document specifies that payments under it are to be made in a
different manner, the currency of each amount payable under the Finance
Documents is determined under this
Subclause.
|
|
(b)
|
Interest
is payable in the currency in which the relevant amount in respect of
which it is payable is denominated.
|
|
(c)
|
A
repayment or prepayment of any principal amount is payable in the currency
in which that principal amount is denominated on its due
date.
|
|
(d)
|
Amounts
payable in respect of Taxes, fees, costs and expenses are payable in the
currency in which they are
incurred.
|
|
(e)
|
Each
other amount payable under the Finance Documents is payable in
euros.
|
|
15.5
|
No
set-off or counterclaim
|
All
payments made by the Company under the Finance Documents must be calculated and
made without (and free and clear of any deduction for) set-off or
counterclaim.
|
15.6
|
Business
Days
|
|
(a)
|
If
a payment under the Finance Documents is due on a day that is not a
Business Day, the due date for that payment will instead be the next
Business Day.
|
|
(b)
|
During
any extension of the due date for payment of any principal under this
Agreement interest is payable on that principal at the rate payable on the
original due date.
|
|
15.7
|
Partial
payments
|
|
(a)
|
If
any Administrative Party receives a payment insufficient to discharge all
the amounts then due and payable by the Company under the Finance
Documents, the Administrative Party must apply that payment towards the
obligations of the Company under the Finance Documents in the following
order:
|
|
|
(i)
|
first, in or towards
payment pro rata of any unpaid fees, costs and expenses of the
Administrative Parties under the Finance
Documents;
|
|
|
(ii)
|
secondly, in or towards
payment pro rata of any accrued interest or fee due but unpaid under this
Agreement;
|
|
|
(iii)
|
thirdly, in or towards
payment pro rata of any principal amount due but unpaid under this
Agreement; and
|
30
|
|
(iv)
|
fourthly, in or towards
payment pro rata of any other sum due but unpaid under the Finance
Documents.
|
|
(b)
|
The
Facility Agent must, if so directed by all the Lenders, vary the order set
out in sub-paragraphs (a)(ii) to (iv) of this Clause
15.7.
|
|
(c)
|
This
Sub-clause will override any appropriation made by the
Company.
|
|
15.8
|
Timing
of payments
|
If a
Finance Document does not provide for when a particular payment is due, that
payment will be due 30 days after receipt by the Company of a claim (accompanied
by, if available, separate invoices) signed on behalf of the relevant Finance
Party specifying the amount due, the provision of the Finance Document under
which the Company’s liability to pay arises and setting out in reasonable detail
a calculation of the amount due.
|
16.
|
REPRESENTATIONS
AND WARRANTIES
|
|
16.1
|
Representations
and warranties
|
The
Company makes the representations and warranties set out in this Clause 16
(Representations and
warranties) to each Finance Party.
|
16.2
|
Status
|
|
(a)
|
It
is a limited liability company duly organised and validly existing under
the laws of the Republic.
|
|
(b)
|
It
has the power to own its property and
Assets.
|
|
(c)
|
It
has power to carry on its business as it is now being
conducted.
|
|
16.3
|
Powers
and authority
|
It has
the power to enter into and perform, and has taken all necessary action to
authorise, the execution, delivery and performance of the Finance Documents to
which it is or will be a party and the transactions contemplated by those
Finance Documents.
|
16.4
|
Legal
validity
|
Each
Finance Document to which it is a party:
|
|
(a)
|
constitutes,
or when executed will constitute, its legal, valid and binding obligation
enforceable in accordance with its terms;
and
|
|
|
(b)
|
is
in proper form for its enforcement in the Republic if accompanied by a
certified Slovak translation;
|
save that
enforcement of the Company’s obligations under the Finance Documents may be
affected by insolvency, bankruptcy and similar laws affecting the rights of
creditors generally.
|
16.5
|
Non-conflict
|
The
execution, delivery and performance of the Finance Documents to which it is or
will be a party by it will not:
31
|
|
(a)
|
violate
in any respect any provision of:
|
|
|
(i)
|
any
applicable law or regulation of the Republic or any order of any
governmental, judicial or public body or authority in the Republic binding
on the Company; or
|
|
|
(ii)
|
the
laws and documents incorporating and constituting the Company;
or
|
|
|
(iii)
|
any
mortgage, agreement or other financial undertaking or instrument to which
the Company is a party or which is binding upon or any Assets of the
Company; or
|
|
|
(b)
|
to
the best of the Company’s knowledge result in the creation or imposition
of any Security Interest on any Assets of the Company pursuant to the
provisions of any mortgage, agreement or other undertaking or instrument
to which the Company is a party or which is binding upon
it.
|
|
16.6
|
No
default
|
No
Default is outstanding.
|
16.7
|
Authorisations
|
All
authorisations and other requirements of governmental, judicial and public
bodies and authorities required by any member of the Group or advisable in
connection with the execution, delivery, performance, validity and
enforceability of the Finance Documents have been obtained or effected and are
in full force and effect.
|
16.8
|
Litigation
|
Except to
the extent as disclosed in writing to the Facility Agent:
|
|
(a)
|
there
is no litigation, arbitration or administrative proceedings relating to
any member of the Group that is material to the Company, the same are not
current or pending or, to the knowledge of the Company, threatened;
and
|
|
|
(b)
|
no
litigation, arbitration or administrative proceedings are current or
pending or, to the knowledge of the Company, threatened, which would
reasonably be expected to have a material adverse effect on the ability of
the Company to perform its obligations under the Finance
Documents.
|
|
16.9
|
Title
|
Except to
the extent disclosed in writing to the Facility Agent, it has valid leases or
good and marketable title to all its material Fixed Assets which are reflected
in the most recent audited consolidated financial statements of the Group
delivered to the Facility Agent under Clause 16.15 (Financial statements),
subject to any disposal permitted under Clause 18.6 (Disposals) and to no Security
Interest securing Financial Indebtedness over such Fixed Assets, except any
Permitted Security Interest.
|
16.10
|
Borrowing
limits
|
The
borrowing of the full amount available under this Agreement will not cause any
limit on its borrowing or other powers or on the exercise of such powers by its
board of directors whether imposed by the Company's Articles of Association or
similar document or by statute, regulation, or agreement, to be
exceeded.
32
|
16.11
|
Immunity
|
Subject
to any general provisions of law with respect to immunity of certain assets from
attachment and from execution, referred to in any legal opinion required under
this Agreement, it is not entitled to claim immunity from suit, attachment,
enforcement or other legal process in the Republic.
|
16.12
|
Solvency
|
|
(a)
|
It
is not insolvent (in Slovak: v úpadku);
and
|
|
(b)
|
it
has not taken any action nor, so far as it is aware have any steps been
taken or legal proceedings been started or threatened against it for
winding-up, dissolution, reorganisation, or bankruptcy the enforcement of
any encumbrance over its assets or for the appointment of a receiver,
administrative receiver or administrator, trustee or similar officer of it
or of any or all of its assets or
revenues.
|
|
16.13
|
Information
|
|
(a)
|
All
factual information provided in writing by an officer of any member of the
Group, U. S. Steel or any Subsidiary of U. S. Steel to the Finance Parties
in connection with the Finance Documents was true and accurate in all
material respects as at its date or (if appropriate) as at the date (if
any) at which it is stated to be given by that
person.
|
|
(b)
|
Nothing
was omitted from the information referred to in paragraph (a) of this
Clause 16.13 that, if disclosed, would make that information untrue or
misleading in any material respect.
|
|
(c)
|
Nothing
has occurred since the date of the information referred to in paragraph
(a) of this Clause 16.13 that, if disclosed, would make that information
untrue or mislead in any material
respect.
|
|
16.14
|
No
notarial deed
|
No member
of the Group has created any notarial deed (as referred to in section 41(2) of
the Slovak Act No. 233/1995 Coll. as amended or section 274(e) of the Slovak Act
No. 99/1963 Coll., in its wording up to 31 August 2005 respectively) in relation
to any Financial Indebtedness.
|
16.15
|
Financial
statements
|
Its
audited consolidated financial statements most recently delivered to the
Facility Agent (which, at the date of this Agreement, are the financial
statements of the Company for the year ended 31 December 2009):
|
|
(a)
|
have
been prepared in accordance with accounting principles and practices
generally accepted in its jurisdiction of incorporation, consistently
applied; and
|
|
|
(b)
|
fairly
represent its consolidated financial condition as at the date to which
they were drawn up,
|
except,
in each case, as disclosed to the contrary in those financial
statements.
33
|
16.16
|
Slovak
Banking Act
|
|
(a)
|
It
represents that it is not a person having any special relationship (osobitný
vzťah) as defined in the Slovak Act No. 483/2001 Coll., as amended,
to any Lender.
|
|
(b)
|
When
making any payment under or in connection with any Finance Document, it
will use solely the funds owned by
it.
|
|
(c)
|
It
is entering into each Finance Document as a principal and not as agent
and, in its own name on its own
account.
|
|
16.17
|
ERISA
|
Each Plan
of the Company and of each ERISA Affiliate of the Company complies in all
material respects with all applicable requirements of law and
regulation. No Reportable Event has occurred with respect to any
Plan, and no steps have been taken to terminate any Plan. Neither the Company
nor any of its ERISA Affiliates has had a complete or partial withdrawal from
any Multiemployer Plan (as defined by ERISA) or initiated any steps to do
so.
|
16.18
|
Margin
Regulations
|
Neither
the Company nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
|
16.19
|
Centre
of Main Interests
|
Its
Centre of Main Interests is situated in its jurisdiction of incorporation and it
has no Establishment in any other jurisdiction.
|
16.20
|
Material
adverse change
|
Since 31
December 2009, there has not been any material adverse change in the business,
Assets, regulation or financial condition of the Company that would reasonably
be expected to have a material adverse effect on the Company's ability to
perform its obligations under the Finance Documents.
|
16.21
|
Times
for making representations and
warranties
|
|
(a)
|
The
Company makes the representations and warranties set out in this Clause on
the date of this Agreement.
|
|
(b)
|
Unless
a representation and warranty is expressed to be given at a specific date,
each representation and warranty is deemed to be repeated by the Company
on the date of each Request and the first day of each Term except that the
representations and warranties in Clause 16.5(a)(iii) and (b) (Non-conflict), 16.8(a)
(Litigation) and
16.17 (ERISA)
shall not be repeated by the
Company.
|
|
(c)
|
When
the representation and warranty in Clause 16.6 (No default) is repeated
on a Request for a Rollover Loan or the first day of a Term for a Loan
(other than the first Term for that Loan), the reference to a Default will
be construed as a reference to an Event of
Default.
|
|
(d)
|
When
a representation and warranty is repeated, it is applied to the
circumstances existing at the time of
repetition.
|
34
|
17.
|
INFORMATION
COVENANTS
|
|
17.1
|
Duration
|
The
undertakings in this Clause 17 (Information Covenants) remain
in force from the date of this Agreement for so long as any amount is or may be
outstanding under any Finance Document.
|
17.2
|
Financial
Information
|
The
Company shall furnish to the Facility Agent in sufficient copies for all
Lenders:
|
|
(a)
|
the
annual audited unconsolidated financial statements of the Company
including the report of independent auditors and accompanying notes for
each of its financial years as soon as practicable (and in any event
within 30 days from the date when the consolidated financial statements
are required to be prepared by
law),
|
and
the
annual audited consolidated financial statements of the Group including the
report of independent auditors and accompanying notes for each of its financial
years as soon as practicable (and in any event within 210 days after the end of
each of its financial years),
such
financial statements:
|
|
(i)
|
to
be prepared in accordance with the International Financial Reporting
Standards consistently applied;
|
|
|
(ii)
|
to
be audited by an internationally recognised firm of
accountants;
|
|
|
(iii)
|
to
give a true and fair view of the financial condition of the Company or
Group (as applicable) and the result of its operations for the period
ended on the date to which such financial statements were prepared;
and
|
|
|
(iv)
|
signed
by the chief financial officer (or equivalent), or by two senior officers
of the Company;
|
|
|
(b)
|
the
annual unaudited consolidated balance sheet and income statements of the
Group to be prepared in accordance with USGAAP consistently applied,
annually, i.e. for each of its financial years as soon as practicable (and
in any event within 120 days after the end of each of its financial years)
certified by the chief financial officer (or equivalent) of the Company;
and
|
|
|
(c)
|
the
quarterly unaudited consolidated financial statements of the Group to be
prepared in accordance with USGAAP consistently applied for the first
three quarters (i.e. each of the quarterly periods ending on 31 March, 30
June, and 30 September each year) of each financial year, whereas, for the
avoidance of doubt:
|
|
|
(i)
|
financial
statements submitted for the quarter ending on 31 March shall contain
financial data for the period starting on 1 January of the given financial
year and ending on 31 March of the given financial
year;
|
35
|
|
(ii)
|
financial
statements submitted for the quarter ending on 30 June shall contain
financial data for the period starting on 1 January of the given financial
year and ending on 30 June of the given financial year;
and
|
|
|
(iii)
|
financial
statements submitted for the quarter ending on 30 September shall contain
financial data for the period starting on 1 January of the given financial
year and ending on 30 September of the given financial
year;
|
as soon
as practicable (and in any event within 60 days after the end of the relevant
quarter) certified by the chief financial officer (or equivalent) of the
Company; and
|
|
(d)
|
together
with the financial statements referred to in paragraph (a) of this Clause
17.2, a certificate of the Company signed by the chief financial officer
(or equivalent) of the Company
certifying:
|
|
|
(i)
|
that
no Event of Default has occurred (or, if it has, specifying it and the
steps being taken to remedy it);
and
|
|
|
(ii)
|
the
identity of its all Subsidiaries:
|
|
|
(A)
|
whose
total assets (being the total of fixed assets and current assets)
(consolidated in the case of a Subsidiary which itself has one or more
Subsidiaries) represent not less than 7.5 per cent, of the Company's total
consolidated fixed assets: and/or
|
|
|
(B)
|
whose
gross revenues (being gross revenues less internal revenues (excluding
exceptionals), before operating expenses and depreciation) (consolidated
in the case of a Subsidiary which itself has one or more Subsidiaries)
represent not less than 7.5 per cent, of the consolidated gross revenues
of the Group (being gross revenues (excluding exceptionals) before
operating expenses and depreciation on a consolidated basis as shown in
the Latest Accounts).
|
|
17.3
|
Information
- miscellaneous
|
|
(a)
|
The
Company shall furnish to the Facility Agent from time to time with
reasonable promptness, such further information regarding the business and
financial condition of the Company as the Facility Agent may reasonably
request.
|
|
(b)
|
The
Company shall promptly notify the Facility Agent of any material business
or financial event, including without limitation, any litigation,
arbitration, administrative or other proceedings being commenced, which
would reasonably be expected to adversely affect its ability to perform
its obligations under the Finance
Documents.
|
|
(c)
|
Subject
to paragraph (d) of this Clause 17.3, the Company must promptly on the
request of any Finance Party supply to that Finance Party any
documentation or other evidence that is reasonably requested by that
Finance Party (whether for itself, on behalf of any Finance Party or any
prospective new Lender) to enable a Finance Party or prospective new
Lender to carry out and be satisfied with the results of all applicable
know your customer requirements.
|
|
(d)
|
The
Company is only required to supply any information under paragraph (a) of
this Clause 17.3, if the necessary information is not already available to
the relevant Finance Party and the requirement arises as a result
of:
|
36
|
|
(i)
|
the
introduction of any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this
Agreement;
|
|
|
(ii)
|
any
change in the status of the Company or any change in the composition of
shareholders of the Company after the date of this Agreement;
or
|
|
|
(iii)
|
a
proposed assignment or transfer by the Lender of any of its rights and/or
obligations under this Agreement to a person that is not a Lender before
that assignment or transfer.
|
|
(e)
|
Each
Lender must promptly on the request of the Facility Agent supply to the
Facility Agent any documentation or other evidence that is reasonably
required by the Facility Agent to carry out and be satisfied with the
results of all know your customer
requirements.
|
|
(f)
|
The
Company shall make its appropriate executives and employees available for
a conference call with the Finance Parties; such call to be held after the
end of each quarter ending on 31 March, 30 June, 30 September, and 31
December each year, as promptly as practicable after U. S. Steel issues
its report on Form 10-Q for each such quarter or Form 10-K for such year,
as the case may be. This conference call shall address the financial
performance of the Company for the quarter most recently ended and include
information regarding sales, capacity utilization, average realized price,
operating income, depreciation, interest expense, operating cash flow,
capex, cash balances inventory and
receivables.
|
|
17.4
|
Notification
of Default
|
|
(a)
|
The
Company must notify the Facility Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence.
|
|
17.5
|
Slovak
banking regulations
|
|
(a)
|
Subject
to paragraph (b) of this Clause 17.5, in case of any change to: (i) the
amount of the Company's registered capital; or (ii) the participation
interest(s) in the Company; or (iii) the voting rights attached to any and
all participation interest(s) in the Company, the Company must supply to
the Facility Agent in sufficient copies for all Lenders a list of its
participants reflecting the situation after such change, promptly after
the effectiveness of such change but in each case no later than within
five Business Days after the effectiveness of such
change.
|
|
(b)
|
The
Company is not obliged to supply the list of participants under paragraph
(a) of this Clause 17.5 if any such change concerns a participant (in
Slovak: spoločník)
holding: (i) a participation interest not exceeding 10 per cent. of the
registered capital of the Company; or (ii) voting rights not exceeding 10
per cent. of all voting rights in the
Company.
|
|
(c)
|
For
the purposes of this Clause, a list of participants
means a list of persons (whether individuals or legal entities) holding:
(i) a participation interest exceeding 10 per cent. of the registered
capital of the Company; or (ii) voting rights exceeding 10 per cent. of
all voting rights in the Company,
containing:
|
|
|
(A)
|
in
case of individuals, the name, family name, business name, identification
number or birth certificate number, permanent address or place of business
(if different from the permanent address) of that participant;
and
|
|
|
(B)
|
in
case of legal entities, the business name, the legal form, identification
number and the registered seat of that
participant.
|
37
|
18.
|
GENERAL
COVENANTS
|
|
18.1
|
Authorisations
|
The
Company shall obtain and promptly renew from time to time all authorisations as
may be required under any applicable law or regulation to enable it to perform
its obligations under the Finance Documents, or required for the validity or
enforceability of any Finance Document, shall comply with the terms of the same
and will ensure the availability and transferability of sufficient foreign
exchange to enable it to comply with its obligations under the Finance
Documents.
|
18.2
|
Corporate
existence
|
|
(a)
|
The
Company shall maintain its corporate existence and its right to carry on
its operations and will acquire, maintain and renew all rights, licences,
concessions, contracts, powers, privileges, leases, lands, sanctions and
franchises necessary or useful for the conduct of its operations except,
in each case, where the failure to do so would not reasonably be
expected to materially adversely affect the Company's ability
to perform its obligations under the Finance
Documents.
|
|
(b)
|
The
Company shall not:
|
|
|
(i)
|
change
its name; or
|
|
|
(ii)
|
change
its financial year end from 31
December.
|
|
18.3
|
Insurance
|
The
Company shall effect and maintain such insurance over and in respect of its
Assets and business covering such risks and in such amounts as U. S. Steel
maintains from time to time with respect to other similar steel-making
facilities owned by U. S. Steel, subject to such deductibles and other forms of
self-insurance as from time to time are generally applicable to such other
steel-making facilities provided such coverage is available to the Company on
similar or better terms.
|
18.4
|
Pari
passu
|
The
Company shall procure that its obligations under the Finance Documents do and
will constitute its direct, unconditional, unsecured, unsubordinated and general
obligations and do and will rank at least pari passu with all other
present and future unsecured and unsubordinated Financial Indebtedness issued,
created or assumed by it other than amounts which are afforded priority by
applicable law.
|
18.5
|
Negative
pledge
|
The
Company shall not without the prior consent of the Facility Agent in writing,
create, assume or permit to exist any Security Interest over all or any of its
Assets to secure Financial Indebtedness other than a Permitted Security
Interest.
|
18.6
|
Disposals
|
|
(a)
|
Except
with the prior consent of the Facility Agent in writing or as provided in
paragraph (b) of this Clause 18.6, the Company shall not either in a
single transaction or in a series of transactions whether related or not
and whether voluntary or involuntary, sell, transfer, grant or lease or
otherwise dispose of (in each case whether conditionally or otherwise) any
of its Fixed Assets other than Permitted
Disposals.
|
38
|
(b)
|
Notwithstanding
paragraph (a) of this Clause 18.6, in any financial year
of the Company, Fixed Assets having an aggregate book value in, or
included for the purposes of, the Latest Accounts, not exceeding the
aggregate of 30 per cent. of all Fixed Assets (as shown in or included for
the purposes of the Latest Accounts) may be disposed of where the disposal
is on arm's length commercial terms; provided, however, that in no case
shall the Company be permitted to dispose of more than 50 per cent of all
Fixed Assets (as shown in or included for purpose of the consolidated
financial statement of the Company for the one year period ended 31
December 2009).
|
|
18.7
|
Mergers
|
The
Company shall not, without the prior consent of the Facility Agent in writing,
enter into any merger or other arrangement of a similar nature other than a
Permitted Merger.
|
18.8
|
Change
of business
|
Except
with the prior consent of the Facility Agent in writing, the Company shall not
make or threaten to make any substantial change in its business as conducted on
the date of this Agreement.
|
18.9
|
Environmental
compliance
|
Except to
the extent disclosed in writing to the Facility Agent, the Company shall comply
with applicable Environmental Law except where failure to do so would not
reasonably be expected to have a material adverse effect on the ability of the
Company to perform its obligations under the Finance Documents. For
this purpose, Environmental
Law means:
|
|
(a)
|
all
environmental authorisations applicable to the Company;
and
|
|
|
(b)
|
all
other applicable environmental laws, rules and regulations concerning the
protection of human health or the environment or the transportation of any
substance capable of causing harm to man or any other living organism or
the environment or public health or welfare, including, without
limitation, hazardous, toxic, radioactive or dangerous
waste.
|
|
18.10
|
Borrowing
|
The
Company shall not, and the Company shall procure that no member of the Group
shall incur any Financial Indebtedness other than:
|
|
(a)
|
Financial
Indebtedness not exceeding €600,000,000 (or its equivalent) in aggregate
(including amounts borrowed under the Finance
Documents);
|
|
|
(b)
|
Financial
Indebtedness upon terms approved by the Facility Agent acting on the
instructions of the Majority
Lenders;
|
|
|
(c)
|
currency
and commodity hedging used only to mitigate the risks relating to
fluctuations in currencies and commodity prices, provided each such
hedging arrangement is entered into for a period no longer than 18
months;
|
|
|
(d)
|
for
the avoidance of doubt, operating lease
obligations;
|
39
|
|
(e)
|
for
the avoidance of doubt, trade payables and other contractual obligations
to suppliers and customers in the ordinary course of
trading;
|
|
|
(f)
|
debt
subordinated to the Loans under subordination agreements acceptable to the
Facility Agent; and
|
|
|
(g)
|
any
refinancing of any of the foregoing up to the same principal
amount.
|
|
18.11
|
No
notarial deed
|
The
Company shall not and the Company shall procure that no other member of the
Group will, create any notarial deed (as referred to in section 41(2) of the
Slovak Act No. 233/1995 Coll., as amended) in relation to any Financial
Indebtedness.
|
18.12
|
No
Margin Stock
|
The
Company may not:
|
|
(a)
|
extend
credit for the purpose, directly or indirectly, of buying or carrying
Margin Stock; or
|
|
|
(b)
|
use
any Loan or allow any Loan to be used, directly or indirectly, to buy or
carry Margin Stock or for any other purpose in violation of the Margin
Regulations.
|
|
18.13
|
Centre
of Main Interests
|
The
Company must not cause or allow its registered office or Centre of Main
Interests to be in, or maintain an Establishment in, any jurisdiction other than
its jurisdiction of incorporation.
|
19.
|
DEFAULT
|
|
19.1
|
Events
of Default
|
Each of
the events set out in Clauses 19.2 (Non-payment) to 19.10 (Ownership of the Company)
(both inclusive) is an Event of Default (whether or not caused by any reason
whatsoever outside the control of the Company or any other person).
|
19.2
|
Non-payment
|
The
Company does not pay on the due date any amount payable by it under the Finance
Documents at the place at and in the currency in which it is expressed to be
payable and (if the failure to pay is caused solely by technical or
administrative error) it is not remedied within five Business Days of its due
date.
|
19.3
|
Breach
of other obligations
|
The
Company fails to comply with any of its obligations under the Finance Documents
(other than those referred to in Clause 19.2 (Non-payment)) and the failure
to comply (if it is capable of remedy) remains unremedied for 30 days after the
earlier of:
|
|
(a)
|
the
day when the Facility Agent gives the Company notice of the failure to
comply; and
|
|
|
(b)
|
the
day when the Company became aware of the failure to
comply.
|
40
|
19.4
|
Misrepresentation
|
Any
representation, warranty or statement made or repeated in the Finance Documents
or in any written certificate or statement delivered, made or issued by or on
behalf of the Company under the Finance Documents or in connection with the
Finance Documents shall at any time be incorrect in any respect when so made or
repeated or deemed to be made or repeated and the circumstances giving rise to
such misrepresentation would reasonably be expected to have a material adverse
effect on the ability of the Company to perform its obligations under the
Finance Documents.
|
19.5
|
Insolvency/enforcement
|
|
(a)
|
Any
action shall be taken by the Company or one of its Affiliates for the
dissolution or termination of existence or liquidation of the Company;
or
|
|
(b)
|
an
application by the Company for bankruptcy (konkurz), restructuring
(reštrukturalizácia) or
moratorium, or an arrangement with creditors of the Company is entered
into, or any other proceeding or arrangement by which the Assets of the
Company are submitted to the control of its creditors occurs or is entered
into; or
|
|
(c)
|
the
Company is adjudged bankrupt pursuant to a final non-appealable order;
or
|
|
(d)
|
there
shall be appointed a liquidator, trustee, administrator, receiver or
similar officer of the Company or a receiver of all or substantially all
of the Assets of the Company; or
|
|
(e)
|
all
or substantially all of the Assets of the Company shall be attached or
distrained upon or the same shall become subject at any time to any order
of a court or other process and such attachment, distraint, order or
process shall remain in effect and shall not be discharged within thirty
days; or
|
|
(f)
|
the
Company shall become insolvent (in Slovak: v úpadku) or be
declared insolvent by a competent governmental or judicial authority or
shall admit in writing its inability to pay its debts as they fall due;
or
|
|
(g)
|
a
moratorium shall be made or declared in respect of all or any Financial
Indebtedness of the Company.
|
|
19.6
|
Cessation
of business
|
The
Company ceases or threatens to cease to carry on the whole or a substantial part
of its business, save as permitted by Clause 18.6 (Disposals) and Clause 18.7
(Mergers).
|
19.7
|
Revocation
of authorisation
|
|
(a)
|
Any
authorisation or other requirement of any governmental, judicial or public
body or authority necessary to enable the Company under any applicable law
or regulation to perform its obligations under the Finance Documents or
for its businesses or required for the validity or enforceability of the
Finance Documents shall be modified, revoked, withdrawn or withheld in any
material respect or shall fail to remain in full force and effect for more
than 30 days.
|
|
(b)
|
The
Company fails to comply with any authorisation or other requirement set
out in paragraph (a) of this Clause
19.7.
|
41
|
19.8
|
Expropriation
|
All or
any substantial part of the Assets of the Company shall be seized or
expropriated by any authority.
|
19.9
|
Unlawfulness
|
At any
time it is unlawful for the Company to perform such of its obligations under the
Finance Document as are, in the reasonable opinion of the Facility Agent,
material.
|
19.10
|
Ownership
of the Company
|
The
entire commercial participation of the Company (as determined on an annualised
basis for the financial year ended 31 December 2009) after the date of this
Agreement ceases to be directly or indirectly beneficially owned by U. S. Steel,
unless such cessation results from a Permitted Merger.
|
19.11
|
Acceleration
|
If an
Event of Default is outstanding, the Facility Agent may, and must if so
instructed by the Majority Lenders, by notice to the Company:
|
|
(a)
|
cancel
all or any part of the Total Commitments;
and/or
|
|
|
(b)
|
declare
that all or part of any amounts outstanding under the Finance Documents
are:
|
|
|
(i)
|
immediately
due and payable; and/or
|
|
|
(ii)
|
payable
on demand by the Facility Agent acting on the instructions of the Majority
Lenders.
|
Any
notice given under this Subclause will take effect in accordance with its
terms.
|
20.
|
THE
ADMINISTRATIVE PARTIES
|
|
20.1
|
Appointment
and duties of the Facility Agent
|
|
(a)
|
Each
Finance Party (other than the Facility Agent) irrevocably appoints the
Facility Agent to act as its agent under and in connection with the
Finance Documents.
|
|
(b)
|
Each
Finance Party irrevocably authorises the Facility Agent
to:
|
|
|
(i)
|
perform
the duties and to exercise the rights, powers and discretions that are
specifically given to it under the Finance Documents, together with any
other incidental rights, powers and discretions;
and
|
|
|
(ii)
|
enter
into and deliver each Finance Document expressed to be entered into by the
Facility Agent.
|
|
(c)
|
The
Facility Agent has only those duties that are expressly specified in the
Finance Documents. Those duties are solely of a mechanical and
administrative nature.
|
42
|
20.2
|
Role
of the Arranger
|
Except as
specifically provided in the Finance Documents, the Arranger has no obligations
of any kind to any other Party in connection with any Finance
Document.
|
20.3
|
No
fiduciary duties
|
|
(a)
|
Nothing
in the Finance Documents makes an Administrative Party a trustee or
fiduciary for any other Party or any other
person.
|
|
(b)
|
No
Administrative Party need hold in trust any moneys paid to it or recovered
by it for a Party in connection with the Finance Documents or be liable to
account for interest on those
moneys.
|
|
20.4
|
Individual
position of an Administrative Party
|
|
(a)
|
If
it is also a Lender, each Administrative Party has the same rights and
powers under the Finance Documents as any other Lender and may exercise
those rights and powers as though it were not an Administrative
Party.
|
|
(b)
|
Each
Administrative Party may:
|
|
|
(i)
|
carry
on any business with the Company or its related entities (including acting
as an agent or a trustee for any other financing);
and
|
|
|
(ii)
|
retain
any profits or remuneration it receives under the Finance Documents or in
relation to any other business it carries on with the Company or its
related entities.
|
|
20.5
|
Reliance
|
The
Facility Agent may:
|
|
(a)
|
rely
on any notice or document believed by it to be genuine and correct and to
have been signed by, or with the authority of, the proper
person;
|
|
|
(b)
|
rely
on any statement made by any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his power to
verify;
|
|
|
(c)
|
engage,
pay for and rely on professional advisers selected by it (including those
representing a Party other than the Facility Agent);
and
|
|
|
(d)
|
act
under the Finance Documents through its personnel and
agents.
|
|
20.6
|
Majority
Lenders' instructions
|
|
(a)
|
The
Facility Agent is fully protected if it acts on the instructions of the
Majority Lenders in the exercise of any right, power or discretion or any
matter not expressly provided for in the Finance Documents. Any
such instructions given by the Majority Lenders will be binding on all the
Lenders. In the absence of instructions, the Facility Agent may
act as it considers to be in the best interests of all the
Lenders.
|
|
(b)
|
The
Facility Agent may assume that unless it has received notice to the
contrary, any right, power, authority or discretion vested in any Party or
the Majority Lenders has not been
exercised.
|
43
|
(c)
|
The
Facility Agent may refrain from acting in accordance with the instructions
of the Majority Lenders (or, if appropriate, the Lenders) until it has
received security satisfactory to it, whether by way of payment in advance
or otherwise, against any liability or loss which it may incur in
complying with the instructions.
|
|
(d)
|
The
Facility Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or arbitration
proceedings in connection with any Finance
Document.
|
|
20.7
|
Responsibility
|
|
(a)
|
No
Administrative Party is responsible for the adequacy, accuracy or
completeness of any statement or information (whether written or oral)
made in or supplied in connection with any Finance
Document.
|
|
(b)
|
No
Administrative Party is responsible for the legality, validity,
effectiveness, adequacy, completeness or enforceability of any Finance
Document or any other document.
|
|
(c)
|
Without
affecting the responsibility of the Company for information supplied by it
or on its behalf in connection with any Finance Document, each Lender
confirms that it:
|
|
|
(i)
|
has
made, and will continue to make, its own independent appraisal of all
risks arising under or in connection with the Finance Documents
(including, without limitation, the financial condition and affairs of the
Company and its related entities and the nature and extent of any recourse
against any Party or its assets);
and
|
|
|
(ii)
|
has
not relied exclusively on any information provided to it by any
Administrative Party in connection with any Finance Document or agreement
entered into in anticipation of or in connection with any Finance
Document.
|
|
20.8
|
Exclusion
of liability
|
|
(a)
|
The
Facility Agent is not liable or responsible to any other Finance Party for
any action taken or not taken by it in connection with any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
|
|
(b)
|
No
Party (other than the relevant Administrative Party) may take any
proceedings against any officers, employees or agents of an Administrative
Party in respect of any claim it might have against that Administrative
Party or in respect of any act or omission of any kind by that officer,
employee or agent in connection with any Finance Document. Any
officer, employee or agent of an Administrative Party may rely on this
Subclause and enforce its terms under the Contracts (Rights of Third
Parties) Xxx 0000.
|
|
(c)
|
The
Facility Agent is not liable for any delay (or any related consequences)
in crediting an account with an amount required under the Finance
Documents to be paid by the Facility Agent if the Facility Agent has taken
all necessary steps as soon as reasonably practicable to comply with the
regulations or operating procedures of any recognised clearing or
settlement system used by the Facility Agent for that
purpose.
|
|
(d)
|
(i)
|
Nothing
in this Agreement will oblige any Administrative Party to satisfy any know
your customer requirement in relation to the identity of any person on
behalf of any Finance Party.
|
44
|
|
(ii)
|
Each
Finance Party confirms to each Administrative Party that it is solely
responsible for any know your customer requirements it is required to
carry out and that it may not rely on any statement in relation to those
requirements made by any other
person.
|
|
20.9
|
Default
|
|
(a)
|
The
Facility Agent is not obliged to monitor or enquire whether a Default has
occurred. The Facility Agent is not deemed to have knowledge of
the occurrence of a Default.
|
|
(b)
|
If
the Facility Agent:
|
|
|
(i)
|
receives
notice from a Party referring to this Agreement, describing a Default and
stating that the event is a Default;
or
|
|
|
(ii)
|
is
aware of the non-payment of any principal, interest or fee payable to a
Finance Party (other than the Facility Agent or an Arranger) under this
Agreement,
|
it must
promptly notify the other Finance Parties.
|
20.10
|
Information
|
|
(a)
|
The
Facility Agent must promptly forward to the person concerned the original
or a copy of any document that is delivered to the Facility Agent by a
Party for that person.
|
|
(b)
|
Except
where a Finance Document specifically provides otherwise, the Facility
Agent is not obliged to review or check the adequacy, accuracy or
completeness of any document it forwards to another
Party.
|
|
(c)
|
Except
as provided in paragraphs (a) and (b) of this Clause 20.10, the Facility
Agent has no duty:
|
|
|
(i)
|
either
initially or on a continuing basis to provide any Lender with any credit
or other information concerning the risks arising under or in connection
with the Finance Documents (including, without limitation, any information
relating to the financial condition or affairs of the Company or its
related entities or the nature or extent of recourse against any Party or
its assets) whether coming into its possession before, on or after the
date of this Agreement; or
|
|
|
(ii)
|
unless
specifically requested to do so by a Lender in accordance with a Finance
Document, to request any certificate or other document from the
Company.
|
|
(d)
|
In
acting as the Facility Agent, the Facility Agent will be regarded as
acting through its agency division which will be treated as a separate
entity from its other divisions and departments. Any
information acquired by the Facility Agent which, in its opinion, is
acquired by another division or department or otherwise than in its
capacity as the Facility Agent may be treated as confidential by the
Facility Agent and will not be treated as information possessed by the
Facility Agent in its capacity as
such..
|
|
(e)
|
The
Facility Agent is not obliged to disclose to any person any confidential
information supplied to it by or on behalf of a member of the Group which
was supplied to it solely for the purpose of evaluating whether any waiver
or amendment is required in respect of any term of the Finance
Documents.
|
45
|
(f)
|
The
Company irrevocably authorises the Facility Agent to disclose to the other
Finance Parties any information that, in its opinion, is received by it in
its capacity as the Facility Agent.
|
|
20.11
|
Indemnities
|
|
(a)
|
Without
limiting the liability of the Company under the Finance Documents, each
Lender must indemnify the Facility Agent for that Lender's Pro Rata Share
of any loss or liability incurred by the Facility Agent in acting as the
Facility Agent (unless the Facility Agent has been reimbursed by the
Company under a Finance Document), except to the extent that the loss or
liability is caused by the Facility Agent's gross negligence or wilful
misconduct.
|
|
(b)
|
If
a Party owes an amount to the Facility Agent under the Finance Documents,
the Facility Agent may, after giving notice to that
Party:
|
|
|
(i)
|
deduct
from any amount received by it for that Party any amount due to the
Facility Agent from that Party under a Finance Document but unpaid;
and
|
|
|
(ii)
|
apply
that amount in or towards satisfaction of the owed
amount.
|
That
Party will be regarded as having received the amount so deducted.
|
20.12
|
Compliance
|
Each
Administrative Party may refrain from doing anything (including, without
limitation, disclosing any information) which might, in its opinion, constitute
a breach of any law or regulation or be otherwise actionable at the suit of any
person, and may do anything which, in its opinion, is necessary or desirable to
comply with any law or regulation.
|
20.13
|
Resignation
of the Facility Agent
|
|
(a)
|
The
Facility Agent may resign and appoint any of its Affiliates as successor
Facility Agent by giving notice to the other Finance Parties and the
Company.
|
|
(b)
|
Alternatively,
the Facility Agent may resign by giving notice to the Finance Parties and
the Company, in which case the Majority Lenders may appoint a successor
Facility Agent.
|
|
(c)
|
If
no successor Facility Agent has been appointed under paragraph (b) of
this Clause 20.13 within 30 days after notice of resignation was
given, the Facility Agent may appoint a successor Facility
Agent.
|
|
(d)
|
The
person(s) appointing a successor Facility Agent must, if practicable,
consult with the Company prior to the appointment. Any
successor Facility Agent must have an office in the
Republic.
|
|
(e)
|
The
resignation of the Facility Agent and the appointment of any successor
Facility Agent will both become effective only when the successor Facility
Agent notifies all the Parties that it accepts its
appointment. On giving the notification the successor Facility
Agent will succeed to the position of the Facility Agent and the term
Facility Agent
will thereafter mean the successor Facility
Agent.
|
|
(f)
|
The
retiring Facility Agent must, at its own
cost:
|
|
|
(i)
|
make
available to the successor Facility Agent those documents and records and
provide any assistance as the successor Facility Agent may reasonably
request for the purposes of performing its functions as the Facility Agent
under the Finance Documents;
and
|
46
|
|
(ii)
|
enter
into and deliver to the successor Facility Agent those documents and
effect any registrations as may be required for the transfer or assignment
of all of its rights and benefits under the Finance Documents to the
successor Facility Agent.
|
|
(g)
|
Upon
its resignation becoming effective, this Clause will continue to
benefit the retiring Facility Agent in respect of any action taken or not
taken by it in connection with the Finance Documents while it was the
Facility Agent, and, subject to paragraph (f) of this Clause 20.13,
it will have no further obligations under any Finance
Document.
|
|
(h)
|
The
Majority Lenders may, by notice to the Facility Agent, require it to
resign under paragraph (b) of this Clause
20.13.
|
|
20.14
|
Relationship
with Lenders
|
|
(a)
|
The
Facility Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and as acting through its Facility Office(s) until it
has received not less than five Business Days' prior notice from that
Lender to the contrary.
|
|
(b)
|
The
Facility Agent may at any time, and must if requested to do so by the
Majority Lenders, convene a meeting of the
Lenders.
|
|
(c)
|
The
Facility Agent must keep a record of all the Parties and supply any other
Party with a copy of the record on request. The record will
include each Lender's Facility Office(s) and contact details for the
purposes of this Agreement.
|
|
20.15
|
Facility
Agent's management time
|
If the
Facility Agent requires, any amount payable to the Facility Agent by any Party
under any indemnity or in respect of any costs or expenses incurred by the
Facility Agent under the Finance Documents after the date of this Agreement may
include the cost of using its management time or other resources and will be
calculated on the basis of such reasonable daily or hourly rates as the Facility
Agent may notify to the relevant Party. This is in addition to any
amount in respect of fees or expenses paid or payable to the Facility Agent
under any other term of the Finance Documents.
|
20.16
|
Notice
period
|
Where
this Agreement specifies a minimum period of notice to be given to the Facility
Agent, the Facility Agent may, at its discretion, accept a shorter notice
period.
|
21.
|
EVIDENCE
AND CALCULATIONS
|
|
21.1
|
Accounts
|
Accounts
maintained by a Finance Party in connection with this Agreement are prima facie
evidence of the matters to which they relate for the purpose of any litigation
or arbitration proceedings.
47
|
21.2
|
Certificates
and determinations
|
Any
certification or determination by a Finance Party of a rate or amount under the
Finance Documents will be, in the absence of manifest error, conclusive evidence
of the matters to which it relates.
|
21.3
|
Calculations
|
Any
interest or fee accruing under this Agreement accrues from day to day and is
calculated on the basis of the actual number of days elapsed and a year of 360
days or otherwise, depending on what the Facility Agent determines is market
practice.
|
22.
|
FEES
|
|
22.1
|
Facility
Agent's fee
|
The
Company must pay to the Facility Agent for its own account an agency fee in the
amount and manner agreed in the Fee Letter between the Facility Agent and the
Company.
|
22.2
|
Arrangement
fee
|
The
Company must pay to the Arrangers for their own account an arrangement fee in
the amount and manner agreed in the Fee Letter between the Arrangers and the
Company.
|
22.3
|
Commitment
fee
|
|
(a)
|
The
Company must pay to the Facility Agent for each Lender a commitment fee
computed at the rate of 0.90 per cent. per annum on the unutilised,
uncancelled amount of each Lender's
Commitment.
|
|
(b)
|
Accrued
commitment fee is payable quarterly in arrear. Accrued commitment fee is
also payable to the Facility Agent for a Lender on the date its Commitment
is cancelled in full.
|
|
23.
|
INDEMNITIES
AND BREAK COSTS
|
|
23.1
|
Currency
indemnity
|
|
(a)
|
If
a Finance Party receives an amount in respect of the Company's liability
under the Finance Documents (other than by reason of the Facility Agent
not performing its obligations under this Agreement) or if that liability
is converted into a claim, proof, judgment or order in a currency other
than the currency (the contractual currency) in which the liability is
expressed to be payable under the relevant Finance
Document:
|
|
|
(i)
|
the
Company shall indemnify that Finance Party as an independent obligation
against any loss or liability arising out of or as a result of the
conversion;
|
|
|
(ii)
|
if
the amount received by that Finance Party, when converted into the
contractual currency at a market rate in the usual course of its business
is less than the amount owed in the contractual currency, the Company
concerned shall pay to that Finance Party an amount in the contractual
currency equal to the deficit; and
|
|
|
(iii)
|
the
Company shall pay to the Finance Party concerned any exchange costs and
taxes payable in connection with any such
conversion.
|
48
|
(b)
|
The
Company waives any right it may have in any jurisdiction to pay any amount
under the Finance Documents in a currency other than that in which it is
expressed to be payable.
|
|
23.2
|
Other
indemnities
|
|
(a)
|
The
Company must indemnify each Finance Party against any loss or liability
which that Finance Party incurs as a consequence
of:
|
|
|
(i)
|
the
occurrence of any Event of Default;
|
|
|
(ii)
|
Clause
19.11 (Acceleration);
|
|
|
(iii)
|
any
failure by the Company to pay any amount due under a Finance Document on
its due date, including any resulting from any distribution or
redistribution of any amount among the Lenders under this
Agreement;
|
|
|
(iv)
|
(other
than by reason of negligence or default by that Finance Party) a Loan not
being made after a Request has been delivered for that Loan;
or
|
|
|
(v)
|
a
Loan (or part of a Loan) not being prepaid in accordance with this
Agreement.
|
The
Company's liability in each case includes any loss or expense on account of
funds borrowed, contracted for or utilised to fund any amount payable under any
Finance Document or any Loan.
|
(b)
|
The
Company must indemnify the Facility Agent against any loss or liability
incurred by the Facility Agent as a result
of:
|
|
(i)
|
investigating
any event which the Facility Agent reasonably believes to be a Default;
or
|
|
(ii)
|
acting
or relying on any notice that the Facility Agent reasonably believes to be
genuine, correct and appropriately
authorised.
|
|
23.3
|
Break
Costs
|
|
(a)
|
The
Company must pay to each Lender its Break Costs as compensation if any
part of a Loan is prepaid.
|
|
(b)
|
Break
Costs are the amount (if any) reasonably determined by the relevant Lender
by which:
|
|
|
(i)
|
the
interest which that Lender would have received for the period from the
date of receipt of any part of its share in a Loan to the last day of the
applicable Term for that Loan if the principal received had been paid on
the last day of that Term;
|
exceeds
|
|
(ii)
|
the
amount which that Lender would be able to obtain by placing an amount
equal to the amount received by it on deposit with a leading bank in the
appropriate interbank market for a period starting on the Business Day
following receipt and ending on the last day of the applicable
Term.
|
|
(c)
|
Each
Lender must promptly supply to the Facility Agent for the Company details
of the amount of any Break Costs claimed by it under this Clause
23.3.
|
49
|
24.
|
EXPENSES
|
|
24.1
|
Initial
costs
|
|
(a)
|
The
Company must pay to or reimburse on demand the Facility Agent the amount
of all reasonable and documented costs and expenses (including without
limitation reasonable legal fees) reasonably incurred by the Facility
Agent in connection with the negotiation, preparation, printing, entry
into of this Agreement, and regardless of whether the Company utilises the
facility under this Agreement.
|
|
(b)
|
In
relation to the negotiation, preparation, printing, and entry into of the
Finance Documents up until the date of this Agreement, there shall be a
cap on legal fees of EUR 10,000 (plus VAT and reasonable and documented
out-pf pocket disbursements, if
any).
|
|
24.2
|
Subsequent
costs
|
The
Company must pay to or reimburse on demand the Facility Agent the amount of all
costs and expenses (including legal fees) reasonably incurred by it in
connection with:
|
|
(a)
|
the
negotiation, preparation, printing and entry into of any Finance Document
(other than a Transfer Certificate) executed after the date of this
Agreement; and
|
|
|
(b)
|
any
amendment, waiver or consent requested by or on behalf of the Company or
specifically allowed by this
Agreement.
|
|
24.3
|
Enforcement
costs
|
The
Company must pay to each Finance Party the amount of all costs and expenses
(including reasonable legal fees) reasonably incurred by it in connection with
the enforcement of, or the preservation of any rights under, any Finance
Document.
|
25.
|
AMENDMENTS
AND WAIVERS
|
|
25.1
|
Procedure
|
|
(a)
|
Except
as provided in this Clause, any term of the Finance Documents may be
amended or waived with the agreement of the Company and the Majority
Lenders. The Facility Agent may effect, on behalf of any
Finance Party, an amendment or waiver allowed under this
Clause.
|
|
(b)
|
The
Facility Agent must promptly notify the other Parties of any amendment or
waiver effected by it under paragraph (a) of this Clause
25.1. Any such amendment or waiver is binding on all the
Parties.
|
|
25.2
|
Exceptions
|
|
(a)
|
An
amendment or waiver which relates
to:
|
|
|
(i)
|
the
definition of Majority
Lenders in Clause 1.1 (Definitions);
|
|
|
(ii)
|
an
extension of the date of payment of any amount to a Lender under the
Finance Documents;
|
|
|
(iii)
|
a
reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fee or other amount payable to a Lender under the
Finance Documents;
|
50
|
|
(iv)
|
an
increase in, or an extension of, a Commitment or the Total
Commitments;
|
|
|
(v)
|
a
term of a Finance Document which expressly requires the consent of each
Lender;
|
|
|
(vi)
|
the
right of a Lender to assign or transfer its rights or obligations under
the Finance Documents; or
|
|
|
(vii)
|
this
Clause 25.2,
|
may only
be made with the consent of all the Lenders.
|
(b)
|
An
amendment or waiver that relates to the rights or obligations of an
Administrative Party may only be made with the consent of that
Administrative Party.
|
|
(c)
|
A
Fee Letter may be amended or waived with the agreement of the
Administrative Party that is a party to that Fee Letter and the
Company.
|
|
25.3
|
Change
of currency
|
If a
change in any currency of a country occurs (including where there is more than
one currency or currency unit recognised at the same time as the lawful currency
of a country), the Finance Documents will be amended to the extent the Facility
Agent (acting reasonably and after consultation with the Company) determines is
necessary to reflect the change.
|
25.4
|
Waivers
and remedies cumulative
|
The
rights of each Finance Party under the Finance Documents:
|
|
(a)
|
may
be exercised as often as necessary;
|
|
|
(b)
|
are
cumulative and not exclusive of its rights under the general law;
and
|
|
|
(c)
|
may
be waived only in writing and
specifically.
|
Delay in
exercising or non-exercise of any right is not a waiver of that
right.
|
26.
|
CHANGES
TO THE PARTIES
|
|
26.1
|
Assignments
and transfers by the Company
|
The
Company may not assign or transfer any of its rights and obligations under the
Finance Documents without the prior consent of all the Lenders.
|
26.2
|
Assignments
and transfers by Lenders
|
|
(a)
|
Subject
to paragraph (b) of this Clause 26.2, a Lender (the Existing Lender) may,
with the consent of the Company (such consent not to be unreasonably
withheld or delayed), at any time assign or transfer (including by way of
novation) any of its rights and obligations under this Agreement to
another bank or financial institution (the New
Lender).
|
|
(b)
|
No
consent shall be required from the Company
if:
|
|
|
(i)
|
an
Event of Default has occurred and is outstanding;
or
|
|
|
(ii)
|
if
the proposed New Lender is an Affiliate of the Existing Lender or another
Lender.
|
51
|
(c)
|
A
transfer of obligations will be effective only if
either:
|
|
|
(i)
|
the
obligations are novated in accordance with the following provisions of
this Clause; or
|
|
|
(ii)
|
the
New Lender confirms to the Facility Agent and the Company in form and
substance satisfactory to the Facility Agent that it is bound by the terms
of this Agreement as a Lender. On the transfer becoming effective in this
manner the Existing Lender will be released from its obligations under
this Agreement to the extent that they are transferred to the New
Lender.
|
|
(d)
|
Unless
the Facility Agent otherwise agrees, the New Lender must pay to the
Facility Agent for its own account, on or before the date any assignment
or transfer occurs, a fee of EUR
2,000.
|
|
(e)
|
Any
reference in this Agreement to a Lender includes a New Lender but excludes
a Lender if no amount is or may be owed to or by it under this
Agreement.
|
|
26.3
|
Procedure
for transfer by way of novations
|
|
(a)
|
In
this Subclause:
|
Transfer Date means, for a
Transfer Certificate, the later of:
|
|
(i)
|
the
proposed Transfer Date specified in that Transfer Certificate;
and
|
|
|
(ii)
|
the
date on which the Facility Agent executes that Transfer
Certificate.
|
|
(b)
|
A
novation is effected if:
|
|
|
(i)
|
the
Existing Lender and the New Lender deliver to the Facility Agent a duly
completed Transfer Certificate; and
|
|
|
(ii)
|
the
Facility Agent executes it.
|
The
Facility Agent must execute as soon as reasonably practicable a Transfer
Certificate delivered to it and which appears on its face to be in
order.
|
(c)
|
Each
Party (other than the Existing Lender and the New Lender) irrevocably
authorises the Facility Agent to execute any duly completed Transfer
Certificate on its behalf.
|
|
(d)
|
On
the Transfer Date:
|
|
|
(i)
|
the
New Lender will assume the rights and obligations of the Existing Lender
expressed to be the subject of the novation in the Transfer Certificate in
substitution for the Existing Lender;
and
|
|
|
(ii)
|
the
Existing Lender will be released from those obligations and cease to have
those rights.
|
|
(e)
|
The
Facility Agent must, as soon as reasonably practicable after it has
executed a Transfer Certificate, send a copy of that Transfer Certificate
to the Company.
|
52
|
26.4
|
Limitation
of responsibility of Existing
Lender
|
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
|
|
|
(i)
|
the
financial condition of the Company;
or
|
|
|
(ii)
|
the
legality, validity, effectiveness, enforceability, adequacy, accuracy,
completeness or performance of:
|
|
|
(A)
|
any
Finance Document or any other
document;
|
|
|
(B)
|
any
statement or information (whether written or oral) made in or supplied in
connection with any Finance Document,
or
|
|
|
(C)
|
any
observance by the Company of its obligations under any Finance Document or
other document,
|
and any
representations or warranties implied by law are excluded.
|
(b)
|
Each
New Lender confirms to the Existing Lender and the other Finance Parties
that it:
|
|
|
(i)
|
has
made, and will continue to make, its own independent appraisal of all
risks arising under or in connection with the Finance Documents
(including, without limitation, the financial condition and affairs of the
Company and its related entities and the nature and extent of any recourse
against any Party or its assets) in connection with its participation in
this Agreement; and
|
|
|
(ii)
|
has
not relied exclusively on any information supplied to it by the Existing
Lender in connection with any Finance
Document.
|
|
(c)
|
Nothing
in any Finance Document requires an Existing Lender
to:
|
|
|
(i)
|
accept
a re-transfer from a New Lender of any of the rights and obligations
assigned or transferred under this Clause;
or
|
|
|
(ii)
|
support
any losses incurred by the New Lender by reason of the non-performance by
the Company of its obligations under any Finance Document or
otherwise.
|
|
26.5
|
Costs
resulting from change of Lender or Facility
Office
|
If:
|
|
(a)
|
a
Lender assigns or transfers any of its rights and obligations under the
Finance Documents or changes its Facility Office;
and
|
|
|
(b)
|
as
a result of circumstances existing at the date the assignment, transfer or
change occurs, the Company would be obliged to pay a Tax Payment or an
Increased Cost,
|
then,
unless the assignment, transfer or change is made by a Lender to mitigate any
circumstances giving rise to the Tax Payment, Increased Cost or right to be
prepaid and/or cancelled by reason of illegality, the Company need only pay that
Tax Payment or Increased Cost to the same extent that it would have been obliged
to if no assignment, transfer or change had occurred.
53
|
26.6
|
Changes
to the Reference Banks
|
If a
Reference Bank (or, if a Reference Bank is not a Lender, the Lender of which it
is an Affiliate) ceases to be a Lender, the Facility Agent must (in consultation
with the Company) appoint another Lender or an Affiliate of a Lender to replace
that Reference Bank.
|
26.7
|
Security
over Lenders' rights
|
|
(a)
|
In
addition to the other rights provided to Lenders under this Clause 26 and
subject to paragraph (b) of this Clause 26.7, each Lender may at any time
charge, assign or otherwise create Security Interest in or over (whether
by way of collateral or otherwise) all or any of its rights under any
Finance Document to secure obligations of that Lender including, without
limitation:
|
|
|
(i)
|
any
charge, assignment or other Security Interest to secure obligations to a
federal reserve or central bank;
and
|
|
|
(ii)
|
in
the case of any Lender which is a fund, any charge, assignment or other
Security Interest granted to any holders (or trustee or representatives of
holders) of obligations owed, or securities issued, by that Lender as
security for those obligations or
securities,
|
except
that no such charge, assignment or Security Interest shall:
|
|
(A)
|
release
a Lender from any of its obligations under the Finance Documents or
substitute the beneficiary of the relevant charge, assignment or Security
Interest for the Lender as a party to any of the Finance Documents;
or
|
|
|
(B)
|
require
any payments to be made by the Company other than or in excess of, or
grant to any person any more extensive rights than, those required to be
made or granted to the relevant Lender under the Finance
Documents.
|
|
(b)
|
A
Lender may proceed pursuant to paragraph (a) of this Clause
26.7:
|
|
|
(i)
|
without
consulting with, or obtaining consent from, the Company, if the charge,
assignment, or other form of Security Interest over the rights of the
Lender is created:
|
|
|
(A)
|
in
favour of a federal reserve or central bank;
or
|
|
|
(B)
|
in
connection with receipt by the Lender or any of its Affiliates of public
aid or other form of state or international subsidy in favour
of:
|
|
|
I.
|
any
government, governmental entity or agency, regulatory agency,
international or public institution or other similar entity;
or
|
|
|
II.
|
any
entity or institution appointed for this purpose by any institution
specified in paragraph I. above by any such person for this purpose;
or
|
|
|
(ii)
|
with
the consent of the Company (such consent not to be unreasonably withheld
or delayed) in case other than pursuant to paragraph (i) of this Clause
26.7(b).
|
54
|
26.8
|
Replacement
of a Specified Lender
|
|
(a)
|
Subject
to paragraph (b) below, at any time a Lender has become and continues to
be a Specified Lender, the Company may, by giving 10 Business Days' prior
written notice to the Facility Agent and to such Specified Lender, replace
such Specified Lender by requiring such Specified Lender to (and such
Lender shall) transfer pursuant to Clause 26.2 (Assignments and transfers by
Lenders) all (and not part only) of its rights and obligations
under this Agreement to:
|
|
(i)
|
another
Lender selected by the Company that is not a Specified Lender;
or
|
|
(ii)
|
any
other bank, financial institution, trust, fund or other entity, selected
by the Company and acceptable to all Finance Parties (other than the
Specified Lender that is to be replaced pursuant to this Clause
26.8),
|
(the
entity pursuant to paragraph (i) or (ii) of this Clause 26.8(a) shall be
referred to as a Replacement
Lender), which Replacement Lender confirms its willingness to assume and
does assume all the obligations or all the relevant obligations of the
transferring Specified Lender (including the assumption of the transferring
Specified Lender's participations or unfunded participations, as the case may
be, on the same basis as the transferring Specified Lender) for a purchase price
in cash payable at the time of transfer equal to the outstanding principal
amount of such Lender's participation in the outstanding Loans and all accrued
interest fees, Break Costs and other amounts payable in relation thereto under
the Finance Documents.
|
(b)
|
Any
transfer of rights and obligations of a Specified Lender pursuant to this
Clause 26.8 shall be subject to the following further
conditions:
|
|
|
(i)
|
if
the Specified Lender to be replaced pursuant to this Clause 26.8 is also
the Facility Agent, the Company may require such Facility Agent to resign
pursuant to Clause 20.13(b);
|
|
|
(ii)
|
finding
of a suitable Replacement Lender is the responsibility of the Company and
neither the Facility Agent nor the Specified Lender shall have any
obligation to the Company to find a Replacement
Lender;
|
|
|
(iii)
|
the
transfer must take place no later than 30 Business Days after the notice
referred to in paragraph (a) of this Clause 26.8;
and
|
|
|
(iv)
|
in
no event shall the Specified Lender be required to pay or surrender to the
Replacement Lender any of the fees received by the Specified Lender
pursuant to the Finance Documents prior to the replacement pursuant to
paragraph (a) of this Clause 26.8 becoming
effective.
|
|
27.
|
DISCLOSURE
OF INFORMATION
|
|
(a)
|
Each
Finance Party must keep confidential any information supplied to it by or
on behalf of the Company in connection with the Finance Documents.
However, a Finance Party is entitled to disclose
information:
|
|
|
(i)
|
which
is publicly available, other than as a result of a breach by that Finance
Party of this Clause;
|
|
|
(ii)
|
in
connection with any legal or arbitration
proceedings;
|
55
|
|
(iii)
|
if
required to do so under any law or
regulation;
|
|
|
(iv)
|
to
a governmental, banking, taxation or other regulatory
authority;
|
|
|
(v)
|
to
its professional advisers;
|
|
|
(vi)
|
to
any person to whom or for whose benefit that Finance Party charges,
assigns or otherwise creates Security Interest (or may do so) pursuant to
Clause 26.7 (Security
over Lenders' rights);
|
|
|
(vii)
|
to
the extent allowed under paragraph (b) of this Clause 27;
or
|
|
|
(viii)
|
with
the agreement of the Company.
|
|
(b)
|
A
Finance Party may disclose to an Affiliate or any person with whom it may
enter, or has entered into, any kind of transfer, participation or other
agreement in relation to this Agreement (a participant):
|
|
|
(i)
|
a
copy of any Finance Document; and
|
|
|
(ii)
|
any
information that that Finance Party has acquired under or in connection
with any Finance Document.
|
However,
before a participant may receive any confidential information, it must agree
with the relevant Finance Party to keep that information confidential on the
terms of paragraph (a) of this Clause 27.
|
(c)
|
This
Clause supersedes any previous confidentiality undertaking given by a
Finance Party in connection with this Agreement prior to it becoming a
Party.
|
|
28.
|
SET-OFF
|
|
(a)
|
A
Finance Party may set off any matured obligation owed to it by the Company
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any obligation (whether or not matured) owed by
that Finance Party to the Company, regardless of the place of payment,
booking branch or currency of either obligation. If the
obligations are in different currencies, the Finance Party may convert
either obligation at a market rate of exchange in its usual course of
business for the purpose of the set-off. If either obligation
is unliquidated or unascertained, the Finance Party may set off in an
amount estimated by it in good faith to be the amount of that
obligation.
|
|
(b)
|
The
Company agrees to and confirms a Lender's rights of banker's lien and
set-off under applicable law and nothing herein shall be deemed a waiver
or prohibition of such right. Each Finance Party agrees to
exercise such rights only after the Company’s failure to pay following
proper demand and to promptly notify the Company after any such set off
and application; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and
application.
|
|
29.
|
PRO
RATA SHARING
|
|
29.1
|
Redistribution
|
If any
amount owing by the Company under this Agreement to a Finance Party (the recovering Finance Party) is
discharged by payment, set-off or any other manner other than in accordance with
this Agreement (a recovery),
then:
56
|
|
(a)
|
the
recovering Finance Party must, within three Business Days, supply details
of the recovery to the Facility
Agent;
|
|
|
(b)
|
the
Facility Agent must calculate whether the recovery is in excess of the
amount which the recovering Finance Party would have received if the
recovery had been received and distributed by the Facility Agent under
this Agreement; and
|
|
|
(c)
|
the
recovering Finance Party must pay to the Facility Agent an amount equal to
the excess (the redistribution).
|
|
29.2
|
Effect
of redistribution
|
|
(a)
|
The
Facility Agent must treat a redistribution as if it were a payment by the
Company under this Agreement and distribute it among the Finance Parties,
other than the recovering Finance Party,
accordingly.
|
|
(b)
|
When
the Facility Agent makes a distribution under paragraph (a) of this Clause
29.2, the recovering Finance Party will be subrogated to the rights of the
Finance Parties that have shared in that
redistribution.
|
|
(c)
|
If
and to the extent that the recovering Finance Party is not able to rely on
any rights of subrogation under paragraph (b) of this Clause 29.2, the
Company will owe the recovering Finance Party a debt that is equal to the
redistribution, immediately payable and of the type originally
discharged.
|
|
(d)
|
If:
|
|
|
(i)
|
a
recovering Finance Party must subsequently return a recovery, or an amount
measured by reference to a recovery, to the Company;
and
|
|
|
(ii)
|
the
recovering Finance Party has paid a redistribution in relation to that
recovery,
|
each
Finance Party, on the request of the Facility Agent, must reimburse the
recovering Finance Party all or the appropriate portion of the redistribution
paid to that Finance Party, together with interest for the period while it held
the redistribution. In this event, the subrogation in paragraph (b)
of this Clause 29.2 will operate in reverse to the extent of the
reimbursement.
|
29.3
|
Exceptions
|
Notwithstanding
any other term of this Clause, a recovering Finance Party need not pay a
redistribution to the extent that:
|
|
(a)
|
it
would not, after the payment, have a valid claim against the Company in
the amount of the redistribution;
or
|
|
|
(b)
|
it
would be sharing with another Finance Party any amount which the
recovering Finance Party has received or recovered as a result of legal or
arbitration proceedings, where:
|
|
|
(i)
|
the
recovering Finance Party notified the Facility Agent of those proceedings;
and
|
57
|
|
(ii)
|
the
other Finance Party had an opportunity to participate in those proceedings
but did not do so or did not take separate legal or arbitration
proceedings as soon as reasonably practicable after receiving notice of
them.
|
|
30.
|
SEVERABILITY
|
If a term
of a Finance Document is or becomes illegal, invalid or unenforceable in any
respect under any jurisdiction, that will not affect:
|
|
(a)
|
the
legality, validity or enforceability in that jurisdiction of any other
term of the Finance Documents; or
|
|
|
(b)
|
the
legality, validity or enforceability in other jurisdictions of that or any
other term of the Finance
Documents.
|
|
31.
|
COUNTERPARTS
|
Each
Finance Document may be executed in any number of counterparts. This
has the same effect as if the signatures on the counterparts were on a single
copy of the Finance Document.
|
32.
|
NOTICES
|
|
32.1
|
Giving
of notices
|
All
notices or other communications under or in connection with this Agreement shall
be given in writing and, unless otherwise stated, may be made by letter or
facsimile. Any such notice will be deemed to be given as
follows:
|
|
(a)
|
if
by letter, when delivered personally or on actual receipt;
and
|
|
|
(b)
|
if
by facsimile, when received in legible
form.
|
However,
a notice given in accordance with this Clause 32.1 but received on a non-working
day or after business hours in the place of receipt will only be deemed to be
given on the next working day in that place.
|
32.2
|
Addresses
for notices
|
|
(a)
|
The
address and facsimile number of the Company
are:
|
U. S.
Steel Košice, s.r.o.
Xxxxxxx
xxxxx X. X. Xxxxx
000 00
Košice
The
Slovak Republic
Attention:
Chief Financial Officer
Fax: 00421-95-673-0858
and
copied to:
United
States Steel Corporation
000 Xxxxx
Xxxxxx
Xxxxxxxxxx,
XX 00000
Attention:
Assistant Treasurer - Finance & Risk Management
Fax 001
412 433 4756
58
or such
other as the Company may notify to the Facility Agent by not less than five
Business Days' notice.
|
(b)
|
The
address and facsimile number of the Facility Agent
are:
|
ING Bank N. V.,
pobočka zahraničnej banky
Jesenského
0/X
000 00
Xxxxxxxxxx
Xxx
Xxxxxx Xxxxxxxx
|
Attention:
|
Xxxxxx
Xxxxxxxxx / Xxxxx Xxxxxxx
|
|
With
a copy to:
|
Xxxxxxxx
Xxxxxxxx / Xxxxx Xxxxxxxxx
|
|
Tel
number:
|
x000
0 000 00 000, x000 0 000 00 000
|
|
Fax
number:
|
x000
0 000 00 000
|
|
E-mail:
|
xxxxxx.xxxxxxxxx@xxx.xx
/ xxxxx.xxxxxx@xxx.xx
|
|
xxxxxxxx.xxxxxxxx@xxx.xx
/ xxxxx.xxxxxxxxx@xxx.xx
|
or such
other as the Facility Agent may notify to the other Parties by not less than
five Business Days' notice.
|
32.3
|
The
Company
|
All
formal communication under the Finance Documents to or from the Company must be
sent through the Facility Agent.
|
33.
|
LANGUAGE
|
|
(a)
|
Any
notice given in connection with a Finance Document must be in
English.
|
|
(b)
|
Any
other document provided in connection with a Finance Document must
be:
|
|
|
(i)
|
in
English; or
|
|
|
(ii)
|
(unless
the Facility Agent otherwise agrees) accompanied by a certified English
translation. In this case, the English translation prevails
unless the document is a statutory or other official
document.
|
|
34.
|
GOVERNING
LAW
|
This
Agreement is governed by English law.
|
35.
|
ENFORCEMENT
|
|
35.1
|
Jurisdiction
|
|
(a)
|
The
English courts have jurisdiction to settle any dispute in connection with
any Finance Document.
|
|
(b)
|
This
Clause is for the benefit of the Finance Parties only. To the
extent allowed by law, the Finance Parties may
take:
|
|
(i)
|
proceedings
in any other court; and
|
|
(ii)
|
concurrent
proceedings in any number of
jurisdictions.
|
59
|
(c)
|
References
in this Clause to a dispute in connection with a Finance Document include
any dispute as to the existence, validity or termination of that Finance
Document.
|
|
35.2
|
Service
of process
|
Without
prejudice to any other mode of service, the Company:
|
|
(a)
|
irrevocably
appoints The London Law Agency Limited 00 Xxxxxxxxxxx Xxx, Xxxxxx XX0X
0XX, Xxxxxxx as its agent for
service of process in relation to any proceedings before the English
courts in connection with any Finance
Document;
|
|
|
(b)
|
agrees
to maintain such an agent for service of process in England for so long as
any amount is outstanding under this
Agreement;
|
|
|
(c)
|
agrees
that failure by the process agent to notify the Company of the process
will not invalidate the proceedings
concerned;
|
|
|
(d)
|
consents
to the service of process relating to any such proceedings by the delivery
a copy of the process at its address for the time being applying under
Clause 32.2 (Addresses for notices);
and
|
|
|
(e)
|
agrees
that if the appointment of any person mentioned in paragraph (a) of
this Clause 35.2 ceases to be effective, the Company 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
Facility Agent is entitled to appoint such a person by notice to the
Company.
|
|
35.3
|
Forum
convenience and enforcement abroad
|
The
Company:
|
|
(a)
|
waives
objection to the English courts on grounds of inconvenient forum or
otherwise as regards proceedings in connection with a Finance Document;
and
|
|
|
(b)
|
agrees
that a judgment or order of an English court in connection with a Finance
Document is conclusive and binding on it and may be enforced against it in
the courts of any other
jurisdiction.
|
|
35.4
|
Non-exclusivity
|
Nothing
in this Clause 35 limits the right of a Finance Party to bring proceedings
against the Company in connection with any Finance Document:
|
|
(a)
|
in
any other court of competent jurisdiction;
or
|
|
|
(b)
|
concurrently
in more than one jurisdiction.
|
|
35.5
|
Waiver
of immunity
|
The
Company irrevocably and unconditionally:-
|
|
(a)
|
agrees
not to claim any immunity from proceedings brought by a Finance Party
against the Company in relation to a Finance Document and to ensure that
no such claim is made on its
behalf;
|
60
|
|
(b)
|
consents
generally to the giving of any relief or the issue of any process in
connection with those proceedings;
and
|
|
|
(c)
|
waives
all rights of immunity in respect of it or its
assets.
|
|
35.6
|
Waiver
of trial by jury
|
EACH
PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION IN CONNECTION WITH ANY FINANCE DOCUMENT OR ANY TRANSACTION CONTEMPLATED
BY ANY FINANCE DOCUMENT. THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO
TRIAL BY COURT.
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
61
SCHEDULE
1
ORIGINAL
PARTIES
|
Name
of Original Lender
|
Commitments
|
|||
|
COMMERZBANK
Aktiengesellschaft, with its registered seat at Xxxxxxxxxxx 00, 000
00 Xxxxxxxxx xx Xxxx, Xxxxxxx Xxxxxxxx Germany, entered in the Commercial
Register at the District Court Frankfurt am Main under Entry HR B 32000,
acting through its organisational unit COMMERZBANK
Aktiengesellschaft, pobočka zahraničnej banky, Bratislava, with its
seat at Bratislava 1, Xxxxxx 00/X, Xxxxxxxx 000 00, Ident. No.: 30847737,
entered in the Commercial Register of the District Court Bratislava I,
Sec. Po, Insert No. 1121/B
|
€ | 50,000,000 | ||
|
ING Bank N.V., with its
registered seat at Xxxxxxxxxxxx 000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, a
company limited by shares, registered in the Trade Register of Chamber of
Commerce and Industry for Amsterdam under file No. 33031431 acting through
its organisational unit ING Bank N.V.,
pobočka zahraničnej banky, Xxxxxxxxxx 0/X, 000 00 Xxxxxxxxxx,
Xxxxxx Xxxxxxxx, Identification No. 30 844 754, registered in the
Commercial register maintained by the District Court of Bratislava I, in
Section Po, inserted file No. 130/B
|
€ | 50,000,000 | ||
|
Slovenská
sporiteľňa, a.s., with its registered seat at Xxxxxxxxxx 00, 000 00
Xxxxxxxxxx, Xxxxxx Xxxxxxxx, Identification No. 00 151 653, registered in
the Commercial register maintained by the District Court of Bratislava I,
in Section Sa, insert No. 601/B
|
€ | 50,000,000 | ||
|
Citibank Europe plc,
with its registered seat at North Wall Xxxx 0, Xxxxxx 0, Xxxxxxxx of
Ireland, registered with the Companies Registration Office under No.
132781, acting through its organisational unit Citibank
Europe plc, pobočka zahraničnej banky, with its registered office
at Xxxxxxx xxxx 00, 000 00 Xxxxxxxxxx, Xxxxxx Xxxxxxxx, Identification No.
36 861 260, registered in the Commercial register maintained by the
District Court of Bratislava I, in Section Po, insert No.
1662/B
|
€ | 25,000,000 | ||
|
HSBC
Bank plc, with its
registered office at 0 Xxxxxx Xxxxxx, Xxxxxx, X00 0XX, Xxxxxx Xxxxxxx of
Great Britain and Northern Ireland, registered by the Companies House
under number 14259 and acting through its organisational unit HSBC
Bank plc, pobočka
zahraničnej banky, with its registered office at Europeum Business
Center, Xxxxx Xxxx 0, 000 00 Xxxxxxxxxx, Identification number (IČO): 35
929 979, registered in the Commercial Register kept by the District Court
Bratislava I, section: Po, insert No.:
1258/B
|
€ | 25,000,000 | ||
|
Total
Commitments
|
€ | 200,000,000 | ||
62
SCHEDULE
2
CONDITIONS
PRECEDENT DOCUMENTS
|
1.
|
A
copy of the constitutional documents of the Company.
|
|
|
2.
|
A
specimen of the signature of each person authorised to sign this Agreement
on behalf of the Company and to sign and/or despatch all documents and
notices to be signed and/or despatched by the Company under or in
connection with this Agreement.
|
|
|
3.
|
Evidence
that the process agent referred to in Clause 35.2 (Service of process) has
accepted its appointment under that Clause.
|
|
|
4.
|
An
extract from the Company's entry in the Commercial Registry,
sealed/stamped by the Košice Commercial Registry, as at a date no earlier
than one week prior to the date of the Agreement and certified by an
authorised signatory of the Company, as at a date no earlier than the date
of this Agreement, confirming the accuracy of all facts shown in the
extract, except with respect to the attached amendments which have been
filed with the Commercial Registry.
|
|
|
5.
|
A
copy of any other authorisation or other document, opinion or assurance
that the Facility Agent, acting reasonably, considers to be necessary or
desirable in connection with the entry into and performance of, and the
transactions contemplated by, any Finance Document or for the validity and
enforceability of any Finance Document.
|
|
|
6.
|
A
certificate of an authorised signatory of U. S. Steel certifying that the
Company is a 100% owned Subsidiary of U. S. Steel.
|
|
|
7.
|
A
certificate of an authorised signatory of the Company certifying that each
copy document delivered under this Schedule 2 is correct, complete and in
full force and effect as at a date no earlier than the date of this
Agreement.
|
|
|
8.
|
(a)
|
A
legal opinion of a legal adviser to the Company in the Republic,
substantially in the form of Schedule 5, addressed to the Finance
Parties;
|
|
(b)
|
a
legal opinion of Xxxxxx Xxxxx & Overy Iroda, Budapest, legal advisers
to the Lenders in relation to the laws of England, substantially in the
form of Schedule 6, addressed to the Finance Parties;
and
|
|
|
(c)
|
a
legal opinion of Xxxxx & Overy Bratislava, s.r.o., legal advisers to
the Lenders in relation to the laws of the Republic, substantially in the
form of Schedule 7, addressed to the Finance Parties;
and
|
|
|
9.
|
Fee
Letter in relation to the arrangement fees.
|
|
|
10.
|
Fee
Letter in relation to the Facility Agent's fees.
|
|
|
11.
|
Evidence
that all fees and expenses then due and payable from the Company under
this Agreement have been or will be paid by the first Utilisation
Date.
|
|
63
SCHEDULE
3
FORM
OF REQUEST
|
To:
|
ING
Bank N.V., pobočka zahraničnej
banky as Facility Agent
|
|
From:
|
U.S.
Steel Košice, s.r.o.
|
|
Date:
|
[ ]
|
U.
S. Steel Košice, s.r.o. - €200,000,000 Credit Agreement
dated 6 August, 2010 (the Agreement)
|
1.
|
We
refer to the Agreement. This is a
Request.
|
|
2.
|
We
wish to borrow a Loan on the following
terms:
|
|
(a)
|
Utilisation
Date:
|
[
|
];
|
|
|
(b)
|
Amount/currency:
|
[
|
];
|
|
|
(c)
|
Term:
|
[
|
].
|
|
3.
|
Our
payment instructions
are:
[ ].
|
|
4.
|
We
confirm that each condition precedent under the Agreement that must be
satisfied on the date of this Request is so
satisfied.
|
|
5.
|
This
Request is irrevocable.
|
|
6.
|
With
reference to Clause 17.5, we [confirm that no change referred to in Clause
17.5 has occurred since [the date of the Agreement/the date of our
preceding Request]1
/attach the up-to-date list of participants of the Company].2
|
By:
[ ]
|
1
|
Delete
as applicable.
|
|
2
|
Delete
as applicable.
|
64
SCHEDULE
4
FORM
OF TRANSFER CERTIFICATE
|
To:
|
ING
Bank N.V., pobočka zahraničnej
banky as Facility Agent
|
|
From:
|
[EXISTING
LENDER] (the Existing
Lender) and [NEW LENDER] (the New
Lender)
|
|
Date:
|
[ ]
|
U.
S. Steel Košice, s.r.o. - €200,000,000 Credit Agreement
dated 6 August, 2010 (the Agreement)
We refer
to the Agreement. This is a Transfer Certificate.
|
1.
|
The
Existing Lender transfers by novation to the New Lender the Existing
Lender's rights and obligations referred to in the following Schedule in
accordance with the terms of the
Agreement.
|
|
2.
|
The
proposed Transfer Date is
[ ].
|
|
3.
|
The
administrative details of the New Lender for the purposes of the Agreement
are set out in the Schedule.
|
|
4.
|
[The
New Lender is a UK Non-Bank
Lender.]
|
|
5.
|
The
New Lender expressly acknowledges the limitations on the Existing Lender's
obligations in respect of this Transfer Certificate contained in the
Agreement.
|
|
6.
|
This
Transfer Certificate may be executed in any number of counterparts and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Transfer
Certificate.
|
|
7.
|
This
Transfer Certificate is governed by English
law.
|
65
THE
SCHEDULE
Rights
and obligations to be transferred by novation
[insert
relevant details, including applicable Commitment (or part)]
Administrative
details of the New Lender
[insert
details of Facility Office, address for notices and payment details
etc.]
|
[EXISTING
LENDER]
|
[NEW
LENDER]
|
|
By:
|
By:
|
The
Transfer Date is confirmed by the Facility Agent as
[ ].
ING Bank N.V.,
pobočka zahraničnej banky
By:
Accepted:
U. S.
Steel Košice, s.r.o.
By: ________________
By: ________________
Note:
It is the responsibility of each New Lender to ascertain whether any other
document or formality is required to perfect the transfer contemplated by this
Transfer Certificate or to take the benefit of any interest in any
security.
66
SCHEDULE
5
FORM
OF LEGAL OPINION OF LEGAL ADVISER TO THE COMPANY
[letterhead of the United States
Steel Corporation]
Pittsburgh,
[date]
|
To:
|
The
Finance Parties named as original parties to the Agreement (as defined
below)
|
Ladies
and Gentlemen:
|
Re:
|
€200,000,000 Credit Agreement
dated 6 August 2010 with U. S. Steel Košice, s.r.o. as the borrower
(the "Agreement")
|
I am
currently a General Attorney International of United States Steel Corporation
(the "Corporation") and have been educated and practice in the Slovak Republic.
My most recent previous position was Assistant General Counsel of U. S. Steel
Košice, s.r.o., a company organized and existing under the laws of the Slovak
Republic (the "Company"). This opinion is being delivered in connection with the
execution and delivery of the Agreement.
Capitalized
terms that are used in this opinion letter that are not defined have the same
meanings given to them in the Agreement.
In giving
this opinion I have examined the following documents:
|
|
1.
|
an
executed copy of the Agreement; and
|
|
|
2.
|
the
following corporate documents of the
Company:
|
|
|
a.
|
an
extract of the Company Register of the District Court Košice 1, Section
Sro, insert Xx. 00000/X of [***] 2010 in respect of the
Company;
|
|
|
b.
|
a
copy of the foundation agreement of the Company dated 7th June 2000;
and
|
|
|
c.
|
a
copy of the Memorandum of Association of the Company in full wording dated
[***].
|
I or
persons under my supervision have examined originals or copies of all such
documents, corporate records, certificates of public officials and other
instruments and have conducted such other investigations of fact and law as they
and I have deemed necessary or advisable for purposes of this
opinion
In
rendering this opinion I made the following assumptions:
|
|
1.
|
that
the Agreement has been duly authorised, executed and delivered by or on
behalf of each of the parties thereto other than the
Company;
|
|
|
2.
|
the
genuineness of all signatures on all documents, the authenticity and
completeness of all documents submitted to me as originals and the
completeness and conformity to the original documents of all documents
submitted to me as copies; and
|
67
|
|
3.
|
that
the Agreement constitutes a legal, valid, binding and enforceable
obligation of the Company in accordance with its terms under English law,
and is binding on the Parties in accordance with English
law.
|
This
opinion is limited to the laws of the Slovak Republic currently in force and I
have made no investigation and no opinion is expressed or implied as to the laws
of any other jurisdiction. I express no opinion as to matters of
fact. This opinion is given subject to matters not disclosed to me
and about which I have no knowledge. I assume that there are no facts that would
affect the conclusions in this opinion.
Based on
the foregoing and subject to the foregoing assumptions and the following
qualifications, I am of the opinion that, so far as the laws of the Slovak
Republic is concerned at the date of this opinion:
|
1.
|
Status. The Company is a
limited liability company organised under the laws of the Xxxxxx
Xxxxxxxx.
|
|
0.
|
Powers and
authority. The Company has the corporate power and
authority to enter into and perform the obligations expressed to be
assumed by it under the Agreement and to borrow thereunder and has taken
all necessary corporate action to authorise the execution and performance
by the Company of the Agreement and the borrowing by the Company of the
Loans. According to Section 13(4) and 133(3) of the Slovak
Commercial Code (Act No. 513/1991 Coll., as amended), any restriction of
the authority of a company’s statutory body to act for the company shall
be ineffective vis-à-vis third parties
(any disclosure of that restriction
notwithstanding).
|
|
3.
|
Execution. The
Agreement has been duly executed and delivered by the
Company.
|
|
4.
|
Legal
validity. The Agreement constitutes a legal, valid,
binding and enforceable obligation of the Company in accordance with its
terms and (subject to the preparation of the official translation into the
Slovak language) is in the proper form for its enforcement in the courts
of the Xxxxxx Xxxxxxxx.
|
|
0.
|
Non-conflict. The
execution by the Company of the Agreement does not, and its performance of
the Agreement will not, violate: (i) any mandatory provision of any Slovak
law or regulation or the Constitution of the Slovak Republic; (ii) the
constitutional documents of the Company or (iii) any other agreement,
document or obligation that is binding upon the Company or any of its
Assets.
|
|
6.
|
Consents. No
authorisations, approvals, consents, licences, exemptions, filings,
registrations, notarisations or other requirements of governmental,
judicial or public bodies and authorities of the Slovak Republic are
required in connection with the Company's entry into or performance of the
Agreement, or for its validity or enforceability against the
Company.
|
|
7.
|
Signatories. [***] and [***] have the
right and power to execute the Agreement and to give any notices to the
Facility Agent under the Agreement.
|
|
8.
|
Pari passu
ranking. The obligations of the Company under the
Agreement rank at least pari passu with all its
other present or future unsecured and unsubordinated obligations save as
provided under mandatory provisions of Slovak
law.
|
68
|
9.
|
Borrowing limits. The
borrowing of the full amount available under the Agreement will not cause
any limit on the Company's borrowing or other powers or on the exercise of
such powers by its executives, whether imposed by the Company's Memorandum
of Association or similar document or by statute, regulation, or
agreement, to be exceeded.
|
|
10.
|
Stamp duties. Except for
court fees and sworn translators' fees payable in connection with
proceedings to enforce the Agreement and for any applicable notarial
charges, there are no stamp, transfer or registration fees or similar
taxes, charges or duties payable in the Slovak Republic in connection with
the execution or enforcement of the
Agreement.
|
|
11.
|
No
immunity.
|
|
|
a.
|
The
Company is subject to civil and commercial law with respect to its
obligations under the Agreement, and its entry into and performance of the
Agreement constitutes private and commercial acts;
and
|
|
|
b.
|
neither
the Company nor any of its assets located in the Slovak Republic enjoys
any right of immunity from suit, attachment prior to judgment or other
legal process in respect of its obligations under the
Agreement.
|
|
12.
|
Bankruptcy. The Company
has not been declared bankrupt and no step has been or is being taken by
the Company nor am I aware of any other step being taken in respect of the
Company, for bankruptcy or any similar proceedings in relation to the
Company or any of its Assets.
|
|
13.
|
Application of governing
law. The choice of English law as the governing law of
the Agreement would be upheld as a valid choice of law by the courts of
the Xxxxxx Xxxxxxxx.
|
|
00.
|
Jurisdiction. The
submission by the Company to the jurisdiction of the English courts under
Clause 35 of the Agreement is a valid and binding submission to
jurisdiction in respect of the Agreement and is not subject to
revocation.
|
|
15.
|
Enforcement of foreign
judgments. A judgment duly obtained in the English courts shall be
recognised and enforced in the Slovak Republic
unless:
|
|
|
a.
|
the
matter is one within the exclusive jurisdiction of the courts of a Member
State of the European Union other than the courts of England pursuant to
the Council Regulation (EC) No. 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, as amended; or
|
|
|
b.
|
the
decision is not final or enforceable in the state where it has been
issued; or
|
|
|
c.
|
the
party against whom such judgment is sought to be enforced has been
deprived of an opportunity to participate in the foreign proceedings,
especially if the summons or notice of the commencement of the foreign
proceedings has not been duly served on the party; this exception does not
apply if the party has not filed an appeal against the foreign judgment
which has been duly served on it or if the party has waived the
applicability of this exception; or
|
69
|
|
d.
|
a
final decision in the same matter has previously been reached by a court
of the Slovak Republic or by a foreign authority if that foreign
authority's decision has been, or would be, enforced in the Slovak
Republic; or
|
|
|
e.
|
recognition
of the foreign judgment would be contrary to public policy (ordre public) of the
Xxxxxx Xxxxxxxx.
|
|
00.
|
Foreign currency
judgments. A judgment duly obtained in the courts of
England in respect of the Agreement given in Euros, Canadian Dollars,
Czech Korunas or USD, and being enforced in the Slovak Republic in Euros,
Canadian Dollars, Czech Korunas or USD respectively, would be implemented
in Euros, Canadian Dollars, Czech Korunas or USD
respectively.
|
This
opinion is subject to the following qualifications:
|
|
1.
|
The
validity, enforceability and effectiveness of the Agreement against the
Company are limited by all bankruptcy, insolvency, moratorium and other
laws affecting creditors' rights
generally.
|
|
|
2.
|
References
in this opinion to the term "enforceable" mean that each obligation or
document is of a type and form that the Slovak courts would enforce. It is
not certain, however, that each obligation or document will be enforced in
accordance with its terms in every circumstance, enforcement being subject
to inter alia the
nature of the remedies available in the Slovak courts, the acceptance by
such courts of jurisdiction, the power of such courts to stay proceedings,
the provisions of other principles of law of general application (such as
e.g. the concept of fair business conduct) and all limitations resulting
from the laws of bankruptcy, insolvency, liquidation, forced
administration, any statutes of limitation and lapse of time or other laws
affecting generally the enforcement of creditors'
rights.
|
|
|
3.
|
Any
subsidies or other funds obtained by the Company from the state budget or
from the budget of the European Union or any assets purchased from funds
originated from the state budget are immune from attachment and from
execution and would not be available to creditors in any enforcement
proceedings.
|
|
|
4.
|
Under
the Foreign Exchange Act No. 202/1995 Coll., as amended, if the Government
of the Slovak Republic declares a foreign exchange emergency, payments in
foreign currency or abroad generally may be suspended for the duration of
such emergency (not to exceed three months at any one
time).
|
|
|
5.
|
The
effectiveness of terms exculpating a party from a liability or duty
otherwise owed is limited by law.
|
|
|
6.
|
Slovak
courts may not give effect to any indemnity for legal costs incurred by a
litigant in proceedings before Slovak
courts.
|
|
|
7.
|
There
could be circumstances in which x Xxxxxx court would not treat as
conclusive those certificates and determinations which the Agreement
states to be so treated.
|
|
|
8.
|
Slovak
court may declare that it does not have jurisdiction if the civil
proceedings concerning the same or a similar matter have already been
commenced by a foreign court or an arbitration
tribunal.
|
70
|
|
9.
|
Under
the provisions of the Regulation (EC) No. 593/2008 of 17 June 2008 on the
law applicable to contractual obligations (Rome I) and Regulation (EC) No
864/2007 of 11 July 2007 on the law applicable to non-contractual
obligations (Rome II), a foreign law may not be applied as the governing
law of a particular contractual or non-contractual obligation agreed to be
governed by a foreign law, or enforced, if such application is manifestly
incompatible with the public policy (in Slovak: verejný
poriadok).
|
|
|
10.
|
Pursuant
to Article 3(3) of the Regulation (EC) No. 593/2008 of 17 June 2008 on the
law applicable to contractual obligations (Rome I), the fact that the
parties to a contract have chosen a foreign law to govern their contract,
whether or not accompanied by the choice of a foreign tribunal, shall not,
where all the other elements relevant to the situation at the time of the
choice are connected with one country only, prejudice the application of
rules of the law of that country, which cannot be derogated from by
contract.
|
This
opinion expresses Slovak legal concepts in English. Such concepts are
not always capable of precise expression in English without an extensive
comparative law analysis that would not be appropriate for an opinion of this
kind.
This
opinion is given exclusively in connection with the Agreement and for no other
purpose. It is strictly limited to the matters set forth herein and no opinion
may be inferred or implied beyond that expressly stated herein.
This
opinion is given for the sole benefit of the persons to whom the opinion is
addressed. This opinion may not be disclosed to anyone else except that it may
be disclosed, but only on the express basis that they may not rely on it, to any
professional adviser or to any potential assignee, transferee and
sub-participant of the Facility or as required by law or
regulation.
Yours
faithfully,
Xxxxx
Xxxxxxxxxx
General
Attorney International, United States Steel Corporation
71
SCHEDULE
6
FORM
OF ENGLISH LEGAL OPINION
|
To:
|
The
Finance Parties named original parties to the Agreement (as defined
below).
|
[DATE]
Dear
Sirs,
U.
S. Steel Košice, s.r.o. - €200,000,000 Credit Agreement
dated 6 August, 2010 (the
Agreement)
We have
acted as legal advisers as to the laws of England to ING Bank N.V., with its
registered seat at Xxxxxxxxxxxx 000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, a
company limited by shares, registered in the Trade Register of Chamber of
Commerce and Industry for Amsterdam under file No. 33031431 acting through its
organisational unit ING
Bank N.V., pobočka zahraničnej banky, Xxxxxxxxxx 0/X, 000 00 Xxxxxxxxxx,
Xxxxxx Xxxxxxxx, Identification No. 30 844 754, registered in the Commercial
register maintained by the District Court of Bratislava I, in Section Po,
inserted file No. 130/B (the Client) in connection with the
Agreement. In this matter we have taken instructions solely from the
Client.
Terms
defined in the Agreement and not defined otherwise herein shall have the same
meanings when used in this opinion as they have in the Agreement.
We have
examined copies of the executed Agreement and of the executed legal opinions
referred to in paragraphs 7(a) and (b) of Schedule 2 to the Agreement (contained
in Schedules 5 and 7 to the Agreement).
We have
not examined any other document entered into by or affecting the Company or any
corporate or other records of the Company and have not made any other inquiries
concerning it.
This
opinion is limited to the substantive laws of England currently in force and we
have made no investigation and no opinion is expressed or implied as to the laws
of any other jurisdiction. We express no opinion as to matters of fact. This
opinion is given subject to matters not disclosed to use and about which we have
no knowledge. We assume that there are no facts that would affect the
conclusions in this opinion.
Subject
to the qualifications set out below and to any matters not disclosed to us, we
are of the opinion that, so far as the present laws of England are
concerned:
|
1.
|
Legal validity: The
Agreement constitutes a legally binding, valid and enforceable obligation
of the Company.
|
|
2.
|
Consents: No
authorisations of governmental, judicial or public bodies or authorities
in England are required by the Company in connection with the performance,
validity or enforceability of its payment obligations under the
Agreement.
|
|
3.
|
Registration
requirements: It is not necessary or advisable to file, register or
record the Agreement in any public place or elsewhere in
England.
|
72
|
4.
|
Stamp duties: No stamp,
registration or similar tax or charge is payable in England in respect of
the execution or delivery of the
Agreement.
|
|
5.
|
Choice of law: The
choice of English law as the governing law of the Agreement would be
upheld as a valid choice by the courts of England subject to and in
accordance with Regulation (EC) No. 593/2008 of 17 June 2008 on the law
applicable to contractual obligations (Rome I) and provided
that the relevant contractual obligation is within the scope of and the
parties' choice is permitted by Rome
I.
|
The
qualifications to which this opinion is subject are as follows:
|
(a)
|
We
assume that the Agreement has been duly authorised and entered into by
each party to it.
|
|
(b)
|
We
assume the genuineness of all signatures on all documents, the
authenticity and completeness of all documents submitted to us as
originals, and the completeness and conformity to the original documents
of all documents submitted to us as
copies
|
|
(c)
|
This
opinion is subject to all insolvency and other laws affecting the rights
of creditors generally.
|
|
(d)
|
We
assume that no foreign law affects the conclusions stated
above. We assume, in particular, that, so far as the laws of
Slovakia are concerned, the obligations of the Company under the Agreement
are its legal, valid, binding and enforceable obligations. In
this regard we have relied on copies of the legal opinions referred to in
paragraphs 8(a) and (c) of Schedule 2 to the Agreement (contained in
Schedules 5 and 7 to the Agreement), subject to any limitations or
qualifications expressed therein.
|
|
(e)
|
An
English court may stay proceedings if concurrent proceedings are being
brought elsewhere.
|
|
(f)
|
The
term enforceable
means that a document is of a type and form enforced by the English
courts. It does not mean that each obligation will be enforced
in accordance with its terms. Certain rights and obligations of
the Company may be qualified by the non-conclusivity of certificates,
doctrines of good faith and fair conduct, the availability of equitable
remedies and other matters, but in our view these qualifications would not
defeat your legitimate expectations in any material
respect.
|
This
opinion is given for the sole benefit of the persons to whom the opinion is
addressed. This opinion may not be disclosed to anyone else except that it may
be disclosed, but only on the express basis that they may not rely on it, to any
professional adviser or to any potential assignee, transferee and
sub-participant of the Facility or as required by law or
regulation.
Yours
faithfully,
[ ]
Xxxxxx
Xxxxx & Overy Iroda
73
SCHEDULE
7
FORM
OF SLOVAK LEGAL OPINION
|
To:
|
The
Finance Parties named original parties to the Agreement (as defined
below).
|
[DATE]
Dear
Sirs,
U.
S. Steel Košice, s.r.o. - €200,000,000 Credit Agreement
dated 6 August, 2010 (the
Agreement)
We have
acted as legal advisers as to the laws of the Slovak Republic to ING Bank N.V., with its
registered seat at Xxxxxxxxxxxx 000, 0000XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, a
company limited by shares, registered in the Trade Register of Chamber of
Commerce and Industry for Amsterdam under file No. 33031431 acting through its
organisational unit ING
Bank N.V., pobočka zahraničnej banky, Xxxxxxxxxx 0/X, 000 00 Xxxxxxxxxx,
Xxxxxx Xxxxxxxx, Identification No. 30 844 754, registered in the Commercial
register maintained by the District Court of Bratislava I, in Section Po,
inserted file No. 130/B (the Client) in connection with the
Agreement. In this matter we have taken instructions solely from the
Client.
Terms
defined in the Agreement and not defined otherwise herein shall have the same
meanings when used in this opinion as they have in the Agreement.
DOCUMENTS
For the
purposes of this opinion, we have examined the copies of following
documents:
|
1.
|
the
Agreement;
|
|
2.
|
the
following corporate documents of the Company, certified by an authorised
signatory for and on behalf of the Company as being true, correct and
complete and in full force and effect as at a date no earlier than the
date of the Agreement:
|
|
|
(a)
|
an
extract of the Company Register of the District Court Košice 1, Section
Sro, insert Xx. 00000/X dated [***] in respect of the
Company;
|
|
|
(b)
|
a
copy of the Memorandum of Association (zakladateľská
listina) of the Company dated 7 June 2000 (original wording);
and
|
|
|
(c)
|
a
copy of the Memorandum of Association (zakladateľská
listina) of the Company in full wording dated [***] (consolidated
wording).
|
Except as
stated above, we have not examined any other contracts or documents or any
corporate or other records.
ASSUMPTIONS
In giving
this opinion we have assumed:
74
|
(a)
|
that
the Parties (other than the Company) have taken all necessary actions
(including corporate action) to authorise the entry into and performance
of the Agreement and that the Agreement has been duly authorised, executed
and delivered by or on behalf of the Parties (other than the Company) in
accordance with all applicable laws and their respective constitutional
documents;
|
|
(b)
|
the
genuineness of all signatures on all documents, the authenticity and
completeness of all documents submitted to us as originals and the
completeness and conformity to the original documents of all documents
submitted to us as copies;
|
|
(c)
|
that
the documents referred to in paragraph 2 above were at their date, and
remain, accurate and are in full force and
effect;
|
|
(d)
|
that
the Agreement, and the transactions contemplated thereby, constitutes a
legal, valid, binding and enforceable obligation of the Parties (including
the Company) in accordance with its terms under English
law;
|
|
(e)
|
that
the Parties (other than the Company) have the requisite power, capacity
and authority to enter into and perform the
Agreement;
|
|
(f)
|
that
the authorisation, execution, delivery and performance of the Agreement
will not contravene any of the provisions of the constitutional documents
of any Party (other than the
Company);
|
|
(g)
|
that
no provision of the laws of any jurisdiction other than the Slovak
Republic affects the conclusions of the opinion (e.g. insofar as any
obligation is to be performed in any jurisdiction outside the Slovak
Republic, its performance will not be illegal or ineffective by virtue of
the law of, or contrary to public policy in, that
jurisdiction);
|
|
(h)
|
that
no petition has been filed to declare bankruptcy with respect to the
Company or over its assets or to permit restructuring of the Company and
that the Company is not insolvent (in Slovak: v úpadku);
and
|
|
(i)
|
that
all relevant documents for the purposes of our giving this opinion have
been properly disclosed to us and that the Parties have acted in good
faith whilst entering into the
Agreement.
|
This
opinion is limited to the law of the Slovak Republic currently in force and we
have made no investigation and no opinion is expressed or implied as to the laws
of any other jurisdiction. We express no opinion on any EU Directives not
implemented in the Slovak domestic law. We express no opinion as to matters of
fact and/or commercial facts. This opinion is given subject to matters not
disclosed to us and about which we have no knowledge. We assume that
there are no matters of fact that would affect the conclusions in this
opinion.
We have
not advised as to matters of taxation law and practice.
OPINION
Based on
the foregoing and subject to the assumptions set out above and the
qualifications set out below, we are of the opinion that, so far as the laws of
the Slovak Republic are concerned at the date of this opinion:
|
1.
|
Status. The Company is a
limited liability company (in Slovak: spoločnosť
s ručením obmedzeným), incorporated with limited liability under
the laws of the Xxxxxx
Xxxxxxxx.
|
00
|
0.
|
Powers and authority.
The Company has the corporate power to enter into and perform the
obligations expressed to be assumed by it under the Agreement and to
borrow under the Agreement and, subject to a duly passed resolution of the
executives of the Company approving the terms of, and the transactions
contemplated by the Agreement and authorising the relevant members of the
Company's statutory body to execute the Agreement on behalf of the
Company, has taken all necessary corporate action to authorise the
execution and performance of the Agreement. According to Section 13(4) and
133(3) of the Slovak Commercial Code (Act No. 513/1991 Coll., as amended),
any restriction of the authority of a company’s statutory body to act for
the company shall be ineffective vis-à-vis third parties (any disclosure
of that restriction
notwithstanding).
|
|
3.
|
Legal validity. The
Agreement constitutes legal, valid, binding and enforceable obligations of
the Company in accordance with its terms and (subject to the preparation
of the official translation into the Slovak language) is in the proper
form for its enforcement in the courts of the Xxxxxx
Xxxxxxxx.
|
|
0.
|
Non-conflict. The
execution by the Company of the Agreement does not, and its performance of
the Agreement will not, violate: (i) any mandatory provision of any Slovak
law or regulation or the Constitution of the Slovak Republic; or (ii) the
constitutional documents of the Company referred to in paragraphs 2(a) to
(c) of the section "Documents"
above.
|
|
5.
|
Consents. No
authorisations, approvals, consents, licences, exemptions, filings,
registrations, notarisations or other requirements of governmental,
judicial or public bodies and authorities of the Slovak Republic are
required in connection with the Company’s entry into or performance of the
Agreement, or for its validity or enforceability against the
Company.
|
|
6.
|
No immunity. Neither the
Company nor any of its assets located in the Slovak Republic enjoys any
right of immunity from suit, attachment prior to judgment or other legal
process in respect of its obligations under the
Agreement.
|
|
7.
|
Stamp duties. Except for
court fees and sworn translators' fees payable in connection with
proceedings to enforce the Agreement and for any applicable notarial
charges, there are no stamp, transfer or registration fees or similar
taxes, charges or duties payable in the Slovak Republic in connection with
the execution or enforcement of the
Agreement.
|
|
8.
|
Governing law. The
choice of English law as the governing law of the Agreement would be
upheld as a valid choice of law by the courts of the Xxxxxx
Xxxxxxxx.
|
|
0.
|
Enforcement of foreign
judgments. A judgment duly obtained in the English courts shall be
recognised and enforced in the Slovak Republic
unless:
|
|
|
(a)
|
the
matter is one within the exclusive jurisdiction of the courts of a Member
State of the European Union other than the courts of England pursuant to
the Council Regulation (EC) No. 44/2001 of 22 December 2000 on
jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, as amended; or
|
|
|
(b)
|
the
decision is not final or enforceable in the state where it has been
issued; or
|
|
|
(c)
|
the
party against whom such judgment is sought to be enforced has been
deprived of an opportunity to participate in the foreign proceedings,
especially if the summons or notice of the commencement of the foreign
proceedings has not been duly served on the party; this exception does not
apply if the party has not filed an appeal against the foreign judgment
which has been duly served on it or if the party has waived the
applicability of this exception;
or
|
76
|
|
(d)
|
a
final decision in the same matter has previously been reached by a court
of the Slovak Republic or by a foreign authority if that foreign
authority's decision has been, or would be, enforced in the Slovak
Republic; or
|
|
|
(e)
|
recognition
of the foreign judgment would be contrary to public policy (ordre public) of the
Xxxxxx Xxxxxxxx.
|
|
00.
|
Foreign currency
judgments. A judgment duly obtained in the courts of England in
respect of the Agreement given in Canadian Dollars, US Dollars, Czech
Korunas or euros and being enforced in the Slovak Republic in Canadian
Dollars, US Dollars, Czech Korunas or euros respectively, would be
implemented in Canadian Dollars, US Dollars, Czech Korunas or euros
respectively.
|
|
11.
|
Submission to
jurisdiction. The submission by the Company to the jurisdiction of
English courts will be recognised as a valid and binding submission to
jurisdiction in respect of the
Agreement.
|
QUALIFICATIONS
The
qualifications to which this opinion is subject are as follows:
|
(a)
|
The
validity, enforceability and effectiveness of the Agreement against the
Company are limited by all bankruptcy, insolvency, moratorium and other
laws affecting creditors' rights
generally.
|
|
(b)
|
References
in this opinion to the term "enforceable" mean that each obligation or
document is of a type and form which the Slovak courts would enforce. It
is not certain, however, that each obligation or document will be enforced
in accordance with its terms in every circumstance, enforcement being
subject to inter alia the nature of the remedies available in the Slovak
courts, the acceptance by such courts of jurisdiction, the power of such
courts to stay proceedings, the provisions of other principles of law of
general application (such as e.g. the concept of fair business conduct)
and all limitations resulting from the laws of bankruptcy, insolvency,
restructuring, liquidation, forced administration, any statutes of
limitation and lapse of time or other laws affecting generally the
enforcement of creditors' rights.
|
|
(c)
|
Any
subsidies or other funds obtained from the state budget or from the budget
of European Union or any assets purchased from funds originated from the
state budget or from the budget of European Union are immune from
attachment and from execution and would not be available to creditors in
any enforcement proceedings.
|
|
(d)
|
Under
the Foreign Exchange Act No. 202/1995 Coll., as amended, if a foreign
exchange emergency is declared by the Government of the Slovak Republic,
payments in foreign currency or abroad generally may be suspended for the
duration of such emergency (not to exceed three months at any one
time).
|
|
(e)
|
The
effectiveness of terms exculpating a party from a liability or duty
otherwise owed is limited by law.
|
|
(f)
|
Slovak
courts may not give effect to any indemnity for legal costs incurred by a
litigant in proceedings before Slovak
courts.
|
|
(g)
|
Under
the provisions of the Regulation (EC) No. 593/2008 of 17 June 2008 on the
law applicable to contractual obligations (Rome I) and Regulation (EC) No
864/2007 of 11 July 2007 on the law applicable to non-contractual
obligations (Rome II), a foreign law may not be applied as the governing
law of a particular contractual or non-contractual obligation agreed to be
governed by a foreign law, or enforced, if such application is manifestly
incompatible with the public policy (in Slovak: verejný
poriadok).
|
77
|
(h)
|
Pursuant
to Article 3(3) of the Regulation (EC) No. 593/2008 of 17 June 2008 on the
law applicable to contractual obligations (Rome I), the fact that the
parties to a contract have chosen a foreign law to govern their contract,
whether or not accompanied by the choice of a foreign tribunal, shall not,
where all the other elements relevant to the situation at the time of the
choice are connected with one country only, prejudice the application of
rules of the law of that country, which cannot be derogated from by
contract.
|
GENERAL
This
opinion expresses Slovak legal concepts in English. Such concepts are not always
capable of precise expression in English without the extensive comparative law
analysis which would not be appropriate for an opinion of this
kind.
This
opinion is given exclusively in connection with the Agreement and for no other
purpose. It is strictly limited to the matters set forth herein and no opinion
may be inferred or implied beyond that expressly stated herein. This opinion is
issued in understanding that we have no duty to notify any addressees of this
opinion or any other person of any changes in Slovak law or its interpretation
after the date of this opinion.
This
opinion is given for the sole benefit of the persons to whom the opinion is
addressed. This opinion may not be disclosed to anyone else except that it may
be disclosed, but only on the express basis that they may not rely on it, to any
professional adviser or to any potential assignee, transferee and
sub-participant of the Facility or as required by law or
regulation.
Yours
faithfully,
[ ]
Xxxxx
& Overy Bratislava, s.r.o.
78
SIGNATORIES
U. S. Steel Košice, s.r.o. as
Company
|
By:
/s/ Xxxxxx Xxxxxxx
Xxxxxx
|
By:
/s/ Xxxxxx
Xxxxxxx
|
|
| Name: Xxxxxx Xxxxxxx Xxxxxx | Name: Xxx. Xxxxxx Xxxxxxx | |
| Title: executive |
|
Title: executive |
COMMERZBANK Aktiengesellschaft, pobočka
zahraničnej banky, Bratislava as Mandated Lead
Arranger
|
By: /s/ Xxxxx
Xxxxx
|
By:
/s/ Xxxxxx
Xxxxxxxxxxxxx
|
|
| Name: Xxx. Xxxxx Xxxxx | Name: Xxx. Xxxxxx Xxxxxxxxxxxxx | |
| Title: Head of the Branch |
|
Title: Vice President & Prokurist |
ING Bank N.V., pobočka
zahraničnej banky as Mandated Lead
Arranger
|
By: /s/ Xxxxxxxx
Xxxxxx
|
By:
/s/ Xxxxxxxx
Xxxxxxxx
|
|
|
Name: Xxxxxxxx
Xxxxxx
|
Name: Xxxxxxxx
Xxxxxxxx
|
|
|
Title: Director
of Strategy & Business Management
|
|
Title: Vice
President, Client Relationship
Management
|
Slovenská sporiteľňa,
a.s. as Mandated Lead
Arranger
|
By: /s/ Xxxxx
Xxxxxxxxxx
|
By:
/s/ Xxxxxxxx
Xxxxxxxx
|
|
|
Name: Xxxxx
Xxxxxxxxxx
|
Name: Xxxxxxxx
Xxxxxxxx
|
|
|
Title: Head
of Large Corporate Clients
|
|
Title: Senior
Relationship
Manager
|
Citibank Europe plc, pobočka
zahraničnej banky as Lead
Arranger
|
By: /s/ Xxxxxx
Xxxxx
|
By:
/s/ Xxxxx Xxxxxxx
|
|
|
Name:
Xxxxxx Xxxxx
|
Name:
Xxxxx Xxxxxxx
|
|
|
Title:
general proxy (prokurista)
|
|
Title: general
proxy (prokurista)
|
79
HSBC Bank plc, pobočka zahraničnej
banky as Lead
Arranger
|
By: /s/ Xxxxxx
Xxxxxx
|
By: /s/ Xxxxxxxx
Xxxxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx
|
Name: Xxxxxxxx
Xxxxxxxxx
|
|
|
Title: CEO
& Head of Corporate Banking
|
|
Title: Senior
Relationship Manager – Team
Leader
|
COMMERZBANK Aktiengesellschaft,
pobočka zahraničnej
banky, Bratislava as Original
Lender
|
By: /s/ Xxxxx
Xxxxx
|
By: /s/ Xxxxxx
Xxxxxxxxxxxxx
|
|
|
Name: Xxx.
Xxxxx Xxxxx
|
Name: Xxx.
Xxxxxx Xxxxxxxxxxxxx
|
|
|
Title: Head
of the Branch
|
|
Title: Vice
President &
Prokurist
|
ING Bank N.V., pobočka zahraničnej
banky as Original
Lender
|
By: /s/ Xxxxxxxx
Xxxxxx
|
By: /s/ Xxxxxxxx
Xxxxxxxx
|
|
|
Name: Xxxxxxxx
Xxxxxx
|
Name: Xxxxxxxx
Xxxxxxxx
|
|
|
Title: Director
of Strategy & Business Management
|
|
Title: Vice
President, Client Relationship
Management
|
Slovenská sporiteľňa,
a.s. as Original
Lender
|
By: /s/ Xxxxx
Xxxxxxxxxx
|
By: /s/ Xxxxxxxx
Xxxxxxxx
|
|
|
Name: Xxxxx
Xxxxxxxxxx
|
Name: Xxxxxxxx
Xxxxxxxx
|
|
|
Title: Head
of Large Corporate Clients
|
|
Title: Senior
Relationship
Manager
|
Citibank Europe plc, pobočka
zahraničnej banky as Original
Lender
|
By: /s/ Xxxxxx
Xxxxx
|
By: /s/ Xxxxx Xxxxxxx
|
|
|
Name: Xxxxxx
Xxxxx
|
Name: Xxxxx
Xxxxxxx
|
|
|
Title: general
proxy (prokurista)
|
|
Title: general
proxy (prokurista)
|
80
HSBC Bank plc, pobočka zahraničnej
banky as
Lender
|
By: /s/ Xxxxxx
Xxxxxx
|
By: /s/ Xxxxxxxx
Xxxxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx
|
Name: Xxxxxxxx
Xxxxxxxxx
|
|
|
Title: CEO
& Head of Corporate Banking
|
|
Title: Senior
Relationship Manager – Team
Leader
|
ING Bank N.V., pobočka zahraničnej
banky as Facility
Agent
|
By: /s/ Xxxxxx
Xxxxxxxxx
|
By: /s/ Xxxxx
Xxxxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxxxxx
|
Name: Xxxxx
Xxxxxxxxx
|
|
|
Title: Head
of Front Office Support
|
|
Title: F/O
Support Trade Finance
Specialist
|
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