Exhibit 4.7
CLIFFORD CHANCE LLP
EXECUTION VERSION
AMENDMENT AND RESTATEMEN T AGREEMENT
DATE D 16 FEBRUARY 2023
BETWEEN
ABB LTD
CERTAIN SUBSIDIARIES OF ABB LTD
AS ORIGINAL BORROWERS
THE MANDATED LEAD ARRANGERS
THE ORIGINAL LENDERS
CITIBANK EUROPE PLC, UK BRANCH
AS FACILITY AGENT
AND EURO SWINGLINE AGENT
AND
CITIBANK, N.A
AS DOLLAR SWINGLINE AGENT
RELATING TO THE $2,000,000,000
MULTICURRENCY REVOLVING CREDIT
AGREEMENT
DATE D 16 DECEMBER 2019
10250237317-v15 70-41048667
CONTENTS
Clause Page
1. Definitions and Interpretatio
n
...................................................................................
.
1
2. Representations ........................................................................................................
.
2
3. Restatement..............................................................................................................
.
2
4. Continuity and Further Assurance.............................................................................
.
2
5. Costs and Expenses ..................................................................................................
.
3
6. Miscellaneous...........................................................................................................
.
3
7. Governing Law.........................................................................................................
.
3
Schedule 1 The Obligors.................................................................................................................... 4
Schedule 2 Conditions Precedent........................................................................................................ 5
Schedule 3 Amended and Restated Facility Agreement..................................................................... 7
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70-41048667
THIS AGREEMENT
is dated 16 February 2023 and made between:
(1)
ABB LTD
, a company incorporated in Switzerland whose registered office is at
Affolternstrasse 44, CH-8050 Zurich, Switzerland ("
ABB
" or the "
Guarantor
");
(2)
THE SUBSIDIARIES OF AB
B
listed i
n
Schedule 1 a
s
origina
l
borrowers (the
"
Original Borrowers
");
(3)
THE MANDATED LEAD ARRANGERS
(as defined in the Amended and Restated
Facility Agreement);
(4)
TH
E
ORIGINA
L
LENDER
S
(as defined in th
e
Amended and Restate
d
Facility
Agreement);
(5)
CITIBAN
K
EUROPE PLC, UK BRANC
H
in its capacity as facility agent (the
"
Facility Agent
");
(6)
CITIBANK, N.A
.
in its capacity as dollar swingline agent (the "
Dollar Swingline
Agent
"); and
(7)
CITIBAN
K
EUROPE PLC, UK BRANC
H
in its capacity as euro swingline agent
(the "
Euro Swingline Agent
").
IT IS AGREED
as follows:
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
"
Amended and Restated Facility Agreement
" means the Original Facility
Agreement, as amended and restated by this Agreement.
"
Effective Date
" means the date on which the Facility Agent confirms to the Original Lenders
and ABB that it has received each of the documents and other evidence listed i
n
Schedule
2
(
Conditions Precedent
) in a form and substance satisfactory to the Facility Agent.
"
Guarantee Obligations
" means the guarantee and indemnity obligations of the
Guarantor contained in the Original Facility Agreement.
"
Original Facility Agreement
" means th
e
$2,000,000,000 multicurrency revolving credit
agreement dated 16 December 2019 between, among others, ABB, the Original Borrowers, the
Agents, th
e
Mandate
d
Lea
d
Arranger
s
and th
e
Origina
l
Lender
s
as amended and/or
supplemented from time to time prior to the date of this Agreement.
1.2
Incorporation of defined terms
(a) Unless a contrar
y
indication appears, a term defined in the Original Facility
Agreement has the same meaning in this Agreement.
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(b) The principles of construction set out in the Original Facility Agreement shall
have effect as if set out in this Agreement.
1.3
Clauses
In this Agreement any reference to a "Clause" or a "Schedule" is, unless the context otherwise
requires, a reference to a Clause in or a Schedule to this Agreement.
1.4
Third party rights
A person who is not a party to this Agreement has no right under the Contracts (Rights
of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this
Agreement.
1.5
Designation
In accordance with the Original Facility Agreement, each o
f
AB
B
and th
e
Facility Agent
designates this Agreement as a Finance Document.
2.
REPRESENTATIONS
Each of the representations set out in clause 19.16 (
Repetition
) of the Original Facility
Agreement are deemed to be made by each Obligor (as applicable) (by reference to the facts and
circumstances then existing) on:
(a) the date of this Agreement; and
(b) the Effective Date,
and references to "the Finance Documents" in each of the representations referred to above
should be construed as references to this Agreement and to the Original Facility Agreement and
on the Effective Date, to the Amended and Restated Facility Agreement.
3.
RESTATEMENT
and restated so that it shall be read and construed for all purposes as set out in Schedule 3
(
Amended and Restated Facility Agreement
).
4.
CONTINUITY AND FURTHER ASSURANCE
4.1
Continuing obligations
The provisions of the Original Facility Agreement and the other Finance Documents (including
for the avoidance of doubts any Extension Request) shall, save as amended by this Agreement,
continue in full force and effect.
4.2
Confirmation of Guarantee Obligations
For the avoidance of doubt
,
th
e
Guarantor confirms for the benefit of the Finance
Parties that all Guarantee Obligations owed by it under the Amende
d
and Restated
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Facility Agreement shall (a) remain in full force and effect notwithstanding the amendments
referred to in Clause 3 (
Restatement
) and (b) extend to any new
obligations assumed by any Obligor under the Finance Documents as a result of this Agreement
(including, but not limited to, under the Amende
d
and Restate
d
Facility Agreement).
4.3
Further assurance
Each Obligor, shall, at the request of th
e
Facilit
y
Agent and at such Obligor's own
expense, do all such acts and things necessary or desirable to give effect to the
amendments effected or to be effected pursuant to this Agreement.
5.
COSTS AND EXPENSES
5.1
Transaction expenses
AB
B
shall promptly on demand pay th
e
Facility Agen
t
the amount o
f
all costs and expenses
(including legal fees) reasonably and directly incurred by the Facility Agent in connection with
the negotiation, preparation, printing and execution of this Agreement and any other
documents referred to in this Agreement.
6.
MISCELLANEOUS
6.1
Incorporation of terms
The provisions of clause 31 (
Notices
), clause 33 (
Partial invalidity
), clause 34
(
Remedies an
d
waivers
) and clause 3
9
(
Enforcement
) of th
e
Amended and Restated Facility
Agreement shall be incorporated into this Agreement as if set out in full in this Agreement and as
if references in those clauses to "this Agreement" or "the Finance Documents" are references to
this Agreement.
6.2
Counterparts
This Agreement 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 this Agreement.
7.
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection
with it are governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
THE OBLIGORS
Names of Original Borrowers Jurisdiction of incorporation
ABB Finance B.V. Netherlands
ABB Treasury Center (USA), Inc. Delaware, United States of America
Name of Guarantor Jurisdiction of incorporation
ABB Ltd Switzerland
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SCHEDULE 2
CONDITIONS PRECEDENT
1.
Corporate Documents
(a) A copy of the constitutional documents of each Obligor (being, in the case of
ABB Finance B.V. , a copy of the articles of association (
statuten
) and deed of
incorporation (
oprichtingsakte
), as well as an extract (
uittreksel
) from the Dutch
Commercial Register (
Handelsregister
)) or a certificate of an authorised
signatory of each relevant Obligor certifying that the constitutional documents previously
delivered to the Facility Agent for the purposes of the Original Facility Agreement
have not been amended and remain in full force and effect.
(b) A copy of a resolution of the board of directors of each Obligor (if applicable) or, in the
case of ABB Finance B.V., a copy of a resolution of the board of managing directors
(
directie
) or, in the case of ABB, a copy of an excerpt of the minutes of, or a circular
resolution of, a meeting of the board of directors of ABB:
(i) approving the terms of, and the transactions contemplated by, this
Agreement and the execution of this Agreement;
(ii) authorising a specified person or persons to execute this Agreement on
its behalf;
(iii) (other than in relation to ABB) authorising a specified person or persons,
on its behalf, to sign and/or despatch all documents and notices (including,
if relevant, any Utilisation Requests) to be signed and/or despatched by it
under or in connection with this Agreement; and
(iv) in the case of ABB Finance B.V., confirming that no works council
(
ondernemingsraad
) or central or European works council (
centrale of
Europese
ondernemingsraad
) has been installed with jurisdiction (and the authority to
render advice) in respect of ABB Finance B.V. and/or the transactions
contemplated by this Agreement, that no action has been taken for the installation
of such works council and no request for such a works council to be installed
has bee
n
made and that such works council is otherwise not required to be
installed pursuant to the Works Council Act (
Wet op de ondernemingsraden
).
(c) A specimen of the signature of each person authorised by the resolution referred
to in paragraph (b) above.
(d) A copy of a good standing certificate (including verification of tax status) with
respect to ABB Treasury Center (USA), Inc., issued as of a recent date by the Secretary
of State or other appropriate official of its jurisdiction of incorporation.
(e) A certificate of an authorised signatory of the relevant Obligor certifying without
personal liabilit
y
that each copy documen
t
relating to it specified in
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paragraphs 1(a) to 1(d) (as relevant) of this Schedule 2 is correct, complete and in full
force and effect as at a date no earlier than the date of this Agreement.
2.
Legal Opinions
(a) A legal opinion of Clifford Chance LLP, legal advisers to the Mandated Lead Arrangers
and the Agents in England, substantially in the form distributed to the Original Lenders
prior to signing this Agreement.
(b) A legal opinion of Clifford Chance LL
P,
Amsterdam, legal advisers to the Mandated
Lead Arranger and the Agents in the Netherlands in the form approved by the
Facility Agent.
(c) A legal opinion of Freshfields Bruckhaus Deringer US LL
P,
United States legal advisers
to ABB Treasury Center (USA), Inc. in the form approved by the Facility Agent.
(d) A legal opinion of Niederer Kraft Frey Ltd, legal advisers to the Mandated Lead Arrangers
and the Agents in Switzerland in the form approved by the Facility Agent.
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SCHEDULE 3
AMENDED AND RESTATED FACILITY AGREEMENT
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CLIFFORD CHANCE LLP
EXECUTION VERSION
ABB LTD
CERTAI N SUBSIDIARIES OF ABB LTD AS
BORROWERS
WITH
THE MANDATED LEAD ARRANGERS
WITH
CITIBANK EUROPE PLC, UK BRANCH AS
FACILITY AGENT
AND EURO SWINGLINE AGENT
AND
CITIBANK, N.A
AS DOLLAR SWINGLINE AGENT
$2,000,000,000
MULTICURRENCY REVOLVING CREDIT
AGREEMENT
DATE D 16 DECEMBER 2019
AS AMENDED AND RESTATED
ON 16 FEBRUARY 2023
10250237000-v15 70-41048667
CONTENTS
Clause Page
1. Definitions and Interpretatio
n
...................................................................................
.
2
2. The Facilit
y
............................................................................................................. 28
3. Purpose.................................................................................................................... 33
4. Conditions of Utilisation.......................................................................................... 33
5. Utilisation................................................................................................................ 35
6. Optional Currencies................................................................................................. 37
7. Repayment .............................................................................................................. 39
8. Prepayment and Cancellation................................................................................... 40
9. Interest .................................................................................................................... 46
10. Interest Periods........................................................................................................ 48
11. Changes to the Calculation of Interest...................................................................... 48
12. Fees......................................................................................................................... 50
13. Tax Gross Up and Indemnities................................................................................. 52
14. Increased Costs........................................................................................................ 58
15. Other Indemnities.................................................................................................... 61
16. Mitigation by the Lenders........................................................................................ 62
17. Costs and Expenses ................................................................................................. 63
18. Guarantee and Indemnity......................................................................................... 63
19. Representations ....................................................................................................... 67
20. Information Undertakings........................................................................................ 70
21. General Undertakings.............................................................................................. 73
22. Events of Default..................................................................................................... 76
23. Changes to the Lenders............................................................................................ 80
24. Confidentiality of Funding Rate
s
............................................................................. 86
25. Changes to the Obligors........................................................................................... 87
26. Role of the Agents and the Mandated Lead Arrangers.............................................
.
89
27. Conduct of Business by the Finance Parties............................................................. 99
28. Sharing among the Lenders.................................................................................... 100
29. Payment Mechanics............................................................................................... 102
30. Set-Off .................................................................................................................. 106
31. Notice
s
.................................................................................................................. 106
32. Calculation and Certificates................................................................................... 109
33. Partial Invalidity.................................................................................................... 110
34. Remedies and Waivers .......................................................................................... 110
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35. Amendments and Waivers ..................................................................................... 110
36. Bail-in ................................................................................................................... 114
37. Counterparts.......................................................................................................... 116
38. Governing Law...................................................................................................... 117
39. Enforcement.......................................................................................................... 117
Schedule 1 ........................................................................................................................ 118
Part I The Original Lenders............................................................................................... 118
Part II The Dollar Swingline Lenders................................................................................ 119
Part III The Euro Swingline Lenders ................................................................................. 120
Part IV The Original Obligors........................................................................................... 121
Schedule 2 Conditions Precedent....................................................................................... 122
Part I Conditions Precedent............................................................................................... 122
Part II Additional Borrower Conditions Precedent............................................................. 124
Schedule 3 Utilisation Request.......................................................................................... 126
Schedule 4 Form of Transfer Certificate............................................................................ 127
Schedule 5 Timetables ...................................................................................................... 129
Schedule 6 Form of Borrower Accession Letter ................................................................ 131
Schedule 7 Form of Resignation Letter.............................................................................. 132
Schedule 8 Material Subsidiaries....................................................................................... 133
Schedule 9 Form of Increase Confirmation........................................................................ 134
Schedule 10 Reference Rate Terms ................................................................................... 136
Part I A Dollars – Term Rate Advances............................................................................. 136
Part I B Dollars – Compounded Rate Advances................................................................. 140
Part II Sterling................................................................................................................... 144
Part III Swiss Francs ......................................................................................................... 147
Part IV Euro...................................................................................................................... 151
Schedule 11 Daily Non-Cumulative Compounded RFR Rate ........................................... 153
Schedule 12 Cumulative Compounded RFR Rate.............................................................. 155
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THIS AGREEMENT
is dated 16 December 2019 ("
the date of this Agreement
")
,
as amended
and restated pursuant to an amendment and restatement agreement dated 16 February 2023 and made
BETWEEN
:
(1)
ABB LTD
,
a
company incorporated in Switzerland whose registered office is at
Affolternstrasse 44, CH-8050 Zurich, Switzerland ("
ABB
" or the "
Guarantor
");
(2)
THE SUBSIDIARIES OF ABB
listed in Part IV of Schedule 1 (
The Original Obligors
)
as original borrowers (the "
Original Borrowers
");
(3)
CITIGROUP GLOBAL MARKETS LIMITED
,
BANK OF AMERICA EUROPE
DESIGNATED ACTIVITY COMPANY
,
BARCLAYS BANK PLC
,
BNP
PARIBAS (SUISSE) SA
,
CA INDOSUEZ (SWITZERLAND) SA
,
CREDIT
SUISSE (SWITZERLAND) LTD.
,
DEUTSCHE BANK LUXEMBOURG S.A.
,
GOLDMAN SACHS BANK USA
,
HSBC BANK PLC
,
ING BANK N.V.,
AMSTERDAM
,
LANCY/GENEVA BRANCH
,
J.P. MORGAN SECURITIES
PLC
,
NORDEA BANK ABP
,
FILIAL I SVERIGE
,
BANCO SANTANDER, S.A.
,
STANDARD
CHARTERED BANK
,
SKANDINAVISKA ENSKILDA BANKEN
AB
(PUBL)
,
SOCIÉTÉ GÉNÉRALE S.A. FRANKFURT BRANCH, UBS
SWITZERLAND AG
,
UNICREDIT BANK AG
,
CHINA CONSTRUCTION
BANK
CORPORATION
,
BEIJING
,
SWISS BRANCH ZURICH
in their
respective capacities as mandated lead arrangers (the "
Mandated Lead Arrangers
");
(4)
THE FINANCIAL INSTITUTION
S
listed i
n
Part I to Part II
I
o
f
Schedule 1 (
The
Original
Lenders
) in their respective capacities as original lenders (the "
Original
Lenders
");
(5)
CITIBAN
K
EUROPE PLC, UK BRANC
H
in its capacity as facility agen
t
(the
"
Facility Agent
");
(6)
CITIBANK, N.A
.
in its capacity as dollar swingline agent (the "
Dollar Swingline
Agent
"); and
(7)
CITIBAN
K
EUROPE PLC, UK BRANC
H
in its capacity as euro swingline agent
(the "
Euro Swingline Agent
").
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IT IS AGREED
as follows:
SECTION 1
INTERPRETATION
1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions
In this Agreement:
"
Acquisition
" means the acquisition by any Group Company of any person not already being a
Group Company and which, upon completion of the acquisition, becomes a Group Company.
"
Additional Borrower
" means any wholly owned Subsidiary of ABB that has become an
Additional Borrower in accordance with Clause 25.2 (
Additional Borrowers
).
"
Additional Business Day
" means any day specified as such in the applicable
Reference Rate Terms.
"
Advance
" means an advance made or to be made under the Facility (including, unless the context
otherwise requires, a Swingline Advance) or the principal amount outstanding for the time
being of that advance.
"
Affiliate
" means, in relation to any person, a Subsidiary of that person or a Holding Company
of that person or any other Subsidiary of that Holding Company.
"
Agents
" means the Dollar Swingline Agent, the Euro Swingline Agent and the Facility Agent,
and "
Agent
" means, as the context may require, any of them.
"
Agreed Jurisdiction
" means any of the United States of America, Switzerland, any country that
is, at the time the notice requesting the additional Borrower is submitted, a member of the
European Union (other than Cyprus, Estonia, Latvia
,
Lithuania, Slovakia and Slovenia) and
any other country approved by all the Lenders.
"
Amendment and Restatement Agreement
" means the amendment and restatement agreement
dated 16 February 2023 between, among others, ABB and the Facility Agent.
"
Authorisation
" means an authorisation, consent, approval, resolution, licence,
exemption, filing or registration.
"
Availability Period
" means the period from the date of this Agreement up to and
including the date falling one week before the Termination Date.
"
Available Commitment
" means a Lender's Commitment minus:
(including any Separate Advances); and
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(b) in relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Advances that are due to be made on or before the proposed Utilisation
Date,
other than, in either case, that Lender's participation in any Advances that are due to be repaid or
prepaid on or before the proposed Utilisation Date.
"
Available Dollar Swingline Commitment
" means a Dollar Swingline Lender's Dollar
Swingline Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding Dollar
Swingline Advances; and
(b) in relation to any proposed Utilisation by way of a Dollar Swingline Advance,
the Base Currency Amount of its participation in any Dollar Swingline
Advances that are due to be made on or before the proposed Utilisation Date,
other than, in either case, that Dollar Swingline Lender's participation in any Dollar Swingline
Advances that are due to be repaid or prepaid on or before the proposed Utilisation Date.
"
Available Dollar Swingline Facility
" means the aggregate for the time being of each Dollar
Swingline Lender's Available Dollar Swingline Commitment.
"
Available Euro Swinglin
e
Commitment
" means a Euro Swingline Lender's Euro
Swingline Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding Euro
Swingline Advances; and
(b) in relation to any proposed Utilisation by way of a Euro Swingline Advance,
the Base Currency Amount of its participation in any Euro Swingline Advances that are
due to be made on or before the proposed Utilisation Date,
other than, in either case, that Euro Swingline Lender's participation in any Euro Swingline
Advances that are due to b
e
repaid or prepaid on or before the proposed Utilisation Date.
"
Available Euro Swingline Facility
" means the aggregate for the time being of each Euro
Swingline Lender's Available Euro Swingline Commitment.
"
Available Facility
" means the aggregate for the time being of each Lender's Available
Commitment.
"
Base Currency
" means Dollars.
"
Base Currency Amount
" means, in relation to an Advance, the amount specified in the
Utilisation Request delivered by the relevant Borrower for that Advance (or, if the amount
requested is not denominated in the Base Currency, that amount converted into the Base Currency
at the Facility Agent's Spot Rate of Exchange on the date which is 3 Business Days before the
Utilisation Date or, if later, on the date the Facility Agent
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receives the Utilisation Request) adjusted to reflect any repayment or prepayment of the
Advance.
"
Baseline CAS
" means, in relation to a Compounded Rate Advance in a Compounded Rate
Currency, any rate which is either:
(a) specified as such in the applicable Reference Rate Terms; or
(b) determined by the relevant Agent (acting on the instructions of all the Lenders)
(or by any other Finance Party which agrees to determine that rate in place of tha
t
Agent)
in accordance with the methodology specified in the applicable Reference Rate Terms.
"
Basic €STR
" means, in relation to any da
y
during an Interest Period for a Euro Swingline
Advance, €STR for the first day of that Interest Period and if that rate is less than zero, Basic €STR
shall be deemed to be zero.
"
Borrower Accession Letter
" means a letter substantially in the form set out in
Schedule 6 (
Form of Borrower Accession Letter
).
"
Borrowers
" means each Original Borrower and each Additional Borrower,
provided
that
it has
not been released from its rights and obligations under this Agreement in accordance with Clause
25.3 (
Resignation of a Borrower
).
"
Break Costs
" means the amount (if any) specified as such in the applicable Reference Rate
Terms.
"
Business Day
" means:
(a) in relation to a Dollar Swingline Advance a day (other than a Saturday or a
Sunday) on which banks are open for general business in New York;
(b) in relation to any Advance (not being a Dollar Swingline Advance) a day (other
than a Saturday or Sunday) on which banks are open for general business in London,
and:
(i) (in relation to any date for payment or purchase of a currency other than
Euro) the principal financial centre of the country of that currency;
(ii) (in relation to any date for payment or purchase of Euro) any TARGET
Day; or
(iii) (in relation to:
(A) the fixing of an interest rate in relation to a Term Rate Advance;
(B) any date for payment or purchase of an amount relating to a
Compounded Rate Advance; or
Period for a Compounded Rate Advance, or otherwise in relation to the
determination of the length of such an Interest Period),
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which is an Additional Business Day relating to that Advance or Unpaid Sum;
and
(c) for all other purposes, a day (other than a Saturday or Sunday) on which banks
are open for general business in London.
"
Capital Markets Issuer
" means a Group Company whose primary functions within
the Group are: (i) the issuance of bonds, commercial paper and/or other debt instruments;
and/or (ii) supporting the intra-Group funding arrangements and treasury operations of the Group.
"
Central Bank Rate
" has the meaning given to that term in the applicable Reference Rate
Terms.
"
Central Bank Rate Adjustment
" has the meaning given to that term in the applicable
Reference Rate Terms.
"
Clean-Up Period
" means, in relation to an Acquisition, the period commencing on the date
such Acquisition completes and ending on the date falling 180 days later.
"
Code
" means the US Internal Revenue Code of 1986.
"
Commitment
" means:
(a) in relation to an Original Lender, the amount in the Base Currency set opposite
its name under the heading "
Commitment
" i
n
Part
I
o
f
Schedule
1
(
The
Original
Lenders
) and the amount of any other Commitment transferred to it under this
Agreement or assumed by it in accordance with Clause 2.2 (
Increase
of Commitments
);
and
(b) in relation to any other Lender, the amount of any Commitment transferred to it under this
Agreement or assumed by it in accordance with Clause 2.2 (
Increase
of Commitments
),
to the extent not cancelled, reduced or transferred by it under this Agreement.
"
Compounded Rate Advance
" means any Advance (not being a Swingline Advance) or, if
applicable, Unpaid Sum which is not a Term Rate Advance.
"
Compounded Rate Currency
" means any currency which is not a Term Rate
Currency.
"
Compounded Rate Interest Payment
" means the aggregate amount of interest that:
(a) is, or is scheduled to become, payable under any Finance Document; and
(b) relates to a Compounded Rate Advance.
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"
Compounded Reference Rate
" means, in relation to any RFR Banking Day during the Interest
Period of
a
Compounded Rate Advance, the percentage rat
e
per annum which is the aggregate
of:
(a) the Daily Non-Cumulative Compounded RFR Rate for that RFR Banking Day;
and
(b) the applicable Baseline CAS or Fallback CAS (if any).
"
Compounding Methodology Supplement
" means, in relation to the Daily Non- Cumulative
Compounded RFR Rat
e
or the Cumulative Compounded RFR Rate, a document which:
(a) is agreed in writing by ABB, each Agent (in its own capacity) and each Agent
(acting on the instructions of the Majority Lenders);
(b) specifies a calculation methodology for that rate; and
(c) has been made available to ABB and each Finance Party.
"
Cumulative Compounded RFR Rate
" means, in relation to an Interest Period for a
Compounded Rate Advance, the percentage rate per annum determined by the relevant Agent (or
by any other Finance Party which agrees to determine that rate in place of tha
t
Agent) in
accordance with the methodology set out i
n
Schedule 1
2
(
Cumulative
Compounded RFR Rate
)
or in any relevant Compounding Methodology Supplement.
"
Daily Non-Cumulative Compounded RFR Rate
" means, in relation to any RFR Banking
Day during an Interest Period for a Compounded Rate Advance, the
percentage rate per annum determined by the relevant Agent (or by any other Finance Party which
agrees to determine that rate in place of that Agent) in accordance with the methodology set out in
Schedule 11 (
Daily Non-Cumulative Compounded RFR Rate
) or in any relevant Compounding
Methodology Supplement.
"
Daily Rate
" means the rate specified as such in the applicable Reference Rate Terms. "
Default
"
means an Event of Default or any event or circumstance specified in Clause 2
2
(
Events of Default
)
which (with the expiry of a grace period or the giving of any notice specified in Clause 22
(
Events of Default
)) would be an Event of Default.
"
Defaulting Lender
" means any Lender:
(a) which has failed to make its participation in an Advance available or has notified
the Facility Agent that it will not make its participation in an Advance available by the
Utilisation Date of that Advance in accordance with Clause 5.4 (
Lenders'
participation
);
(b) which has otherwise rescinded or repudiated a Finance Document; or
(c) with respect to which an Insolvency Event has occurred and is continuing, unless, in the
case of paragraph (a) above:
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(i) its failure to pay is caused by:
(A) administrative or technical error; or
(B) a Disruption Event,
and payment is made within 3 Business Days of its due date; or
(ii) the Lender is disputing in good faith whether it is contractually obliged
to make the payment in question.
"
Disruption Event
" means either or both of:
(a) a material disruption to those payment or communications systems or to those
financial markets which are, in each case, required to operate in order for payments
to be made in connection with the Facility (or otherwise in order for the transactions
contemplated by the Finance Documents to be carried out) which disruption is not
caused by, and is beyond the control of, any of the Parties; or
(b) the occurrence of any other event which results in a disruption (of a technical or systems-
related nature) to the treasury or payments operations of a Party preventing that, or
any other Party:
or
the Finance Documents,
the Party whose operations are disrupted.
"
Dollar Swingline Advance
" means any advance made or to be made under the Dollar
Swingline Facility pursuant to a Utilisation Request under Claus
e
5.
5
(
Delivery of a
Utilisation Request for a Swingline Advance
).
"
Dollar Swingline Commitmen
t" means:
(a) in relation to an Original Lender which is a Dolla
r
Swingline Lender, the
amount set opposite its name under the heading "
Dollar Swingline
Commitment
" in Part II of Schedule 1 (
The Dollar Swingline Lenders
) and the amount
of any other Dollar Swingline Commitment transferred to it under this Agreement or
assumed by it in accordance with Clause 2.2 (
Increase of
Commitments
); and
(b) in relation to any other Dollar Swingline Lender, the amount of any Dollar Swingline
Commitment transferred to it under this Agreement or assumed by it in accordance with
Clause 2.2 (
Increase of Commitments
),
to the extent not cancelled, reduced or transferred by it under this Agreement.
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"
Dollar Swingline Facility
" means the dollar swingline facility forming part of the Facility
as described in paragraph (a) of Clause 2.1 (
The Facility
).
"
Dollar Swingline Lender
" means:
(a) any Original Lender whose name is set out in Part II of Schedule 1 (
The Dollar
Swingline Lenders
); and
(b) any bank which has become a Party as a Lender in accordance with Clause 2.2
(
Increase of Commitments
) or Clause 23 (
Changes to the Lenders
) and to whom a Dollar
Swingline Commitment has been transferred or by whom a Dollar Swingline
Commitment has been assumed,
which in each case has not ceased to have a Dollar Swingline Commitment.
"
Dollar Swingline Rate
" means, at any time, the higher of:
(a) the Prime Rate; and
(b) the Federal Funds Effective Rate plus 0.50 per cent. per annum.
"
Dutch Borrower
" means ABB Finance B.V. and any Additional Borrower which is
incorporated or established in The Netherlands.
"
Economic Sanctions Laws
" means economic or trade sanctions laws and regulations as
announced and adopted by the Sanctions Authorities (including, but not limited to, the Iran
Sanctions Act, as amended by the Comprehensive Iran Sanctions, Accountability and
Divestment Act of 2010, and by any further amendments thereto (the Iran Sanctions Act)).
"
Environmental Law
" means any applicable law in any jurisdiction in whic
h
any Group
Company conducts business which relates to the pollution or protection of the environment or
harm to or the protection of human health or the health of animals or plants.
"
ERISA
" means the Employee Retirement Income Security Act of 1974 of the United States of
America and the regulations promulgated and the rulings issued thereunder.
"
€STR
" means, in relation to any day the applicable Screen Rate for that day.
"
EURIBOR
" means, in relation to any Advance (other than a Euro Swingline Advance)
in Euro, the Primary Term Rate specified in the Reference Rate Terms for Euro.
"
Euro Swingline Advance
" means any advance made or to be made under the Euro Swingline
Facility pursuant to a Utilisation Request under Claus
e
5.
5
(
Delivery of a
Utilisation Request
for a Swingline Advance
).
"
Euro Swingline Commitment
" means:
(a) in relation to an Original Lender which is a Euro Swingline Lender, the amount
(in the Base Currency) set opposite its name under the heading "
Euro Swingline
Commitment
" in Part III of Schedule 1 (
The Euro Swingline Lenders
) and the
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amount of any other Euro Swingline Commitment transferred to it under this Agreement
or assumed by it in accordance with Clause 2.2 (
Increase of
Commitments
); and
(b) in relation to any other Euro Swingline Lender, the amount of any Euro Swingline
Commitment transferred to it under this Agreement or assumed by it in accordance with
Clause 2.2 (
Increase of Commitments
),
to the extent not cancelled, reduced or transferred by it under this Agreement.
"
Euro Swingline Facility
"
means the euro swingline facility forming part of the Facility
as described in paragraph (b) of Clause 2.1 (
The Facility
).
"
Euro Swingline Lender
" means:
(a) any Original Lender whose name is set out in Part III of Schedule 1 (
The Euro
Swingline Lenders
); and
(b) any bank which has become Party as a Lender in accordance with Clause 2.2
(
Increase of Commitments
) or Clause 23 (
Changes to the Lenders
) and to whom a Euro
Swingline Commitment has been transferred or by whom a Euro Swingline
Commitment has been assumed,
which in each case has not ceased to have a Euro Swingline Commitment.
"
Euro Swingline Rate
" means the percentage rate per annum which is the aggregate of:
(a) the Margin; and
(b) Basic €STR.
"
Event of Default
" means any event or circumstance specified as such in Claus
e
22 (
Events
of Default
).
"
Existing Credit Facility
" means the US$2,000,000,000 multicurrency revolving credit
facility made available pursuant to a multicurrency revolving facility agreement dated 23 May
2014, as amended on 13 June 2014 and as amended and restated from time to time.
"
Existing Lender
" has the meaning given to that term in Clause 23.1 (
Assignments and
transfers
by the Lenders
).
"
Extension Request
" means a First Extension Request or a Second Extension Request. "
Facility
"
means the loan facility made available under this Agreement as described in Clause 2.1 (
The
Facility
) incorporating a dollar swingline facility and a euro swingline facility.
"
Facility Agent's Spot Rate of Exchange
" means:
(a) the Facility Agent's spot rate of exchange; or
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(b) (if the Facilit
y
Agent does not have an available spot rate of exchange) any other publicly
available spot rate of exchange selected by the Facility Agent (acting reasonably and in
consultation with ABB),
for the purchase of the relevant currency with the Base Currency in the London foreign
exchange market at or about 11:00 a.m. on a particular day.
"
Facility Office
" means the office or offices notified by a Lender to the Facility Agent on or before
the date it becomes a Lender (or, following that date, by not less than 5 Business Days' notice)
as the office or offices through which it will perform its obligations under this Agreement.
"
Fallback CAS
" means, in relation to an
y
Advanc
e
in a Term Rate Currency which becomes a
"Compounded Rate Advance" for its then current Interest Period pursuant to a Reference Rate
Supplement, any rate which is either:
(a) specified as such in the applicable Reference Rate Terms; or
(b) determined by the relevant Agent (acting on the instructions of all the Lenders)
(or by any other Finance Party which agrees to determine that rate in place of tha
t
Agent)
in accordance with the methodology specified in the applicable Reference Rate Terms.
"
Fallbac
k
Interes
t
Period
" means, in relation to
a
Term Rate Advance, the period specified
as such in the applicable Reference Rate Terms.
"
FATCA
" means:
(a) sections 1471 to 1474 of the Code or any associated regulations;
(b) any treaty, law or regulation of any other jurisdiction, or relating to an
intergovernmental agreement between the US and any other jurisdiction, which (in either
case) facilitates the implementation of any law or regulation referred to in paragraph (a)
above; or
(c) any agreement pursuant to the implementation of any treaty, law or regulation referred to
in paragraphs (a) or (b) above with the US Internal Revenue Service, the US government
or any governmental or taxation authority in any other jurisdiction.
"
FATCA Application Date
" means:
(a) in relation to a "withholdabl
e
payment" described in section 1473(1)(A)(i) of
the Code (which relates to payments of interest and certain other payments from sources
within the US), 1 July 2014; or
(b) in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling
within paragraph (a) above, the first date from which such payment may become subject
to a deduction or withholding required by FATCA.
"
FATCA Deduction
" means a deduction or withholding from a payment under a Finance
Document required by FATCA.
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"
FATCA Exempt Party
" means a Party that is entitled to receive payments free from any
FATCA Deduction.
"
Federal Funds Effective Rate
"
means
,
in relation to any day, the rate per annum equal to
(a) the weighted average of the rates on overnight Federal funds transactions with members
of the US Federal Reserve System arranged by Federal funds brokers, as published for
that day (or, if that day is not a New York Business Day, for the immediately preceding
New York Business Day) by the Federal Reserve Bank of New York; or
(b) if a rate is not so published for any day which is a New York Business Day, the average
of the quotations for that day on such transactions received by the Dollar Swingline
Agent from three Federal funds brokers of recognised standing selected by the Dollar
Swingline Agent,
and if that rate is less than zero, Federal Funds Effective Rate shall be deemed to be
zero.
"
Fee Letter
" means:
(a) the fees letter dated on or around the date of this Agreement from the Original
Lenders to ABB, the fees letter dated on or around the date of this Agreement from the
Mandated Lead Arrangers to ABB, the agency fees letter dated on or around the date of
this Agreement from the Facility Agent to ABB and the swingline agency fees letters
dated on or around the date of this Agreement from the Dollar Swingline Agent and the
Euro Swingline Agent respectively to ABB setting out the fees referred to in Clause 12
(
Fees
); and
(b) any other agreement setting out fees payable to a Lender referred to in paragraph
(f) of Clause 2.2 (
Increase of Commitments
).
"
Finance Document
" means this Agreement, the Amendment and Restatement
Agreement
,
any Fee Letter
,
any Extension Request
,
any Borrower Accession Letter, any
Resignation Letter, any Reference Rate Supplement, any Compounding
Methodology Supplement and any other document designated as such in writing by the Facility
Agent and ABB.
"
Finance Party
" means any of the Agents, th
e
Mandated Lead Arrangers and the Lenders.
"
First Extension Request
" has the meaning given to it in Claus
e
2.
3
(
Extension
Option
).
"
Funding Rate
" means any rate notified by a Lender to the Facility Agent pursuant to
paragraph (a)(ii) of Clause 11.1 (
Market disruption
).
"
GAAP
" means, in relation to a company, generally accepted accounting principles in its
jurisdiction of incorporation, US GAAP or IFRS, as applied by ABB in its consolidated
financial statements.
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"
Group
" means ABB and its Subsidiaries and "
Group Company
" means any one of them.
"
Historic Primary Te rm Rate
" means, in relation to any Term Rate Advance made in Dollars,
the most recent applicable Primary Term Rate for a period equal in length to the Interest Period
of that Advance and which is as of a day which is no more than three Additional Business Days
before the Quotation Day.
"
Holding Company
" means, in relation to a company or corporation, any other company
or corporation in respect of which it is a Subsidiary.
"
IFRS
" means international accounting standards as issued by the International
Accounting Standards Board.
"
Impaired Agent
" means an Agent at any time when:
(a) it has failed to make (or has notified a Party that it will not make) a payment
required to be made by it under the Finance Documents by the due date for
payment;
(b) it otherwise rescinds or repudiates a Finance Document;
(c) (if it is also a Lender) it is a Defaulting Lender under paragraph (a) or (b) of the
definition of "Defaulting Lender"; or
(d) an Insolvency Event has occurred and is continuing with respect to it;
unless, in the case of paragraph (a) above:
(i) its failure to pay is caused by:
(A) administrative or technical error; or
(B) a Disruption Event; and
(ii) the relevant Agent is disputing in good faith whether it is contractually
obliged to make the payment in question.
"
Increase Confirmation
" means a confirmation substantially in the form set out in
Schedule 9 (
Form of Increase Confirmation
).
"
Increase Lender
" has th
e
meaning given to that term in Clause 2.
2
(
Increase of
Commitments
).
"
Indebtedness
" means, in relation to a person, its obligations (whether present or future,
actual or contingent, as principal or surety) for the payment or repayment of money (whether
in respect of interest, principal or otherwise) incurred in respect of:
(a) moneys borrowed;
(b) any bond, note, loan stock, debenture or similar instrument;
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(c) any acceptance credit, bill discounting, note purchase, factoring or documentary
credit facility (or dematerialised equivalent);
(d) any lease required under GAAP as at the date hereof to be treated as a finance
lease;
(e) receivables sold or discounted (other than any receivables to the extent that they
are sold on a non-recourse basis);
(f) any guarantee, bond, stand-by letter of credit or other similar instrument issued
in connection with the performance of payment obligations;
(g) any interest rate or currency swap agreement or any other hedging or derivatives
instrument or agreement (and, when calculating the value of such agreement(s) or
instrument(s), only the marked to market value (or, if any actual amount is due as a
result of the termination or close-out of such agreement(s) or instrument(s), that
amount) shall be taken into account);
(h) any arrangement entered into primarily as a method of raising finance pursuant to which
any asset sold or otherwise disposed of by that person is or may be leased to or re-
acquired by a Group Company (whether following the exercise of an option or otherwise);
or
(i) any guarantee, indemnity or similar insurance against financial loss given in respect
of the obligation of any person falling within any of paragraphs (a) to (h) above.
"
Information Package
" means the documents concerning the Group prepared by ABB in relation
to the Facility and posted on the Debtdomain site titled "ABB Lt
d
– Dec 2019" up to and
including the date of this Agreement.
"
Insolvency Event
" in relation to a Finance Party means that the Finance Party:
(a) is dissolved (other than pursuant to a consolidation, amalgamation or merger); (b)
or process:
(i) that is not directly or indirectly undertaken for the purpose of
restructuring, consolidating, amalgamating, merging, rehabilitating or
reorganising that Finance Party to enable that Finance Party to continue its
business; and
(ii) that is not dismissed, discharged, stayed or restrained in each case within
30 days of its institution or presentation;
(c) (except where such action is directly or indirectly undertaken for the purpose of
restructuring, consolidating, amalgamating, merging, rehabilitating or
reorganising that Finance Party to enable it to continue its business) institutes or has
instituted against it, by a regulator, supervisor or any similar official with primary
insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its
incorporation or organisation or the jurisdiction of its head or
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home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other
relief under an
y
bankruptcy or insolvency law or other similar law affecting creditors'
rights, or a petition is presented for its winding-up or liquidation by it or such
regulator, supervisor or similar official and such proceeding or petition is not
dismissed, discharged, stayed or restrained in each case within 30 days of its institution
or presentation;
(d) (except where such action is directly or indirectly undertaken for the purpose of
restructuring, consolidating, amalgamating, merging, rehabilitating or
reorganising that Finance Party to enable it to continue its business) has a resolution
passed for its winding-up, official management or liquidation;
(e) (except where such action is directly or indirectly undertaken for the purpose of
restructuring, consolidating, amalgamating, merging, rehabilitating or
reorganising that Finance Party to enable it to continue its business) seeks or becomes
subject to the appointment of an administrator, provisional liquidator, conservator,
receiver, trustee, custodian or other similar official for it or for all or substantially all its
assets;
(f) causes or is subject to any event with respect to it which, under the applicable laws of any
jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (e)
above; or
(g) takes any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the foregoing acts.
"
Interest Period
" means, in relation to an Advance, each period determined in
accordance with Clause 10 (
Interest Periods
) and, in relation to an Unpaid Sum, each period
determined in accordance with Clause 9.5 (
Default interest
).
"
Interpolated Screen Rate
" means
,
in relation to a Screen Rate for any Term Rate Advance
not in Dollars, the rate (rounded to the same number of decimal places as the two relevant Screen
Rates) which results from interpolating on a linear basis between:
(a) the applicable Screen Rate for the longest period (for which that Screen Rate is
available) which is less than the Interest Period of that Advance); and
(b) the applicable Screen Rate for the shortest period (for which that Screen Rate is
available) which exceeds the Interest Period of that Advance,
each as of the Quotation Time for the currency of that Advance.
"
Lender
" means:
(a) any Original Lender; and
(b) any bank which has become a Party as a Lender in accordance with Clause 2.2
(
Increase of Commitments
) or Clause 23 (
Changes to the Lenders
),
which in each case has not ceased to be a Party in accordance with the terms of this
Agreement.
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"
Lookbac
k
Period
"
means the number of days specified as such in the applicable
Reference Rate Terms.
"
Majority Lenders
" means a Lender or Lenders:
(a) whose Commitments aggregate more than 66⅔ per cent. of the Total
Commitments; or
(b) if the Total Commitments have been reduced t
o
zero, whose Commitments
aggregate more than 66⅔ per cent. of the Total Commitments immediately before
the reduction.
"
Margin
" means, at any time in relation to an Advance (other than a Dollar Swingline
Advance), 0.175 per cent. per annum.
"
Market Disruption Rate
" means the rate (if any) specified as such in the applicable
Reference Rate Terms.
"
Material Adverse Effect
" means a material adverse effect on the ability of the Obligors
(taken as a whole) to perform their payment obligations under the Finance Documents.
"
Material Subsidiary
" shall mean:
(a) as at the date of this Agreement, each Borrower and any Subsidiary of ABB that
is listed in Schedule 8 (
Material Subsidiaries
); and
(b) at any time thereafter,
(i) each Borrower; and
(ii) any Subsidiary of ABB, that:
(A) is the holding company of a country (not a region) and that, together
with its Subsidiaries, has combined third party revenues or third party
assets in excess of 5 per cent. of the consolidated revenues or
consolidated total assets of the Group;
(B) on a non-consolidated (legal entity) basis has third party revenues
or third party assets in excess of 10 per cent. of the consolidated
revenues or consolidated total assets of the Group;
or
(C) has any notes, bonds, debenture stock, loan stock or other securities
outstanding to non-Group third parties and in respect of which a
guarantee, keep-well agreement or other credit support has been
provided by ABB,
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provided always that
:
(1) the term "
revenues
" shall exclude any revenues
attributable to activities classified as discontinued
operations in the consolidated financial statements of the Group
and the term "
assets
" shall exclude any assets classified as
held-for-sale or as discontinued operations in the consolidated
financial statements of the Group;
(2) all revenue and asset figures shall be prepared in
accordance with generally accepted accounting
principles used in preparation of the consolidated financial
statements of the Group;
(3) "
third party revenues
" shall exclude any revenues not
included in total revenues in the consolidated income
statement of the Group;
(4) "
third party assets
" shall exclude any assets that are not
included in total assets in the consolidated balance sheet of the
Group; and
(5) all revenue and asset figures shall be for the most recently
completed financial year of ABB.
"
Month
" means 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) (subject to paragraph (c) below) if the numerically corresponding day is not a
Business Day, that period shall end on the next Business Day in that calendar month in
which that period is to end if there is one, or if there is not, on the immediately preceding
Business Day;
(b) if there is no numerically corresponding day in the calendar month in which that period is
to end, that period shall end on the last Business Day in that calendar month; and
(c) if an Interest Period begins 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 that Interest Period
is to end, subject to adjustment in accordance with the rules specified as Business Day
Conventions in the applicable Reference Rate Terms.
The above rules will only apply to the last Month of any period.
"
New Lender
" has th
e
meaning given to that term in Claus
e
23.
1
(
Assignments and
transfers
by the Lenders
).
"
Obligors
" means the Borrowers and the Guarantor.
"
Optional Currency
" means a currency (other than the Base Currency) which complies
with the conditions set out in Claus
e
4.
3
(
Conditions relating to Optional
Currencies
).
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"
Original Financial Statements
" means:
(a) in relation to ABB, the audited consolidated financial statements of the Group
for the financial year ended 31 December 2018;
(b) in relation to each Original Borrower, its financial statements for its financial
year ended 31 December 2018 (audited if available); and
(c) in relation to any Additional Borrower, its financial statements delivered
pursuant to Part II of Schedule 2 (
Additional Borrower Conditions Precedent
) (audited
if available).
"
Original Obligors
" means the Original Borrowers and the Guarantor.
"
Outstandings
" means the aggregate of the Base Currency Amount from time to time of each of
the Advances.
"
Participating Member State
" means any member state of the European Union that has the Euro
as its lawful currency in accordance with legislation of the European Union relating to Economic
and Monetary Union.
"
Party
" means a party to this Agreement and includes its successors in title, permitted assigns
and permitted transferees.
"
Primary
Te
rm Rate
" means the rate specified as such in the applicable Reference Rate
Terms.
"
Prime Rate
" means, in respect of any Dollar Swingline Advance, for any day, the rate of interest
per annum announced from time to time by the Dollar Swingline Agent to be its prime rate in
effect at its principal office in New York City and if that rate is less than zero, Prime Rate shall be
deemed to be zero.
"
Project Company
" means any Subsidiary of ABB:
(a) which is a single purpose company whose primary purpose is to invest in, lend
to or carry out a specific project or portfolio of projects; and
(b) none of whose liabilities to repay Project Finance Indebtedness are the subject
of security or a guarantee, indemnity or any similar form of assurance, undertaking
or support by any Group Company save to the extent described in the definition of Project
Finance Indebtedness.
"
Project Finance Indebtedness
" means:
(a) any Indebtedness of a Project Company incurred to finance the project
constituted by the assets and business of such Project Company or any
Indebtedness of such Project Company incurred to refinance any such
aforementioned Indebtedness; and
(b) where neither the persons to whom such Indebtedness is owed (whether or not a Group
Company) nor any other person shall have any recourse whatsoever to any Group
Company (other than such Project Company) for the repayment or
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payment of any sum relating to such Indebtedness other than recourse directly or
indirectly to any Group Company under any form of assurance or undertaking,
which recourse (1) is limited to the enforcement of any share pledge granted by a
Group Company over its shares in such Project Company or the enforcement of any
security granted over a shareholder loan between a Group Company and such Project
Company and/or (2) is limited to a claim for damages for breach of an obligation (not
being a payment obligation) of the person against whom that recourse is available and/or
(3) entitles the creditor for that Indebtedness or the relevant Project Company, upon
default by the Project Company (or in other circumstances specified in the
documentation relating to the project) to require a payment to be made (whether to or for
the benefit of that creditor, the Project Company or another person),
provided that
, in the
case of (3), where that payment is capable of being for an amount which is materia
l
either
alone or as a percentage of the Indebtedness financing that project, such recourse is
capable of being called on only during the period on or prior to practical completion of the
project or of that portion of that project being financed by that Indebtedness; or
(c) which the Majority Lenders shall have agreed to treat as Project Finance
Indebtedness for the purposes of this Agreement.
"
Published Rate
" means:
(a) the Primary Term Rate for any Quoted Tenor; or
(b) an RFR.
"
Published Rate Replacement Event
" means, in relation to a Published Rate:
(a) the methodology, formula or other means of determining tha
t
Publishe
d
Rate
has, in the opinion of the Majority Lenders and ABB, materially changed; or
(b)
(i)
(A) the administrator of that Published Rate or its supervisor publicly
announces that such administrator is insolvent; or
(B) information is published in any order, decree, notice, petition or
filing, however described, or filed with a court, tribunal, exchange,
regulatory or judicial body which reasonably confirms that the
administrator of that Published Rate is insolvent,
provided that
, in each case, at that time, there is no successor
administrator to continue to provide that Published Rate;
(ii) the administrator of that Published Rate publicly announces that it has ceased or
will cease, to provide tha
t
Publishe
d
Rate permanently or indefinitely and,
at that time, there is no successor administrator to continue to provide that
Published Rate;
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(iii) the supervisor of the administrator of that Published Rat
e
publicly announces
that such Published Rate has been or will be permanently or indefinitely
discontinued;
that Screen Rate may no longer be used; or
supervisor of the administrator of tha
t
Primary Term Rate makes a public
announcement or publishes information stating that that Primary Term Rate for
that Quoted Teno r is no longer, or as of a specified future date will no longer
be, representative of the underlying market or economic reality that it is
intended to measure and that representativeness will not be restored (as
determined by such supervisor); or
(c) the administrator of that Published Rate (or the administrator of an interest rate which is
a constituent element of that Published Rate
)
determines that that Published Rate
should be calculated in accordance with its reduced submissions or other contingency or
fallback policies or arrangements and either:
(i) the circumstance(s) or event(s) leading to such determination are not (in
the opinion of the Majority Lenders and ABB) temporary; or
(ii) that Published Rate is calculated in accordance with any such policy or
arrangement for a period no less than the period specified as the "Published
Rate Contingency Period" in the Reference Rate Terms relating to that
Published Rate; or
(d) in the opinion of the Majority Lenders and ABB, that Published Rate is otherwise
no longer appropriate for the purposes of calculating interest under this Agreement.
"
Qualifying Bank
" means
(a) any bank as defined in the Swiss Federal Code for Banks and Savings Banks
dated 8 November 1934 (
Bundesgesetz über die Banken und Sparkassen
); or
(b) a person or entity which effectively conducts banking activities with its own
infrastructure and staff as its principal business purpose and which has a banking
license in full force and effect issued in accordance with the banking laws in force in its
jurisdiction of incorporation, or if acting through a branch, issued in accordance with the
banking laws in the jurisdiction of such branch.
"
Qualifying Lender
" has the meaning given to such term in Clause 13.1 (
Definitions
).
"
Quotation Day
" means the day specified as such in the applicable Reference Rate Terms.
"
Quotation Time
" means the relevant time (if any) specified as such in the applicable
Reference Rate Terms.
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"
Quoted Tenor
" means, in relation to a Primary Term Rate, any period for which that rate is
customarily displayed on the relevant page or screen of an information service.
"
Reference Rate Supplement
" means, in relation to any currency, a document which:
(a) is agreed in writing by ABB, each Agent (in its own capacity) and each Agent
(acting on the instructions of the Majority Lenders or, in the case of any Reference
Rate Supplement which has the effect of a reduction in the Margin, all the Lenders);
(b) specifies for that currency the relevant terms which are expressed in this
Agreement to be determined by reference to Reference Rate Terms;
(c) specifies whether that currency is a Compounded Rate Currency or a Term Rate
Currency; and
(d) has been made available to ABB and each Finance Party.
"
Reference Rate Terms
" means, in relation to:
(a) a currency;
(b) a Utilisation or an Unpaid Sum in that currency;
(c) an Interest Period for that Utilisation or Unpaid Sum (or other period for the
accrual of commission or fees in a currency); or
(d) any term of this Agreement relating to the determination of a rate of interest in
relation to such a Utilisation or Unpaid Sum,
the terms set out for that currency, and (where such terms are set out for different
categories of Utilisation, Unpaid Sum or accrual of commission or fees in that currency) for the
category of that Utilisation, Unpaid Sum or accrual, in Schedule 10 (
Reference
Rate Terms
) or in
any Reference Rate Supplement.
"
Relevant Market
" means the market specified as such in the applicable Reference Rate
Terms.
"
Relevant Nominating Body
" means any applicable central bank, regulator or other
supervisory authority or a group of them, or any working group or committee sponsored or chaired
by, or constituted at the request of, any of them or the Financial Stability Board.
"
Replacement Reference Rate
" means a reference rate which is:
(a) formally designated, nominated or recommended as the replacement for a
Published Rate by:
(i) the administrator of tha
t
Publishe
d
Rate (
provided that
the market or
economic reality that such benchmark rate measures is the same as that
measured by that Published Rate); or
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(ii) any Relevant Nominating Body,
and if replacements have, at the relevant time, been formally designated, nominated
or recommended under both paragraphs, the "Replacement Reference Rate" will
be the replacement under paragraph (ii) above;
(b) in the opinion of the Majority Lenders and ABB
,
generally accepted in the
international or any relevant domestic syndicated loan markets as the appropriate
successor to a Published Rate; or
(c) in the opinion of the Majority Lenders and ABB, an appropriate successor to a
Published Rate.
"
Reporting Day
" means the day (if any) specified as such in the applicable Reference
Rate Terms.
"
Reporting Time
" means the relevant time (if any) specified as such in the applicable
Reference Rate Terms.
"
Reservations
" means any general principles of law which are set out as qualifications as to
matters of law in any legal opinion delivered to the Facility Agent under Schedule 2 (
Conditions
Precedent
).
"
Resignation Letter
" means a letter substantially in the form set out i
n
Schedule 7 (
Form of
Resignation Letter
).
"
Restricted Party
" means:
(a) a person that is a target of Economic Sanctions Laws; or
(b) a person, other than an individual, located in or incorporated under the laws of
a country or territory that is the target of country-wide or territory-wide
Economic Sanctions Laws that prohibit doing business in or with that country or territory.
"
Revolving Facility Affiliate
" means, in respect of a Lender that is a Swingline Lender, an
Affiliate of that Swingline Lender that is itself a Lender.
"
RFR
" means the rate specified as such in the applicable Reference Rate Terms.
"
RFR Banking Day
" means any day specified as such in the applicable Reference Rate Terms.
"
Rollover Advance
" means one or more Advances (other than Swingline Advances):
(a) made or to be made on the same day that a maturing Advance is due to be repaid;
(b) the aggregate amount of which is equal to or less than the amount of the
maturing Advance;
(c) in the same currency as the maturing Advance (unless it arose as a result of the
operation of Clause 6.2 (
Unavailability of a currency
)); and
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(d) made or to be made to a Borrower for the purpose of refinancing a maturing
Advance made to such Borrower.
"
Sanctions Authorities
" means the Office of Foreign Assets Control of the U.S.
Department of the Treasury (OFAC), the U.S. Department of State, the European Union,
Switzerland, the United Kingdom, and the United Nations.
"
Screen Rate
" means:
(a) in respect of a Term Reference Rate, the rate specified in the applicable
Reference Rate Terms; and
(b) in relation t
o
€STR, the euro short-term rate administered by the European
Central Bank (or any other person which takes over the administration of that rate)
displaye
d
(before any correction, recalculation or republication by the administrator
)
on pag
e
EUROSTR
=
of th
e
Thomso
n
Reuters screen (or any replacement Thomson
Reuters page which displays that rate).
If such page or service ceases to be available, the Facility Agent may specify another page or
service displaying the relevant rate after consultation with AB
B
and the Lenders.
"
Second Extension Request
" has the meaning given to it in Claus
e
2.
3
(
Extension
Option
).
"
Securitisations
" means any local or global securitisation programme from time to time
established (including as of the date of this Agreement) by any Group Company, each as may be
modified, supplemented, renewed, substituted, varied or amended.
"
Security
" means any mortgage, charge, assignment by way of security, pledge,
hypothecation, lien and any other security interest of any kind whatsoever.
"
Separate Advances
" has the meaning given to that term in Clause 7.1 (
Repayment of
Advances
).
"
Specified Time
" means a time determined in accordance with Schedule 5
(
Timetables
).
"
Subsidiary
" means a subsidiary within the meaning of section 1159 of the Companies Act
2006.
"
Swingline Advance
" means a Dollar Swingline Advance or a Euro Swingline Advance.
"
Swingline Affiliate
" means, in respect of a Lender, an Affiliate of that Lender that is a
Swingline Lender.
"
Swingline Agents
" means the Dollar Swingline Agent and the Euro Swingline Agent and
"
Swingline Agent
" means either of them.
"
Swingline Commitment
" means, in respect of a Swingline Lender, its Dollar
Swingline Commitment or its Euro Swingline Commitment.
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"
Swingline Lender
" means a Dollar Swingline Lender or a Euro Swingline Lender.
"
TARGET Day
" means any day on which TARGET2 is open for the settlement of
payments in Euro.
"
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.
"
Tax
" means any tax, levy, impost, duty or other charg
e
or withholding of a similar nature
(including any penalty or interest payable in connection with any failure to pay or any delay in
paying any of the same).
"
Te
rm Rate Advance
" means an
y
Advance (not being a Swingline Advance
)
or, if applicable,
Unpaid Sum in a Term Rate Currency to the extent that it is not, or has not become a
"Compounded Rate Advance" for its then current Interest Period pursuant to the applicable
Reference Rate Terms.
"
Te
rm Rate Currency
" means:
(a) Dollars and Euro; and
(b) any currency specified as such in a Reference Rate Supplement relating to that
currency,
to the extent, in any case, not specified otherwise in a subsequent Reference Rate
Supplement.
"
Ter
m
Reference Rate
" means, in relation to a Term Rate Advance
,
the applicable Primary
Term Rate as of the Quotation Time for a period equal in length to the Interest Period of that
Advance.
"
Term Reference Rat
e
CAS
" means, in relation to
a
Term Rate Advance, any rate which is
either:
(a) specified as such in the applicable Reference Rate Terms; or
(b) determined by the relevant Agent (acting on the instructions of all the Lenders)
(or by any other Finance Party which agrees to determine that rate in place of tha
t
Agent)
in accordance with the methodology specified in the applicable Reference Rate Terms.
"
Termination Date
" means, subject to Clause 2.3 (
Extension Option
), the fifth
anniversary of the date of this Agreement.
"
Total Commitments
" means the aggregate Commitments of the Lenders, being
$2,000,000,000 at the date of this Agreement.
"
Total Outstandings
" means the aggregate from time to time of the Outstandings.
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"
Total Swingline Facility Amount
" means the higher of (a) the aggregate of the Dollar Swingline
Commitments and (b) the aggregate of the Euro Swingline Commitments, being $750,000,000
as at the date of this Agreement.
"
Transfer Certificate
" means a certificate substantially in the form set out in Schedule 4 (
Form of
Transfer Certificate
) or any other form agreed between the Facility Agent and ABB.
"
Transfer Date
" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate; and
(b) the date on which the Facility Agent executes the Transfer Certificate.
"
Unpaid Sum
" means any sum due and payable but unpaid by a Borrower under the Finance
Documents.
"
US GAAP
" means generally accepted accounting principles in the United States of America.
"
US Tax Obligor
" means:
(a) a Borrower which is resident for tax purposes in the United States of America;
or
(b) an Obligor some or all of whose payments under the Finance Documents are
from sources within the United States for US federal income tax purposes.
"
Utilisation
" means a utilisation of the Facility.
"
Utilisation Date
" means the date of a Utilisation, being the date on which an Advance is to be
made.
"
Utilisation Request
" means a notice substantially in the form set out in Schedule 3
(
Utilisation Request
).
"
VAT
" means value added tax as provided for in the Value Added Tax Act 1994 and any other
tax of a similar nature.
1.2
Construction
(a) Any reference in this Agreement to:
(i) "
assets
" includes, except in the definition of Material Subsidiary,
present and future properties, revenues and rights of every description;
(ii) "
bank
" means a bank entity that is licensed to provide banking services
in accordance with applicable regulations in its jurisdiction of
incorporation;
(iii) the "
European interbank market
" means the interbank market for
Euro operating in Participating Member States;
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(iv) a "
Finance Document
" or any other agreement or instrument is a reference
to that Finance Document or other agreement or instrument as amended, novated,
supplemented, extended, replaced or restated;
(v) a "
person
" includes any individual, firm, company, corporation,
government, state or agency of a state or any association, trust, joint venture,
consortium or partnership (whether or not having separate legal personality);
(vi) 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, th
e
compliance with which is customary) of any governmental,
department or of any regulatory, self-regulatory or other authority or
organisation;
financial year
" in relation to ABB, means a period in respec
t
of
which it is required to produce annual audited financial statements;
(viii) except where the context otherwise requires, words in the singular
include the plural and in the plural include the singular;
enacted; and
London time.
(b) The determination of the extent to which a rate is "
for a period equal in length
"
to an Interest Period shall disregard any inconsistency arising from the last day of that
Interest Period being determined pursuant to the terms of this Agreement.
(c) Where there is a reference in this Agreement to any amount, limit or threshold specified
in Dollars, in ascertaining whether or not that amount, limit or threshold has been
attained, broken or achieved, as the case may be, a non- Dollar amount shall, unless
the context otherwise requires or the contrary is indicated, be counted on the basis of
the equivalent in Dollars of that amount using the Facility Agent's Spot Rate of Exchange.
(d) Section, Clause and Schedule headings are for ease of reference only.
(e) Unless a contrary indication 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.
(f) A Default is "
continuing
" if it has not been remedied or waived.
(g) For the avoidance of doubt, where any person is party to this Agreement in more
than one capacity, reference to that person i
n
one capacity shall not (except where
the context otherwise requires) include reference to it in any other capacity.
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(h) A reference in this Agreement to a page or screen of an information service
displaying a rate shall include:
rate; and
(ii) the appropriate page of such other information service which displays
that rate from time to time in place of that information service,
and, if such page or service ceases to be available, shall include any other page
or service displaying that rate specified by the Agent after consultation with
ABB.
(i) A reference in this Agreement to a Central Bank Rate shall include any
successor rate to, or replacement rate for, that rate.
e
Supplement relating to a currency overrides anything
relating to that currency in:
Reference Rate Terms
); or
(ii) any earlier Reference Rate Supplement.
(k) A Compounding Methodology Supplement relating to the Daily Non- Cumulative
Compounded RFR Rate or the Cumulative Compounded RFR Rate overrides anything
relating to that rate in:
(i) Schedule 11 (
Daily Non-Cumulative Compounded RFR Rate
)or
Cumulative Compounded RFR Rate
), as the case may be;
or
(ii) any earlier Compounding Methodology Supplement.
(together the "
Citi Entities
") in relation to the Facility shall be construed as a reference
to the aggregate Commitment of Citibank, N.A., Citibank, N.A. and London Branch in
relation to the Facility (as allocated between the Citi Entities in such proportions and such
amounts as each Citi Entity notifies to the Facility Agent from time to time).
(m) References to a Commitment of Bank of America Europe Designated Activity
Company/Bank of America N.A./Bank of America N.A., London Branch
(together the "
BofA Entities
") in relation to the Facility shall be construed as a reference
to the aggregate Commitment of Bank of America Europe Designated Activity Company,
Bank of America N.A., and Bank of America N.A., London Branch in relation to the
Facility (as allocated between the BofA Entities in such proportions and such amounts as
each BofA Entity notifies to the Facility Agent from time to time).
1.3
Dutch Terms
In this Agreement, where it relates to a Dutch entity, a reference to:
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(a) a necessary action to authorise where applicable, includes without limitation:
(i) any action required to comply with the Dutch Works Councils Act (
Wet
op de ondernemingsraden
); and
advies
) from the competent
works council(s);
(i) declared bankrupt (
failliet verklaard
);
(ii) dissolved (
ontbonden
);
(c) a moratorium includes
surséance van betaling
and granted a moratorium
includes
surséance verleend
;
(d) a liquidator or a trustee in bankruptcy includes a
curator
;
(e) an administrator includes a
bewindvoerder
; and
curator
or
bewindvoerder
.
1.4
Currency Symbols and Definitions
$
" and "
Dollars
" denote the lawful currency of the United States of America, "
£
" and
"
Sterling
" denote the lawful currency of the United Kingdom, "
€
", "
EUR
" and "
Euro
" denote the
single currency of the Participating Member States and "
CHF
" and "
Swiss
francs
" denote the
lawful currency of Switzerland.
1.5
Third Party Rights
Act 1999 to enforce any term of this Agreement.
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SECTION 2
THE
FACILITY
2.
THE FACILITY
2.1
The Facility
Subject to the terms of this Agreement, the Lenders make available to the Borrowers, a
multicurrency revolving credit facility (the "
Facility
") in a maximum aggregate amount of
$2,000,000,000, including within it the following sub-facilities:
(a) a Dollar revolving swingline facility (the "
Dollar Swingline Facility
") in a maximum
aggregate amount equal to the aggregate Dollar Swingline Commitments; and
(b) a Euro revolving swingline facility (the "
Euro Swingline Facility
") in a maximum
Base Currency Amount equal to the aggregate Euro Swingline Commitments.
Each Swingline Commitment of each Lender that is a Swingline Lender forms part of the
Commitment of that Lender. Each Swingline Commitment of each Swingline Lender that is
a Swingline Affiliate of another Lender forms part of that other Lender's Commitment. For the
avoidance of doubt each Lender and its Swingline Affiliate shall be treated as having a single
participation in the Facility and a single vote.
2.2
Increase of Commitments
(a) ABB may by giving prior notice to the Facility Agent by no later than the date
falling 90 Business Days after the effective date of a cancellation of the Available
Commitments and/or any Swingline Commitments of (i) a Defaulting Lender (or its
Revolving Facility Affiliate or Swingline Affiliate) in accordance with paragrap
h
(f
)
of
Claus
e
8.
7
(
Right of replacement or repayment and
cancellation in relation to a single
Lender
), (ii) any Lender in accordance with Clause 8.1 (
Lender Illegality
) or (iii) any
Lender that has refused an Extension Request and has not been replaced in accordance
with Claus
e
8.
7
(
Right of
replacement or repayment and cancellation in relation to
a single Lender
), request that the Total Commitments or the relevant Swingline
Commitments be increased (and the Total Commitments or the relevant Swingline
Commitments shall be so increased) in an aggregate amount in the Base Currency of up
to the amount of the Available Commitments, the relevant Swingline Commitments or
the Commitments so cancelled as follows:
(i) the increased Commitments and/or the relevant Swingline
Commitments will be assumed by one or more Lenders or other banks (each an
"
Increase Lender
") (none of which may be a member of the Group) selected by
ABB and each of which confirms its willingness to assume and does assume all
the obligations of a Lender corresponding to that part of the increased
Commitments and/or the relevant Swingline Commitments which it is to assume,
as if it had been an Original Lender;
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(ii) each of the Obligors and any Increase Lender shall assume obligations towards
one another and/or acquire rights against one another as the Obligors and the
Increase Lender would have assumed and/or acquired had the Increase Lender
been an Original Lender;
(iii) each Increase Lender shall become a Party as a "Lender" and any Increase
Lender and each of the other Finance Parties shall assume obligations towards
one another and acquire rights against one another as that Increase Lender and
those Finance Parties would have assumed and/or acquired had the Increase
Lender been an Original Lender;
shall continue in full force and effect; and
Commitments shall take effect on the date specified by ABB in the notice
referred to above or any later date on which the conditions set out in paragraph
(b) below are satisfied.
No Lender shall have any obligation to act as an Increase Lender unless it
indicates that it is willing to do so in accordance with sub-paragraph (i).
(b) An increase in the Total Commitments and/or any Swingline Commitments will
only be effective on:
the relevant Increase Lender; and
to the relevant increase the performance by the Facility Agent of all necessary
"know your customer" or other similar checks under all applicable laws and
regulations in relation to the assumption of the increased Commitments
and/or Swingline Commitments by that Increase Lender, the completion
of which the Facility Agent shall promptly notify to ABB and the Increase
Lender.
(c) No Swingline Commitment of a Lender may exceed the Commitment of that Lender
or its Revolving Facility Affiliate pursuant to the operation of this Clause 2.2.
Accordingly where the Swingline Commitments are to be increased pursuant to this
Clause to replace Swingline Commitments of a Swingline Lender that have been
cancelled pursuant to paragraph (f) of Clause 8.7 (
Right
of replacement or repayment and
cancellation in relation to a single Lender
) or Claus
e
8.
1
(
Lender Illegality
) without a
commensurate cancellation of the Commitments of that Swingline Lender's Revolving
Facility Affiliate being required at the time of such cancellation, that Revolving Facility
Affiliate shall (to the extent of its Commitments at the time of the increase in
Swingline Commitments) be required to transfer its Commitments to the relevant Increase
Lender (or its Affiliate) on the terms provided for in Clause 35.6 (
Replacement
of a
Defaulting Lender
) to the extent necessary to ensure that the Commitments of the Increase
Lender (or its Affiliate) are at least equal to each of the Swingline Commitments assumed
by that Increase Lender.
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(d) Each Increase Lender, by executing the Increase Confirmation, confirms (for the
avoidance of doubt) that the Facility Agent has authority to execute on its behalf any
amendment or waiver that has been approved by or on behalf of the requisite Lender or
Lenders in accordance with this Agreement on or prior to the date on which the increase
becomes effective.
(e) Unless the Facility Agent otherwise agrees or the increased Commitment and/or Swingline
Commitment is assumed by an existing Lender, ABB shall, on the date upon which the
increase takes effect, promptly on demand pay the Facility Agent the amount of all costs
and expenses (including legal fees) reasonably incurred by it in connection with
any increase in Commitments and/or Swingline Commitments under this Clause 2.2.
(f) ABB may pay to the Increase Lender a fee in the amount and at the times agreed between
ABB and the Increase Lender in a letter between ABB and the Increase Lender setting out
that fee.
(g) Clause 23.4 (
Limitation of responsibility of Existing Lenders
) shall apply
mutatis
mutandi
s
in this Claus
e
2.
2
in relation to an Increase Lender as if references in that
Clause to:
(i) an "
Existing Lender
" were references to all the Lenders immediately
prior to the relevant increase;
(ii) the "
New Lender
" were references to that "
Increase Lender
"; and
(iii) a "
re-transfer
" and "
re-assignment
" were references to respectively a
"
transfer
" and "
assignment
".
to the Facility Agent (for its own account) a fee of $2,000.
2.3
Extension Option
(a) ABB may request that the Termination Date be extended subject to the terms of
this Clause 2.3:
(i) by giving written notice to the Facility Agent not less than 45 days and
not more than 90 days before the date which is 12 Months after the date of this
Agreement (the "
First Extension Request
") requesting that the Termination
Date shall be the date which is 72 Months after the date of this Agreement (the
"
First Extension Termination Date
"); and/or
(ii) by giving written notice to the Facility Agent not less than 45 days and not more
than 90 days before the date which is 24 Months after the date of this Agreement
(the "
Second Extension Request
") requesting that the Termination Date shall
be the date which is 84 Months after the date of this Agreement.
(b) The Facility Agent shall promptly notify each Lender of any Extension Request
(including, in the case of a Second Extension Request, any Lender that refused a First
Extension Request).
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(c) Each Lender (including, in the case of a Second Extension Request, any Lender that
refused a First Extension Request) shall notify the Facility Agent of its decision
(which shall be in its sole discretion) in respect of whether or not to agree to an Extension
Request not later than 20 days before the date which is:
(i) in respect of a First Extension Request, the date which is 12 Months after the date
of this Agreement (and, if any Lender has not notified the Facility Agent of
its acceptance of the First Extension Request on or before such date, it shall be
deemed to have refused such First Extension Request); or
(ii) in respect of a Second Extension Request, the date which is 24 Months after the
date of this Agreement (and, if any Lender has not notified the Facility Agent of
its acceptance of the Second Extension Request on or before such date, it shall
be deemed to have refused such Second Extension Request),
and the Facility Agent shall notify ABB of whether or not each Lender has agreed to
the relevant Extension Request promptly, and in any case no later than 5 Business Days
after (A) receipt by it of a notification from a Lender as to whether or not it has agreed
to the relevant Extension Request and/or (B) the deemed refusal of a Lender to an
Extension Request (as applicable).
(d) With effect from the date on which ABB receives notification from the Facility Agent
pursuant to paragraph (c) above, the Termination Date shall be extended in relation to
the Commitments and/or Swingline Commitments of those Lender(s) who have
agreed to the relevant Extension Request.
(e) If a Lender agrees to an Extension Request, the agreement of such Lender shall be deemed
to include the agreement of its Revolving Facility Affiliate and its Swingline Affiliate.
(i) replace such refusing Lender pursuant to Clause 8.7 (
Right of
); or
(ii) increase the Total Commitments following the cancellation of such
refusing Lender's Commitments and/or Swingline Commitments, in an amount
equal to the Commitments and/or Swingline Commitments so cancelled,
pursuant to Clause 2.2 (
Increase of Commitments
),
the relevant New Lender or Increase Lender (as applicable) shall be deemed to have
consented to the Extension Request that was the subject of the refusal.
2.4
Finance Parties' rights and obligations
(a) The obligations of each Finance Party under the Finance Documents are several.
Failure by a Finance Party to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under the Finance
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Documents. No Finance Party is responsible for the obligations of any other Finance
Party under the Finance Documents.
(b) The rights of eac
h
Finance Part
y
under or in connection with the Finance Documents
are separate and independent rights and any debt arising under the Finance Documents to
a Finance Party from any of the Obligors is a separate and independent debt in respect
of which a Finance Party shall be entitled to enforce its rights in accordance with
paragrap
h
(c
)
below. The rights of each Finance Party include any debt owing to that
Finance Party under the Finance Documents and, for the avoidance of doubt, any part of
an Advance or any other amount owed by an Obligor which relates to a Finance Party's
participation in the Facility or its role under a Finance Document (including any such
amount payable to the Agent on its behalf) is a debt owing to that Finance Party by that
Obligor.
separately enforce its rights under or in connection with the Finance Documents. 2.5
Facility Offices
(a) Subject to paragraph (b) below, a Lender may (i) change its Facility Office for the purpose
of this Agreement and/or (ii) nominate a different Facility Office for the purposes of
making a particular Advance or particular type of Advance to any Borrower, in which
event such Facility Office shall for the purposes of this Agreement be its Facility Office
for that Advance or that type of Advance but not otherwise.
(b) If a Lender changes its Facility Office or nominates a different Facility Office, (i) that
Lender will notify the Facility Agent and ABB promptly (and, in any event, within 5
Business Days) of such change or, as the case may be, nomination, and until it
does so, the Facility Agent and ABB will be entitled to assume that no such change has
taken place and (ii) if the country of such Facility Office is not subject to the Financial
Action Task Force any such change or, as the case may be, nomination shall be subject to
the prior written consent of the Facility Agent.
2.6
Borrowers' right and obligations hereunder
Letter irrevocably appoints ABB to act on its behalf as its agent in relation to the Finance
Documents (in this capacity, the "
Borrowers' Agent
") and irrevocably authorises
(i) ABB on its behalf to supply all information concerning itself contemplated by
this Agreement to the Finance Parties and to give all notices and instructions (including
Utilisation Requests), to execute on its behalf any Borrower Accession Letter and to make
such agreements capable of being given or made by any Borrower notwithstanding that
they may affect such Borrower, without further reference to or the consent of such
Borrower and (ii) each Finance Party to give any notice, demand or other communication
to such Borrower pursuant to the Finance Documents to ABB on its behalf, and in each
case such Borrower shall be bound thereby as though such Borrower
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itself had given such notices and instructions (including, without limitation, any
Utilisation Requests) or executed or made such agreements or received any such notice,
demand or other communication.
(b) Every act, omission, agreement, undertaking, settlement, waiver, notice or other
communication given or made by the Borrowers' Agent or given to the
Borrowers' Agent under this Agreement, or in connection with this Agreement (whether
or not known to any other Borrower and whether occurring before or after such a
Borrower became a Borrower under this Agreement) shall be binding for all purposes
on all Borrowers as if the Borrowers had expressly made, given or concurred with the
same. In the event of any conflict between any notices or other communications of the
Borrowers' Agent and any Borrower, those of the Borrowers' Agent shall prevail.
than ten Business Days' prior written notice to that effect to the Facility Agent,
provided
that
no such resignation shall be effective until a successor consents in writing to the
Facility Agent to be appointed.
3.
PURPOSE
3.1
Purpose
Each Borrower shall apply all amounts borrowed by it under the Facility for the general corporate
purposes of the Group,
provided that
no Swingline Advance shall be used to refinance another
Swingline Advance.
3.2
Monitoring
No Finance Party is bound to monitor or verify the application of any amount borrowed pursuant
to this Agreement.
4.
CONDITIONS OF UTILISATION
4.1
Initial conditions precedent
(a) No Utilisation Request may be served unless the Facility Agent has received all of the
documents and other evidence listed in Part I of Schedule 2 (
Conditions
Precedent
) in
form and substance reasonably satisfactory to the Facility Agent.
conditions set out in paragraph (a) of this Clause 4.1 being satisfied.
(c) Other than to the extent that the Majority Lenders notify the Facility Agent in
writing to the contrary before the Facility Agent gives the notification described in
paragraph (b) above, the Lenders authorise (but do not require) the Facility Agent to give
that notification. The Facility Agent shall not be liable for any damages, costs or losses
whatsoever as a result of giving any such notification.
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4.2
Further conditions precedent
(a) The Lenders will only be obliged to comply with Clause 5.4 (
Lenders'
participation
) and Clause 5.8 (
Swingline Lenders' participation
) if on the date
of the Utilisation Request and on the proposed Utilisation Date (in each case other than
in the case of a Rollover Advance):
(i) no Default is continuing or would result from the proposed Advance;
(ii) the representations to be made by ABB pursuant to Clause 19.16
(
Repetition
) are true in all respects; and
notice to the Facility Agent in accordance with paragraph (a) of
Clause 8.3 (
Mandatory Prepayment on Change of Control
).
(b) An Advance will not be made if it would result in the Base Currency Amount
of all Advances exceeding the Total Commitments.
4.3
Conditions relating to Optional Currencies
A currency will constitute an Optional Currency in relation to an Advance if it is Sterling
or Euro, or it is readily available in the amount required and freely convertible into the Base
Currency in the wholesale market for that currency on the Quotation Day and the Utilisation Date
for that Advance and there are Reference Rate Terms agreed for that currenc
y
provided that
there may not at any time be Advances outstanding denominated in more than 5 Optional
Currencies.
4.4
Maximum number of Advances
Utilisation more than 10 Advances would be outstanding.
e
6.2 (
Unavailability of a
currency
) shall not be taken into account in this Clause 4.4.
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SECTION 3
UTILISATION
5.
UTILISATION
5.1
Delivery of a Utilisation Request
A Borrower may utilise the Facility (other than for the purpose of drawing Swingline
Advances, which may be drawn in accordance with Clause 5.
5
(
Delivery of a Utilisation
Request
for a Swingline Advance
)) by delivery to the Facility Agent of a duly completed Utilisation Request
not later than the Specified Time.
5.2
Completion of a Utilisation Request
(a) Each Utilisation Request delivered to the Facility Agent pursuant to Clause 5.1
(
Delivery of a Utilisation Request
) is irrevocable and will not be regarded as having
been duly completed unless:
Period;
e
5.3
(
Currency and amount
); and
(iii) the proposed Interest Period complies with Clause 10 (
Interest Periods
).
(b) Only one Advance may be requested in each Utilisation Request delivered to
the Facility Agent pursuant to Clause 5.1 (
Delivery of a Utilisation Request
).
5.3
Currency and amount
(a) The currency specified in a Utilisation Request delivered to the Facility Agent pursuant
to Clause 5.1 (
Delivery of a Utilisation Request
) must, in the case of any Advance (not
being a Swingline Advance), be the Base Currency or an Optional Currency.
(b) The amount of the proposed Advance must be:
and an integral multiple of $10,000,000; or
integral multiple of Euro10,000,000; or
and an integral multiple of £5,000,000; or
Sterling), in such minimum amount and multiple as the Facility Agent and ABB
may agree,
or, in any case, the amount of the Available Facility.
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5.4
Lenders' participation
Clause 7.1 (
Repayment of Advances
), each Lender shall make its participation in each
Advance available by the Utilisation Date through its Facility Office.
(b) Subject to Clause 6.
2
(
Unavailability of a currency
), the amount of each Lender's
participation in each Advance (not being a Swingline Advance) will be equal to the
proportion borne by its Available Commitment to the Available Facility immediately
prior to making the Advance.
(c) The Facility Agent shall determine the Base Currency Amount of each Advance which is
to be made in an Optional Currency and shall notify each Lender of the amount, currency
and the Base Currency Amount of each Advance, the amount of its participation in
that Advance and (if different) the amount of that participation to be made available in
cash, in each case by the Specified Time.
5.5
Delivery of a Utilisation Request for a Swingline Advance
by delivery to the relevant Swingline Agent (with a copy to the Facility Agent) of a duly
completed Utilisation Request not later than the Specified Time.
5.6
Completion of a Utilisation Request for a Swingline Advance
(a) Each Utilisation Request delivered pursuant to Clause 5.5 (
Delivery of a
Utilisation Request for a Swingline Advance
) is irrevocable and will not be
regarded as having been duly completed unless:
(i) it specifies whether the Swingline Advance is to be a Dollar Swingline
Advance or a Euro Swingline Advance;
(ii) the proposed Utilisation Date is a Business Day within the Availability
Period;
(iii) the currency and amount of the Utilisation compl
y
with Claus
e
5.7
(
Currency and amount
); and
(iv) the proposed Interest Period complies with Clause 10 (
Interest Periods
).
(b) Only one Swingline Advance may be requested in each Utilisation Request delivered
pursuant to Clause 5.
5
(
Delivery of a Utilisation Request for a
Swingline Advance
).
5.7
Currency and amount
(a) The currency specified in a Utilisation Request delivered pursuant to Clause 5.5
(
Delivery of a Utilisation Request for a Swingline Advance
) must be Dollars (in the case
of a Dollar Swingline Advance) or Euro (in the case of a Euro Swingline Advance).
(b) The amount of the proposed Swingline Advance must be:
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(i) in the case of a Dollar Swingline Advance, a minimum of $50,000,000 and an
integral multiple of $10,000,000 or, if less, the Available Dollar Swingline
Facility; or
(ii) in the case of a Euro Swingline Advance, a minimum of Euro 50,000,000
and an integral multiple of Euro 10,000,000 or, if less, the Available Euro
Swingline Facility; or
(c) The amount of a proposed Dollar Swingline Advance or, as the case may be, the Base
Currency Amount of a proposed Euro Swingline Advance must not, when aggregated
with the Base Currency Amount of all outstanding Swingline Advances outstanding on
the proposed Utilisation Date, exceed the Total Swingline Facility Amount.
5.8
Swingline Lenders' participation
(a) If the conditions set out in this Agreement have been met, each Dollar Swingline
Lender (in the case of a Dollar Swingline Advance) or Euro Swingline Lender (in the case
of a Euro Swingline Advance) shall, on the relevant Utilisation Date, make its participation
in each Dollar Swingline Advance or Euro Swingline Advance (as applicable) available
through its Facility Office.
(b) The amount of each Swingline Lender's participation in each Dollar Swingline Advance
or Euro Swingline Advance will be equal to the proportion borne by its Available Dollar
Swingline Commitment or, as the case may be, Available Euro Swingline Commitment
to the Available Dollar Swingline Facility or, as the case may be, Available Euro
Swingline Facility immediately prior t
o
making the Dollar Swingline Advance or Euro
Swingline Advance.
(c) The relevant Swingline Agent shall notify each relevant Swingline Lender of the
amount, currency and the Base Currency Amount of each Swingline Advance at
the Specified Time.
6.
OPTIONAL CURRENCIES
6.1
Selection of currency
The relevant Borrower shall select the currency of an Advance in a Utilisation Request. 6.2
Unavailability of a currency
If before the Specified Time on any Quotation Day:
(other than Euro or Sterling) requested is not readily available to it in the amount required;
or
(b) a Lender notifies the Facility Agent that compliance with its obligation to participate
in an Advance in the proposed Optional Currency (other than Euro or Sterling) would
contravene a law or regulation applicable to it,
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the Facility Agent will give notice to the relevant Borrower to that effect by the Specified
Time on that day. In this event, any Lender that gives notice pursuant to this Clause 6.2 will be
required to participate in the Advance in the Base Currency (in an amount equal to that Lender's
proportion of the Base Currency Amount or, in respect of a Rollover Advance, an amount
equal to that Lender's proportion of the Base Currency Amount of the maturing Advance that
is due to be repaid) and its participation will be treated as a separate Advance denominated in the
Base Currency during that Interest Period.
6.3
Notification
The Facility Agent shall notify the Lenders and the relevant Borrower of Optional Currency
amounts (and the applicable Facility Agent's Spot Rate of Exchange) promptly after they
are ascertained.
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SECTION 4
REPAYM ENT, PREPAYM ENT AND CANCELLATION
7.
REPAYMENT
7.1
Repayment of Advances
Period.
(b) All Advances must be repaid in full on the Termination Date.
(c) At any time when a Lender becomes a Defaulting Lender, the maturity date of each of
the participations of that Lender (and, if that Defaulting Lender is the Revolving Facility
Affiliate of a Swingline Lender, of that Swingline Lender) in the Advances then
outstanding will be automatically extended to the Termination Date and will be
treated as separate Advances (the "
Separate
Advances
") denominated i
n
the currency
in which the relevant participations are outstanding.
(d) A Borrower to whom a Separate Advance is outstanding may prepay that Advance
by giving 5 Business Days' prior notice to the Facility Agent. The Facility Agent
will forward a copy of a prepayment notice received in accordance with this
paragraph (d) to the relevant Lender concerned as soon as practicable on receipt.
(e) Interest in respect of a Separate Advance will accrue for successive Interest Periods
selected by the Borrower by the time and date specified by the Facility Agent (acting
reasonably) and will be payable by that Borrower to the relevant Lender on the last day
of each Interest Period in respect of that Advance. Notwithstanding Clause 9.3
(
Calculation of interest – Swingline Advance
), the rate of interest in respect of any
Swingline Advance that becomes a Separate Advance in accordance with this Clause
7.1 shall be calculated in accordance with Clause 9.1 (
Calculation of interest – Term
Rate Advance
) and Clause 9.2 (
Calculation o
f
interes
t
– Compounded Rate Advance
)
(as applicable
)
with effect from the end of the Interest Period during which such
Swingline Advance becomes a Separate Advance.
(f) The terms of this Agreement relating to the Facility generally shall continue to apply to
Separate Advances other than to the extent inconsistent with paragraph
s
(c
)
t
o
(e
)
above, in which case those paragraphs shall prevail in respect of any Separate
Advance.
(g) If one or more Advances are to be made available to a Borrower:
Borrower;
the maturing Advance was determined pursuant to the operation of Clause
6.2 (
Unavailability of a currency
)); and
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(iii) in whole or in part for the purpose of refinancing the maturing Advance; the
aggregate amount of the new Advance shall be treated as if applied in or towards
repayment of the maturing Advance so that:
(A) if the amount of the maturing Advance exceeds the aggregate
amount of the new Advance:
(1) the relevant Borrower will only be required to pay an
amount in cash in the relevant currency equal to that
excess; and
(2) each Lender's participation (if any) in the new Advance shall be
treated as having been made available and applied by the
Borrower in or towards repayment of that Lender's participation
(if any) in the maturing Advance and that Lender will not
be required to make its participation in the new Advance
available in cash; and
the aggregate amount of the new Advance:
payment in cash; and
the new Advance available in cash only to the extent that its
participation (if any) in the new Advance exceeds that Lender's
participation (if any) in the maturing Advance and the
remainder of that Lender's participation in the new Advance
shall be treated as having been made available and applied
by the Borrower in or towards repayment of that Lender's
participation in the maturing Advance.
8.
PREPAYMEN T AND CANCELLATION
8.1
Lender Illegality
If it becomes unlawful in any jurisdiction for a Lender to perform any of its obligations as
contemplated by this Agreement or to fun
d
or maintai
n
its participation in any Advance:
that event;
(b) unless the repayment referred to in paragraph (c) below avoids such
unlawfulness, upon the Facility Agent notifying ABB, the Commitment and/or the
relevant Swingline Commitment of that Lender and/or its Revolving Facility Affiliate or
its Swingline Affiliate will be immediately cancelled; and
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(c) each Borrower shall, to the extent necessary to avoid such unlawfulness, repay that
Lender's and/or its Revolving Facility Affiliate's or its Swingline Affiliate's participation
in the Advances made to it on the last day of the Interest Period for each Advance
occurring after the Facility Agent has notified ABB or, if earlier, the date specified by
the Lender in the notice delivered to the Facility Agent (being no earlier than 5 Business
Days after receipt of such notice or, if earlier, the last day of any applicable grace period
permitted by law).
8.2
Borrower Illegality
Finance Documents, save where such obligations are not, or could reasonably be considered
not to be, material to the interests of the Lenders under the Finance Documents, that
Borrower shall within 15 Business Days of being served with notice by the Facility Agent so to
do, repay all Advances owing by it, together with accrued interest and all other amounts owing
by it under the Finance Documents.
8.3
Mandatory Prepayment on Change of Control
beneficial owner of shares in the issued share capital of ABB carrying the right to more than 50
per cent. of the votes exercisable at a general meeting of ABB:
event; and
so requests (by delivering a notice to ABB through the Facility Agent), each Borrower
shall, no later than 15 days following such request, prepay that Lender's portion of
all outstanding Advances, together with accrued interest thereon and all other amounts
owing to such Lender hereunder and cancel that Lender's Commitments and/or Swingline
Commitments.
For the purposes of this Claus
e
8.3, "
associated person
" means, in relation to any person, a
person who is (i) "
acting in concert
" (as defined in the City Code on Takeovers and
Mergers) with that person or (ii) a "
connected person
" (as defined in section 839 of the Income
and Corporation Taxes Act 1988) of that person.
8.4
Mandatory Prepayment on Sanctions Misrepresentation or Anti-Bribery and
Corruption Misrepresentation
n
Anti-
Bribery and Corruption Misrepresentation:
notify each Lender; and
Agent any Lender so requests (by delivering a notice to ABB through the Facility
Agent), each Borrower shall within 15 Business Days of any such request (or
earlier to the extent required by applicable law or regulation) prepa
y
that
Lender's portion of all outstanding Advances,
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together with accrued interest thereon and all other amounts owing to such
Lender hereunder, and cancel that Lender's Commitments and/or Swingline
Commitments.
(b) For the purpose of this Clause 8.4:
(i) a "
Sanctions Misrepresentation
" means any statement or
representation made or deemed (by virtue of Clause 19.16 (
Repetition
)) to have
been made by any Obligor pursuant to Clause 19.14 (
Sanctions
) being or proving
to have been incorrect or misleading when made or deemed to have been made;
and
(ii) an "
Anti-Bribery and Corruption Misrepresentation
" mean
s
any statement
or representation made or deemed (by virtue of Clause 19.16 (
Repetition
)) to
have been made by any Obligor pursuant t
o
Clause 19.15 (
Anti-corruption
and anti-bribery laws and regulations
) being or proving to have been incorrect
or misleading when made or deemed to have been made.
8.5
Voluntary cancellation
period as the Majority Lenders may agree) prior notice, cancel the whole or any part (being a
minimum amount of $25,000,000 and an integral multiple of $10,000,000) of the Available
Facility, the Available Dollar Swingline Facility or the Available Euro Swingline Facility. Any
cancellation under this Claus
e
8.
5
shall reduce rateably the Commitments of the Lenders or the
relevant Swingline Commitments of the relevant Swingline Lenders.
8.6
Voluntary Prepayment
a
Borrower may prepay the whole or
any part of an Advance made to it (but if in part, being an amount that reduces the Base
Currency Amount of the Advance by a minimum amount of $25,000,000 and
rounded as the Facility Agent may reasonably require)
provided that
:
Facility Agent not less than 5 Business Days' prior notice; and
(ii) in the case of any Swingline Advance it gives the Facility Agent not less
than 1 Business Day's prior notice.
a
Borrower shall not make more than six
prepayments in respect of Compounded Rate Advances under this Clause 8.6 in any
calendar year.
(c) A Borrower may make more prepayments than permitted under paragraph (b) above in
any calendar yea
r
provided tha
t
such Borrower shall pa
y
a fe
e
for each additional
prepayment to be paid at the time of each such prepayment in the amoun
t
of $2,00
0
or
such lower amount as agreed betwee
n
ABB and the Agent from time to time and as
documented in a side letter.
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8.7
Right of replacement or repayment and cancellation in relation to a single
Lender
(a) If:
(i) any sum payable to any Lender by ABB or a Borrower is required to be
increased under paragraph (c) of Clause 13.2 (
Tax gross-up
);
(ii) any Lender claims indemnification from ABB or a Borrower under
Clause 13.3 (
Tax indemnity
) or Clause 14.1 (
Increased costs
); or
(iii) any Lender refuses (or is deemed to have refused) its consent to an
Extension Request,
then ABB may:
(A) in the case of paragraphs (i) and (ii) above, whilst the
circumstance giving rise to the requirement for that increase or
indemnification continues; and
(B) in the case of paragraph (iii) above, at any time after the refusal (or
deemed refusal) of the relevant Extension Request (but in the case of a
refusal (or deemed refusal) of a First Extension Request not from the date,
if any, that such Lender agrees to a Second Extension Request),
give the Facility Agent notice of cancellation of the Commitment and/or any Swingline
Commitment of that Lender and/or of its Revolving Facility Affiliate or its Swingline
Affiliate and its intention to procure the repayment of the participation in the
Advances of that Lender and/or of its Revolving Facility Affiliate or its Swingline
Affiliate or give the Facility Agent notice of its intention to replace that Lender
and/or its Revolving Facility Affiliate or its Swingline Affiliate in accordance with
paragraph (d) below.
(b) On receipt of a notice of cancellation referred to in paragrap
h
(a
)
above, the
Commitment and/or the relevant Swingline Commitment of the relevant Lender and/or its
Revolving Facility Affiliate or its Swingline Affiliate shall immediately be
reduced to zero.
(c) On the last day of each Interest Period in respect of an Advance which ends after
ABB has given notice of cancellation under paragrap
h
(a
)
above (or, if earlier, the date
specified by ABB in that notice), each Borrower to whom an Advance is outstanding shall
repay that Lender's participation in that Advance.
(d) ABB may, in the circumstances set out in paragrap
h
(a) above, on 5 Business Days' prior
notice to the Facility Agent and that Lender replace that Lender (and any Revolving
Facility Affiliate or Swingline Affiliate of that Lender) by requiring such Lender
and/or its Revolving Facility Affiliate or Swingline Affiliate to (and, to the extent
permitted by law, that Lender or Revolving Facility Affiliate or Swingline Affiliate
shall) transfer pursuant to Claus
e
23 (
Changes to the Lenders
) all (and, save as provided
for in this paragraph, not part only) of its rights and obligations under this Agreement to a
Lender or other
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bank selected by ABB which confirms its willingness to assume and does assume
all the obligations of the transferring Lender in accordance with Clause 23 (
Changes
to the Lenders
) for a purchase price in cash payable at the time of the transfer equal to the
outstanding principal amount of such Lender's or Revolving Facility Affiliate's or
Swingline Affiliate's participation in the outstanding Advances and all accrued interest
(to the extent that the Facility Agent has not given a notification under Clause 23.10
(
Pro rata interest
settlement
)), Break Costs and other amounts payable in relation thereto
under the Finance Documents. Where a Lender to be replaced pursuant to this
paragraph is a Swingline Lender that is the Swingline Affiliate of another Lender,
the rights and obligations required to be transferred pursuant to this Clause by that
other Lender in its capacity as the Revolving Facility Affiliate of that Swingline Lender
may, at the option of ABB, be limited to those necessary for the Commitments of the
replacement Lender (or its Affiliate) to be at least equal to each of the Swingline
Commitments to be transferred to such replacement Lender pursuant to this Clause.
(e) The replacement of any Lender pursuant to paragraph (d) above shall be subject
to the following conditions:
(i) ABB shall have no right to replace an Agent;
Lender;
h
(d
)
above be
required to pay or surrender any of the fees received by such Lender
pursuant to the Finance Documents; and
(iv) the Lender shall only be obliged to transfer its rights and obligations pursuant
to paragraph (d) above once it is satisfied (acting reasonably) that it has complied
with all necessary “know your customer” or other similar checks under all
applicable law
s
and regulations in relation to that transfer.
(f)
(i) If any Lender becomes a Defaulting Lender, ABB may, at any time whilst
that Lender continues to be a Defaulting Lender, give the Facility Agent 5
Business Days' notice of cancellation of the Available Commitment,
Available Dollar Swingline Commitment or Available Euro Swingline
Commitment of that Lender and/or its Revolving Facility Affiliate or
Swingline Affiliate.
(ii) On the notice referred to in paragraph (i) above becoming effective, the Available
Commitment
,
Available Dollar Swingline Commitment or Available Euro
Swingline Commitment (as applicable) of the relevant Lender and/or its
Revolving Facility Affiliate or Swingline Affiliate shall immediately be
reduced to zero.
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(iii) The Facility Agent shall as soon as practicable after receipt of a notice
referred to in paragraph (i) above, notify all the Lenders.
8.8
Restrictions
(a) Any notice of cancellation or prepayment given by any Party under this Clause 8 shall be
irrevocable and, unless a contrary indication appears in this Agreement, shall specify the
date or dates upon which the relevant cancellation or prepayment is to be made
and the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with accrued interest
on the amount prepaid and, subject to any Break Costs, without premium or penalty.
(c) Unless a contrary indication appears in this Agreement, any part of the Facility which is
prepaid may be reborrowed in accordance with the terms of this Agreement. Any
part of the Facility that is repaid may be reborrowed.
(d) No Borrower shall repay or prepay all or any part of the Advances or cancel all or any
part of the Commitments or any Swingline Commitment except at the times and in the
manner expressly provided for in this Agreement.
(e) Subject to Claus
e
2.
2
(
Increase of Commitments
), no amount of the Total
Commitments or any Swingline Commitment cancelled under this Agreement may be
subsequently reinstated.
(f) If the Facility Agent receives a notice under this Claus
e 8
it shall promptly forward
a copy of that notice to ABB and the affected Borrower or the affected Lender, as
appropriate.
(g) Any cancellation of a Swingline Commitment of a Swingline Lender shall reduce the
relevant Swingline Commitment accordingly but shall not otherwise cance
l
or reduce the
Commitment of the relevant Lender in respect of the Facility (or of any Revolving
Facility Affiliate of the relevant Swingline Lender) unless and to the extent otherwise
provided for in this Agreement.
(h) Any cancellation of the Commitment of a Lender that is a Swingline Lender or a
Revolving Facility Affiliate of a Swingline Lender shall not cancel or reduce any
Swingline Commitment of that Lender or its Swingline Affiliate unless a Swingline
Commitment of that Lender or its Swingline Affiliate would exceed the Commitment of
that Lender immediately following such reduction, in which case the relevant Swingline
Commitment of that Lender or its Swingline Affiliate shall be reduced by such amount
as is necessary to ensure that, after the relevant cancellation, each such Swingline
Commitment does not exceed the Commitment of that Lender.
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SECTION 5
COSTS OF UTILISATION
9.
INTEREST
9.1
Calculation of interest – Term Rate Advance
The rate of interest on each Term Rate Advance for an Interest Period is the percentage
rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) Term Reference Rate; and
(c) Term Reference Rate CAS (if any).
9.2
Calculation of interest – Compounded Rate Advance
Interest Period is the percentage rate per annum which is the aggregate of the
applicable:
(i) Margin; and
(ii) Compounded Reference Rate for that day.
RFR Banking Day, the rate of interest on that Compounded Rate Advance for that day
will be the rate applicable to the immediately preceding RFR Banking Day.
9.3
Calculation of interest – Swingline Advance
from day to day and is (in the case of any Dollar Swingline Advance) the Dollar Swingline
Rate or (in the case of any Euro Swingline Advance) the Euro Swingline Rate.
9.4
Payment of interest
of each Interest Period.
9.5
Default interest
(a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due
date, interest shall accrue on the overdue amount from the due date up to the date of actual
payment (both before and after judgment) at a rate 1.00 per cent. higher than the rate
which would have been payable if the overdue amount had, during the period of non-
payment, constituted an Advance (not being a Swingline Advance) in the currency
of the overdue amount for successive Interest Periods, each of a duration selected by
the Facility Agent
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(acting reasonably). Any interest accruing under this Claus
e
9.
5
shall be
immediately payable by the relevant Obligor on demand by the Facility Agent.
(b) Default interest (if unpaid) arising on an overdue amount will be compounded with the
overdue amount at the end of each Interest Period applicable to that overdue amount
but will remain immediately due and payable.
9.6
Notification of rates of interest
Borrowers of the determination of a rate of interest under this Agreement.
(b) The applicable Agent shall promptly upon a Compounded Rate Interest
Payment being determinable notify:
r
and AB
B
of that Compounded Rate Interest
Payment;
Payment which relates to that Lender's participation in the relevant
Compounded Rate Advance; and
(iii) the relevant Lenders, ABB and the relevant Borrower of each applicable rate of
interest relating to the determination of that Compounded Rate Interest Payment.
e
9.
6
shall not requir
e
an
y
Agent to make any notification to any
Party on a day which is not a Business Day.
9.7
Minimum Interest
(a) When entering into this Agreement, the Parties have assumed that the interest payable
hereunder is not and will not become subject to Swiss withholding tax. Therefore, if a
Tax Deduction is required by law to be made in one of the circumstances set out in
paragrap
h
(d
)
of Claus
e
13.
2
(
Ta
x gross-up
) and if paragraph (c) of Clause 13.2 (
Ta
x
gross-up
) should be unenforceable in respect of a Borrower incorporated in
Switzerland or, if different, resident in Switzerland for tax purposes, each Borrower
acknowledges and agrees that:
(i) the applicable interest rate in relation to that interest payment shall be:
(A) the interest rate which would have applied to that interest
required to be made (where the rate at which the relevant Tax
Deduction is required to be made is for this purpose expressed as a
fraction of (1) rather than as percentage);
(ii) the Borrower shall: (i
)
pay the relevant interest at the adjusted rate in
accordance with paragraph (a)(i) above and (ii) make the Tax Deduction on the
interest so recalculated.
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(b) To the extent that paragraph (a) above applies, each Borrower shall provide to the Lenders
the documents required by law or each applicable double taxation treaty for the Lenders
to prepare claims for the refund of any Swiss withholding tax so deducted.
the term in Clause 13.1 (
Definitions
).
10.
INTEREST PERIODS
Utilisation Request.
(b) Subject to this Clause 10, a Borrower may select an Interest Period of:
(i) in relation to any Advance (other than a Swingline Advance), a period specified
in the applicable Reference Rate Terms or such shorter period ending on the
Termination Date or any other period agreed between the relevant Borrower (or
ABB on its behalf) and the Facility Agent (acting on the instructions of all the
Lenders); or
g
five
Business Days.
(d) Each Advance has one Interest Period only.
Rate Terms for a Utilisation or Unpaid Sum shall apply to each Interest Period for that
Utilisation or Unpaid Sum.
11.
CHANGES TO THE CALCULATION OF INTEREST
11.1
Market disruption
(a) If a Market Disruption Event occurs i
n
relation to an Advance (other than a Dollar
Swingline Advance) for any Interest Period, then the rate of interest on each Lender's
share of that Advance for the Interest Period shall be the percentage rate per annum
which is the sum of:
(i) the Margin; and
(ii) th
e
weighted average of rates notified to the Facility Agent, ABB and the
relevant Borrower by each Lender in a certificate (which sets out the details of the
computation of the relevant rate and shall be
prima facie
of the same) as soo
n
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 that Lender of funding its participation
in that Advance from whatever source it may reasonably select.
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(b) In this Agreement "
Market Disruption Event
" means:
(i) in relation to a Term Rate Advance in Euro:
(A) at the relevant Quotation Time for the fixing of the relevant
Screen Rate on the relevant Quotation Day for that Advance, the relevant
Scree
n
Rate is not available and it is not possible to calculate an
Interpolated Screen Rate for that Advance; or
(B) before close of business in London on the Quotation Day for the relevant
Interest Period, the Facility Agent receives notification(s) from a Lender
or Lenders (whose participation(s) in an Advance exceed 50 per cent. of
that Advance) that the cost to it/them of funding its/their participation(s)
in that Advance from the wholesale market for Euro would be in excess
of the applicable Screen Rate;
(ii) in relation to a Term Rate Advance in Dollars and a Compounded Rate Advance,
before the Reporting Time for that Advance the Agent receives
notification(s) from a Lender or Lenders (whose participation(s) in an Advance
exceed 50 per cent. of that Advance
)
tha
t
the cost to
it/them of funding its/their participation(s) in that Advance from the wholesale
market for the relevant currenc
y
would be in excess o
f
the applicable Market
Disruption Rate; and
the relevant Screen Rate is not available to determine the Euro
Swingline Rate.
11.2
Alternative basis of interest or funding
the Facility Agent and ABB shall enter into negotiations (for a period of not more than
thirty days) with a view to agreeing a substitute basis for determining the rate of interest.
h
(a
)
above shall, with the
prior consent of the Majority Lenders and ABB, be binding on all Parties.
(c) If Clause 11.1 applies but any Lender does not notify a rate to the Facility Agent
by the time stated in paragraph (a)(ii) of Clause 11.1 for the relevant Advance, the rate of
interest shall be calculated on the basis of the rates notified by the remaining Lenders.
11.3
Break Costs
for a
n
Advanc
e
or Unpaid Sum
,
th
e
relevant Borrower shall, withi
n
three Business
Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable
to all or any part of an Advance or Unpaid Sum being paid by that Borrower on a day
other than the last day of an Interest Period for that Advance or Unpaid Sum.
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(b) Each Lender shall, as soon as reasonably practicable after a demand by the Facility
Agent, provide to ABB and the relevant Borrower a certificate (which shall constitut
e
prima faci
e
non-binding evidence of the matters to which it refers) addressed to the
Facility Agent, ABB and the relevant Borrower confirming the amount of its Break
Costs for any Interest Period in which they accrue and setting out the manner of computing
such Break Costs.
12.
FEES
12.1
Commitment Fee
commitment fee in the Base Currency computed at 35 per cent. of the applicable Margin
from time to time on that Lender's Available Commitment.
(b) The accrued commitment fee is payable on the last day of each successive period of
three Months commencing from the date of this Agreement and on the last day of the
Availability Period and, if a Lender's Commitment is cancelled in full, on the date such
cancellation becomes effective in respect of the amount accrued in respect of that Lender's
Available Commitment immediately before such cancellation.
e
to the Facility Agent (for the account of a Lender)
on any Available Commitment of that Lender for any day on which that Lender is a
Defaulting Lender.
12.2
Utilisation Fee
pro rata
to
their Commitments) a utilisation fee in respect of the Total Outstandings
computed at the rate of:
(i) 0.075 per cent. per annum for each day that the amount of the Total
Outstandings is less than or equal to 33.33 per cent. of the Total
Commitments as at the date of this Agreement;
(ii) 0.15 per cent. per annum for each day that the amount of the Total
Outstandings is greater than 33.33 per cent. of the Total Commitments but less
than or equal to 66.66 per cent. of the Total Commitments as at the date of this
Agreement; and
(iii) 0.30 per cent. per annum for each day that the amount of the Total
Outstandings is greater than 66.66 per cent. of the Total Commitments as at the
date of this Agreement.
(b) The accrued utilisation fee is payable on the last day of each successive period of three
Months commencing from the date of this Agreement and on the Termination Date.
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12.3
Participation Fee
participation fee in the amount and at the time agreed in a Fee Letter.
12.4
Arrangement Fee
ABB shall pay to the Facility Agent (for the account of the Mandated Lead Arrangers) an
arrangement fee in the amount and at the time agreed in a Fee Letter.
12.5
Agency Fee
the times agreed in a Fee Letter.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
13.
TAX GROSS UP AND INDEMNITIES
13.1
Definitions
(a) In this Agreement:
"
Initial Borrower Jurisdiction
" means any of The Netherlands, the United
States of America or Switzerland.
"
Protected Party
" means a Finance Party which is or will be, for or on account of Tax,
subject to any liability or required to make any payment in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or receivable)
under a Finance Document.
"
Qualifying Lender
" means:
Lender which is a Qualifying Bank;
of America, a Lender which is:
(A) created or organised under the laws of the United States of
America or of any state (including the District of Columbia)
thereof; or
(B) resident in a jurisdiction having and eligible for the benefit of a double
taxation agreement wit
h
the United States of America which makes
provision for full exemption from tax imposed by the United States of
America on interest and which does not carry on a business in the
United States of America through a permanent establishment with
which that Lender's participation in the Facility is effectively connected;
or
(C) entitled to receive payments under the Finance Documents without
deduction or withholding of any United States federal income taxes,
and which has complied with any procedural requirements within its control
necessary to receive such payment without the imposition of United States
withholding tax; and
except the United States of America or Switzerland, any Lender.
"
Tax Credit
" means a credit against, relief or remission for, or repayment of
any Tax.
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"
Tax Deduction
" means a deduction or withholding for or on account of Tax from a
payment under a Finance Document, other than a FATCA Deduction.
"
Tax Payment
" means an increased payment made by ABB or a Borrower to a Finance
Party under Clause 9.7 (
Minimum Interest
), Clause 13.2 (
Tax gross-up
) or a payment made
by ABB or a Borrower under Clause 13.3 (
Tax indemnity
).
(b) In this Claus
e
1
3
a reference to "
determines
" or "
determined
" means, save where
expressly stated to the contrary, a determination made in the absolute discretion of the
person making the determination acting in good faith.
13.2
Tax gros s-up
Tax Deduction, unless a Tax Deduction is required by law.
or a Borrower (as the case may be) must make a Tax Deduction (or that there is any change
in the rate or the basis of a Ta x Deduction) notify the Facility Agent accordingly. If the
Facility Agent receives such notification from a Lender it shall notify ABB and the
relevant Borrower.
(c) If a Tax Deduction is required by law to be made by ABB or a Borrower in one of the
circumstances set out in paragraph (d) below, the amount of the payment due from ABB
or that Borrower shall be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would have been due if no
Tax Deduction had been required.
h
(c) above are where a person entitled
to the payment:
(i) is an Agent;
(ii) is a Qualifying Lender; or
to be a Qualifying Lender to the extent that this altered status results from
any change after the date of this Agreement in (or in the interpretation,
administration, or application of) any law or double taxation agreement or
any published practice or published concession of any relevant taxing authority.
(e) If ABB or a Borrower is required to make a Tax Deduction, it shall make that Tax
Deduction and any payment required in connection with that Tax Deduction within the
time allowed and in the minimum amount required by law.
(f) Within 30 days of making either a Tax Deduction or any payment required in connection
with that Tax Deduction, ABB or the relevant Borrower (as the case may be) shall deliver
to the Facility Agent for the Finance Party entitled to the payment evidence reasonably
satisfactor
y
to that Finance Party that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing authority.
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(g) Each Finance Party, ABB and the Borrowers shall co-operate in completing any
procedural formalities necessary for ABB or a Borrower to make a payment to which the
Finance Party is entitled without a Tax Deduction or with a reduced Tax Deduction. Each
Finance Party shall on the reasonable written request of ABB or a Borrower complete
and deliver to ABB or that Borrower all documentation reasonably required by ABB
or that Borrower in order to enable it to make such payments without a Tax Deduction
or with a reduced Tax Deduction (so long as the completion or delivery of such
documentation would not materially prejudice the legal or commercial position of the
relevant Finance Party).
13.3
Tax indemnity
pay to a Protected Party an amount equal to the loss, liability or cost which that Protected
Party determines will be or has been (directly or indirectly) suffered for or on account of
Tax by that Protected Party.
h
(a
)
above shall not apply with respect to any Tax assessed on a
Finance Party:
(i)
(A) under the law of the jurisdiction in which that Finance Party is
incorporated or, if different, the jurisdiction (or jurisdictions) in which
that Finance Party is treated as resident for tax purposes;
(B) under the law of the jurisdiction in which that Finance Party's Facility
Office is located in respect of amounts received or receivable in that
jurisdiction; or
(C) arising by reason of the making of an Advance to a Borrower in an Initial
Borrower Jurisdiction under the law of such jurisdiction, except
to the extent arising by reason of a change in law or in any regulation
occurring after the date of this Agreement
,
provided tha
t
this
paragrap
h
(b)(i)(C
)
shall not apply to any Tax assessed or imposed on
an Agent,
if that Tax is imposed on or calculated by reference to the net income received
or receivabl
e
(but not an
y
sum deemed to be received or receivable) by that
Finance Party;
(ii) which is compensated for by Clause 9.7 (
Minimum Interest
) or
Clause 13.2 (
Tax gross up
) (or would have been so compensated but for an
exception to those Clauses); or
(iii) which relates to a FATCA Deduction required to be made by a Party.
(c) A Protected Party making, or intending to make a claim pursuant to paragraph (a)
above shall promptly notify the Facility Agent of the event which will give, or has given,
rise to the claim, following which the Facility Agent shall notify ABB.
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13.3, notify the Facility Agent.
13.4
Tax Credit
If ABB or a Borrower makes a Tax Payment and the relevant Finance Party determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that Tax Credit,
the Finance Party shall pay an amount to ABB (or as the case may be) that Borrower which that
Finance Party determines, acting in good faith, will leave that Finance Party (after that payment)
in the same after-Tax position as it would have been in had the Tax Payment not been made by
ABB or that Borrower (as the case may be). The relevant Finance Party shall endeavour, acting
in good faith, to obtain, utilise and retain the Tax Credit save that it shall not be obliged to disclose
any information relating to its tax or other affairs or any computations in respect thereof.
13.5
Lender Status Confirmation
(a) Each Original Lender herewith confirms and represents that it is a Qualifying
Bank and each Lender which becomes a Party after the date of this Agreement shall
confirm and represent in the documentatio
n
which it executes on becoming a Party as a
Lender that it is a Qualifying Bank.
(b) Each New Lender that becomes a Lender after the date of this Agreement shall indicate
in th
e
documentation which it executes on becoming a Party as a Lender,
and for the benefit of the Facility Agent and without liability to any Obligor, whether
or not it is a Qualifying Lender.
(c) If a New Lender fails to indicate its status in accordance with this Clause 13.5 then such
New Lender shall be treated for the purposes of this Agreement (including by each
Obligor) as if it were not a Qualifying Lender until such time as it notifies the Facility
Agent to the contrary (and the Facility Agent, upon receipt of such notification, shall
inform ABB). For the avoidance of doubt the documentation which a Lender executes on
becoming a Party as a Lender shall not be invalidated by any failure of a Lender to comply
with this Clause 13.5.
13.6
Qualifying Lenders
Any Lender which ceases, for any reason, to be a Qualifying Lender shall promptly
notify ABB and the relevant Borrower(s) of its change of status.
13.7
Stamp taxes
ABB shall pay and, within 3 Business Days of demand, indemnify each Finance Party against any
cost, loss or liability such Finance Party incurs in relation to all stamp duty, registration and other
similar Taxes payable in respect of any Finance Document, but not in respect of any assignment
or transfer pursuant to Claus
e
2
3
(
Changes to the
Lenders
).
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13.8
Value added tax
to a Finance Party shall be deemed to be exclusive of any VAT. If
VAT
is chargeable
on any supply made by any Finance Party to any Party in connection with a Finance
Document, that Party shall pay to the Finance Party (in addition to and at the same time
as paying the consideration) an amount equal to the amount of the VA T.
(b) Where a Finance Document requires ABB or the Borrowers to reimburse a Finance
Party for any costs or expenses, ABB or the Borrowers (as the case may be) shall also at
the same time pay and indemnify that Finance Party against all VAT directly incurred by
that Finance Party in respect of the costs or expenses save to the extent that such
Finance Part
y
reasonably determines that i
t
is entitled to repayment or credit in respect
of the VAT.
13.9
FATCA Information
reasonable request by another Party:
(i) confirm to that other Party whether it is:
(A) a FATCA Exempt Party; or
(B) not a FATC A Exempt Party;
(ii) supply to that other Party such forms, documentation and other
information relating to its status under FATCA as that other Party reasonably
requests for the purposes of that other Party's compliance with FATCA.
(b) If a Party confirms to another Party pursuant to paragraph (a)(i) above that it is a FATC A
Exempt Party and it subsequently becomes aware that it is not or has ceased to be a
FATC A Exempt Party, that Party shall notify that other Party reasonably promptly.
h
(a) above shall not oblige any Finance Party to do anything which
would or might in its reasonable opinion constitute a breach of:
(i) any law or regulation;
(ii) any fiduciary duty; or
(iii) any duty of confidentiality.
forms, documentation or other information requested in accordance with paragraph (a)(i)
or (a)(ii) above (including, for the avoidance of doubt, where paragraph (c) above
applies), then such Party shall be treated for the purposes of the Finance Documents (and
payments under them) as if it is not a FATCA
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Exempt Party unti
l
such time as the Party in question provides the requested
confirmation, forms, documentation or other information.
(e) If a Borrower is a US Tax Obligor or the Facility Agent reasonably believes that its
obligations under FATCA or any other applicable law or regulation require it, each
Lender shall, within ten Business Days of:
is an Original Lender, the date of this Agreement;
Lender becomes a Party as a Lender, that date;
the Facility Agent,
supply to the Facility Agent:
(1) a withholding certificate on Form W-8, Form W-9 or any
other relevant form; or
(2) any withholding statement or other document,
authorisation or waiver as the Facility Agent may require to
certify or establish the status of such Lender under FATCA
or that other law or regulation.
(f) The Facility Agent shall provide any withholding certificate, withholding statement,
document, authorisation or waiver it receives from a Lender pursuant to paragraph (e)
above to the relevant Borrower.
(g) If any withholding certificate, withholding statement, document, authorisation or waiver
provided to the Facility Agent by a Lender pursuant to paragraph (e) above is or becomes
materially inaccurate or incomplete, that Lender shall promptly update it and
provide such updated withholding certificate, withholding statement, document,
authorisation or waiver to the Facility Agent unless it is unlawful for the Lender to do
so (in which case the Lender shall promptly notify the Facility Agent). The Facility
Agent shall provide any such updated withholding certificate, withholding statement,
document, authorisation or waiver to the relevant Borrower.
(h) The Facility Agent may rely on any withholding certificate, withholding statement,
document, authorisation or waiver it receives from a Lender pursuant to paragrap
h
(e
)
o
r
(g
)
above without further verification. Th
e
Facility Agent shall not be liable for any
action taken by it under or in connection with paragraphs (e), (f) or (g) above.
13.10
FATCA Deduction
(a) Each Party may make any FATCA Deduction it is required to make by FATCA,
and any payment required in connection with that FATC A Deduction, and no
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Party shall be required to increase any payment in respect of which it makes such a
FATC A Deduction or otherwise compensate the recipient of the payment for that FATCA
Deduction.
(b) Each Party shall promptly, upon becoming aware that it must make a FATCA Deduction
(or that there is any change in the rate or the basis of such FATCA Deduction), notify the
Party to whom it is making the payment and, in addition, shall notify ABB, the Facility
Agent and the other Finance Parties.
14.
INCREASED COSTS
14.1
Increased costs
(a) Subject to Claus
e
14.
3
(
Exceptions
) ABB shall, within 3 Business Days of a demand
by the Facility Agent, pay for the account of a Finance Party the amount of any Increased
Costs incurred by that Finance Party or any of its Affiliates as a result of (i) the
introduction of or any change in (or in the interpretation or application of) any law or
regulation or (ii) compliance with any law or regulation made after the date of this
Agreement.
(b) In this Agreement "
Increased Costs
" means:
(or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance Document,
which is incurred or suffered by a Finance Party or any of its Affiliates to the extent that
it is attributable to that Finance Party having entered into its Commitment or
funding or performing its obligations under any Finance Document.
14.2
Increased cost claims
Increased
costs
) shall promptly notify the Facility Agent of the event giving rise to the claim,
following which the Facility Agent shall promptly notify ABB.
(b) Each Finance Party shall, as soon as practicable after a demand by the Facility Agent
provide a certificate confirming the amount of its Increased Costs with (subject to any
rights or duties of confidentiality the relevant Finance Party has in respect of such
information) full supporting details (which certificate shall constitute
prima facie
non-
binding evidence of the matters to which it relates).
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14.3
Exceptions
(a) Clause 14.1 (
Increased costs
) does not apply to the extent any Increased Cost
is:
(i) attributable to a Tax Deduction required by law to be made by ABB or
a Borrower
(ii) compensated for by Clause 13.
3
(
Tax indemnity
) (or would have been
compensated for under Claus
e
13.
3
(
Tax indemnity
) but was not so
compensated solely because one of the exclusions in paragrap
h
(b) of Clause
13.3 (
Tax indemnity
) applied);
(iii) not payable as provided in Claus
e
23.
2
(
Conditions of assignment or
transfer
);
(iv) attributable to the breach by the relevant Finance Party or its Affiliates
of any law or regulation;
(v) not notified to ABB within 3 months of being incurred;
(vi) attributable to the implementation or application of or compliance with the
"International Convergence of Capital Measurement and Capital Standards, a
Revised Framework" published by the Basel Committee on Banking Supervision
in June 2004 in the form existing on the date of this Agreement ("
Basel II
") or
Basel III or CRD IV in the form existing on the date of this Agreement or any
other law or regulation which implements Basel II or Basel III or CRD IV in
the form existing on the date of this Agreement (whether such implementation,
application or compliance is by a government, regulator, Finance Party or any
of its Affiliates); or
(vii) attributable to a FATCA Deduction required to be made by a Party.
(b) In this Clause 14.3:
(i) a reference to a "
Tax Deduction
" has the same meaning given to the
term in Clause 13.1 (
Definitions
); and
(ii) "
Basel III
" means:
(A) the agreements on capital requirements, a leverage ratio and liquidity
standards contained in "Basel III: A global regulatory framework for
more resilient banks and banking systems", "Basel III: International
framework for liquidity risk measurement, standards and monitoring"
and "Guidance for national authorities operating the countercyclical
capital buffer" published by the Basel Committee on Banking
Supervision in December 2010, each as amended, supplemented or
restated as at the date of this Agreement;
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(B) the rules for global systemically important banks contained in "Global
systemically important banks: assessment methodology and the
additional loss absorbency requiremen
t
– Rules text" published by the
Basel Committee on Banking Supervision in November 2011, as
amended, supplemented or restated as at the date of this Agreement; and
(C) any further guidance or standards published by the Basel
Committee on Banking Supervision relating to "Basel III" as at the date
of this Agreement.
(iii) "
CRD IV
" means EU CRD IV and UK CRD IV.
(iv) "
EU CRD IV
" means:
(A) Regulation (EU) No 575/2013 o
f
the European Parliament and of the
Council of 26 June 2013 on prudential requirements for credit
institutions and investment firms; and
(B) Directive 2013/36/EU of the European Parliament and of the Council
of 26 June 2013 on access to the activity of credit institutions and
the prudential supervision of credit institutions and investment firms,
amending Directive 2002/87/EC and repealing Directives 2006/48/EC
and 2006/49/EC.
(v) "
UK CRD IV
" means:
(A) Regulation (EU) No 575/2013 of the European Parliament and
of the Council of 26 June 2013 on prudential requirements for credit
institutions and investment firms as it forms part of domestic law
of the United Kingdom by virtue of the European Union (Withdrawal)
Act 2018 (the "
Withdrawal Act
");
(B) the law of the United Kingdom or any part of it, which
immediately before IP completion day (as defined in the European
Union (Withdrawal Agreement) Act 2020) implemented Directive
2013/36/EU of the European Parliament and of the Council of 26 June
2013 on access to the activity of credit institutions and the prudential
supervision of credit institutions and investment firms, amending
Directive 2002/87/EC and repealing Directives 2006/48/EC and
2006/49/EC and its implementing measures; and
(C) direct EU legislation (as defined in the Withdrawal Act), which
immediately before IP completion day (as defined in the European
Union (Withdrawal Agreement) Act 2020) implemented EU CRD IV as
it forms part of domestic law of the United Kingdom by virtue of the
Withdrawal Act.
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15.
OTHER INDEMNITIES
15.1
Currency indemnity
(a) If any sum due from ABB or a Borrower under the Finance Documents (a "
Sum
"),
or any order, judgment or award given or made in relation to a Sum, has to be converted
from the currency (the "
First Currency
") in which that Sum is payable into another
currency (the "
Second Currency
") for the purpose of:
(i) making or filing a claim or proof against ABB or any of the Borrowers;
(ii) obtaining or enforcing an order, judgment or award in relation to any
litigation or arbitration proceedings,
within 3 Business Days of demand, indemnify each Finance Party to whom that Sum is
due against any cost, loss or liability arising out of or as a result of the conversion
including any discrepancy between (A) the rate of exchange used to convert that Sum
from the First Currency into the Second Currency and (B) the rate or rates of exchange
available to that person at the time of its receipt of that Sum.
(b) ABB and each Borrower waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other than that in
which it is expressed to be payable.
15.2
Other indemnities
ABB shall indemnify each Lender upon presentation of duly documente
d
evidence
thereof against any cost, loss or liability directly incurred by that Lender as a result of:
(a) the occurrence of any Event of Default (but excluding any costs of enforcement
save as provided in Clause 17.3 (
Enforcement costs
));
a
Borrower to pay any amount due under a Finance
Document on its due date, including without limitation, any cost, loss or liability arising
as a result of Clause 28 (
Sharing among the Lenders
);
(c) funding, or making arrangements to fund, its participation in an Advance requested
by a Borrower in a Utilisation Request but not made by reason of the operation of any one
or more of the provisions of this Agreement (other than by reason of default, negligence
or wilful misconduct by that Lender alone); or
notice of prepayment given by a Borrower.
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15.3
Indemnity to the Facility Agent
documented evidence thereof, against any reasonable cost, loss or liability properly and directly
incurred by the Facility Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default; or
(b) entering into or performing any foreign exchange contract for the purposes of
Clause 6 (
Optional Currencies
); or
(c) acting or relying on any notice, request or instruction which it reasonably
believes (after due enquiry) to be genuine, correct and appropriately authorised.
MITIGATION BY THE LENDERS
16.1
Mitigation
(a) Each Finance Party shall, in consultation with ABB, take all reasonable steps to mitigate
any circumstances which arise and which would result in any amount becoming payable
under or pursuant to, or cancelled pursuant to, any of Clause 8.
1
(
Lender Illegality
),
Claus
e
1
3
(
Tax
Gros
s
Up an
d
Indemnities
) or Clause 14.
1
(
Increased costs
) or which
would result in any increased amount being payable under this Agreement by reason
of a change in the reserve requirements imposed by the European Central Bank
after the date of this Agreement including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or Facility Office (in
each case in accordance with the terms hereof) and, in such circumstances a Lender will,
at the request of ABB but subject to ABB indemnifying it for the costs of so doing,
transfer its rights and obligations under the Finance Documents to another Lender.
under the Finance Documents.
16.2
Limitation of liability
(a) ABB shall indemnify each Finance Party, upon presentation of duly documented
evidence thereof, for all costs and expenses reasonably and directly incurred by that
Finance Party as a result of steps taken by it under Clause 16.1 (
Mitigation
).
(b)
A
Finance Party is not obliged to take any steps under Clause 16.1 (
Mitigation
) (other
than a transfer of its rights and obligations to another Lender where ABB indemnifies it
for the cost of so doing) if, in the opinion of that Finance Party (acting reasonably), to do
so could reasonably be expected to be prejudicial to
it.
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17.
COSTS AND EXPENSES
17.1
Transaction expenses
ABB shall, within 10 Business Days of demand, pay (subject to presentation of duly documented
evidence thereof) the Agents the amount of all costs and expenses (including legal fees)
reasonably and directly incurred by any of them in connection with the negotiation, preparation,
printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this Agreement; and
(b) any other Finance Documents executed after the date of this Agreement.
17.2
Amendment costs
pursuant to Clause 29.10 (
Change of currency
), ABB shall, within 3 Business Days of demand,
reimburse the Facility Agent, upon presentation of duly documented evidence thereof, for the
amount of all costs and expenses (including legal fees) reasonably and directly incurred by the
Facility Agent and which have previously been agreed with ABB in responding to, evaluating,
negotiating or complying with that request or requirement.
17.3
Enforcement costs
of all costs and expenses (including legal fees) directly incurred by that Finance Party at any time
after the service of a notice by the Facility Agent under Clause 22.10 (
Acceleration
) in
connection with the enforcement of, or the preservation of any rights under, any Finance
Document.
18.
GUARANTEE AND INDEMNITY
18.1
Guarantee and indemnity
The Guarantor irrevocably and unconditionally:
that Borrower's obligations under the Finance Documents;
amount when due under or in connection with any Finance Document, the Guarantor
shall immediately on demand pay that amount as if it was the principal obligor;
and
(c) agrees with each Finance Party that if any obligation guaranteed by it is or becomes
unenforceable, invalid or illegal, it will, as an independent and primary obligation,
indemnify that Finance Party immediately on demand against any cost, loss or liability
it incurs as a result of a Borrower not paying any amount which would, but for such
unenforceability, invalidity or illegality, have been payable by it under any Finance
Document on the date when it would have been due. The amount payable by the Guarantor
under this indemnity will not exceed
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the amount it would have had to pay under this Clause 18 if the amount claimed had been
recoverable on the basis of a guarantee.
18.2
Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate balance of sums
payable by any Borrower under the Finance Documents, regardless of any intermediate payment
or discharge in whole or in part.
18.3
Reinstatement
If any discharge, release or arrangement (whether in respect of the obligations of any
Borrower or any security for those obligations or otherwise) is made by a Finance Party in whole
or in part on the basis of any payment, security or other disposition which is avoided or must be
restored in insolvency, liquidation, administration or otherwise, without limitation, then the
liability of the Guarantor under this Clause 18 will continue or be reinstated as if the discharge,
release or arrangement had not occurred.
18.4
Waiver of defences
omission, matter or thing which, but for this Clause, would reduce, release or prejudice any of its
obligations under this Clause 18 (without limitation and whether or not known to it or any Finance
Party) including:
(a) any time, waiver or consent granted to, or composition with, any Borrower or
other person;
(b) the release of any Borrower or any other person under the terms of any
composition or arrangement with any creditor of any member of the Group;
(c) the taking, variation, compromise, exchange, renewal or release of, or refusal or
neglect to perfect, take up or enforce, any rights against, or security over assets of, any
Borrower or other person or any non-presentation or non-observance of any formality or
other requirement in respect of any instrument or any failure to realise the full value of
any security;
(d) any incapacity or lack of power, authority or legal personality of or dissolution
or change in the members or status of a Borrower or any other person;
(e) any amendment, novation, supplement, extension, restatement (however
fundamental and whether or not more onerous) or replacement of any Finance Document
or any other document or security including without limitation any change in the purpose
of, any extension of or any increase in any facility or the addition of any new facility
under any Finance Document or other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of any person
under any Finance Document or any other document or security; or
(g) any insolvency or similar proceedings.
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18.5
Immediate recourse
trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim
payment from any person before claiming from the Guaranto
r
under this Clause 18. This
waiver applies irrespective of any law or any provision of a Finance Document to the contrary.
18.6
Appropriations
connection with the Finance Documents have been irrevocably paid in full, each Finance
Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or rights held or received
by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts,
or apply and enforce the same in such manner and order as it sees fit (whether against
those amounts or otherwise) and the Guarantor shall not be entitled to the benefit of the
same; and
(b) hold in an interest-bearing suspens
e
account any moneys received from the
Guarantor or on account of the Guarantor's liability under this Clause.
18.7
Deferral of Guarantor's rights
Until all amounts which may be or become payable by the Borrowers under or in connection
with the Finance Document
s
have been irrevocably paid in full or the Facility Agent
otherwise directs, the Guarantor will not exercise any rights which it may have by reason of
performance by it of its obligations under the Finance Documents or by reason of any
amount being payable
,
or liability arising, under this Clause 18:
(a) to be indemnified by a Borrower;
otherwise) of any rights of the Finance Parties under the Finance Documents or of any
other guarantee or security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party;
(c) to bring legal or other proceedings for an order requiring any Borrower to make any
payment, or perform any obligation, in respect of which it has given a guarantee,
undertaking or indemnity under Clause 18.1 (
Guarantee and
indemnity
);
(d) to exercise any right of set-off against any Borrower; and/or
Party.
it shall hold that benefit, payment or distribution to the extent necessary to enable all amounts
which may be or become payable to the Finance Parties by the Borrowers
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under or in connection with the Finance Documents to be repaid in full on trust for the Finance
Parties and shall promptly pay or transfer the same to the Facility Agent or as the Facility Agent
may direct for application in accordance with Claus
e
29 (
Payment
Mechanics
).
18.8
Additional security
or security now or subsequently held by any Finance Party.
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SECTION 7
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
19.
REPRESENTATIONS
Subsidiary) and each Borrower (in respect of itself) makes the representations and warranties
set out in this Clause 19 to each Finance Party on the date of this Agreement.
19.1
Status
jurisdiction of incorporation.
business as it is being conducted.
19.2
Binding obligations
The obligations expressed to be assumed by it in each Finance Document are, subject to the
Reservations, legal, valid, binding and enforceable obligations.
19.3
Non-conflict with other obligations
Finance Documents to which it is a party do not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
their assets,
and, in the case of paragraph (c) on any repetition after the date of this Agreement, in a
manner that could reasonably be expected to have a Material Adverse Effect.
19.4
Power and authority
It has the power to enter into, perform and deliver, and has taken all necessary action to authorise
its entry into, performance and delivery of, the Finance Documents to which it is a party and
the transactions contemplated by those Finance Documents.
19.5
Validity and admissibility in evidence
Dutch Borrower, and if applicable, any works council advice):
obligations in the Finance Documents to which it is a party; and
its jurisdiction of incorporation,
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have been obtained or effected and are in full force and effect.
19.6
Insolvency
Neither it nor any Material Subsidiary has taken any action nor (s
o
far it is aware, having
made all due enquiry) have any steps been taken or legal proceedings been started against it
for winding-up, dissolution or re-organisation, the enforcement of any Security over its assets or
for the appointment of a receiver, administrative receiver, or administrator, trustee or similar
officer of it or any of its assets.
19.7
No default
(a) No Default is continuing.
(b) No other event or circumstance is outstanding which constitutes a default under any other
agreement or instrument which is binding on a Group Company or to which their assets
are subject which has had or could reasonably be expected to have a Material Adverse
Effect.
19.8
No misleading information
(a) Any factual information contained in any document forming part of the
Information Package was true and accurate in all material respects as at the date of the
relevant document.
(b) Nothing has occurred or been omitted from the Information Package and no
information has been given or withheld that results in the information contained in the
Information Package being untrue or misleading in any material respect as at the date of
the relevant document.
19.9
Financial statements
(a) The Original Financial Statements were prepared in accordance with GAAP
consistently applied.
(b) The Original Financial Statement
s
fairly present in all material respects the
consolidated financial condition and operations of the Group or the financial condition
and operations of the relevant Original Obligor in respect of the relevant financial
year.
(c) Each of the latest audited consolidated financial statements required to be delivered
under paragrap
h
(b
)
of Claus
e
20.
1
(
Financial statements
) fairly presents in all
material respects the financial position of the Group as at the date to which they were
prepared and for the period then ended.
(d) Each of the latest set of unaudited consolidated financial statements required to be
delivered under paragrap
h
(c) of Claus
e
20.
1
(
Financial statements
) fairly presents in
all material respects the financial condition of the Group as at the date to which they
were prepared and for the period then ended.
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19.10
No Material Adverse Effect
Since the date of the most recent annual audited accounts of the Group, no event or
events have occurred which have had a Material Adverse Effect.
19.11
Pari passu ranking
Its payment obligations under the Finance Documents rank at least
pari passu
with the claims of
all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred
by law applying to companies generally.
19.12
No proceedings pending or threatened
body or agency which could reasonably be expected to have a Material Adverse Effect have (to
the best of its knowledge and belief) been started o
r
threatened against any Group Company.
19.13
Environmental Compliance
the extent that non-compliance could not reasonably be expected to have a Material Adverse
Effect.
19.14
Sanctions
(a) No Obligor is and, to the knowledge of the Obligors, none of their respective
directors or executive officers are, a Restricted Party.
(b) Each Obligor has instituted and maintains, and will continue to maintain,
policies and procedures reasonably designed to promote and achieve
compliance with Economic Sanctions Laws.
19.15
Anti-corruption and anti-bribery laws and regulations
No Obligor nor, to the best of the knowledge of the Obligors, none of their respective
director
s
or executive officers, in connection with this Facility and/or the proceeds arising
hereunder, engages in any activity or conduct which would cause any Lender to be in breach of
any applicable anti-bribery or anti-corruption law or regulation. Each Obligor has instituted and
maintains, and will continue to maintain, policies and procedures reasonably designed to
promote and achieve compliance with applicable anti-corruption laws.
19.16
Repetition
(a) The representations and warranties in Claus
e
19.
1
(
Status
) to Claus
e
19.4
(
Power and authority
), Clause 19.14 (
Sanctions
) and Clause 19.15 (
Anti-
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corruption and anti-bribery laws and regulations
) are deemed to be made by each
Obligor by reference to the facts and circumstances then existing:
(i) in the case of Clause 19.1 (
Status
) to Clause 19.4 (
Power and authority
), on the
date of each Utilisation Request and the first day of each Interest Period; and
(ii) in the case of Clause 19.14 (
Sanctions
) and Clause 19.15 (
Anti-
corruption and anti-bribery laws and regulations
), on the date of each Utilisation
Request.
20.
INFORMATION UNDERTAKINGS
so long as any amount is outstanding under the Finance Documents or any Commitment is in
force.
20.1
Financial statements
for all the Lenders, if the Facility Agent so requests) as soon as the same become available,
but in any event within 120 days after the end of each of its financial years (in the case of
ABB) and within 150 days (in the case of each Borrower), its statutory audited
unconsolidated annual financial statements for that financial year (if prepared by
such Borrower).
(b) ABB shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the
Facility Agent so requests) as soon as the same become available, but in any event before
the date falling 120 days after the end of each of its financial years, its audited
consolidated annual financial statements.
(c) ABB shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the
Facility Agent so requests) as soon as the same become available, but in any event within
45 days after the end of each quarter of each of its financial years (except the fourth
quarter) its unaudited consolidated financial statements for that quarter and the year-to-
date period then ended.
20.2
Requirements as to financial statements
pursuant to Clause 20.1 (
Financial statements
) is prepared using GAAP.
20.3
Information: miscellaneous
ABB shall supply to the Facility Agent (in sufficient copies for all the Lenders, if the Facility
Agent so requests):
creditors generally at the same time as they are dispatched;
or administrative proceedings which are commenced against one or more Group
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Companies and which could reasonably be expected to have a Material Adverse Effect;
and
(c) promptly, such further information regarding the financial condition, business and
operations of any Obligor or any other Material Subsidiary as any Finance Party (acting
through the Facility Agent) may reasonably request.
20.4
Notification of default
ABB and each Borrower shall notify the Facility Agent of any Default (and the steps,
if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
20.5
Material Subsidiaries
ABB shall supply to the Facility Agent, with each set of financial statements delivered by it
pursuant to paragraph (b) of Clause 20.1 (
Financial statements
), either:
(a) a complete and up to date list of Material Subsidiaries at that time; or
(b) written confirmation that the list of Material Subsidiaries contained in Schedule
8 (
Material Subsidiaries
) is complete and up to date at that time.
20.6
Use of Websites
(a) Any Obligor may satisfy its obligation under this Agreement to deliver any
information in relation to those Lenders (the "
Website Lenders
") who accept this method
of communication by posting this information onto an electronic website designated by
ABB and the Facility Agent (the "
Designated Website
")
if:
(i) the Facility Agent expressly agrees (after consultation with each of the Lenders)
that it will accept communication of the information by this method;
(ii) both ABB and the Facility Agent are aware of the address of and any
relevant password specifications for the Designated Website; and
(iii) the information is in a format previously agreed between ABB and the
Facility Agent.
Paper Form Lender
") does not agree to the delivery of
information electronically then the Facility Agent shall notify ABB accordingly and ABB
shall supply the information to the Facility Agent (in sufficient copies for each Paper Form
Lender) in paper form. In any event ABB shall supply the Facility Agent with at least one
copy in paper form of any information required to be provided by it.
(b) The Facility Agent shall supply each Website Lender with the address of and any relevant
password specifications for the Designated Website following designation of that
website by ABB and the Facility Agent. The Facility Agent shall notify each Website
Lender when any document is posted to the Designated Website.
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(c) ABB shall promptly upon becoming aware of its occurrence notify the Facility
Agent if:
(i) the Designated Website cannot be accessed due to technical failure;
(ii) the password specifications for the Designated Website change;
(iii) any new information which is required to be provided under this
Agreement is posted onto the Designated Website;
(iv) any existing information which has been provided under this Agreement
and posted onto the Designated Website is amended; or
(v) ABB becomes aware that the Designated Website or any information
posted onto the Designated Website is or has been infected by any
electronic virus or similar software.
If ABB notifies the Facility Agent under paragrap
h
(c)(i
)
or paragrap
h
(c)(v) above, all
information to be provided by ABB under this Agreement after the date of that notice
shall be supplied in paper form unless and until the Facility Agent and each Website
Lender is satisfied that the circumstances giving rise to the notification are no longer
continuing.
(d) Any Website Lender may request, through the Facility Agent, one paper copy of any
information required to b
e
provided under this Agreement which is posted onto the
Designated Website. ABB shall comply with any such request within ten Business Days.
20.7 "
Know your customer
"
checks
(a) If:
(i) the introduction of or 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 an Obligor or the composition of the
shareholders of an Obligor after the date of this Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of its rights and/or
obligations under this Agreement to a party that is not a Lender prior to such
assignment or transfer,
obliges any Agent or any Lender (or, in the case of paragraph (iii) above, any prospective
new Lender) to comply with "know your customer" or similar identification
procedures in circumstances where the necessary information is not already available to
it, each Obligor shall promptly upon the request of that Agent or any Lender supply, or
procure the supply of (t
o
the extent that the relevant information is not already available
to the applicable Agent or Lender), such documentation and other evidence as is
reasonably requested by that Agent (for itself or on behalf of any Lender) or any Lender
(for itself or, in the case of the event described in paragraph (iii) above, on behalf of any
prospective new
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Lender) in order for the applicable Agent, such Lender or, in the case of the event
described in paragraph (iii) above, any prospective new Lender to carry out and be
satisfied with the results of all necessary "know your customer" or other checks in
relation to any relevant person pursuant to the transactions contemplated in the Finance
Documents.
(b) Each Lender shall promptly upon the request of any Agent supply, or procure the supply
of, such documentation and other evidence as is reasonably requested by that Agent (for
itself) in order for that Agent to carry out and be satisfied with the results of all
necessary "know your customer" or other checks on Lenders or prospective new
Lenders pursuant to the transactions contemplated in the Finance Documents.
(c) ABB shall, by not less than 10 Business Days' prior written notice to the Facility Agent,
notify the Facility Agent (which shall promptly notify the Lenders) of its intention to
request that one of its Subsidiaries becomes an Additional Borrower pursuant to
Clause 25 (
Changes to the Obligors
).
(d) Following the giving of any notice pursuant to paragrap
h
(c
)
above, if the accession
of such Additional Borrower obliges any Agen
t
or any Lender to comply with "know
your customer" or similar identification procedures in circumstances where the
necessary information is not already available to it, ABB shall promptly upon the
request of that Agent or any Lender supply, or procure the supply of, such documentation
and other evidence as is reasonably requested by that Agent (for itself or on behalf of any
Lender) or any Lender (for itself or on behalf of any prospective new Lender) in order for
that Agent or such Lender or any prospective new Lender to carry out and be satisfied with
the results of all necessary "know your customer" or other checks in relation to any
relevant person pursuant to the accession of such Subsidiary to this Agreement as
an Additional Borrower.
21.
GENERAL UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date of this Agreement for
so long as any amount is outstanding under the Finance Documents or any Commitment is in
force.
21.1
Authorisations
Each Obligor shall promptly obtain, comply with and do all that is necessary to maintain
in full force and effect any Authorisation (including, in the case of any Dutch Borrower, any
applicable works council advice) required under any law or regulation of its jurisdiction of
incorporation to enable it to perform its obligations under the Finance Documents and to ensure
the legality, validity and subject to the Reservations enforceability or admissibility in
evidence in its jurisdiction of incorporation of any Finance Document.
21.2
Compliance with laws
Each Obligor shall comply in all respects with all laws (including, without limitation,
Environmental Law, ERISA and the Dutch Financial Supervision Act (
Wet op het
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financieel toezicht
)
)
to which it may be subject, if failure so to comply would have a Material
Adverse Effect.
21.3
Negative pledge
(a) Neither ABB nor any Borrower shall (and ABB shall procure that no other
Group Company will) create or permit to subsist any Security over any of its assets.
(b) Paragraph (a) above does not apply to:
(i) any Security over any bank account in favour of the bank with which
such account is held, in each case granted by any Group Company in the ordinary
course of its banking arrangements for the purpose of netting debit and credit
balances;
(ii) any Security arising by operation of law;
ordinary course of trading, where such Security is granted to such seller or, as the
case may be, supplier and is limited in recourse to the asset sold or, as the case
may be, supplied;
after the date of this Agreement if:
of that asset by a Group Company; and
contemplation of, or since the acquisition of that asset by a Group
Company;
(v) any Security over or affecting any asset of a Group Company after the date of
this Agreement, where the Security is created prior to the date on which that
Company becomes a Group Company, if:
(A) the Security was not created in contemplation of the acquisition
of that company; and
(B) the principal amount secured has not increased in contemplation
of or since the acquisition of that company;
p
Company (not being ABB) to
another Group Company;
provided that
the
amounts so secured do not at any time exceed USD 1,500,000,000 (or its
equivalent in another currency or currencies);
to a Project Company or the shares in a Project Company where
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such Security was created for the purpose of securing Indebtedness incurred
to acquire and/or develop the assets of such Project Company and where such
Indebtedness constitutes Project Finance Indebtedness of such Project Company;
(ix) any Security securing Indebtedness incurred by a Group Company to refinance
Indebtedness secured by Security of the type referred to in paragraphs (iv) or
(v) above where such first-mentioned Security is over the same asset and is of
the same type as such second-mentioned Security and the conditions referred
to in paragraph (iv) or, as the case may be, (v) above continue to be satisfied,
mutatis mutandis
; and
(x) any Security not falling within any of paragraph
s
(i
)
t
o
(ix
)
above inclusive
in respect of assets having an aggregate value not exceeding 10 per cent. of the
aggregate value of the gross assets of the Group (as set out in ABB's most
recently published annual audited consolidated financial statements).
21.4
Claims Pari Passu
ABB shall ensure that at all times the claims of the Finance Parties against each Obligor
under the Finance Documents rank at least
pari passu
with the claims of all its other unsecured
an
d
unsubordinated creditors except for obligations mandatorily preferred by law applying to
companies generally.
21.5
Merger
No Obligor shall enter into any amalgamation, demerger, merger or corporate
reconstruction save where the Facility Agent is satisfied, acting reasonably, that the relevant
Obligor's obligations under the Finance Documents will continue to be the legal, valid, binding
and (subject to the Reservations) enforceable obligations of the surviving entity.
21.6
Insurance
l
ensure that each Group Company will) maintain
insurances on and in relation to its business and assets with reputable underwriters or insurance
companies against those risks and to the extent as is usual for companies carrying on the same
or substantially similar business in the relevant jurisdiction and taking into account the availability
of insurance generally.
21.7
Restriction on Subsidiary Debt
ABB shall ensure that the aggregate amount of Total Gross Debt other than:
(a) Project Finance Indebtedness;
(b) Indebtedness owed by one Group Company to another Group Company;
(c) amounts borrowed by a finance company which is a Group Company and which
are on-lent, and remain on-lent, to an Obligor;
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(d) amounts borrowed by a Group Company from a bank to which cash-collateral (in a
substantially equivalent amount) has been granted by a Group Company in respect of the
relevant Group Company's obligation to repay such amounts;
leases under US GAAP as at the date hereof;
to the extent such amounts are borrowed for the purposes of refinancing other borrowings
constituting Total Gross Debt so long as amounts so borrowed are promptly applied in
such manner; and
instruments issued by Group Companies that are Capital Markets Issuers,
$2,500,000,000; and (ii) 7.5 per cent. of the total assets of the Group (as reflected in the most recent
audited consolidated annual financial statements delivered by ABB under paragraph (b) of Clause
20.1 (
Financial statements
)).
In this Claus
e
21.7 "
Total Gross Debt
" means the aggregate of short-term debt (including
current maturities of long-term debt) and long-term debt as reflected in the most recent
unaudited quarterly consolidated financial statements or audited consolidated annual
financial statements delivered by ABB under paragraph (b) or (c) of Clause 20.1 (
Financial
statements
).
21.8
Change of business
ABB shall procure that no substantial change is made to the business o
f
the Group
which would result in the general nature of the business of the Group, taken as a whole, being other
than the business of power and/or automation technologies, and/or digital industries.
21.9
Economic Sanctions
No Borrower shall lend, invest, contribute or otherwise make available the proceeds of
any Advance in a manner that would violate the Economic Sanctions Laws.
22.
EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause
s
22.
1
(
Non-payment
) t
o
22.9
(
Cessation of business
) inclusive is an Event of Default.
22.1
Non-payment
Any sum due from an Obligor or the Obligors under this Agreement is not paid at the
time, at the place at, and in the currency in which, it is expressed to be payable unless payment is
made within 3 Business Days of its due date and the failure to pay is due solely to administrative
error or technical delays in the transmission of funds.
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22.2
Other obligations
those referred to in Clause 22.1 (
Non-payment
)) and, if the failure to comply is capable of remedy,
it is not remedied within 30 days of the Facility Agent giving notice to ABB of the failure to
comply.
22.3
Misrepresentation
Any representation or statement made or deemed (by virtue of Clause 19.16
(
Repetition
)) to be made by ABB or any Borrower in this Agreement (other than a
representation or statement made or deemed to be made pursuant to Claus
e
19.14 (
Sanctions
)
or Clause 19.15 (
Anti-corruption and anti-bribery laws an
d
regulations
)) is or proves to have
been incorrect or misleading in any respect when made or deemed to be made and, where the
circumstances making such representation or statement incorrect or misleading are capable
of being altered so that such representation or statement is correct, such circumstances are not
so altered within 30 days of the Facility Agent giving notice to ABB of such representation or
statement being incorrect.
22.4
Cross default
nor within any originally applicable grace period.
of being declared and is declared to be or (ii) otherwise becomes due and payable,
in any case, prior to its specified maturity as a result of a default or an event of default
(however described).
(c) Any commitment for any Indebtedness of all or any of the Group Companies is cancelled
or suspended by a creditor of all or any of the Group Companies as a result of a default or
an event of default (however described).
(d) Any creditor of all or any of the Group Companies becomes entitled to declare any
Indebtedness of all or any of the Group Companies due and payable prior to its specified
maturity as a result of a default or an event of default (however described).
(e) No Event of Default will occur under this Clause 22.
4
if (1) the Indebtedness falling
within paragraphs (a) to (d) is Project Finance Indebtedness, intra-Group Indebtedness or
Indebtedness under a Finance Document or (2) the aggregate amount of Indebtedness
or commitment for Indebtedness falling within paragraphs (a) to (d) (excluding any
described in (1) above) above is less than $100,000,000.
22.5
Insolvency
inability to pay its debts as they fall due, suspends making payments on any of its debts
or, by reason of actual or anticipated financial difficulties, commences negotiations with
one or more of its creditors with a view to rescheduling any of its indebtedness.
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(b) A moratorium is declared in respect of any indebtedness of any Obligor or any
Material Subsidiary.
22.6
Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness, dissolution or
reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise)
of any Obligor or any Material Subsidiary other than a solvent liquidation or
reorganisation of any Material Subsidiary (other than a Borrower) or to the extent
permitted by Clause 21.5 (
Merger
);
(b) a composition, assignment or arrangement with any creditor of any Obligor or any
Material Subsidiary (other than on a solvent basis to the extent permitted by Clause 21.5
(
Merger
));
(c) the appointment of a liquidator (other than in respect of (i) a winding up petition which is
frivolous or vexatious and which is, in any event, discharged within 30 days of its
presentation or (ii) a solvent liquidation of any Material Subsidiary (other than a
Borrower) or (iii) to the extent permitted by Clause 21.5 (
Merger
)), receiver,
administrator, trustee in bankruptcy, administrative receiver, compulsory manager or
other similar officer in respect of any Obligor or any Material Subsidiary or any of its
assets (having an aggregate value of at least $100,000,000); or
(d) enforcement of any Security over any assets (having an aggregate value of at least
$100,000,000) of any Material Subsidiary or Obligor by reason of a default or event of
default (howsoever described) occurring under the relevant agreement relating to
the Indebtedness secured by such Security,
or any analogous procedure or step is taken in any jurisdiction
.
22.7
Repudiation
An Obligor repudiates a Finance Document or evidences in writing an intention to repudiate
a Finance Document.
22.8
Unlawfulness
Borrower Illegality
), it is or becomes unlawful for an Obligor to
perform any of its material obligations under the Finance Documents.
22.9
Cessation of business
The Group, taken as a whole, ceases or threatens to cease to do business.
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22.10
Acceleration
On and at any time after the occurrence of an Event of Default which is continuing the
Facility Agent may, and shall if so directed by th
e
Majority Lenders, by notice to ABB: (a)
other amounts accrued under the Finance Documents be immediately due and payable,
whereupon they shall become immediately due and payable; and/or
(c) declare that all or part of the Advances be payable on demand, whereupon they shall
immediately become payable on demand by the Facility Agent on the instructions of
the Majority Lenders.
22.11
Clean-Up Period
Notwithstanding any other provision of any Finance Document, if during a Clean-Up
Period any event or circumstance exists which but for this Clause 22.11 would constitute
a Default, such event or circumstance will not constitute a Default (including for the purposes of
Clause 4.2 (
Further conditions precedent
)) during such Clean-Up Period if:
(a) it relates exclusively to, or arises solely as a result of matters relating to the person(s)
acquired pursuant to the relevant Acquisition (or to any Subsidiary(ies)
of such person(s)) or to any obligations to procure or ensure in relation to such person(s)
(or in relation to any Subsidiary(ies) of such person(s));
(b) it is capable of remedy and reasonable steps are promptly taken to remedy it;
(c) the circumstances giving rise to it (other than the Acquisition itself) have not
been procured by any Obligor; and
(d) it is not reasonably likely to have a Material Adverse Effect.
If such event or circumstance is continuing on or after the expiry of such Clean-Up Period
then, with effect from such date, there shall be an Event of Default or, as the case may be,
Default notwithstanding the above (and without prejudice to the rights and remedies of the
Finance Parties).
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SECTION 8
CHANGES TO PART IES
23.
CHANGES TO THE LENDERS
23.1
Assignments and transfers by the Lenders
Subject to this Clause 23, a Lender (the "
Existing Lender
") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another Qualifying Bank (the "
New Lender
").
23.2
Conditions of assignment or transfer
unless the assignment or transfer is to another Lender or an Affiliate of a Lender that is
a
Qualifying Ban
k
or unless an Event of Default has occurred and is continuing.
(b) The consent of ABB to an assignment or transfer must not be unreasonably withheld
or delayed. AB
B
will be deemed to have given its consent 10 Business Days after the
Lender has requested it unless consent is expressly refused by ABB within that time.
(c) An assignment or transfer shall be in respect of a Commitment or a Swingline
Commitment of at least $10,000,000 or, if less, the whole of the Commitment or
Swingline Commitment of the relevant assignor or transferor (
provided that
assignment or transfer shall be in respect of a Commitment or Swingline
Commitment at least equal to €50,000 (calculated at the then prevailing exchange
rate)).
(d) An assignment or transfer by a Swingline Lender of any of its Swingline
Commitments shall only be made if there is a simultaneous assignment or transfer
of an equal amount of its Commitment (or the Commitment of its Revolving Facility
Affiliate). This paragraph shall not apply to a transfer of any Swingline Commitment to a
Lender or an Affiliate of a Lender
provided that
may exceed the Commitment of that Lender or its Revolving Facility Affiliate.
(e) An assignment or transfer by a Lender which is a Swingline Lender or the Revolving
Facility Affiliate of a Swingline Lender of any of its Commitment shall only be effective
if after such assignment or transfer, the Commitment of that Lender is at least equal to
each of the Swingline Commitments of that Lender or its Swingline Affiliate.
(f) An assignment will only be effective on: (i) receipt by the Facility Agent of written
confirmation from the New Lender (in form and substance satisfactory to the Facility
Agent) that the New Lender will assume the same obligations to the other Finance Parties
and the Obligors as it would have been under if it had
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been a
n
Original Lender; and (ii) performance by the Facility Agent of all necessary
"know your customer" or other similar checks under all applicable laws and regulations
in relation to such assignment to a New Lender, the completion of whic
h
the Facility
Agent shall promptly notify to the Existing Lender and the New Lender.
(g) A transfer will only be effective if the procedure set out in Clause 23.5
(
Procedure for transfer
) is complied with.
(h) If:
(i) a Lender assigns or transfers any of its rights o
r
obligations under the
Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment, transfer
or change occurs, an Obligor would be obliged, or at such date it is reasonably
foreseeable that an Obligor would be obliged, to make a payment to the New
Lender or Lender acting through its new Facility Office under Clause 9.7
(
Minimum Interest
), Clause 13 (
Tax Gross Up
and Indemnities
) or Clause 14.1
(
Increased costs
),
then the New Lender or Lende
r
acting through its new Facility Office is only entitled to
receive payment under those Clauses to the same extent as the Existing Lender or
Lender acting through its previous Facility Office would have been if the assignment,
transfer or change had not occurred.
(i) Each New Lender, by executing the relevant documentation pursuant to which
it becomes a Party as a Lender, confirms, for the avoidance of doubt:
(i) that the Facility Agent has authority to execute on its behalf any
amendment or waiver that has been approved by or on behalf of the requisite
Lender or Lenders in accordance with this Agreement on or prior to the date
on which the transfer or assignment becomes effective in accordance with this
Agreement and that it is bound by that decision to the same extent as the
Existing Lender would have been had it remained a Lender; and
(ii) that it agrees to and is bound by any extension to the Termination Date in respect
of the Commitments being transferred to which the Existing Lender has given its
consent in accordance with Clause 2.3 (
Extension
Option
).
23.3
Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer takes effect,
pay to the Facility Agent (for its own account) a fee of $3,000.
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23.4
Limitation of responsibility of Existing Lenders
representation or warranty and assumes no responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other documents;
(ii) the financial condition of ABB or any Borrower;
obligations under the Finance Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
that it:
(i) has made (and shall continue to make) its own independent investigation
and assessment of the financial condition and affairs of ABB and each Borrower
and its related entities in connection with its participation in this Agreement and
has not relied exclusively on any information provided to it by the Existing
Lender in connection with any Finance Document; and
(ii) will continue to make its own independent appraisal of the creditworthiness of
ABB and each Borrower and its related entities whilst any amount is or
may be outstanding under the Finance Documents or any Commitment is in
force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer or re-assignment from a New Lender of any of the
rights and obligations assigned or transferred under this Clause 23; or
(ii) support any losses directly or indirectly incurred by the New Lender by
reason of the non-performance by ABB or any Borrower of its
obligations under the Finance Documents or otherwise.
23.5
Procedure for transfer
(a) Subject to the conditions set out in Claus
e
23.2 (
Conditions of assignment or
transfer
) a transfer is effected in accordance with paragraph (b) below when the Facility
Agent executes an otherwise duly completed Transfer Certificate delivered to it by
the Existing Lender and the New Lender. The Facility Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed Transfer Certificate appearing on its
face to comply with the terms of this Agreement and delivered in accordance with
the terms of this Agreement, execute that Transfer Certificate.
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(b) The Facility Agent shall only be obliged to execute a Transfer Certificate delivered
to it by the Existing Lender and the New Lender upon its completion of all "know your
customer" or other checks relating to any person that it is required to carry out in
relation to the transfer to such New Lender.
(c) Subject to Clause 23.10 (
Pro rata interest settlement
), on the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing Lender seeks to
transfer by novation its rights and obligations under the Finance Documents
each of ABB, the Borrowers and the Existing Lender shall be released from
further obligations towards one another under the Finance Documents and
their respective rights against one another shall be cancelled (being the
"
Discharged Rights and Obligations
");
(ii) each of ABB, the Borrowers and the New Lender shall assume obligations
towards one another and/or acquire rights against one another which differ
from the Discharged Rights and Obligations only insofar as ABB, that Borrower
and the New Lender have assumed and/or acquired the same in place of ABB,
that Borrower and the Existing Lender;
(iii) the Agents, the Mandated Lead Arrangers, the New Lender and other Lenders
shall acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the New Lender been
an Original Lender with the rights and/or obligations acquired or assumed by it as
a result of the transfer and to that extent the Agents, the Mandated Lea
d
Arrangers and the Existing Lender shall each be released from further
obligations to each other under this Agreement; and
(iv) the New Lender shall become a Party as a "
Lender
".
23.6
Disclosure of information
(a) Any Finance Party may disclose to:
external legal counsel), auditors and Affiliates (provided they are made aware of
the confidential nature of the relevant information and that it may be price-
sensitive); and
(ii) any other person to whom, and to the extent that, information is required to be
disclosed by any court or tribunal of competent jurisdiction or any governmental
or regulatory authority or similar body, or pursuant to any applicable law or
regulation,
any information about ABB, any Borrower, the Group and the Finance
Documents as that Finance Party shall consider appropriate.
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(b) Any Lender may disclose to any other person:
(i) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all o
r
any of its rights and obligations under
this Agreement; or
(ii) with (or through) whom that Lender enters into (or may potentially enter into) any
sub-participation in relation to, or any other transaction under which payments
are to be made by reference to, this Agreement or any Obligor,
any information about ABB, any Borrower, the Group and the Finance Documents
as that Lender shall consider appropriate,
provided that
in relation to paragraphs (b)(i)
and (b)(ii) above only, the person to whom the information is to be given has entered into
a confidentiality undertaking unless such person is any central bank or supranational
bank in which case no confidentiality undertaking will be required.
Notwithstanding any of the provisions of the Finance Documents, the Obligors and the Finance
Parties hereby agree that each Party and each employee, representative or other agent of each Party
may disclose to any and all persons, without limitation of any kind, the "
tax structure
" and "
tax
treatment
" (in each case within the meaning of the U.S. Treasury Regulation Section 1.6011-4)
of the Facility and any materials of any kind (including opinions or other tax analyses) that
are provided to any of the foregoing relating to such tax structure and tax treatment.
23.7
Copy of Transfer Certificate and Increase Confirmation to ABB
Transfer Certificate or an Increase Confirmation, send to ABB a copy of that Transfer
Certificate or Increase Confirmation.
23.8
Security over Lenders' rights
may without consulting with or obtaining consent from any Obligor, at any time charge, assign or
otherwise create Security 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 to a federal reserve
or central bank except that no such charge, assignment or Security shall:
(a) release a Lender from any of its obligations under the Finance Documents or substitute
the beneficiary of the relevant charge, assignment or other Security for the Lender as a
party to any of the Finance Documents;
(b) require any payments to be made by an Obligor 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; or
(c) upon any enforcement of such charge, assignment or Security, result in any assignment
or transfer of any such rights under the Finance Documents which is in breach of the
transfer and assignment limitations set out in this Agreement.
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23.9
Exposure Transfers
Conditions of
assignment or transfer
), no Lender shall enter into any arrangement with another person under
which such Lender substantially transfers its exposure under this Agreement to that other person,
unless under such arrangement and at all times while such arrangement is in effect:
(a) the relationship between that Lender and that other person is that of a debtor and
creditor (including in the bankruptcy or similar event of that Lender or any Borrower);
(b) the other person will have no proprietary interest in the benefit of this Agreement
or in any monies received by that Lender under or in relation to this Agreement, and
(c) the other person will under no circumstances: (i) be subrogated to, or substituted in respect
of, that Lender's claims under this Agreement; and (ii) have otherwise any contractua
l
relationship with, or rights against, any Obligor under, or in relation to, this Agreement.
23.10
Pro rata interest settlement
e
23.
5
(
Procedure for transfer
),
provided that
the Transfer Date is not on the last day of an Interest Period:
(i) any interest or fees in respect of the relevant participation which are
expressed to accrue by reference to the lapse of time shall continue to accrue in
favour of the Existing Lender up to but excluding the Transfer Date ("
Accrued
Amounts
") and shall become due and payable to the Existing Lender (without
further interest accruing on them) on the last day of the current Interest Period (or,
if the Interest Period is longer than six Months, on the next of the dates which falls
at six Monthly intervals after the first day of that Interest Period); and
(ii) the rights assigned or transferred by the Existing Lender will not include
the right to the Accrued Amounts, so that, for the avoidance of doubt:
(A) when the Accrued Amounts become payable, those Accrued
Amounts will be payable to the Existing Lender; and
amount which would, but for the application of this Clause 23.10, have
been payable to it on that date, but after deduction of the Accrued
Amounts.
a reference to any other period for accrual of fees.
this Clause 23.10 but which does not have a Commitment shall be deemed not to be a
Lender for the purposes of ascertaining whether the agreement of any
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specified group of Lenders has been obtained to approve any request for a consent,
waiver, amendment or other vote of Lenders under the Finance Documents.
24.
CONFIDENTIALITY OF FUNDING RATES
24.1
Confidentiality and disclosure
(a) The Facility Agent and each Obligor agree to keep each Funding Rate confidential
and not to disclose it to anyone, save to the extent permitted by paragraphs (b) and (c)
below.
(b) The Facility Agent may disclose:
9.6 (
Notification of rates of interest
); and
administration services in respect of one or more of the Finance
Documents to the extent necessary to enable such service provider to provide
those services if the service provider to whom that information is to be given has
entered into a confidentiality agreement substantially in the form of the LMA
Master Confidentiality Undertaking for Use With Administration/Settlement
Service Providers or such other form of confidentiality undertaking agreed
between the Facility Agent and the relevant Lender.
(c) The Facility Agent ma
y
disclose any Funding Rate, and each Obligor may
(i) any of its Affiliates and any of its or their officers, directors, employees,
professional advisers, auditors, partners and Representatives if any person
to whom that Funding Rate is to be given pursuant to this paragraph (i) is
informed in writing of its confidential nature and that it may be price-sensitive
information except that there shall be no such requirement to so inform if
the recipient is subject to professional obligations to maintain the
confidentiality of that Funding Rate or is otherwise bound by requirements of
confidentiality in relation to it;
(ii) any person to whom information is required or requested to be disclosed by any
court of competent jurisdiction or any governmental, banking, taxation or other
regulatory authority or similar body, the rules of any relevant stock exchange or
pursuant to any applicable law or regulation if the person to whom that Funding
Rate is to be given is informed in writing of its confidential nature and that it
may be price-sensitive information except that there shall be no requirement to
so inform if, in the opinion of the Facility Agent or the relevant Obligor, as the
case may be, it is not practicable to do so in the circumstances;
connection with, and for the purposes of, any litigation, arbitration,
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administrative or other investigations, proceedings or disputes if the person
to whom that Funding Rate is to be given is informed in writing of its confidential
nature and that it may be price-sensitive information except that there shall be no
requirement to so inform if, in the opinion of the Facility Agent or the relevant
Obligor, as the case may be, it is not practicable to do so in the circumstances; and
(iv) any person with the consent of the relevant Lender.
24.2
Other obligations
(a) The Facility Agent and each Obligor acknowledge that each Funding Rate is or may be
price-sensitive information and that its use may be regulated or prohibited by
applicable legislation including securities law relating to insider dealing and market
abuse and the Facility Agent and each Obligor undertake not to use any Funding Rate
for any unlawful purpose.
regulation) to inform the relevant Lender:
of Clause 24.1 (
Confidentiality and disclosure
) above except where such
disclosure is made to any of the persons referred to in that paragraph during
the ordinary course of its supervisory or regulatory function; and
of this Clause 24.
25.
CHANGES TO THE OBLIGORS
25.1
Assignments and transfer by Obligors
Neither ABB nor any Borrower may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
25.2
Additional Borrowers
(a) Subject to compliance with paragraphs (c) and (d) of Clause 20.7 (
"Know your
customer"
checks
), ABB may request by written notice that any of its wholly owned Subsidiaries
becomes an Additional Borrower. That Subsidiary shall become an Additional
Borrower if:
Lenders approve the addition of that Subsidiary;
Borrower Accession Letter;
of that Subsidiary becoming an Additional Borrower; and
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(iv) the Facility Agent has received all of the documents and other evidence listed in
Part II of Schedule 2 (
Conditions Precedent
) in relation to that Additional
Borrower, each in form and substance reasonably satisfactory to the Facility
Agent.
(b) The Facility Agent shall notify ABB and the Lenders promptly upon receiving (in form
and substance reasonably satisfactory to it) all the documents and other evidence listed in
Part II of Schedule 2 (
Conditions Precedent
).
(c) Other than to the extent that the Majority Lenders notify the Facility Agent in writing to
the contrary before the Facility Agent gives the notification described in paragraph (b)
above, the Lenders authorise (but do not require) the Facility Agent to give that
notification. The Facility Agent shall not be liable for any damages, costs or losses
whatsoever as a result of giving any such notification.
(d) Delivery of a Borrower Accession Letter constitutes confirmation by the relevant
Subsidiary that the representations and warranties in Clause 19.5 (
Validity and
admissibility in evidence
) and the representations and warranties deemed to be repeated
pursuant to Clause 19.16 (
Repetition
) are true and correct in relation to it as at the date of
delivery as if made by reference to the facts and circumstances then existing.
25.3
Resignation of a Borrower
Facility Agent a Resignation Letter.
Lenders of its acceptance if:
(and ABB has confirmed this to be the case); and
any Finance Documents,
rights or obligations under the Finance Documents.
25.4
Repetition of Representation
Delivery of a Borrower Accession Letter constitutes confirmation by the relevant Subsidiary
that the representations and warranties in Clause 19.5 (
Validit y and
admissibility in evidence
)
and the representations and warranties deemed to be repeated pursuant to Clause 19.16 (
Repetition
)
are true and correct in relation to it as at the date of delivery as if made by reference to the facts
and circumstances then existing.
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SECTION 9
THE FINANCE PARTIES
26.
ROLE OF THE AGENTS AND THE MANDATED LEAD ARRANGERS
26.1
Appointment of the Agents
act as its agent under and in connection with the Finance Documents.
(b) Each of the Mandated Lead Arrangers and the Lenders authorises each Agent
to exercise the rights, powers, authorities and discretions specifically given to such Agent
under or in connection with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.
otherwise, act out of an office in London.
office in New York.
26.2
Instructions
(a) An Agent shall:
refrain from exercising any right, power, authority or discretion vested in it as
Agent in accordance with any instructions given to it by:
matter is an all Lender decision; and
(ii) not be liable for any act (or omission) if it acts (or refrains from acting)
in accordance with paragraph (i) above.
(b) An Agent shall be entitled to request instructions, or clarification of any
instruction, from the Majority Lenders (or, if the relevant Finance Document stipulates
the matter is a decision for any other Lender or group of Lenders, from that Lender
or group of Lenders) as to whether, and in what manner, it should exercise or refrain
from exercising any right, power, authority or discretion. An Agent may refrain
from acting unless and until it receives any such instructions or clarification that it has
requested.
(c) Save in the case of decisions stipulated to be a matter for any other Lender or group of
Lenders under the relevant Finance Document and unless a contrary indication appears
in a Finance Document, any instructions given to an Agent by the Majority Lenders shall
override any conflicting instructions given by any other Parties and will be binding on all
Finance Parties.
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(d) An Agent may refrain from acting in accordance with any instructions of any Lender or
group of Lenders until it has received an
y
indemnification and/or security that it may
in its discretion require (which may be greater in extent than that contained in the Finance
Documents and which may include payment in advance) for any cost, loss or liability
which it may incur in complying with those instructions.
,
an Agent may act (or refrain from acting) as it
considers to be in the best interest of the Lenders.
that Lender's consent) in any legal or arbitration proceedings relating to any Finance
Document.
26.3
Duties of the Agents
(a) Subject to paragraph (b) below, each Agent shall promptly forward to a Party
the original or a copy of any document which is delivered to that Agent for that Party by
any other Party.
(b) Without prejudice to Claus
e
23.
7
(
Copy of Transfer Certificate and Increase
Confirmation to ABB
), paragrap
h
(a
)
above shall not apply to any Transfer Certificate
or Increase Confirmation.
(c) Except where a Finance Document specifically provides otherwise, an Agent is not
obliged to review or check the adequacy, accuracy or completeness of any document it
forwards to another Party.
(d) If the Facility Agent receives notice from a Party referring to this Agreement, describing
a Default and stating that the circumstance described is a Default, it shall promptly notify
the Lenders.
(e) If an Agent is aware of the non-payment of any principal, interest, commitment fee or
other fee payable to a Finance Party (other than an Agent or a Mandated Lead Arranger)
under this Agreement it shall promptly notify the other Finance Parties.
(f) The Facility Agent shall promptly notify:
(i) the Lenders of any Default arising under Claus
e
22.
1
(
Non-payment
);
and
(ii) each Swingline Agent of:
(A) any assignments or transfers by a Lender pursuant to Clause 23
(
Changes to the Lenders
); and
(B) any changes to the Obligors pursuant to Clause 25 (
Changes to
the Obligors
).
by ABB (made no more frequently than once per calendar month), a list (which
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may be in electronic form) setting out the names of the Lenders as at the date such list
is provided and their respective Commitments and Swingline Commitments, and
the name of the credit contact at each Lender with access to the Debtdomain site in respect
of the Facility.
(h) Each Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
(i) Each Agent shall have only those duties, obligations and responsibilities
expressly specified in the Finance Documents to which it is expressed to be a party (and
no others shall be implied).
26.4
Role of the Mandated Lead Arrangers
Except as specifically provided in the Finance Documents, the Mandated Lead
Arrangers have no obligations of any kind to any other Party under or in connection with any
Finance Document.
26.5
No fiduciary duties
n
any Finance Documen
t
constitutes an Agent or a Mandated Lead
Arranger as a trustee or fiduciary of any other person.
(b) No Agent nor any Mandated Lead Arranger shall be bound to account to any
Lender for any sum or the profit element of any sum received by it for its own account.
26.6
Business with the Group
Each Agent and each Mandated Lead Arranger may accept deposits from, lend money
to and generally engage in any kind of banking or other business with any of the Group
Companies.
26.7
Rights and discretions of the Agents
(a) Each Agent may
(i) rely on any representation, communication, notice or document believed
by it to be genuine, correct and appropriately authorised;
(ii) rely on any statement made by a director, authorised signatory or
employee of any person regarding any matters which may reasonably be
assumed to be within his knowledge or within his power to verify;
(iii) assume that:
Lenders or any group of Lenders are duly given in accordance with
the terms of the Finance Documents; and
have not been revoked; and
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(iv) rely on a certificate from any person:
(A) as to any matter of fact or circumstance which might reasonably
be expected to be within the knowledge of that person; or
(B) to the effect that such person approves of any particular dealing,
transaction, step, action or thing,
as sufficient evidence that that is the case and, in the case of paragraph
(A) above, may assume the truth and accuracy of that certificate.
(b) Eac
h
Agent may assume (unless it has received notice to the contrary in its
capacity as agent for the Lenders) that:
arising under Clause 22.1 (
Non-payment
));
of Lenders has not been exercised; and
made on behalf of and with the consent and knowledge of all the
Obligors.
(c) Eac
h
Agent may engage and pay for the advice or services of any lawyers,
accountants, tax advisers, surveyors or other professional advisers or experts.
(d) Without prejudice to the generality of paragrap
h
(c
)
above or paragrap
h
(e)
below
,
eac
h
Agent may at any time engage and pay for the services of any lawyers
to act as independent counsel to the Agent (and so separate from any lawyers instructed
by the Lenders) if the Agent in its reasonable opinion deems this to be necessary.
(e) Each Agent may rely on the advice or services of any lawyers, accountants, tax advisers,
surveyors or other professional advisers or experts (whether obtained by the Agent or by
any other Party) and shall not be liable for any damages, costs or losses to any person,
any diminution in value or any liability whatsoever arising as a result of its so relying.
(f) The Facility Agent may disclose the identity of a Defaulting Lender to the other Finance
Parties and ABB and shall disclose the same upon the written request of ABB or the
Majority Lenders.
(g) Each Agent may act in relation to the Finance Documents through its officers,
employees and agents.
(h) Unless a Finance Document expressly provides otherwis
e
eac
h
Agent may
disclose to any other Party any information it reasonably believes it has received as agent
under this Agreement.
Agent or Mandated Lead Arranger is obliged to do or omit to do anything if
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it would or might in its reasonable opinion constitute a breach of law or
regulation or a breach of a fiduciary duty or duty of confidentiality.
(j) Notwithstanding any provision of any Finance Document to the contrary
,
no Agent is
obliged to expend or risk its own funds or otherwise incur an
y
financial liability in the
performance of its duties, obligations or responsibilities or the exercise of any right,
power, authority or discretion if it has grounds for believing the repayment of such
funds or adequate indemnity against, or security for, such risk or liability is not
reasonably assured to it.
26.8
Responsibility for documentation
No Agent nor any Mandated Lead Arranger is responsible or liable for:
(a) the adequacy, accuracy or completeness of any information (whether oral or written)
supplied by an Agent, a Mandated Lead Arranger, ABB, any Borrower or any other
person in or in connection with any Finance Document or the Information Package
or the transactions contemplated in the Finance Documents or any other
agreement, arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document;
(b) the legality, validity, effectiveness, adequacy or enforceability of any Finance Document
or any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document; or
(c) any determination as to whether any information provided or to be provided to any
Finance Party is non-public information the use of which may be regulated or prohibited
by applicable law or regulation relating to insider dealing or otherwise.
26.9
No duty to monitor
An Agent shall not be bound to enquire:
(a) whether or not any Default has occurred;
any Finance Document; or
26.10
Exclusion of liability
(a) Without limiting paragrap
h
(b
)
below (and without prejudice to any other
provision of any Finance Document excluding or limiting the liability o
f
an Agent),
no Agent will be liable for:
liability whatsoever arising as a result of taking or not taking any
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action under or in connection with any Finance Document, unless directly
caused by its negligence, wilful default or wilful misconduct;
(ii) exercising, or not exercising, any right, power, authority or discretion given to
it by, or in connection with, any Finance Document or any other agreement,
arrangement or document entered into, made or executed in anticipation of,
under or in connection with, any Finance Document, other than by reason
of its negligence, wilful default or wilful misconduct; or
(iii) without prejudice to the generality of paragraphs (i) and (ii) above, any damages,
costs or losses to any person, any diminution in value or any liability whatsoever
(but not including any claim based on the fraud of the Agent) arising as a result
of any act, event or circumstance not reasonably within its control, including
(in each case and without limitation) such damages, costs, losses, diminution
in value or liability arising as a result of: nationalisation, expropriation
or other governmental actions; any regulation, currency restriction, devaluation
or fluctuation; market conditions affecting the execution or settlement of
transactions or the value of assets (including any Disruption Event); breakdown,
failure or malfunction of any third party transport, telecommunications,
computer services or systems; natural disasters or acts of God; war, terrorism,
insurrection or revolution; or strikes or industrial action.
(b) No Party may take any proceedings against any officer, employee or agent of an Agent in
respect of any claim it might have against such Agent or in respect of any act or omission
of any kind by that officer, employee or agent in relation to any Finance Document and
any officer, employee or agent of such Agent may rely on this Clause.
(c) No Agent will (absent negligence, wilful default or wilful misconduct directly giving rise
to such liability) be liable for any delay (or any related consequences) in crediting an
account with an amount required under the Finance Documents to be paid by such Agent
if that 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 such Agent for that purpose.
(d) Nothing in this Agreement shall oblige the Facility Agent or any Mandated Lead
Arranger to carry out:
(i) any "know your customer" or other checks in relation to any person; or
(ii) or any check on the extent to which any transaction contemplated by this
Agreement might be unlawful for any Lender or for any Affiliate of any Lender,
on behalf of any Lender and each Lender confirms to the Facility Agent and the Mandated
Lead Arrangers that it is solely responsible for any such checks it is
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required to carry out and that it may not rely on any statement in relation to such checks
made by the Facility Agent or the Mandated Lead Arrangers.
(e) Without prejudice to any provision of any Finance Document excluding or limitin
g
a
n
Agent's liability, any liability o
f
a
n
Agent arising under or in connection with
any Finance Document shall be limited to the amount of actual loss which has been
suffered (as determined by reference to the date of default of the Agent or, if later, the
date on which the loss arises as a result of such default) but without reference to any
special conditions or circumstances known to the Agent at any time which increase the
amount of that loss. In no event shall an Agent be liable for any loss of profits, goodwill,
reputation, business opportunity or anticipated saving, or for special,
punitive, indirect or consequential damages, whether or not the Agent has been
advised of the possibility of such loss or damages.
26.11
Lenders' indemnity to the Agents
are then zero, to their Commitments immediately prior to their reduction to zero) severally
indemnify each Agent, within three Business Days of demand, against any cost, loss or liability
incurred by such Agent (otherwise than by reason of such Agent's negligence or wilful
misconduct) in acting as Agent under the Finance Documents (unless such Agent has been
reimbursed by ABB or the Borrowers pursuant to a Finance Document).
26.12
Resignation of an Agent
notice to the Lenders and ABB
provided that
such successor shall act (to the extent
relevant) out of an office in the following locations (each a "
Required
Location
"):
(i) in the case of the Facility Agent, London or, subjec
t
to the consent of ABB
(acting reasonably), a location within a Participating Member State;
(ii) in the case of the Dollar Swingline Agent, New York or, subject to the consent of
ABB (acting reasonably), another location within the United States; and
(iii) in the cas
e
of th
e
Euro Swingline Agent, London or, subject to the consent
of ABB (acting reasonably)
,
a location within a Participating Member State.
(b) Alternatively an Agent may resign by giving notice to the Lenders and ABB, in which
case the Majority Lenders may appoint a successor Agent which will act out of an office
in the relevant Required Location.
(c) If the Majority Lenders have not appointed a successor Agent in accordance with
paragraph (b) above within 30 days after notice of resignation was given, the resigning
Agent may appoint a successor Agent which will act out of an office in the relevant
Required Location.
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(d) A successor Agent may only be appointed with the prior consent of ABB (such
consent not to be unreasonably withheld or delayed).
(e) The retiring Agent shall, at its own cost, make available to the successor Agent
such documents and records and provide such assistance as the successor Agent may
reasonably request for the purposes of performing its functions as Agent under the
Finance Documents.
(f) Such Agent's resignation notice shall only take effect upon the appointment of
a successor as contemplated in paragraphs (b) and (c) above.
(g) Upon the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents (other than its
obligations under paragraph (e) above) but shall remain entitled to the benefit of Clause
15.
3
(
Indemnity to th
e
Facility Agent
) and this Claus
e
2
6
(and any agency fees for the
account of the retiring Agent shall cease to accrue from (and shall be payable on) that
date). Its successor and each of the other Parties shall have the same rights and obligations
amongst themselves as they would have had if such successor had been an original Party.
(h) The Facility Agent shall resign in accordance with paragraph (b) above (and, to the extent
applicable, shall use reasonable endeavours to appoint a successor Agent pursuant to
paragrap
h
(c
)
above) if on or after the date which is three months before the earliest
FATCA Application Date relating to any payment to the Facility Agent under the Finance
Documents, either:
(i) the Facility Agent fails to respond to a request under Claus
e
13.9 (
FAT CA
Information
) and ABB or a Lender reasonably believes that the Facility Agent
will not be (or will have ceased to be) a FATC A Exempt Party on or after that
FATCA Application Date;
(ii) the information supplied by the Facility Agent pursuant to Clause 13.9 (
FAT CA
Information
) indicates that the Facility Agent will not be (or will have ceased
to be) a FATCA Exempt Party on or after that FATCA Application Date; or
(iii) the Facility Agent notifies ABB and the Lenders that the Facility Agent wil
l
not
be (or will have ceased to be) a FATCA Exempt Party on or after that FATCA
Application Date;
and (in each case) ABB or a Lender reasonably believes that a Party will be required
to make a FATCA Deduction that would not be required if the Facility Agent were a
FATCA Exempt Party, and that Lender, by notice to the Facility Agent, requires it to
resign.
26.13
Replacement of an Agent
(a) After consultation with ABB, the Majority Lenders may, by giving 30 days'
notice to an Agent (or, at any time an Agent is an Impaired Agent, by giving any shorter
notice determined by the Majority Lenders) replace that Agent by appointing a successor
Agent acting out of an office in the relevant Required
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Location. A successor Agent may only be appointed with the prior consent of ABB
(such consent not to be unreasonably withheld or delayed).
(b) The retiring Agent shall (at its own cost if it is an Impaired Agent and otherwise at the
expense of the Lenders) make available to the successor Agent such documents and
records and provide such assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance Documents.
(c) The appointment of a successor Agent shall take effect on the date specified in the notice
from the Majority Lenders to the retiring Agent. As from that date, the retiring Agent
shall be discharged from any further obligation in respect of the Finance Documents but
shall remain entitled to the benefit of this Clause 26 (and any agency fees for the account
of the retiring Agent shall cease to accrue from (and shall be payable on) that date).
(d) Any successor Agent and each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if such successor had been an
original Party.
26.14
Confidentiality
(a) In acting as agent for the Finance Parties, each Agent shall be regarded as acting
through its agency division which shall be treated as a separate entity from any other of
its divisions or departments.
(b) If information is received by another division or department of an Agent, it may be treated
as confidential to that division or department and such Agent shall not be deemed to
have notice of it.
(c) Notwithstanding any other provision of any Finance Document to the contrary, no Agent
or Mandated Lead Arranger is obliged to disclose to any other person (i) any confidential
information or (ii) any other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach of a fiduciary duty.
26.15
Relationship with the Lenders
(a) Subject to Clause 23.10 (
Pro rata interest settlement
), each Agent may treat the
person shown in its records as Lender at the opening of business (in the place of the
relevant Agent's principal office as notified to the Finance Parties from time to time) as
the Lender acting through its Facility Office:
on that day; and
communication or make any decision or determination under any Finance
Document made or delivered on that day,
unless it has received not less than 5 Business Days' prior notice from that Lender
to the contrary in accordance with the terms of this Agreement.
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(b) Any Lender may by notice to the Facility Agent, appoint a person to receive on its behalf
all notices, communications, information and documents to be made or despatched to that
Lender under the Finance Documents. Such notice shall contain the address, fax number
and (where communication by electronic mail or other electronic means is permitted
under paragrap
h
(b
)
of Claus
e
31.1 (
Communications in writing
)) electronic mail
address and/or any other information required to enable th
e
transmissio
n
of
information by that means (and, in each case, the department or officer, if any, for
whose attention communication is to be made) and be treated as a notification of a
substitute address, fax number, electronic mail address (or such other information),
department and officer by that Lender for the purposes of Clause 31.2 (
Addresses
)
and paragraph (b) of Clause 31.1 (
Communications in writing
) and each Agent shall be
entitled to treat such person as the person entitled to receive all such notices,
communications, information and documents as though that person were that Lender.
26.16
Credit appraisal by the Lenders
on its behalf in connection with any Finance Document, each Lender confirms to each Agent and
each Mandated Lead Arranger that it has been, and will continue to be, solely responsible for
making its own independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each Group Company;
Document and any other agreement, arrangement or document entered into, made or
executed in anticipation of, under or i
n
connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that recourse, against
any Party or any of its respective assets under or in connection with any Finance
Document, the transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed in anticipation of,
under or in connection with any Finance Document; and
(d) the adequacy, accuracy or completeness of the Information Package and any other
information provided by an Agent, any other Party or by any other person under or in
connection with any Finance Document, a Mandated Lead Arranger the transactions
contemplated by an
y
Finance Document or any other agreement, arrangement or document
entered into
,
made or executed in anticipation of, under or in connection with any
Finance Document.
26.17
Deduction from amounts payable by an Agent
Agent may, after giving notice to that Party, deduct an amount not exceeding that amount
from any payment to that Party which such Agent would otherwise be obliged to make under the
Finance Documents and apply the amount deducted in or towards
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satisfaction of the amount owed. For the purposes of the Finance Documents that Party shall be
regarded as having received any amount so deducted.
26.18
Amounts paid in error
that such payment was an Erroneous Payment then the Party to whom that amount
was paid by the Agent shall on demand refund the same to the Agent together wit
h
(unless otherwise agreed by the Agent in its sole discretion) interest on that amount
from the date of payment to the date of receipt by the Agent, calculated by the Agent to
reflect its cost of funds.
(b) Neither:
(i) the obligations of any Party to the Agent; nor
(ii) the remedies of the Agent,
(whether arising under this Clause 26.18 or otherwise) which relate to an Erroneous
Payment will be affected by any act, omission
,
matter or thing (including, without
limitation, any obligation pursuant to which an Erroneous Payment is made) which, but
for this paragraph (b), would reduce, release or prejudice any such obligation or remedy
(whether or not known by the Agent or any other Party).
(c) All payments to be made by a Party to the Agent (whether made pursuant to this Clause
26.18 or otherwise) which relate to an Erroneous Payment shall be calculated and be
made without (and free and clear of any deduction for) set-off or counterclaim.
(d) In this Agreement, "Erroneous Payment" means a payment of an amount by the Agent to
another Party which the Agent determines (in its sole discretion) was made in error.
27.
CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
otherwise) in whatever manner it thinks fit;
repayment available to it or the extent, order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to its affairs (tax
or otherwise) or any computations in respect of Tax.
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28.
SHARING AMONG THE LENDERS
28.1
Payments to Lenders
If a Lender (a "
Recovering Lender
") receives or recovers any amount from ABB or a Borrower
other than in accordance with Clause 29 (
Payment Mechanics
) (a
"
Recovered Amount
") and applies that amount to a payment due under the Finance Documents
then:
,
notify details of the
receipt or recovery to the Facility Agent;
of the amount the Recovering Lender would have been paid had the receipt or recovery
been received or made by the Facility Agent and distributed in accordance with
Claus
e
29 (
Payment Mechanics
), without taking account of any Tax which would be
imposed on the Facility Agent in relation to the receipt, recovery or distribution; and
(c) the Recovering Lender shall
,
within three Business Days of demand by the Facility
Agent, pay to the Facility Agent an amount (the "
Sharing Payment
") equal to such
receipt or recovery less any amount which the Facility Agent determines may be
retained by the Recovering Lender as its share of any payment to be made, in
accordance with Clause 29.6 (
Partial payments
).
28.2
Redistribution of payments
relevant Borrower (as the case may be) and distribute it between the Finance Parties (other than
the Recovering Lender) (the "
Sharing Finance Parties
") in accordance with Clause 29.
6
(
Partial payments
) towards the obligations of that Obligor to the Sharing Finance Parties.
28.3
Recovering Lender's rights
Redistribution of payments
)
of a payment received by a Recovering Finance Party from an Obligor, as between the relevant
Obligor and the Recovering Finance Party, an amount of the Recovered Amount equal to
the Sharing Payment will be treated as not having been paid by that Obligor.
28.4
Reversal of redistribution
becomes repayable and is repaid by that Recovering Lender, then:
Facility Agent for the account of that Recovering Lender an amount equal to its share of
the Sharing Payment (together with an amount as is necessary to reimburse that
Recovering Lender for its proportion of any interest on the Sharing Payment which
that Recovering Lender is required to pay) (the "
Redistributed Amount
"); and
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(b) as between the relevant Obligor and each relevant Sharing Finance Party, an amount
equal to the relevant Redistributed Amount will be treated as not having been paid by that
Obligor.
28.5
Exceptions
not, after making any payment pursuant to this Clause, have a valid and
enforceable claim against ABB or the relevant Borrower (as the case may be).
(b) A Recovering Lender is not obliged to share with any other Finance Party any amount
which the Recovering Lender has received or recovered as a result of taking legal or
arbitration proceedings, if:
(i) it notified the other Lenders of the legal or arbitration proceedings; and
(ii) the other Lender had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably practicable
having received notice or did not take separate legal or arbitration
proceedings.
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SECTION 10
ADMINISTRATION
29.
PAYMENT MECHANICS
29.1
Payments to the Agents
(a) For the purpose of this Clause 29 a reference to the "
Relevant Agent
" means:
(i) in relation to payments under the Dollar Swingline Facility, the Dollar
Swingline Agent;
Swingline Agent; and
(iii) for all other payments, the Facility Agent.
(b) On each date on which a Borrower or a Lender is required to make a payment under a
Finance Document, such Borrower or, as the case may be, such Lender shall make the
same available to the Relevant Agent (unless a contrary indication appears in a
Finance Document) for value on the due date at the time and in such funds specified by
the Relevant Agent as being customary at the time for settlement of transactions in
the relevant currency in the place of payment.
(c) Payment shall be made to such account in the principal financial centre of the country of
that currency (or, in relation to Euro, in a principal financial centre in a Participating
Member State or London) with such bank as the Relevant Agent specifies.
29.2
Distributions by the Agents
shall, subject to Clause 29.3 (
Distributions to the Obligors
) and Clause 29.4 (
Clawback
and pre-
funding
) be made available by such Agent as soon as practicable after receipt to the Party entitled
to receive payment in accordance with this Agreement (in the case of a Lender, for the account of
its Facility Office), to such account as that Party may notify to the relevant Agent by not less than
5 Business Days' notice with a bank in the principal financial centre of the country of that currency
(or, in relation to Euro, in the principal financial centre of a Participating Member State or
London).
29.3
Distributions to the Obligors
or in accordance with Clause 30 (
Set-Off
)) apply any amount received by it for ABB or that
Borrower in or towards payment (on the date and in the currency and funds of receipt) of any
amount due from ABB or that Borrower (as the case may be) under the Finance Documents or in
or towards purchase of any amount of any currency to be so applied.
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29.4
Clawback and pre-funding
(a) Where a sum is to be paid to an Agent under the Finance Documents for another
Party, such Agent is not obliged to pay that sum to that other Party (or to enter into or
perform any related exchange contract) until it has been able to establish to its absolute
satisfaction that it has actually received that sum (and such Agent shall make such due
enquiry as a diligent agent would make in so establishing).
(b) If an Agent pays an amount to another Party and it proves to be the case that such Agent
had not actually received that amount, then the Party to whom that amount (or the
proceeds of any related exchange contract) was paid by such Agent shall on demand
refund the same to such Agent together with interest on that amount from the date of
payment to the date of receipt by such Agent, calculated by such Agent to reflect its
cost of funds.
(c) If an Agent has notified the Lenders that it is willing to make available amounts for the
account of a Borrower before receiving funds from the Lenders then if and to the extent
that an Agent does so but it proves to be the case that it does not then receive funds from
a Lender in respect of a sum which it paid to a Borrower:
(i) the Agent shall notify ABB of that Lender's identity, and the Borrower to whom
that sum was made available shall on demand refund it to the Agent; and
(ii) the Lender by whom those funds should have been made available shall on
demand pay to the Agent the amount (as certified by the Agent) which will
indemnify the Agent against any funding cost incurred by it as a result of paying
out that sum before receiving those funds from that Lender.
(d) In the event that a Lender fails to make its participation in an Advance available to the
Relevant Agent (as defined in Clause 29.1 (
Payments to the Agents
)) in accordance with
the terms of this Agreement, such Lender hereby indemnifies the Relevant Agent on
demand against all costs, losses and expenses that the Relevant Agent may incur as
a result of such failure (including, without limitation, where the Relevant Agent, at
its sole option, makes arrangements to make available to the relevant Borrower an amount
equal to said participation).
(e) For the purposes of paragrap
h
(d
)
of this Claus
e
29.4, if a Lender makes its
participation available to the Relevant Agent after 3.00 p.m. (London time) or, in the case
of a Dollar Swingline Advance, 3.00 p.m. (New Yor k time) on the due date, such
participation shall be deemed to have been made available on the Business Day
immediately succeeding the said due date.
29.5
Impaired Agents
(a)
(i) If, at any time, an Agent becomes an Impaired Agent, an Obligor or a Lender
which is required to make a payment under the Finance
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Documents to that Agent in accordance with Clause 29.1 (
Payments to
the
Agents
) may (or shall, in the case of a payment by a Lender if paragrap
h
(ii
)
below applies) instead pay that amount direct to the required recipient
or (except where paragrap
h
(ii
)
below applies) pay that amount to an interest-
bearing account held with an Acceptable Bank in relation to which no Insolvency
Event has occurred and is continuing, in the name of the Obligor or the Lender
making the payment and designated as a trust account for the benefit of the
Party or Parties beneficially entitled to that payment under the Finance
Documents. In each case such payments must be made on the due date for
payment under the Finance Documents.
(ii) This paragraph (ii) applies in relation to a payment by a Lender if ABB has
notified that Lender in writing on or before the dat
e
falling 3 Business Day
prior to the date for payment (or 1 Business Day prior to the date for payment
in respect of any Swingline Advance), that the relevant Agent is an Impaired
Agent and that this paragraph (ii) applies to such payment.
(b) All interest accrued on the amount standing to the credit of the trust account shall be
for the benefit of the beneficiaries of that trust account
pro rata
to their respective
entitlements.
(c) A Party which has made a payment in accordance with this Clause 29.5 shall be discharged
of the relevant payment obligation under the Finance Documents and shall not take
any credit risk with respect to the amounts standing to the credit of the trust account.
(d) Promptly upon the appointment of a successor Agent in accordance with Clause
26.1
2
(
Resignation of an Agent
) o
r
26.1
3
(
Replacement of an Agent
), each Party which
has made a payment to a trust account in accordance with this Clause 29.5 shall give all
requisite instructions to the bank with whom the trust account is held to transfer the
amount (together with any accrued interest) to the successor Agent for distribution in
accordance with Clause 29.2 (
Distributions
by the Agents
).
(e) In this Clause 29.5 "
Acceptable Bank
" means a bank which has a rating for its long-term
unsecured and non credit-enhanced debt obligations of A- or higher by Standard & Poor's
Rating Services or A3 or higher by Moody's Investor Services Limited.
becoming an Impaired Agent.
29.6
Partial payments
(a) If an Agent receives a payment that is insufficient to discharge all the amounts then due
and payable by ABB or the Borrowers under the Finance Documents,
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such Agent shall apply that payment towards the obligations of the Obligors under
the Finance Documents in the following order:
(i)
first
, in or towards paymen
t
pro rat
a
of any unpaid fees, costs and
expenses of the Agents under the Finance Documents;
(ii)
secondly
, in or towards paymen
t
pro rat
a
of any accrued interest or
commission 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) The Facility Agent shall, if so directed by the Majority Lenders, vary the order
set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by ABB or
any Borrower.
29.7
No set-off by Obligors
All payments to be made by ABB or the Borrowers under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
29.8
Business Days
(a) Any payment which is due to be made on a day that is not a Business Day shall
be made on 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 or an Unpaid Sum under
this Agreement interest is payable on the principal at the rate payable on the original due
date.
29.9
Currency of account
(a) Subject to paragraph
s
(b
)
t
o
(e
)
below, the Base Currency is the currency of
account and payment for any sum due from ABB or the Borrowers under any Finance
Document.
(b) A repayment of an Advance or Unpaid Sum or a part of an Advance or Unpaid Sum shall
be made in the currency in which that Advance or Unpaid Sum is denominated on its
due date.
(c) Each payment of interest shall be made in the currency in which the sum in respect
of which the interest is payable was denominated when that interest accrued.
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(d) Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than the Base Currency
shall be paid in that other currency.
29.10
Change of currency
(a) Unless otherwise prohibited by law, if more than one currency or currency unit are at the
same time recognised by the central bank of any country as the lawful currency of that
country, then:
(i) any reference in the Finance Documents to, and any obligations arising under the
Finance Documents in, the currency of that country shall be translated into, or
paid in, the currency or currency unit of that country designated by the Facility
Agent (after consultation with ABB); and
(ii) any translation from one currency or currency unit to another shall be at the
official rate of exchange recognised by the central bank for the conversion
of that currency or currency unit into the other, rounded up or down by the
Facility Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement will, to the extent the
Facility Agent (acting reasonably and after consultation with ABB) specifies to be
necessary, be amended to comply with any generally accepted conventions and market
practice in the Relevant Market and otherwise to reflect the change in currency.
30.
SET-OFF
Without prejudice to the rights at law of each Finance Party, while an Event of Default is
continuing, a Finance Party may set off any matured obligation due from ABB or the Borrowers
under the Finance Documents (to the extent beneficially owned by that Finance Party) against
any matured obligation owed by that Finance Party to ABB or the Borrowers, 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.
31.
NOTICES
31.1
Communications in writing
(a) Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be made by fax
or letter.
(b) With the consent of the relevant Lender, the Agents may serve notices and other
information on a Lender by way of electronic mail.
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31.2
Addresses
(a) The address, electronic mail address (if any) and fax number (if any) (and the
department or officer, if any, for whose attention the communication is to be made) of
each Party for any communication or document to be made or delivered under or
in connection with the Finance Documents is:
(i) in the case of the Original Obligors, that identified i
n
Part I
V
(
The
Original Obligors
) of Schedule 1, with a copy to ABB;
(ii) in the case of ABB, that identified in Part IV (
The Original Obligors
) of
Schedule 1;
(iii) in the case of an Additional Borrower, that identified in the Borrower
Accession Letter relating to that Additional Borrower, with a copy to ABB;
(iv) in the case of each Lender, that notified in writing to the Facility Agent
on or prior to the date on which it becomes a Party; and
(v) in the case of an Agent, that identified in paragraph (b) below,
or any substitute address, electronic mail address, fax number or department or officer as
the Party may notify to the Facility Agent (or the Facility Agent may notify to the other
Parties, if a change is made by the Facility Agent) by not less than 5 Business Days' notice.
(b)
(i) the Facility Agent:
Citibank Europe plc, UK Branch
EME
A
Loans Agency
5
t
h
Floor Citigroup Centre
Mail drop CGC2 05-65
25 Canada Square
London E14 5LB
United Kingdom
Electronic mail addresses: karen.hall@citi.com/ alasdair.garnham@citi.com
(ii) the Dollar Swingline Agent:
Citibank, N.A.
Global Loans
1615 Brett Road, Ops III
New Castle, DE 19720
GLAgentOfficeOps@citi.com
Fax: +1 212 994 0961
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(iii) the Euro Swingline Agent:
Citibank Europe plc, UK Branch
EME
A
Loans Agency
5
t
h
Floor Citigroup Centre
Mail drop CGC2 05-65
25 Canada Square
London E14 5LB
United Kingdom
Electronic mail addresses: karen.hall@citi.com / alasdair.garnham@citi.com
31.3
Delivery
(a) Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be effective:
(i) if by way of fax, when received in legible form; or
the case of domestic mail) or 10 (in the case of air mail) Business Days after
being deposited in the post postage prepaid in an envelope addressed to it
at that address; or
(iii) if by way of electronic mail, when received.
and, if a particular department or officer is specified as part of its address details provided
under Claus
e
31.
2
(
Addresses
), if addressed to that department or officer
,
provided
tha
t
if receipt is on a day that is not a working day in the country of receipt or is
at a time outside normal business hours, such communication shall be effective on
the next succeeding working day.
(b) Any communication or document to be made or delivered to an Agent will be effective
only when actually received by such Agent and then only if it is expressly marked
for the attention of the department or officer identified in Clause 31.2 (
Addresses
) (or
any substitute department or officer as the relevant Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the Facility Agent.
31.4
Notification of address and fax number
Promptly upon changing its address or fax number, each Agent shall notify the other Parties.
31.5
Electronic communication
with the Finance Documents may be made by electronic mail or other electronic means to
the extent that those two Parties agree that, unless and until notified to
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the contrary, this is to be an accepted form of communication and if those two Parties:
(i) notify each other in writing of their electronic mail address and/or any other
information required to enable the sending and receipt of information by
that means; and
(ii) notify each other of any change to their address or any other such
information supplied by them by not less than five Business Days' notice.
(b) Any electronic communication made between those two Parties will be effective only when
actually received during a Business Day in readable form and in the case of any electronic
communication made by a Party to an Agent only if it is addressed in such a manner as
such Agent shall specify for this purpose.
(c) Any electronic communication which becomes effective, i
n
accordance with paragraph
(b) above, after 5.00 p.m. in the place of receipt shall be deemed only to become effective
on the following Business Day.
(d) Any reference in a Finance Document to a communication being sent or received
shall be construed to include that communication being made available in accordance with
this Clause 31.5.
31.6
Communication when an Agent is an Impaired Agent
If an Agent is an Impaired Agent the Parties may, instead of communicating with each
other through that Agent, communicate with each other directly and (while that Agent is an
Impaired Agent) all the provisions of the Finance Documents which require communications
to be made or notices to be given to or by that Agent shall be varied so that communications may
be made and notices given to or by the relevant Parties directly. This provision shall not operate
after a replacement Agent has been appointed.
31.7
English language
(a) Any notice given under or in connection with any Finance Document must be
in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Facility Agent, accompanied
by a certified English translation.
32.
CALCULATION AND CERTIFICATES
32.1
Accounts
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document,
the entries made in the accounts maintained by a Finance Party are
prima
facie
evidence of the
matters to which they relate.
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32.2
Certificates and Determinations
Except where otherwise indicated, any certification or determination by a Finance Party
of a rate or amount under any Finance Document is, in the absence of manifest error, conclusive
evidence of the matters to which it relates.
32.3
Day count convention
Any interest, commission or fee accruing under a Finance Document will accrue from
day to day and is calculated on the basis of the actual number of days elapsed and a year of
360 days or, in any case where the practice in the Relevant Market differs, in accordance with
that market practice.
33.
PART IAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes illegal, invalid
or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions nor th
e
legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be affected or impaired.
34.
REMEDIES AND WAIVERS
any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single
or partial exercise of any right or remedy prevent any further or other exercise or the exercise
of any other right or remedy. The rights and remedies provided in this Agreement are cumulative
and not exclusive of any rights or remedies provided by law.
35.
AMENDMENTS AND WAIVERS
35.1
Required consents
(a) Subject to Clause 35.2 (
Exceptions
) any term of the Finance Documents may be amended
or waived only with the consent of the Majority Lenders and ABB and any such
amendment or waiver will be binding on all Parties.
(b) The Facility Agent may effect (and is hereby so authorised by each Finance Party),
on behalf of any Finance Party, any amendment or waiver permitted by this Clause.
35.2
All Lender matters
Subject to Clause 35.
7
(
Changes to the reference rates
) an amendment or waiver of
any term of any Finance Document that has the effect of changing or which relates to:
(a) the definition of "
Majority Lenders
" in Clause 1.1 (
Definitions
);
Documents;
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(c) a reduction in the Margin or the amount of any payment of principal, interest,
fees or commission payable;
(d) an increase in any Commitment or Swingline Commitment other than an
increase made in accordance with Clause 2.2 (
Increase of Commitments
);
(e) any change to the Obligors other than in accordance with Clause 25 (
Changes
to the Obligors
);
(f) any provision which expressly requires the consent of all the Lenders;
(g) Clause 2.4 (
Finance Parties' rights and obligations
), Clause 4.
2
(
Further
conditions
precedent
), Clause 5.1 (
delivery of a Utilisation Request
), Clause 8.1 (
Lender Illegality
),
Clause 8.3 (
Mandatory Prepayment on Change of Control
), Clause 8.4 (
Mandatory
Prepayment on Sanctions Misrepresentation or Anti-
Bribery and Corruption
Misrepresentation
), Clause 23 (
Changes to the
Lenders
), Clause 25 (
Changes to the
Obligors
), Clause 28 (
Sharing among the
Lenders
), this Clause 35, Clause 38
(
Governing Law
) or Clause 39 (
Enforcement
);
e
18
(
Guarantee and Indemnity
),
shall not be made without the prior consent of all the Lenders.
35.3
Other exceptions
Mandated Lead Arranger (each in their capacity as such) may not be effected without the
consent of such Agent, such Mandated Lead Arranger.
35.4
Restricted Lenders
e
8.
4
(
Mandatory Prepayment on Sanctions Misrepresentation
)
and/or Clause
19.14 (
Sanctions
) and/or Clause 21.9 (
Economic Sanctions
) (together, the "
Sanctions
Provisions
") shall only apply or, as applicable, be given to the extent that it would not result in
(i) any violation of, conflict with or liability under E
U
Regulation (EC) 2271/96 or (ii) a
violation or conflict with section 7 foreign trade rules (AWV) (
Außenwirtschaftsverordnung
)
(in connection with section 4 paragraph 1 a no. 3 foreign trade law (AWG)
(
Außenwirtschaftsgesetz
)) or a similar anti-boycott statute. In connection with any
amendment, waiver, determination or direction relating to any part of a Sanctions Provision of
which a Lender does not have the benefit (and where the Lender has notified the Facility Agent
to this effect), the Commitments of that Lender will be excluded for the purpose of determining
whether the consent of the Majority Lenders has been obtained or whether the determination or
direction by the Majority Lenders has been made.
35.5
Disenfranchisement of Defaulting Lenders
Majority Lenders or whether any given percentage (including, for the avoidance of doubt,
unanimity) of the Total Commitments has been obtained to approve
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any request for a consent, waiver, amendment or other vote under the Finance
Documents:
of its Available Commitments; and
Lender fails to respond to a request for a waiver or amendment within the time
period specified by ABB and (unless it is an Impaired Agent) the Facility Agent.
e
35.5, the Facility Agent may assume that the
following Lenders are Defaulting Lenders:
Defaulting Lender (and each Lender shall notify the Facility Agent and ABB
promptly after becoming a Defaulting Lender);
(ii) any Lender in relation to which it is aware that any of the events or
circumstances referred to in paragraphs (a), (b) or (c) of the definition of
"Defaulting Lender" has occurred,
unless it has received notice to the contrary from the Lender concerned (together with any
supporting evidence reasonably requested by the Facility Agent) or the Facility Agent is
otherwise aware that the Lender has ceased to be a Defaulting Lender.
35.6
Replacement of a Defaulting Lender
Lender, by giving 5 Business Days' prior written notice to the Facility Agent and such
Lender:
(i) replace such Lender and any Revolving Facility Affiliate or Swingline Affiliate
of that Lender by requiring such Lender and any such Revolving Facility
Affiliate or Swingline Affiliate to (and to the extent permitted by law that
Lender or Revolving Facility Affiliate or Swingline Affiliate shall) transfer
pursuant to Clause 23 (
Changes to the
Lenders
) all (and, save to the extent
provided for in this Clause, not part only) of its rights and obligations under this
Agreement (including in respect of any Separate Advances); or
(ii) require such Lender and/or its Revolving Facility Affiliate or Swingline Affiliate
to (and to the extent permitted by law such Lender or Revolving Facility Affiliate
of Swingline Affiliate shall) transfer pursuant to Clause 23 (
Changes to the
Lenders
) all (and, save to the extent provided for in this Clause, not part only)
of the undrawn Commitment and/or Swingline Commitment of such Lender
and/or its Revolving Facility Affiliate or Swingline Affiliate,
to a Lender or other bank (a "
Replacement Lender
") selected by ABB, and which
confirms its willingness to assume and does assume all the obligations or
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all the relevant obligations of the transferring Lender, Revolving Facility Affiliate
o
r
Swingline Affiliate (including the assumption of participations or unfunded
participations (as the case may be) of the transferor on the same basis as the transferor)
for a purchase price in cash payable at the time of transfer equal to the outstanding
principal amount of such Lender's or Revolving Facility Affiliate's or Swingline Affiliate's
participation in the outstanding Advances and all accrued interest (to the extent that
the Facility Agent has not given a notification under Clause 23.10 (
Pro rata interest
settlement
), Break Costs and other amounts payable in relation thereto under the Finance
Documents. Where a Lender to be replaced pursuant to this paragraph is a Swingline
Lender that is the Swingline Affiliate of another Lender, the rights and obligations
required to be transferred pursuant to this Clause by that other Lender in its capacity as
the Revolving Facility Affiliate of that Swingline Lender may, at the option of ABB,
be limited to those necessary for the Commitments of the replacement Lender (or its
Affiliate) to be at least equal to each of the Swingline Commitments to be
transferred to such replacement Lender pursuant to this Clause.
be subject to the following conditions:
(i) ABB shall have no right to replace an Agent;
have any obligation to find a Replacement Lender;
to in paragraph (a) above; and
to the Replacement Lender any of the fees received by the Defaulting Lender
pursuant to the Finance Documents.
35.7
Changes to the reference rates
t
to Claus
e
35.
3
(
Other exceptions
), if a Published Rate Replacement
Event has occurred in relation to any Published Rate for a currency which can be
selected for an Advance, any amendment or waiver which relates to:
(i) providing for the use of a Replacement Reference Rate in relation to that
currency in place of that Published Rate; and
(ii)
that Replacement Reference Rate;
calculation of interest under this Agreement (including, without
limitation, any consequential changes required to enable that
Replacement Reference Rate to be used for the purposes of this
Agreement);
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(C) implementing market conventions applicable to that
Replacement Reference Rate;
provisions for that Replacement Reference Rate; or
(E) adjusting the pricing to reduce or eliminate, to the extent
reasonably practicable, any transfer of economic value from one Party to
another as a result of the application of that Replacement Reference Rate
(and if any adjustment or method for calculating any adjustment has
been formally designated, nominated or recommended by the Relevant
Nominating Body, the adjustment shall be determined on the basis of that
designation, nomination or recommendation),
may be made with the consent of the Facility Agent (acting on the instructions of the
Majority Lenders) and ABB.
(b) If any Lender fails to respond to a request for an amendment or waiver described in
paragraph (a) above withi
n
te
n
(10) Business Days (or such longer time period in
relation to any request which ABB and the Facility Agent may agree) of that request being
made:
(i) its Commitments shall not be included for the purpose of calculating the Total
Commitments under the Facility when ascertaining whether any relevant
percentage of Total Commitments has been obtained to approve that request; and
(ii) its status as a Lender shall be disregarded for the purpose of ascertaining whether
the agreement of any specified group o
f
Lenders has been obtained to
approve that request.
36.
BAIL-IN
36.1
Contractual recognition of bail-in
arrangement or understanding between the Parties, each Party acknowledges and accepts
that any liability of any Party to any other Party under or in connection with the Finance
Documents may be subject to Bail-In Action by the relevant Resolution Authority and
acknowledges and accepts to be bound by the effect of:
(a) any Bail-In Action in relation to any such liability, including (without
limitation):
amount due (including any accrued but unpaid interest) in respect of any such
liability;
instruments of ownership that may be issued to, or conferred on, it; and
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(iii) a cancellation of any such liability; and
effect to any Bail-In Action in relation to any such liability.
36.2
Bail-In definitions
In this Clause 36:
"
Article 55 BRRD
" means Article 55 of Directive 2014/59/EU establishing a
framework for the recovery and resolution of credit institutions and investment firms.
"
Bail-In Action
" means the exercise of any Write-down and Conversion Powers.
"
Bail-In Legislation
" means:
time implements, Article 55 BRRD, the relevant implementing law or regulation
as described in the EU Bail-In Legislation Schedule from time to time;
(b) in relation to the United Kingdom, the UK Bail-In Legislation; and
Kingdom, any analogous law or regulation fro
m
time to time which requires contractual
recognition of any Write-down and Conversion Powers contained in that law or
regulation.
"
EEA Member Country
" means any member state of the European Union, Iceland,
Liechtenstein and Norway.
"
EU Bail-In Legislation Schedule
" means the document described as such and published
by the Loan Market Association (or any successor person) from time to time.
"
Resolution Authority
" means any body which has authority to exercise any Write- down and
Conversion Powers.
"
UK Bail-In Legislation
" means Part I of the United Kingdom Banking Act 2009 and any other
law or regulation applicable in the United Kingdom relating to the resolution of unsound or failing
banks, investment firms or other financial institutions or their affiliates (otherwise than
through liquidation, administration or other insolvency proceedings).
"
Write-down and Conversion Powers
" means:
Schedule from tim
e
to time, the powers described as such in relation to that Bail-In
Legislation in the EU Bail-In Legislation Schedule;
to cancel, transfer or dilute shares issued by a person that is a bank or investment firm or
other financial institution or affiliate of a bank, investment
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firm or other financial institution, to cancel, reduce, modify or change the form of a
liability of such a person or any contract or instrument unde
r
which that liability arises,
to convert all or part of that liability into shares, securities or obligations of that person
or any other person, to provide that any such contract or instrument is to have effect as
if a right had been exercised under it o
r
to suspend any obligation in respect of that
liability or any of the powers under that UK Bail-In Legislation that are related to or
ancillary to any of those powers;
and
(c) in relation to any other applicable Bail-In Legislation:
(i) any powers under that Bail-In Legislation to cancel, transfer or dilute shares
issued by a person that is a bank or investment firm or other financial
institution or affiliate of a bank, investment firm or other financial institution,
to cancel, reduce, modify or change the form of a liability of such a person or any
contract or instrument under which that liability arises, to convert all or part of that
liability into shares, securities or obligations of that person or any other person,
to provide that any such contract or instrumen
t
is to have effect as if a right
had been exercised under it or to suspend any obligation in respect of that liability
or any of the powers under that Bail-In Legislation that are related to or ancillary
to any of those powers; and
(ii) any similar or analogous powers under that Bail-In Legislation.
37.
COUNTERPARTS
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.
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SECTION 11
GOVERNING LAW AND ENFORCEMENT
38.
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection
with it are governed by English law.
39.
ENFORCEMENT
39.1
Jurisdiction
(a) The courts of England sitting in London have exclusive jurisdiction t
o
decide any dispute
arising out of or in connection with this Agreement (including a dispute relating to the
existence, validity or termination of this Agreement or any non-contractual obligations
arising out of or in connection with this Agreement) (a "
Dispute
").
(b) The Parties agree that the courts of Englan
d
sitting in Londo
n
are the most appropriate
and convenient courts to settle Disputes and accordingly no Party will argue to the
contrary.
(c) This Claus
e
3
9
is for the benefit of the Finance Parties only. As
a
result, no Finance
Party shall be prevented from taking proceedings relating to a Dispute ("
Proceedings
")
in any other courts with jurisdiction.
(d) If ABB Finance B.V. is represented by an attorney or attorneys in connection with the
signing and/or executio
n
and/or delivery of this Agreement or any agreement or
document referred to herein or made pursuant hereto and the relevant power or powers
of attorney is or are expressed to be governed by the laws of a particular jurisdiction,
it is hereby expressly acknowledged and accepted by the other parties hereto that such
laws shall govern the existence and extent of such attorney's or attorneys' authority
and the effects of the exercise thereof.
(e) ABB and each Borrower incorporated in a jurisdiction other than England and Wales
agree that the documents which start any Proceedings in England and any other
documents required to be served in relation to those Proceedings may be served on ABB
Limited, at Daresbury Park, Daresbury,
Wa
rrington WA4 4BT, Cheshire, United
Kingdom or, if different, its registered office, with a copy to ABB. If the appointment of
the person mentioned in this paragraph (e) ceases to be effective, ABB and each
Borrower shall immediately appoint another person in England to accept service of
process on its behalf in England. If ABB or any Borrower fails to do so (and such failure
continues for a period of not less than fourteen days), the Facility Agent shall be entitled
to appoint such a person by notice to ABB or the relevant Borrower (as the case may be).
Nothing contained herein shall restrict the right to serve process in any other manner
allowed by law.
THIS AGREEMEN
T
has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
PART I
THE ORIGINAL LENDERS
Name Commitment ($)
Citibank, N.A., London Branch 105,694,444.50
Bank of America Europe Designated Activity Company 105,694,444.50
Barclays Bank PLC 105,694,444.50
BNP Paribas (Suisse) SA 105,694,444.50
CA Indosuez (Switzerland) SA 105,694,444.50
Credit Suisse (Switzerland) Ltd. 105,694,444.50
Deutsche Bank Luxembourg S.A. 105,694,444.50
Goldman Sachs Bank USA 105,694,444.50
HSBC Bank plc 105,694,444.50
ING Bank N.V., Amsterdam, Lancy/Geneva Branch 105,694,444.50
JPMorgan Chase Bank, N.A., London Branch 105,694,444.50
Nordea Bank Abp, filial i Sverige 105,694,444.50
Banco Santander, S.A. 105,694,444.50
Standard Chartered Bank 105,694,444.50
Skandinaviska Enskilda Banken AB (publ) 105,694,444.50
Société Générale S.A. Frankfurt Branch 105,694,444.50
UBS Switzerland AG 105,694,444.00
UniCredit Bank AG 105,694,444.00
China Construction Bank Corporation, Beijing, Swiss Branch
Zurich
97,500,000.00
Total
...............................................................................................
2,000,000,000
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PART II
THE DOLLAR SWINGLINE LENDERS
Dollar Swingline
Commitment ($)
Citibank, N.A. 39,633,333.39
Bank of America N.A. 39,633,333.33
Barclays Bank PLC 39,633,333.33
BNP Paribas (Suisse) SA 39,633,333.33
CA Indosuez (Switzerland) SA 39,633,333.33
Credit Suisse AG, Cayman Islands Branch 39,633,333.33
Deutsche Bank AG New York Branch 39,633,333.33
Goldman Sachs Bank USA 39,633,333.33
HSBC Bank plc 39,633,333.33
ING Bank N.V., Amsterdam, Lancy/Geneva Branch 39,633,333.33
JPMorgan Chase Bank, N.A. 39,633,333.33
Nordea Bank Abp, filial i Sverige 39,633,333.33
Banco Santander, S.A. 39,633,333.33
Standard Chartered Bank 39,633,333.33
Skandinaviska Enskilda Banken AB (publ) 39,633,333.33
Société Générale 39,633,333.33
UBS AG, Stamford Branch 39,633,333.33
UniCredit Bank AG 39,633,333.33
China Construction Bank Corporation, Beijing, Swiss Branch
Zurich
36,600,000.00
Total
..............................................................................................
750,000,000
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Name
PART III
THE EURO SWINGLINE LENDERS
Euro Swingline
Commitment ($)
Citibank, N.A., London Branch 39,633,333.39
Bank of America Europe Designated Activity Company 39,633,333.33
Barclays Bank PLC 39,633,333.33
BNP Paribas (Suisse) SA 39,633,333.33
CA Indosuez (Switzerland) SA 39,633,333.33
Credit Suisse (Switzerland) Ltd. 39,633,333.33
Deutsche Bank Luxembourg S.A. 39,633,333.33
Goldman Sachs Bank USA 39,633,333.33
HSBC Bank plc 39,633,333.33
ING Bank N.V., Amsterdam, Lancy/Geneva Branch 39,633,333.33
JPMorgan Chase Bank, N.A., London Branch 39,633,333.33
Nordea Bank Abp, filial i Sverige 39,633,333.33
Banco Santander, S.A. 39,633,333.33
Standard Chartered Bank 39,633,333.33
Skandinaviska Enskilda Banken AB (publ) 39,633,333.33
Société Générale S.A. Frankfurt Branch 39,633,333.33
UBS Switzerland AG 39,633,333.33
UniCredit Bank AG 39,633,333.33
China Construction Bank Corporation, Beijing, Swiss Branch
Zurich
36,600,000.00
Total
..............................................................................................
750,000,000
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Name
PART IV
THE ORIGINAL OBLIGORS
Jurisdiction of
incorporation
ABB Finance B.V. George Hintzenweg 81 Netherlands
3068 AX Rotterdam
The Netherlands
Attention: Business Administration
E-mail: NL-
coe.corporatetreasury.euc@abb.com
(with CC to grouptreasury@ch.abb.com)
Copy: Legal Department
Fax: + 41 43 317 7992
ABB Treasury Center
(USA), Inc.
U.S.A.
Attention: Treasurer
E-mail:
US-
amccorporatetreasury@abb.com (with
CC
to grouptreasury@ch.abb.com)
Copy: Legal Department
Fax: + 41 43 317 7992
Jurisdiction of
incorporation
ABB Ltd Affolternstrasse 44 Switzerland
CH-8050 Zurich
Switzerland
Attention: Group Treasurer
Email:
grouptreasury@ch
.abb.com
Copy: Legal Department
Fax: +41 43 317 7992
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Name of Original
Borrower Address
305 Gregson Drive Cary, North Carolina
27511
Delaware, United
States of America
Name of Guarantor Address
SCHEDULE 2
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT
1
1.
Corporate Documents
(a) A copy of the constitutional documents of each Obligor (being, in the case of
ABB Finance B.V. , a copy of the articles of association (
statuten
) and deed of
incorporation (
oprichtingsakte
), as well as an extract (
uittreksel
) from the Dutch
Commercial Register (
Handelsregister
)).
(b) A copy of a resolution of the board of directors of each Obligor (if applicable) or, in the
case of ABB Finance B.V., a copy of a resolution of the board of managing directors
(
directie
) or, in the case of ABB, a copy of an excerpt of the minutes of, or a circular
resolution of, a meeting of the board of directors of ABB:
(i) approving the terms of, and the transactions contemplated by, the Finance
Documents to which it is a party and resolving that it execute the Finance
Documents to which it is a party;
(ii) (other than in relation to ABB) authorising a specified person or persons to
execute the Finance Documents to which it is a party on its behalf; and
(iii) (other than in relation to ABB) authorising a specified person or persons, on its
behalf, to sign and/or despatch all documents and notices (including, if
relevant, any Utilisation Request) to be signed and/or despatched by it under
or in connection with the Finance Documents to which it is a party.
(c) A specimen of the signature of each person authorised by the resolution referred
to in paragraph (b) above.
(d)
A
certificate of each Obligor (signed without personal liability by an authorised
signatory of each Obligor) confirming that borrowing or guaranteeing, as appropriate,
the Total Commitments would not cause any borrowing, guaranteeing or similar
limit binding on that relevant Obligor to be exceeded.
(e) A copy of a good standing certificate (including verification of tax status) with respect to
ABB Treasury Center (USA), Inc., issued as of a recent date by the Secretary of State
or other appropriate official of its jurisdiction of incorporation.
(f) A certificate of an authorised signatory of the relevant Obligor, certifying without
personal liability that each copy document relating to it specified in
1
It is acknowledged and agreed that the Facility Agent has confirmed to ABB on 16 December 2019 that the
Facility Agent has received all such documents in form and substance satisfactory to it.
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paragraph 1(a) - (d) of this Schedule 2 is correct, complete and in full force and effect as
at a date no earlier than the date of this Agreement.
2.
Legal opinions
(a) A legal opinion of Clifford Chance LLP, legal advisers to the Mandated Lead Arrangers
and the Agents in England, substantially in the form distributed to the Original Lenders
prior to signing this Agreement.
(b) A legal opinion of Clifford Chance LL
P,
Amsterdam, legal advisers to the Mandated
Lead Arranger and the Agents in the Netherlands in the form approved by the
Facility Agent.
(c) A legal opinion of Freshfields Bruckhaus Deringer US LL
P,
United States legal advisers
to ABB Treasury Center (USA), Inc. in the form approved by the Facility Agent.
(d) A legal opinion of Niederer Kraft Frey Ltd, legal advisers to the Mandated Lead Arrangers
and the Agents in Switzerland in the form approved by the Facility Agent.
3.
Other documents and evidence
h
(e
)
of Claus
e
39.1
(
Jurisdiction
) has accepted its appointment.
(c) The Original Financial Statements of each Obligor.
Clause 12 (
Fees
) and Clause 17 (
Costs and Expenses
) have been paid or will be paid by
the first Utilisation Date.
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PART II
ADDITIONAL BORROWER CONDITIONS PRECEDENT
1. A Borrower Accession Letter, duly executed by the Additional Borrower and ABB.
2. A copy of the constitutional documents of the Additional Borrower.
3. A copy of a resolution of the board of directors, or other suitable authority, of the
Additional Borrower:
(a) approving the terms of, and the transactions contemplated by, the Borrower
Accession Letter and the Finance Documents and resolving that it execute the Borrower
Accession Letter;
(b) authorising a specified person or persons to execute the Borrower Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign and/or despatch
all other documents and notices (including any Utilisation Request) to be signed and/or
despatched by it under or in connection with the Finance Documents.
4. If applicable or required under applicable law, a copy of the resolution of the board of supervisory
directors of the Additional Borrower approving the resolutions of the board of managing directors
referred to under 3 above.
5. If applicable or required under applicable law, a copy of a resolution of the Additional Borrower
stating that the shareholders resolve and approve the entering into, and the terms and conditions
of, this Agreement.
6. If applicable, a copy of (i) the request for advice from each works council, or central or Europea
n
works council with jurisdiction over the transactions contemplated by this Agreement and (ii)
the positive advice from such works council which contains no condition, which if complied
with, could result in a breach of any of any of the Finance Documents.
7. A specimen of the signature of each person authorised by the resolution referred to in
paragraph 3 above.
8. A certificate of the Additional Borrower (signed by two duly authorised signatories)
confirming that borrowing the Total Commitments would not cause any borrowing limit
binding on it to be exceeded.
9. A copy of a good standing certificate (including verification of tax status) with respect to any
Additional Borrower whose jurisdiction of incorporation is a state of the United States of America
or the District of Columbia, issued as of a recent date by the Secretary of State or other appropriate
official of such Additional Borrower's jurisdiction of incorporation or organisation.
10.
A
certificate of an authorised signatory of the Additional Borrower certifying that each copy
document listed in this Schedule 2 is correct, complete and in full force and effect as at a date no
earlier than the date of the Borrower Accession Letter.
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11. A copy of any other Authorisation or other document, opinion or assurance which the Facility
Agent reasonably considers to be necessary in connection with the entry into and performance of
the transactions contemplated by the Borrower Accession Letter or for the validity and
enforceability of any Finance Document.
12. If available, the latest audited financial statements of the Additional Borrower.
13. A legal opinion of Clifford Chance LLP, legal advisers to the Lenders, Mandated Lead
Arrangers and Facility Agent in England.
14. If the Additional Borrower is incorporated in a jurisdiction other tha
n
England and
Wales, a legal opinion of the legal advisers to the Lenders, Mandated Lead Arrangers and Facility
Agent in the jurisdiction in which the Additional Borrower is incorporated.
15. If the proposed Additional Borrower is incorporated in a jurisdiction other than England and Wales,
evidence that the process agent specified in paragraph (e
)
of Claus
e
39.1 (
Jurisdiction
), if not
a Borrower, has accepted its appointment in relation to the proposed Additional Borrower.
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SCHEDULE 3
UTILISATION REQUEST
2
From: [Name of Borrower]
To: [Agent]
Copied to: [Facility Agent]*
Dated
:
[•]
Dear Sirs
ABB Ltd - $2,000,000,000 Multicurrency Revolving Credit Agreement
dated [•] (the "Credit Agreement")
1. Words and expressions defined in the Credit Agreement have the same meaning when
used herein unless given a different meaning in this Utilisation Request.
2.
We
wish to borrow a(n) [Advance/Dollar Swingline Advance/Euro Swingline
Advance] on the following terms:
Proposed Utilisation Date: [•] (or, if that is not a Business Day, the
next Business Day)
Currency of Advance: [•]
Amount: [•]
Interest Period: [•]
3. We confirm that each condition specified in Clause 4.2 (
Further conditions precedent
)
is satisfied on the date of this Utilisation Request.
4. The proceeds of this Advance should be credited to [account].
5. This Utilisation Request is irrevocable.
Yours faithfully
...................................................................
authorised signatory for
[Name of Borrower]
2
[
WARNING NOTE: Please seek Dutch legal advice (i) until the interpretation of the term "public" (as
referred to in
Article 4.1(1) of the Capital Requirements Regulation (EU/575/2013)) has been published by
the competent authority, if the
share of a Lender in any utilisation requested by a Dutch borrower is less
than EUR 100,000 (or the foreign currency
equivalent thereof) and (ii) as soon as the interpretation of the
term "public" has been published by the competent authority,
if the Lender is considered to be part of the
public on the basis of such interpretation.
]
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SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To: [•] as Facility Agent
From: [Existing Lender] (the "
Existing Lender
") and [New Lender] (the "
New
Lender
")
Dated:
ABB Ltd - $2,000,000,000 Multicurrency Revolving Credit Agreement
dated [•] (the "Credit Agreement")
1. Words and expressions defined in the Credit Agreement have the same meaning when
used herein.
2. We refer to Clause 23.5 (
Procedure for transfer
) of the Credit Agreement:
(a) The Existing Lender and the New Lender agree to the Existing Lender and the New
Lender transferring by novation all or part of the Existing Lender's
[Commitment/Swingline Commitment], rights and obligations referred to in the Schedule
in accordance with Clause 23.5 (
Procedure for transfer
).
(b) The proposed Transfer Date is [•].
the New Lender for the purposes of Clause 31.2 (
Addresses
) are set out in the Schedule.
3. The New Lender confirms, for the benefit of the Facility Agent and without liability to any
Obligor, that it is [a Qualifying Lender falling within paragraph[s] [•] of the definition of
Qualifying Lender]/[not a Qualifying Lender].
4. The New Lender confirms that it is a Qualifying Bank.
5. The New Lender expressly acknowledges the limitations on the Existing Lender's
obligations set out in paragrap
h
(c
)
of Claus
e
23.
4
(
Limitation of responsibility of
Existing
Lenders
).
6. This Transfer Certificate and any non-contractual obligations arising out of or in
connection with it are governed by English law.
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THE SCHEDULE
3
Commitment/Swingline Commitment/rights and obligations to be transferred
[
insert relevant details of Commitment, Dollar Swingline Commitment and/or Euro Swingline
Commitment
]
[
Facility Office address, fax number and attention details for notices and account details for
payments
]
[Existing Lender] [New Lender]
By
:
............................................................ By
:
.............................................................
This Transfer Certificate is accepted by the Facility Agent and the Transfer Date is confirmed as [•].
[Facility Agent]
By:
3
[
WARNING NOTE: Please seek Dutch legal advice (i) until the interpretation of the term "public" (as
referred to in
Article 4.1(1) of the Capital Requirements Regulation (EU/575/2013)) has been published by
the competent authority, if the
participation of a Lender in a Facility/Commitment requested by a Dutch
borrower is less than EUR 100,000 (or the
foreign currency equivalent thereof) and (ii) as soon as the
interpretation of the term "public" has been published by
the competent authority, if the Lender is
considered to be part of the public on the basis of such interpretation.
]
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SCHEDULE 5
TIMETABLES
Advances in
Advances in other
Delivery of a duly
completed Utilisation
Request (Clause 5.1
(
Delivery of a
Utilisation Request
)
Advances in Euro
10 a.m. London
time, 3 Business
Days prior to the
proposed Utilisation
Date
Dollars
11 a.m. London
time, 3 Business
Days prior to the
proposed Utilisation
Date
currencies
11 a.m. London
time, 3 Business
Days prior to the
proposed Utilisation
Date
Facility Agent
determines (in
relation to a
Utilisation) the Base
Currency Amount of the
Advance, if
required under
Clause 5.4 (
Lenders'
participation
)
11 a.m. London
time, 3 Business
Days prior to the
proposed Utilisation
Date
N/A 11 a.m. London
time, 3 Business
Days prior to the
proposed Utilisation
Date
Facility Agent notifies
the Lenders of the
Advance in accordance
with
Clause 5.4 (
Lenders'
participation
)
Delivery of a duly
completed Utilisation
Request (Clause 5.5
(
Delivery of a
Utilisation Request
for a Swingline
Advance
))
Swingline Agent
notifies each Swingline
Lender of the amount,
currency and the Base
Currency Amount of
each Swingline
Advance (paragraph (c)
of Clause 5.8
(
Swingline Lenders'
Participation
))
Promptly upon
receipt from the
relevant Borrower
9.30 a.m. London time
on the proposed
Utilisation Date
Promptly upon
receipt from the
relevant Borrower
Promptly upon
receipt from the
relevant Borrower
11 a.m. New York time
on the proposed
Utilisation Date
Promptly upon
receipt from the
relevant Borrower
Promptly upon
receipt from the
relevant Borrower
N/A
N/A
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Advances in Euro
Advances in
Dollars
Advances in other
currencies
Facility Agent receives
a
notification from a
Lender under Clause
6.2 (
Unavailability
of a currency
)
Facility Agent gives
notice in accordance
with Clause 6.2
(
Unavailability of a
currency
)
N/A N/A Quotation Day as of
9 a.m. London time
N/A N/A Upon receipt of
notification from the
Lenders
EURIBOR is fixed Quotation Day as of
11.00 a.m. Brussels
time
N/A N/A
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SCHEDULE 6
FORM OF BORROWER ACCESSION LETTER
To: [•] as Facility Agent
From: [Subsidiary] and ABB Ltd
Dated
:
[•]
Dear Sirs
ABB Ltd - $2,000,000,000 Multicurrency Revolving Credit Agreement
dated [•] (the "Credit Agreement")
1.
We
refer to the Credit Agreement. This is a Borrower Accession Letter. Terms defined in the
Credit Agreement have the same meaning in this Borrower Accession Letter unless given a
different meaning in this Borrower Accession Letter.
2. [Subsidiary] agrees to become an Additional Borrower and to be bound by the terms of the Credit
Agreement as an Additional Borrower pursuant to Clause 25.2 (
Additional
Borrowers
) of the
Credit Agreement.
3. [Subsidiary] is a company duly incorporated under the laws of [name of relevant
jurisdiction].
4. [Subsidiary] is a wholly owned Subsidiary of ABB Ltd.
5. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
6. This Borrower Accession Letter and any non-contractual obligations arising out of or
in connection with it are governed by English law.
ABB LTD [Subsidiary]
By
:
............................................................ By
:
.............................................................
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SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [•] as Facility Agent
From: [resigning Borrower] and ABB Ltd
Dated
:
[•]
Dear Sirs
ABB Ltd - $2,000,000,000 Multicurrency Revolving Credit Agreement
dated [•] (the "Credit Agreement")
1. We refer to the Credit Agreement. This is a Resignation Letter. Terms defined in the Credit
Agreement have the same meaning in this Resignation Letter unless given a different meaning
in this Resignation Letter.
2. Pursuant to Claus
e
25.
3
(
Resignation of a Borrower
), we request that [resigning
Borrower] be released from its obligations as a Borrower under the Credit Agreement.
3. We confirm that:
(a) no Default would result from the acceptance of this request; and
(b) [resigning Borrower] is under no actual or contingent liability under the Credit
Agreement.
4. This Resignation Letter and any non-contractual obligations arising out of or in
connection with it are governed by English law.
ABB LTD [Subsidiary]
By
:
............................................................ By
:
.............................................................
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SCHEDULE 8
MATERIAL SUBSIDIARIES
Company Name Jurisdiction ABB Interest
(%)
ABB Treasury Center (USA), Inc. United States 100
ABB (China) Ltd. China 100
ABB Holdings, Inc. United States 100
ABB Beteiligungs- und
Verwaltungsges . mbH
ABB Finance B.V. Netherlands 100
ABB Finance (USA), Inc. United States 100
ABB Motors and Mechanical Inc United States 100
B&R Holding GmbH Austria 100
ABB Installation Products Inc United States 100
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Germany 100
SCHEDULE 9
FORM OF INCREASE CONFIRMATION
To: [ ] as Facility Agent, and ABB Ltd, for and on behalf of each Obligor
From: [the Increase Lender] (the "
Increase Lender
")
Dated:
ABB Ltd - $2,000,000,000 Multicurrency Revolving Credit Agreement
dated [•] (the "Credit Agreement")
1. We refer to the Credit Agreement. This is an Increase Confirmation. Terms defined in the Credit
Agreemen
t
have the same meaning in this Increase Confirmation unless given a different
meaning in this Increase Confirmation.
2. We refer to Clause 2.2 (
Increase of Commitments
).
3. The Increase Lender agrees to assume and will assume all of the obligations
corresponding to the [Commitment/Swingline Commitment] specified in the Schedule (the
"
Relevant Commitment
") as if it were an Original Lender under the Credit Agreement.
4. The proposed date on which the increase in relation to the Increase Lender and the
Relevant Commitment is to take effect (the "
Increase Date
") is [ ].
5. On the Increase Date, the Increase Lender becomes party to the Finance Documents as
a Lender.
6. The Facility Office and address, fax number and attention details for notices to the
Increase Lender for the purposes of Clause 31.2 (
Addresses
) are set out in the Schedule.
7. The Increase Lender confirms, for the benefit of the Facility Agent and without liability to any
Obligor, that it is [a Qualifying Lender falling within paragraph[s] [•] of the definition of
Qualifying Lender]/[not a Qualifying Lender].
8. The Increase Lender confirms that it is a Qualifying Bank
9. The Increase Lender expressly acknowledges the limitations on the Lenders' obligations
referred to in paragraph (g) of Clause 2.2 (
Increase of Commitments
).
10. This Increase Confirmation 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 this Increase
Confirmation.
11. This Increase Confirmation and any non-contractual obligations arising out of or in
connection with it are governed by English law.
12. This Credit Agreement has been entered into on the date stated at the beginning of this
Credit Agreement.
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THE SCHEDULE
Relevant Commitment/rights and obligations to be assumed by the Increase Lender
[
insert relevant details of Commitment, Dollar Swingline Commitment and/or Euro Swingline
Commitment
]
[
Facility Office address, fax number and attention details for notices and account details for
payments
]
[Increase Lender]
By
:
.............................................................
This Increase Confirmation is accepted as an Increase Confirmation for the purposes of the Credit
Agreement by the Facility Agent and the Increase Date is confirmed as
[
].
Facility Agent
By
:
.............................................................
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SCHEDULE 10
REFERENCE RATE TERMS
PART IA
DOLLARS – TERM RATE ADVANCES
CURRENCY AND CATEGORY OF ADVANCE/UNPAID SUM/ACCRUAL:
Dollars
Term Rate Advances and accrual of commission or fees.
Definitions
Additional Business Days:
Any day other than:
Financial Markets Association (or any successor
organisation) recommends that the fixed income
departments of its members be closed for the entire
day for purposes of trading in US Government
securities.
Break Costs:
The amount (if any) by which:
(a) the interest (excluding the Margin) which a Lender
should have received for the period from the date of
receipt of all or any part of its participation in the
relevant Advance or Unpaid Sum to the last day of the
current Interest Period in respect of that Advance or
Unpaid Sum, had the principal amount or Unpaid
Sum received been paid on the last day of that Interest
Period;
exceeds:
obtain by placing an amount equal to the principal
amount or Unpaid Sum received by it on deposit with
a leading bank for a period starting on the Business
Day following receipt or recovery and ending on the last
day of the current Interest Period.
Business Day Conventions
(definition of "Month" and
Clause 10(e)):
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(a)
If any period is expressed to accrue by reference
to a Month or any number of Months then, in
respect of the last Month of that period:
(i) subject to paragrap
h
(iii
)
below, if the
numerically corresponding day is not a
Business Day, that period shall end on
the next Business Day in that calendar
month in which that period is to end if there
is one, or if there is not, on the immediately
preceding Business Day;
(ii) if there is no numerically corresponding day in
the calendar month in which that period is to
end, that period shall end on the last Business
Day in that calendar month; and
(iii) if an Interest Period begins 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
that Interest Period is to end.
(b) If an Interest Period would otherwise end on a day
which is not a Business Day, that Interest Period will
instead end on the next Business Day in that calendar
month (if there is one) or the preceding Business Day
(if there is not).
Fallback Interest Period:
One month.
Market Disruption Rate:
The percentage rate per annum which is the aggregate
of:
Primary Term Rate:
(a) The applicable Screen Rate as of the Quotation Time
of that Ter m Rate Advance and for a period equal in
length to the Interest Period of that Term Rate Advance.
(b) If n
o
Screen Rate is available for the Interest Period
of a Term Rate Advance, the Interest Period of the
Advance shall (if it is longer than the applicable
Fallback Interest Period) be shortened to the
applicable Fallback Interest Period and the applicable
Term Reference Rate shall be determined pursuant to
the definition of "Term Reference Rate".
(c) If paragraph (b) above applies but no Screen Rate
is available for the Interest Period of that Advance
and it is not possible to calculate the Term Reference
Rate fo
r
the Fallback Interest Period, the applicable
Term Reference Rate shall
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be the Historic Primary Term Rate for that
Advance.
(d) If paragraph (c) above applies but it is not possible
to calculate the Historic Primary Term Rate then:
(i) there shall be no Term Reference Rate for that
Advance for that Interest Period and Clause 9.1
(
Calculation of interest –
Term Rate Advance
) will not apply to that
Advance for that Interest Period; and
(ii) that Advance shall be a "Compounded Rate
Advance" for that Interest Period and Clause
9.2 (
Calculation of interest –
Compounded
Rate Advance
) shall apply to that Advance for
that Interest Period.
If the aggregate of the Primary Term Rate and the Term
Reference Rate CAS or Fallback CAS (as applicable) is less
than zero, the aggregate of the Primary Term Rate and the Term
Reference Rate CAS or Fallback CAS (as applicable) shall be
deemed to be zero.
Quotation Day:
(a) Subject to paragraph (b) below, two Additional
Business Days before the first day of the relevant
Interest Period (unless market practice differs in the
relevant syndicated loan market, in which case the
Quotation Day will be determined by the Facility Agent
in accordance with that market practice (and if
quotations would normally be given on more than one
day, the Quotation Day will be the last of those days)).
(b) If the Term Reference Rate is, or is based on, the Central
Bank Rate, two Additional Business Days before the
first day of the relevant Interest Period.
Quotation Time:
The Quotation Day.
Relevant Market:
The market for overnight cash borrowing collateralised
Reporting Time:
Close of business in London on the Quotation Day for
Published Rate Contingency
Period:
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30 days.
Screen Rate:
The Term SOF
R
reference rate administered by CME
Group Benchmark Administration Limited (or any other person
which takes over the administration of that rate) for the
relevant period published by CME Group Benchmark
Administration Limited (or any other person which takes over
the publication of that rate).
Term Reference Rate CAS:
The credit adjustment spread specified below for a tenor of the
same length as the relevant Interest Period of the relevant
Advance:
Interest Period Applicable credit
adjustment spread
1 month or less 0.10 per cent. per annum
3 months or less but
greater than 1 month
6 months or but
��
lessgreater than 3 months
Interest Periods
0.25 per cent. per annum
Periods capable of selection as
Interest Periods (paragraph (b) of
Clause 10 (
Selection of Interest
Periods
)):
One, three or six months or some other period which has been
agreed between the relevant Borrower (or ABB on its behalf)
and the Facility Agent (acting on the instructions of all
the Lenders
)
provided tha
t
for an Interest Period shorter
than one Month, the Screen Rate applicable for such Interest
Period will be Screen Rate for one month.
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0.15 per cent. per annum
(a) If any period is expressed to accrue by
reference to a Month or any number of Months then,
in respect of the last Month of that period:
(i) subject to paragrap
h
(iii) below, if the
numerically corresponding day is not a
Business Day, that period shall end on the
next Business Day in that calendar month in
which that period is to end if there is one, or
if there is not, on the immediately preceding
Business Day;
(ii) if there is no numerically
corresponding day in the calendar month
in which that period is to end, that period
shall end on the last Business Day in
that calendar month; and
(iii) if an Interest Period begins 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
that Interest Period is to end.
(b) If an Interest Period would otherwise end on a day
which is not a Business Day, that Interest Period will
instead end on the next Business Day in that
calendar month (if there is one) or the preceding
Business Day (if there is not).
Central Bank Rate:
(a) The short-term interest rate target set by the US
Federal Open Market Committee as published by the
Federal Reserve Bank of New York from time to
time; or
arithmetic mean of:
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PART IB
DOLLARS – COMPOUNDED RATE ADVA NCES
CURRENCY AND CATEGORY OF ADVANCE/UNPAID SUM:
Dollars –
Compounded Rate Advances
Definitions
Additional Business Days:
An RFR Banking Day.
Break Costs:
Not applicable.
Business Day Conventions
(definition of "Month" and
Clause 10(e)):
(i) the upper bound of the short-term
interest rate target range set by the US
Federal Open Market Committee and
published by the Federal Reserve Bank of
New York; and
(ii) the lower bound of that target range.
In relation to the Central Bank Rate prevailing at close of
business on any RFR Banking Day, arithmetic mean
(calculated by the Facility Agent) of the Central Bank Rate
Spreads for the five most immediately preceding RFR
Banking Days for which the RFR is available, excluding the
RFR Banking Days with the highest and lowest Central Bank
Rate Spreads.
For this purpose,
Central Bank Rate Spread
means, in
relation to any RFR Banking Day
,
the difference (expressed
as a percentage rate per annum) calculated by the Facility
Agent (or by any other Financ
e
Party which agrees t
o
do so
in place of the Facility Agent) between:
(a) the RFR for that RFR Banking Day; and
(b) the Central Bank Rate prevailing a
t
close of
business on that RFR Banking Day.
Daily Rate:
The "
Daily Rate
" for any RFR Banking Day is:
(a) the RFR for that RFR Banking Day; or
(b) if the RFR is not available for that RFR
Banking Day, the percentage rate per annum
which is the aggregate of:
Banking Day; and
(ii) the applicable Central Bank Rate
Adjustment; or
Bank Rate for that RFR Banking Day is not
available, the percentage rate per annum which is the
aggregate of:
(i) the most recent Central Bank Rate for a day
which is no more than two RFR Banking
Days before that RFR Banking
Day; and
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Central Bank Rate
Adjustment:
(ii) the applicable Central Bank Rate
Adjustment,
aggregate of that rate and the Baseline CAS or Fallback
CAS (as applicable) is less than zero, the Daily Rate shall
be deemed to be such a rate that the aggregate of the Daily
Rate and the Baseline CAS or Fallback CAS (as applicable)
is zero.
Fallback CAS:
The Term Reference Rate CAS applicable to Term
Rate Advances in Dollars.
Lookback Period:
Five RFR Banking Days.
Market Disruption Rate:
The percentage rate per annum of:
Interest Period of the relevant Advance; and
(b) the applicable Fallback CAS.
Relevant Market:
The market for overnight cash borrowing
collateralised by US Government securities.
Reporting Day:
The Business Day which follows the day which is the
Lookback Perio
d
prior to the last day of the Interest
Period.
Reporting Time:
Close of business in London on the Reporting Day for
the relevant Advance.
RFR:
The secured overnight financing rate (SOFR)
administered by the Federal Reserve Bank of New York
(or any other person which takes over the administration
of that rate) published by the Federal Reserve Bank of New
Yor k (or any other person which takes over the publication
of that rate).
RFR Banking Day:
Any day other than:
(a) a Saturday or Sunday; and
(b) a day on which the Securities Industry and
Financial Markets Association (or any
successor organisation) recommends that the fixed
income departments of its members be closed for
the entire day for purposes of trading in US
Government securities.
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Published Rate Contingency
Period:
Interest Periods
Periods capable of selection as
Interest Periods (paragraph (b) of
Selection of
Interest Periods
))
30 days.
One, three or six months or some other period which has
been agreed between the relevant Borrower (or ABB on
its behalf) and the Facility Agent (acting on the instructions
of all the Lenders).
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PART II
STERLING
CURRENCY:
Sterling.
Definitions
Additional Business Days:
An RFR Banking Day.
Baseline CAS:
The credit adjustment spread specified below for a
tenor of the same length as the relevant Interest Period of the
relevant Advance:
Interest Period Applicable credit
adjustment spread
1 month or less 0.0326 per cent. per
annum
3 months or less but
greater than 1 month
6 months or less but
greater than 3 months
0.2766 per cent. per
annum
(a) If any period is expressed to accrue by reference to a
Month or any number of Months then, in respect of
the last Month of that period:
(i) subject to paragrap
h
(iii
)
below, i
f
the
numerically corresponding day is not a
Business Day, that period shall end on the
next Business Day in that calendar month in
which that period is to end if there is one, or
if there is not, on the immediately preceding
Business Day;
(ii) if there is no numerically corresponding day in
the calendar month in which that period is to
end, that period shall end on the last Business
Day in that calendar month; and
(iii) if an Interest Period begins 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
that Interest Period is to end.
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0.1193 per cent. per
annum
Break Costs:
Not applicable.
Business Day Conventions
(definition of "Month" and
Clause 10(e)):
(b) If an Interest Period would otherwise end on a day
which is not a Business Day, that Interest Period will
instead end on the next Business Day in that calendar
month (if there is one) or the preceding Business Day
(if there is not).
Central Bank Rate:
The Bank of England's Bank Rate as published by the
Central Bank Rate Adjustment:
In relation to the Central Bank Rate prevailing at close
of business on any RFR Banking Day, arithmetic mean
(calculated by the Facility Agent) of the Central Bank Rate
Spreads for the five most immediately preceding RFR
Banking Days for which the RFR is available, excluding
the RFR Banking Days with the highest and lowest Central
Bank Rate Spreads.
For this purpose
,
Central Bank Rate Sprea
d
means, in
relation to any RFR Banking Day
,
the difference (expressed
as a percentage rat
e
per annum) calculated by the Facility
Agen
t
(or b
y
any other Finance Party which agrees t
o
do so
in place of the Facility Agent) between:
(a) the RFR for that RFR Banking Day; and
(b) the Central Bank Rate prevailing a
t
close of
business on that RFR Banking Day.
Daily Rate:
The "
Daily Rate
" for any RFR Banking Day is:
(a) the RFR for that RFR Banking Day; or
(b) if the RFR is not available for that RFR Banking
Day, the percentage rate per annum which is the
aggregate of:
Banking Day; and
(ii) the applicable Central Bank Rate
Adjustment; or
h
(b
)
above applies but the Central
Bank Rat
e
fo
r
that RFR Banking Day is not
available, the percentage rate per annum which is the
aggregate of:
y
which is no more tha
n
fiv
e
RFR
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Banking Days before that RFR Banking Day;
and
(ii) the applicable Central Bank Rate
Adjustment,
o
fou
r
decimal places
,
if the
aggregate of that rate and the Baseline CAS or Fallback CAS
(as applicable) is less than zero, the Daily Rate shall be
deemed to be such a rate that the aggregate of the Daily Rate
and the Baseline CAS or Fallback CAS (as applicable) is zero.
Lookback Period:
Five RFR Banking Days.
Market Disruption Rate:
The percentage rate per annum of:
(a) the Cumulative Compounded RFR Rate for the
Interest Period of the relevant Advance; and
(b) the applicable Baseline CAS.
Relevant Market:
The sterling wholesale market.
Reporting Day:
The day which is the Lookback Period prior to the last day of
the Interest Period or, if that day is not a Business Day, the
immediately following Business Day.
Reporting Time:
Close of business in London on the Reporting Day for
the relevant Advance.
RFR:
The SONIA (sterling overnight index average)
reference rate displayed on the relevant screen of any
authorised distributor of that reference rate.
RFR Banking Day:
A day (other than a Saturday or Sunday) on which
banks are open for general business in London.
Published Rate Contingency
Period:
Interest Periods
Periods capable of selection as
Interest Periods (paragraph (b) of
Clause 10 (
Selection of Interest
Periods
))
One, three or six months or some other period which has
been agreed between the relevant Borrower (or ABB on
its behalf) and the Facility Agent (acting on the instructions of
all the Lenders).
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30 days.
PART III
SWISS FRANCS
CURRENCY:
Swiss francs.
Definitions
Additional Business Days:
An RFR Banking Day.
Baseline CAS:
The credit adjustment spread specified below for a
tenor of the same length as the relevant Interest Period of the
relevant Advance:
Interest Period Applicable credit
adjustment spread
1 month or less -0.0571 per cent. per
annum
3 months or less but
greater than 1 month
6 months or less but
greater than 3 months
0.0741 per cent. per
annum
(a) If any period is expressed to accrue by reference to a
Month or any number of Months then, in respect of
the last Month of that period:
(i) subject to paragrap
h
(iii
)
below, if the
numerically corresponding day is not a
Business Day, that period shall end on the
next Business Day in that calendar month in
which that period is to end if there is one, or
if there is not, on the immediately preceding
Business Day;
(ii) if there is no numerically corresponding day in
the calendar month in which that period is to
end, that period shall end on the last Business
Day in that calendar month; and
(iii) if an Interest Period begins 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
that Interest Period is to end.
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0.0031 per cent. per
annum
Break Costs:
Not applicable.
Business Day Conventions
(definition of "Month" and
Clause 10(e)):
(b) If an Interest Period would otherwise end on a day
which is not a Business Day, that Interest Perio
d
will
instead end on the next Business Day in that calendar
month (if there is one) or the preceding Business Day
(if there is not).
Central Bank Rate:
The policy rate of the Swiss National Bank as published
Central Bank Rate Adjustment:
In relation to the Central Bank Rate prevailing at close
of business on any RFR Banking Day, arithmetic mean
(calculated by the Facility Agent) of the Central Bank Rate
Spreads for the five most immediately preceding RFR Banking
Days for which the RFR is available, excluding the RFR
Banking Days with the highest and lowest Central Bank Rate
Spreads.
For this purpose
,
Central Bank Rate Spread
means, in
relation to any RFR Banking Day
,
the difference (expressed
as a percentage rat
e
per annum) calculated by the Facility
Agen
t
(or by any other Finance Party which agrees t
o
do so
in place of the Facility Agent) between:
(a) the RFR for that RFR Banking Day; and
(b) the Central Bank Rate prevailing a
t
close of
business on that RFR Banking Day.
Daily Rate:
The "
Daily Rate
" for any RFR Banking Day is:
(a) the RFR for that RFR Banking Day; or
(b) if the RFR is not available for that RFR Banking
Day, the percentage rate per annum which is the
aggregate of:
(i) the Central Bank Rate for that RFR
Banking Day; and
(ii) the applicable Central Bank Rate
Adjustment; or
h
(b
)
above applies but the Central
Bank Rat
e
fo
r
that RFR Banking Day is not
available, the percentage rate per annum which is the
aggregate of:
(i) the most recent Central Bank Rate for a da
y
which is no more tha
n
fiv
e
RFR
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Banking Days before that RFR Banking Day;
and
(ii) the applicable Central Bank Rate
Adjustment,
o
fou
r
decimal places
,
if the
aggregate of that rate and the Baseline CAS or Fallback CAS
(as applicable) is less than zero, the Daily Rate shall be
deemed to be such a rate that the aggregate of the Daily Rate
and the Baseline CAS or Fallback CAS (as applicable) is zero.
Lookback Period:
Five RFR Banking Days.
Market Disruption Rate:
The percentage rate per annum of:
Interest Period of the relevant Advance; and
(b) the applicable Baseline CAS.
Relevant Market:
The Swiss francs overnight repo market.
Reporting Day:
The day which is the Lookback Period prior to the last
day of the Interest Period or, if that day is not a Business
Day, the immediately following Business Day.
Reporting Time:
Close of business in London on the Reporting Day for
the relevant Advance.
RFR:
The SARON (Swiss Average Rate Overnight)
reference rate administered by SIX (or any other person which
takes over the administration of that rate) as at the close of
trading on the SIX Swiss Exchange on the relevant day
displayed on page SARON.S of the Thomson Reuters
screen under the heading CLSFIX.
RFR Banking Day:
A day (other than a Saturday or Sunday) on which banks
are open for the settlement of payments and foreign
exchange transactions in Zurich.
Published Rate Contingency
Period:
Interest Periods
Periods capable of selection as
Interest Periods (paragraph (b) of
One, three or six months or some other period which has
been agreed between the relevant Borrower (or
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30 days.
Clause 10 (
Selection of Interest
Periods
))
ABB on its behalf) and the Facility Agent (acting on the
instructions of all the Lenders).
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PART IV
EURO
CURRENCY:
Euro.
Definitions
Additional Business Days:
A TARGET Day.
Break Costs:
The amount (if any) by which:
(a) the interes
t
(excluding the Margin) which a Lender
should have received for the period from the date
of receipt of all or any part of its participation in the
relevant Advance or Unpaid Sum to the last day of the
current Interest Period in respect of that Advance or
Unpaid Sum, had the principal amount or Unpaid
Sum received been paid on the last day of that Interest
Period;
exceeds:
obtain by placing an amount equal to the
principal amount or Unpaid Sum received by it on
deposit with a leadin
g
bank for a period starting
on the Business Day following receipt or recovery and
ending on the last day of the current Interest Period.
Business Day Conventions
(definition of "Month" and
Clause 10(e)):
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(a) If any period is expressed to accrue by
reference to a Month or any number of Months
then, in respect of the last Month of that period:
(i) subject to paragrap
h
(iii
)
below, if the
numerically corresponding day is not a
Business Day, that period shall end on
the next Business Day in that calendar
month in which that period is to end if
there is one, or if there is not, on the
immediately preceding Business Day;
(ii) if there is no numerically corresponding
day in the calendar month in which that
period is to end, that period shall end on
the last Business Day in that calendar
month; and
(iii) if an Interest Period begins 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
that Interest Period is to end.
(b) If an Interest Period would otherwise end on a day
which is not a Business Day, that Interest Period will
instead end on the next Business Day in that calendar
month (if there is one) or the preceding Business Day
(if there is not).
Primary Term Rate:
(a) The applicable Screen Rate as of the Specified Time
on the Quotation Day for Euro and for a period equal
in length to the Interest Period of that Term Rate
Advance; or
(b) if no Screen Rate is available for the Interest Period
of that Advance, the Interpolated Screen Rate for that
Term Rate Advance
If any such rate is less than zero, the Primary Term Rate shall
be deemed to be zero.
Quotation Day:
Two TARGET Days before the first day of the relevant Interest
Period (unless market practice differs in the Relevant
Market, in which case the Quotation Da
y
will be determined by
the Facilit
y
Agent in accordance with market practice in the
Relevant Market (and if
quotations would normally be given on more than one day, the
Quotation Day will be the last of those days)).
Quotation Time:
Quotation Day 11:00 a.m. (Brussels time).
Relevant Market:
The European interbank market.
Term Reference Rate CAS:
Not applicable.
Screen Rate:
The euro interbank offered rate administered by the
European Money Markets Institute (or any other person
which takes over the administration of that rate) for the
relevant period displayed (before any correction, recalculation
EURIBOR01 of the Thomson Reuters screen.
Interest Periods
Periods capable of selection as
Interest Periods (paragraph (b) of
Clause 10 (
Selection of Interest
Periods
))
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One, three or six months or som
e
other period which
has been agreed between the relevant Borrower (or
ABB on its behalf) and the Facility Agent (acting on
the instructions of all the Lenders).
SCHEDULE 11
DAILY NON-CUMULATIVE COMPOUNDED RFR RATE
The "
Daily Non-Cumulative Compounded RFR Rate
" for any RFR Banking Day "i" during an Interest
Period for a Compounded Rate Advance is the percentage rate per annum (without rounding, to the extent
reasonably practicable for the Finance Party performing the calculation, taking into account the capabilities
of any software used for that purpose) calculated as set out below:
where:
"
UCCDR
i
" means the Unannualised Cumulative Compounded Daily Rate for that RFR Banking
Day "
i
";
"
UCCDR
i-1
"
means, in relation to that RFR Banking Day "
i
", the Unannualised Cumulative
Compounded Daily Rate for the immediately preceding RFR Banking Day (if any) during that Interest
Period;
"
dcc
"
means 360 or, in any case where market practice in the Relevant Market is to use a different
number for quoting the number of days in a year, that number;
"
n
i
" means the number of calendar days from, and including, that RFR Banking Day "
i
" up to, but
excluding, the following RFR Banking Day;and
the "
Unannualised Cumulative Compounded Daily Rate
" for any RFR Banking Day (the "
Cumulated
RFR Banking Day
") during that Interest Period is the result of the below calculation (without
rounding, to the extent reasonably practicable for the Finance Party performing the calculation, taking
into account the capabilities of any software used for that purpose):
where:
"
ACCDR
" means the Annualised Cumulative Compounded Daily Rate for that
Cumulated RFR Banking Day;
"
tn
i
" means the number of calendar days from, and including, the first day of the Cumulation
Period to, but excluding, the RFR Banking Day which immediately follows the last day of the
Cumulation Period;
"
Cumulation Period
" means the period from, and including, the first RFR Banking Day of
that Interest Period to, and including, that Cumulated RFR Banking Day;
"
dcc
" has the meaning given to that term above; and
the "
Annualised Cumulative Compounded Daily Rate
" for that Cumulated RFR Banking
Day is the percentage rate per annu
m
(rounded to the same number of decimal places as
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specified for the Daily Rate in the applicable Reference Rate Terms
)
calculated as set out below:
where:
"
d
0
" means the number of RFR Banking Days in the Cumulation Period;
"
Cumulation Period
" has the meaning given to that term above;
"
i
" means a series of whole numbers from one to d
0
, each representing the relevant RFR Banking
Day in chronological order in the Cumulation Period;
"
DailyRate
i-LP
" means, for any RFR Banking Day "
i
" in the Cumulation Period, the Daily Rate
for the RFR Banking Day which is the applicable Lookback Period prior to that RFR Banking
Day "
i
";
"
n
i
" means, for any RFR Banking Day "
i
" in the Cumulation Period, the number of calendar
days from, and including, that RFR Banking Day "
i
" up to, but excluding, the following RFR
Banking Day;
"
dcc
" has the meaning given to that term above; and
"
tn
i
" has the meaning given to that term above.
10250237317-v15
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70-41048667
SCHEDULE 12
CUMULATIVE COMPOUNDED RFR RATE
The "
Cumulative Compounded RFR Rate
" for any Interest Period for a Compounded Rate Loan is the
percentage rate per annum (rounded to the same number of decimal places as is specified in the definition
of "
Annualised Cumulative Compounded Daily Rate
" in Schedule 11 (
Daily Non-Cumulative
Compounded RFR Rate
)) calculated as set out below:
where:
"
d
0
" means the number of RFR Banking Days during the Interest Period;
"
i
" means a series of whole numbers from one to d
0
, each representing the relevant RFR Banking
Day in chronological order during the Interest Period;
"
DailyRate
i-LP
" means for any RFR Banking Day "
i
" during the Interest Period, the Daily Rate for the RFR
Banking Day which is the applicable Lookback Period prior to that RFR Banking Day "
i
";
"
n
i
" means, for any RFR Banking Day "
i
", the number of calendar days from, and including, that RFR
Banking Day "
i
" up to, but excluding, the following RFR Banking Day;
"
dcc
" means 360 or, in any case where market practice in the Relevant Market is to use a different
number for quoting the number of days in a year, that number;and
"
d
" means the number of calendar days during that Interest Period.
10250237317-v15
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70-41048667
SIGNATURES
[
Intentionally Left Bank
]
10250237317-v15
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70-41048667
SIGNATURES
THE GUARANTOR
By:
s/ Jani Relander
By
s/ Veronique Dersy
Jani Relander
Veronique Dersy
For and on behalf of
ABB LTD
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL BORROWERS
By:
s/ Marta Wolodzko
By
s/ Baptise Verbruggen
Marta Wolodzko
Baptise Verbruggen
For and on behalf of
ABB
FINANCE B.V.
By:
s/ John Healy
By
s/ Bridget Smith
John Healy
Bridget Smith
For and on behalf of
ABB TREASURY CENTER (USA), INC.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE FACILITY AGENT
By:
s/ Alasdair Garnham
Name:
Alasdair Garnham
(Authorised Signatory)
For and on behalf of
CITIBANK EUROPE PLC, UK BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE AGENT
By:
s/ Alasdair Garnham
Name:
Alasdair Garnham
(Authorised Signatory)
For and on behalf of
CITIBANK EUROPE PLC, UK BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE AGENT
By:
s/ Paul Gibbs
Name:
Paul Gibbs
(Authorised Signatory)
For and on behalf of
CITIBANK, N.A.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Paul Gibbs
Name:
Paul Gibbs
(Authorised Signatory)
For and on behalf of
CITIGROUP GLOBAL MARKETS LIMITED
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Faisal Rehman
Name:
Faisal Rehman, Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPANY
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Jamie Telkman
Name:
Jamie Telkman
(Authorised Signatory)
For and on behalf of
BARCLAYS BANK PLC
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Enna Pariset
By
s/ A Renaudin
Name:
Enna Pariset
Name
A Renaudin, MD
(Authorised Signatory)
For and on behalf of
BNP PARIBAS (SUISSE) SA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Marek Jöckel
By
s/ Vincent Gancel
Name:
Marek Jöckel
Name
Vincent Gancel, Deputy CEO
(Authorised Signatory)
For and on behalf of
CA INDOSUEZ (SWITZERLAND) SA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Ursula Schwarzenberger
By
s/ Christoph Bischofberger
Name:
Ursula Schwarzenberger
Name
Christoph Bischofberger
(Authorised Signatory)
For and on behalf of
CREDIT SUISSE (SWITZERLAND) LTD.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Banu Kologlu
By
s/ Marc Lutz
Name:
Banu Kologlu
Name
Marc Lutz
(Authorised Signatory)
For and on behalf of
DEUTSCHE BANK LUXEMBOURG S.A.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Ashritha Shetty
Name:
Ashritha Shetty
(Authorised Signatory)
For and on behalf of
GOLDMAN SACHS BANK USA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Rob Stoyle
Name:
Rob Stoyle
(Authorised Signatory)
For and on behalf of
HSBC BANK PLC
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Paul-Emmanuel Aerts
By
s/ Hermen Egberink
Name:
Paul-Emmanuel Aerts,
General Manager
Name
Hermen Egberink
Head of Credit Risk
(Authorised Signatory)
For and on behalf of
ING BANK N.V., AMSTERDAM, LANCY/GENEVA BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Jon Abando
Name:
Jon Abando,
Managing Director
(Authorised Signatory)
For and on behalf of
J.P. MORGAN SECURITIES PLC
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Einar Erici
By
s/ Birgitta Höög
Name:
Einar Erici
Name
Birgitta Höög
(Authorised Signatory)
For and on behalf of
NORDEA BANK ABP, FILIAL I SVERIGE
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Uwe Steinmetz
By
s/ Andreea Boskoff
Name:
Uwe Steinmetz
Name
Andreea Boskoff,
Executive Director
(Authorised Signatory)
For and on behalf of
BANCO SANTANDER, S.A.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ S Derrick
Name:
S Derrick
(Authorised Signatory)
For and on behalf of
STANDARD CHARTERED BANK
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Andersson
By
s/ Maschke
Name:
Andersson
Name
Maschke
(Authorised Signatory)
For and on behalf of
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Sven Streiter
By
s/ Richard Ohl
Name:
Sven Streiter
Managing Director
Name
Richard Ohl
Director
(Authorised Signatory)
For and on behalf of
SOCIÉTÉ GÉNÉRALE S.A. FRANKFURT BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Roman Schönholzer
By
s/ Lukas Gisiger
Name:
Roman Schönholzer
Associate Director
Name
Lukas Gisiger
Director
(Authorised Signatory)
For and on behalf of
UBS SWITZERLAND AG
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Dr Patrick Englert
By
s/ Tobias Pies
Name:
Dr Patrick Englert
Name
Tobias Pies
(Authorised Signatory)
For and on behalf of
UNICREDIT BANK AG
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE MANDATED LEAD ARRANGER
By:
s/ Peng Kong
By
s/ Marc Zulian
Name:
Peng Kong,
Deputy General Manager
Name
Marc Zulian
(Authorised Signatory)
For and on behalf of
CHINA CONSTRUCTION BANK CORPORATION, BEIJING, SWISS BRANCH
ZURICH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Akshay Jashnani
Name:
Akshay Jashnani,
Vice President
(Authorised Signatory)
For and on behalf of
CITIBANK, N.A., LONDON BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Faisal Rehman
Name:
Faisal Rehman
Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPAN
Y
(as Lender to
Borrowers incorporated in the Netherlands and the EU)
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Faisal Rehman
Name:
Faisal Rehman
Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA N.A., LONDON BRANCH (as Lender to Borrowers
incorporated in the USA and Switzerland)
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Jamie Telkman
Name:
Jamie Telkman
(Authorised Signatory)
For and on behalf of
BARCLAYS BANK PLC
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Enna Pariset
By
s/ A Renaudin
Name:
Enna Pariset
Name
A Renaudin, MD
(Authorised Signatory)
For and on behalf of
BNP PARIBAS (SUISSE) SA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Marek Jöckel
By
s/ Vincent Gancel
Name:
Marek J��ckel
Name
Vincent Gancel, Deputy CEO
(Authorised Signatory)
For and on behalf of
CA INDOSUEZ (SWITZERLAND) SA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Ursula Schwarzenberger
By
s/ Christoph Bischofberger
Name:
Ursula Schwarzenberger
Name
Christoph Bischofberger
(Authorised Signatory)
For and on behalf of
CREDIT SUISSE (SWITZERLAND) LTD.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Banu Kologlu
By
s/ Marc Lutz
Name:
Banu Kologlu
Name
Marc Lutz
(Authorised Signatory)
For and on behalf of
DEUTSCHE BANK LUXEMBOURG S.A.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Ashritha Shetty
Name:
Ashritha Shetty
(Authorised Signatory)
For and on behalf of
GOLDMAN SACHS BANK USA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Rob Stoyle
Name:
Rob Stoyle
(Authorised Signatory)
For and on behalf of
HSBC BANK PLC
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Paul-Emmanuel Aerts
By
s/ Hermen Egberink
Name:
Paul-Emmanuel Aerts,
General Manager
Name
Hermen Egberink
Head of Credit Risk
(Authorised Signatory)
For and on behalf of
ING BANK N.V., AMSTERDAM, LANCY/GENEVA BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Louise Wyatt
Name:
Louise Wyatt
Vice President
(Authorised Signatory)
For and on behalf of
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Einar Erici
By
s/ Birgitta Höög
Name:
Einar Erici
Name
Birgitta Höög
(Authorised Signatory)
For and on behalf of
NORDEA BANK ABP, FILIAL I SVERIGE
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Uwe Steinmetz
By
s/ Andreea Boskoff
Name:
Uwe Steinmetz
Name
Andreea Boskoff,
Executive Director
(Authorised Signatory)
For and on behalf of
BANCO SANTANDER, S.A.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ S Derrick
Name:
S Derrick
(Authorised Signatory)
For and on behalf of
STANDARD CHARTERED BANK
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Andersson
By
s/ Maschke
Name:
Andersson
Name
Maschke
(Authorised Signatory)
For and on behalf of
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Sven Streiter
By
s/ Richard Ohl
Name:
Sven Streiter
Managing Director
Name
Richard Ohl
Director
(Authorised Signatory)
For and on behalf of
SOCIÉTÉ GÉNÉRALE S.A. FRANKFURT BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Roman Schönholzer
By
s/ Lukas Gisiger
Name:
Roman Schönholzer
Associate Director
Name
Lukas Gisiger
Director
(Authorised Signatory)
For and on behalf of
UBS SWITZERLAND AG
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Dr Patrick Englert
By
s/ Tobias Pies
Name:
Dr Patrick Englert
Name
Tobias Pies
(Authorised Signatory)
For and on behalf of
UNICREDIT BANK AG
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE ORIGINAL LENDER
By:
s/ Peng Kong
By
s/ Marc Zulian
Name:
Peng Kong,
Deputy General Manager
Name
Marc Zulian
(Authorised Signatory)
For and on behalf of
CHINA CONSTRUCTION BANK CORPORATION, BEIJING, SWISS BRANCH
ZURICH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Paul Gibbs
Name:
Paul Gibbs
(Authorised Signatory)
For and on behalf of
CITIBANK, N.A.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Faisal Rehman
Name:
Faisal Rehman
Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPAN
Y
(as Lender to
such
other jurisdictions as may be notified to the Facility Agent from time to time)
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Albert Wheeler
Name:
Albert Wheeler
Vice President
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA N.A. (as Lender to Borrowers incorporated in the Netherlands,
USA,
Switzerland and such other jurisdictions as may be notified to the Facility Agent
from time to
time)
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Jamie Telkman
Name:
Jamie Telkman
(Authorised Signatory)
For and on behalf of
BARCLAYS BANK PLC
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Enna Pariset
By
s/ A Renaudin
Name:
Enna Pariset
Name
A Renaudin, MD
(Authorised Signatory)
For and on behalf of
BNP PARIBAS (SUISSE) SA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Marek Jöckel
By
s/ Vincent Gancel
Name:
Marek Jöckel
Name
Vincent Gancel, Deputy CEO
(Authorised Signatory)
For and on behalf of
CA INDOSUEZ (SWITZERLAND) SA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Doreen Barr
By
s/ Michael Dieffenbacher
Name:
Doreen Barr
Name
Michael Dieffenbacher
(Authorised Signatory)
For and on behalf of
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Annie Chung
By
s/ Marko Lukin
Name:
Annie Chung
Director
Name
Marko Lukin
Vice President
(Authorised Signatory)
For and on behalf of
DEUTSCHE BANK AG NEW YORK BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Ashritha Shetty
Name:
Ashritha Shetty
(Authorised Signatory)
For and on behalf of
GOLDMAN SACHS BANK USA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Rob Stoyle
Name:
Rob Stoyle
(Authorised Signatory)
For and on behalf of
HSBC BANK PLC
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Paul-Emmanuel Aerts
By
s/ Hermen Egberink
Name:
Paul-Emmanuel Aerts,
General Manager
Name
Hermen Egberink
Head of Credit Risk
(Authorised Signatory)
For and on behalf of
ING BANK N.V., AMSTERDAM, LANCY/GENEVA BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Louise Wyatt
Name:
Louise Wyatt
Vice President
(Authorised Signatory)
For and on behalf of
JPMORGAN CHASE BANK, N.A.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Einar Erici
By
s/ Birgitta Höög
Name:
Einar Erici
Name
Birgitta Höög
(Authorised Signatory)
For and on behalf of
NORDEA BANK ABP, FILIAL I SVERIGE
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Uwe Steinmetz
By
s/ Andreea Boskoff
Name:
Uwe Steinmetz
Name
Andreea Boskoff,
Executive Director
(Authorised Signatory)
For and on behalf of
BANCO SANTANDER, S.A.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ S Derrick
Name:
S Derrick
(Authorised Signatory)
For and on behalf of
STANDARD CHARTERED BANK
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Andersson
By
s/ Maschke
Name:
Andersson
Name
Maschke
(Authorised Signatory)
For and on behalf of
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Lauren Au
Name:
Lauren Au
(Authorised Signatory)
For and on behalf of
SOCIÉTÉ GÉNÉRALE
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Danielle Calo
By
s/ Christian Odermatt
Name:
Danielle Calo
Associate Director
Name
Christian Odermatt
Executive Director
(Authorised Signatory)
For and on behalf of
UBS AG, STAMFORD BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Dr Patrick Englert
By
s/ Tobias Pies
Name:
Dr Patrick Englert
Name
Tobias Pies
(Authorised Signatory)
For and on behalf of
UNICREDIT BANK AG
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE DOLLAR SWINGLINE LENDER
By:
s/ Peng Kong
By
s/ Marc Zulian
Name:
Peng Kong,
Deputy General Manager
Name
Marc Zulian
(Authorised Signatory)
For and on behalf of
CHINA CONSTRUCTION BANK CORPORATION, BEIJING, SWISS BRANCH
ZURICH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Akshay Jashnani
Name:
Akshay Jashnani,
Vice President
(Authorised Signatory)
For and on behalf of
CITIBANK, N.A., LONDON BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Faisal Rehman
Name:
Faisal Rehman, Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA EUROPE DESIGNATED ACTIVITY COMPAN
Y
(as Lender to
Borrowers incorporated in the Netherlands and the EU)
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Faisal Rehman
Name:
Faisal Rehman, Director
(Authorised Signatory)
For and on behalf of
BANK OF AMERICA N.A., LONDON BRANCH (as Lender to Borrowers
incorporated in the USA and Switzerland)
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Jamie Telkman
Name:
Jamie Telkman
(Authorised Signatory)
For and on behalf of
BARCLAYS BANK PLC
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Enna Pariset
By
s/ A Renaudin
Name:
Enna Pariset
Name
A Renaudin, MD
(Authorised Signatory)
For and on behalf of
BNP PARIBAS (SUISSE) SA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Marek Jöckel
By
s/ Vincent Gancel
Name:
Marek Jöckel
Name
Vincent Gancel, Deputy CEO
(Authorised Signatory)
For and on behalf of
CA INDOSUEZ (SWITZERLAND) SA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Ursula Schwarzenberger
By
s/ Christoph Bischofberger
Name:
Ursula Schwarzenberger
Name
Christoph Bischofberger
(Authorised Signatory)
For and on behalf of
CREDIT SUISSE (SWITZERLAND) LTD.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Banu Kologlu
By
s/ Marc Lutz
Name:
Banu Kologlu
Name
Marc Lutz
(Authorised Signatory)
For and on behalf of
DEUTSCHE BANK LUXEMBOURG S.A.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Ashritha Shetty
Name:
Ashritha Shetty
(Authorised Signatory)
For and on behalf of
GOLDMAN SACHS BANK USA
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Rob Stoyle
Name:
Rob Stoyle
(Authorised Signatory)
For and on behalf of
HSBC BANK PLC
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Paul-Emmanuel Aerts
By
s/ Hermen Egberink
Name:
Paul-Emmanuel Aerts,
General Manager
Name
Hermen Egberink
Head of Credit Risk
(Authorised Signatory)
For and on behalf of
ING BANK N.V., AMSTERDAM, LANCY/GENEVA BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Louise Wyatt
Name:
Louise Wyatt
Vice President
(Authorised Signatory)
For and on behalf of
JPMORGAN CHASE BANK, N.A., LONDON BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Einar Erici
By
s/ Birgitta Höög
Name:
Einar Erici
Name
Birgitta Höög
(Authorised Signatory)
For and on behalf of
NORDEA BANK ABP, FILIAL I SVERIGE
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Uwe Steinmetz
By
s/ Andreea Boskoff
Name:
Uwe Steinmetz
Name
Andreea Boskoff,
Executive Director
(Authorised Signatory)
For and on behalf of
BANCO SANTANDER, S.A.
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ S Derrick
Name:
S Derrick
(Authorised Signatory)
For and on behalf of
STANDARD CHARTERED BANK
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Andersson
By
s/ Maschke
Name:
Andersson
Name
Maschke
(Authorised Signatory)
For and on behalf of
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Sven Streiter
By
s/ Richard Ohl
Name:
Sven Streiter
Managing Director
Name
Richard Ohl
Director
(Authorised Signatory)
For and on behalf of
SOCIÉTÉ GÉNÉRALE S.A. FRANKFURT BRANCH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Roman Schönholzer
By
s/ Lukas Gisiger
Name:
Roman Schönholzer
Associate Director
Name
Lukas Gisiger
Director
(Authorised Signatory)
For and on behalf of
UBS SWITZERLAND AG
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Dr Patrick Englert
By
s/ Tobias Pies
Name:
Dr Patrick Englert
Name
Tobias Pies
(Authorised Signatory)
For and on behalf of
UNICREDIT BANK AG
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.
THE EURO SWINGLINE LENDER
By:
s/ Peng Kong
By
s/ Marc Zulian
Name:
Peng Kong,
Deputy General Manager
Name
Marc Zulian
(Authorised Signatory)
For and on behalf of
CHINA CONSTRUCTION BANK CORPORATION, BEIJING, SWISS BRANCH
ZURICH
Signature page to the Amendment and Restatement Agreement relating to the Facility Agreement.