1
REVOLVING CREDIT
FACILITY AGREEMENT
USD 400,000,000
DATED 13 JUNE, 1997
BETWEEN
BT INDUSTRIES AB
AS BORROWER
AND
SWEDBANK (SPARBANKEN SVERIGE AB (PUBL))
AS LENDER
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1. PURPOSE
The Borrower requires a Revolving Credit Facility (the "Facility") up to a total
amount of USD 400,000,000 for financing the Borrower's acquisition of 10,735,171
shares in ▇▇▇▇▇▇▇ Corporation, share options and related transaction costs.
2. DEFINITIONS
In this Agreement, except where the context otherwise requires:
"Acquisition Sub" means a wholly-owned subsidiary of the Borrower being
the vehicle for the acquisition of all the issued and
outstanding shares of ▇▇▇▇▇▇▇ Corporation;
"Advance" means each Advance made or to be made available by
the Lender hereunder to the Borrower;
"Advance Date" means the date upon which each Advance is made
available under this Agreement;
"Agreement" means this Agreement as from time to time amended;
"Business Day" means a day on which lenders and foreign exchange
markets are open for the transaction of business of
the nature required by this Agreement in the place or
places from time to time specified by the Lender;
"Credit Facility" means the aggregate principal amount of all Advances
pursuant to this Agreement and at any time being
outstanding;
"Expiry Date" means the day which is 12 months after the Borrower's
signing of the merger agreement with ▇▇▇▇▇▇▇
Corporation;
"Interest Payment Date" means the last day of the Interest Period relative to
an Advance;
"Interest Period" means in relation to each Advance a period of 1, 3,
or 6 months or such other periods as may be agreed
between the Borrower and the Lender. Every Interest
period must end before the Expiry Date;
"LIBOR" means, in relation to an Advance denominated in USD,
the rate per annum of the offered quotations for
deposits in USD and for a period equal to the
relevant Interest Period which appears on Reuters
screens FRBD-FRBH, (or through such other information
system or on such other screens replacing that system
or screens respectively) which displays British
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Bankers Association Interest Settlement Rates for
deposits in USD, at or about 11.00 a.m. London time
two Business days prior to the commencement of each
Interest Period;
"Margin" means 0.675 per cent unit per annum;
"Merger Agreement" means the agreement and plan of merger by and among the
Borrower, the Borrower's wholly owned acquisition
subsidiary and ▇▇▇▇▇▇▇ Corporation entered into no later
than noon US EDT June 18, 1997;
"USD" means the lawful currency, at any relevant time
hereunder, in the United States of America.
In this Agreement headings are for convenience only and wherever relevant
singular includes plural and vice versa.
3. CREDIT FACILITY
The Lender will make available Advances to the Borrower upon the terms and
subject to the conditions hereof up to a total amount of USD 400,000,000.
The Borrower is entitled to prepay on any interest roll-over date the drawings,
all or part of the Facility in a minimum amount of USD 20,000,000 without
penalty provided that 7 Business Days prior written notice has been given to
the Lender.
The Borrower is entitled to cancel any undrawn part of the Facility without
penalty provided that 7 Business Days prior written notice has been given to
the Lender. Any cancelled amount can not be reborrowed.
4. ADVANCE
Each Advance under this Agreement shall be made available by payment from the
Lender to the Borrower upon the Lenders receipt at or before 09.00 a.m. Swedish
time, not less than three Business Days prior to each disbursement, of
irrevocable payment instruction specifying in respect of such Advance (a) the
value date, which much be a Business Day (b) the amount expressed in USD and
which has to be a minimum amount of USD 20,000,000 (c) the Interest Period and
(d) complete payment instructions.
5. CONDITIONS PRECEDENT
The following conditions must be fulfilled before an Advance shall be made
available under this Agreement:
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(a) the Borrower shall have obtained all permits necessary for the
entering into this Agreement and making the Advances available;
(b) the Lender shall be satisfied that the Borrower's representations
and warranties in Clause 7 below, to be repeated for each Advance, are
true in all material respects;
(c) The Lender shall have received no later than 01.00 p.m. US EDT June 18,
1997 the Borrower's written confirmation that a Merger Agreement have
been entered into followed by a certified copy evidencing the
Borrower's agreed bid for all the shares in ▇▇▇▇▇▇▇ Corporation; and
(d) The Lender shall have received a Deed of Pledge to the full satisfaction
of the Lender concerning each of the shares of the Acquisition Sub
together with the shares.
6. SECURITY
A pledge of all the outstanding shares of the Acquisition Sub to be converted
into fully paid and nonassesable shares of common stock of ▇▇▇▇▇▇▇ Corporation
upon the effective merger of the Acquisition Sub and ▇▇▇▇▇▇▇ Corporation and,
until such effective merger has occurred, 100 per cent of the acquired shares of
▇▇▇▇▇▇▇ Corporation (including any acquired outstanding options for the
purchase of such shares).
7. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants and the Lender shall be satisfied, that:
(a) the Borrower is duly formed and validly existing under the laws of
Sweden and has full power to carry on its business as it is now being
conducted and that the entering into and performance of this Agreement
by the Borrower is consistent with all the statutes which govern its
activities and has been duly authorised by all necessary action on the
part of the Borrower;
(b) the Borrower has obtained from the relevant authorities all the permits,
consents and authorisations necessary for the entering into and
fulfilling of the obligations under this Agreement;
(c) the individual/s signing this Agreement on behalf of the Borrower was/
were duly authorised to sign;
(d) this Agreement constitutes direct, general, legally valid and binding
obligations of the Borrower enforceable in accordance with its terms
and ranking pari passu with all other unsecured and unsubordinated
outstanding indebtedness of the Borrower except debt which is
preferred by operation of law;
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(e) the execution of this Agreement does not result in a breach of, or
constitutes a default under, any agreement or other instrument to which
the Borrower is a party or by which it or any of its assets may be
bound or affected;
(f) the execution, delivery and performance of this Agreement will not
violate in any respect any provision of any existing law or of any
regulation or undertaking to which the Borrower is subject or a party;
(g) no litigation, arbitration or administrative proceeding is pending or
threatened against the Borrower, which might result in any material
adverse change in the business or condition (financial or otherwise) of
the Borrower;
(h) no event has occurred which (by giving of notice and/or by lapse of time
or otherwise) would constitute an event of default under this Agreement,
nor is the Borrower in default under any other agreement to which it is
a party or by which it may be bound or otherwise in default of any kind
in respect of any financial commitment or obligation (including
obligations under guarantees) which could have a material adverse effect
on the Borrower's ability to perform its obligations under this
Agreement and nor is the Borrower aware of a fact which (by giving of
notice and/or lapse of item or otherwise) would constitute such a
default;
(i) this Agreement is not liable to any registration stamp or similar tax
otherwise as has been paid or will be paid by the Borrower;
(j) there has been no material adverse change in the financial position of
the Borrower to date from its position as presented to the Lender in
connection with the negotiation of this Agreement, nor does any written
information given by the Borrower in relation to this Credit Facility
contain any misstatement of fact as at the date hereof or omit to state
a fact which would be materially adverse to the interest of the Lender;
and
(k) it has obtained necessary authorisations, approvals, licenses, consents,
exemptions, clearances, filings or registrations required for the
conduct of the business, trade or ordinary activities.
The Borrower represents and warrants that the conditions under this Clause 7
have been fulfilled and shall also be fulfilled in relevant parts as long as
the Borrower has any payment obligations under this Agreement.
8. REPAYMENT
Each Advance, together with accrued interest, shall be repaid on the Expiry Day
or, if such day is not a Business day, on the next following Business Day,
unless that day falls in a new calendar month, in which case it shall be paid
on the preceding Business Day.
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9. INTEREST
The Borrower shall pay interest on each Advance for the Interest Period
relative thereto in accordance with this Clause 9. Interest on each Advance
shall be paid on the Interest Payment Day relating thereto except that for any
Interest Period in excess of 6 months, accrued interest will be payable after
each 6 months, with interest on the remaining period being paid at the end of
such period.
The rate of interest applicable to each Advance denominated in USD for the
Interest Period relative thereto, shall be the rate per annum determined by the
Lender to be the aggregate of (i) LIBOR relevant to such Advance for such
Interest Period and (ii) the Margin.
Interest will be calculated on the basis of the actual number of days elapsed
and a year of 360 days (365/360).
In the event that the Borrower should fail to pay on the due date any principal
or interest or any other amount due hereunder, the Borrower shall pay interest
on such principal, interest and any other such amount from the due date up to
and including the day when the amount is actually paid calculated at a rate
determined by the Lender to be the higher of 1 per cent unit per annum above (i)
the rate applicable to such overdue amount immediately prior to the due date
and (ii) the rate of interest determined by the lender at which over-night
loans in the respective currency are offered to the Lender in the London
Interbank Money Market at or about 11.00 a.m. London time on each day during
such period in an amount equal to the sum unpaid. Such interest shall be
compounded and be payable on demand.
Without prejudice to the foregoing, the Borrower shall indemnify the Lender for
any costs or expenses which the Lender may sustain or incur as a consequence of
the default in payment by the Borrower.
10. FEES AND EXPENSES
10.1 ARRANGEMENT FEE
The Borrower shall pay an Arrangement fee to the Lender which amounts to 0,125
per cent of the amount of the Facility and payable up-front after signing of
the Merger Agreement. This fee is payable in full whether or not the Borrower
completes the agreed bid on ▇▇▇▇▇▇▇ Corporation.
A fee of SEK 250,000 is payable promptly after the Borrowers signing of this
Agreement and will be deducted from the Arrangement fee if the Borrower becomes
the agreed bidder on ▇▇▇▇▇▇▇ Corporation.
10.2 UTILISATION FEE
The Borrower shall pay a Utilisation fee to the Lender which amounts to 0,05
per cent per month and which is payable on the full amount of the Facility,
commencing at the first
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drawdown of the Facility and payable until the closing of the Borrower's
planned rights issue which will be used to refinance part of this Facility.
10.3 Initial and special costs
The Borrower shall forthwith on demand pay the Lender the amount of all
reasonable costs and expenses (including legal fees) properly incurred by it in
connection with:
(a) the negotiation, preparation, printing and execution of this Agreement
and any other necessary documents (including legal opinion);
(b) any amendment, waiver, consent or suspension of rights (or any proposal
for any of the foregoing) requested by the Borrower;
(c) travelling expenses;
(d) any other matter, not of an ordinary administrative nature, arising out
of or in connection with this Agreement.
10.4 Enforcement's costs
The Borrower shall forthwith on demand pay to the Lender the amount of all
reasonable costs and expenses (including legal fees) incurred by it in
connection with the enforcement of, or the preservation of, any rights under
this Agreement.
11. PAYMENTS
All payments in favour of the Lender to be made by the Borrower hereunder shall
be made in the currency in which the Advance is denominated (if not otherwise
indicated herein) to the Lender, not later than ll.00 a.m. New York time on the
date upon which the relevant payment is due and shall be made in immediately
available funds or such funds as shall be customary for lenders for the
settlement of international transactions in the respective currencies.
All amounts payable by the Borrower under this Agreement, whether in respect of
principal or interest or otherwise, shall be paid in full without any deduction
on account of any present or future taxes, levies, duties, charges or other
imposts or withholding of any nature imposed or levied by any authority in
Sweden save for increased costs arising from an increase of the current BIS
capital adequacy requirements. In the event of the Borrower being compelled by
law or other regulation to make any such deduction or withholding from any
payment to the Lender, the Borrower shall - on the due date - pay such
additional amounts as may be necessary to ensure that the aggregate of the net
amounts received by the Lender after such deduction or withholding equals the
amount which would have been received in the absence of any such deduction or
withholding.
All taxes required by law to be deducted or withheld by the Borrower from any
amounts paid or payable under this Agreement, shall be paid when due and the
Borrower shall, as
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soon as reasonably practicable after the payment is made, deliver to the Lender
all relevant tax receipt - or similar evidence - or copies thereof that
the payment has been duly remitted to the appropriate authority.
If the Lender receives a payment insufficient to discharge all the amounts then
due and payable by the Borrower it may be applied by the Lender in its
discretion, upon informing the Borrower, towards amounts due and unpaid of
whatever kind owed by the Borrower under this Agreement.
12. UNCONDITIONAL PAYMENTS
The liability of the Borrower to make payments or to discharge any other debts
under this Agreement is in no way conditional upon performance of any contract
by any other party and it shall not be affected in any way by reason of any
claim, which the Borrower might have or might consider that it has against any
other party or the Lender by way of setoff or counterclaim or otherwise.
13. ACCOUNTS
The Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the amounts from time to time lent by, owing to and paid to
it pursuant to this Agreement and such account or accounts shall constitute (in
the absence of manifest error) prima facie evidence of such amounts. The Lender
shall regularly provide the Borrower with statements of accounts.
14. TERMINATION
Notwithstanding the fact that this Agreement has terminated the provisions in
this Agreement (save for paragraph 3) will remain in full force and effect
until the Credit Facility is repaid to the full satisfaction of the Lender.
15. ASSIGNMENT
The Borrower may not assign its rights and obligations under this Agreement
unless that the Lender has given its prior written consent.
The Lender may at any time assign all or any part of its rights and/or
obligations under this Agreement to any other lender or financial institution
affiliated with the Lender and, with the prior written consent of the Borrower,
which consent shall not be unreasonably withheld or delayed, to any other party.
Upon an assignment made in accordance with this Clause the Borrower or the
Lender, as the case may be, shall on demand by the other party execute such
documents and all such acts as the Lender may request to give effect to the
assignment.
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All references in this Agreement to the Lender shall after an assignment being
made hereunder mutatis mutandis apply also to the assignee. After an assignment
has been made hereunder by the Lender, the assignee shall be represented by the
Lender as agent until further notice from the assignee. If an assignment will be
made hereunder by the Borrower, then the Lender and the assignee shall agree
about the representation of the assignee.
16. FORCE MAJEURE
The Lender shall not be held responsible for any loss or damage resulting from
a legal enactment (Swedish or foreign), the intervention of a public authority
(Swedish or foreign), an act of war, strike, blockade, boycott, lockout or any
other similar circumstances. The reservations in respect of strikes, blockades,
boycotts and lockouts shall apply even if the Lender itself takes such measures
or is the subject of such measures.
Any loss or damage that has occurred in other circumstances shall be
indemnified by the Lender only to the extent that such loss or damage has been
caused by gross negligence or wilful misconduct on the part of the Lender. The
Lender shall in no case be responsible for indirect losses or damages.
If an impediment as set out above exists with respect to any of the Lender's
obligations, then the Lender is entitled to postpone the performance of
such obligation until such impediment no longer exists.
17. UNDERTAKINGS
The Borrower hereby undertakes with the Lender that as long as any moneys are
outstanding under this Agreement:
(a) it will promptly inform the Lender of any occurrence of which it becomes
aware which by giving of notice and/or by lapse of time or otherwise would
constitute an event of default under this Agreement or any occurrence of
which it becomes aware which in its reasonable opinion, might otherwise
adversely affect its ability to perform its obligations under this
Agreement;
(b) it will obtain or procure the obtaining of every consent and license and
do all other acts and things as may from time to time be necessary or
desirable for the due performance of its obligations under this
Agreement;
(c) it will not create or have outstanding any indebtedness secured on or over
its assets or revenues, whether now owned or hereinafter existing, except
for liens, security interests, encumbrances, mortgages and pledges arising
solely by operation of law and in the ordinary course of its operations;
(d) it will maintain insurance cover in relation to its business and assets of
a type and in an amount as is usual for prudent companies carrying on a
business such as that carried on by the Borrower in the place of its
operations;
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(e) it will provide the Lender, as soon as available but in any event not
later than 180 days after the close of its financial year, with its
audited unconsolidated and consolidated financial statements
(including balance sheets and profit and loss accounts) and supply the
Lender with copies of its audited (where required by law, or if not,
unaudited) interim report(s) as soon as available but in any event not
later than 90 days after the end of the relevant period; and
(f) it will procure that the Acquisition Sub will not (i) sell or otherwise
dispose of its shares of ▇▇▇▇▇▇▇ Corporation (otherwise than
contemplated in the Merger Agreement) or (ii) create any pledge on or
over the shares of ▇▇▇▇▇▇▇ Corporation (otherwise than contemplated in
this Agreement).
18. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) the Borrower fails to repay on the due date any Advance under this
Agreement or any interest or other amount payable by the Borrower
under this Agreement; or
(b) the Borrower defaults under any other provision of this Agreement and
such default continues for thirty (30) days after receipt by the
Borrower of notice of such default from the Lender; or
(c) any indebtedness of the Borrower other than the indebtedness created
hereunder becomes due and payable prior to the stated maturity thereof
resulting from a default thereunder, or if such indebtedness is not paid
at the maturity thereof, or if payable on demand such indebtedness is
not paid, when demanded, or any guarantee or indebtedness given by the
Borrower in relation to a third party is not honoured when due and
called, or if the Borrower is otherwise in breach of, or in default
under, any agreement pursuant to which such indebtedness was incurred
and the occurrence of such event or events is reasonably considered by
the Lender to have a material adverse effect on the ability of the
Borrower to perform its obligations hereunder; or
(d) necessary approval for the Borrower in connection with this Agreement
or the transactions contemplated therein is revoked, rescinded,
suspended or otherwise limited in effect; or
(e) any representation or warranty made by the Borrower in this Agreement
proves to have been incorrect in any material respect or becomes
materially incorrect; or
(f) any order is made by any competent court or resolution passed by the
Borrower for the appointment of a liquidator, receiver or trustee of
the Borrower or of all or a substantial part of its assets, except for
the purpose of amalgamation or reorganisation not involving insolvency
the terms of which shall have been previously approved by the Lender; or
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(g) the Borrower is unable to, or admits inability to pay its debts as they
fall due, or is adjudicated or found bankrupt or insolvent; or
(h) if the Borrower from the date of this Agreement will commence, or
conclude prior to the date of this Agreement already commenced,
negotiations with any one or more of its creditors, with a view to a
general readjustment or rescheduling of its indebtedness or makes a
general assignment for the benefit of or a composition with its
creditors; or
(i) if it becomes unlawful for the Borrower to perform any of its
obligations under this Agreement or any of its obligations hereunder
ceases to be valid, binding and enforceable; or
(j) any event or series of events occur which, in the sole opinion of the
Lender, has or could reasonably be expected to have a material adverse
effect on the financial condition of the Borrower.
then and in any such event the Lender shall have the right by notice given to
the Borrower to terminate all or any of the obligations of the Lender under
this Agreement and the Credit Facility shall upon such notice immediately, or
in accordance with such notice, become repayable together with fees and
interest accrued.
In the event that the Lender should exercise its rights under this Clause, the
Borrower shall indemnify the Lender for any losses, costs, premium and
penalties incurred by the Lender.
19. LAW AND JURISDICTION
This Agreement shall be deemed to be made under and shall be construed in
accordance with and governed in all respects by Swedish law and the Borrower
and the Lender hereby irrevocably submits to the jurisdiction of Swedish courts.
Notwithstanding the provisions of the preceding paragraph, the Lender reserves
the right to commence proceedings against the Borrower in the courts of the
country where the Borrower is established or domiciled and in the courts of any
other country having jurisdiction in respect thereof.
The Borrower hereby expressly agrees to renounce the right to invoke, wherever
and under what circumstances, any immunity of jurisdiction or enforcement
whatsoever which its status could involve.
20. MISCELLANEOUS
No failure or delay on the part of the Lender to exercise any power or right
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise by the Lender of any power or right hereunder preclude any
other or further exercise or the
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exercise of any other power or right. The rights and remedies provided herein
are cumulative and are not exclusive of any rights and remedies provided by law.
21. NOTICE
Every notice or demand under this Agreement shall be in writing or given by
telefax. Every notice or demand shall be sent, in case of a letter if to the
Lender to Swedbank (Sparbanken Sverige AB), ▇-▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and if to
Borrower to BT Industries AB, ▇-▇▇▇ ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ and in case of a telefax
to the Lender to telefax nr ▇▇▇ ▇ ▇▇▇ ▇▇ ▇▇ and in case of a telefax to the
Borrower to telefax nr ▇▇▇ ▇▇▇ ▇▇▇ ▇▇.
Every notice or demand shall, except so far as otherwise expressly provided by
this Agreement, be deemed to have been received in the case of a telefax
message when dispatched, if received during business hours or, if not, at the
beginning of the following Business Day at the place of receipt, and in the
case of a letter fourteen (14) Business Days after the time of posting by
registered mail, postage prepaid.
22. LANGUAGE
All notices or communication under or in connection with this Agreement shall
be in the English language or if in any other language, accompanied by a
translation into English. In the event of any conflict between the English text
in any other language, the English text shall prevail.
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This Agreement has been executed in two counterparts of which the Borrower and
the Lender have taken one each.
SWEDBANK (SPARBANKEN SVERIGE AB (publ))
/s/ /s/
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BT INDUSTRIES AB
/s/
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