THIS AGREEMENT is dated 16 October, 2008
BETWEEN:
| (1) | AUTOLIV, INC. (incorporated under the laws of the State of Delaware, U.S.A.) (in this capacity, the Borrower); |
| (2) | SKANDINAVISKA ENSKILDA BANKEN AB (publ) as lender (the Lender). |
IT IS AGREED as follows:
In this Agreement:
Affiliate means a Subsidiary or a holding company of a person or any other Subsidiary of that holding company.
Availability Period means the period from and including the date of this Agreement to and including the date one month before the Maturity Date.
Board means the Board of Governors of the Federal Reserve System of the United States of America or any successor thereof.
Break Costs means the amount (if any) which the Lender is entitled to receive under Clause 21.3 (Break costs) as compensation if any part of a Loan or overdue amount is repaid or prepaid.
Business Day means a day (other than a Saturday or a Sunday) on which banks are open for general business in Stockholm.
Code means the United States Internal Revenue Code of 1986, as amended, and any rule or regulation issued thereunder from time to time in effect.
Commitment means SEK 1,000,000,000, to the extent not cancelled, reduced or transferred under this Agreement.
Dangerous Substance means any radioactive emissions and any natural or artificial substance (whether in solid or liquid form or in the form of a gas or vapour and whether alone or in combination with any other substance) capable of causing harm to man or any other living organism or damaging the environment or public health or welfare including but not limited to any controlled, special, hazardous, toxic, radioactive or dangerous waste.
Default means an Event of Default or an event which, with the giving of notice, lapse of time, determination of materiality or fulfilment of any other applicable condition (or any combination of the foregoing), would constitute an Event of Default.
Drawdown Date means the date of the advance of a Loan.
Environmental Claim means any claim by any person as a result of or in connection with any violation of Environmental Law or any Environmental Contamination which could give rise to any remedy or penalty (whether interim or final) or liability for the Borrower or Lender which could reasonably be expected to have a material adverse effect.
Environmental Contamination means each of the following and their consequences:
| | (a) | any release, emission, leakage, or spillage of any Dangerous Substance into any part of the environment; or |
| | (b) | any accident, fire, explosion or sudden event which is directly or indirectly caused by or attributable to any Dangerous Substance; or |
| | (c) | any other pollution of the environment. |
Environmental Law means any national or supranational law, regulation or directive concerning the protection of human health or the environment or concerning Dangerous Substances.
Environmental License means any authorization by any Environmental Law.
ERISA means the United States Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate means each trade or business, whether or not incorporated, that would be treated as a single employer with the Borrower under section 414 of the United States Internal Revenue Code of 1986, as amended. When any provision of this Agreement relates to a past event, the term ERISA Affiliate includes any person that was an ERISA Affiliate of Borrower at the time of that past event.
Event of Default means an event specified as such in Clause 17.1 (Events of Default).
Facility means the SEK 1,000,000,000 revolving credit facility, made available under this Agreement as set out in Clause 2.1 (Revolving Credit Facility).
Facility Office means the office(s) through which the Lender will perform all or any of its obligations under this Agreement.
Finance Document means this Agreement or any other document designated as such by the Lender and the Borrower.
Financial Indebtedness means any indebtedness in respect of:
| | (b) | any debenture, bond, note, loan stock or other security; |
| | (c) | any acceptance credit; |
| | (d) | receivables sold or discounted (otherwise than on a non-recourse basis); |
| | (e) | the acquisition cost of any asset to the extent payable before or after the time of acquisition or possession by the party liable where the advance or deferred payment is arranged primarily as a method of raising finance or financing the acquisition of that asset; |
| | (f) | any lease entered into primarily as a method of raising finance or financing the acquisition of the asset leased; |
| | (g) | any currency swap or interest swap, cap or collar arrangement or other derivative instrument (and when calculating the value of any such transaction, only the marked-to-market value shall be taken into account); |
| | (h) | any amount raised under any other transaction having the commercial effect of a borrowing or raising of money; or |
| | (i) | any guarantee, indemnity or similar assurance against financial loss of any person. |
Group means the Borrower and its Subsidiaries.
Interest Period means each period determined in accordance with Clause 8 (Interest Periods).
Loan means, subject to Clause 8 (Interest Periods), the principal amount of each borrowing by the Borrower under this Agreement or the principal amount outstanding of that borrowing.
Margin means 1.50 per cent. per annum.
Margin Stock has the meaning assigned to such term in Regulation U of the Board.
Material Group Member means any Subsidiary of the Borrower:
| | (a) | (i) | the book value of whose assets (consolidated if it itself has Subsidiaries) equals or exceeds 3 per cent. of the book value of the consolidated total assets of the Group; or |
| | (ii) | whose revenues (consolidated if it itself has Subsidiaries) equal or exceed 3 per cent. of the revenues of the Group taken as a whole; or |
| | (iii) | whose trading profits (consolidated if it itself has Subsidiaries) before interest and tax equal or exceed 3 per cent. of the trading profits before interest and tax of the Group as a whole, |
as determined by reference to the most recent accounts of the Subsidiary and the most recent consolidated accounts of the Group; or
| | (b) | any Subsidiary of the Borrower which becomes a member of the Group after the date of the latest consolidated accounts of the Group at the time of determination and which would fulfil any of the tests in (a)(i), (ii) or (iii) above if tested on the basis of its latest accounts (consolidated if it itself has Subsidiaries) and those latest accounts of the Group; or |
| | (c) | prior to the delivery of each set of accounts pursuant to Clause 16.2 (Financial information), any Subsidiary of the Borrower to which has been transferred (whether by one transaction or a series of transactions, related or not) the whole or substantially the whole of the assets of a Subsidiary which immediately prior to such transaction or any of such transactions was a Material Group Member. |
Material Subsidiary means any Subsidiary of the Borrower:
| | (a) | (ii) | the book value of whose assets (consolidated if it itself has Subsidiaries) equals or exceeds 10 per cent. of the book value of the consolidated total assets of the Group; or |
| | (ii) | whose revenues (consolidated if it itself has Subsidiaries) equal or exceed 10 per cent. of the revenues of the Group taken as a whole; or |
| | (iii) | whose trading profits (consolidated if it itself has Subsidiaries) before interest and tax equal or exceed 10 per cent. of the trading profits before interest and tax of the Group as a whole, |
as determined by reference to the most recent accounts of the Subsidiary and the most recent consolidated accounts of the Group; or
| | (b) | any Subsidiary of the Borrower which becomes a member of the Group after the date of the latest consolidated accounts of the Group at the time of determination and which would fulfil any of the tests in (a)(i), (ii) or (iii) above if tested on the basis of its latest accounts (consolidated if it itself has Subsidiaries) and those latest accounts of the Group; or |
| | (c) | prior to the delivery of each set of accounts pursuant to Clause 16.2 (Financial information), any Subsidiary of the Borrower to which has been transferred (whether by one transaction or a series of transactions, related or not) the whole or substantially the whole of the assets of a Subsidiary which immediately prior to such transaction or any of such transactions was a Material Subsidiary. |
Maturity Date means 20 October 2010.
Moody's means Moody's Investors Service, Inc.
Multiemployer Plan means a "multiemployer plan" within the meaning of section 3(37) or 4001(a)(3) of ERISA.
Original Group Accounts means the audited consolidated accounts of the Group for the year ended 31 December 2007.
Party means a party to this Agreement.
Plan means an "employee benefit plan" within the meaning of section 3(3) of ERISA maintained by the Borrower or any ERISA Affiliate currently or at any time within the last five years, or to which the Borrower or any ERISA Affiliate is required to make payments or contributions or has made payments or contributions within the past five years.
Rate Fixing Day means the second Business Day before the first day of an Interest Period for a Loan or such other day as is generally treated as the rate fixing day by market practice in the relevant interbank market for leading banks to give quotations for deposits in the relevant currency for delivery on the first day of the relevant Interest Period, as determined by the Lender.
Rating Agency means Moody's or Standard & Poor's.
Reference Banks means the Lender, Svenska Handelsbanken AB (publ) and Nordea AB (publ).
Reportable Event means any of the events set forth in section 4043 of ERISA or the related regulations.
Request means a request made by the Borrower for a Loan, substantially in the form of Schedule 2.
Restricted Margin Stock means Margin Stock owned by the Borrower or any member of the Group, which represents not more than 33⅓ per cent. of the aggregate value (determined in accordance with Regulation U of the Board), on a consolidated basis, of the assets of the Borrower and all members of the Group (other than Margin Stock) that are subject to the provisions of Clause 16 (Undertakings) (including, without limitation, Clauses 16.8 (Negative pledge) and 16.9 (Transactions similar to security)).
Screen Rate means in relation to STIBOR, the appropriate rate for the relevant period, displayed on the appropriate page of either the Reuters or the Bloomberg Screen (as selected by the Lender and notified to the Borrower). If the relevant page is replaced or the service ceases to be available, the Lender may (after consultation with the Borrower) specify another page or service displaying the appropriate rate.
Security Interest means any mortgage, pledge, lien, charge, assignment, hypothecation or security interest or any other agreement or arrangement having the effect of conferring security.
SEK and Swedish Kronor means the lawful currency for the time being of Sweden.
Standard & Poor's means Standard & Poor's Rating Group, a division of McGraw-Hill Companies, Inc.
STIBOR means for an Interest Period of any Loan or overdue amount in Swedish Kronor:
| | (b) | if no Screen Rate is available for that Interest Period of that Loan or overdue amount, the arithmetic mean (rounded upwards to four decimal places) of the rates as supplied to the Lender at its request quoted by Reference Banks to leading banks in the Swedish interbank market, |
as at 11.00 a.m. (Swedish time) on the Rate Fixing Day for the offering of deposits in Swedish Kronor for a period comparable to that Interest Period.
Subsidiary means an entity from time to time of which a person has direct or indirect control or owns directly or indirectly more than fifty per cent. (50%) of the share capital or similar right of ownership.
Unrestricted Margin Stock means any Margin Stock owned by the Borrower or any member of the Group which is not Restricted Margin Stock.
| | (a) | In this Agreement, unless the contrary intention appears, a reference to: |
| | (i) | an amendment includes a supplement, or re-enactment and amended is to be construed accordingly; |
assets includes present and future properties, revenues and rights of every description;
an authorization includes an authorization, consent, approval, resolution, licence, exemption, filing, registration and notarization;
control means the power to direct the management and policies of an entity by controlling 50 per cent. or more of voting capital, whether through the ownership of voting capital, by contract or otherwise;
know your customer requirements are the identification checks that the Lender 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;
a material adverse effect means:
| | (A) | a material adverse effect on the business or financial condition of the Borrower or the Group as a whole; or |
| | (B) | a material adverse effect on the ability of the Borrower to perform its obligations under any of the Finance Documents. |
a month is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
| | (A) | if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last Business Day in that calendar month; or |
| | (B) | if an Interest Period commences on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which it is to end; |
a person includes any individual, company, unincorporated association or body of persons (including a partnership, joint venture or consortium), government, state, agency, international organisation or other entity;
a regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, inter-governmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
winding up also includes amalgamation, reconstruction, reorganisation, administration, dissolution, liquidation, merger or consolidation and any equivalent or analogous procedure under the law of any jurisdiction (but, for the avoidance of doubt, reorganisation does not include a mere transfer of assets from one member of the Group to another whether the transferor continues to exist);
| | (ii) | a provision of law is a reference to that provision as amended or re-enacted; |
| | (iii) | a Clause or a Schedule is a reference to a clause of or a schedule to this Agreement; |
| | (iv) | a person includes its successors, transferees and assigns; |
| | (v) | a Finance Document or another document is a reference to that Finance Document or other document as amended; and |
| | (vi) | a time of day is a reference to Stockholm time. |
| | (b) | Unless the contrary intention appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement. |
| | (c) | The index to and the headings in this Agreement are for convenience only and are to be ignored in construing this Agreement. |
| 2.1 | Revolving Credit Facility |
Subject to the terms of this Agreement, the Lender grants to the Borrower a revolving credit facility in an aggregate amount equal to the Commitment.
| | (a) | The Borrower shall apply each Loan towards its general corporate purposes. |
| | (b) | Without affecting the obligations of the Borrower in any way, the Lender is not bound to monitor or verify the application of any Loan. |
| 4.1 | Documentary conditions precedent |
The Borrower may not deliver the first Request until the Lender has notified the Borrower that it has received all of the documents set out in Schedule 1 in form and substance satisfactory to it, and the Lender has received the documentation and other evidence requested by it under Clause 16.23(a) (Know your customer requirements).
| 4.2 | Further conditions precedent |
The obligation of the Lender to disburse any Loan is subject to the further conditions precedent that:
| | (a) | on both the date of the Request and the Drawdown Date: |
| | (i) | the representations and warranties in Clause 15 (Representations and Warranties) to be repeated on those dates are correct and will be correct immediately after the Loan is made; and |
| | (ii) | no Default is outstanding or might result from the Loan. |
The Borrower may borrow a Loan if the Lender receives from the Borrower, not later than 10.00 a.m. two Business Days before the proposed Drawdown Date a duly completed Request. Each Request is irrevocable.
| 5.2 | Completion of Requests |
A Request will not be regarded as having been duly completed unless:
| | (a) | the Drawdown Date is a Business Day falling within the Availability Period; |
| | (b) | the amount of the Loan is: |
| | (i) | a minimum of SEK 250,000,000 and an integral multiple of SEK 50,000,000; or |
| | (ii) | the balance of the relevant undrawn Commitment; or |
| | (iii) | such other amount as the Lender may agree; |
| | (c) | the Interest Period selected complies with Clause 8 (Interest Periods) and does not extend beyond the Maturity Date; and |
| | (d) | the payment instructions comply with Clause 10 (Payments). |
Each Request must specify one Loan only, but the Borrower may, subject to the other terms of this Agreement, deliver more than one Request on any one day.
The Borrower shall repay each Loan in full on the last day of its Interest Period.
Subject to the other terms of this Agreement, any amounts repaid under Clause 6.1 (Repayment) may be re-borrowed.
| 7. | PREPAYMENT AND CANCELLATION |
| 7.1 | Automatic cancellation |
The Commitment shall, to the extent not already voluntarily cancelled under Clause 7.2 (Voluntary cancellation) or Clause 7.3 (Additional right of prepayment and cancellation), be automatically cancelled in full on the Maturity Date.
| 7.2 | Voluntary cancellation |
| | (a) | The Borrower may, subject to Clause 7.6 (Cancellation fee), by giving not less than five days' prior written notice to the Lender (or such shorter period of notice as the Lender may agree), cancel in whole or in part the undrawn amount of the Commitments(but the cancellation in part of either shall be in a minimum of SEK 250,000,000 and an integral multiple of SEK 50,000,000). |
| 7.3 | Additional right of prepayment and cancellation |
If:
| | (a) | the Borrower is required to pay to the Lender any additional amounts under Clause 11 (Taxes); or |
| | (b) | the Borrower is required to pay to a Bank any amount under Clause 13 (Increased Costs); or |
| | (c) | Clause 12 (Market Disruption) is in operation but no agreement has been reached under Clause 12.3 (Substitute basis), |
then, without prejudice to the obligations of the Borrowers under those Clauses, the Borrower may, subject to Clause 7.6 (Cancellation fee), whilst the relevant circumstances continue, serve a notice of prepayment and cancellation on the Lender. On the date falling five Business Days after the date of service of the notice:
| | (i) | the Borrower shall prepay the Lender all the Loans; and |
| | (ii) | the Commitments shall be cancelled. |
If, at any time after the date of this Agreement:
| | (a) | it is or becomes unlawful for the Borrower to perform any of its obligations under the Finance Documents; or |
| | (b) | any single person, or group of persons acting in concert, acquires control of the Borrower; or |
| | (c) | then the Lender may by notice to the Borrower: |
| | (i) | subject to Clause 7.6 (Cancellation fee) cancel the Commitments; and/or |
| | (ii) | demand that all or part of the Loans, together with accrued interest and all other amounts accrued under the Finance Documents, be repaid forthwith, whereupon they shall be repaid forthwith. |
| 7.5 | Miscellaneous provisions |
| | (a) | Any notice of prepayment and cancellation or notice of cancellation under this Agreement is irrevocable. |
| | (b) | All prepayments under this Agreement shall be made together with accrued interest on the amount prepaid and, subject to any Break Costs, Clause 7.6 (Cancellation fee) and Clause 21.2 (Other indemnities), without premium or penalty. All cancellations under this Agreement are subject to a cancellation fee in accordance with Clause 7.6 (Cancellation fee). |
| | (c) | No prepayment or cancellation is permitted except in accordance with the express terms of this Agreement. |
| | (d) | No amount of a Commitment which is cancelled under this Agreement may subsequently be reinstated. |
| | (e) | No amount prepaid under this Agreement may subsequently be re-borrowed. |
If the Facility is cancelled in whole or in part in accordance with this Clause 7, the Borrower shall pay to the Lender a fee amounting to 0.525 per cent. per annum of the amount so cancelled if such cancellation occurs prior to the end of the Availability Period. The cancellation fee shall be calculated from the date of cancellation until the Maturity Date. Such cancellation fee shall be immediately due and payable on the date of cancellation.
Each Loan has one Interest Period only.
| | (a) | The Borrower may select an Interest Period for a Loan in the relevant Request. Each Interest Period for a Loan will commence on its Drawdown Date. |
| | (b) | Subject to the following provisions of this Clause 8 each Interest Period for a Loan will be one, two, three or six months or any other period agreed by the Borrower and the Lender; |
| | (c) | No more than five Loans with Interest Periods of one month may be outstanding at any time. |
If an Interest Period for a Loan would otherwise end on a day which is not a Business Day, that Interest Period shall instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
| 8.4 | Overrunning of the Maturity Date |
If an Interest Period in respect of a Loan borrowed under the Facility would otherwise overrun the Maturity Date, it shall be shortened so that it ends on the Maturity Date.
The Facility Agent shall notify each relevant Party of the duration of each Interest Period promptly after ascertaining its duration.
The rate of interest on each Loan for its Interest Period is the rate per annum determined by the Lender to be the aggregate of the applicable:
Except as otherwise provided in this Agreement, accrued interest on each Loan is payable by the Borrower on the last day of the Interest Period for that Loan and also, if the Interest Period is longer than six months, on the dates falling at six monthly intervals after the first day of that Interest Period.
| | (a) | If the Borrowerr fails to pay any amount payable by it under the Finance Documents, it shall forthwith on demand by the Lender pay interest on the overdue amount from the due date up to the date of actual payment, as well after as before judgment, at a rate (the default rate) determined by the Lender to be one per cent. per annum above the higher of: |
| | (i) | the rate on the overdue amount under Clause 9.1 (Interest rate) immediately before the due date (if of principal) and the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan of the overdue amount for such successive Interest Periods of such duration as the Lender may determine (a Designated Interest Period). |
| | (b) | The default rate will be determined by reference to STIBOR on each Business Day or the first day of, or two Business Days before the first day of, the relevant Designated Interest Period, as appropriate. |
| | (c) | If the default rate is to be determined by reference to STIBOR and the Lender determines that deposits in the currency of the overdue amount are not at the relevant time being made available by the Reference Banks to leading banks in the Stockholm interbank market, the default rate will be determined by reference to the cost of funds to the Lender from whatever sources it may select. |
| | (d) | Default interest will be compounded at the end of each Designated Interest Period. |
| 9.4 | Notification of rates of interest |
The Lender shall promptly notify the Borrower of the determination of a rate of interest under this Agreement.
All payments by the Borrower under the Finance Documents shall be made to the Lender to its account at such office or bank in Stockholm as it may notify to the Borrower for this purpose.
Payments under the Finance Documents to the Lender shall be made for value on the due date at such times and in such funds as the Lender may specify as being customary at the time for the settlement of transactions in SEK in the place for payment.
The Lender may apply any amount received by it for the Borrower in or towards payment (on the date and funds of receipt) of any amount due from the Borrower under the Finance Documents.
All amounts payable under the Finance Documents are payable in SEK.
| 10.5 | Set-off and counterclaim |
All payments made by the Borrower under the Finance Documents shall be made without set-off or counterclaim.
| | (a) | If a payment under the Finance Documents is due on a day which is not a Business Day, the due date for that payment shall instead be the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not). |
| | (b) | During any extension of the due date for payment of any principal under this Agreement interest is payable on that principal at the rate payable on the original due date. |
| | (a) | If the Lender receives a payment insufficient to discharge all the amounts then due and payable by the Borrower under the Finance Documents, the Lender shall apply that payment towards the obligations of the Borrower 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 Lender under the Finance Documents; |
| | (ii) | secondly, in or towards payment pro rata of any accrued interest due but unpaid under this Agreement; |
| | (iii) | thirdly, in or towards payment pro rata of any principal due but unpaid under this Agreement; and |
| | (iv) | fourthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents. |
| | (b) | Paragraphs (a) above will override any appropriation made by the Borrower. |
All payments by the Borrower under the Finance Documents shall be made without any deduction and free and clear of and without any deduction for or on account of any taxes, except to the extent that the Borrower is required by law to make payment subject to any taxes. If any tax or amounts in respect of tax must be deducted, or any other deductions must be made, from any amounts payable or paid by the Borrower under the Finance Documents, the Borrower shall pay such additional amounts as may be necessary to ensure that the Lender receives a net amount equal to the full amount which it would have received had payment not been made subject to tax or any other deduction.
All taxes required by law to be deducted or withheld by the Borrower from any amounts paid or payable under the Finance Documents shall be paid by the Borrower when due and the Borrower shall, within 15 days of the payment being made, deliver to the Lender evidence satisfactory to it (including all relevant tax receipts) that the payment has been duly remitted to the appropriate authority.
| | (a) | Without prejudice to the provisions of Clause 11.1 (Gross-up), if the Lender is required to make any payment on account of a Nonexcluded Tax on or in relation to any amounts paid or payable from the Borrower under the Finance Documents (including, without limitation, any sum received or receivable under this Clause 11) or any such liability in respect of any such payment is asserted, imposed, levied or assessed against such the Lender, the Borrower shall, upon demand of the Lender, promptly indemnify the Lender against such payment or liability, together with any interest, penalties and expenses payable or incurred in connection therewith, except and to the extent that: |
| | (i) | such liability or interest, penalties or expenses arises as a result of failure by the Lender to make any payment by the latest date legally permitted; or |
| | (ii) | such liability or interest, penalties or expenses arises out of a failure to comply with the relevant filing, certification or other reporting requirements stipulated by the relevant tax authority in the jurisdiction of the Lender in connection with such requirement to make any such payment on account of tax. |
| | (b) | For the purposes of paragraph (a) above, Nonexcluded Tax shall mean all taxes (including withholding taxes collected at source of payment) other than: |
| | (i) | taxes imposed on net income; |
| | (ii) | taxes imposed by the jurisdiction in which the Lender is organised by virtue of such party being organised in such jurisdiction; and |
| | (iii) | taxes imposed by the jurisdiction in which the Lender is located or doing business by virtue of such party being so located or doing business. |
If the Lender is intending to make a claim pursuant to Clause 11.3 (Tax indemnity) it shall, promptly upon becoming aware of the circumstances giving rise to such claim, notify the Borrower thereof.
| 11.5 | U.S. Taxation - delivery of forms and statements |
| | (a) | Within 31 days after the date of this Agreement, the Lender (which is not a United States person as such term is defined in section 7701(a)(30) of the Code) shall submit to the Borrower duly completed and signed copies of either: |
| | (i) | Form W-8BEN (entitling the Lender to a complete exemption from withholding on all amounts to be received by it, including fees, under the Finance Documents); or |
| | (ii) | Form W-8ECI (relating to all amounts to be received by the Lender, including fees, under the Finance Documents), |
of the United States Internal Revenue Service.
| | (b) | Any New Bank (as defined in Clause 24.2 (Transfers by Banks)) shall comply with the provisions of paragraph (a) above within 31 days, or earlier if requested, of it becoming a New Bank under this Agreement. |
| | (c) | Other than as set out in paragraphs (a) and (b) above, the Lender (and any New Bank) shall submit to the Borrower such additional duly completed and signed copies of the applicable forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may be: |
| | (i) | reasonably requested by the Borrower from the Lender (or New Bank); and or |
| | (ii) | required under then current United States law or regulations to determine the United States withholding taxes on payment in respect of all amounts to be received by the Lender (or New Bank), including fees, under the Finance Documents. |
| | (d) | Upon the request of the Borrower, any New Bank that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower duly completed Internal Revenue Service Form W-9, establishing that it is such a United States person. |
| | (e) | If the Lender (or any New Bank) determines that it is unable to submit any form or certificate that it is obliged to submit pursuant to this Clause 11.5, or that any information or declaration contained in any such form or certificate previously submitted has either ceased or will cease to be true, accurate and complete in all respects, it shall promptly notify the Borrower of such fact. |
| 12.1 | Absence of quotations |
If STIBOR is to be determined by reference to the Reference Banks but a Reference Bank does not supply an offered rate by 11.30 a.m. on a Rate Fixing Day, STIBOR shall, subject to Clause 12.2 (Market disruption), be determined on the basis of the quotations of the remaining Reference Banks.
| | (a) | If a Market Disruption Event occurs in relation to the Loan for any Interest Period, then the rate of interest on the Loan for the Interest Period shall be the percentage rate per annum which is the sum of: |
| | (i) | 0.40 per cent. per annum.; and |
| | (ii) | the rate notified to the Borrower as soon as practicable and in any event before interest is due to be paid in respect of that Interest Period, to be that which expresses as a percentage rate per annum the cost to the Lender of funding the Loan from whatever source it may reasonably select (such calculation of cost shall be certified in reasonable detail and disclosed to the Borrower). |
| | (b) | In this Agreement Market Disruption Event means at or about 11.30 a.m. on the Rate Fixing Date for the relevant Interest Period STIBOR is not available and none or only one of the Reference Banks supplies a rate to the Lender to determine STIBOR for the relevant Interest Period. |
So long as any alternative basis is in force in accordance with Clause 12.2(a) above the Lender shall from time to time (but at least weekly) review whether or not the circumstances referred to in Clause 12.2(b) still prevail with a view to returning to the normal interest provisions of this Agreement with respect to future Interest Periods. If the Lender determines that such circumstances no longer prevail, it shall promptly notify the Borrower.
| | (a) | Subject to Clause 13.2 (Exceptions), the Borrower shall forthwith on demand by the Lender pay to the Lender the amount of any increased cost incurred by it or any of its Affiliates as a result of: |
| | (i) | the introduction of, or any change in, or any change in the interpretation of, any law or regulation; or |
| | (ii) | compliance with any regulation made after the date of this Agreement, |
(including any law or regulation relating to taxation, change in currency of a country, or reserve asset, special deposit, cash ratio, liquidity or capital adequacy requirements or any other form of banking or monetary control).
| | (b) | In this Agreement increased cost means: |
| | (i) | an additional cost incurred by the Lender or any of its Affiliates as a result of it having entered into, or performing, maintaining or funding its obligations under, this Agreement; or |
| | (ii) | that portion of an additional cost incurred by the Lender or any of its Affiliates in making, funding or maintaining all or any advances comprised in a class of advances formed by the Loans made or to be made under this Agreement as is attributable to the Lender making, funding or maintaining those participations; or |
| | (iii) | a reduction in any amount payable to the Lender or any of its Affiliates or the effective return to the Lender or any of its Affiliates under this Agreement or (to the extent that it is attributable to this Agreement) on its capital; or |
| | (iv) | the amount of any payment made by the Lender or any of its Affiliates, or the amount of any interest or other return foregone by the Lender or any of its Affiliates, calculated by reference to any amount received or receivable by the Lender or any of its Affiliates from the Borrower under this Agreement. |
| | (c) | As soon as practicable after becoming aware that the Borrower is liable, or will become liable, to pay any amount in accordance with the provisions of paragraph (a) above, the Lender will notify the Borrower accordingly. |
Clause 13.1 (Increased costs) does not apply to any increased cost:
| | (a) | compensated for by the operation of Clause 11 (Taxes); or |
| | (b) | attributed to any change in the rate of, or change in the basis of calculating, tax on the overall net income of the Lender (or the overall net income of a division or branch of the Lender) imposed in the jurisdiction in which its principal office for the time being is situate. |
If the Lender is intending to make a claim for an Increased Cost, it must provide the Borrower with a certificate confirming the amount of, and the events giving rise to, the claim.
If it is or becomes unlawful in any jurisdiction for the Lender to give effect to any of its obligations as contemplated by this Agreement or to fund or maintain its participation in any Loan, then:
| | (a) | the Lender may notify the Borrower accordingly; and |
| | (b) | ii) | the Borrower shall forthwith prepay the participations of the Lender in all the Loans made to it; and |
| | (ii) | the Commitments of the Lender shall forthwith be cancelled. |
| 15. | REPRESENTATIONS AND WARRANTIES |
| 15.1 | Representations and warranties |
The Borrower makes the representations and warranties set out in this Clause 15 to the Lender.
| | (a) | It is a corporation, duly incorporated and validly existing under the laws of the jurisdiction of its incorporation; and |
| | (b) | each Material Group Member has the power to own its assets and carry on its business as it is being conducted. |
It has the power to enter into and perform, and has taken all necessary action to authorize the entry into, performance and delivery of, the Finance Documents to which it is or will be a party and the transactions contemplated by those Finance Documents.
Each Finance Document to which it is or will be a party constitutes, or when executed in accordance with its terms will constitute, its legal, valid and binding obligation enforceable in accordance with its terms.
The entry into and performance by it of, and the transactions contemplated by, the Finance Documents to which it is a party do not and will not:
| | (a) | conflict with any law or regulation or judicial or official order; or |
| | (b) | conflict with the constitutional documents of the Borrower; or |
| | (c) | conflict with any document which is binding upon the Borrower or any asset of the Borrower. |
| | (a) | No Default is outstanding or might result from the making of any Loan; and |
| | (b) | no other event is outstanding which constitutes (or with the giving of notice, lapse of time, determination of materiality or the fulfilment of any other applicable condition or any combination of the foregoing, would constitute) a default under any document which is binding on any member of the Group or any asset of any member of the Group to an extent or in a manner which could reasonably be expected to have a material adverse effect. |
| | (a) | All authorizations which would reasonably be considered to be required in connection with the entry into, performance, validity and enforceability of, and the transactions contemplated by, the Finance Documents to which it is a party have been obtained or effected (as appropriate) and are in full force and effect. |
| | (b) | All acts, conditions and things required to be done, fulfilled and performed under the laws of the United States of America in order to make the Finance Documents admissible in evidence in the United States of America have been done, fulfilled and performed. |
The audited consolidated accounts of the Group most recently delivered to the Lender (which, at the date of this Agreement, are the Original Group Accounts):
| | (i) | have been prepared in accordance with accounting principles and practices generally accepted in the U.S.A. consistently applied; and |
| | (ii) | fairly represent the consolidated financial condition of the Group as at the date to which they were drawn up. |
| | (a) | Other than as specifically disclosed to the Lender prior to the date of this Agreement, no litigation, arbitration or administrative proceedings are current or, to its knowledge, pending or threatened, which might, if adversely determined, have a material adverse effect. |
| | (b) | In respect of any litigation, arbitration or administrative proceedings disclosed to the Lender prior to the date of this Agreement, there has been no development in the conduct of those proceedings which might have a material adverse effect. |
It will not be required to make any deduction or withholding from any payment it may make to the Lender under the Finance Documents.
In any proceedings taken in the United States of America, or any other relevant state or jurisdiction, in relation to the Finance Documents, it will not be entitled to claim for itself or any of its assets immunity from suit, execution, attachment or other legal process.
Its obligations under the Finance Documents will rank at least pari passu with the claims of all its other unsecured creditors save those whose claims are preferred solely by any bankruptcy, insolvency, liquidation or other similar laws of general application.
| 15.13 | Winding up: re-organisation etc. |
It has not taken any corporate action nor have any other steps been taken or legal proceedings been started or (to the best of its knowledge and belief) threatened against it for its winding-up, dissolution, administration or re-organisation or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of it or of any or all of its assets or revenues.
Other than as specifically disclosed to the Lender prior to the date of this Agreement, the Borrower is and has been in compliance with all applicable Environmental Laws and Environmental Licences in all material respects and, so far as it is aware, there are no circumstances that may at any time prevent or interfere with continued compliance by it with all applicable Environmental Laws and Environmental Licences in all material respects. Other than as disclosed to the Lender prior to the date of this Agreement, no Environmental Claim is pending or, to the best of its knowledge, threatened against it or any of its properties.
Each Plan of the Borrower and their respective ERISA Affiliates complies in all material respects with all applicable requirements of law and regulation. No Reportable Event has occurred with respect to any Plan which might have a material adverse effect, and no steps have been taken to terminate any Plan. The Borrower has not, and no Subsidiary or ERISA Affiliate of the Borrower has, had a complete or partial withdrawal from any Multiemployer Plan or initiated any steps to do so.
| 15.16 | Investment Company Act |
The Borrower is neither an ”investment company” nor a company "controlled" by an "investment company", within the meaning of the United States Investment Company Act of 1940, as amended.
| 15.17 | Public Utility Holding Company and Federal Power Act |
The Borrower is not a "holding company", nor an "affiliate" of a "holding company" nor a "subsidiary company" of a "holding company", within the meaning of, or otherwise subject to regulation under, the United States Public Utility Holding Company Act of 1935, as amended. The Borrower is neither a "public utility" within the meaning of, nor otherwise subject to regulation under, the United States Federal Power Act.
The Borrower is not subject to regulation under any United States Federal or State statute or regulation that limits its ability to incur or guarantee indebtedness.
| | (a) | The proceeds of the Loans have been and will be used only for the purposes described in Clause 3 (Purpose). |
| | (b) | The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations U and X of the Board of Governors of the United States Federal Reserve System). |
| | (c) | None of the transactions contemplated in this Agreement (including, without limitation, the borrowings hereunder and the use of the proceeds thereof) will violate or result in a violation of Section 7 of the Securities Exchange Act of 1934 (or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X). |
| | (a) | The Borrower has not incurred and does not intend to incur or believe it will incur debts beyond its ability to pay as they mature. |
| | (b) | The Borrower has made no transfer or incurred any obligation under this Agreement with the intent to hinder, delay or defraud any of its present or future creditors. |
| | (c) | For purposes of this Clause 15.20: |
| | (i) | debt means any liability on a claim; |
| | (ii) | claim means (A) any right to payment, whether or not that right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured or unsecured, or (B) any right to an equitable remedy for breach of performance if that breach gives rise to payment, whether or not the right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured; and |
| | (iii) | terms used in this Clause 15.20 shall be construed in accordance with the applicable United States bankruptcy and New York fraudulent conveyance statutes and the related case law. |
No stamp or registration duty or similar taxes or charges are payable in respect of any Finance Document.
| 15.22 | No Security Interests |
Other than as permitted by the provisions of Clause 16.8 (Negative pledge), no Security Interest exists over all or any of its present or future revenues or assets.
| 15.23 | Material adverse change |
There has been no material adverse change in the condition (financial or otherwise) of the Borrower or the Group as a whole since the date of the Original Group Accounts.
| 15.24 | Jurisdiction/governing law |
| | (i) | irrevocable submission under this Agreement to the jurisdiction of the courts of Sweden; |
| | (ii) | agreement that this Agreement is governed by Swedish law; and |
| | (iii) | agreement not to claim any immunity to which it or its assets may be entitled, |
are legal, valid and binding under the laws of its jurisdiction of incorporation; and
| | (b) | any judgment obtained in Sweden will be recognised and be enforceable by the courts of its jurisdiction of incorporation. |
Anti-Terrorism Law means each of:
| | (i) | Executive Order No. 13224 on Terrorist Financing: Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism issued September 23, 2001, as amended by Order 13268 (as so amended, the Executive Order); |
| | (ii) | the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly known as the USA Patriot Act); |
| | (iii) | the Money Laundering Control Act of 1986, 18 U.S.C. sect. 1956; and |
| | (iv) | any similar law relating to terrorism or money laundering enacted in the United States of America subsequent to the date of this Agreement. |
Restricted Party means any person listed:
| | (i) | in the Annex to the Executive Order; |
| | (ii) | on the "Specially Designated Nationals and Blocked Persons" list maintained by the Office of Foreign Assets Control of the United States Department of the Treasury; or |
| | (iii) | in any successor list to either of the foregoing. |
| | (b) | To the best of its knowledge, neither it nor any of its Affiliates: |
| | (i) | is, or is controlled by, a Restricted Party; |
| | (ii) | has received funds or other property from a Restricted Party; or |
| | (iii) | is in breach of or has been notified by any governmental or quasi-governmental, regulatory or judicial body or agency that it is the subject of any action or investigation under any Anti-Terrorism Law. |
| 15.26 | Times for making representations and warranties |
The representations and warranties set out in this Clause 15:
| | (a) | are made on the date of this Agreement; and |
| | (b) | (with the exception of Clause 15.23 (Material adverse change)) are deemed to be repeated by the Borrower on the date of each Request and the first day of each Interest Period with reference to the facts and circumstances then existing. |
The undertakings in this Clause 16 remain in force from the date of this Agreement for so long as any amount is or may be outstanding under this Agreement or any Commitment is in force.
| 16.2 | Financial information |
The Borrower shall supply to the Lender:
| | (a) | as soon as the same are available (and in any event within 180 days of the end of each of its financial years) its audited consolidated accounts for that financial year. |
| | (b) | as soon as the same are available (and in any event within 90 days of the end of the first half-year of each of its financial years) its unaudited consolidated accounts for that half-year. |
| | (c) | as soon as the same are available (and in any event within 60 days of the end of each financial quarter) its unaudited consolidated accounts for that financial quarter. |
| 16.3 | Information - miscellaneous |
The Borrower shall supply to the Lender:
| | (a) | all documents despatched by it to its shareholders (or any class of them) or its creditors (or any class of them) at the same time as they are despatched; and |
| | (b) | (unless already provided to the Lender) promptly upon becoming aware of them, details of any litigation, arbitration or administrative proceedings which are current, threatened or pending, and which might, if adversely determined, have a material adverse effect on the financial condition of any Material Subsidiary or on the Group as a whole or on the ability of the Borrower to perform its obligations under this Agreement; and |
| | (c) | promptly, such further information in the possession or control of any member of the Group regarding its financial condition and operations as the Lender may reasonably request; and |
| | (d) | immediately upon its occurrence, details of any change in the credit rating assigned to the Borrower's long term unsecured and unsubordinated debt by either or both of the Rating Agencies. |
| 16.4 | Notification of Default |
The Borrower shall notify the Lender of any Default (and the steps, if any, being taken to remedy it) promptly upon its occurrence.
| 16.5 | Compliance certificates |
The Borrower shall supply to the Facility Agent:
| | (a) | within five Business Days of delivery of the accounts specified in Clause 16.2, (a), (b) and (c) (Financial information); and |
| | (b) | promptly at any other time, if the Lender so requests, a Compliance Certificate signed by one of its senior officers on its behalf (substantially in the form set out in Schedule 3 (Form of Compliance Certificate)): |
| | (i) | setting out computations as to compliance with Clause 16.22 (Subsidiary Borrowings) as at the date at which the accounts referred to in paragraph (a) above were drawn up; |
| | (ii) | confirming the credit ratings which currently apply to the Lender's long term unsecured and unsubordinated debt; and |
| | (iii) | certifying that no Default is outstanding or, if a Default is outstanding, specifying the Default and the steps, if any, being taken to remedy it. |
The Borrower shall promptly:
| | (a) | obtain, maintain and comply with the terms of; and |
| | (b) | supply certified copies to the Lender of, |
any authorization required under any law or regulation to enable it to perform its obligations under, or for the validity or enforceability of, any Finance Document.
The Borrower shall procure that its obligations under the Finance Documents do and will rank at least pari passu with all its other present and future unsecured obligations, except for obligations mandatorily preferred by law applying to companies generally.
| | (a) | The Borrower shall not, and shall procure that no member of the Group will, create or permit to subsist any Security Interest on any of its assets (other than Unrestricted Margin Stock). |
| | (b) | Paragraph (a) does not apply to: |
| | (i) | any lien arising by operation of law in the ordinary course of business and securing amounts not more than 30 days overdue; |
| | (ii) | any Security Interest disclosed in writing to the Lender prior to the execution of this Agreement which secures Financial Indebtedness outstanding at the date of this Agreement; |
| | (iii) | any Security Interest arising in relation to set-off arrangements between cash balances and bank borrowings with the same bank which arise in the ordinary course of business; |
| | (iv) | any Security Interest existing at the time of acquisition on or over any asset acquired by a member of the Group after the date of this Agreement which was not created in contemplation of or in connection with that acquisition, provided that the principal amount secured by such Security Interest and outstanding at the time of acquisition is not subsequently increased and the Security Interest is discharged within three months; |
| | (v) | in the case of any company which becomes a member of the Group after the date of this Agreement, any Security Interest existing on or over its assets when it becomes a member of the Group which was not created in contemplation of or in connection with it becoming a member of the Group, provided that: |
| | (A) | the principal amount secured by such Security Interest and outstanding when the relevant company became a member of the Group is not increased; |
| | (B) | no amount is secured by any such Security Interest which is not secured by the relevant Security Interest when the relevant company becomes a member of the Group; and |
| | (C) | the Security Interest is discharged within three months; |
| | (vi) | any Security Interest replacing any of the Security Interests permitted by paragraphs (iv) and (v), provided that the amount secured by any replacement Security Interest shall not exceed the amount outstanding and secured by the original Security Interest at the time of the creation of the replacement Security Interest, the value of the replacement asset over which the replacement Security Interest is created does not exceed the value of the asset over which the original Security Interest was held, the replacement Security Interest secures the same obligations as the original Security Interest and such replacement Security Interest is discharged within the original three-month period specified in paragraphs (iv) and (v); and |
| | (vii) | any other Security Interest provided that at the time that the Security Interest is created, the aggregate amount of indebtedness secured by all Security Interests permitted under this Clause 16.8(b)(vii) (other than those permitted by subparagraphs 16.8(b)(i) - (vi) above), when taken together with the aggregate value of financing raised or the amount involved in the financing of an asset in transactions described in Clause 16.9 (Transactions similar to security), does not exceed 5 per cent. of the book value of the consolidated total assets of the Group, as determined by reference to the most recent consolidated accounts of the Group delivered pursuant to Clause 16.2 (Financial information). |
| 16.9 | Transactions similar to security |
| | (a) | The Borrower shall not, and shall procure that no Material Subsidiary will: |
| | (i) | sell, transfer or otherwise dispose of a material part of its assets (either in one transaction or a series of transactions, whether related or not) on terms whereby it is or may be leased to or re-acquired or acquired by a member of the Group or any of its related entities; or |
| | (i) | sell, transfer or otherwise dispose of any of its receivables on recourse terms, except for the discounting of bills or notes in the ordinary course of trading, |
| | (b) | in each case, in circumstances where the transaction is entered into primarily as a method of raising finance or of financing the acquisition of an asset, save where the aggregate of (a) financing raised or the amount involved in the financing of the acquisition of an asset in transactions described in this Clause 16.9 (Transactions similar to security) and (b) the Security Interests permitted by Clause 16.8(b)(vii) (Negative pledge), does not exceed 5 per cent. of the book value of the consolidated total assets of the Group, as determined by reference to the most recent consolidated accounts of the Group delivered pursuant to Clause 16.2 (Financial information). Paragraph (a) above does not apply to Unrestricted Margin Stock. |
| | (a) | The Borrower shall not, and shall procure that no Material Subsidiary will, either in a single transaction or in a series of transactions, whether related or not and whether voluntarily or involuntarily, sell, transfer, grant or lease or otherwise dispose of all or any substantial part of its assets. |
| | (b) | Paragraph (a) does not apply to: |
| | (i) | disposals made in the ordinary course of business of the disposing entity; or |
| | (ii) | disposals of assets in exchange for other assets comparable or superior as to type, value and quality; or |
| | (iii) | disposals made on an arms length basis for full market consideration; or |
| | (iv) | disposals made with the prior written consent of the Lender; or |
| | (v) | any disposal of assets from: |
| | (A) | the Borrower to Autoliv ASP, Autoliv Holding AB or Autoliv AB, or vice versa; or |
| | (B) | a Material Subsidiary (other than the Borrower, Autoliv ASP, Autoliv Holding AB or Autoliv AB) to the Borrower, Autoliv ASP, Autoliv Holding AB, Autoliv AB or any other Subsidiary; or |
| | (C) | any other Subsidiary of the Borrower to any member of the Group, |
provided that all such disposals in this paragraph (v) are made for full market consideration,
The Borrower shall procure that no substantial change is made to the general nature or scope of the business of the Borrower or of the Group from that carried on at the date of this Agreement.
The Borrower shall not, without the prior written consent of the Lender, finalise or effectuate any amalgamation, demerger, merger or reconstruction.
The Borrower shall, and will procure that the Group taken as a whole will, effect and maintain such insurance over and in respect of its property, assets and business with reputable underwriters or insurance companies and in such a manner and to such extent as is reasonable and customary for a business enterprise engaged in the same or similar businesses and in the same or similar localities.
| 16.14 | Third party guarantees |
the Borrower shall not, and will ensure that no member of the Group shall, without the prior consent of the Lender, grant any guarantee, bond, indemnity, counter-indemnity or similar instrument in respect of any material obligation of a person other than a member of the Group, save for:
| | (a) | on the terms of the Finance Documents; or |
| | (b) | any guarantee related to the purchase or supply of goods and/or services by the Borrower or a member of the Group or a consortium or a group of companies of which the Borrower or a member of the Group is a party, which guarantee is given in the ordinary course of business. |
| 16.15 | Environmental Matters |
The Borrower shall, if it directly or indirectly owns, leases, occupies or uses real property in the United States, in all material respects, comply with:
| | (a) | all applicable Environmental Law; and |
| | (b) | the terms and conditions of all Environmental Licenses applicable to it, |
and for this purpose will implement procedures to monitor compliance with and to prevent any liability under Environmental Law.
The Borrower will give the Facility Agent prompt notice of the occurrence of any of the following events:
| | (a) | non-compliance in any material respect with any Environmental Law or Environmental License of which it is aware; |
| | (b) | any Environmental Claim or any other claim, notice or other communication served on it in respect of any alleged breach of any Environmental Law or Environmental License which could reasonably be expected to have a material adverse effect; |
| | (c) | any actual or suspected Environmental Contamination which might have a material adverse effect; |
| | (e) | termination of any Plan maintained or contributed by Borrower or any ERISA Affiliate or any action that might result in termination; or |
| | (f) | complete or partial withdrawal from any Multiemployer Plan by the Borrower or any ERISA Affiliate or any action that might result in complete or partial withdrawal. |
In each notice delivered under this Clause, the relevant Borrower will include reasonable details concerning the occurrence that is the subject of the notice as well as the Borrower's proposed course of action, if any. Delivery of a notice under this Clause will not affect the Borrower's obligations to comply with any other provision of this Agreement.
| 16.17 | Investment Company Act |
The Borrower will not, either by act or omission, become an "investment company" or a company "controlled" by an "investment company", within the meaning of the United States Investment Company Act of 1940, as amended.
| 16.18 | Public utility status |
The Borrower will not, either by act or omission, become or, as a result of its obligations under this Agreement, the Lender to become subject to regulation under the United States Public Utility Holding Company Act of 1935, as amended, or the United States Federal Power Act.
The Borrower will not take any action or omit to take any action or permit any Subsidiary or ERISA Affiliate to take any action or omit to take any action with respect to any Plan that might result in the imposition of a lien or other Security Interest on any property of the Borrower or any Subsidiary or otherwise have a material adverse effect.
The Borrower will use the proceeds of the Loans only for the purpose described in Clause 3 (Purpose). The Borrower will not engage in the business of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations U and X issued by the Board of Governors of the United States Federal Reserve System). The Borrower shall procure that none of the proceeds of the Loans will be used for any purpose that will violate or result in the violation of Section 7 of the Securities Exchange Act of 1934 (or any regulations issued pursuant thereto, including, without limitation, Regulations T, U and X). If requested by the Lender, the Borrower will furnish to the Lender in connection with any Loan hereunder a statement in conformity with the requirements of Federal Reserve Form U-1 referred to in Regulation U.
The Borrower will, at all times, maintain sufficient capital to conduct its current and proposed business and operations, maintain its ability to pay its debts as they become due, and continue to own property having a value – both at fair valuation and at present fair saleable value – greater than the total amount of the probable liability of the Borrower on its debts and obligations (including this Agreement).
| 16.22 | Subsidiary Borrowings |
Borrowings means:
| | (a) | the outstanding principal amount of any monies borrowed; |
| | (b) | the outstanding principal amount of any debenture, bond, note, loan stock or other security; |
| | (c) | the outstanding principal amount of any acceptance under any acceptance credit opened by a bank or other financial institution and not attributable to goods or documents of title to goods in the ordinary course of documentary credit transactions; |
| | (d) | the principal amount, outstanding for more than 90 days on its original terms and created in connection with the payment of the acquisition price of any asset before or after the time of acquisition or possession by the party liable, where the advance or deferred payment is arranged primarily as a method of raising finance or financing the acquisition of an asset; |
| | (e) | any fixed or minimum premium payable on the repayment or redemption of any instrument referred to in subparagraph (b) above; and |
| | (f) | the outstanding principal amount of any indebtedness of any person of a type referred to in subparagraphs (a) - (e) above which is the subject of a guarantee indemnity and/or other form of assurance against financial loss. |
For the avoidance of doubt, the amount of any provision for pension liabilities made in the accounts delivered in accordance with Clause 16.2 (Financial information) shall not constitute Borrowings for the purposes of this definition.
Subsidiary Borrowings means, at any time, the aggregate amount of all Borrowings of the Borrower's Subsidiaries (other than Autoliv ASP, Autoliv Holding AB and Autoliv AB) at that time (without double counting in relation to intra-Group Borrowings or guarantees given by one Subsidiary in relation to the Borrowings of another).
| | (b) | For the purposes of this Clause 16.22 figures shall be expressed in U.S. Dollars and, where any currency has to be converted into U.S. Dollars for this purpose, such conversion shall be made at the rate of exchange applied in the relevant financial accounts delivered under Clause 16.2 (Financial information). |
| | (c) | The Borrower shall procure that Subsidiary Borrowings shall at no time exceed U.S.$400,000,000 (or its equivalent). |
| 16.23 | Know your customer requirements |
| | (a) | The Borrower must promptly on the request of the Lender supply to it documentation or other evidence which is reasonably requested by the Lender (or any prospective new Bank) to enable the Lender or prospective new Bank to carry out and be satisfied with the results of all applicable know your customer requirements. |
| | (b) | The Lender agrees that any information it receives under this clause 16.23 (Know your customer requirements) shall be kept confidential in accordance with clause 26 (Disclosure of Information). |
Each of the events set out in this Clause 17 is an Event of Default (whether or not caused by any reason whatsoever outside the control of the Borrower or any other person).
The Borrower 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 non-payment is caused solely by administrative or technical error, or relates solely to non-payment of interest or fees, it is not remedied within three Business Days.
| 17.3 | Breach of other obligations |
The Borrower does not comply with any provision of the Finance Documents (other than those referred to in Clause 17.2 (Non-payment)), provided that, if such non-compliance is capable of remedy, such non-compliance remains unremedied for a period of 14 days.
A representation, warranty or statement made or repeated or deemed to be repeated in or in connection with any Finance Document or in any document delivered by the Borrower under or in connection with any Finance Document is incorrect in any material respect when made or repeated or deemed to be repeated.
| | (a) | Any Financial Indebtedness of a member of the Group is not paid when due or within any applicable grace period provided for in the relevant documentation; or |
| | (b) | an event of default howsoever described occurs under any document relating to Financial Indebtedness of a member of the Group; or |
| | (c) | any Financial Indebtedness of a member of the Group becomes prematurely due and payable or is placed on demand as a result of an event of default (howsoever described) under the document relating to that Financial Indebtedness; or |
| | (d) | any commitment for, or underwriting of, any Financial Indebtedness of a member of the Group is cancelled or suspended as a result of an event of default (howsoever described) under the document relating to that Financial Indebtedness; or |
| | (e) | any Security Interest securing Financial Indebtedness over any asset of a member of the Group becomes enforceable, |
Provided that no Event of Default shall occur under this Clause 17.5 unless the aggregate amount of all the Financial Indebtedness with respect to which an event or events under paragraphs (a) to (e) (inclusive) above occurs or occur is at least U.S.$40,000,000 (or its equivalent in other currencies).
| | (a) | The Borrower or any Material Subsidiary is, or is deemed for the purposes of any law to be, unable to pay its debts as they fall due or to be insolvent, or admits inability to pay its debts as they fall due; or |
| | (b) | the Borrower or any Material Subsidiary suspends making payments on all or any class of its debts or announces an intention to do so, or a moratorium is declared in respect of any of its indebtedness; or |
| | (c) | the Borrower or any Material Subsidiary, by reason of financial difficulties, begins negotiations with one or more of its creditors with a view to the readjustment or rescheduling of any of its indebtedness. |
| 17.7 | Insolvency proceedings |
| | (a) | Any step (including petition, proposal or convening a meeting) is taken with a view to a composition, assignment or arrangement with any creditors of the Borrower or any Material Subsidiary; or |
| | (b) | a meeting of the Borrower or any Material Subsidiary is convened for the purpose of considering any resolution for (or to petition for) its winding-up or for its administration or any such resolution is passed; or |
| | (c) | any person presents a petition for the winding-up or for the administration of the Borrower or any Material Subsidiary, other than a petition which is frivolous or vexatious, or which is dismissed within 30 days; or |
| | (d) | an order for the winding-up or administration of the Borrower or any Material Subsidiary is made; or |
| | (e) | any other step (including petition, proposal or convening a meeting) is taken with a view to the rehabilitation, administration, custodianship, liquidation, winding-up or dissolution of the Borrower or any Material Subsidiary or any other insolvency proceedings involving the Borrower or any Material Subsidiary, unless such step is taken by a third party and is frivolous or vexatious. |
| 17.8 | Appointment of receivers and managers |
| | (a) | Any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or the like is appointed in respect of the Borrower or any Material Subsidiary or any part of its assets; or |
| | (b) | the directors of the Borrower or any Material Subsidiary requests the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator or the like; or |
| | (c) | any other steps are taken to enforce any Security Interest over any part of the assets of the Borrower or any Material Subsidiary, unless such steps are considered (in the reasonable opinion of the Lender) to be frivolous or vexatious. |
Any attachment, sequestration, distress or execution affects any asset of the Borrower or any Material Subsidiary and is not discharged within 14 days.
| 17.10 | Analogous proceedings |
There occurs, in relation to the Borrower or any Material Subsidiary, any event anywhere which appears to correspond with any of those mentioned in Clauses 17.6 (Insolvency) to 17.9 (Creditors' process) (inclusive).
| 17.11 | Cessation of business |
The Borrower or any Material Subsidiary ceases, or threatens to cease, to carry on all or a substantial part of its business.
| 17.12 | U.S. Bankruptcy Laws |
| | (a) | The Borrower makes a general assignment for the benefit of creditors; or |
| | (b) | the Borrower commences a voluntary case or proceeding under the United States Bankruptcy Code of 1978, as amended, or under any other United States Federal or State bankruptcy, insolvency or other similar law (collectively U.S. Bankruptcy laws); or |
| | (c) | an involuntary case under any U.S. Bankruptcy Law is commenced against the Borrower and the petition is not controverted within 30 days and is not dismissed or stayed within 90 days after commencement of the case; or |
| | (d) | a custodian, conservator, receiver, liquidator, assignee, trustee, sequestrator or other similar official is appointed under any U.S. Bankruptcy Law for or takes charge of, all or substantial part of the property of the Borrower. |
| | (a) | Any event or condition occurs that presents a material risk that the Borrower or any ERISA Affiliate may incur a material liability to a Plan or to the United States Internal Revenue Service or to the United States Pension Benefit Guaranty Corporation; or |
| | (b) | An "accumulated funding deficiency" occurs (as that term is defined in section 412 of the United States Internal Revenue Code of 1986, as amended, or section 302 of ERISA), whether or not waived, by reason of the failure of the Borrower or any ERISA Affiliate to make a contribution to a Plan. |
| | (a) | Upon the occurrence of an Event of Default described in Clause 17.12 (U.S. Bankruptcy Laws): |
| | (i) | the Commitments will immediately terminate; and |
| | (ii) | the Loans, together with accrued interest, and all other amounts accrued under the Finance Documents, will be immediately due and payable. |
| | (b) | On and at any time after the occurrence of an Event of Default (other than an Event of Default described in Clause 17.12 (U.S. Bankruptcy Laws)) the Lender may by notice to the Borrower: |
| | (i) | cancel the Commitments; and/or |
| | (ii) | demand that all or part of the Loans, together with accrued interest and all other amounts accrued under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or |
| | (c) | demand that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Lender. |
| | (a) | The Borrower shall pay to the Lender a commitment fee in SEK computed at the rate of 1.05 per cent. per annum on the undrawn, uncancelled amount of the Lender's Commitment. |
The Commitment fee will be payable on each day on which any Commitment is in force.
| | (b) | Commitment fee shall be payable quarterly in arrear from the date of this Agreement. Accrued commitment fee shall also be payable to the Lender on the cancelled amount of the Commitment at the time the cancellation comes into effect. |
Any fee referred to in this Clause 18 is exclusive of any value added tax or any other direct tax which might be chargeable in connection with that fee. If any value added tax or other direct tax is so chargeable, it shall be paid by the Borrower at the same time as it pays the relevant fee.
| 19.1 | Initial and special costs |
The Borrower shall forthwith on demand pay the Lender the amount of all costs and expenses (including legal fees) reasonably incurred by any of them in connection with:
| | (a) | the negotiation, preparation, printing and execution of any Finance Document executed after the date of this Agreement. |
| | (b) | any amendment, waiver, consent or suspension of rights (or any proposal for any of the foregoing) requested by the Borrower and relating to a Finance Document or a document referred to in any Finance Document. |
| | (c) | any other matter, not of an ordinary administrative nature, arising out of or in connection with a Finance Document. |
The Borrower shall forthwith on demand pay to the Lender the amount of all costs and expenses (including legal fees) incurred by it in connection with the enforcement of, or the preservation of any rights under, any Finance Document.
The Borrower shall pay and forthwith on demand indemnify the Lender against any liability it incurs in respect of, any stamp, registration and similar tax which is or becomes payable in connection with the entry into, performance or enforcement of any Finance Document.
| 21. | INDEMNITIES AND BREAK COSTS |
| | (a) | The Borrower 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. |
The Borrower shall forthwith on demand indemnify the Lender against any loss or liability which the Lender incurs as a consequence of:
| | (a) | the occurrence of any Default; |
| | (b) | a change in the currency of a country or Clause 17.14 (Acceleration); |
| | (c) | any payment of principal or an overdue amount being received from any source otherwise than on the last day of a relevant Interest Period or Designated Interest Period (as defined in Clause 9.3 (Default interest)) relative to the amount so received; or |
| | (d) | a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment or (other than by reason of negligence or default by the Lender) a Loan not being made after the Borrower has delivered a Request. |
The Borrower's liability in each case includes any loss of Margin or other loss or expense on account of funds borrowed, contracted for or utilised to fund any amount payable under any Finance Document, any amount repaid or prepaid or any Loan.
| | (a) | The Borrower must pay to the Lender its Break Costs. |
| | (b) | Break Costs are the amount (if any) determined by the Lender by which: |
| | (i) | The interest which the Lender would have received for the period from the date of receipt of any part of a Loan or an overdue amount to the last day of the applicable Interest Period for that Loan or overdue amount if the principal or overdue amount received had been paid on the last day of that Interest Period; |
exceeds
| | (ii) | the amount by which the Lender would be able to obtain by placing an amount equal to the amount received by it on deposit with a leading bank in Stockholm interbank market for a period starting on the Business Day following receipt and ending on the last day of the applicable Interest Period. |
| | (c) | If requested by the Borrower, the Lender must supply to the Borrower details of the amount of any Break Costs claimed by it under this subclause. |
| 22. | EVIDENCE AND CALCULATIONS |
| 22.1 | Certificates and determinations |
Any certification or determination by the Lender of a rate or amount under the Finance Documents is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
Interest and the fees payable under Clause 18.1 (Commitment fee)) accrue from day to day and are calculated on the basis of the actual number of days elapsed and a year of 360 days or, where market practice otherwise dictates, 365 days.
| 23. | AMENDMENTS AND WAIVERS |
Any term of the Finance Documents may be amended or waived with the agreement of the Borrower and the Lender.
| 24. | CHANGES TO THE PARTIES |
| 24.1 | Transfers by the Borrower |
The Borrower may not assign, transfer or dispose of any of, or any interest in, its rights and/or obligations under the Finance Documents.
| | (a) | The Lender (the Existing Bank) may, subject to paragraph (b) below, at any time assign or transfer any of its Commitments and/or its rights and/or obligations under this Agreement to another bank or financial institution (the New Bank). If the Lender should assign any of its rights and obligations according to this Clause 25, an amended agreement on the same terms but reflecting the requirement for agency provisions and several lenders shall be entered into in replacement of this Agreement if the Lender so requires. |
| | (i) | A transfer of part of the Commitment must be in a minimum amount of at least SEK 100,000,000 or the remaining Commitment, if less; |
| | (ii) | the prior consent of the Borrower is required for any such assignment or transfer, unless the New Bank is an Affiliate of the Lender or unless an Event of Default has occurred which is continuing. However, the prior consent of the Borrower must not be unreasonably withheld or delayed and will be deemed to have been given if, within ten Business Days of receipt by the Borrower of an application for consent, it has not been expressly refused. |
| | (c) | Nothing in this Agreement restricts the ability of the Lender to subcontract an obligation if the Lender remains liable under this Agreement for that obligation. |
| 25. | DISCLOSURE OF INFORMATION |
The Lender shall keep confidential any and all information made available to it by the Borrower pursuant to or in connection with the Finance Documents, other than information:
| | (a) | which at the relevant time is in the public domain; or |
| | (b) | which, after such information has been made available to the Lender, becomes generally available to third parties by publication or otherwise through no breach of this Clause 25 by the Lender; or |
| | (c) | which was lawfully in the possession of the Lender or its advisers prior to such disclosure (as evidenced by that Bank's written records or the written records of the Lender's advisers) and which was not acquired directly or indirectly from the Borrower; or |
| | (d) | the disclosure of which is required by law or any competent regulatory body (to the extent of that requirement) or which is necessitated by any legal proceeding or audit requirement; or |
| | (e) | the disclosure of which is made to an Affiliate of that Bank in circumstances where it is that Bank's usual practice to make such disclosure or where such disclosure is required as part of that Bank's management or reporting policies or where such disclosure is in the reasonable opinion of that Bank required to protect its position, or to assist in the recovery of amounts, hereunder; or |
| | (f) | the disclosure of which is made to any person with whom it is proposing to enter, or has entered, into any kind of transfer, participation or other agreement in relation to this Agreement; or |
| | (g) | the disclosure of which is made by that Bank to its professional advisers; or |
| | (h) | which is disclosed to another party to this Agreement in the specific circumstances whereby it is made available to that party, |
provided that, if a Bank makes such information available to any person in accordance with paragraphs (d), (e), (f) or (g) above, it takes reasonable endeavours to ensure that such party keeps that information confidential to the same extent as set out above.
The Lender may set off any matured obligation owed by the Borrower under the Finance Documents (to the extent beneficially owned by the Lender) against any obligation (whether or not matured) owed by the Lender to the Borrower, regardless of the place of payment, booking branch or currency of either obligation. If the obligations are in different currencies, the Lender 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 Lender may set off in an amount estimated by it in good faith to be the amount of that obligation.
If a provision of any Finance Document is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:
| | (a) | the validity or enforceability in that jurisdiction of any other provision of the Finance Documents; or |
| | (b) | the validity or enforceability in other jurisdictions of that or any other provision of the Finance Documents. |
Each Finance Document 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 Finance Document.
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 or, in the case of information provided by the Borrower or the Lender in relation to Clauses 16.2 (Financial information) and 16.3 (Information - miscellaneous) only, by e-mail. 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 the above 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.
| 29.2 | Addresses for notices |
| | (a) | The address and facsimile number of the Borrower are: |
Autoliv, Inc,
Box 70381
SE-107 24 Stockholm
Sweden
Fax No: +46 8 24 44 93
Attention: Treasurer
With a copy to:
Fax No: +46 85 87 20 633
Attention: VP for Legal Affairs, General Counsel and Secretary
or such other as the Borrower may notify to the Lender by not less than five Business Days' notice.
| | (b) | The address and facsimile number of the Lender are: |
Skandinaviska Enskilda Banken AB (publ)
Structured Credit Operations
106 40 Stockholm
Sweden
Fax No: +46 8 611 0384
Attention: Structured Credit Operations
or such other as the Lender may notify to the Borrower by not less than five Business Days' notice.
| | (a) | Any notice given under or in connection with any Finance Document shall be in English. |
| | (b) | All other documents provided under or in connection with any Finance Document shall be: |
| | (ii) | if not in English, accompanied by a certified English translation and, in this case, the English translation shall prevail unless the document is a statutory or other official document. |
| | (a) | The Lender shall not be held responsible for any damage arising out of any Swedish or foreign legal enactment, or any measure undertaken by a Swedish or foreign public authority, or war, strike, lockout, boycott, blockade or any other similar circumstance. The reservation in respect of strikes, lockouts, boycotts and blockades applies even if the Lender takes such measures, or is subject to such measures. |
| | (b) | Any damage that may arise in other cases shall not be indemnified by the Lender if it has observed normal care. The Lender shall not in any case be held responsible for any indirect damage, consequential damage and/or loss of profit. |
| | (c) | Should there be an obstacle as described in paragraph (a) above for the Lender to take any action in compliance with this Agreement, such action may be postponed until the obstacle has been removed. |
This Agreement is governed by Swedish law.
| 33.1 | Jurisdiction of Swedish courts |
| | (a) | The courts of Sweden, and, in first instance the city court of Stockholm, have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (a Dispute). |
| | (b) | However, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. |
The Finance Documents contain the complete agreement between the parties on the matters to which they relate and supersede all prior commitments, agreements and understandings, whether written or oral, on those matters.
THIS AGREEMENT has been entered into on the date stated at the beginning of this Agreement.
SCHEDULE 1
CONDITIONS PRECEDENT DOCUMENTS
TO BE DELIVERED BEFORE THE FIRST REQUEST
| (a) | A copy of the memorandum and articles of association and certificate of incorporation of the Borrower. |
| (b) | A copy of a secretary certificate to the effect that the board of directors of the Borrower has: |
| | (i) | approved the terms of, and the transactions contemplated by, this Agreement and resolving that it execute this Agreement; |
| | (ii) | authorized a specified person or persons to execute this Agreement on its behalf; and |
| | (iii) | authorized a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with this Agreement. |
| (c) | A specimen of the signature of each person authorized by the resolution referred to in paragraph (b) above. |
| (d) | A certificate of a director of the Borrower confirming that the borrowing of the Commitment in full would not cause any borrowing limits binding on it to be exceeded. |
| (a) | A certificate of an authorized signatory of the Borrower certifying that each copy document specified in this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement. |
| (b) | Confirmation from the Borrower that it is not, to the best of its knowledge and belief after full and due enquiry, in breach of any other agreement to which it is a party. |
| (c) | A copy of any other authorization or other document, opinion or assurance which the Facility Agent considers to be necessary 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. |
| (a) | A legal opinion of the General Counsel of the Borrower in form and substance satisfactory to the Lender. |
SCHEDULE 2
FORM OF REQUEST
| To: | Skandinaviska Enskilda Banken AB (publ) as Lender |
From: Autoliv Inc. as Borrower
Date: [ ]
Autoliv, Inc.
SEK 1,000,000,000 Credit Agreement dated 16 October 2008
| 1. | We wish to utilise the Facility as follows: |
| | (d) | Payment instructions: | [ ] |
| 2. | We confirm that each condition specified in Clause 4.2 (Further conditions precedent) is satisfied on the date of this Request. |
By:
Autoliv Inc.
Authorized Signatory
SCHEDULE 3
FORM OF COMPLIANCE CERTIFICATE
To: Skandinaviska Enskilda Banken AB (publ) as Lender
From: AUTOLIV INC.
Date: [ ]
Autoliv Inc.
SEK 1,000,000,000 Credit Agreement dated 16 October 2008 (the Agreement)
| 1. | This is the Compliance Certificate referred to in Clause 16.5 (Compliance certificates) of the Agreement. |
| 2. | We confirm that as at [relevant Balance Sheet Date] Subsidiary Borrowings were [ ] (Covenant level requirement not more than U.S.$400,000,000). |
| 3. | We confirm the credit ratings as at the date of this Compliance Certificate of the long term unsecured and unsubordinated debt of AUTOLIV INC. given by: |
| | (b) | Standard & Poor's was [ ]. |
| 4. | We confirm that no Default is outstanding as at the date of this Compliance Certificate.1 |
By:
................................................................................................AUTOLIV INC.
| 1 | If this statement cannot be made, the certificate should identify any Default that is outstanding and the steps, if any, being taken to remedy it. |
SIGNATORIES
The Borrower
AUTOLIV, INC.
By:
The Lender
SKANDINAVISKA ENSKILDA BANKEN AB (publ)
By:
