Amendment Agreement relating to a Facilities Agreement for USD 600,000,000 Committed Multicurrency Term Loan and Revolving Credit Facilities dated 4 February 2008 between Danfoss A/S (as Parent, Original Borrower and Guarantor) and Danske Bank A/S (as...
Exhibit (b)(2)
EXECUTION
VERSION
Amendment
Agreement
relating
to a
for
USD
600,000,000
Committed
Multicurrency Term Loan and Revolving Credit Facilities
dated
4 February 2008
between
Danfoss
A/S
(as
Parent, Original Borrower and Guarantor)
and
Danske
Bank A/S
(as
Lender)
Dated
4 January 2010
This
amendment agreement (the "Amendment Agreement") to the Facilities Agreement for
USD 600,000,000 Committed Multicurrency Term Loan and Revolving Credit
Facilities (the "Agreement"), dated 4 February 2008 between Danfoss A/S as
Parent, Original Borrower and Guarantor and Danske Bank A/S as Lender is entered
into on 4 January 2010 between:
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(i)
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Danfoss
A/S (CVR No. 20165715), ▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
and
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(ii)
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Danske
Bank A/S (CVR No. 61126228), ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇-▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇.
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1.
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Background
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1.1
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The
Parent and the Lender are parties to the Agreement. The Parent has
requested certain amendments to the Agreement with respect to, inter alia,
the purpose and amount (reduction) of Facility B and Facility C and the
Parent and the Lender have agreed to make the amendments to the Agreement
set out in this Amendment
Agreement.
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IT IS NOW
AGREED as follows:
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2.
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Definitions
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2.1
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Capitalised
terms used, and not otherwise defined herein, shall, unless the context
otherwise requires, have the meaning ascribed to them in the Amendment
Agreement.
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2.2
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In
this Amendment Agreement, “Effective Date” means 29 October
2009.
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3.
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Amendments
to the Agreement
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3.1
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The
Agreement shall, except as otherwise explicitly set out below, with effect
as of the Effective Date” be amended as
follows:
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3.1.1
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In
clause 2.1 (Definitions) of the Agreement, the definition of “Commitment”
in sub-clause 2.1.17 shall be amended to read as
follows:
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““Commitment”
shall mean the Facility A Commitment, the Facility B Commitment and the
Facility C Commitment not exceeding in aggregate USD 500,000,000 or the
equivalent thereof in any Optional Currency to be made available to the
Borrowers by the Lender;”
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3.1.2
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In
clause 2.1 (Definitions) of the Agreement, the definition of “Facility B
Commitment” in sub-clause 2.1.39 shall be amended to read as
follows:
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““Facility
B Commitment” shall mean the Base Currency Amount of USD 160,000,000 to
the extent not cancelled or
reduced;”
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2
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3.1.3
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In
clause 2.1 (Definitions) of the Agreement, the definition of “Facility C
Commitment” in sub-clause 2.1.42 shall be amended to read as
follows:
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““Facility
C Commitment” shall mean the Base Currency Amount of USD 140,000,000 to
the extent not cancelled or
reduced;”
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3.1.4
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In
clause 2.1 (Definitions) of the Agreement, the definition of “Margin” in
sub-clause 2.1.57 shall be amended to read as
follows:
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““Margin”
shall mean (i) in relation to Facility A, the Facility A Commitment and
any Facility A Loan, a margin of initially 0.530 % p.a. subject to Clause
6.6 (Margin Adjustment) and (ii) in relation to Facility B, Facility C,
the Facility B Commitment, the Facility C Commitment, any Facility B Loan
and any Facility C Loan, a margin of 1.75%
p.a.”
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3.1.5
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In
clause 3 (Commitment, currency and purpose), sub-clause 3.3 (Purpose),
sub-paragraph (b) shall be amended to read as
follows:
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“(b)
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a
Facility B for the purpose of partly financing the acquisition by the
Parent and/or a Subsidiary of an additional approximately 20.8 % of the
share capital (of whatever class) of the Target, together with all related
rights.”
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3.1.6
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In
clause 3 (Commitment, currency and purpose), sub-clause 3.3 (Purpose),
sub-paragraph (c) shall be amended to read as
follows:
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“(c)
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a
Facility C for the purpose of financing the acquisition by the Parent
and/or a (directly or indirectly) wholly owned and controlled subsidiary
of the Parent of free float shares in the share capital (of whatever
class) of the Target, together with all related rights. The acquisition of
shares in the Target can be carried out as one single transaction or as a
series of transactions.”
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3.1.7
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In
clause 6 (Interest), in each of sub-clauses 6.6 (Margin Adjustment)
through 6.12 (Default Margin) each reference to “Margin” shall be replaced
by a reference to “Margin in relation to Facility A or a Facility A Loan”
and each reference to a “Loan” shall be replaced by a reference to a
“Facility A Loan”.
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3.1.8
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In
clause 11 (Fees), sub-clause 11.2 (Commitment Fee) shall be amended to
read as follows:
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“11.2
Commitment Fee: The Parent shall pay to the Lender a commitment fee (the
“Commitment Fee”) accruing from the Signing Date and calculated quarterly
in arrears on 31 March, 30 June, 30 September and 31 December
as:
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(a)
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in
relation to Facility A, 35% p.a. of the applicable Margin at any time on
the undrawn, uncancelled amount of the Facility A Commitment,
and
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(b)
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in
relation to Facility B and Facility C, 40% p.a. of the applicable Margin
at any time on the undrawn, uncancelled amount of the Facility B
Commitment and Facility C Commitment
(respectively),
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3
and on
the basis of the actual number of days elapsed and a calendar year of 360 days.
Accrued Commitment Fee is payable in the Base Currency on the above calculation
days and on the date the Commitment under the relevant Facility is cancelled in
full.”
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4.
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Conditions
precedent
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4.1
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It
is a condition precedent to the availability of any Facility under the
Agreement (as amended by this Amendment Agreement) that the Lender has
received (in addition to the documents and evidence set out in clause 4.1
of the Agreement) the following documents and evidence in form and
substance satisfactory to the
Lender:
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4.1.1
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An
original copy of this Amendment Agreement, duly executed by each Borrower
and the Guarantor.
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4.1.2
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Evidence
reasonably satisfactory to the Lender that this Amendment Agreement has
been duly authorised and executed on behalf of and constitutes the legal,
valid and binding obligations of each Borrower and the
Guarantor.
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5.
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Amendment
and waiver fee
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5.1
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The
Parent shall pay to the Lender an amendment and waiver fee of 0.40% flat
on the aggregate Facility C (as reduced pursuant to this Amendment
Agreement), equal to USD 560,000, payable on the date of this Amendment
Agreement.
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6.
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Applicable
law and legal venue
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6.1
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Clause
28 (Applicable law and legal venue) of the Agreement
shall apply mutatis
mutandis to this Amendment Agreement.
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This
Amendment Agreement is being duly executed by each of the Parties by their
authorised signatories on the date first written above.
As
Parent, Guarantor and Original Borrower,
Danfoss
A/S:
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Name:
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Name:
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Title:
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Title:
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As
Lender,
Danske
Bank A/S:
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Name:
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Name:
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Title:
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Title:
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