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EXHIBIT 4.6
[CLIFFORD CHANCE LOGO]
LIMITED LIABILITY PARTNERSHIP
ABB FINANCIAL SERVICES B.V.
GENERAL ELECTRIC CAPITAL CORPORATION
and
ABB LTD
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AMENDMENT AGREEMENT
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CONTENTS
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CLAUSE PAGE
1. Definitions And Interpretation......................................................................3
2. Effective Time......................................................................................3
3. Completion Payments And Completion Balance Sheet....................................................3
4. Deferred Tax Appendix To Schedule 10................................................................6
5. Schedule 16 And The Apportionment Statement.........................................................6
6. Direct Purchase Of Subsidiaries.....................................................................7
7. Supplemental Designated Asset Agreement And Designated Asset Security Agreement.....................8
8. Retained LC Backed Guarantee Letters Of Credit......................................................9
9. The Designated Asset Letters Of Credit.............................................................11
10. Intra-Group Guarantees.............................................................................11
11. Sirius Amendments..................................................................................11
12. Purchaser Of GBFSF Nominee Share...................................................................11
13. Employment Amendments..............................................................................11
14. Property Matters...................................................................................13
15. Directors' Resignation Indemnity...................................................................13
16. Notices............................................................................................14
17. Post Completion Further Assurance..................................................................14
18. Completion Arrangements............................................................................14
19. Miscellaneous Amendments...........................................................................14
20. Construction.......................................................................................14
21. Incorporation Of Provisions Of The Sale Agreement..................................................15
22. Channelling Injunction.............................................................................15
23. Additional Asbestos Warranties.....................................................................16
24. Amendment To Asbestos Indemnity....................................................................18
25. Fraudulent Conveyance..............................................................................18
26. Representations And Warranties.....................................................................19
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SCHEDULE 1 SCHEDULE 17 - TRANSFER EMPLOYEES PART B: TRANSFER EMPLOYEES
SCHEDULE 2 SCHEDULE 17 PART D: EXCLUDED EMPLOYEES
SCHEDULE 3 SCHEDULE 17 PART E: CZECH EMPLOYEES
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SCHEDULE 4 APPORTIONMENT STATEMENT, SCHEDULE 16
SCHEDULE 5 FORM OF THE APPENDIX TO THE COMPLETION BALANCE SHEET
SCHEDULE 6 INTRA-GROUP GUARANTEES
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THIS AMENDMENT AGREEMENT is made as a DEED on 29 November 2002
BETWEEN:
(1) ABB FINANCIAL SERVICES B.V. (a company incorporated in The Netherlands)
whose corporate seat is Burgemeester Haspelslaan 65, 1181 NB Amstelveen,
The Netherlands (the "VENDOR");
(2) GENERAL ELECTRIC CAPITAL CORPORATION (incorporated in the State of
Delaware) whose principal office is at 260 Long Ridge Road, Stamford,
Connecticut 06927, United States of America (the "PURCHASER"); and
(3) ABB LTD (incorporated in Switzerland) whose corporate seat is
Affolternstr. 44, 8050 Zurich, Switzerland (the "ABB GUARANTOR").
INTRODUCTION:
(A) This Amendment Agreement, inter alia, amends an amended and restated
sale and purchase agreement dated 4 September 2002 entered into between
the parties in relation to the sale and purchase of the structured
finance business of the ABB Group (the "SALE AGREEMENT").
(B) The parties have agreed to make certain amendments to the Sale Agreement
in the manner and on the terms set out below. Such amendments are to
have effect as of and with effect from 4 September 2002, as if they had
been incorporated into and formed part of the Sale Agreement, ab initio.
NOW THIS AGREEMENT WITNESSES AND THE PARTIES AGREE as follows:
1. DEFINITIONS AND INTERPRETATION
Unless otherwise defined herein or the subject matter or context
otherwise requires, all definitions and interpretations in the Sale
Agreement shall have the same meaning in this Amendment Agreement and
any reference in this Amendment Agreement to a "clause", "paragraph" or
"Schedule" shall be construed as a reference to a clause or paragraph
of, or a Schedule to, the Sale Agreement, as amended by this Amendment
Agreement.
2. EFFECTIVE TIME
The parties each agree that all of the amendments made to the Sale
Agreement pursuant to this Amendment Agreement shall take effect as of
and from 4 September 2002 as if they had been incorporated into and
formed part of the Sale Agreement, ab initio.
3. COMPLETION PAYMENTS AND COMPLETION BALANCE SHEET
3.1 The parties acknowledge that the Completion Date is currently scheduled
for 29 November 2002 and that, but for this Amendment Agreement, the
Completion Balance Sheet would, therefore, be required (in accordance
with the Sale Agreement and, in particular, clause 7, Schedule 8 and
Schedule 10 thereof) to be prepared as at Completion on such date.
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3.2 The parties further acknowledge that the SF Group's month end management
accounts and figures are prepared as at 30 November.
3.3 Consequently, the parties hereby agree that, provided Completion occurs
on 29 November 2002:
3.3.1 the Initial Consideration (including the Estimated ABB Export
Bank Outstanding Loan Balance) and the Provisional Net
Intra-Group Indebtedness shall be (and shall be calculated) as
at 30 November 2002 (rather than 29 November 2002), based on
the Vendor's best estimate (acting reasonably and in good
faith) of such management accounts and figures as at 30
November 2002, save and provided that no account shall be
taken of any movements or changes to such Initial
Consideration, Estimated ABB Export Bank Outstanding Loan
Balance or Provisional Net Intra-Group Indebtedness to the
extent such arise or occur as a result of Completion, and the
relevant provisions of and Schedules to the Sale Agreement
(including, without limitation, clauses 4.10 and 4.11 and
clauses 5.1 to 5.12 inclusive) shall be construed accordingly;
3.3.2 the payment on Completion of such Initial Consideration and
Provisional Net Intra-Group Indebtedness, in accordance with
the provisions of clauses 2.4, 2.4A, 5.3 and 6.4 of, and
paragraphs 8(c) and (d) of Schedule 7, Part B to, the Sale
Agreement, shall satisfy and discharge in full all obligations
of the Purchaser's Group (including, for this purpose, the SF
Group) to pay the Initial Consideration and the Provisional
Net Intra-Group Indebtedness, and the relevant provisions of
and Schedules to the Sale Agreement shall be construed
accordingly;
3.3.3 the Vendor shall (or shall procure that the relevant member(s)
of the ABB Group (excluding, for this purpose, the SF Group)
shall) on Completion pay to the Purchaser (for itself and/or
as trustee for the relevant member(s) of the Purchaser's Group
(including, for this purpose, the SF Group)), in accordance
with the provisions of clause 25.1 of the Sale Agreement, such
amounts, in such currencies and in such manner as:
(a) are equal to one day's interest on the amount of the
Initial Consideration and Provisional Net
Intra-Group Indebtedness (calculated in accordance
with clause 3.3.1 above) paid or to be paid on
Completion by (or on behalf of) such relevant
member(s) of the Purchaser's Group, in accordance
with the relevant provisions of the Sale Agreement
(including, without limitation, clauses 2.4, 2.4A,
5.3 and 6.4 thereof and paragraphs 8(c) and (d) of
Schedule 7 thereto), such interest accruing at an
annual rate equal to the US$ LIBOR rate, in relation
to US$ denominated amounts and payments, and the
Euro LIBOR rate, in relation to non-US$ denominated
amounts and payments, in each case, as prevailing as
at 25 November 2002 and calculated on the basis of a
360 day year (together the "INTEREST PAYMENTS"); and
(b) would enable such payments to be capable of being
set-off or netted-off, as the case may be, against
the relevant amounts of Initial Consideration
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and Provisional Net Intra-Group Indebtedness payable
or to be paid on Completion by (or on behalf of) the
relevant member(s) of the Purchaser's Group
(including, for this purpose, the SF Group);
3.3.4 the payment on Completion, in accordance with the provisions
of clauses 2.4, 2.4A, 5.3 and 6.4 of, and paragraphs 8(c) and
(d) of Schedule 7, Part B to, the Sale Agreement, of the net
amount of the Initial Consideration and Provisional Net
Intra-Group Indebtedness (calculated in accordance with clause
3.3.1 above) net, in each case, of the Interest Payments
(calculated in accordance with clause 3.3.3 above) shall
satisfy and discharge in full all obligations of the
Purchaser's Group (including, for this purpose, the SF Group)
to pay the Initial Consideration and the Provisional Net
Intra-Group Indebtedness and all obligations of the ABB Group
(excluding, for this purpose, the SF Group) to pay the
Interest Payments, in each case, as if such gross amounts
(rather than the net amounts) had been paid, and the relevant
provisions of and Schedules to the Sale Agreement and this
Amendment Agreement shall be construed accordingly;
3.3.5 the Purchaser shall confirm to the Vendor not less than two
(2) Business Days prior to Completion, the amounts, currencies
and payments to be made between the relevant member(s) of the
ABB Group (excluding, for this purpose, the SF Group) and the
relevant member(s) of the Purchaser's Group (including, for
this purpose, the SF Group) pursuant to clauses 3.3.2, 3.3.3
and/or 3.3.4 above, as the case may be;
3.3.6 the Completion Balance Sheet and the Final Completion Balance
Sheet shall:
(a) be (and shall be prepared) as at 30 November 2002
(rather than 29 November 2002), based on such
management accounts and figures, save and provided
that no account shall be taken of any movements or
changes to such balance sheets to the extent that
such arise or occur as a result of Completion; and
(b) include and take account of the assets and
liabilities assumed by the Purchaser and/or any
other member(s) of the Purchaser's Group from ABB
Capital B.V. in respect of the Essent Transactions
and the Kotkan Transaction as contemplated by clause
10.51 of the Sale Agreement as if such assets and
liabilities formed part of the SF Group,
and, in each case, the relevant provisions of and Schedules to
the Sale Agreement (including, without limitation, clause 7,
Schedule 8 and Schedule 10) shall be construed accordingly;
3.3.7 for the purposes of the Sale Agreement, the Completion Balance
Sheet and the Final Completion Balance Sheet prepared, agreed
and/or determined in accordance with clause 3.3.6 above
(together with the other relevant provisions of the Sale
Agreement, including (without limitation) clause 7 thereof,
and Schedules 8 and 10 thereto, in each case, as construed in
accordance with clause 3.3.6 above) shall be deemed to be and
treated as the Completion Balance Sheet
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and the Final Completion Balance Sheet as at Completion and
all references to such in, and all relevant provisions of and
Schedules to, the Sale Agreement shall be construed
accordingly;
3.3.8 all amounts to be derived from, reflected in, based on,
consistent with or otherwise calculated by reference to the
Completion Balance Sheet and/or the Final Completion Balance
Sheet, including (without limitation) Owners' Equity, the
Final ABB Export Bank Outstanding Loan Balance, the Final
Consideration, the Final Intra-Group Indebtedness and the
Final Net Intra-Group Indebtedness, shall be derived from,
reflected in, based on, consistent with or otherwise
calculated by reference to the Completion Balance Sheet and/or
the Final Completion Balance Sheet as so prepared, agreed
and/or determined in accordance with clauses 3.3.6 and 3.3.7
above; and
3.3.9 for the avoidance of doubt, any adjustments, repayments or
payments required to be made pursuant to the Sale Agreement as
a result of the amount of the Final Consideration differing
from the amount of the Initial Consideration and/or the amount
of Final Net Intra-Group Indebtedness differing from the
amount of Provisional Net Intra-Group Indebtedness shall be
calculated and made by reference to:
(a) the Final Consideration and Final Net Intra-Group
Indebtedness as derived from the Final Completion
Balance Sheet prepared, agreed and/or determined in
accordance with clauses 3.3.6, 3.3.7 and 3.3.8
above; and
(b) the Initial Consideration (including the Estimated
ABB Export Bank Outstanding Loan Balance) and
Provisional Net Intra-Group Indebtedness as
calculated in accordance with clause 3.3.1 above.
For this purpose, however, the amount of the Initial
Consideration and the Provisional Net Intra-Group
Indebtedness shall not be reduced or netted off
pursuant to the provisions of clause 3.3.4 above.
4. DEFERRED TAX APPENDIX TO SCHEDULE 10
4.1 The parties agree that only such of those entries to be included in the
deferred tax appendix to the Completion Balance Sheet as relate to, are
included in, or otherwise impact the Completion Balance Sheet are to be
subject to the strict auditing standards detailed in clause 7 of and
Schedule 8 to the Sale Agreement. The remaining entries to be included
in such deferred tax appendix are not to be subject to such strict
auditing standards, but are to represent a reasonable and fair
reflection of the matters to which such relate and are to remain subject
to the other provisions of the Sale Agreement.
4.2 The parties further agree that the deferred tax appendix to the
Completion Balance Sheet shall be amended and replaced in the manner set
out at Schedule 5 hereto.
5. SCHEDULE 16 AND THE APPORTIONMENT STATEMENT
5.1 The parties agree that the Apportionment Statement, attached as Schedule
4 hereto, shall constitute the Apportionment Statement for the purposes
of Schedule 16 of the Sale Agreement.
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5.2 The parties acknowledge and agree that the sole purpose of the
Apportionment Statement is to allocate for Tax and accounting purposes
only the Initial Consideration between the Companies and the Business
Assets being acquired. For the avoidance of doubt, nothing in the
Apportionment Statement shall be considered or taken into account in
connection with the preparation, agreement and/or determination of the
Completion Balance Sheet or the Final Completion Balance Sheet (which
shall each be governed by, inter alia, clauses 3.3.6 to 3.3.8
(inclusive) of this Amendment Agreement and clause 7 of, and Schedules 8
and 10 to, the Sale Agreement) or the Final Consideration, Final
Intra-Group Indebtedness or Final Net Intra-Group Indebtedness to be
derived therefrom or reflected therein.
5.3 The parties further agree that Schedule 16 of the Sale Agreement shall
be amended by deleting paragraph 3 thereof and replacing it with a new
paragraph 3 in the following form:
"3. The Vendor and the Purchaser hereby agree that, for all
purposes (including, without limitation, for the purposes of
determining and agreeing the Apportionment Statement), the
amount of the Additional Reserves (as referred to in the
definition of Final Consideration) shall be, and shall be
treated as, fully attributable to the purchase of ABB
Structured Finance Sweden AB (SECUY).".
6. DIRECT PURCHASE OF SUBSIDIARIES
6.1 The Parties acknowledge that, in the case of ABB Credit BV (NLCRE), ABB
Structured Finance B.V (NLFSF), Xerox Noleggi SpA (ITRLN) and ABB
Structured Finance International Limited (CHFIN) (each a "PURCHASED
SUBSIDIARY" and together the "PURCHASED SUBSIDIARIES"), on Completion
the Purchaser is first to purchase (or procure the purchase of) the
shares of such Purchased Subsidiaries and is then to purchase (or
procure the purchase of) the shares of the direct or, in some cases,
indirect parent undertakings of such Purchased Subsidiaries.
6.2 The parties acknowledge that the intention is that the Purchaser's Group
should only pay the ABB Group once for such Purchased Subsidiaries and
not twice, as might occur if the Purchaser's Group paid the ABB Group:
6.2.1 firstly, for the direct acquisition of the shares of a
Purchased Subsidiary; and
6.2.2 then, for the acquisition of the shares of such Purchased
Subsidiary's direct or indirect parent undertaking, where part
of the consideration payable in respect of such parent
undertaking represents its investment in the Purchased
Subsidiary or its interest in the sale proceeds resulting from
the direct sale of the shares of the Purchased Subsidiary
referred to in clause 6.2.1 above.
6.3 The parties, therefore, hereby agree that:
6.3.1 any consideration due and payable (or deemed due and payable)
by any member of the Purchaser's Group as a result of the
direct purchase of any shares of any Purchased Subsidiary,
shall be satisfied not by the payment of cash to the ABB
Group, but instead by the issue by the relevant member of the
Purchaser's Group to the immediate selling parent
undertaking(s) of such Purchased
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Subsidiary (pro rata by reference to their respective
shareholdings in such Purchased Subsidiary) of a debt
instrument in an aggregate principal amount equal to the
amount of the consideration due and payable in respect of such
shares (such consideration being the amount set out in the
Apportionment Statement against the name of the relevant
Purchased Subsidiary in the column headed "Local Purchase
Price"); and
6.3.2 accordingly, the only consideration to be paid in cash by the
Purchaser's Group to the ABB Group in respect of the sale and
purchase of the Companies and the Business Assets is the
Initial Consideration (as calculated, in accordance with
clause 3.3.1 hereof, and as adjusted, in accordance with
clause 3.3.9 hereof, by reference to the Final Consideration),
such Initial Consideration to be paid in accordance with the
terms and subject to the conditions of the Sale Agreement (as
amended by this Amendment Agreement) and (as indicated in the
attached Apportionment Statement) to be allocated and
apportioned (for Tax and accounting purposes) to the purchase
price for the remaining Companies and Business Assets, other
than the Purchased Subsidiaries.
6.4 Consequently, the Local Transfer Agreements relating to the direct
acquisition of the shares of such Purchased Subsidiaries shall be
amended to reflect the issue by the relevant member of the Purchaser's
Group to the relevant selling parent undertaking(s) of such debt
instruments (in the amounts set out against the names of such Purchased
Subsidiaries in the column of the Apportionment Statement headed "Local
Purchase Price") as consideration therefor instead of the payment of
cash.
6.5 For the avoidance of doubt, and as stated, mutatis mutandis, in clause
5.2 above, nothing in this clause 6 is to be considered or taken into
account in the preparation, agreement and/or determination of the
Completion Balance Sheet, the Final Completion Balance Sheet or any
calculations derived therefrom or reflected therein (including, without
limitation, the calculation of the Final Consideration), not least of
all since, on combination or consolidation of such balance sheet, any
double counting (and thereby the possibility of any double payment) of
the value attributable to the Purchased Subsidiaries should be removed
and disappear.
7. SUPPLEMENTAL DESIGNATED ASSET AGREEMENT AND DESIGNATED ASSET SECURITY
AGREEMENT
The parties agree to amend the Sale Agreement by:
7.1 inserting into Schedule 1 thereof the following additional definitions:
"SUPPLEMENTAL DESIGNATED ASSET AGREEMENT means the supplemental
designated asset agreement dated 22 November 2002 between the Purchaser
and the Vendor;"
7.2 inserting the words ", the Supplemental Designated Asset Agreement "
immediately before the word "and" in the definition of TRANSACTION
DOCUMENTS;
7.3 inserting the words ", the Supplemental Designated Asset Agreement "
immediately before the words "and this Agreement" in paragraphs 1(r) and
8(e) of Part B to Schedule 7; and
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7.4 deleting rows 11 and 12 of Schedule 17, Part C to the Sale Agreement, so
as to remove therefrom and thereby exclude the two loan tranches (EXBA
No. 455) for the Manila North Tollroad project.
8. RETAINED LC BACKED GUARANTEE LETTERS OF CREDIT
8.1 On and from Completion the Purchaser shall, and the Vendor shall procure
that ABB Credit Limited shall, as soon as practicable after becoming
aware of any reduction in the aggregate outstanding liability (whether
actual or contingent) under the Retained LC Backed Guarantees (a
"RETAINED GUARANTEE REDUCTION") (and each party agrees to notify the
other of any such reduction as soon as practicable after becoming aware
of the same) as a consequence of any Retained LC Backed Guarantee having
expired or having been released (either in whole or in part) deliver to
the issuer of every letter of credit provided in pursuance of the
Vendor's obligations under clause 10 of the Sale Agreement or any
replacement letter of credit (each a "RELEVANT RETAINED GUARANTEE LC") a
certificate in the form annexed to the Relevant Retained Guarantee LC
confirming the new maximum amount of the Relevant Retained Guarantee LC,
which shall be an amount equal to the maximum amount of the Relevant
Retained Guarantee LC immediately prior to the Retained Guarantee
Reduction less an amount equal to the pro-rata (as between each such
letter of credit issued at such time) amount of the Retained Guarantee
Reduction.
8.2 If any Relevant Retained Guarantee LC is not on or before the date
falling 3 Business Days prior to its scheduled expiry date either:
(a) renewed in accordance with its terms for a further 12 month
period; or
(b) replaced by a new letter of credit from a new Acceptable Bank
on the same terms as the letter of credit replaced and in an
amount at least equal to the then expired Relevant Retained
Guarantee LC,
and at such time there remains any liability (actual or contingent)
under the Retained LC Backed Guarantees (or any of them) then, if and to
the extent the Purchaser makes a demand under that Relevant Retained
Guarantee LC within 30 days of the expiry date therefor in accordance
with its terms on the grounds of non-renewal (but not on any other
grounds), the Purchaser shall upon the later of (i) receipt of payment
from the relevant issuer of the letter of credit and (ii) the Purchaser
being satisfied that the Vendor has established a US$ account with an
Acceptable Bank secured by way of a first priority perfected security
interest complying with the requirements for Alternative Security
contained in clause 10.11 of the Sale Agreement (including the
satisfaction by the Vendor of its obligations under clause 10.11(b)(ii)
of the Sale Agreement) (the "RELEVANT SECURITY") pay an amount equal to
the amount so drawn under the letter of credit into the account the
subject of the Relevant Security (less any amounts which in the period
between the draw under the letter of credit and the payment into such
account it would have been entitled to draw under the terms of the
relevant letter of credit had it been so renewed) provided always that
if on the date of any demand in accordance with this clause 8.2 on
expiry of any Relevant Retained Guarantee LC a US$ account with an
Acceptable Bank satisfying item (ii) above has been established then the
Purchaser shall instruct that such payments under the Relevant Retained
Guarantee LC shall be paid
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directly into such account. The terms of the Relevant Security shall
provide that any interest accruing to such account shall be for the
benefit of the Vendor and shall be released from the account and the
Relevant Security at the end of each calendar month (and the Purchaser
shall consent to such release at such time provided no ABB Default (as
defined in the Designated Asset Agreement) shall have occurred and be
continuing at the relevant time) and shall be available to be paid to
such account or accounts as the Vendor may from time to time select. The
Relevant Security shall secure the obligations of the Vendor and the ABB
Guarantor in respect of the obligations contemplated by clause 10.13 of
the Sale Agreement. It shall be a term of any Relevant Security that as
soon as practicable following the expiry or release (whether in whole or
in part) of any Retained LC Backed Guarantee after the date on which
such deposit is made an amount equal to the reduction in the maximum
contingent liability under or in respect of such Retained LC Backed
Guarantee (a "SECURITY REDUCTION") shall be released from the Relevant
Security (and the Purchaser shall consent to such release) and shall be
paid to such account as the Vendor may direct. Subject to clause 8.3
below, if following any such demand the Vendor fails to establish
Relevant Security in the manner provided above, the Purchaser shall be
entitled to retain the amounts so drawn for its own account free from
any interest (legal or equitable) of the Vendor or the ABB Guarantor
(any such interest being hereby waived) until such time as such Relevant
Security is established (whereupon the provisions of this clause shall
apply) or until such time as there exists no liability (actual or
contingent) under the Retained LC Backed Guarantees, whereupon the
Purchaser shall pay to the Vendor (on a net after Tax basis) an amount
equal to the amount so drawn less an amount equal to the aggregate
amount that the Purchaser would have been entitled to draw from time to
time under the relevant letter of credit had it been renewed in
accordance with it terms.
8.3 Where, in the circumstances where the Purchaser has drawn down under a
Relevant Retained Guarantee LC in the circumstances contemplated by the
last sentence of the preceding clause 8.2, there is any reduction in the
aggregate amount of the liabilities (actual or contingent) under or in
respect of the Retained LC Backed Guarantees (or any of them), whether
due to the expiry or release of any Retained LC Backed Guarantee (in
whole or in part), the Purchaser shall pay to the Vendor (on a net after
Tax basis) an amount equal to the pro-rated amount of such reduction
(calculated on the same basis as if it had been a reduction under a
Relevant Retained Guarantee LC) to such account as the Vendor may
direct.
8.4 The Purchaser agrees that it shall not make any demand under or in
respect of any Relevant Retained Guarantee LC or take any action to
enforce any Relevant Security except as entitled to do so pursuant to
clause 10.13 of the Sale Agreement or as contemplated in clause 8.2
above.
8.5 For the purposes of this clause 8, the amount of the Retained Guarantee
Reduction and any Security Reduction shall in respect of any Retained LC
Backed Guarantee be calculated by reference to the US$ amount specified
in column 5 of Schedule 18, Part B2 to the Sale Agreement against the
relevant Retained LC Backed Guarantee.
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9. THE DESIGNATED ASSET LETTERS OF CREDIT
9.1 On and from Completion the Purchaser shall, and the Vendor shall procure
that ABB Credit Limited shall, as soon as practicable after becoming
aware of any reduction in the amount required to be covered by any
letter of credit issued pursuant to clause 4 of the Designated Asset
Agreement (as amended by the Supplemental Designated Asset Agreement) (a
"DESIGNATED ASSET REDUCTION") (and each party agrees to notify the other
of any such reduction as soon as practicable after becoming aware of the
same) deliver to the issuer of any letter of credit provided in
accordance with clause 4 of the Designated Asset Agreement (as amended)
or any replacement thereof (each a "RELEVANT DESIGNATED ASSET LC") a
certificate in the form annexed to any Relevant Designated Asset LC
confirming the new maximum amount of the Relevant Designated Asset LC
which shall be an amount equal to the maximum amount of the Relevant
Designated Asset LC immediately prior to the Designated Asset Reduction
less an amount equal to the pro-rata (as between each such letter of
credit issued at such time) amount of such Designated Asset Reduction.
9.2 The Purchaser agrees that it shall not make any demand under or in
respect of a Relevant Designated Asset LC except as entitled to do so
pursuant to clause 7.3 of the Designated Asset Agreement (as amended).
10. INTRA-GROUP GUARANTEES
The parties agree that Schedule 18 to the Sale Agreement shall be
amended and replaced in the manner set out at Schedule 6 hereto.
11. SIRIUS AMENDMENTS
The parties agree that clause 10.44A(b) of the Sale Agreement shall be
amended by the addition to the end thereof, after the word "fund" and
before the ";", of the following sentence:
". The proceeds received by SECRF and SECRE shall be reduced by the
amount of the Excluded Aircraft Reserves allocated to the aircraft
assets in clause 10.44A(a) by transfer of those proceeds with the
Excluded Aircraft Assets and the remaining balance, after allocation of
outstanding claims, shall be recorded as a general provision on the
balance sheets of SECRF and SECRE with the balance being split 64% and
36% to SECRF and SECRE respectively"
12. PURCHASER OF GBFSF NOMINEE SHARE
In accordance with clause 2.3 of the Sale Agreement, the parties hereby
agree that GESF-XVII LLC, a Delaware LLC, shall replace GE Capital
Structured Finance Group, Inc as the relevant Share Purchaser and
Designated Purchaser of one of the 25 per cent nominee shareholdings in
ABB Structured Finance Limited ("GBFSF"), for all purposes, including
(without limitation) for the purposes of Schedule 20 of the Sale
Agreement and the relevant Local Transfer Agreement(s).
13. EMPLOYMENT AMENDMENTS
13.1 The parties each agree that the Sale Agreement shall be amended as
follows:
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13.1.1 clause 16.1 of the Sale Agreement shall be deleted and
replaced with the following:
(a) "With effect from Relevant Transfer Date, the
Transfer Employees will cease to be employed by the
Transfer Employee Transferors and will transfer
to/commence employment with (as appropriate) the
Transfer Employee Transferees";
13.1.2 clause 16.2 of the Sale Agreement shall be amended by deleting
the words:
"If, following Completion, any person not designated as a
Transfer Employee" and replacing them with the words: "If,
following the Relevant Transfer Date, any employee of a
Transfer Employee Transferor not designated a Transfer
Employee";
13.1.3 clause 16.3 of the Sale Agreement shall be amended by deleting
the word "Completion" and replacing it with "Relevant Transfer
Date";
13.1.4 a new clause 16.5 shall be added as follows:
"The Vendor agrees on or before Completion to transfer the
Excluded Employees out of the relevant SF Group Company (in
accordance with Schedule 17 Part D of this Agreement) and
further the Vendor shall indemnify the Purchaser for itself
and on behalf of each of its Affiliates from and against all
costs, claims, liabilities and reasonable expenses incurred by
any of them arising out of any claim by any of the Excluded
Employees that their employment, any liability associated with
the termination of their employment, or any liability for
failure to consult has transferred to the Purchaser or any of
its Affiliates.";
13.1.5 a new Clause 16.6 shall be added as follows:
"Prior to Completion, the Vendor shall terminate the
employment of the Czech Employees listed in the Schedule 17
Part E of this Agreement and the Purchaser shall indemnify the
Vendor for such costs associated with the termination of their
employment as are reasonably incurred in carrying out such
termination (including all contractual payments and any
statutory redundancy payment to which the Czech Employees are
entitled on such termination) net, in each case, of any Tax
savings or benefits to which the Vendor may be or become
entitled as a result of such costs having been or being
incurred.";
13.1.6 a new clause 16.7 shall be added as follows:
"For the purposes of this clause 16, the "RELEVANT TRANSFER
DATE" shall be the transfer date identified in Schedule 17
Part B of this Agreement and "EXCLUDED EMPLOYEES" shall be
those employees listed in Schedule 17 Part D of this
Agreement.";
13.1.7 Part B of Schedule 17 to the Sale Agreement shall be deleted
and replaced with the amended Schedule attached to this
Amendment Agreement as Schedule 1;
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13.1.8 a new Part D of Schedule 17 shall be added to the Sale
Agreement in the form attached to this Amendment Agreement as
Schedule 2; and
13.1.9 a new Part E of Schedule 17 shall be added to the Sale
Agreement in the form attached to this Amendment Agreement as
Schedule 3.
13.2 For the avoidance of doubt, the remainder of clause 16 of the Sale
Agreement shall be unaffected by this clause 13 of this Amendment
Agreement.
14. PROPERTY MATTERS
14.1 The parties agree to amend clause 10.23 of the Sale Agreement by:
14.1.1 adding the following provisions to the end of clause 10.23 as
sub-paragraphs (t) and (u) thereof:
(t) in respect of any lease or leases superior to the
leases specified in Part A of Schedule 5 which lease
or leases have not been disclosed to the Purchaser
prior to Completion, any tenant's obligations,
covenants or duties contained in any such superior
lease or leases to the extent such are more onerous
than those contained within the leases specified in
Part A of Schedule 5;
(u) in respect of the SF Group Property in France
(referred to as property number 20 in Part A of
Schedule 5):
(i) any successful claim to title to this
property brought by a third party;
(ii) any non-payment of any seller's and/or
money lender's lien ("privilege du vendeur
et du preteur de deniers") or any other
Encumbrance over such property ; and
14.1.2 as a consequence, deleting the "." at the end of sub-paragraph
(s) and replacing it with a ";".
14.2 The parties agree to amend row numbered 29 of Schedule 5, Part B to the
Sale Agreement by:
14.2.1 deleting and replacing the reference in the second column
thereof to "Part 3rd floor" with a reference to "Part 2nd
floor";
14.2.2 deleting and replacing the reference in the ninth column
thereof to "CHF 121,000 per quarter" with a reference to "CHF
282,000 per annum"; and
14.2.3 deleting and replacing the reference in the tenth column
thereof to "25 car parking spaces" with a reference to "17 car
parking spaces".
15. DIRECTORS' RESIGNATION INDEMNITY
The parties agree to further amend clause 10.23 of the Sale Agreement
by:
15.1 adding the following provision to the end of clause 10.23 as
sub-paragraph (v) thereof:
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"(v) in respect only of Mr Ove Bertills and Mr Gunnar Backman if
either of them resigns his office as a director of an SF Group
Company at, in anticipation of or pursuant to Completion and
who does not, as part of such resignation, waive in full all
claims against members of the SF Group arising as a result of
his holding of the office of director with the relevant
member(s) of the SF Group and/or the termination of such
holding of office, any such claims brought by or on behalf of
him against any member(s) of the SF Group."; and
15.2 as a consequence, deleting the "." at the end of new sub-paragraph (u)
and replacing it with a ";".
16. NOTICES
The parties agree that clause 30.2 of the Sale Agreement shall be
amended by deleting the name "GE Capital Structured Finance Inc." and
replacing it with the name "GE Structured Finance, Inc.".
17. POST COMPLETION FURTHER ASSURANCE
The parties agree that to the extent that any of the parties are obliged
under the terms of any of the Transaction Documents (as amended and/or
restated from time to time) to complete or implement (or procure the
completion or implementation of) a matter as at, on or before Completion
and such matter is not so completed and/or implemented as at or on
Completion, then, save to the extent that any of such Transaction
Documents provides otherwise, the parties shall (unless they agree
otherwise) continue to perform their respective obligations under such
Transaction Documents after Completion, mutatis mutandis, on the same
terms, so as to complete or implement (or procure the completion or
implementation of), as the case may be, such matter as soon as
reasonably practicable following Completion.
18. COMPLETION ARRANGEMENTS
18.1 The parties agree that paragraph 1(g) of Schedule 7, Part B to the Sale
Agreement shall be amended by the deletion of sub-paragraph (iii)
thereof in its entirety.
18.2 The parties agree that paragraph 2 of Schedule 7, Part B to the Sale
Agreement shall be amended by the deletion of the words "the Agreed Form
Documents" and the substitution therefor of the words "such Transaction
Documents as have not been executed and delivered on or before
Completion and".
19. MISCELLANEOUS AMENDMENTS
The parties agree that Part A of Schedule 2 to the Sale Agreement shall be
amended by replacing the reference to "AC: 2,000 shares @ $1.00 each" in column
5 of row number 8 in respect of ABB Structured Finance (Americas) Inc (USSTF)
with the words "AC: 1,000 shares @ $1.00 each".
20. CONSTRUCTION
20.1 The Sale Agreement shall hereafter be read and construed as amended by
this Amendment Agreement and references to the Sale Agreement shall, for
all purposes,
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hereafter be read and construed as references to the Sale Agreement as
amended by this Amendment Agreement.
20.2 Subject to clause 21.2 below, the terms of the Sale Agreement, as
amended by this Amendment Agreement, are hereby confirmed and remain in
full force and effect.
20.3 For the avoidance of doubt, the definition of Transaction Documents in
the Sale Agreement shall, for all purposes, hereafter be construed so as
to include this Amendment Agreement.
21. INCORPORATION OF PROVISIONS OF THE SALE AGREEMENT
21.1 The provisions of clauses 1, 18, 20 to 34 (inclusive) and 36 of and
Schedule 1 to the Sale Agreement shall apply mutatis mutandis to this
Amendment Agreement.
21.2 To the extent that there is any inconsistency between any provision of
the Sale Agreement and any provision of this Amendment Agreement, the
provision of this Amendment Agreement shall prevail.
22. CHANNELLING INJUNCTION
22.1 The parties agree that clause 10 of the Sale Agreement shall be amended
by:
22.1.1 changing the heading from "VENDOR UNDERTAKINGS AND
INDEMNITIES" to "VENDOR/ABB UNDERTAKINGS AND INDEMNITIES"; and
22.1.2 the inclusion therein of a new clause 10.56, in the following
form:
"CHANNELLING INJUNCTION
10.56 In the event that the ABB Guarantor or any other
member of the ABB Group seeks to obtain an injunction under
section 524(g) of the US Bankruptcy Code or any successor law
or law of similar effect (a "Channelling Injunction"), then
the ABB Guarantor shall:
10.56.1 use its reasonable endeavours to procure
that such Channelling Injunction and all
the benefits and protections thereof shall
extend to and cover each member of the SF
Group and shall include provisions which
shall enjoin and prevent the assertion,
prosecution or recovery of any Asbestos
Liability against any member of the SF
Group;
10.56.2 use its reasonable endeavours to define
the scope of the Channelling Injunction so
as not to cover the indemnity given under
clause 10.23(l) hereof, the Warranty given
under paragraph 30 of Schedule 3 hereto
and, in each case in relation thereto, the
guarantee given by the ABB Guarantor under
clause 35 hereof; and
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10.56.3 not, in any event, assert or rely upon the
Channelling Injunction ultimately issued
in any way that would limit, impair or
affect the validity or enforceability of
such indemnity, Warranty or guarantee."
22.2 The parties further agree that the following definition shall be added
to Schedule 1 to the Sale Agreement:
"ASBESTOS LIABILITY means any loss, liability, claim, remedy, damage,
debt or obligation (now existing or hereafter arising) to the extent
that, directly or indirectly, such is caused or allegedly caused by or
otherwise arises out of or relates to the presence of, or exposure to,
asbestos or asbestos-containing products or materials, including,
without limitation, any loss, liability, claim, remedy, damage, debt or
obligation for compensatory damages (such as loss of consortium,
wrongful death, survivorship, proximate, consequential, general or
special damages) or punitive damages and any loss, liability, claim,
remedy, damage, debt or obligation for reimbursement, indemnification,
subrogation or contribution, and ASBESTOS LIABILITIES shall be construed
accordingly;".
23. ADDITIONAL ASBESTOS WARRANTIES
The parties agree that:
23.1 Schedule 3 to the Sale Agreement shall be amended by the addition
thereto of new paragraph 30 in the following form:
"30. ASBESTOS LIABILITY
30.1 No member of the Extended SF Group and no assets, business,
operations or properties of the SF Business or any member of
the Extended SF Group have had, have or will have any
liability, obligations or duties (whether actual or
contingent) which, directly or indirectly, are caused or
allegedly caused by or arise out of or relate to any ABB
Asbestos Liabilities, and no facts, matters or circumstances
exist which will or may give rise to any such liability,
obligations or duties.
30.2 No member of the Extended SF Group has had, has or will have
any liability (whether actual or contingent) for, in respect
of or to discharge any ABB Asbestos Liabilities of any entity
or person with which such member is or was affiliated,
including, (without limitation) any other member of the ABB
Group from time to time (including, for this purpose, any
former member of the ABB Group and any other member of the
Extended SF Group), and no facts, matters or circumstances
exist which will or may give rise to any such liability.";
23.2 the following new definitions shall be added to Schedule 1 of the Sale
Agreement:
"ABB ASBESTOS LIABILITY means:
(a) any Asbestos Liability caused by or arising or resulting from
any connection or relationship subsisting on or before
Completion between any member of the Extended SF Group (or any
other entity or person) and the Combustion Engineering
business, division or group (including any business, asset,
liability,
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division, company or member forming part thereof or included
therein, in each case, at any time);
(b) any Asbestos Liability caused by or arising or resulting from
any connection or relationship subsisting on or before
Completion between any member of the Extended SF Group (or any
other entity or person) and any member of the EXTENDED ABB
GROUP (being the ABB Group from time to time, including former
members of the ABB Group); and
(c) any other Asbestos Liability, other than any Asbestos
Liability caused by or arising or resulting from:
i) the conduct of the SF Group and/or the SF Business
after Completion, save to the extent such conduct is
pursuant to an obligation or commitment (whether
actual or contingent) existing as at Completion; or
ii) the conduct of the Purchaser's Group (other than the
SF Group and/or the SF Business after Completion),
and ABB ASBESTOS LIABILITIES shall be construed accordingly;
ASBESTOS CLAIM means any claim in respect of any Asbestos Warranty
and/or the Asbestos Indemnity;
ASBESTOS INDEMNITY means the indemnity contained in clause 10.23(l);
ASBESTOS WARRANTIES means the Warranties set out in paragraph 30 of
Schedule 3 (Vendor Warranties), and ASBESTOS WARRANTY shall be construed
accordingly;";
23.3 clause 11 of the Sale Agreement shall be amended by the addition thereto
of new clauses 11.18 to 11.21 (inclusive), in the following form:
"11.18 Subject to clause 11.20 below, nothing (and nothing to the
contrary) in this Agreement (as amended and/or restated from
time to time), any of the Transaction Documents or any other
documents ancillary to or contemplated by any of the above
documents (including, without limitation, any updated
Disclosure Letter) shall, or shall operate to:
11.18.1 qualify, limit or otherwise restrict in any way any
of the Asbestos Warranties or the Asbestos
Indemnity; or
11.18.2 limit, reduce, extinguish or discharge in any way
any liability of the Vendor or the ABB Guarantor in
respect of any Asbestos Claim.
11.19 Accordingly, subject to clause 11.20 below and without
prejudice to the generality of clause 11.18 above, the
following documents and provisions shall not apply to or in
respect of any Asbestos Warranty, Asbestos Indemnity or
Asbestos Claim:
11.19.1 the Disclosure Letter (or any updated Disclosure
Letter) and any reference to the Disclosure Letter
(or any updated Disclosure
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Letter) when taken in the context of any Asbestos
Warranty, Asbestos Indemnity or Asbestos Claim; and
11.19.2 clauses 11.4, 11.6(c) and 13 of the Sale Agreement.
11.20 The provisions of clauses 13.16, 13.17, 13.20 and 13.21 of the
Sale Agreement shall, notwithstanding clauses 11.18 and 11.19
above, apply to any Asbestos Claim.
11.21 To the extent that any of the provisions of clauses 11.18 and
11.19 are inconsistent with any other provisions of this
Agreement, any of the Transaction Documents or any other
document ancillary to or contemplated by any of the above
documents (including, without limitation, any updated
Disclosure Letter), the provisions of clauses 11.18 and 11.19
shall prevail and apply."
23.4 clause 15.1(a) of the Sale Agreement shall be amended by the addition
thereto immediately after the words "(The Vendor's Capacity)" of the
words ", paragraph 30 (Asbestos Liability)"; and
23.5 the introduction to the Disclosure Letter be amended by:
23.5.1 the insertion of a new paragraph (b) thereto, in the following
form:
"(b) no matter shall be disclosed or deemed to be disclosed against
any of the Warranties set out in paragraph 30 of Schedule 3 to
the Agreement; and"
23.5.2 deleting the word "and" at the end of the existing paragraph
(a) thereof; and
23.5.3 renumbering existing paragraph (b) thereof as new paragraph
(c).
24. AMENDMENT TO ASBESTOS INDEMNITY
The parties agree that clause 10.23(l) of the Sale Agreement shall be
amended by deleting the words "(excluding the SF Business)" currently
included therein.
25. FRAUDULENT CONVEYANCE
The parties hereto agree to amend paragraph 18 of Schedule 3 to the Sale
Agreement by the addition thereto of new paragraph 18.4, in the
following form:
"18.4 No member of the Extended SF Group nor any Designated Vendor
is or has ever been a party to any transaction (including,
without limitation, any transaction with any past or present
member of the Combustion Engineering division of the ABB
Group) which has been, is or is reasonably likely to be the
subject of a claim, or to be set aside on the grounds, that
such transaction (or any part thereof) is a fraudulent
conveyance or a transaction defrauding creditors, and no
facts, matters or circumstances exist which will or are
reasonably likely to give rise to any such transaction being
the subject of such a claim or being so set aside."
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26. REPRESENTATIONS AND WARRANTIES
Each of the parties represents and warrants that it has the right, power
and authority and has taken all action necessary to execute and deliver,
and to exercise its rights and perform its obligations under, this
Amendment Agreement.
IN WITNESS whereof this Amendment Agreement is executed and delivered as a deed
by the parties on the date first above written.
EXECUTED as a DEED and DELIVERED )
on behalf of ABB FINANCIAL SERVICES B.V. ) /s/ Brian Van Reijn
a company incorporated in The Netherlands )
by MANFRED EBLING and BRIAN VAN REIJN )
being persons who, in accordance with the ) /s/ Manfred Ebling
laws of that territory, are acting as proxies of )
ABB FINANCIAL SERVICES B.V. )
EXECUTED as a DEED and DELIVERED )
on behalf of GENERAL ELECTRIC CAPITAL )
CORPORATION, a company incorporated in the )
State of Delaware by SIMON YORK being a person ) /s/ Simon York
who, in accordance with the laws of that )
territory, is acting under the authority of )
GENERAL ELECTRIC CAPITAL CORPORATION )
EXECUTED as a DEED and DELIVERED )
on behalf of ABB LTD, a company ) /s/ Eric Elzvik
incorporated in Switzerland by ERIC ELZVIK )
and DANIEL SHINDLEMAN being persons )
who, in accordance with the laws of that ) /s/ Daniel Schindleman
territory, are acting under the authority of ABB LTD )
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