1
EXHIBIT 4.5
EUR 1,330,000,000
Term Loan Facility
AGREEMENT
15th June, 2001
EUR 1,330,000,000
TERM LOAN FACILITY
for
SONERA CORPORATION
arranged by
CITIBANK, N.A.
DEUTSCHE BANK AG LONDON
DRESDNER BANK AG LONDON BRANCH
▇.▇. ▇▇▇▇▇▇ plc
and
▇▇▇▇▇▇ BANK PLC
with
CITIBANK INTERNATIONAL plc
acting as Agent
2
BK:869364.1
--------------------------------------------------------------------------------
INDEX
CLAUSE PAGE
------ ----
1. Interpretation.......................................................................................1
2. Facility............................................................................................10
3. Purpose.............................................................................................10
4. Conditions Precedent................................................................................10
5. Drawdown............................................................................................11
6. Repayment...........................................................................................11
7. Prepayment and Cancellation.........................................................................11
8. Interest Periods....................................................................................13
9. Interest............................................................................................14
10. Payments............................................................................................16
11. Taxes...............................................................................................18
12. Market Disruption...................................................................................19
13. Increased Costs.....................................................................................21
14. Illegality..........................................................................................22
15. Representations and Warranties......................................................................22
16. Undertakings........................................................................................26
17. Default.............................................................................................30
18. The Agent and the Mandated Lead Arrangers...........................................................34
19. Fees................................................................................................38
20. Expenses............................................................................................39
21. Stamp Duties........................................................................................39
22. Indemnities.........................................................................................39
23. Evidence and Calculations...........................................................................40
24. Amendments and Waivers..............................................................................41
25. Changes to the Parties..............................................................................42
26. Disclosure of Information...........................................................................44
27. Set-Off.............................................................................................45
28. Pro-Rata Sharing....................................................................................45
29. Severability........................................................................................46
30. Counterparts........................................................................................47
31. Notices.............................................................................................47
32. Language............................................................................................48
33. Jurisdiction........................................................................................48
34. Waiver of Immunity..................................................................................49
35. Governing Law.......................................................................................50
--------------------------------------------------------------------------------
3
BK:869364.1
--------------------------------------------------------------------------------
SCHEDULES PAGE
--------- ----
1. Banks and Commitments...............................................................................51
2. Conditions Precedent Documents......................................................................52
3. Form of Request.....................................................................................54
4. Form of Novation Certificate........................................................................55
5. Mandatory Cost Formula..............................................................................57
6. Confidentiality Undertaking.........................................................................59
SIGNATORIES..................................................................................................60
--------------------------------------------------------------------------------
4
--------------------------------------------------------------------------------
THIS AGREEMENT is dated 15th June, 2001 between:
(1) SONERA CORPORATION (the "BORROWER");
(2) CITIBANK, N.A., DEUTSCHE BANK AG LONDON, DRESDNER BANK AG LONDON
BRANCH, ▇.▇. ▇▇▇▇▇▇ plc AND ▇▇▇▇▇▇ BANK PLC as arrangers (in this
capacity the "MANDATED LEAD ARRANGERS");
(3) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as banks (the "BANKS");
and
(4) CITIBANK INTERNATIONAL plc as agent (in this capacity the "AGENT").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AFFILIATE"
means a Subsidiary or a Holding Company of a person or any other
Subsidiary of that Holding Company.
"BUSINESS DAY"
means:
(a) a day (other than a Saturday or Sunday) on which the banks are
open for general business in London; and
(b) a TARGET Day.
"COMMITMENT"
means:
(a) in relation to a Bank which is a Bank on the date of this
Agreement, the amount in Euros set opposite its name in the
Column headed "COMMITMENTS" in Schedule 1 and the amount of
any other Bank's Commitment acquired by it under Clause 25
(Changes to the Parties); and
(b) in relation to a Bank which becomes a Bank after the date of
this Agreement, the amount of any other Bank's Commitment
acquired by it under Clause 25 (Changes to the Parties),
to the extent not cancelled, reduced or transferred under this
Agreement.
--------------------------------------------------------------------------------
5
2 BK:869364.1
--------------------------------------------------------------------------------
"COMMITMENT PERIOD"
means the period from the date of this Agreement up to and including
the date which is three months thereafter.
"DANGEROUS SUBSTANCE"
means any radioactive emissions, noise, any natural or artificial
substance (whether in the form of a solid, liquid, gas or vapour) the
generation, transportation, storage, treatment, use or disposal of
which (whether alone or in combination with any other substance)
including (without limitation) any controlled, special, hazardous,
toxic, radioactive or dangerous substance or waste, gives rise to a
material risk of causing harm to man or any other living organism or
damage to the Environment.
"DEFAULT"
means an Event of Default or an event which, with the giving of notice,
lapse of time, determination of materiality or fulfilment of any other
applicable condition, in each case as specified in this Agreement (or
any combination of the foregoing), would constitute an Event of
Default.
"DRAWDOWN DATE"
means the date of the advance of the Loan.
"ENVIRONMENT"
means all, or any of, the following media, the air (including, without
limitation, the air within buildings and the air within other natural
or man-made structures above or below ground), water (including,
without limitation, ground and surface water) and land (including,
without limitation, surface and sub-surface soil).
"ENVIRONMENTAL CLAIM"
means any claim by any person:
(a) in respect of any loss or liability suffered or incurred by
that person as a result of or in connection with any violation
of Environmental Law; or
(b) that arises as a result of Environmental Contamination and
that would be reasonably likely to give rise to any remedy or
penalty (whether interim or final) that may be enforced or
assessed by private or public legal action or administrative
order or proceedings, including without limitation, any such
claim arising from injury to persons, property or natural
resources.
"ENVIRONMENTAL CONTAMINATION"
means each of the following and their consequences:
(a) any release, emission, leakage or spillage of any Dangerous
Substance at or from any site owned, occupied or used by any
member of the Group into any part of the Environment; or
--------------------------------------------------------------------------------
6
3 BK:869364.1
--------------------------------------------------------------------------------
(b) any accident at any site owned, occupied or used by any member
of the Group which is caused by or attributable to any
Dangerous Substance; or
(c) any other pollution of the Environment.
"ENVIRONMENTAL LAW"
means all applicable laws (including, without limitation, common law),
regulations, directing codes of practice, circulars, guidance notices
and the like having the force of law concerning pollution of the
Environment or the generation, transportation, storage, treatment or
disposal of Dangerous Substances but excluding any such laws,
regulations, directing codes of practice guidance notices or the like
which have as their primary purpose the securing of the health or
safety of persons at work.
"ENVIRONMENTAL LICENCE"
means any permit, licence, authorisation, consent or other approval
required by any Environmental Law.
"EURIBOR"
means:
(a) the applicable Screen Rate; or
(b) if no Screen Rate is available for the relevant period, the
arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the European interbank
market, at or about 11.00 a.m. Brussels time on the Rate
Fixing Day for the offering of deposits in euros for a period
comparable to the relevant Interest Period.
"EURO" or "Euro"
means the single currency of the Participating Member States.
"EVENT OF DEFAULT"
means an event specified as such in Clause 17.1 (Events of Default).
"EXISTING FACILITY"
means the Euro 3,250,000,000 term loan facility between (amongst
others) the Borrower and Citibank N.A., Deutsche Bank AG London Branch,
Dresdner Bank AG London Branch, ▇.▇. ▇▇▇▇▇▇ Securities Ltd. and ▇▇▇▇▇▇
Bank plc as Arrangers, dated 31st October, 2000.
"FACILITY"
means the term loan facility referred to in Clause 2.1 (The Facility).
--------------------------------------------------------------------------------
7
4 BK:869364.1
--------------------------------------------------------------------------------
"FACILITY OFFICE"
means the office(s) notified by a Bank to the Agent:
(a) on or before the date it becomes a Bank; or
(b) by not less than five Business Days' notice,
as the office(s) through which it will perform all or any of its
obligations under this Agreement.
"FEE LETTER"
means the letter dated the date of this Agreement between the Mandated
Lead Arrangers and the Borrower or the letter dated the date of this
Agreement between the Agent and the Borrower, in each case setting out
the amount of various fees referred to in Clause 19 (Fees).
"FINAL MATURITY DATE"
means the third anniversary of the date of this Agreement, or, if that
day is not a Business Day, the preceding Business Day.
"FINANCE DOCUMENT"
means this Agreement, a Fee Letter, the Novation Certificate or any
other document designated as such by the Agent and the Borrower.
"FINANCE PARTY"
means a Mandated Lead Arranger, a Bank or the Agent.
"FINANCIAL INDEBTEDNESS"
means any indebtedness in respect of:
(a) moneys borrowed and debit balances at banks and other
financial institutions;
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance credit, or any documentary credit (other than a
documentary credit entered into in the ordinary course of
business);
(d) receivables sold or discounted (otherwise than on a
non-recourse basis);
(e) the acquisition cost of any asset to the extent payable before
or after the time of acquisition or possession by the party
liable where the advance or deferred payment is arranged
primarily as a method of raising finance or financing the
acquisition of that asset and where the advance or deferral is
for a period in excess of 180 days;
(f) any lease entered into primarily as a method of raising
finance or financing the acquisition of the asset leased;
--------------------------------------------------------------------------------
8
5 BK:869364.1
--------------------------------------------------------------------------------
(g) any currency swap or interest swap, cap or collar arrangements
or any other derivative instrument (and the amount of the
indebtedness in relation to any such transaction shall be
calculated by reference to the ▇▇▇▇-to-market valuation of
such transaction at the relevant time calculated in accordance
with the usual practice of the counterparty to such
transaction);
(h) any amount raised under any other transaction having the
commercial effect of a borrowing of money;
(i) any counter-indemnity by one member of the Group under any
guarantee, letter of credit or bonding facility entered into
by any other member of the Group; or
(j) any guarantee, indemnity or similar assurance against
financial loss of any person in respect of any of the items
listed in (a) to (i) (inclusive) above.
"FINLAND"
means the Republic of Finland.
"GROUP"
means the Borrower and its Subsidiaries.
"HOLDING COMPANY"
means in relation to a person, an entity of which that person is a
Subsidiary.
"INTEREST DATE"
means the last day of an Interest Period.
"INTEREST PERIOD"
means each period determined in accordance with Clause 8 (Interest
Periods).
"LOAN"
means the principal amount of the borrowing by the Borrower under this
Agreement or the principal amount outstanding of that borrowing.
"MAJORITY BANKS"
means, at any time, Banks:
(a) whose participations in the outstanding Loan aggregate more
than 66 2/3 per cent.; or
(b) if the Loan is not outstanding, whose Commitments then
aggregate more than 66 2/3 per cent. of the Total Commitments;
or
(c) if the Loan is not then outstanding and the Total Commitments
have been reduced to nil, whose Commitments aggregated more
than 66 2/3 per cent. of the Total Commitments immediately
before the reduction.
--------------------------------------------------------------------------------
9
6 BK:869364.1
--------------------------------------------------------------------------------
"MANDATORY COST"
means the percentage rate per annum calculated by the Agent in
accordance with Schedule 5 (Mandatory Cost Formulae).
"MARGIN"
means the percentage rate per annum determined in accordance with
Clause 9.5 (Margin).
"MATERIAL SUBSIDIARY"
means at any time:
(a) any Subsidiary of the Borrower whose Total Assets or (in the
case of a Subsidiary which has Subsidiaries) consolidated
Total Assets represent 10 per cent. or more of the Total
Consolidated Assets; or
(b) any Subsidiary of the Borrower whose turnover represents 10
per cent. or more of the aggregate turnover of the Group,
determined, by reference to the then most recent accounts of the Group
and any accounts of that Subsidiary (and its Subsidiaries) used in
compiling those accounts; or
(c) any Subsidiary of the Borrower which became a member of the
Group after the date of the latest consolidated audited
accounts of the Group at the time of determination and which
would fulfil any of the tests in (a) to (b) above if tested on
the basis of its latest audited accounts (consolidated if it
itself has Subsidiaries) and those latest audited accounts of
the Group; or
(d) prior to the delivery of each set of accounts pursuant to
Clause 16.2 (Financial information), any Subsidiary of the
Borrower to which has been transferred (whether by one
transaction or a series of transactions, related or not) the
whole or substantially the whole of the assets of a Subsidiary
which immediately prior to such transaction or any of such
transactions was a Material Subsidiary.
"MOODY'S"
means ▇▇▇▇▇'▇ Investors Service, Inc. (including any successor,
transferee and/or assign).
"NOVATION CERTIFICATE"
has the meaning given to it in Clause 25.3 (Procedure for novations).
"ORIGINAL GROUP ACCOUNTS"
means the audited consolidated accounts of the Group for the year ended
31st December, 2000.
"PARTY"
means a party to this Agreement.
--------------------------------------------------------------------------------
10
7 BK:869364.1
--------------------------------------------------------------------------------
"PARTICIPATING MEMBER STATE"
means a member state of the European Communities that adopts the euro
as its currency in accordance with legislation of the European Union
relating to European Economic and Monetary Union.
"PROJECT COMPANY"
means any Subsidiary of the Borrower:
(a) which is a company whose principal assets and business are
constituted by the ownership, acquisition, development and/or
operation of an asset or project; and
(b) which has been designated as such by the Borrower to the
Agent.
"PROJECT DEBT"
means any Financial Indebtedness incurred by a Project Company in
relation to any asset or project solely for the purposes of financing
the whole or any part of the acquisition, creation, construction or
development of such asset or project, to the extent that the financial
institutions to which such Financial Indebtedness is owed have recourse
solely to the assets of that Project Company or to the shares of the
Project Company.
"RATE FIXING DAY"
means the second TARGET Day before the first day of an Interest Period
for the Loan.
"REFERENCE BANKS"
means, subject to Clause 25.4 (Reference Banks), the Agent, Deutsche
Bank AG London and Dresdner Bank AG London.
"REQUEST"
means a request made by the Borrower for the Loan, substantially in the
form of Schedule 3.
"SCREEN RATE"
means, in relation to EURIBOR, the percentage rate determined by the
Banking Federation of the European Union for the euro and for a period
equal or comparable to the required period displayed on page 248 of the
Telerate Screen.
"SECURITY INTEREST"
means any mortgage, pledge, lien, charge, assignment, hypothecation or
security interest or any other agreement or arrangement having the
effect of conferring security (but not including any title retention
arrangement over stock in trade in favour of the supplier of that
stock, to secure the purchase price of the stock, and entered into on
arm's length terms in the ordinary course of business).
"S&P"
means Standard & Poor's Ratings Group (including any successor,
transferee and assign).
--------------------------------------------------------------------------------
11
8 BK:869364.1
--------------------------------------------------------------------------------
"SUBSIDIARY"
means an entity from time to time:
(a) of which a person owns or (as the case may be) has directly or
indirectly more than fifty per cent. (50%) of the share
capital or the voting rights (howsoever described); or
(b) which is treated in the audited accounts of the relevant
person as being a subsidiary of that person or, if not the
same, any entity whose accounts are to be fully consolidated
into the accounts of the relevant person for the purposes of
any applicable legislation in force at the relevant time.
"TARGET DAY"
means a day on which the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System is open.
"TOTAL ASSETS"
means at any time in relation to any company, the aggregate of the book
value of the relevant company's assets as determined by reference to
the latest unconsolidated accounts of the relevant company (whether
audited or unaudited).
"TOTAL COMMITMENTS"
means the aggregate for the time being of the Commitments, being
Euro 1,330,000,000 at the date of this Agreement.
"TOTAL CONSOLIDATED ASSETS"
means at any time the consolidated assets of the Group as determined
(save where this Agreement provides otherwise) by reference to the
latest consolidated financial statements of the Group delivered under
Clause 16.2 (Financial information) (whether audited or unaudited),
being in the case of the Borrower the Original Group Accounts until
such time as accounts are first delivered under Clause 16.2 (Financial
Information).
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference
to:
(i) an "AMENDMENT" includes a supplement, novation or re-enactment
and "AMENDED" is to be construed accordingly;
"ASSETS" includes present and future properties, revenues and
rights of every description;
an "AUTHORISATION" includes an authorisation, consent,
approval, resolution, licence, exemption, filing or
registration;
--------------------------------------------------------------------------------
12
9 BK:869364.1
--------------------------------------------------------------------------------
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day
in the next calendar month, except that:
(1) if there is no numerically corresponding day in the
month in which that period ends, that period shall
end on the last Business Day in that calendar month;
or
(2) if an Interest Period commences on the last Business
Day of a calendar month, that Interest Period shall
end on the last Business Day in the calendar month in
which it is to end;
a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law, but if not having the force of law, being of a
type with which banks to whom the relevant regulation is
addressed customarily comply) of any governmental,
intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or
organisation; and
a "SCREEN" or "PAGE" on a "Screen" in the definition of
"Screen Rate" includes any replacement screen or page
nominated by the Banking Federation of the European Union as
the information vendor for the purpose of displaying Banking
Federation of the European Union Interest Settlement Rates for
deposits in euros;
(ii) a provision of law is a reference to that provision as amended
or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a
schedule to this Agreement;
(iv) a person includes its successors, transferees and assigns;
(v) a Finance Document or another document is a reference to that
Finance Document or other document as amended, novated or
supplemented; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in
this Agreement.
(c) The index to and the headings in this Agreement are for convenience
only and are to be ignored in construing this Agreement.
(d) (i) Unless expressly provided to the contrary in a Finance
Document, a person who is not a party to a Finance Document
may not enforce any of its terms under the Contracts (Rights
of Third Parties) ▇▇▇ ▇▇▇▇.
(ii) Notwithstanding any term of any Finance Document, the consent
of any third party is not required for any variation
(including any release or compromise of any liability under)
or termination of that Finance Document.
--------------------------------------------------------------------------------
13
10 BK:869364.1
--------------------------------------------------------------------------------
2. FACILITY
2.1 THE FACILITY
Subject to the terms of this Agreement, the Banks agree to grant to the
Borrower a term loan facility. No Bank is obliged to lend more than its
Commitment.
2.2 NATURE OF A FINANCE PARTY'S RIGHTS AND OBLIGATIONS
(a) The obligations of a Finance Party under the Finance Documents are
several. Failure of a Finance Party to carry out those obligations does
not relieve any other Party of its obligations under the Finance
Documents. No Finance Party is responsible for the obligations of any
other Finance Party under the Finance Documents.
(b) The rights of a Finance Party under the Finance Documents are divided
rights. A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce those rights.
3. PURPOSE
(a) The Borrower shall use the Loan for its general corporate purposes
including to refinance the Group's indebtedness under the Existing
Facility.
(b) Without affecting the obligations of the Borrower in any way, no
Finance Party is bound to monitor or verify the application of the
Loan.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
The obligation of each Bank to participate in the Loan is subject to
the condition precedent that the Agent has notified the Borrower and
the Banks that it has received all of the documents set out in Schedule
2 in form and substance satisfactory to the Agent. Without prejudice to
the foregoing or to its indemnity to the Finance Parties in Clause
22.2(d) (Other indemnities), the Borrower may deliver the Request prior
to receiving such notice from the Agent.
4.2 FURTHER CONDITIONS PRECEDENT
The obligation of each Bank to participate in the Loan is subject to
the further conditions precedent that:
(a) on both the date of the Request and the Drawdown Date:
(i) the representations and warranties in Clause 15
(Representations and Warranties) to be repeated on
those dates are correct and will be correct
immediately after the Loan is made; and
(ii) no Default is outstanding or would result from the
making of the Loan;
(b) all accrued fees and expenses (including legal expenses)
payable to the Mandated Lead Arrangers or the Banks hereunder
or under any other Finance Document have been paid in full.
--------------------------------------------------------------------------------
14
11 BK:869364.1
--------------------------------------------------------------------------------
5. DRAWDOWN
5.1 COMMITMENT PERIOD
(a) The Borrower may borrow the Loan during the Commitment Period if the
Agent receives, not later than 11.00 a.m. (London time) three Business
Days before the proposed Drawdown Date, a duly completed Request.
(b) The Request is irrevocable and only one Request may be delivered.
5.2 COMPLETION OF REQUESTS
The Request will not be regarded as having been duly completed unless:-
(a) the Drawdown Date is a Business Day during the Commitment
Period;
(b) the amount of the Loan is a minimum of Euro 10,000,000;
(c) the Interest Period selected complies with Clause 8 (Interest
Periods) and does not extend beyond the Final Maturity Date;
and
(d) the payment instructions comply with Clause 10 (Payments).
5.3 NOTIFICATION OF THE BANKS
The Agent shall promptly notify each Bank of the details of the
requested Loan and the amount of its participation in the Loan.
5.4 AMOUNT OF EACH BANK'S PARTICIPATION IN THE LOAN
The amount of each Bank's participation in the Loan will be the
proportion of such Loan which its Commitment bears to the Total
Commitments on the date of receipt of the relevant Request.
5.5 PAYMENT OF PROCEEDS OF THE LOAN
Subject to the terms of this Agreement, each Bank shall make its
participation in the Loan available to the Agent for the Borrower on
the relevant Drawdown Date.
6. REPAYMENT
The Borrower shall repay the Loan in full on the Final Maturity Date.
7. PREPAYMENT AND CANCELLATION
7.1 AUTOMATIC CANCELLATION
The Total Commitments shall, to the extent not already advanced or
voluntarily cancelled pursuant to Clause 7.2 (Voluntary cancellation),
be automatically cancelled at close of business in London on the
earlier of the last day of the Commitment Period and the Drawdown Date.
--------------------------------------------------------------------------------
15
12 BK:869364.1
--------------------------------------------------------------------------------
7.2 VOLUNTARY CANCELLATION
The Borrower may, by giving not less than 10 Business Days' prior
written notice (or such shorter period as the Majority Banks may agree)
to the Agent, cancel the unutilised portion of the Total Commitments in
whole or in part (but, if in part, in a minimum of Euro 20,000,000 and
an integral multiple of Euro 10,000,000). Any cancellation in part
shall be applied against the Commitment of each Bank pro rata.
7.3 VOLUNTARY PREPAYMENT
The Borrower may (subject to Clause 22.2(a), (b) and (d) and, unless
the prepayment is made on an Interest Date for the Loan, to Clause
22.2(c) (Other indemnities)), by giving not less than 10 Business Days'
prior notice to the Agent, prepay the Loan in whole or in part (but, if
in part, in a minimum of Euro 20,000,000 and an integral multiple of
Euro 10,000,000).
7.4 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
If:
(a) the Borrower is required to pay to a Bank any additional
amounts under Clause 11 (Taxes); or
(b) the Borrower is required to pay to a Bank any amount under
Clause 13 (Increased Costs),
then, without prejudice to the obligations of the Borrower under those
Clauses, the Borrower may, whilst the circumstances continue, serve a
notice of prepayment and cancellation on that Bank through the Agent.
On the date falling five Business Days after the date of service of the
notice:
(i) the Borrower shall prepay that Bank's participation in the
Loan, together with all other amounts payable by it to that
Bank under this Agreement; and
(ii) the Commitment of that Bank shall be cancelled.
7.5 MANDATORY PREPAYMENT
If:
(a) the Borrower's long term credit rating (as defined in Clause
9.5(f) (Margin) assigned by either S&P or ▇▇▇▇▇'▇ falls below
BBB - or Baa3 respectively; or
(b) neither S&P nor ▇▇▇▇▇'▇ nor any other replacement credit
rating agency appointed in accordance with Clause 9.5(c)
(Margin) assigns a long term credit rating to the Borrower,
then:
(i) the Borrowers will notify the Agent in accordance with Clause
9.5 (Margin);
(ii) the Borrower will prepay the Loan in full (together with
accrued interest and other amounts payable under the Finance
Documents) within 30 days of the notice; and
--------------------------------------------------------------------------------
16
13 BK:869364.1
--------------------------------------------------------------------------------
(iii) the Total Commitments will be cancelled in full automatically
on the date of the notice in paragraph (i) above.
7.6 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable. The Agent shall notify the Banks promptly of receipt of
any such notice.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to Clause 22.2
(Other indemnities), without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with
the express terms of this Agreement.
(d) No amount of the Total Commitments cancelled under this Agreement may
subsequently be reinstated.
(e) No amount repaid or prepaid in respect of the Loan may subsequently be
reborrowed.
(f) Any prepayment of part of the Loan shall be applied against the
participations of the Banks in the Loan pro rata.
8. INTEREST PERIODS
8.1 SELECTION OF INTEREST PERIODS
(a) The first Interest Period of the Loan will be the period selected in
the Request and each subsequent Interest Period will be the period
selected by the Borrower by notice (a "SELECTION NOTICE") to the Agent
received not later than the fifth Business Day before the end of the
then current Interest Period.
(b) Each Interest Period shall be:
(i) one month, two, three or six months; or
(ii) any other period not exceeding six months as the Borrower and
the Agent may agree from time to time; or
(iii) any period exceeding six months agreed by the Borrower and all
the Banks from time to time.
Each Interest Period for the Loan will commence on its Drawdown Date or
the expiry of its preceding Interest Period.
(c) If the Borrower fails to select an Interest Period for the Loan in
accordance with paragraph (a) above, that Interest Period will, subject
to the other provisions of this Clause 8, be three months.
--------------------------------------------------------------------------------
17
14 BK:869364.1
--------------------------------------------------------------------------------
8.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
8.3 COINCIDENCE WITH THE FINAL MATURITY DATE
If an Interest Period would otherwise overrun the Final Maturity Date,
it shall be shortened so that it ends on the Final Maturity Date.
8.4 NOTIFICATION
The Agent shall notify the Borrower and the Banks of the duration of
each Interest Period promptly after ascertaining its duration.
9. INTEREST
9.1 INTEREST RATE
The rate of interest on the Loan for each of its Interest Periods is
the rate per annum determined by the Agent to be the aggregate of the
applicable:
(a) Margin;
(b) EURIBOR; and
(c) Mandatory Cost.
9.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on the
Loan is payable by the Borrower on each Interest Date and also, in the
case of an Interest Period longer than six months, at six monthly
intervals for so long as the Interest Period is outstanding.
9.3 DEFAULT INTEREST
(a) If the Borrower fails to pay any amount payable by it under the Finance
Documents, it shall, forthwith on demand by the Agent, pay interest on
the overdue amount from the due date up to the date of actual payment,
as well after as before judgment, at a rate (the "DEFAULT RATE")
determined by the Agent to be one per cent. per annum above the higher
of:
(i) the rate on the overdue amount under Clause 9.1 (Interest
rate) immediately before the due date (if of principal); and
(ii) the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Loan in
the currency of the overdue amount for such successive
Interest Periods of such duration as the Agent may determine
(each a "DESIGNATED INTEREST PERIOD").
--------------------------------------------------------------------------------
18
15 BK:869364.1
--------------------------------------------------------------------------------
(b) The default rate will be determined by the Agent on each Business Day
or the first day of, or two Business Days before the first day of, the
relevant Designated Interest Period, as appropriate.
(c) If the Agent determines that deposits in the currency of the overdue
amount are not at the relevant time being made available by the
Reference Banks to leading banks in the London interbank market the
default rate will be determined by reference to the cost of funds
notified by each Bank to the Agent as its cost of funds from whatever
sources it may select (acting in good faith).
(d) Default interest will be compounded at the end of each Designated
Interest Period.
9.4 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify each relevant Party of the
determination of a rate of interest under this Agreement.
9.5 MARGIN
(a) The Margin will be the percentage rate per annum specified in the table
below set opposite the long term credit rating assigned by S&P and or
▇▇▇▇▇'▇ to the Borrower as adjusted, if required, under paragraphs (b),
(c) or (d) below:
S&P/▇▇▇▇▇'▇ LONG TERM CREDIT RATING MARGIN
(PER CENT. PER ANNUM)
----------------------------------- ---------------------
A/A2 or higher 0.60
A-/A3 0.80
BBB+/Baa1 1.00
BBB/Baa2 1.25
BBB-/Baa3 1.50
(b) If different long term credit ratings are assigned to the Borrower by
S&P and ▇▇▇▇▇'▇ when the margin is initially calculated or at any time
at which an adjustment to the Margin is to be made in accordance with
paragraph (d) below, the applicable Margin will be the Margin
applicable to the lower of the respective long term credit ratings
assigned to the Borrower by S&P and ▇▇▇▇▇'▇.
(c) If a long term credit rating is not assigned to the Borrower by either
S&P or ▇▇▇▇▇'▇, the Borrower shall promptly notify the Agent. If the
reason for S&P or ▇▇▇▇▇'▇ not assigning such rating is that S&P or
▇▇▇▇▇'▇ has ceased to exist with no successor, the Borrower shall be
entitled to appoint a replacement rating agency with the consent of the
Agent. Any reference in this Agreement to the rating agency which has
ceased to exist shall be deemed to be a reference to the replacement
rating agency. If only one of the rating agencies assigns a long term
credit rating to the Borrower, the long term credit rating shall be
determined by reference to that remaining rating agency.
(d) Any adjustment to the Margin (whether upwards or downwards) in
accordance with paragraph (b) or (c) above will only apply to the Loan
from and including:
--------------------------------------------------------------------------------
19
16 BK:869364.1
--------------------------------------------------------------------------------
(i) the date of publication by S&P or ▇▇▇▇▇'▇ (in the case of a
ratings upgrade) or the date of publication by S&P or ▇▇▇▇▇'▇
(in the case of a ratings downgrade), in each case of any
relevant change to the long term credit rating assigned by it
to the Borrower; and/or
(ii) the date on which no long term credit rating is assigned to
the Borrower by either S&P or ▇▇▇▇▇'▇ as provided in paragraph
(c) above.
(e) Promptly after becoming aware of the same, the Borrower must notify the
Agent if any change in any long term credit rating assigned to the
Borrower occurs or the circumstances contemplated by paragraph (c)
above arise.
(f) For the purpose of this Subclause, the "LONG TERM CREDIT RATING" means
the solicited long term senior and unsecured credit rating confirmed to
the Borrower by S&P and ▇▇▇▇▇'▇ (or whichever of them is rating the
Borrower at the relevant time) on or after the date of this Agreement.
10. PAYMENTS
10.1 PLACE
All payments by the Borrower or a Bank under the Finance Documents
shall be made to the Agent to its account at such office or bank as it
may notify to the Borrower or Bank for this purpose in the principal
financial centre of a Participating Member State or London.
10.2 FUNDS
Payments under the Finance Documents to the Agent shall be made to the
principal financial centre of a Participating Member State or London
for value on the due date at such times and in such funds as the Agent
may specify to the Party concerned as being customary at the time for
the settlement of transactions in the currency of the payment.
10.3 DISTRIBUTION
(a) Each payment received by the Agent under the Finance Documents for
another Party shall, subject to paragraph (b) below, be made available
by the Agent to that Party by payment (on the date and in the currency
and funds of receipt) to its account with such office or bank in the
principal financial centre of the country of a Participating Member
State or London as it may notify to the Agent for this purpose by not
less than five Business Days' prior notice.
(b) Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that Party
until it has established that it has actually received that sum. The
Agent may, however, assume that the sum has been paid to it in
accordance with this Agreement, and, in reliance on that assumption,
make available to that Party a corresponding amount. If the sum has not
been made available but the Agent has paid a corresponding amount to
another Party, that Party shall forthwith on demand by the Agent refund
the corresponding amount together with interest on that amount from the
date of payment to the date of receipt, calculated at a rate determined
by the Agent to reflect its cost of funds.
--------------------------------------------------------------------------------
20
17 BK:869364.1
--------------------------------------------------------------------------------
10.4 CURRENCY
(a) A repayment or prepayment of the Loan is payable in euros.
(b) Interest is payable in euros.
(c) Amounts payable in respect of costs, expenses and taxes and the like
are payable in the currency in which they are incurred.
(d) Any other amount payable under the Finance Documents is, except as
otherwise provided in this Agreement, payable in euros.
10.5 SET-OFF AND COUNTERCLAIM
All payments made by the Borrower under the Finance Documents shall be
made without set-off or counterclaim.
10.6 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment shall instead be the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate
payable on the original due date.
10.7 PARTIAL PAYMENTS
(a) If the Agent receives a payment insufficient to discharge all the
amounts then due and payable by the Borrower under the Finance
Documents, the Agent shall apply that payment towards the obligations
of the Borrower under the Finance Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent and the Mandated Lead
Arrangers under the Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest due but unpaid under this Agreement;
(iii) THIRDLY, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
(iv) FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by all the Banks, vary the order set
out in sub-paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by
the Borrower.
--------------------------------------------------------------------------------
21
18 BK:869364.1
--------------------------------------------------------------------------------
11. TAXES
11.1 GROSS-UP
(a) All payments by the Borrower under the Finance Documents shall be made
without any deduction and free and clear of and without deduction for
or on account of any taxes, except to the extent that the Borrower is
required by law to make payment subject to any taxes. If any tax or
amounts in respect of tax must be deducted, or any other deductions
must be made, from any amounts payable or paid by the Borrower, or paid
or payable by the Agent to a Bank, under the Finance Documents, the
Borrower shall pay such additional amounts as may be necessary to
ensure that the relevant Bank receives a net amount equal to the full
amount which it would have received had payment not been made subject
to tax or any other deduction.
(b) The Borrower shall:
(i) pay when due all taxes required by law to be deducted or
withheld by it from any amounts paid or payable under the
Finance Documents;
(ii) within 15 days of the payment being made, deliver to the Agent
for the relevant Bank evidence satisfactory to that Bank
(including all relevant tax receipts) that the payment has
been duly remitted to the appropriate authority; and
(iii) forthwith on demand indemnify each Finance Party against any
loss or liability which that Finance Party incurs as a
consequence of the payment or non-payment of those taxes.
11.2 DOUBLE TAX TREATIES
If and to the extent that the effect of Clause 11.1 (Gross-up) can be
mitigated in respect of any Bank by virtue of the provisions of any
applicable double tax treaty, such Bank shall promptly (and in any
event before the relevant payment is due to be made) complete and
deliver to the appropriate person such application and take such other
steps as are required pursuant to such treaty to enable the Borrower to
make the relevant payment without deduction and which the relevant Bank
is able to make under applicable law or practice.
11.3 TAX CREDITS
(a) If an additional payment is made under Clause 11.1 (Gross-up) and the
Bank for whose benefit the payment is made, in its sole opinion,
determines that it has received or been granted a credit against, or
relief or remission for, or repayment of, any tax paid or payable by it
in respect of or calculated with reference to the deduction or
withholding giving rise to the additional payment or, with reference to
the liability, to which the payment giving rise to the additional
payment relates, that person shall pay to the Borrower such aggregate
amount as in that Bank's sole opinion:
(i) is attributable either to the deduction, withholding, payment
or liability in respect of which the additional payment is
made; and
(ii) can be paid without leaving that Bank in any worse financial
position with respect to the Loan or any other amounts paid or
payable to it under this Agreement than that in
--------------------------------------------------------------------------------
22
19 BK:869364.1
--------------------------------------------------------------------------------
which that Bank would have been had the event giving rise to
the additional payment not occurred.
(b) Any certificate of that Bank shall be conclusive evidence of the amount
due to the Borrower under this Clause and shall be accepted by the
Borrower in full and final settlement of its rights of reimbursement
under this Agreement in respect of the deduction or withholding.
(c) Nothing contained in this Agreement shall interfere with the right of
any Finance Party to arrange its tax affairs in whatever manner it
thinks fit and, in particular, no Finance Party shall be under any
obligations to:
(i) claim credit, relief, remission or repayment from or against
its corporate profits or similar tax liability in respect of
the amount of any deduction, withholding or liability in
respect of which any additional payment is made under Clause
11.1 (Gross-up) in priority to any other claims, reliefs,
credits or deductions available to it; or
(ii) disclose to the Borrower or any other person any information
regarding its tax affairs or tax computations.
11.4 TAX INDEMNITY
Without prejudice to the provisions of Clause 11.1 (Gross-up), if any
person or the Agent on its behalf is required to make any payment on
account of tax (not being a tax imposed on the net income paid by its
Facility Office by the jurisdiction in which it is incorporated or in
which its Facility Office is located) or otherwise on or in relation to
any sum received or receivable hereunder by such person or the Agent on
its behalf (including, without limitation, any sum received or
receivable under this Clause 11) or any liability in respect of any
such payment is asserted, imposed, levied or assessed against such
person or the Agent on its behalf, the Borrower shall, upon demand of
the Agent, promptly indemnify such person against such payment or
liability, together with any interest, penalties, costs and expenses
payable or incurred in connection therewith.
11.5 CLAIMS BY BANKS
A Bank intending to make a claim pursuant to Clause 11.4 (Tax
indemnity) shall notify the Agent of the event by reason of which it is
entitled to do so and shall provide the Agent with calculations in
reasonable detail of amounts claimed by it, whereupon the Agent shall
notify the Borrower thereof provided that nothing herein shall require
such Bank to disclose any confidential information relating to the
organisation of its affairs.
12. MARKET DISRUPTION
12.1 ABSENCE OF QUOTATIONS
If EURIBOR is to be determined by reference to the Reference Banks but
a Reference Bank does not supply its EURIBOR by 11.30 a.m. (London
time) on a Rate Fixing Day, the applicable EURIBOR shall, subject to
Clause 12.2 (Market disruption), be determined on the basis of the
quotations of the remaining Reference Banks.
--------------------------------------------------------------------------------
23
20 BK:869364.1
--------------------------------------------------------------------------------
12.2 MARKET DISRUPTION
If:
(a) EURIBOR is to be determined by reference to the Reference
Banks but no, or only one, Reference Bank supplies a rate by
11.30 a.m. (London time) on the Rate Fixing Day or the Agent
otherwise reasonably determines that, by reason of
circumstances affecting the London interbank market generally,
adequate and fair means do not exist for ascertaining the
applicable EURIBOR; or
(b) the Agent receives notification from Banks whose
participations in the Loan exceed 50 per cent. of that Loan
that:
(i) matching deposits are not available to them in the
London interbank market in the ordinary course of
business to fund their participations in the Loan for
the relevant Interest Period; or
(ii) the cost to them of obtaining matching deposits in
the London interbank market would be in excess of the
relevant EURIBOR for the relevant Interest Period,
the Agent shall promptly notify the Borrower and the Banks of the fact
and that this Clause 12 is in operation.
12.3 SUSPENSION OF DRAWDOWNS
(a) If the Agent gives a notice in reliance upon Clause 12.2(a) (Market
disruption):
(i) the Borrower and the Majority Banks may (through the Agent)
agree that the Loan concerned shall not be made; or
(ii) in the absence of such agreement, the Loan shall still be made
and:
(A) the Interest Period of the Loan shall be one month;
and
(B) during the Interest Period of the Loan the rate of
interest applicable to that Loan shall be the
applicable Margin plus the rate per annum determined
by each Bank and notified to the Agent before the
last day of that Interest Period to be that which
expresses as a percentage rate per annum the cost to
that Bank of funding the Loan from whatever sources
it may select (acting in good faith).
(b) After any notification under Clause 12.2(b) (Market disruption) the
Loan shall not be made. However, within five Business Days of receipt
of the notification, the Borrower and the Agent shall enter into
negotiations for a period of not more than 30 days with a view to
agreeing an alternative basis for determining the rate of interest
and/or funding applicable to that Loan. Any alternative basis agreed
shall be, with the prior consent of all the Banks, binding on all the
Parties.
--------------------------------------------------------------------------------
24
21 BK:869364.1
--------------------------------------------------------------------------------
13. INCREASED COSTS
13.1 INCREASED COSTS
(a) Subject to Clause 13.2 (Exceptions), the Borrower shall within 14 days
of demand by a Finance Party pay to that Finance Party the amount of
any increased cost incurred by it or any of its Affiliates as a result
of:
(i) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation; or
(ii) compliance with any regulation made after the date of this
Agreement,
including any law or regulation relating to taxation, change in
currency of a country or reserve asset, special deposit, cash ratio,
liquidity or capital adequacy requirements or any other form of banking
or monetary control.
(b) Each Bank shall notify the Borrower, through the Agent, promptly upon
its becoming aware that it or any of its Affiliates have incurred any
increased cost or are likely to incur increased costs in the future,
provided that failure to notify the Borrower shall not relieve the
Borrower of its obligations under this Clause 13. However, nothing in
this Agreement shall require a Bank to disclose any confidential
information relating to the organisation of its affairs.
(c) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by a Finance Party or any of its
Affiliates as a result of that Finance Party having entered
into, or performing, maintaining or funding its obligations
under, any Finance Document; or
(ii) that portion of an additional cost incurred by a Finance Party
or any of its Affiliates in that Finance Party making, funding
or maintaining all or any advances comprised in a class of
advances formed by or including that Finance Party's
participations in the Loan made or to be made under this
Agreement as is attributable to that Finance Party making,
funding or maintaining those participations; or
(iii) a reduction in any amount payable to a Finance Party or any of
its Affiliates or the effective return to a Finance Party or
any of its Affiliates under this Agreement or (to the extent
that it is attributable to this Agreement) on its capital; or
(iv) the amount of any payment made by a Finance Party or any of
its Affiliates, or the amount of any interest or other return
foregone by a Finance Party or any of its Affiliates,
calculated by reference to any amount received or receivable
by that Finance Party or any of its Affiliates from any other
Party under this Agreement.
13.2 EXCEPTIONS
Clause 13.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the operation of Clause 11 (Taxes); or
(b) attributable to any change in the rate of, or change in the
basis of calculating, Tax on the overall net income of a Bank
(or the overall net income of a division or branch of
--------------------------------------------------------------------------------
25
22 BK:869364.1
--------------------------------------------------------------------------------
the Bank) imposed in the jurisdiction in which its principal
office or Facility Office is situated; or
(c) attributable to the period more than 90 days prior to the date
upon which the Bank concerned gave notice to the Borrower
under Clause 13.1(b) unless that increased cost was incurred
by reason of a retrospective change or the Bank was not aware
that it or any Affiliate of it was incurring increased costs.
13.3 MITIGATION
If, in respect of any Bank, circumstances arise which would, or would
on the giving of notice or the drawdown of the Loan, result in:
(a) any amount becoming payable under Clause 13.1 (Increased
costs); or
(b) the Borrower being obliged to repay or prepay the Loan or
cancel the Commitment pursuant to Clause 14 (Illegality); or
(c) the Borrower being obliged to pay additional amounts under
Clause 11.1 (Taxes);
then, without limiting the obligations of the Borrower under this
Agreement and without prejudice to the terms of Clauses 11.1 (Taxes),
13.1 (Increased costs) and 14 (Illegality) that Bank shall, in
consultation with the Borrower, take such reasonable steps as may be
open to it to mitigate or remove such circumstance, including (without
limitation) the transfer of its rights and obligations under this
Agreement to an Affiliate or to another bank or financial institution
nominated by the Borrower, unless to do so might (in the reasonable
opinion of that Bank) have a material adverse effect on its business,
operations or financial condition or would be otherwise materially
prejudicial to it.
14. ILLEGALITY
If it is or becomes unlawful in any jurisdiction for a Bank to give
effect to any of its obligations as contemplated by this Agreement or
to fund or maintain its participation in the Loan, then:
(a) that Bank may notify the Borrower through the Agent
accordingly; and
(b) (i) on the latest date permitted by the relevant law, the
Borrower shall prepay the participations of that Bank
in the Loan, together with all other amounts payable
to that Bank under this Agreement; and
(ii) the Commitment of that Bank shall forthwith be
cancelled.
15. REPRESENTATIONS AND WARRANTIES
15.1 REPRESENTATIONS AND WARRANTIES
The Borrower makes the representations and warranties set out in this
Clause 15 to each Finance Party.
--------------------------------------------------------------------------------
26
23 BK:869364.1
--------------------------------------------------------------------------------
15.2 STATUS
(a) It is a public limited company, duly incorporated and validly existing
under the laws of Finland; and
(b) the Borrower and each Material Subsidiary has the power to own its
assets and carry on its business as it is being conducted.
15.3 POWERS AND AUTHORITY
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into, performance and delivery of, the
Finance Documents to which it is or will be a party and the
transactions contemplated by those Finance Documents.
15.4 LEGAL VALIDITY
Each Finance Document to which it is or will be a party constitutes, or
when executed in accordance with its terms will constitute, its legal,
valid and binding obligation enforceable in accordance with its terms.
15.5 AUTHORISATIONS
All authorisations required in connection with the entry into,
performance, validity and enforceability of the Finance Documents and
the transactions contemplated by the Finance Documents have been
obtained or effected and are in full force and effect.
15.6 PARI PASSU RANKING
Its obligations under the Finance Documents rank and will rank at least
pari passu with all its other unsecured obligations, except for
obligations mandatorily preferred by law applying to companies
generally.
15.7 IMMUNITY
(a) The execution by the Borrower of each Finance Document constitutes, and
its exercise of its rights and performance of its obligations under
each Finance Document will constitute, private and commercial acts done
and performed for private and commercial purposes; and
(b) subject to the Finnish Restructuring of Companies Act, the Borrower
will not be entitled to claim immunity from suit, execution, attachment
or other legal process in any proceedings taken in Finland in relation
to any Finance Document.
15.8 JURISDICTION/GOVERNING LAW
(a) The Borrower's:
(i) irrevocable submission under Clause 33 (Jurisdiction) to the
jurisdiction of the courts of England;
(ii) agreement that this Agreement is governed by English law; and
(iii) agreement not to claim any immunity to which it or its assets
may be entitled,
--------------------------------------------------------------------------------
27
24 BK:869364.1
--------------------------------------------------------------------------------
are legal, valid and binding under the laws of Finland;
and
(b) any judgment obtained in England will be recognised and be enforceable
by the courts of Finland, provided that recognition and enforcement in
Finland of any judgement obtained in England shall be on the basis of
and subject to the limitations imposed by the Brussels Convention on
jurisdiction and the Enforcement of Judgements in Civil and Commercial
matters of 27th September, 1968 and the protocols relating thereto as
in force and applied in Finland.
15.9 NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not:
(a) conflict with any law or regulation or judicial or official
order; or
(b) conflict with the constitutional documents of the Borrower or
of any Material Subsidiary; or
(c) conflict with any document which is binding upon any member of
the Group or any asset of any member of the Group in a manner
which is reasonably likely to have a material adverse effect
on the ability of the Borrower to perform and observe its
obligations under this Agreement.
15.10 NO DEFAULT
(a) No Default is outstanding or might result from the making of the Loan;
and
(b) no other event is outstanding which constitutes (or with the giving of
notice, lapse of time, determination of materiality or the fulfilment
of any other applicable condition or any combination of the foregoing,
might reasonably be expected to constitute) a default under any
document which is binding on any member of the Group or any asset of
any member of the Group to an extent or in a manner which might
reasonably be expected to have a material adverse effect on the
financial condition of the Borrower or the Group as a whole or the
ability of the Borrower to perform its payment obligations under the
Finance Documents.
15.11 LITIGATION
No litigation, arbitration or administrative proceedings are current
or, to its knowledge, pending or threatened, which are reasonably
likely to be adversely determined and which, if so determined, would be
reasonably likely to have a material adverse effect on the financial
condition of the Group as a whole or the ability of the Borrower to
observe and perform its payment obligations under this Agreement.
15.12 FINANCIAL STATEMENTS
(a) The audited consolidated financial statements of the Group most
recently delivered to the Agent (which, at the date of this Agreement,
are the Original Group Accounts) and the audited unconsolidated
financial statements of the Borrower most recently delivered to the
Agent:
--------------------------------------------------------------------------------
28
25 BK:869364.1
--------------------------------------------------------------------------------
(i) have been prepared in accordance with accounting principles
and practices generally accepted in Finland, consistently
applied; and
(ii) fairly represent the consolidated financial condition of the
Group or (as the case may be) the unconsolidated financial
condition of the Borrower, in each case, as at the date to
which they were drawn up.
(b) The unaudited consolidated financial statements of the Group and the
unaudited unconsolidated financial statements of the Borrower most
recently delivered to the Agent:
(i) have been prepared in accordance with accounting principles
and practices generally accepted in Finland; and
(ii) fairly represent the consolidated financial condition of the
Group or (as the case may be) the unconsolidated financial
condition of the Borrower, in each case, as at the date to
which they were drawn up.
(c) There has been no change in the business, condition (financial or
otherwise), operations, performance or properties of the Borrower or of
the Group since 31st December, 2000 which change is likely to have a
material adverse effect on the Borrower's ability to perform and
observe its obligations under this Agreement (it being understood that
disposals otherwise permitted on the terms of this Agreement shall be
deemed not to constitute a material adverse effect).
15.13 ENVIRONMENTAL MATTERS
(a) Each of it and its Subsidiaries have obtained all Environmental
Licences required for the carrying on of its business as currently
conducted and have complied in all material respects with (A) the terms
and conditions of such Environmental Licences and (B) all applicable
Environmental Laws which in each case, if not complied with, would
reasonably be expected to have a material adverse effect on the ability
of the Borrower to perform its obligations under the Finance Documents.
(b) No Dangerous Substance has been used, disposed of, generated, stored,
transported, dumped, released, deposited, buried or emitted at, on,
from or under any site or premises (owned, leased, occupied or
controlled by the Borrower or any of its Subsidiaries) in contravention
of any applicable Environmental Licence or Environmental Law where this
would be reasonably likely to result in the imposition of a liability
on the Borrower or any such Subsidiary which would reasonably be
expected to have a material adverse effect on the ability of the
Borrower to perform its obligations under the Finance Documents.
(c) There is no Environmental Claim (in respect of any site previously or
currently owned or occupied by any member of the Group) pending or
threatened against any member of the Group which is reasonably likely
to be determined against the relevant member of the Group and which if
so decided would reasonably be expected to have a material adverse
effect on the ability of the Borrower to perform its obligations under
the Finance Documents.
--------------------------------------------------------------------------------
29
26 BK:869364.1
--------------------------------------------------------------------------------
15.14 INFORMATION MEMORANDUM
(a) All factual information in respect of the Group supplied to the
Mandated Lead Arrangers in the information memorandum dated May, 2001
(the "INFORMATION MEMORANDUM") was true in all material respects at the
date of the Information Memorandum.
(b) All expressions of opinion or intention in respect of the Group and all
forecasts and projections contained in the Information Memorandum in
respect of the Group were arrived at after careful consideration and to
the best of the Borrower's knowledge and belief were based on grounds
believed to be reasonable.
(c) The Information Memorandum as of its date was not misleading in any
material respect in respect of the Group and did not omit to disclose
any matter failure to disclose which would result in any information
contained in the Information Memorandum in respect of the Group being
misleading in any material respect.
15.15 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Clause 15:
(a) are made on the date of this Agreement; and
(b) (with the exception of Clause 15.14 (Information Memorandum))
are deemed to be repeated by the Borrower (i) on the date of
each Request; (ii) on each Drawdown Date; and (iii) on the
first day of each Interest Period, with reference to the facts
and circumstances then existing.
16. UNDERTAKINGS
16.1 DURATION
The undertakings in this Clause 16 remain in force from the date of
this Agreement for so long as any amount is or may be outstanding under
this Agreement or any Commitment is in force.
16.2 FINANCIAL INFORMATION
The Borrower shall supply to the Agent via electronic mail, by
reference to the Borrower's website, or at the request of the Agent, in
sufficient printed copies for all the Banks:
(a) as soon as the same are available (and in any event within 120
days of the end of each of its financial years) the audited
unconsolidated financial statements of the Borrower and the
audited consolidated financial statements of the Group for
that financial year; and
(b) as soon as the same is available (and in any event within 60
days of the end of each interim period of each of its
financial years) the published interim financial report of the
Group for that interim period,
together in each case with a list of those Subsidiaries of the Borrower
which are Project Companies as at the date of such financial statements
or published interim financial report if the Subsidiaries of the
Borrower which are Project Companies as at that date are different to
--------------------------------------------------------------------------------
30
27 BK:869364.1
--------------------------------------------------------------------------------
those set out in the list provided pursuant to paragraph 6 of Schedule
2 of this Agreement or to the list previously provided pursuant to this
Clause 16.2.
For the purpose of this Clause 16.2, "INTERIM PERIOD" means the first
three months, the first six months and the first nine months of the
financial year of the entity concerned.
16.3 INFORMATION - MISCELLANEOUS
The Borrower shall supply to the Agent:
(a) all documents despatched by it to its creditors generally at
the same time as they are despatched;
(b) promptly upon becoming aware of them, details of any
litigation, arbitration or administrative proceedings which
are current, threatened or pending, and which are likely to be
adversely determined and, if adversely determined, would be
reasonably likely to have a material adverse effect on the
ability of the Borrower to perform its obligations under the
Finance Documents; and
(c) such further information made publicly available by the
Borrower from time to time;
in sufficient copies for all of the Banks, if the Agent so requests.
16.4 NOTIFICATION OF DEFAULT
The Borrower shall notify the Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon it becoming aware of its
occurrence.
16.5 AUTHORISATIONS
The Borrower shall, within the requisite time periods, obtain, maintain
and comply with the terms of any authorisation required under any law
or regulation to enable it to perform its obligations under, or for the
validity or enforceability of, any Finance Document.
16.6 PARI PASSU RANKING
The Borrower shall procure that its obligations under the Finance
Documents do and will rank at least pari passu with all its other
present and future unsecured obligations, except for obligations
mandatorily preferred by law applying to companies generally.
16.7 NEGATIVE PLEDGE
(a) The Borrower shall not, and shall procure that no other member of the
Group will, create or permit to subsist any Security Interest on any of
its assets.
(b) Paragraph (a) does not apply to:
(i) any Security Interests arising solely by operation of law;
(ii) any Security Interest created in connection with the
indebtedness owed by any member of the Group to any Finnish
pension fund where such Security Interest is
--------------------------------------------------------------------------------
31
28 BK:869364.1
--------------------------------------------------------------------------------
required to be created by operation of, or pursuant to, any
requirement of law or of any regulation; and
(iii) any other Security Interest provided that immediately after
the Security Interest is created at least one of the following
tests is satisfied:
(A) the aggregate book value of all assets of the Group
subject to Security Interests (except Security
Interests permitted under Clause 16.7(b)(ii)
(Negative Pledge)) does not exceed 20 per cent. of
Total Consolidated Assets; or
(B) the aggregate amount of indebtedness secured by all
Security Interests (except Security Interests
permitted under Clause 16.7(b)(ii)) does not in
aggregate exceed 20 per cent. of Total Consolidated
Assets.
For the avoidance of doubt and for the purposes of this clause, if only
part of indebtedness is secured by a Security Interest on an asset
belonging to a member of the Group, only the amount of such part of
indebtedness shall be taken into consideration for the purposes of
Clause 16.7(b)(iii)(B) (Negative Pledge) above.
(c) In the event that the information in the annual financial statements
does not enable the Banks to make calculations in order to establish
compliance with at least one of the tests set out in paragraph (b)
(iii) above, if required by the Agent (which requirement may be made
by the Agent only once in any calendar year) the Borrower will provide
calculations to the Agent to show that at least one of the tests set
out in paragraph (b) (iii) above is satisfied or not, as the case may
be.
16.8 DISPOSALS
(a) The Borrower shall not, and shall procure that no Material Subsidiary
will, either in a single transaction or in a series of transactions,
whether related or not and whether voluntarily or involuntarily, sell,
transfer, grant or lease or otherwise dispose of (including by sale or
sale and lease back) all or any part of its assets.
(b) Paragraph (a) does not apply to:
(i) disposals to members of the Group; or
(ii) disposals made in the normal day-to-day trading of the
relevant disposing entity; or
(iii) disposals with the consent of the Majority Banks; or
(iv) the sale of assets or investments for fair market value and at
arm's length,
provided that, if, in the reasonable opinion of the Majority Banks, a
disposal or a series of disposals made by the Borrower and/or any one
or more Material Subsidiaries would reasonably be expected materially
and adversely to affect the ability of the Borrower to perform and
observe its obligations under this Agreement the Agent may serve a
notice on the Borrower requiring repayment of the Loan, together with
the payment of accrued interest and all other amounts payable under the
Agreement, and the cancellation of the Total Commitments at the end of
the period of 90 days commencing on the delivery of that notice (the
"NOTICE PERIOD").
--------------------------------------------------------------------------------
32
29 BK:869364.1
--------------------------------------------------------------------------------
(c) During the notice period the Loan may not be borrowed if it has not
been borrowed before the start of the notice period.
(d) On the final day of the notice period:
(i) the Loan (if outstanding) shall be repaid, together with
accrued interest and other amounts payable under the Finance
Documents; and
(ii) the Total Commitments shall be cancelled automatically.
16.9 CHANGE OF BUSINESS
The Borrower, itself or through joint ventures or its Subsidiaries,
shall operate in the core business area of telecommunications.
16.10 SUBSIDIARY FINANCIAL INDEBTEDNESS
(a) The Borrower shall procure that its Subsidiaries will not incur (or
have outstanding) any Financial Indebtedness other than:
(i) Financial Indebtedness owing by a Subsidiary of the Borrower
to another member of the Group;
(ii) Financial Indebtedness, which does not constitute Project
Debt, owing to persons which are not members of the Group in
aggregate at any time for all the Subsidiaries of the Borrower
not in excess of an amount equal to 10 per cent. of Total
Consolidated Assets; and
(iii) Project Debt owing to persons which are not members of the
Group in aggregate at any time for all the Subsidiaries of the
Borrower not in excess of an amount equal to 20 per cent. of
Total Consolidated Assets.
(b) For the purposes of paragraph (a) above:
(i) neither:
(A) the Financial Indebtedness of a company which becomes
a member of the Group after the date of this
Agreement, which Financial Indebtedness was not
created in contemplation of it becoming a Subsidiary
and which is subsisting at the date it becomes a
member of the Group; nor
(B) the assets of that company as at the date it becomes
a member of the Group,
shall be taken into account, during the first six month period
following the date on which that company became a member of
the Group, when calculating the aggregate Financial
Indebtedness of the Borrower's Subsidiaries or Total
Consolidated Assets unless the Borrower shall notify the Agent
at any time that, thenceforth, both that company's Financial
Indebtedness and assets are to be taken into account for that
purpose; and
--------------------------------------------------------------------------------
33
30 BK:869364.1
--------------------------------------------------------------------------------
(ii) when calculating indebtedness in respect of debit balances at
banks and other financial institutions under paragraph (a) of
the definition of "Financial Indebtedness" in Clause 1.1
(Definitions), the net debit balances at such banks and other
financial institutions shall be taken into account.
16.11 MERGERS AND ACQUISITIONS
The Borrower shall not enter into any merger, amalgamation or
consolidation with any other person unless the Borrower shall be the
surviving entity and shall continue to be responsible for its
obligations under the Finance Documents.
16.12 INSURANCE
The Borrower will, and will procure that each member of the Group shall
effect and maintain or have effected and maintained on its behalf
insurance appropriate for the business of the type carried on by the
Borrower and each member of the Group on and in relation to its
business, assets and rights of an insurable nature as a reasonably
prudent person carrying on a similar business to the Borrower and
member of the Group would reasonably be expected to maintain.
17. DEFAULT
17.1 EVENTS OF DEFAULT
Each of the events set out in this Clause 17 is an Event of Default
(whether or not caused by any reason whatsoever outside the control of
the Borrower or any other person).
17.2 NON-PAYMENT
The Borrower does not pay on the due date any amount payable by it
under the Finance Documents at the place at and in the currency in
which it is expressed to be payable unless such non-payment:
(a) is of interest or any other nature (save for principal) and
the payment is received within five days of the due date; or
(b) is of principal, is due solely to technical or administrative
reasons affecting the transfer of funds and the payment is
received within five days of the due date.
17.3 BREACH OF OTHER OBLIGATIONS
The Borrower does not comply with any provision of the Finance
Documents (other than those referred to in Clause 17.2 (Non-payment))
and, if capable of remedy in such a period, such default is not
remedied within 15 days after the earliest to occur of the Agent giving
notice thereof to the Borrower and the Borrower otherwise becoming
aware of that default.
17.4 MISREPRESENTATION
A representation, warranty or statement in writing made or repeated in
any Finance Document or in any document addressed to the Finance
Parties (or any of them), either directly or via the Agent, delivered
by or on behalf of the Borrower under or in connection with any Finance
Document is incorrect in any material respect when made or deemed to be
made or repeated.
--------------------------------------------------------------------------------
34
31 BK:869364.1
--------------------------------------------------------------------------------
17.5 CROSS-DEFAULT
(a) Any Financial Indebtedness of the Borrower or any of its Material
Subsidiaries is not paid when due, after taking into account any
applicable grace period; or
(b) an event of default howsoever described occurs and is continuing under
any document relating to Financial Indebtedness of the Borrower or any
of its Material Subsidiaries and the Borrower has not satisfied the
Agent (acting on the instructions of the Majority Banks) that either:
(i) such event of default is the subject of a bona fide dispute
which is being contested in good faith and by appropriate
proceedings; or
(ii) no enforcement action will be taken by the relevant creditors
in respect of such event of default and the relevant creditors
will not be given an improvement in the terms governing such
Financial Indebtedness in order to persuade them not to take
such enforcement action; or
(iii) sufficient reserves in cash or other liquid assets or
sufficient alternative credit facilities (including, but not
limited to, third party guarantees) are available to pay the
amount of such Financial Indebtedness which is owing under
such document and repayment of such amount from such sources
will not have a material adverse effect on the ability of the
Borrower to perform its payment obligations under this
Agreement; or
(c) any Financial Indebtedness of the Borrower or any of its Material
Subsidiaries becomes prematurely due and payable or is placed on demand
as a result of an event of default (howsoever described) under the
document relating to that Financial Indebtedness; or
(d) any Security Interest securing Financial Indebtedness over any asset of
the Borrower or any of its Material Subsidiaries becomes enforceable
and any steps are taken by the holder of that Security Interest to
enforce it,
and the Financial Indebtedness in respect of which all or any of the
above events occur aggregates U.S.$10,000,000 (or the equivalent in
other currencies) or more at any one time outstanding.
For the purposes of this Clause 17.5 "FINANCIAL INDEBTEDNESS" shall not
include Project Debt.
17.6 INSOLVENCY
(a) The Borrower or any Material Subsidiary is unable to pay its debts as
they fall due, or admits inability to pay its debts as they fall due;
or
(b) the Borrower or any Material Subsidiary, by reason of financial
difficulties, suspends making payments on all or any class of its debts
or announces an intention to do so, or a moratorium is declared in
respect of all or any class of its indebtedness; or
(c) the Borrower or any Material Subsidiary, by reason of financial
difficulties, begins negotiations with its creditors generally with a
view to the readjustment or rescheduling of its indebtedness.
--------------------------------------------------------------------------------
35
32 BK:869364.1
--------------------------------------------------------------------------------
17.7 INSOLVENCY PROCEEDINGS
(a) The Borrower or any Material Subsidiary takes, concurs in or agrees to
the taking of any step (including petition, proposal or convening a
meeting) which is taken, by reason of financial difficulties, with a
view to a composition, assignment or arrangement with the creditors of
the Borrower or any Material Subsidiary (or any class of them); or
(b) a meeting of the Borrower or any Material Subsidiary is convened for
the purpose of considering any resolution for (or to petition for) its
winding-up (save for a solvent winding-up of a Material Subsidiary) or
for its administration or any such resolution is passed; or
(c) any person presents a petition for the winding-up or for the
administration of the Borrower or any Material Subsidiary unless, save
where such petition is presented by the Borrower or any Material
Subsidiary or their respective directors, such petition is frivolous or
vexatious or being contested in good faith and, in either case, is
dismissed within 31 days of its presentation; or
(d) an order for the winding-up or administration of the Borrower or any
Material Subsidiary is made.
17.8 APPOINTMENT OF RECEIVERS AND MANAGERS
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the like
is appointed in respect of the Borrower or any Material Subsidiary or
any part of its assets; or
(b) the Borrower, any Material Subsidiary or their respective directors
requests the appointment of a liquidator, trustee in bankruptcy,
judicial custodian, compulsory manager, receiver, administrative
receiver, administrator or the like.
17.9 CREDITORS' PROCESS
(a) Any attachment, sequestration, distress or execution is made against
any asset of the Borrower or any Material Subsidiary and is not paid
out or discharged within 14 days unless, in the case of any attachment,
sequestration, distress or execution which is made as a result of any
interim court judgment only, such judgment is frivolous or vexatious or
being contested in good faith and is dismissed within 31 days of its
being made.
(b) Any of the Borrower or any of its Material Subsidiaries fails to pay or
comply with any final court judgment or court order which is reasonably
expected to have a material adverse effect on the ability of the
Borrower to perform its payment obligations under this Agreement.
17.10 ANALOGOUS PROCEEDINGS
There occurs, in relation to the Borrower or any Material Subsidiary,
any event anywhere which, in the reasonable opinion of the Majority
Banks, appears to correspond with any of those mentioned in Clauses
17.6 (Insolvency) to 17.9 (Creditors' process) (inclusive).
17.11 UNLAWFULNESS
It is or becomes unlawful for the Borrower to perform any of its
obligations under the Finance Documents.
--------------------------------------------------------------------------------
36
33 BK:869364.1
--------------------------------------------------------------------------------
17.12 REPUDIATION
The Borrower repudiates or announces in writing an intention to
repudiate any Finance Document.
17.13 CHANGE OF CONTROL
A person acting solely, or any person (the "FIRST PERSON") acting
together with any other person either controlled by the first person or
under common control with the first person, (excluding Finland or any
entity controlled by Finland) acquires or acquire control of the
Borrower. A person "CONTROLS" another entity for the purposes of this
Clause 17.13 if it either:
(a) owns or, as the case may be, has at least 50% of the share
capital or of the voting rights of the other entity; or
(b) the other entity is treated in the audited accounts of that
person as being a subsidiary of that person or, if not the
same, the other entity's accounts are to be fully consolidated
into the accounts of that person for the purposes of any
applicable legislation in force at the relevant time,
and "CONTROLLED" shall be construed accordingly.
17.14 CESSATION OF BUSINESS
The Borrower ceases, or threatens in writing to cease, to carry on all
or a substantial part of its business.
17.15 MATERIAL ADVERSE CHANGE
Any change occurs in the business, condition (financial or otherwise),
operations, performance or properties of the Borrower or of the Group
which is likely to have a material and adverse effect on the ability of
the Borrower to perform and observe its payment obligations under this
Agreement.
17.16 ACCELERATION
On and at any time after the occurrence of an Event of Default the
Agent may, whilst that Event of Default is outstanding, and shall if so
directed by the Majority Banks, by notice to the Borrower:
(a) cancel the Total Commitments; and/or
(b) demand that all or part of the Loans, together with accrued
interest and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(c) demand that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by
the Agent acting on the instructions of the Majority Banks.
--------------------------------------------------------------------------------
37
34 BK:869364.1
--------------------------------------------------------------------------------
18. THE AGENT AND THE MANDATED LEAD ARRANGERS
18.1 APPOINTMENT AND DUTIES OF THE AGENT
(a) Each Finance Party (other than the Agent) irrevocably appoints the
Agent to act as its agent under and in connection with the Finance
Documents.
(b) Each party appointing the Agent irrevocably authorises the Agent on its
behalf to perform the duties and to exercise the rights, powers and
discretions that are specifically delegated to it under or in
connection with the Finance Documents, together with any other
incidental rights, powers and discretions.
(c) The Agent has only those duties which are expressly specified in this
Agreement. Those duties are solely of a mechanical and administrative
nature.
18.2 ROLE OF THE MANDATED LEAD ARRANGERS
Except as specifically provided in this Agreement, the Mandated Lead
Arrangers have no obligations of any kind to any other Party under or
in connection with any Finance Document.
18.3 RELATIONSHIP
The relationship between the Agent and the other Finance Parties is
that of agent and principal only. Nothing in this Agreement constitutes
the Agent as trustee or fiduciary for any other Party or any other
person and the Agent need not hold in trust any moneys paid to it for a
Party or be liable to account for interest on those moneys.
18.4 MAJORITY BANKS' INSTRUCTIONS
(a) The Agent will be fully protected if it acts in accordance with the
instructions of the Majority Banks in connection with the exercise of
any right, power or discretion or any matter not expressly provided for
in the Finance Documents. Any such instructions given by the Majority
Banks will be binding on all the Banks. In the absence of such
instructions, the Agent may act as it considers to be in the best
interests of all the Banks.
(b) The Agent is not authorised to act on behalf of a Bank (without first
obtaining that Bank's consent) in any legal or arbitration proceedings
relating to any Finance Document.
18.5 DELEGATION
The Agent may act under the Finance Documents through its personnel and
agents.
18.6 RESPONSIBILITY FOR DOCUMENTATION
Neither the Agent nor any Mandated Lead Arranger is responsible to any
other Party for:
(a) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(b) the collectability of amounts payable under any Finance
Document; or
--------------------------------------------------------------------------------
38
35 BK:869364.1
--------------------------------------------------------------------------------
(c) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document.
18.7 DEFAULT
(a) The Agent is not obliged to monitor or enquire as to whether or not a
Default has occurred. The Agent will not be deemed to have knowledge of
the occurrence of a Default. However, if the Agent receives notice from
a Party referring to this Agreement, describing the Default and stating
that the event is a Default, or has actual knowledge of non-payment by
the Borrower of any obligations hereunder, it shall promptly notify the
Banks.
(b) The Agent may require the receipt of security satisfactory to it,
whether by way of payment in advance or otherwise, against any
liability or loss which it will or may incur in taking any proceedings
or action arising out of or in connection with any Finance Document
before it commences those proceedings or takes that action.
18.8 EXONERATION
(a) Without limiting paragraph (b) below, the Agent will not be liable to
any other Party for any action taken or not taken by it under or in
connection with any Finance Document, unless directly caused by its
negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or
agent of the Agent in respect of any claim it might have against the
Agent or in respect of any act or omission of any kind (including
negligence or wilful misconduct) by that officer, employee or agent in
relation to any Finance Document.
(c) Any officer, employee or agent of the Agent may rely on this Clause
18.8 and enforce its terms under the Contracts (Rights of Third
Parties) ▇▇▇ ▇▇▇▇.
18.9 RELIANCE
The Agent may:
(a) rely on any notice or document believed by it to be genuine
and correct and to have been signed by, or with the authority
of, the proper person;
(b) rely on any statement made by a director or employee of any
person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify; and
(c) engage, pay for and rely on legal or other professional
advisers selected by it (including those in the Agent's
employment and those representing a Party other than the
Agent).
18.10 CREDIT APPROVAL AND APPRAISAL
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with any Finance
Document, each Bank confirms that it:
(a) has made its own independent investigation and assessment of
the financial condition and affairs of the Borrower and its
related entities in connection with its participation
--------------------------------------------------------------------------------
39
36 BK:869364.1
--------------------------------------------------------------------------------
in this Agreement and has not relied exclusively on any
information provided to it by the Agent or the Mandated Lead
Arrangers in connection with any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities
while any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
18.11 INFORMATION
(a) The Agent shall promptly forward to the person concerned the original
or a copy of any document which is delivered to the Agent by a Party
for that person.
(b) The Agent shall promptly supply a Bank with a copy of each document
received by the Agent under Clause 4 (Conditions precedent), upon the
request and at the expense of that Bank.
(c) Except where this Agreement specifically provides otherwise, the Agent
is not obliged to review or check the accuracy or completeness of any
document it forwards to another Party.
(d) Except as provided above, the Agent has no duty:
(i) either initially or on a continuing basis to provide any Bank
with any credit or other information concerning the financial
condition or affairs of the Borrower or of its related
entities, whether coming into its possession before, on or
after the date of this Agreement; or
(ii) unless specifically requested to do so by a Bank in accordance
with a Finance Document, to request any certificates or other
documents from the Borrower.
18.12 THE AGENT AND THE MANDATED LEAD ARRANGERS INDIVIDUALLY
(a) If it is also a Bank, each of the Agent and a Mandated Lead Arranger
has the same rights and powers under this Agreement as any other Bank
and may exercise those rights and powers as though it were not the
Agent or a Mandated Lead Arranger.
(b) Each of the Agent and a Mandated Lead Arranger may:
(i) carry on any business with the Borrower or its related
entities;
(ii) act as agent or trustee for, or in relation to any financing
involving, the Borrower or its related entities; and
(iii) retain any profits or remuneration in connection with its
activities under this Agreement or in relation to any of the
foregoing.
(c) In acting as the Agent, the agency division of the Agent will be
treated as a separate entity from its other divisions and departments.
Any information acquired by the Agent which, in its opinion, is
acquired by it otherwise than in its capacity as the Agent may be
treated as confidential by the Agent and will not be deemed to be
information possessed by the Agent in its capacity as such.
--------------------------------------------------------------------------------
40
37 BK:869364.1
--------------------------------------------------------------------------------
(d) The Borrower irrevocably authorises the Agent to disclose to the other
Finance Parties any information which is received by it from the
Borrower in its capacity as the Agent.
18.13 INDEMNITIES
(a) Without limiting the liability of the Borrower under the Finance
Documents, each Bank shall forthwith on demand indemnify the Agent for
that Bank's proportion of any liability or loss incurred by the Agent
in any way relating to or arising out of its acting as the Agent,
except to the extent that the liability or loss arises directly from
the Agent's negligence or wilful misconduct.
(b) A Bank's proportion of the liability set out in paragraph (a) above
will be the proportion which its participation in the Loan (if any)
bears to the total Loan on the date of the demand. However, if the Loan
is not outstanding on the date of demand, then the proportion will be
the proportion which its Commitment bears to the Total Commitments at
the date of demand or, if the Total Commitments have then been
cancelled, bore to the Total Commitments immediately before being
cancelled.
(c) The Borrower shall forthwith on demand reimburse each Bank for any
payment properly made by it under paragraph (a) above save in respect
of items of expenditure in relation to which the Borrower has made full
payment in accordance with Clause 20 (Expenses).
18.14 COMPLIANCE
(a) The Agent may refrain from doing anything which might, in its opinion,
constitute a breach of any law or regulation or be otherwise actionable
at the suit of any person, and may do anything which, in its opinion,
is necessary or desirable to comply with any law or regulation of any
jurisdiction.
(b) Without limiting paragraph (a) above, the Agent need not disclose any
information relating to the Borrower or any of its related entities if
the disclosure might, in the opinion of the Agent, constitute a breach
of any law or regulation or any duty of secrecy or confidentiality or
be otherwise actionable at the suit of any person.
18.15 RESIGNATION OF THE AGENT
(a) Notwithstanding its irrevocable appointment, the Agent may resign by
giving notice to the Banks and the Borrower, in which case the Agent
may forthwith appoint one of its Affiliates as successor Agent or,
failing that, the Majority Banks may appoint a successor Agent (in each
case, with the agreement of the Borrower).
(b) If the appointment of a successor Agent is to be made by the Majority
Banks or, in any case, with the agreement of the Borrower, but the
Majority Banks have not, or the Borrower has not, within 30 days after
notice of resignation, appointed a successor Agent which accepts the
appointment or, as the case may be, given agreement to the proposed
successor Agent, the Agent may appoint a successor Agent.
(c) The resignation of the Agent and the appointment of any successor Agent
will both become effective only upon the successor Agent notifying all
the Parties that it accepts its appointment. On giving the
notification, the successor Agent will succeed to the position of the
Agent and the term "AGENT" will mean the successor Agent.
--------------------------------------------------------------------------------
41
38 BK:869364.1
--------------------------------------------------------------------------------
(d) 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 the Agent under this Agreement.
(e) Upon its resignation becoming effective, this Clause 18 shall continue
to benefit the retiring Agent in respect of any action taken or not
taken by it under or in connection with the Finance Documents while it
was the Agent, and, subject to paragraph (d) above, it shall have no
further obligations under any Finance Document.
(f) The Majority Banks may, by notice to the Agent, require it to resign in
accordance with paragraph (a) above. In this event, the Agent shall
resign in accordance with paragraph (a) above but it shall not be
entitled to appoint one of its Affiliates as successor Agent.
(g) Any successor Agent appointed pursuant to this Clause 18.15, whether by
the retiring Agent or the Majority Banks, must have an Affiliate
situated in Finland.
18.16 BANKS
(a) The Agent may treat each Bank as a Bank, entitled to payments under
this Agreement and as acting through its Facility Office(s) until it
has received not less than five Business Days' prior notice from that
Bank to the contrary.
(b) The Agent may at any time, and shall if requested to do so by the
Majority Banks, convene a meeting of the Banks.
19. FEES
19.1 UP-FRONT FEE
The Borrower shall pay to the Agent for the Mandated Lead Arrangers the
upfront fees in the amounts and on the date specified in the relevant
Fee Letter.
19.2 AGENT'S FEE
The Borrower shall pay to the Agent for its own account the agency fees
in the amounts and on the dates agreed in the relevant Fee Letter.
19.3 COMMITMENT FEE
(a) The Borrower shall pay to the Agent for each Bank a commitment fee of
0.125 per cent. per annum from and including the date of this Agreement
up to and including the date one month after that date, and thereafter,
0.25 per cent. per annum in each case on the undrawn, uncancelled
amount of that Bank's Commitment on each day during the Commitment
Period.
(b) Accrued commitment fee is payable in arrears on the last day of the
Commitment Period. Accrued commitment fee shall also be payable to the
Agent for the relevant Bank on the cancelled amount of its Commitment
at the time the cancellation comes into effect.
--------------------------------------------------------------------------------
42
39 BK:869364.1
--------------------------------------------------------------------------------
19.4 VAT
Any fee referred to in this Clause 19 is exclusive of any value added
tax or any other tax which might be chargeable in connection with that
fee. If any value added tax or other tax is so chargeable, it shall be
paid by the Borrower at the same time as it pays the relevant fee.
20. EXPENSES
20.1 INITIAL AND SPECIAL COSTS
The Borrower shall within 14 days of demand pay the Agent and the
Mandated Lead Arrangers the amount of all reasonable costs and expenses
(including legal fees) incurred by either of them in connection with:
(a) the negotiation, preparation, printing and execution of:
(i) this Agreement and any other documents referred to in
this Agreement;
(ii) any other Finance Document (other than a Novation
Certificate) executed after the date of this
Agreement; and
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf
of the Borrower and relating to a Finance Document or a
document referred to in any Finance Document.
20.2 ENFORCEMENT COSTS
The Borrower shall forthwith on demand pay to each Finance Party the
amount of all costs and expenses (including legal fees) incurred by it
in connection with the enforcement of, or the preservation of any
rights under, any Finance Document.
21. STAMP DUTIES
The Borrower shall pay, and forthwith on demand indemnify each Finance
Party against any liability it incurs in respect of, any stamp,
registration and similar tax which is or becomes payable in connection
with the entry into, performance or enforcement of any Finance
Document.
22. INDEMNITIES
22.1 CURRENCY INDEMNITY
(a) If a Finance Party receives an amount in respect of the Borrower's
liability under the Finance Documents or if that liability is converted
into a claim, proof, judgment or order in a currency other than the
currency (the "CONTRACTUAL CURRENCY") in which the amount is expressed
to be payable under the relevant Finance Document:
(i) the Borrower shall indemnify that Finance Party as an
independent obligation against any loss or liability arising
out of or as a result of the conversion;
(ii) if the amount received by that Finance Party, when converted
into the contractual currency at a market rate in the usual
course of its business is less than the amount
--------------------------------------------------------------------------------
43
40 BK:869364.1
--------------------------------------------------------------------------------
owed in the contractual currency, the Borrower shall forthwith
on demand pay to that Finance Party an amount in the
contractual currency equal to the deficit; and
(iii) the Borrower shall forthwith on demand pay to the Finance
Party concerned any exchange costs and taxes payable in
connection with any such conversion.
(b) The Borrower waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency other than that in
which it is expressed to be payable.
22.2 OTHER INDEMNITIES
The Borrower shall forthwith on demand indemnify each Finance Party
against any loss or liability which that Finance Party incurs as a
consequence of:
(a) the occurrence of any Default;
(b) Clause 17.16 (Acceleration);
(c) any payment of principal or an overdue amount being received
from any source otherwise than on a day which is not the last
day of a relevant Interest Period or Designated Interest
Period (as defined in Clause 9.3 (Default interest)); or
(d) the Loan (or part of the Loan) not being prepaid in accordance
with a notice of prepayment or (other than by reason of
negligence or default by a Finance Party) the Loan not being
made after the Borrower has delivered the Request or being
made in a currency other than that originally requested.
The Borrower's liability in each case includes any loss or expense
(other than loss of margin) on account of funds borrowed, contracted
for or utilised to fund any amount payable under any Finance Document,
any amount repaid or prepaid or the Loan.
23. EVIDENCE AND CALCULATIONS
23.1 ACCOUNTS
Accounts maintained by a Finance Party in connection with this
Agreement are prima facie evidence of the matters to which they relate.
23.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under the Finance Documents is, in the absence of manifest
error, conclusive evidence of the matters to which it relates.
23.3 CALCULATIONS
Interest and the fee payable under Clause 19.3 (Commitment fee) accrue
from day to day and are calculated on the basis of the actual number of
days elapsed and a year of 360 days or, where market practice otherwise
dictates, 365 days.
--------------------------------------------------------------------------------
44
41 BK:869364.1
--------------------------------------------------------------------------------
24. AMENDMENTS AND WAIVERS
24.1 PROCEDURE
(a) Subject to Clause 24.2 (Exceptions), any term of the Finance Documents
may be amended or waived with the written agreement of the Borrower and
the Majority Banks. The Agent may effect, on behalf of the Finance
Parties, an amendment or waiver to which they or the Majority Banks
have agreed.
(b) The Agent shall promptly notify the other Parties of any amendment or
waiver effected under paragraph (a) above, and any such amendment or
waiver shall be binding on all the Parties.
24.2 EXCEPTIONS
(a) An amendment or waiver not agreed by a Bank which relates to:
(i) the definition of "MAJORITY BANKS" in Clause 1.1
(Definitions);
(ii) an extension of the date for, or a decrease in an amount or a
change in the currency of, any payment to that Bank under the
Finance Documents (including the Margin and any fee payable
under Clause 19.3 (Commitment fee));
(iii) an increase in that Bank's Commitment;
(iv) a term of a Finance Document which expressly requires the
consent of that Bank; or
(v) Clause 2.2 (Nature of Finance Party's rights and obligations),
Clause 28 (Pro Rata Sharing), Clause 25 (Changes to the
Parties) or this Clause 24 (Amendments and Waivers),
is not binding on that Bank.
(b) An amendment or waiver which affects the rights and/or obligations of
the Agent may not be effected without the agreement of the Agent.
24.3 WAIVERS AND REMEDIES CUMULATIVE
The rights of each Finance Party under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the
general law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
--------------------------------------------------------------------------------
45
42 BK:869364.1
--------------------------------------------------------------------------------
25. CHANGES TO THE PARTIES
25.1 TRANSFERS BY THE BORROWER
The Borrower may not assign, transfer, novate or dispose of any of, or
any interest in, its rights and/or obligations under the Finance
Documents.
25.2 TRANSFERS BY BANKS
(a) A Bank (the "EXISTING BANK") may, subject to paragraph (b) below, at
any time assign, transfer or novate any of its Commitment and/or rights
and/or obligations under this Agreement in a minimum amount of
Euro 2,500,000 (or, if less, in an amount equal to the balance of the
Commitment of the Existing Bank) to another bank or financial
institution (the "NEW BANK").
(b) Unless:
(i) an Event of Default is continuing;
(ii) the relevant assignment, transfer or novation is to another
Bank or an Affiliate of any Bank; or
(iii) the relevant assignment, transfer or novation takes effect
after the last day of the Commitment Period or, if earlier,
the date on which the Loan is drawn in full,
the consent of the Borrower is required for any assignment, transfer or
novation referred to in paragraph (a) above. Such consent shall not be
unreasonably withheld or delayed, and shall be deemed to have been
given unless the Borrower notifies the Agent that it does not consent
to the proposed assignment, transfer or novation within five Business
Days of receipt of notice thereof.
(c) A transfer of obligations will be effective only if either:
(i) the obligations are novated in accordance with Clause 25.3
(Procedure for novations); or
(ii) the New Bank confirms to the Agent and the Borrower that it
undertakes to be bound by the terms of this Agreement as a
Bank in form and substance satisfactory to the Agent. On the
transfer becoming effective in this manner the Existing Bank
shall be relieved of its obligations under this Agreement to
the extent that they are transferred to the New Bank.
(d) Nothing in this Agreement restricts the ability of a Bank to
sub-contract an obligation if that Bank remains liable under this
Agreement for that obligation and the person to whom that Bank
sub-contracts such obligation does not have the right to determine how
that Bank may vote with respect to that obligation on any decision to
be taken by the creditors of the Borrower.
(e) On each occasion that an Existing Bank assigns, transfers or novates
any of its Commitment and/or rights and/or obligations under this
Agreement, the New Bank shall, on the date the assignment, transfer
and/or novation takes effect, pay to the Agent for its own account a
fee of Euro 1,500.
--------------------------------------------------------------------------------
46
43 BK:869364.1
--------------------------------------------------------------------------------
(f) An Existing Bank is not responsible to a New Bank for:
(i) the execution, genuineness, validity, enforceability or
sufficiency of any Finance Document or any other document;
(ii) the collectability of amounts payable under any Finance
Document; or
(iii) the accuracy of any statements (whether written or oral) made
in or in connection with any Finance Document.
(g) Each New Bank confirms to the Existing Bank and the other Finance
Parties that it:
(i) has made its own independent investigation and assessment of
the financial condition and affairs of the 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 Bank in connection with any
Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities
while any amount is or may be outstanding under this Agreement
or any Commitment is in force.
(h) Nothing in any Finance Document obliges an Existing Bank to:
(i) accept a re-transfer from a New Bank of any of the Commitment
and/or rights and/or obligations assigned, transferred or
novated under this Clause; or
(ii) support any losses incurred by the New Bank by reason of the
non-performance by the Borrower of its obligations under the
Finance Documents or otherwise.
(i) Any reference in this Agreement to a Bank includes a New Bank but
excludes a Bank if no amount is or may be owed to or by it under this
Agreement and its Commitment has been cancelled or reduced to nil.
(j) If, at the time of any transfer, novation or assignment by a Bank or of
any change of Facility Office, circumstances exist which would or might
reasonably be expected to oblige the Borrower to pay to the New Bank or
assignee (or in the case of a change of Facility Office, the relevant
Bank) under Clause 11 (Taxes) or 13 (Increased Costs) any sum in excess
of the sum (if any) which it would have been obliged to pay to that
Bank in the absence of that transfer, novation, assignment or change,
the Borrower shall not be obliged to pay that excess.
25.3 PROCEDURE FOR NOVATIONS
(a) A novation is effected if:
(i) the Existing Bank and the New Bank deliver to the Agent a duly
completed certificate, substantially in the form of Schedule 4
(a "NOVATION CERTIFICATE"); and
(ii) the Agent executes it.
(b) Each Party (other than the Existing Bank and the New Bank) irrevocably
authorises the Agent to execute any duly completed Novation Certificate
on its behalf.
--------------------------------------------------------------------------------
47
44 BK:869364.1
--------------------------------------------------------------------------------
(c) To the extent that they are expressed to be the subject of the novation
in the Novation Certificate:
(i) the Existing Bank and the other Parties (the "EXISTING
PARTIES") will be released from their obligations to each
other (the "DISCHARGED OBLIGATIONS");
(ii) the New Bank and the existing Parties will assume obligations
towards each other which differ from the discharged
obligations only insofar as they are owed to or assumed by the
New Bank instead of the Existing Bank;
(iii) the rights of the Existing Bank against the existing Parties
and vice versa (the "DISCHARGED RIGHTS") will be cancelled;
and
(iv) the New Bank and the existing Parties will acquire rights
against each other which differ from the discharged rights
only insofar as they are exercisable by or against the New
Bank instead of the Existing Bank,
all on the date of execution of the Novation Certificate by the Agent
or, if later, the date specified in the Novation Certificate.
25.4 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the Bank of
which it is an Affiliate) ceases to be a Bank, the Agent shall (in
consultation with the Borrower) appoint another Bank or an Affiliate of
a Bank to replace that Reference Bank.
25.5 REGISTER
The Agent shall keep a register of all the Parties and shall supply any
other Party (at that Party's expense) with a copy of the register on
request.
26. DISCLOSURE OF INFORMATION
26.1 DISCLOSURE
A Bank may disclose to any person with whom it is proposing to enter,
or has entered into, any kind of transfer, participation or other
agreement in relation to this Agreement:
(a) a copy of any Finance Document; and
(b) any information which that Bank has acquired under or in
connection with any Finance Document,
provided that the proposed recipient of that disclosure, unless that
recipient is an Affiliate of a Bank, shall have first provided the Bank
with a confidentiality undertaking in favour of the Borrower in respect
of such disclosure substantially in the form of Schedule 6.
--------------------------------------------------------------------------------
48
45 BK:869364.1
--------------------------------------------------------------------------------
26.2 OBLIGATIONS TO KEEP CONFIDENTIAL
Subject to Clause 26.1 (Disclosure), each recipient of a Finance
Document or other information under that Clause shall agree to keep the
same confidential and not disclose the same to any third party unless
(and to the extent that):
(a) disclosure is in connection with any proceedings arising out
of or in connection with any Finance Document; or
(b) disclosure is required by an order of a court of competent
jurisdiction whether in pursuance of any procedure for
discovering documents or otherwise; or
(c) disclosure is pursuant to any law or regulation in accordance
with which that recipient is required or accustomed to act; or
(d) the information is public knowledge on the relevant date of
disclosure otherwise than as a result of the default of that
recipient;
(e) disclosure is to its auditors or legal or other professional
advisers; or
(f) disclosure is to any banking, taxation or other governmental
or regulatory authority which is lawfully entitled to that
disclosure or to any similar entity to which the recipient is
accustomed to disclose.
27. SET-OFF
(a) A Finance Party may set off any matured obligation owed by the Borrower
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any obligation (whether or not matured) owed by
that Finance Party to the Borrower, 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.
(b) If either obligation under paragraph (a) is unliquidated or
unascertained, the Finance Party may set off in an amount estimated by
it in good faith to be the amount of that obligation, and upon
ascertaining the amount of the obligations owed to that Finance Party
it shall provide to the Borrower evidence of the amount owed. In the
event that that Finance Party has set-off more than the ascertained
amount, the excess shall be reimbursed to the Borrower.
28. PRO-RATA SHARING
28.1 REDISTRIBUTION
If any amount owing by the Borrower under the Finance Documents to a
Finance Party (the "RECOVERING FINANCE PARTY") is discharged by
payment, set-off or any other manner other than through the Agent in
accordance with Clause 10 (Payments) (a "RECOVERY"), then:
(a) the recovering Finance Party shall, within three Business
Days, notify details of the recovery to the Agent;
--------------------------------------------------------------------------------
49
46 BK:869364.1
--------------------------------------------------------------------------------
(b) the Agent shall determine whether the recovery is in excess of
the amount which the recovering Finance Party would have
received had the recovery been received by the Agent and
distributed in accordance with Clause 10 (Payments);
(c) subject to Clause 28.3 (Exceptions), the recovering Finance
Party shall, within three Business Days of demand by the
Agent, pay to the Agent an amount (the "REDISTRIBUTION") equal
to the excess;
(d) the Agent shall treat the redistribution as if it were a
payment by the Borrower under Clause 10 (Payments) and shall
pay the redistribution to the Finance Parties (other than the
recovering Finance Party) in accordance with Clause 10.7
(Partial payments); and
(e) after payment of the full redistribution, the recovering
Finance Party will be subrogated to the portion of the claims
paid under paragraph (d) above and the Borrower will owe the
recovering Finance Party a debt which is equal to the
redistribution, immediately payable and of the type originally
discharged.
28.2 REVERSAL OF REDISTRIBUTION
If under Clause 28.1 (Redistribution):
(a) a recovering Finance Party must subsequently return a
recovery, or an amount measured by reference to a recovery, to
the Borrower; and
(b) the recovering Finance Party has paid a redistribution in
relation to that recovery,
each Finance Party shall, within three Business Days of demand by the
recovering Finance Party through the Agent, reimburse the recovering
Finance Party all or the appropriate portion of the redistribution paid
to that Finance Party together with interest on the amount to be
returned to the recovering Finance Party for the period whilst it held
the re-distribution. Thereupon, the subrogation in Clause 28.1(e)
(Redistribution) will operate in reverse to the extent of the
reimbursement.
28.3 EXCEPTIONS
(a) A recovering Finance Party need not pay a redistribution to the extent
that it would not, after the payment, have a valid claim against the
Borrower in the amount of the redistribution pursuant to Clause 28.1(e)
(Redistribution).
(b) A recovering Finance Party is not obliged to share with any other
Finance Party any amount which the recovering Finance Party has
received or recovered as a result of taking legal proceedings, if the
other Finance Party had an opportunity to participate in those legal
proceedings but did not do so or did not take separate legal
proceedings.
29. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any
other provision of the Finance Documents; or
--------------------------------------------------------------------------------
50
47 BK:869364.1
--------------------------------------------------------------------------------
(b) the validity or enforceability in other jurisdictions of that
or any other provision of the Finance Documents.
30. 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.
31. NOTICES
31.1 GIVING OF NOTICES
All notices or other communications under or in connection with the
Finance Documents shall be given in writing and, unless otherwise
stated, may be made by letter, telex or facsimile or (to the extent
that (i) the relevant Party has specified such an address pursuant to
Clause 31.2 (Addresses for notices) and (ii) such notice or
communication is not required to be signed by an authorised signatory,
other officer or board of the relevant entity and the form of such
notice or communication (if applicable) does not provide for signature
by an authorised signatory, other officer or board of the relevant
entity) by e-mail. Any such notice will be deemed to be given as
follows:
(a) if by letter, when delivered personally or on actual receipt;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and
at the end of the sender's copy of the notice; and
(c) if by facsimile or e-mail, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
31.2 ADDRESSES FOR NOTICES
(a) The address, telex number and facsimile number and (if so specified)
e-mail address of each Party (other than the Borrower and the Agent)
for all notices under or in connection with this Agreement are:
(i) those notified by that Party for this purpose to the Agent on
or before the date it becomes a Party; or
(ii) any other notified by that Party for this purpose to the Agent
by not less than five Business Days' notice.
(b) The address and facsimile number and e-mail address of the Borrower
are:
Sonera Corporation
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
--------------------------------------------------------------------------------
51
48 BK:869364.1
--------------------------------------------------------------------------------
Attention: Corporate Finance
Facsimile no: + ▇▇▇ ▇▇▇ ▇▇▇ 661
E-Mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
or such other as the Borrower may notify to the Agent by not less than
five Business Days' notice.
(c) The address, telex number and facsimile number and e-mail address of
the Agent are:
Riverdale House
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
or such other as the Agent may notify to the other Parties by not less
than five Business Days' notice.
(d) All notices from or to the Borrower shall be sent through the Agent.
(e) The Agent shall, promptly upon request from any Party, give to that
Party the address, telex number, facsimile number or e-mail address (if
applicable) of any other Party applicable at the time for the purposes
of this Clause.
32. LANGUAGE
(a) Any notice given under or in connection with any Finance Document shall
be in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English
translation and, in this case, the English translation shall
prevail unless the document is a statutory or other official
document.
33. JURISDICTION
33.1 SUBMISSION
For the benefit of each Finance Party, the Borrower agrees that the
courts of England have jurisdiction to settle any disputes in
connection with any Finance Document and accordingly submits to the
jurisdiction of the English courts.
--------------------------------------------------------------------------------
52
49 BK:869364.1
--------------------------------------------------------------------------------
33.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, the Borrower:
(a) irrevocably appoints Sonera UK Ltd, ▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as its agent for
service of process in relation to any proceedings before the
English courts in connection with any Finance Document;
(b) agrees that failure by a process agent to notify the Borrower
of the process will not invalidate the proceedings concerned;
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 31.2
(Addresses for notices); and
(d) agrees that if the appointment of any person mentioned in
paragraph (a) above ceases to be effective, the Borrower shall
immediately appoint a further person in England to accept
service of process on its behalf in England and, failing such
appointment within 15 days, the Agent is entitled to appoint
such a person by notice to the Borrower.
33.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
The Borrower:
(a) waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in
connection with a Finance Document; and
(b) agrees that a judgment or order of an English court in
connection with a Finance Document is conclusive and binding
on it and may be enforced against it in the courts of any
other jurisdiction.
33.4 NON-EXCLUSIVITY
Nothing in this Clause 33 limits the right of a Finance Party to bring
proceedings against the Borrower in connection with any Finance
Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
34. WAIVER OF IMMUNITY
The Borrower irrevocably and unconditionally:
(a) agrees that if a Finance Party brings proceedings against it
or its assets in relation to a Finance Document, no immunity
from those proceedings (including, without limitation, suit,
attachment prior to judgment, other attachment, the obtaining
of judgment, execution or other enforcement) will be claimed
by or on behalf of itself or with respect to its assets;
--------------------------------------------------------------------------------
53
50 BK:869364.1
--------------------------------------------------------------------------------
(b) waives any such right of immunity which it or its assets now
has or may subsequently acquire; and
(c) consents generally in respect of any such proceedings to the
giving of any relief or the issue of any process in connection
with those proceedings, including, without limitation, the
making, enforcement or execution against any assets whatsoever
(irrespective of its use or intended use) of any order or
judgment which may be made or given in those proceedings.
35. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
--------------------------------------------------------------------------------
54
51 BK:869364.1
--------------------------------------------------------------------------------
SCHEDULE 1
BANKS AND COMMITMENTS
BANKS COMMITMENT
EUR
Citibank 99,500,000
Deutsche Bank 99,500,000
Dresdner Bank 99,500,000
▇▇ ▇▇▇▇▇▇ 99,500,000
Nordea 99,500,000
ABN-AMRO Bank 75,000,000
BNP Paribas 75,000,000
▇▇▇▇▇▇▇ Sachs 75,000,000
Hypovereinsbank (London) 75,000,000
Industrial and Commercial Bank of China 75,000,000
KFW FFM 75,000,000
ING Barings 50,000,000
▇▇▇▇▇▇ Brothers International 50,000,000
Scotia Capital 50,000,000
National Bank of Abu Dhabi (London) 32,500,000
Credit Suisse First Boston 25,000,000
Danske Bank (Helsinki) 25,000,000
Fuji Bank 25,000,000
Industrial Bank of Japan 25,000,000
Landesbank Schleswig-Holstein 25,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ 25,000,000
NordLB 25,000,000
OKOBANK 25,000,000
-----------------
TOTAL COMMITMENTS EUR 1,330,000,000
=================
--------------------------------------------------------------------------------
55
52 BK:869364.1
--------------------------------------------------------------------------------
SCHEDULE 2
CONDITIONS PRECEDENT DOCUMENTS
1. A copy of the constitutional documents of the Borrower.
2. A copy of a resolution of the board of directors of the Borrower:
(i) approving the terms of, and the transactions contemplated by
the Finance Documents and resolving that it execute and, where
applicable, deliver the Finance Documents to which it is a
party;
(ii) authorising as specified person or persons to execute and,
where applicable, deliver the Finance Documents to which it is
a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices to be signed
and/or despatched by it under or in connection with the
Finance Documents.
3. A copy of the decision of the CFO of the Borrower approving the terms
and conditions of this Agreement.
4. A specimen of the signature of each person authorised to sign the
Finance Documents on behalf of the Borrower and to sign and/or despatch
all documents and notices to be signed and/or despatched by the
Borrower under or in connection with the Finance Documents.
5. Evidence that the process agent referred to in Clause 33.2 (Service of
process) has accepted its appointment under that Clause.
6. A copy of any other authorisation or other document, opinion or
assurance which the Agent considers to be necessary in connection with
the entry into and performance of, and the transactions contemplated
by, any Finance Document or for the validity and enforceability of any
Finance Document, and which is notified to the Borrower prior to the
execution of this Agreement.
7. A list of all Project Companies as at the date of this Agreement.
8. A certificate of an authorised signatory of the Borrower certifying
that each copy document delivered under this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than the
date of this Agreement.
9. (a) A legal opinion of Castren & ▇▇▇▇▇▇▇▇, legal advisors in
Finland to the Mandated Lead Arrangers, addressed to the
Finance Parties; and
(b) a legal opinion of ▇▇▇▇▇ & Overy, legal advisers in England to
the Mandated Lead Arrangers, addressed to the Finance Parties.
10. Each Fee Letter, duly executed by the Borrower.
11. (a) Evidence that the Borrower has served an irrevocable notice of
prepayment under the Existing Facility for an amount at least
equal to the Loan net of fees; and
--------------------------------------------------------------------------------
56
53 BK:869364.1
--------------------------------------------------------------------------------
(b) an irrevocable instruction from the Borrower to apply the
relevant amount of the Loan net of fees directly in repayment
towards amounts outstanding under the Existing Facility on the
Drawdown Date.
--------------------------------------------------------------------------------
57
54 BK:869364.1
--------------------------------------------------------------------------------
SCHEDULE 3
FORM OF REQUEST
To: CITIBANK INTERNATIONAL plc, as Agent
From: SONERA CORPORATION
Date: [ ]
SONERA CORPORATION - Euro 1,330,000,000 CREDIT AGREEMENT DATED
[ ], 2001
1. We wish to borrow the Loan as follows:-
(a) Drawdown Date: [ ]
(b) Amount: [ ]
(c) Initial Interest Period: [ ]
(d) Payment instructions: [ ]
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Request.
By:
SONERA CORPORATION
Authorised Signatory
--------------------------------------------------------------------------------
58
55 BK:869364.1
--------------------------------------------------------------------------------
SCHEDULE 4
FORM OF NOVATION CERTIFICATE
To: CITIBANK INTERNATIONAL plc, as Agent
From: [THE EXISTING BANK] and [THE NEW BANK] Date: [ ]
SONERA CORPORATION - Euro 1,330,000,000 CREDIT AGREEMENT DATED
[ ], 2001
We refer to Clause 25.3 (Procedure for novations).
1. We [ ] (the "EXISTING BANK") and [ ]
(the "NEW BANK") agree to the Existing Bank and the New Bank novating
the Existing Bank's Commitment (or part) and/or rights and obligations
referred to in the Schedule in accordance with Clause 25.3 (Procedure
for novations).
2. The specified date for the purposes of Clause 25.3(c) (Procedure for
novations) is [date of novation].
3. The Facility Office and address for notices of the New Bank for the
purposes of Clause 31.2 (Addresses for notices) are set out in the
Schedule.
4. The New Bank confirms that it is able to give the confirmation required
of it in Clause 11.4 (Tax confirmation by Banks).
5. This Novation Certificate is governed by English law.
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE NOVATED
[Insert relevant details]
[Existing Bank] [New Bank]
By: By:
Date: Date:
--------------------------------------------------------------------------------
59
56 BK:869364.1
--------------------------------------------------------------------------------
[NEW BANK]
[Facility Office Address for notices]
CITIBANK INTERNATIONAL plc
By:
Date:
--------------------------------------------------------------------------------
60
57 BK:869364.1
--------------------------------------------------------------------------------
SCHEDULE 5
MANDATORY COST FORMULA
1. The Mandatory Cost is an addition to the interest rate to compensate
Banks for the cost of compliance with (a) the requirements of the
Financial Services Authority (or any other authority which replaces all
or any of its functions) or (b) the requirements of the European
Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, the
arithmetic mean (rounded up, if necessary, to four decimal places) of
the respective rates notified by each Reference Bank to the Agent at
its request as the rate resulting from the application of the formulae
set out in paragraphs 3 and 4 below (the "ADDITIONAL COST RATE").
3. The Additional Cost Rate for any Bank lending from a Facility Office in
a Participating Member State will be calculated in accordance with
paragraph 2 above by reference to the percentage rate notified by each
Reference Bank to the Agent as the cost of complying with the minimum
reserve requirements of the European Central Bank.
4. The Additional Cost Rate for any Bank lending from a Facility Office in
the United Kingdom will be calculated in accordance with paragraph 2
above as follows:
(a) in relation to a Loan in Euros:
A x 0.01
-------- per cent. per annum.
300
Where:
A is the rate of charge payable by that Reference Bank to the
Financial Services Authority pursuant to the Fees Regulations
(but, for this purpose, ignoring any minimum fee required
pursuant to the Fees Regulations) and expressed in pounds per
(pound sterling)1,000,000 of the Fee Base of that Reference
Bank.
5. For the purposes of this Schedule:
(a) "FEES REGULATIONS" means the Banking Supervision (Fees)
Regulations 2001 or such other law or regulation as may be in
force from time to time in respect of the payment of fees for
banking supervision; and
(b) "FEE BASE" has the meaning given to it, and will be calculated
in accordance with, the Fees Regulations.
6. Each Reference Bank shall use reasonable endeavours to supply to the
Agent on request the percentage rate per annum so calculated by it on
any date. If any Reference Bank does not do so on request of the Agent,
the Agent shall determine the relevant Mandatory Costs on the basis of
the quotation supplied by the remaining Reference Banks. If no, or only
one, Reference Bank supplies a quotation on request of the Agent, then
the Mandatory Costs will be the percentage rate per annum stated by the
Agent to be the Additional Cost Rate applicable to it.
--------------------------------------------------------------------------------
61
58 BK:869364.1
--------------------------------------------------------------------------------
7. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Bank and shall be entitled to assume that the information provided by
any Reference Bank pursuant to paragraph 3 above is true and correct in
all respects.
8. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Bank shall, in the absence of manifest error, be
conclusive and binding on all Parties.
9. The Agent may from time to time, after consultation with the Borrower
and the Banks, determine and notify to all Parties any amendments which
are required to be made to this Schedule in order to comply with any
change in law, regulation or any requirements from time to time imposed
by the Bank of England, the Financial Services Authority or the
European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all
Parties.
--------------------------------------------------------------------------------
62
59 BK:869364.1
--------------------------------------------------------------------------------
SCHEDULE 6
CONFIDENTIALITY UNDERTAKING
To: Sonera Corporation
[c/o Transferor Bank] and
[Transferor Bank]
[Date]
Dear Sirs
SONERA CORPORATION - Euro 1,330,000,000 CREDIT AGREEMENT
DATED [ ], 2001 (THE "CREDIT AGREEMENT")
We have been invited to discuss a possible participation in the above facility
by [Transferor Bank]. We understand that [Transferor Bank] may not disclose to
us the Credit Agreement, any related documents, or any information disclosed by
you or your subsidiaries in connection with any of those documents or details of
the amounts outstanding under the credit facility (together, the "INFORMATION"),
unless we provide you with an undertaking in the following terms.
We, therefore, undertake to you to treat all Information which [Transferor Bank]
may provide to us in connection with that possible participation confidential
and not disclose the same to any third party unless such disclosure is permitted
under Clause 26.2 (Obligations to keep confidential) of the Credit Agreement.
Yours faithfully,
.........................................
For: [Potential transferee]
--------------------------------------------------------------------------------
63
60 BK:869364.1
--------------------------------------------------------------------------------
SIGNATORIES
BORROWER
SONERA CORPORATION
By:
MANDATED LEAD ARRANGERS
CITIBANK, N.A.
By:
DEUTSCHE BANK AG LONDON
By:
DRESDNER BANK AG LONDON BRANCH
By:
▇.▇. ▇▇▇▇▇▇ plc
By:
BANKS
ABN AMRO BANK N.V., STOCKHOLM BRANCH
By:
BAYERISCHE HYPO-UND VEREINSBANK AG
By:
BNP PARIBAS (acting through its London Branch)
By:
--------------------------------------------------------------------------------
64
61 BK:869364.1
--------------------------------------------------------------------------------
CITIBANK N.A. (Jersey Branch)
By:
CREDIT SUISSE FIRST BOSTON
By:
DANSKE BANK A/S
By:
DEUTSCHE BANK AG LONDON
By:
DRESDNER BANK AG LONDON BRANCH
By:
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS, L.P.
By:
INDUSTRIAL AND COMMERCIAL BANK OF CHINA, LUXEMBOURG BRANCH
By:
ING BANK N.V.
By:
KREDITANSTALT FUR WIEDERAUFBAU
By:
--------------------------------------------------------------------------------
65
62 BK:869364.1
--------------------------------------------------------------------------------
LANDESBANK SCHLESWIG-HOLSTEIN GIROZENTRALE
By:
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION
By:
▇▇▇▇▇▇ BANK PLC
By:
NATIONAL BANK OF ABU DHABI
By:
NORDDEUTSCHE LANDESBANK LUXEMBOURG S.A.
By:
OKO BANK
By:
SCOTIABANK EUROPE PLC
By:
--------------------------------------------------------------------------------
66
63 BK:869364.1
--------------------------------------------------------------------------------
THE CHASE MANHATTAN BANK
By:
THE FUJI BANK, LIMITED
By:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
AGENT
CITIBANK INTERNATIONAL plc
By:
--------------------------------------------------------------------------------