Exhibit 4.3


 


	
  

  	
  LIMITED LIABILITY
  PARTNERSHIP

  



 


 


CONFORMED COPY


 


17
NOVEMBER 2003


(as
amended by a syndication and amendment agreement dated 10 December 2003)


 


 


ABB LTD


 


CERTAIN
SUBSIDIARIES OF ABB LTD


as
Borrowers and Guarantors


 


with


 


BARCLAYS
CAPITAL


BAYERISCHE
HYPO-UND VEREINSBANK AG


BNP
PARIBAS


CITIGROUP
GLOBAL MARKETS LIMITED


COMMERZBANK
AKTIENGESELLSCHAFT


CREDIT
SUISSE FIRST BOSTON


DEUTSCHE
BANK AG


DRESDNER
KLEINWORT WASSERSTEIN


HSBC
BANK PLC


NORDEA
BANK SWEDEN AB (PUBL)


SEB
MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


SVENSKA
HANDELSBANKEN AB (PUBL)


as
Mandated Lead Arrangers


 


and


 


CREDIT
SUISSE FIRST BOSTON


acting
as Facility Agent


 


 


US$1,000,000,000


MULTI-CURRENCY
REVOLVING CREDIT AGREEMENT


 

















 


CONTENTS


 


	
  Clause

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1.

  	
  Definitions And Interpretation

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
  The Facility

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
  Purpose

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
  Conditions Of Utilisation

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
  Utilisation

  	
   

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Optional Currencies

  	
   

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Repayment Of Advances

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Prepayment And Cancellation

  	
   

  
	
   

  	
   

  	
   

  
	
  9.

  	
  Interest

  	
   

  
	
   

  	
   

  	
   

  
	
  10.

  	
  Interest Periods

  	
   

  
	
   

  	
   

  	
   

  
	
  11.

  	
  Changes To The
  Calculation Of Interest

  	
   

  
	
   

  	
   

  	
   

  
	
  12.

  	
  Fees

  	
   

  
	
   

  	
   

  	
   

  
	
  13.

  	
  Tax Gross Up And
  Indemnities

  	
   

  
	
   

  	
   

  	
   

  
	
  14.

  	
  Increased Costs

  	
   

  
	
   

  	
   

  	
   

  
	
  15.

  	
  Other Indemnities

  	
   

  
	
   

  	
   

  	
   

  
	
  16.

  	
  Mitigation By The Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  17.

  	
  Costs And Expenses

  	
   

  
	
   

  	
   

  	
   

  
	
  18.

  	
  Guarantee And Indemnity

  	
   

  
	
   

  	
   

  	
   

  
	
  19.

  	
  Representations

  	
   

  
	
   

  	
   

  	
   

  
	
  20.

  	
  Information Undertakings

  	
   

  
	
   

  	
   

  	
   

  
	
  21.

  	
  Financial Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  22.

  	
  General Undertakings

  	
   

  
	
   

  	
   

  	
   

  
	
  23.

  	
  Events Of Default

  	
   

  
	
   

  	
   

  	
   

  
	
  24.

  	
  Changes To The Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  25.

  	
  Changes To The Obligors

  	
   

  
	
   

  	
   

  	
   

  
	
  26.

  	
  Role
  Of The Facility Agent And The Mandated Lead Arrangers

  	
   

  
	
   

  	
   

  	
   

  
	
  27.

  	
  Conduct Of
  Business By The Finance Parties

  	
   

  
	
   

  	
   

  	
   

  
	
  28.

  	
  Sharing Among The Lenders

  	
   

  
	
   

  	
   

  	
   

  
	
  29.

  	
  Payment Mechanics

  	
   

  
	
   

  	
   

  	
   

  
	
  30.

  	
  Set-Off

  	
   

  
	
   

  	
   

  	
   

  
	
  31.

  	
  Notices

  	
   

  
				



 

















 


	
  32.

  	
  Calculations And
  Certificates

  	
   

  
	
   

  	
   

  	
   

  
	
  33.

  	
  Partial Invalidity

  	
   

  
	
   

  	
   

  	
   

  
	
  34.

  	
  Remedies And Waivers

  	
   

  
	
   

  	
   

  	
   

  
	
  35.

  	
  Amendments And Waivers

  	
   

  
	
   

  	
   

  	
   

  
	
  36.

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  
	
  37.

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
   

  
	
  38.

  	
  Enforcement

  	
   

  
	
   

  	
   

  
	
  Schedule 1

  	
  THE ORIGINAL PARTIES

  	
   

  
	
   

  	
  Part I

  	
  The Original Lenders

  	
   

  
	
   

  	
  Part II

  	
  The Original Obligors

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 2

  	
  CONDITIONS PRECEDENT

  	
   

  
	
   

  	
  Part
  I

  	
  Conditions
  Precedent To Initial Utilisation

  	
   

  
	
   

  	
  Part II

  	
  Additional
  Obligor Conditions Precedent

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 3

  	
  UTILISATION REQUEST

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 4

  	
  THE MARGIN AND UTILISATION FEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 5

  	
  FORM OF TRANSFER CERTIFICATE

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 6

  	
  TIMETABLES

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 7

  	
  FORM OF ACCESSION LETTER

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 8

  	
  FORM OF RESIGNATION LETTER

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 9

  	
  MANDATORY COSTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 10

  	
  MATERIAL SUBSIDIARIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 11

  	
  FORM OF COVENANT COMPLIANCE CERTIFICATE

  	
   

  



 

















 


THIS AGREEMENT is
dated 17 November 2003 and made between


 


(1)                            ABB
LTD, a company incorporated in Switzerland whose
registered office is at Affolternstrasse 44, CH-8050 Zurich, Switzerland (“ABB”);


 


(2)                            THE
SUBSIDIARIES of ABB listed in Part 2 of
Schedule 1 (The Original Parties) as original borrowers (the “Original
Borrowers”);


 


(3)                            ABB AND THE SUBSIDIARIES OF ABB listed in Part 2 of Schedule 1 (The Original Parties) as
original guarantors (the “Original Guarantors”);


 


(4)                            BARCLAYS CAPITAL, BAYERISCHE HYPO-UND
VEREINSBANK AG, BNP PARIBAS, CITIGROUP GLOBAL MARKETS LIMITED, COMMERZBANK
AKTIENGESELLSCHAFT, CREDIT SUISSE FIRST BOSTON, DEUTSCHE BANK AG, DRESDNER
KLEINWORT WASSERSTEIN, HSBC BANK PLC, NORDEA BANK SWEDEN AB (PUBL), SEB
MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL) and SVENSKA HANDELSBANKEN AB (PUBL)
in their respective capacities as mandated lead arrangers (the “Mandated
Lead Arrangers”);


 


(5)                            BANCO BILBAO VIZCAYA ARGENTARIA S.A., CDC
IXIS, DEN NORSKE BANK ASA, ING BELGIUM NV, KBC BANK NV and SAUDI AMERICAN BANK
(the “Arrangers”);


 


(6)                            THE
FINANCIAL INSTITUTIONS listed in Part 1 of
Schedule 1 (The Original Lenders) in their respective capacities as
original lenders (the “Lenders”); and


 


(7)                            CREDIT
SUISSE FIRST BOSTON in its capacity as facility
agent (the “Facility Agent”).


 


 


IT IS AGREED as follows:


 


SECTION 1


INTERPRETATION


 


1.                                 DEFINITIONS AND INTERPRETATION


 


1.1                           Definitions


In this
Agreement:


 


“Accession
Letter” means a letter substantially in the form set out in
Schedule 7 (Form of Accession Letter).


 


“Additional
Borrower” means any Subsidiary of ABB which has become an Additional
Borrower in accordance with Clause 25.2 (Additional Borrowers).


 


“Additional
Guarantor” means any Subsidiary of ABB which has become an
Additional Guarantor in accordance with Clause 25.4 (Additional Guarantors).


 


1

















 


“Additional
Obligor” means an Additional Borrower or an Additional Guarantor.


 


“Advance”
means an advance made or to be made under the Facility or the principal amount
outstanding for the time being of that advance.


 


“Affiliate”
means, in relation to any person, a Subsidiary of that person or a Holding
Company of that person or any other Subsidiary of that Holding Company.


 


“Agreed Form Pledges” means the pledges
contemplated from:


 


(a)                                      ABB Oil & Gas USA Inc. in respect of the shares of ABB Offshore
Systems Inc and ABB Vetco Gray Inc; and


 


(b)                                     ABB Holding AG in respect of the shares of ABB Holding AS,


 


each in agreed
form.


 


“Agreed Form Trust Deed” means the trust
deed contemplated in respect of the Agreed Form Pledges, in agreed form.


 


“Agreed
Jurisdiction” means any of the United States of America,
Switzerland, Guernsey, any country that is, at the date of this Agreement, a
member of the European Union and any other country approved by all the Lenders.


 


“Approved Reorganisation” means any of the
amalgamations, demergers, mergers or corporate reconstructions set out in the
group structure chart provided by ABB prior to the date of this Agreement
provided that in relation to any Obligor, the Facility Agent has received a
copy of an opinion from external counsel acceptable to the Facility Agent,
acting reasonably, that the enforceability of that Obligor’s obligations under
the Finance Documents will not be affected thereby.


 


“Authorisation”
means an authorisation, consent, approval, resolution, licence, exemption,
filing or registration.


 


“Availability Period” means the period from
and including 10 December 2003 to and including the date falling 1 Month
prior to the Final Maturity Date.


 


“Available
Commitment” means a Lender’s Commitment minus:


 


(a)                                      the Base Currency Amount of its participation in any outstanding
Advances; and


 


(b)                                     in relation to any proposed Utilisation, the Base Currency Amount of
its participation in any Advances that are due to be made on or before the
proposed Utilisation Date,


 


other than, in
either case, that Lender’s participation in any Advances that are due to be
repaid or prepaid on or before the proposed Utilisation Date.


 


“Available
Facility” means the aggregate for the time being of each Lender’s
Available Commitment.


 


2

















 


“Base
Currency” means Dollars.


 


“Base
Currency Amount” means, in relation to an Advance, the amount
specified in the Utilisation Request delivered by the relevant Borrower for
that Advance (or, if the amount requested is not denominated in the Base
Currency, that amount converted into the Base Currency at the Facility Agent’s
Spot Rate of Exchange on the date which is 3 Business Days before the
Utilisation Date or, if later, on the date the Facility Agent receives the
Utilisation Request) adjusted to reflect any repayment or prepayment of the
Advance.


 


“Borrowers”
means each Original Borrower and each Additional Borrower, provided that it has not been
released from its rights and obligations under this Agreement in accordance
with Clause 25.3 (Resignation of a Borrower).


 


“Break Costs”
means the amount (if any) by which:


 


(a)                                      the interest (excluding the Margin), which a Lender should have
received for the period from the date of receipt of all or any part of its
participation in an Advance or Unpaid Sum to the last day of the current
Interest Period in respect of that Advance or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that Interest
Period;


 


exceeds:


 


(b)                                     the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on deposit
with a leading bank in the Relevant Interbank Market for a period starting on
the Business Day following receipt or recovery and ending on the last day of
the current Interest Period.


 


“Business Day”
means:


 


(a)                                      in relation to any Advance, a day (other than a Saturday or Sunday)
on which banks are open for general business in London, and:


 


(i)                           (in relation to any date for payment or purchase of a currency other
than Euro) the principal financial centre of the country of that currency; or


 


(ii)                        (in relation to any date for payment or purchase of Euro) any TARGET
Day; and


 


(b)                                     for all other purposes, a day (other than a Saturday or Sunday) on
which banks are open for general business in London.


 


“Business Plan” means the 3 year business
plan (consisting of an income statement and balance sheet of the Group) dated 7
October 2003 prepared by ABB and as updated in accordance with Clause 20.4
(Liquidity Plan and Business Plan).


 


3

















 


“Commitment”
means:


 


(a)                                      in relation to an Original Lender, the amount in the Base Currency
set opposite its name under the heading “Commitment” in Part 1 of Schedule 1 (The Original
Lenders) and the amount of any other Commitment transferred to it
under this Agreement; and


 


(b)                                     in relation to any other Lender, the amount of any Commitment
transferred to it under this Agreement,


 


to the extent
not cancelled, reduced or transferred by it under this Agreement.


 


“Covenant Compliance Certificate” means
a certificate substantially in the form set out in Schedule 11 (Form of
Covenant Compliance Certificate).


 


“Credit
Rating” means a senior, unsecured long term debt rating given by
S&P or Moody’s.


 


“Default”
means an Event of Default or any event or circumstance specified in Clause 23 (Events of
Default) which (with the expiry of a grace period or the giving of
any notice specified in Clause 23 (Events of Default)) would be an Event of
Default.


 


“Disposal”
means a sale, transfer or other disposal (including by way of lease or loan) by
a person of all or part of its assets, whether by one transaction or a series
of transactions and whether at the same time or over a period of time.


 


“Dutch Borrower” means each Borrower
incorporated or established in The Netherlands.


 


“EBITDA” has the meaning given to such term
in Clause 21.1 (Financial Definitions).


 


“Environmental Claim” means any claim or
proceeding by any person pursuant to any Environmental Law.


 


“Environmental
Law” means any applicable law in any jurisdiction in which any Group
Company conducts business which relates to the pollution or protection of the
environment or harm to or the protection of human health or the health of
animals or plants.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974 of the United States
of America and the regulations promulgated and the rulings issued thereunder.


 


“EURIBOR”
means, in relation to any Advance in Euro:


 


(a)                                      the applicable Screen Rate; or


 


(b)                                     (if no Screen Rate is available for the period of that Advance) the
arithmetic mean of the rates (rounded upwards to four decimal places) as
supplied to the Facility Agent at its request quoted by the Reference Banks to
leading banks in the European interbank market,


 


4

















 


as of the
Specified Time on the Quotation Day for the offering of deposits in Euro for a
period comparable to the Interest Period of the relevant Advance.


 


“Event of
Default” means any event or circumstance specified as such in
Clause 23 (Events of Default).


 


“Exemption Regulation” means the Dutch
exemption regulation dated 26 June 2002 (Vrijstellingsregeling
Wtk 1992) (as amended from time to time) as promulgated in
connection with the WTK.


 


“Existing Credit Facility” means the
US$1,500,000,000 revolving credit facility made available pursuant to a
multicurrency revolving facilities agreement dated 17 December 2002.


 


“External Debt” means Indebtedness of any
member of the Group (other than Project Finance Indebtedness, Indebtedness in
respect of any Securitisation, Indebtedness in respect of cash collateralised
loans (entered into for Group fiscal or regulatory purposes) and Indebtedness
owed by one Group Company to another Group Company) incurred pursuant to the
issuance of any note, bond or other debt security (whether issued to the public
or by means of a private placement) or pursuant to the entry into any bank facility
but excluding any such Indebtedness raised by a member of the Group locally and
solely for financing local operating needs.


 


“Facility”
means the revolving loan facility made available under this Agreement as
described in Clause 2.1 (The Facility).


 


“Facility
Agent’s
Spot Rate of Exchange” means the Facility Agent’s Spot Rate of
Exchange for the purchase of the relevant currency with the Base Currency in
the London foreign exchange market at or about 11:00 a.m. on a particular day.


 


“Facility
Office” means, in relation to a Lender, the office identified as
such opposite such Lender’s name in Part 1 of Schedule 1 (The Original
Lenders) (or, in the case of a transferee, at the end of the
Transfer Certificate to which it is a party as transferee) or such other office
as it may from time to time select.


 


“Fee Letter” means the letter dated 27
October 2003 between the Mandated Lead Arrangers and ABB and any letter or
letters between the Mandated Lead Arrangers and the Borrowers (or the Facility
Agent and the Borrower) setting out any of the fees payable in relation to the
Facility.


 


“Final Maturity Date” means the date falling
3 years from the date of this Agreement.


 


“Finance
Document” means this Agreement, the letter dated 27
October 2003 between the Mandated Lead Arrangers and ABB, any Fee Letter,
any Accession Letter, any Resignation Letter, any Security Document and any
other document designated as such in writing by the Facility Agent and ABB.


 


“Finance
Party” means any of the Facility Agent, the Mandated Lead Arrangers,
the Lenders and any trustee appointed under any Security Document.


 


5

















 


“GAAP”
means, in relation to the consolidated financial statements of ABB, generally
accepted accounting principles in the United States of America and, in relation
to any other company, generally accepted accounting principles in its
jurisdiction of incorporation or in the United States of America (as
applicable).


 


“Group”
means ABB and its Subsidiaries and “Group Company” means any one of them.


 


“Guarantors”
means each Original Guarantor and each Additional Guarantor provided
that it has not been released from its rights and obligations under
this Agreement, in accordance with Clause 25.6 (Resignation of a Guarantor).


 


“Holding
Company” means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.


 


“Indebtedness”
means, in relation to a person, its obligations (whether present or future,
actual or contingent, as principal or surety) for the payment or repayment of
money (whether in respect of interest, principal or otherwise) incurred in
respect of:


 


(a)                                      moneys borrowed;


 


(b)                                     any bond, note, loan stock, debenture or similar instrument;


 


(c)                                      any acceptance credit, bill discounting, note purchase, factoring or
documentary credit facility;


 


(d)                                     any lease required under GAAP to be treated as a finance lease;


 


(e)                                      receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);


 


(f)                                        any guarantee, bond, stand-by letter of credit or other similar
instrument issued in connection with the performance of payment obligations;


 


(g)                                     any interest rate or currency swap agreement or any other hedging or
derivatives instrument or agreement;


 


(h)                                     any arrangement entered into primarily as a method of raising
finance pursuant to which any asset sold or otherwise disposed of by that
person is or may be leased to or re-acquired by a Group Company (whether
following the exercise of an option or otherwise); or


 


(i)                                         any guarantee, indemnity or similar insurance against financial loss
given in respect of the obligation of any person falling within any of
paragraphs (a) to (h) above.


 


“Information Package” means the summary of
the transaction dated 14 October 2003 prepared by ABB and the Original
Liquidity Plan.


 


“Interest
Period” means, in relation to an Advance, each period determined in
accordance with Clause 10 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 9.3 (Default
interest).


 


6

















 


“Lender”
means:


 


(a)                                      any Original Lender; and


 


(b)                                     any bank which has become a Party as a Lender in accordance with
Clause 24 (Changes
to the Lenders),


 


which in each
case has not ceased to be a Party in accordance with the terms of this
Agreement.


 


“LIBOR”
means, in relation to any Advance:


 


(a)                                      the applicable Screen Rate; or


 


(b)                                     (if no Screen Rate is available for the currency or period of that
Advance) the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Facility Agent at its request quoted by the
Reference Banks to leading banks in the London interbank market,


 


as of the
Specified Time on the Quotation Day for the offering of deposits in the
currency of that Advance and for a period comparable to the Interest Period for
that Advance.


 


“Liquidity Plan” means the most recent
liquidity plan for the Group certified without personal liability by 2 duly
authorised signatories of ABB, calculated using the same principles used for
the Original Liquidity Plan consistently applied.


 


“Majority
Lenders” means a Lender or Lenders whose Commitments aggregate 662/3%
or more of the Total Commitments.


 


“Mandatory Cost” means the percentage rate
per annum calculated by the Facility Agent in accordance with Schedule 9 (Mandatory Costs).


 


“Margin”
means, at any time the rate per annum computed in accordance with the table set
out in Schedule 4 (The Margin and Utilisation Fee) provided
that:


 


(a)                                      on any day that ABB has Credit Ratings from S&P and Moody’s
which are divergent from each other, the applicable rate per annum for such day
shall be the average of the rates applicable to the two Credit Ratings;


 


(b)                                     on any day that only one of S&P or Moody’s assigns a Credit
Rating to ABB, the applicable rate per annum for such day shall be the rate per
annum for that Credit Rating; and


 


(c)                                      on any day that neither S&P nor Moody’s assigns a Credit Rating
to ABB the applicable rate per annum for such day shall be 225 basis points per
annum,


 


in each case
computed in accordance with the table set out in Schedule 4 (The Margin
and Utilisation Fee).


 


“Material
Adverse Effect”  means a material adverse effect on:


 


7

















 


(a)                                      the business, operations, property or condition of the Group as a
whole;


 


(b)                                     the ability of the Obligors to perform payment obligations under the
Finance Documents or, at any time prior to the Trigger Date, the ability of ABB
to comply with its obligations under Clause 21.2 (Financial Condition); or


 


(c)                                      the validity or enforceability of the Finance Documents.


 


“Material
Subsidiary” means:


 


(a)                                      those companies listed in Schedule 10 (Material Subsidiaries); and


 


(b)                                     any Subsidiary that:


 


(i)                        is the holding company of a country (and not a region) that,
together with its Subsidiaries, has combined third-party revenues or assets
(from non-affiliated parties), prepared in accordance with accounting
principles generally accepted in the United States, in excess of 5 percent of
the consolidated revenues or consolidated total assets of the Group for the
most recently completed fiscal year;


 


(ii)                     on a non-consolidated basis has combined third-party revenues or
assets (from non-affiliated parties), prepared in accordance with accounting
principles generally accepted in the United States, in excess of 5 percent of
the consolidated revenues or consolidated total assets of the Group for the
most recently completed fiscal year; or


 


(iii)                  has any notes, bonds, debenture stock, loan stock or other
securities outstanding to non-affiliated third parties in respect of which a
guarantee, keep-well agreement or other credit support has been provided by
ABB;


 


provided
always that for purposes of this definition, the term “revenues” and “assets” shall exclude any revenues or, as the case may be,
assets attributable to activities classified by ABB as non-core or as
discontinued operations.


 


“Month”
means a period starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month, except that:


 


(a)                                      (subject to paragraph (c) below) if the numerically corresponding
day is not a Business Day, that period shall end on the next Business Day in
that calendar month in which that period is to end if there is one, or if there
is not, on the immediately preceding Business Day;


 


(b)                                     if there is no numerically corresponding day in the calendar month
in which that period is to end, that period shall end on the last Business Day
in that calendar month; and


 


(c)                                      if an Interest Period begins on the last Business Day of a calendar
month, that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to end.


 


8

















 


The above
rules will only apply to the last Month of any period.


 


“Moody’s”
means Moody’s Investor Services, Inc., or any successor thereto.


 


“Net Debt” has the meaning given to such
term in Clause 21.1 (Financial Definitions).


 


“New Lender” has the meaning given to such
term in Clause 24.1 (Assignments and
transfers by the Lenders).


 


“Obligor”
means a Borrower or a Guarantor.


 


“Obligors’ Agent” has the meaning given to
such term in Clause 2.4 (Obligors’ rights
and obligations hereunder).


 


“Obligor Group”
means ABB, each Borrower and each Guarantor.


 


“Optional
Currency” means a currency (other than the Base Currency) which
complies with the conditions set out in Clause 4.3 (Conditions relating to Optional
Currencies).


 


“Original
Financial Statements” means:


 


(a)                                      in relation to ABB, the audited consolidated financial statements of
the Group for the financial year ended 31 December 2002; and


 


(b)                                     in relation to each Original Obligor other than ABB, its audited
financial statements for its financial year ended 31 December 2002.


 


“Original Liquidity Plan” means the
liquidity plan of the Group dated 7 October 2003 in the agreed form.


 


“Original
Obligor” means an Original Borrower or an Original Guarantor.


 


“Outstandings”
means the aggregate of the Base Currency Amount from time to time of each of
the Advances.


 


“Participating
Member State” means any member state of the European Communities
that adopts or has adopted the Euro as its lawful currency in accordance with
legislation of the European Union relating to European Monetary Union.


 


“Party”
means a party to this Agreement and includes its successors in title, permitted
assigns and permitted transferees.


 


“PMP” means a professional market party (professionele marktpartij) within the
meaning of the Exemption Regulation.


 


“Policy Guidelines” means the Dutch Central
Bank’s Policy Guidelines (issued in relation to the Exemption Regulation) dated
10 July 2002 (and as amended from time to time) (beleidsregel kernbegrippen markttoetreding en
handhaving Wtk 1992).


 


“Project
Company” means any Subsidiary of ABB:


 


(a)                                      which is a single purpose company whose primary purpose is to invest
in, lend to or carry out a specific project or portfolio of projects; and


 


9

















 


(b)                                     none of whose liabilities to repay Project Finance Indebtedness are
the subject of security or a guarantee, indemnity or any similar form of
assurance, undertaking or support by any Group Company save to the extent
described in the definition of Project Finance Indebtedness.


 


“Project
Finance Indebtedness” means:


 


(a)                                      any Indebtedness of a Project Company incurred to finance the
project constituted by the assets and business of such Project Company or any
Indebtedness of such Project Company incurred to refinance any such
aforementioned Indebtedness; and


 


(b)                                     where neither the persons to whom such Indebtedness is owed (whether
or not a Group Company) nor any other person shall have any recourse whatsoever
to any Group Company (other than such Project Company) for the repayment or
payment of any sum relating to such Indebtedness other than recourse directly
or indirectly to any Group Company under any form of assurance or undertaking,
which recourse (1) is limited to the enforcement of any share pledge granted by
a Group Company over its shares in such Project Company or the enforcement of
any security granted over a shareholder loan between a Group Company and such
Project Company and/or (2) is limited to a claim for damages for breach of an
obligation (not being a payment obligation) of the person against whom that
recourse is available and/or (3) entitles the creditor for that Indebtedness or
the relevant Project Company, upon default by the Project Company (or in other
circumstances specified in the documentation relating to the project) to
require a payment to be made (whether to or for the benefit of that creditor,
the Project Company or another person), provided that, in the case of (3), where
that payment is capable of being for an amount which is material either alone
or as a percentage of the Indebtedness financing that project, such recourse is
capable of being called on only during the period on or prior to practical
completion of the project or of that portion of that project being financed by
that Indebtedness; or


 


(c)                                      which the Majority Lenders shall have agreed to treat as Project
Finance Indebtedness for the purposes of this Agreement.


 


“Qualifying
Lender” has the meaning given to such term in Clause 13.1 (Definitions).


 


“Quarter Date” has the meaning given to such
term in Clause 21.1 (Financial definitions).


 


“Quotation
Day” means, in relation to any period for which an interest rate is
to be determined:


 


(a)                                      (if the currency is Sterling) the first day of that period;


 


(b)                                     (if the currency is Euro) two TARGET Days before the first day of
that period; or


 


10

















 


(c)                                      (for any other currency) two Business Days (which for these purposes
only shall mean a day on which banks are open for general business in London)
before the first day of that period,


 


unless market
practice differs in the Relevant Interbank Market for a currency, in which case
the Quotation Day for that currency will be determined by the Facility Agent in
accordance with market practice in the Relevant Interbank Market (and if
quotations would normally be given by leading banks in the Relevant Interbank
Market on more than one day, the Quotation Day will be the last of those days).


 


“Reference
Banks” means, in relation to LIBOR and Mandatory Costs, the
principal London offices of Citibank, N.A., Credit Suisse First Boston, London
and Dresdner Bank AG and the principal office of Deutsche Bank Luxembourg S.A.
and, in relation to EURIBOR, the principal London offices of Citibank, N.A.,
Credit Suisse First Boston and Dresdner Bank AG and the principal office of
Deutsche Bank Luxembourg S.A. or such other banks as may be appointed by the
Facility Agent in consultation with ABB.


 


“Relevant
Interbank Market” means in relation to Euro, the European interbank market
and, in relation to any other currency, the London interbank market.


 


“Reservations” means the principle that
equitable remedies are remedies which may be granted or refused at the
discretion of the court and damages may be regarded as an adequate remedy, the
limitation of enforcement by laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, fraudulent transfer or
obligation, administration and other laws generally affecting the rights of
creditors, the principle that a security interest may not be perfected or may
be recharacterised if the relevant chargee does not exercise sufficient control
over the relevant asset, the time-barring of claims under the Limitation Acts
(and similar legislation), the possibility that a court may choose not to give
effect to a governing law clause in relation to a contract, the possibility
that an undertaking to assume liability for or to indemnify a person against
non-payment of stamp duty may be void, the fact that a court may refuse to give
effect to a purported contractual obligation to pay costs imposed upon another
party in respect of the costs of any unsuccessful litigation brought against
that party or may not award by way of costs all of the expenditure incurred by
a successful litigant in proceedings brought before that court, or that a court
may stay proceedings if concurrent proceedings based on the same grounds and
between the same parties have previously been brought before another court,
that a court may not give effect to the provisions of Clause 33 (Partial invalidity) (or any similar
provision in another Finance Document) and that interest at a default rate on
overdue amounts may be a penalty and not recoverable.


 


“Resignation
Letter” means a letter substantially in the form set out in
Schedule 8 (Form of Resignation Letter).


 


“Rollover
Advance” means one or more Advances:


 


(a)                                      made or to be made on the same day that a maturing Advance is due to
be repaid;


 


(b)                                     the aggregate amount of which is equal to or less than the maturing
Advance;


 


11

















 


(c)                                      in the same currency as the maturing Advance (unless it arose as a
result of the operation of Clause 6.2 (Unavailability of a currency)); and


 


(d)                                     made or to be made to a Borrower for the purpose of refinancing a
maturing Advance made to such Borrower.


 


“S&P”
means Standard & Poor’s Ratings Group, a division of The McGraw-Hill
Companies or any successor thereto.


 


“Screen Rate”
means:


 


(a)                                      in relation to LIBOR, the British Bankers Association Interest
Settlement Rate for the relevant currency and period; and


 


(b)                                     in relation to EURIBOR, the percentage rate per annum determined by
the Banking Federation of the European Union for the relevant period,


 


displayed on
the appropriate page of the Telerate screen. 
If the agreed page is replaced or service ceases to be available, the
Facility Agent may specify another page or service displaying the appropriate
rate after consultation with ABB and the Lenders.


 


“Securitisations” means:


 


(a)                                      the securitisation programme established by various Group Companies
and Toedi Limited and currently including Credit Suisse First Boston, New York
Branch as Programme Administrator, such programme being initially established
on 19 December 2000;


 


(b)                                     the securitisation programme established by various Group Companies
and arranged by Citibank, N.A. (as Operating Agent), such programme being
initially established on or around 17 December 1999;


 


(c)                                      any other local or global securitisation programme from time to time
established (including as of the date of this Agreement) by any Group Company,


 


each as may be
modified, supplemented, renewed, substituted, varied or amended, provided that:


 


(i)                           the
aggregate net proceeds of all such programmes does not at any time exceed
$1,200,000,000; and


 


(ii)                     the terms of such programme are commercially reasonable involving
the securitisation of receivables and for the avoidance of doubt not including
whole business securitisation.


 


“Security”
means any mortgage, charge, assignment by way of security, pledge,
hypothecation, lien and any other security interest of any kind whatsoever.


 


“Security Documents” means the Agreed Form
Pledges if executed, the Agreed Form Trust Deed if executed and any other
document designated as such in writing by the Facility Agent and ABB.


 


12

















 


“Sirius” means Sirius International
Försakrings AB (publ).


 


“Specified
Time” means a time determined in accordance with Schedule 6 (Timetables).


 


“Subsidiary”
means a subsidiary within the meaning of section 736 of the Companies Act
1985.


 


“TARGET”
means Trans-European Automated Real-time Gross Settlement Express Transfer
payment system.


 


“TARGET Day”
means any day on which TARGET is open for the settlement of payments in Euro.


 


“Tax”
means any tax, levy, impost, duty or other charge or withholding of a similar
nature (including any penalty or interest payable in connection with any
failure to pay or any delay in paying any of the same).


 


“Taxes Act”
means the Income and Corporation Taxes Act 1988.


 


“Total
Commitments” means the aggregate Commitments of the Lenders, being
$1,000,000,000 as at the date of this Agreement.


 


“Total
Outstandings” means the aggregate from time to time of the
Outstandings.


 


“Transfer Certificate”
means a certificate substantially in the form set out in Schedule 5 (Form of
Transfer Certificate) or any other form agreed between the Facility
Agent and ABB.


 


“Transfer
Date” means, in relation to a transfer, the later of:


 


(a)                                      the proposed Transfer Date specified in the Transfer Certificate;
and


 


(b)                                     the date on which the Facility Agent executes the Transfer
Certificate.


 


“Trigger Date” means the date on which
either:


 


(a)                                      the Credit Rating of ABB is investment grade (if at BBB-/Baa3, with
stable outlook (or better)) from one of S&P or Moody’s and (if the other
agency is not at investment grade) no more than one notch lower from the other
(therefore being, for the avoidance of doubt, no lower than BBB-  and Ba1 or BB+ and Baa3); or


 


(b)


 


(i)                          the ratio of Net Debt to EBITDA for the most recently ended two
consecutive financial quarters was 2.50:1 or lower; and


 


(ii)                       the Credit Rating of ABB is investment grade (if at BBB-/Baa3, with
stable outlook (or better)) from either S&P or Moody’s.


 


“Unpaid Sum”
means any sum due and payable but unpaid by an Obligor under the Finance
Documents.


 


“Utilisation”
means a utilisation of the Facility.


 


13

















 


“Utilisation
Date” means the date of a Utilisation, being the date on which an
Advance is to be made.


 


“Utilisation
Request” means a notice substantially in the form set out in Part 1
of Schedule 3 (Utilisation Request).


 


“VAT”
means value added tax as provided for in the Value Added Tax Act 1994 and any
other tax of a similar nature.


 


“Verifiable PMP” means a PMP whose status as
such may be determined on the basis of:


 


(a)                                      its entry in Dutch public register (including on-line registers
available on the internet) as referred to in Clauses 1.e.1 through 1.e.5 of the
Exemption Regulation; or


 


(b)                                     a public register published by a regulator of a country as referred
to in Clause 1.e.11 of the Exemption Regulation exercising prudential
supervision over the PMP to the extent generally accessible via the internet.


 


“WTK” means the Dutch Act on the Supervision
of Credit Institutions 1992 (Wet toezicht
kredietwezen 1992) (as amended from time to time).


 


1.2                           Construction


(a)                                       Any reference in this Agreement to:


 


(i)                        the “Facility Agent”,
any “Mandated Lead Arranger”, any
“Finance Party”, any “Lender”, any “Obligor” the “Obligors’
Agent” or any “Party”
shall be construed so as to include its successors in title, permitted assigns
and permitted transferees;


 


(ii)                     “agreed form” is a
reference to a document that is initialled by ABB and the Facility Agent on or
before the date of this Agreement as being agreed;


 


(iii)                  “assets” includes present and future properties, revenues and
rights of every description;


 


(iv)                 the
“European
interbank market” means the interbank market for Euro operating in
Participating Member States;


 


(v)                    a “Finance Document” or any other agreement or instrument is a
reference to that Finance Document or other agreement or instrument as amended
or novated;


 


(vi)                 a
“person”
includes any person, firm, company, corporation, government, state or agency of
a state or any association, trust or partnership (whether or not having
separate legal personality) or two or more of the foregoing;


 


(vii)              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,
the compliance with which is customary) of any


 


14

















 


governmental, intergovernmental or supranational body,
agency, department or regulatory, self-regulatory or other authority or
organisation;


 


(viii)           a “financial
year” in relation to ABB, means a period in respect of which it is
required to produce annual audited financial statements;


 


(ix)                   a provision of law is a reference to that provision as amended or
re-enacted; and


 


(x)                      unless a contrary indication appears, a time of day is a reference
to London time.


 


(b)                                     Where there is a reference in this Agreement to any amount, limit or
threshold specified in Dollars, in ascertaining whether or not that amount,
limit or threshold has been attained, broken or achieved, as the case may be, a
non-Dollar amount shall, unless the context otherwise requires or the contrary
is indicated, be counted on the basis of the equivalent in Dollars of that
amount using the Facility Agent’s Spot Rate of Exchange except for the purposes of
calculating the dollar equivalent of Total Gross Debt which is not denominated
in dollars for the purposes of the covenant set out in Clause 21.3 (Restriction on Subsidiary Indebtedness),
in which case the dollar exchange rate set out in the Financial Times on 1
July 2003 shall be used.


 


(c)                                      Section, Clause and Schedule headings are for ease of reference
only.


 


(d)                                     Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in this
Agreement.


 


(e)                                      A Default is “continuing” if it has not been remedied or
waived.


 


(f)                                        For the avoidance of doubt, if Moody’s or S&P place a Credit
Rating on credit watch, that shall not (regardless of outlook) constitute a
change in such Credit Rating or be deemed to be no Credit Rating.


 


(g)                                     Dresdner Kleinwort Wasserstein is a reference to the investment banking division of Dresdner Bank
AG.


 


(h)                                     Barclays Capital is a reference to Barclays Capital, the investment banking division
of Barclays Bank PLC.


 


(i)                                         Any certificate delivered by or on behalf of a Group Company shall
be signed on behalf of that Group Company without personal liability in respect
of the officers or other persons executing such certificate and “certificate”, “certified” and similar provisions shall be construed
accordingly.


 


1.3                           Currency Symbols and
Definitions


“$”
and “Dollars”
denote the lawful currency of the United States of America, “£”
and “Sterling”
denote the lawful currency of the United Kingdom and “Euro” denotes the


 


15

















 


single
currency unit of the European Union as constituted by the Treaty of Rome (as
amended).


 


1.4                           Third Party Rights


A person who
is not a Party has no right under the Contract (Rights of Third Parties) Act 1999 to enforce any term of
this Agreement.


 


16

















 


SECTION 2


THE FACILITY


 


2.                                 THE FACILITY


 


2.1                           The Facility


Subject to the
terms of this Agreement, the Lenders make available to the Borrowers a
multicurrency revolving credit facility in a maximum aggregate amount of
$1,000,000,000.


 


2.2                           Lenders’ rights and
obligations


(a)                                      The obligations of each Lender under the Finance Documents are
several.  Failure by a Lender to perform
its obligations under the Finance Documents does not affect the obligations of
any other Party 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 each Lender under or in connection with the Finance
Documents are separate and independent rights and any debt arising under the
Finance Documents to a Lender from any of the Borrowers shall be a separate and
independent debt.


 


(c)                                      A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance Documents.


 


2.3                           Facility Offices and nominated
affiliate


(a)                                      Subject to paragraph (b) below, a Lender may (i) change its Facility
Office for the purpose of this Agreement and/or (ii) nominate a different
Facility Office for the purposes of making a particular Advance to any
Borrower, in which event such Facility Office shall for the purposes of this
Agreement be its Facility Office for that Advance but not otherwise.


 


(b)                                     If a Lender changes its Facility Office or nominates a different
Facility Office, (i) that Lender will notify the Facility Agent and ABB
promptly (and, in any event, within 5 Business Days) of such change or, as the
case may be, nomination, and until it does so, the Facility Agent and ABB will
be entitled to assume that no such change has taken place and (ii) if the
country of such Facility Office is not subject to the Financial Action Task
Force any such change or, as the case may be, nomination shall be subject to
the prior written consent of the Facility Agent.


 


2.4                           Obligors’ right and
obligations hereunder


(a)                                      Each Obligor (other than ABB) by its execution of this Agreement or
an Accession Letter irrevocably appoints ABB to act on its behalf as its agent
in relation to the Finance Documents (in this capacity, the “Obligors’ Agent”) and irrevocably
authorises (i) ABB on its behalf to supply all information concerning itself
contemplated by this Agreement to the Finance Parties and to give all notices
and instructions (including, in the case of a Borrower, Utilisation Requests),
to execute on its behalf any Accession Letter and to make such agreements
capable of being given or made by any Obligor


 


17

















 


notwithstanding that they may affect such Obligor,
without further reference to or the consent of such Obligor and (ii) each Finance
Party to give any notice, demand or other communication to such Obligor
pursuant to the Finance Documents to ABB on its behalf, and in each case such
Obligor shall be bound thereby as though such Obligor itself had given such
notices and instructions (including, without limitation, any Utilisation
Requests) or executed or made such agreements or received any such notice,
demand or other communication.


 


(b)                                     Every act, omission, agreement, undertaking, settlement, waiver,
notice or other communication given or made by the Obligors’ Agent or given to
the Obligors’ Agent under this Agreement, or in connection with this Agreement
(whether or not known to any other Obligor and whether occurring before or
after such other Obligor became an Obligor under this Agreement) shall be
binding for all purposes on all other Obligors as if the other Obligors had
expressly made, given or concurred with the same.  In the event of any conflict between any notices or other
communications of the Obligors’ Agent and any other Obligor, those of the
Obligors’ Agent shall prevail.


 


(c)                                      An Obligors’ Agent may resign its appointment hereunder by giving
not less than ten Business Days’ prior written notice to that effect to the
Facility Agent, provided that no
such resignation shall be effective until a successor consents in writing to
the Facility Agent to be appointed.


 


3.                                 PURPOSE


 


3.1                           Purpose


Each Borrower
shall apply all amounts borrowed by it under the Facility for the general
corporate purposes of the Group.


 


3.2                           Monitoring


No Finance
Party is bound to monitor or verify the application of any amount borrowed
pursuant to this Agreement.


 


4.                                 CONDITIONS
OF UTILISATION


 


4.1                           Initial Conditions Precedent


No Borrower
may deliver a Utilisation Request unless the Facility Agent has received all of
the documents and other evidence listed in Part I of Schedule 2 (Conditions precedent) in form and
substance reasonably satisfactory to the Facility Agent.  The Facility Agent shall notify ABB and the
Lenders promptly upon being so satisfied.


 


4.2                           Further Conditions Precedent


(a)                                      The Lenders will only be obliged to comply with Clause 5.4 (Lenders’
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:


 


(i)                        no Event of Default or, in each case other than in the case of a
Rollover Advance, Default is continuing or would result from the proposed
Advance; and


 


18

















 


(ii)                     the representations to be made by ABB pursuant to Clause 19.19 (Repetition)
are true in all respects.


 


(b)                                     An Advance will not be made if it would result in the Base Currency
Amount of all Advances exceeding the Total Commitments.


 


4.3                           Conditions relating to
Optional Currencies


A currency
will constitute an Optional Currency in relation to an Advance if it is
Sterling or Euro, or it is readily available in the amount required and freely
convertible into the Base Currency in the Relevant Interbank Market on the
Quotation Day and the Utilisation Date for that Advance provided that there may not
at any time be Advances outstanding denominated in more than 5 Optional
Currencies.


 


4.4                           Maximum number of Advances


(a)                                      No Borrower may deliver a Utilisation Request if as a result of the
proposed Utilisation more than 10 Advances would be outstanding.


 


(b)                                     Any Advance made by a single Lender under Clause 6.2 (Unavailability
of a currency) shall not be taken into account in this Clause 4.4.


 


19

















 


SECTION 3


UTILISATION


 


5.                                 UTILISATION


 


5.1                           Delivery of a Utilisation
Request


A Borrower may
utilise the Facility by delivery to the Facility Agent of a duly completed
Utilisation Request not later than the Specified Time.


 


5.2                           Completion of a Utilisation
Request


(a)                                      Each Utilisation Request delivered to the Facility Agent pursuant to
Clause 5.1 (Delivery
of a Utilisation Request) is irrevocable and will not be regarded as
having been duly completed unless:


 


(i)                        the proposed Utilisation Date is a Business Day within the
Availability Period;


 


(ii)                     the currency and amount of the Utilisation comply with Clause 5.3 (Currency and
amount); and


 


(iii)                  the proposed Interest Period complies with Clause 10 (Interest
Periods).


 


(b)                                     Only one Advance may be requested in each Utilisation Request
delivered to the Facility Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request).


 


5.3                           Currency and amount


(a)                                      The currency specified in a Utilisation Request delivered to the
Facility Agent pursuant to Clause 5.1 (Delivery of a Utilisation Request) must be
the Base Currency or an Optional Currency.


 


(b)                                     The amount of the proposed Advance must be:


 


(i)                        if the currency selected is the Base Currency, a minimum of
$50,000,000 and an integral multiple of $10,000,000; or


 


(ii)                     if the currency selected is Euro, a minimum of Euro50,000,000 and an
integral multiple of Euro10,000,000; or


 


(iii)                  if the currency selected is Sterling, a minimum amount of
£25,000,000 and an integral multiple of £5,000,000; or


 


(iv)                 if
the currency selected is an Optional Currency (other than Euro or Sterling), in
such minimum amount and multiple as the Facility Agent and ABB may agree,


 


or, in any
case, the amount of the Available Facility.


 


5.4                           Lenders’ participation


(a)                                      Subject to the other terms of this Agreement, each Lender shall, on
the relevant Utilisation Date, make its participation in each Advance available
through its Facility Office.


 


20

















 


(b)                                     Subject to Clause 6.2 (Unavailability of a currency), the amount
of each Lender’s participation in each Advance will be equal to the proportion
borne by its Available Commitment to the Available Facility immediately prior
to making the Advance.


 


(c)                                      The Facility Agent shall notify each relevant Lender of the amount,
currency and the Base Currency Amount of each Advance at the Specified Time.


 


6.                                 OPTIONAL
CURRENCIES


 


6.1                           Selection of currency


The relevant
Borrower shall select the currency of an Advance in a Utilisation Request.


 


6.2                           Unavailability of a currency


If before the
Specified Time on any Quotation Day:


 


(a)                                      the Facility Agent has received notice from a Lender that the
Optional Currency (other than Euro or Sterling) requested is not readily
available to it in the amount required; or


 


(b)                                     a Lender notifies the Facility Agent that compliance with its
obligation to participate in an Advance in the proposed Optional Currency
(other than Euro or Sterling) would contravene a law or regulation applicable
to it,


 


the Facility
Agent will give notice to the relevant Borrower to that effect by the Specified
Time on that day.  In this event, any
Lender that gives notice pursuant to this Clause 6.2 will be required to
participate in the Advance in the Base Currency (in an amount equal to that
Lender’s proportion of the Base Currency Amount or, in respect of a Rollover
Advance, an amount equal to that Lender’s proportion of the Base Currency
Amount of the maturing Advance that is due to be repaid) and its participation
will be treated as a separate Advance denominated in the Base Currency during
that Interest Period.


 


6.3                           Notification


The Facility
Agent shall notify the Lenders and the relevant Borrower of Optional Currency
amounts (and the Facility Agent’s Spot Rate of Exchange) promptly after they
are ascertained.


 


21

















 


SECTION 4


REPAYMENT, PREPAYMENT AND
CANCELLATION


 


7.                                 REPAYMENT
OF ADVANCES


(a)                                      Each Borrower shall repay each Advance made to it on the last day of
its Interest Period.


 


(b)                                     All Advances must be repaid in full on the Final Maturity Date.


 


8.                                 PREPAYMENT
AND CANCELLATION


 


8.1                           Lender Illegality


If it becomes
unlawful in any jurisdiction for a Lender to perform any of its obligations as
contemplated by this Agreement or to fund its participation in any Advance:


 


(a)                                      that Lender shall promptly notify the Facility Agent upon becoming
aware of that event;


 


(b)                                     unless the repayment referred to in paragraph (c) below avoids such
unlawfulness, upon the Facility Agent notifying ABB, the Commitment of that
Lender will be immediately cancelled; and


 


(c)                                      each Borrower shall, to the extent necessary to avoid such
unlawfulness, repay that Lender’s participation in the Advances made to it on
the last day of the Interest Period for each Advance occurring after the
Facility Agent has notified ABB or, if earlier, the date specified by the
Lender in the notice delivered to the Facility Agent (being no earlier than 5
Business Days after receipt of such notice or, if earlier, the last day of any
applicable grace period permitted by law).


 


8.2                           Borrower Illegality


If it is or
becomes unlawful for a Borrower to perform any of its obligations under the
Finance Documents, that Borrower shall promptly repay all Advances borrowed by
it together with accrued interest and all other amounts accrued under the
Finance Documents provided that where such obligations are, or could reasonably
be considered to be, material to the interests of the Lenders under the Finance
Documents, all Borrowers shall within 15 Business Days of being served with
notice by the Facility Agent so to do, repay all Advances, together with accrued
interest and all other amounts accrued under the Finance Documents.  On the service of any such notice the
Facility shall be cancelled and the Commitments will be reduced to zero.


 


8.3                           Mandatory Prepayment on Change
of Control


(a)                                      If any person (whether alone or together with any associated person)
becomes the beneficial owner of shares in the issued share capital of ABB
carrying the right to more than 50% of the votes exercisable at a general
meeting of ABB:


 


(i)                        ABB shall promptly notify the Facility Agent upon becoming aware of
that event; and


 


22

















 


(ii)                     the Facility Agent shall, by not less than 15 Business Days’ notice
to ABB and having consulted with ABB, cancel the Facility and declare all
Advances, together with accrued interest, and all other amounts accrued under
the Finance Documents immediately due and payable, whereupon the Facility will
be cancelled and all such outstanding amounts will become immediately due and
payable.


 


For the
purposes of this Clause 8.3, “associated person” means, in relation to
any person, a person who is (i) “acting in concert” (as defined in the City
Code on Takeovers and Mergers) with that person or (ii) a “connected person”
(as defined in section 839 of the Income and Corporate Taxes Act 1988) of
that person.


 


(b)                                     On any cancellation of the Facility pursuant to this Clause 8.3, the
Commitments will be reduced to zero.


 


8.4                           Voluntary cancellation


ABB may, if it
gives the Facility Agent not less than 5 Business Days’ (or such shorter period
as the Majority Lenders may agree) prior notice, cancel the whole or any part
(being a minimum amount of $25,000,000 and an integral multiple of $5,000,000)
of the Available Facility.  Any cancellation
under this Clause 8.4 shall reduce rateably the Commitments.


 


8.5                           Voluntary Prepayment


A Borrower
may, if it gives the Facility Agent not less than 5 Business Days’ (or such
shorter period as the Majority Lenders may agree) prior notice, prepay the
whole or any part of an Advance made to it (but if in part, being an amount
that reduces the Base Currency Amount of the Advance by a minimum amount of
$25,000,000 and rounded as the Facility Agent may reasonably require).


 


8.6                           Right of repayment and
cancellation in relation to a single Lender


(a)                                      If:


 


(i)                        any sum payable to any Lender by ABB or an Obligor is required to be
increased under paragraph (c) of Clause 13.2 (Tax gross-up); or


 


(ii)                     any Lender claims indemnification from ABB or a Borrower under
Clause 13.3 (Tax indemnity) or Clause 14.1 (Increased costs),


 


then ABB may,
whilst the circumstance giving rise to the requirement or indemnification
continues, give the Facility Agent notice of cancellation of the Commitment of
that Lender and its intention to procure the repayment of that Lender’s
participation in the Advances.


 


(b)                                     On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.


 


(c)                                      On the last day of each Interest Period in respect of an Advance
which ends after ABB has given notice under paragraph (a) above (or, if
earlier, the date


 


23

















 


specified by ABB in that notice), each Borrower to
which an Advance is outstanding shall repay that Lender’s participation in that
Advance.


 


8.7                           Restrictions


(a)                                      Any notice of cancellation or prepayment given by any Party under
this Clause 8 shall be irrevocable and, unless a contrary indication appears in
this Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that cancellation or
prepayment.


 


(b)                                     Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.


 


(c)                                      Unless a contrary indication appears in this Agreement, any part of
the Facility which is prepaid may be reborrowed in accordance with the terms of
this Agreement.


 


(d)                                     No Borrower shall repay or prepay all or any part of the Advances or
cancel all or any part of the Commitments except at the times and in the manner
expressly provided for in this Agreement.


 


(e)                                      No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.


 


(f)                                        If the Facility Agent receives a notice under this Clause 8 it shall
promptly forward a copy of that notice to the affected Borrower or the affected
Lender, as appropriate.


 


24

















 


SECTION 5


COSTS OF UTILISATION


 


9.                                 INTEREST


 


9.1                           Calculation of interest


The rate of
interest on each Advance for each Interest Period is the percentage rate per
annum which is the aggregate of the applicable:


 


(a)                                      Margin;


 


(b)                                     LIBOR or, in relation to any Advance in Euro, EURIBOR; and


 


(c)                                      Mandatory Costs.


 


9.2                           Payment of interest


(a)                                      Each Borrower shall pay accrued interest on each Advance made to it
on the last day of each Interest Period (and, if the Interest Period is longer
than six Months, on the dates falling at six monthly intervals after the first
day of the Interest Period).


 


(b)                                     If a Tax Deduction is required by law to be made by an Obligor in
one of the circumstances set out in paragraph (c) of Clause 13.2 (Tax gross-up),
the amount of the payment due from that Obligor shall be increased to an amount
which (after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been required.


 


9.3                           Default interest


(a)                                      If an Obligor fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount from the
due date up to the date of actual payment (both before and after judgment) at a
rate 1.00 per cent higher than the rate which would have been payable if the
overdue amount had, during the period of non-payment, constituted an Advance in
the currency of the overdue amount for successive Interest Periods, each of a
duration selected by the Facility Agent (acting reasonably).  Any interest accruing under this Clause 9.3
shall be immediately payable by the relevant Obligor on demand by the Facility
Agent.


 


(b)                                     Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and payable.


 


9.4                           Notification of rates of
interest


The Facility
Agent shall promptly notify the Lenders, ABB and the relevant Borrowers of the
determination of a rate of interest under this Agreement.


 


10.                           INTEREST
PERIODS


 


(a)                                      The relevant Borrower may select an Interest Period for an Advance
in the Utilisation Request for that Advance.


 


25

















 


(b)                                     Subject to this Clause 10, a Borrower may select an Interest Period
of 1, 2, 3 or 6 Months or any other period agreed between the relevant Borrower
and the Facility Agent (acting on the instructions of all the Lenders).


 


(c)                                      An Interest Period for an Advance shall not extend beyond the Final
Maturity Date.


 


(d)                                     Each Advance has one Interest Period only.


 


11.                           CHANGES TO THE CALCULATION OF INTEREST


 


11.1                     Absence of quotations


Subject to
Clause 11.2 (Market disruption), if LIBOR or EURIBOR is to be determined
by reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified Time on the Quotation Day, the applicable LIBOR or
EURIBOR shall be determined on the basis of the quotations of the remaining
Reference Banks.


 


11.2                     Market disruption


(a)                                      If a Market Disruption Event occurs in relation to an Advance for
any Interest Period, then the rate of interest on each Lender’s share of that
Advance for the Interest Period shall be the rate per annum which is the sum
of:


 


(i)                        the Margin;


 


(ii)                     the rate notified to the Facility Agent, ABB and the relevant
Borrower by that Lender in a certificate (which sets out the details of the
computation of the relevant rate and shall be prima facie non-binding evidence
of the same) as soon as practicable and in any event before interest is due to
be paid in respect of that Interest Period, to be that which expresses as a
percentage rate per annum the cost to that Lender of funding its participation
in that Advance from whatever source it may reasonably select; and


 


(iii)                  the Mandatory Costs, if any, applicable to that Lender’s
participation in the Advance.


 


(b)                                     In this Agreement “Market Disruption Event” means:


 


(i)                        at or about noon on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one of the Reference
Banks supplies a rate to the Facility Agent to determine LIBOR or, if
applicable, EURIBOR for the relevant currency and period; or


 


(ii)                     before close of business in London on the Quotation Day for the
relevant Interest Period, the Facility Agent receives notifications from a
Lender or Lenders (whose participations in an Advance exceed 50 per cent. of
that Advance) that the cost to it or them of obtaining matching deposits in the
Relevant Interbank Market would be in excess of LIBOR or, if applicable,
EURIBOR.


 


26

















 


11.3                     Alternative basis of interest
or funding


(a)                                      If a Market Disruption Event occurs and the Facility Agent or ABB so
requires, the Facility Agent and ABB shall enter into negotiations (for a
period of not more than thirty days) with a view to agreeing a substitute basis
for determining the rate of interest.


 


(b)                                     Any alternative basis agreed pursuant to paragraph (a) above shall,
with the prior consent of the Majority Lenders and ABB, be binding on all
Parties.


 


11.4                     Break Costs


(a)                                      The relevant Borrower shall, within three Business Days of demand by
a Finance Party, pay to that Finance Party its Break Costs attributable to all
or any part of an Advance or Unpaid Sum being paid by that Borrower on a day
other than the last day of an Interest Period for that Advance or Unpaid Sum.


 


(b)                                     Each Lender shall, as soon as reasonably practicable after a demand
by the Facility Agent, provide to ABB and the relevant Borrower a certificate
(which shall constitute prima facie non-binding evidence of the matters to
which it refers) addressed to the Facility Agent, ABB and the relevant Borrower
confirming the amount of its Break Costs for any Interest Period in which they
accrue and setting out the manner of computing such Break Costs.


 


12.                           FEES


 


12.1                     Commitment Fee


(a)                                      ABB shall pay to the Facility Agent (for the account of each Lender)
a commitment fee in the Base Currency computed at the rate of:


 


(i)                        at all times prior to the Trigger Date, the lower of 50 per cent. of
the Margin from time to time and 0.75 per cent. per annum; and


 


(ii)                     at all times on and after the occurrence of the Trigger Date, the
lower of 40 per cent. of the applicable Margin from time to time and 0.75 per
cent. per annum,


 


in each case
on that Lender’s Available Commitment for the Availability Period.


 


(b)                                     The accrued commitment fee is payable on the last day of each
successive period of three Months which ends during the Availability Period, on
the last day of the Availability Period and, if cancelled in full, on the
cancelled amount of the relevant Lender’s Commitment at the time the
cancellation is effective.


 


12.2                     Utilisation Fee


(a)                                      ABB shall pay to the Facility Agent (for the account of the Lenders
pro rata to their portion of Total Outstandings) a utilisation fee in respect
of the Total Outstandings calculated using the rate per annum computed in
accordance with the table set out in Schedule 4 (The Margin and Utilisation Fee) provided
that:


 


(i)                        on any day that ABB has Credit Ratings from S&P and Moody’s
which are divergent from each other, the applicable rate per annum for such day
shall be the average of the rates applicable to the two Credit Ratings;


 


27

















 


(ii)                     on any day that only one of S&P or Moody’s assigns a Credit
Rating to ABB, the applicable rate per annum for such day shall be the rate per
annum for that Credit Rating; and


 


(iii)                  on any day that neither S&P nor Moody’s assigns a Credit Rating
to ABB, the applicable rate per annum for such day shall be 50 basis points per
annum for each day upon which Total Outstandings equal or exceed 33 per cent.
of the Total Commitments and are less than 66% of the Total Commitments and 75
basis points per annum for each day upon which Total Outstandings equal or
exceed 66% of the Total Commitments.


 


(b)                                     The accrued utilisation fee is payable on the last day of each
successive period of three Months commencing from the date of this Agreement.


 


12.3                     Participation Fee


ABB shall pay
to the Mandated Lead Arrangers for and on behalf of the Lenders the
participation fees in the amount and at the times agreed in a Fee Letter.


 


12.4                     Agency Fee


ABB shall pay
to the Facility Agent (for its own account) an agency fee in the amount and at
the times agreed in a Fee Letter.


 


12.5                     Other Fees


ABB shall pay
to the Mandated Lead Arrangers and/or the Facility Agent such other fees in the
amounts and at the times as agreed in a Fee Letter.


 


28

















 


SECTION 6


ADDITIONAL PAYMENT
OBLIGATIONS


 


13.                           TAX
GROSS UP AND INDEMNITIES


 


13.1                     Definitions


(a)                                      In this Clause 13:


 


“Initial
Borrower Jurisdiction” means any of The Netherlands, the United
States of America or Switzerland.


 


“Protected
Party” means a Finance Party which is or will be, for or on account
of Tax, subject to any liability or required to make any payment in relation to
a sum received or receivable (or any sum deemed for the purposes of Tax to be
received or receivable) under a Finance Document.


 


“Qualifying
Lender” means:


 


(a)                                      in respect of a payment by a Borrower incorporated or resident in
Switzerland for the purposes of Swiss tax, a Lender which is a bank;


 


(b)                                     in respect of a payment by a Borrower incorporated in the United
States of America, a Lender which is:


 


(i)                        created
or organised under the laws of the United States of America or of any state
(including the District of Columbia) thereof; or


 


(ii)                     resident
in a jurisdiction having and eligible for the
benefit of a double taxation agreement with the United States of America which
makes provision for full exemption from tax imposed by the United States of
America on interest and which does not carry on a business in the United States
of America through a permanent establishment with which that Lender’s
participation in the Facility is effectively connected; or


 


(iii)                  entitled
to receive payments under the Finance Documents without deduction or
withholding of any United States federal income taxes,


 


and which has complied with any procedural
requirements within its control necessary to receive such payment without the
imposition of United States withholding tax; or


 


(c)                                      in respect of a payment by a Borrower incorporated in any
jurisdiction except the United States of America or Switzerland, any Lender.


 


“Tax Credit”
means a credit against, relief or remission for, or repayment of any Tax.


 


“Tax
Deduction” means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.


 


“Tax Payment”
means an increased payment made by ABB or an Obligor to a Finance Party under
Clause 13.2 (Tax gross-up) or a payment made by ABB or an Obligor under
Clause 13.3 (Tax indemnity).


 


29

















 


(b)                                     In this Clause 13 a reference to “determines” or “determined” means,
save where expressly stated to the contrary, a determination made in the absolute
discretion of the person making the determination acting in good faith.


 


13.2                     Tax gross-up


(a)                                      ABB and each Obligor shall make all payments to be made by it
without any Tax Deduction, unless a Tax Deduction is required by law.


 


(b)                                     ABB, an Obligor or a Lender shall promptly upon becoming aware that
ABB or an Obligor (as the case may be) must make a Tax Deduction (or that there
is any change in the rate or the basis of a Tax Deduction) notify the Facility
Agent accordingly.   If the Facility
Agent receives such notification from a Lender it shall notify ABB and the
relevant Obligor.


 


(c)                                      If a Tax Deduction is required by law to be made by ABB or an
Obligor in one of the circumstances set out in paragraph (d) below, the amount
of the payment due from ABB or that Obligor shall be increased to an amount
which (after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been required.


 


(d)                                     The circumstances referred to in paragraph (c) above are where a
person entitled to the payment:


 


(i)                        is the Facility Agent or a Mandated Lead Arranger (on its own
behalf);


 


(ii)                     is a Qualifying Lender; or


 


(iii)                  is not or has ceased to be a Qualifying Lender to the extent that
this altered status results from any change after the date of this Agreement in
(or in the interpretation, administration, or application of) any law or double
taxation agreement or any published practice or published concession of any
relevant taxing authority.


 


(e)                                      If ABB or an Obligor is required to make a Tax Deduction, it shall
make that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by law.


 


(f)                                        Within 30 days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, ABB or the relevant Obligor (as
the case may be) shall deliver to the Facility Agent for the Finance Party
entitled to the payment original receipts or certified copies thereof or if not
available, other evidence reasonably satisfactory to that Finance Party that
the Tax Deduction has been made or (as applicable) any appropriate payment paid
to the relevant taxing authority.


 


(g)                                     Each Finance Party, ABB and the Obligors shall co-operate in
completing any procedural formalities necessary for ABB or an Obligor to make a
payment to which the Finance Party is entitled without a Tax Deduction or with
a reduced Tax Deduction.  Each Finance
Party shall on the reasonable written request of


 


30

















 


ABB or an Obligor complete and deliver to ABB or that
Obligor all documentation reasonably required by ABB or that Obligor in order
to enable it to make such payments without a Tax Deduction or with a reduced
Tax Deduction (so long as the completion or delivery of such documentation
would not materially prejudice the legal or commercial position of the relevant
Finance Party).


 


13.3                     Tax indemnity


(a)                                      ABB or the Borrowers shall (within three Business Days of written
demand by the Facility Agent) pay to a Protected Party an amount equal to the
loss, liability or cost which that Protected Party determines will be or has
been (directly or indirectly) suffered for or on account of Tax by that
Protected Party in respect of a Finance Document.


 


(b)                                     Paragraph (a) above shall not apply with respect to any Tax assessed
on a Finance Party:


 


(i)


 


(A)                under
the law of the jurisdiction in which that Finance Party is incorporated or, if
different, the jurisdiction (or jurisdictions) in which that Finance Party is
treated as resident for tax purposes;


 


(B)                  under the law of the jurisdiction in which that Finance Party’s
Facility Office is located in respect of amounts received or receivable in that
jurisdiction; or


 


(C)                  arising by reason of the making of an Advance to a Borrower in an
Initial Borrower Jurisdiction under the law of such jurisdiction, except to the
extent arising by reason of a change in law or in any regulation occurring
after the date of this Agreement, provided that this paragraph (b)(i)(C)
shall not apply to any Tax assessed or imposed on the Facility Agent,


 


if that Tax is
imposed on or calculated by reference to the net income received or receivable
(including any sum deemed to be received or receivable) by that Finance Party;
or


 


(ii)                     which is compensated for by Clause 13.2 (Tax Gross Up) (or would have
been so compensated but for an exception to that Clause).


 


(c)                                      A Protected Party making, or intending to make a claim pursuant to
paragraph (a) above shall promptly notify the Facility Agent of the event which
will give, or has given, rise to the claim, following which the Facility Agent
shall notify ABB.


 


(d)                                     A Protected Party shall, on receiving a payment from ABB under this
Clause 13.3, notify the Facility Agent.


 


31

















 


13.4                     Tax Credit


If ABB or an
Obligor makes a Tax Payment and the relevant Finance Party determines that:


 


(a)                                      a Tax Credit is attributable to that Tax Payment; and


 


(b)                                     that Finance Party has obtained, utilised and retained that Tax
Credit,


 


the Finance
Party shall pay an amount to ABB or (as the case may be) that Obligor which
that Finance Party determines, acting in good faith, will leave that Finance
Party (after that payment) in the same after-Tax position as it would have been
in had the Tax Payment not been made by ABB or that Obligor (as the case may
be).  The relevant Finance Party shall
endeavour, acting in good faith, to obtain, utilise and retain the Tax Credit save
that it shall not be obliged to disclose any information relating to its tax or
other affairs or any computations in respect thereof.


 


13.5                     Qualifying Lenders


Any Lender
which ceases, for any reason, to be a Qualifying Lender shall promptly notify
ABB and the relevant Obligor(s) of its change of status.


 


13.6                     Stamp taxes


The Borrowers
shall pay and, within 3 Business Days of demand, indemnify each Finance Party
against any cost, loss or liability such Finance Party incurs in relation to
all stamp duty, registration and other similar Taxes payable in respect of any
Finance Document, but not in respect of any assignment or transfer pursuant to
Clause 24 (Changes
to the Lenders).


 


13.7                     Value added tax


(a)                                      All consideration payable under a Finance Document by ABB or the
Borrowers to a Finance Party shall be deemed to be exclusive of any VAT.  If VAT is chargeable on any supply made by
any Finance Party to any Party in connection with a Finance Document, that
Party shall pay to the Finance Party (in addition to and at the same time as
paying the consideration) an amount equal to the amount of the VAT.


 


(b)                                     Where a Finance Document requires ABB or the Borrowers to reimburse
a Finance Party for any costs or expenses, ABB or the Borrowers (as the case
may be) shall also at the same time pay and indemnify that Finance Party
against all VAT directly incurred by that Finance Party in respect of the costs
or expenses save to the extent that that Finance Party is entitled to repayment
or credit in respect of the VAT.


 


14.                           INCREASED
COSTS


 


14.1                     Increased costs


(a)                                      Subject to Clause 14.3 (Exceptions) ABB or the Borrowers shall,
within 3 Business Days of a demand by the Facility Agent, pay for the account
of a Finance Party the amount of any Increased Costs incurred by that Finance
Party or any of its Affiliates as a result of (i) the introduction of or any
change in (or


 


32

















 


in the interpretation or application of) any law or
regulation or (ii) compliance with any law or regulation made after the date of
this Agreement.


 


(b)                                     In this Agreement “Increased Costs” means:


 


(i)                        a reduction in the rate of return from the Facility or on a Finance
Party’s (or its Affiliate’s) overall capital;


 


(ii)                     an additional or increased cost; or


 


(iii)                  a reduction of any amount due and payable under any Finance
Document,


 


which is
incurred or suffered by a Finance Party or any of its Affiliates to the extent
that it is attributable to that Finance Party having entered into its
Commitment or funding or performing its obligations under any Finance Document.


 


14.2                     Increased cost claims


(a)                                      A Finance Party intending to make a claim pursuant to Clause 14.1 (Increased
costs) shall promptly notify the Facility Agent of the event giving
rise to the claim, following which the Facility Agent shall promptly notify
ABB.


 


(b)                                     Each Finance Party shall, as soon as practicable after a demand by
the Facility Agent provide a certificate confirming the amount of its Increased
Costs with (subject to any rights or duties of confidentiality the relevant
Finance Party has in respect of such information) full supporting details
(which certificate shall constitute prima facie non-binding evidence of the
matters to which it relates).


 


14.3                     Exceptions


(a)                                      Clause 14.1 (Increased costs) does not apply to the
extent any Increased Cost is:


 


(i)                        attributable to a Tax Deduction required by law to be made by ABB or
an Obligor;


 


(ii)                     compensated for by Clause 13.3 (Tax indemnity)  (or would have been
compensated for under Clause 13.3 (Tax indemnity) but was not so compensated
solely because one of the exclusions in paragraph (b) of Clause 13.3 (Tax
indemnity) applied);


 


(iii)                  not payable as provided in Clause 24.2 (Conditions of Assignment or Transfer);


 


(iv)                 compensated
for by the payment of the Mandatory Costs;


 


(v)                    attributable to the breach by the relevant Finance Party or its
Affiliates of any law or regulation; or


 


(vi)                 not
notified to ABB within 3 months of being incurred.


 


(b)                                     In this Clause 14.3, a reference to a “Tax Deduction” has the same
meaning given to the term in Clause 13.1 (Definitions).


 


33

















 


15.                           OTHER
INDEMNITIES


 


15.1                     Currency indemnity


(a)                                      If any sum due from ABB or an Obligor under the Finance Documents (a
“Sum”),
or any order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the “First Currency”) in which that Sum is
payable into another currency (the “Second Currency”) for the purpose of:


 


(i)                        making or filing a claim or proof against ABB or any of the
Obligors;


 


(ii)                     obtaining or enforcing an order, judgment or award in relation to
any litigation or arbitration proceedings,


 


ABB or that
Obligor (as the case may be) shall as an independent obligation, within 3
Business Days of demand, indemnify each Finance Party to whom that Sum is due
against any cost, loss or liability arising out of or as a result of the
conversion including any discrepancy between (A) the rate of exchange used to
convert that Sum from the First Currency into the Second Currency and (B) the
rate or rates of exchange available to that person at the time of its receipt
of that Sum.


 


(b)                                     ABB and each Obligor waives any right it may have in any
jurisdiction to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be payable.


 


15.2                     Other indemnities


ABB or the
Borrowers shall indemnify each Lender upon presentation of duly documented
evidence thereof against any cost, loss or liability directly incurred by that
Lender as a result of:


 


(a)                                      the occurrence of any Event of Default (but excluding any costs of
enforcement save as provided in Clause 17.3 (Enforcement Costs));


 


(b)                                     a failure by ABB or an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any cost, loss or
liability arising as a result of Clause 28 (Sharing among the Lenders);


 


(c)                                      funding, or making arrangements to fund, its participation in an
Advance requested by a Borrower in a Utilisation Request but not made by reason
of the operation of any one or more of the provisions of this Agreement (other
than by reason of default, negligence or wilful misconduct by that Lender
alone); or


 


(d)                                     an Advance (or part of an Advance) not being prepaid in accordance
with a notice of prepayment given by a Borrower.


 


15.3                     Indemnity to the Facility
Agent


ABB or the
Borrowers shall promptly indemnify the Facility Agent, upon presentation of
duly documented evidence thereof, against any reasonable cost, loss or
liability properly and directly incurred by the Facility Agent (acting
reasonably) as a result of:


 


(a)                                      investigating any event which it reasonably believes is a Default;
or


 


34

















 


(b)                                     entering into or performing any foreign exchange contract for the purposes
of Clause 6 (Optional Currencies); or


 


(c)                                      acting or relying on any notice, request or instruction which it
reasonably believes (after due enquiry) to be genuine, correct and
appropriately authorised.


 


16.                           MITIGATION
BY THE LENDERS


 


16.1                     Mitigation


(a)                                      Each Finance Party shall, in consultation with ABB, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any amount becoming payable under or pursuant to, or cancelled
pursuant to, any of Clause 8.1 (Lender Illegality), Clause 13 (Tax gross-up
and indemnities) or Clause 14 (Increased costs) or which would result in
any increased amount being payable under this Agreement by reason of a change
in the Mandatory Costs or a change in the reserve requirements imposed by the
European Central Bank after the date of this Agreement including (but not
limited to) transferring its rights and obligations under the Finance Documents
to another Affiliate or Facility Office (in each case in accordance with the
terms hereof) and, in such circumstances a Lender will, at the request of ABB
but subject to ABB indemnifying it for the costs of so doing, transfer its
rights and obligations under the Finance Documents to another Lender.


 


(b)                                     Paragraph (a) above does not in any way limit the obligations of the
Obligors under the Finance Documents.


 


16.2                     Limitation of liability


(a)                                      ABB or the Borrowers shall indemnify each Finance Party, upon
presentation of duly documented evidence thereof, for all costs and expenses
reasonably and directly incurred by that Finance Party as a result of steps
taken by it under Clause 16.1 (Mitigation).


 


(b)                                     A Finance Party is not obliged to take any steps under Clause 16.1 (Mitigation)
(other than a transfer of its rights and obligations to another Lender where
ABB or a Borrower indemnifies it for the cost of so doing) if, in the opinion
of that Finance Party (acting reasonably), to do so could reasonably be
expected to be prejudicial to it.


 


17.                           COSTS AND
EXPENSES


 


17.1                     Transaction expenses


ABB or the
Borrowers shall promptly on demand pay, upon presentation of duly documented
evidence thereof, the Facility Agent and the Mandated Lead Arrangers the amount
of all costs and expenses (including, but not limited to, legal fees)
reasonably and directly incurred by any of them in connection with the
negotiation, preparation, execution and syndication of:


 


(a)                                      this Agreement and any other documents referred to in this
Agreement; and


 


(b)                                     any other Finance Documents executed after the date of this
Agreement.


 


35

















 


17.2                     Amendment costs


If (a) ABB
requests an amendment, waiver or consent or (b) an amendment is required
pursuant to Clause 29.9 (Change of currency), ABB or the Borrowers
shall, within 3 Business Days of demand, reimburse the Facility Agent, upon
presentation of duly documented evidence thereof, for the amount of all costs
and expenses (including legal fees) reasonably and directly incurred by the
Facility Agent and which have previously been agreed with ABB in responding to,
evaluating, negotiating or complying with that request or requirement.


 


17.3                     Enforcement costs


ABB or the
Borrowers shall, within 3 Business Days of demand, pay to each Finance Party
the amount of all costs and expenses (including legal fees) directly incurred
by that Finance Party at any time after the service of a notice by the Facility
Agent under Clause 23.13 (Acceleration) in connection with the
enforcement of, or the preservation of any rights under, any Finance Document.


 


17.4                     FSA and ECB costs


(a)                                      This Clause 17.4 applies if, whether now or in the future, either:


 


(i)                        a requirement to pay fees is imposed by the Financial Services
Authority under the Fees Rules; or


 


(ii)                     a reserve requirement is imposed by the European Central Bank;


 


which, in
either case, is applied to any Lender (and would be applied generally to banks
or financial institutions of a similar nature to that Lender) as a consequence
of its entering into and/or performing its obligations under this Agreement
and/or assuming or maintaining its Commitment under this Agreement and/or
making one or more Advances under this Agreement. If, as a result, that
Lender’s effective return on its overall capital is reduced, ABB and the
Borrowers agree to reimburse that Lender for the amount claimed.


 


(b)                                     In the event that paragraph (a) above applies, each Lender may
submit a certificate setting out a calculation of the amount claimed by it
(and, in the case of an amount claimed as a result of a reserve requirement
being imposed by the European Central Bank, certifying that such amount has
been reasonably determined) to the Facility Agent within the period (the “Certificate
Period”) of 10 Business Days after the end of each Relevant Period.
The Facility Agent will notify ABB of the amount claimed by that Lender within
5 Business Days after the end of the relevant Certification Period and ABB or
the Borrowers shall (absent manifest error in the relevant notice) reimburse
that Lender for the amount claimed within 3 Business Days after the date of
such notification.


 


(c)                                      In this Clause 17.4, a “Relevant Period” is, as appropriate:


 


(i)                        the period beginning on the date of this Agreement and ending on 30
June 2004; and


 


(ii)                     each subsequent period of six months starting on 30 June 2004
and ending on the Final Maturity Date,


 


36

















 


and “Fees Rules”
means, as appropriate, either:


 


(i)                        the rules on periodic fees contained in the FSA Supervision Manual;
or


 


(ii)                     such other law or regulations as may be in force from time to time
relating to the payment of fees for the acceptance of deposits.


 


37

















 


SECTION 7


GUARANTEE


 


18.                           GUARANTEE
AND INDEMNITY


 


18.1                     Guarantee and indemnity


Subject to the
provisos and confirmations contained in Clause 18.9 (Confirmations and Restrictions),
each Guarantor irrevocably and unconditionally jointly and severally:


 


(a)                                      guarantees to each Finance Party punctual performance by each
Borrower of all that Borrower’s obligations under the Finance Documents;


 


(b)                                     undertakes with each Finance Party that whenever a Borrower does not
pay any amount when due under or in connection with any Finance Document, that
Guarantor shall immediately on demand pay that amount as if it was the
principal obligor; and


 


(c)                                      indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any obligation
guaranteed by it is or becomes unenforceable, invalid or illegal.  The amount of the cost, loss or liability
shall be equal to the amount which that Finance Party would otherwise have been
entitled to recover.


 


18.2                     Continuing guarantee


This guarantee
is a continuing guarantee and will extend to the ultimate balance of sums
payable by any Obligor under the Finance Documents, regardless of any
intermediate payment or discharge in whole or in part.


 


18.3                     Reinstatement


If any payment
by an Obligor or any discharge given by a Finance Party (whether in respect of
the obligations of any Obligor or any security for those obligations or
otherwise) is avoided or reduced as a result of insolvency or any similar
event:


 


(a)                                      the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and


 


(b)                                     each Finance Party shall be entitled to recover the value or amount
of that security or payment from each Obligor, as if the payment, discharge,
avoidance or reduction had not occurred.


 


18.4                     Waiver of defences


The
obligations of each Guarantor under this Clause 18 will not be affected by an
act, omission, matter or thing which, but for this Clause, would reduce,
release or prejudice any of its obligations under this Clause 18 (without
limitation and whether or not known to it or any Finance Party) including:


 


(a)                                      any time, waiver or consent granted to, or composition with, any
Obligor or other person;


 


(b)                                     the release of any other Obligor or any other person under the terms
of any composition or arrangement with any creditor of any member of the Group;


 


38

















 


(c)                                      the taking, variation, compromise, exchange, renewal or release of,
or refusal or neglect to perfect, take up or enforce, any rights against, or
security over assets of, any Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in respect of any
instrument or any failure to realise the full value of any security;


 


(d)                                     any incapacity or lack of power, authority or legal personality of
or dissolution or change in the members or status of an Obligor or any other
person;


 


(e)                                      any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;


 


(f)                                        any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or security; or


 


(g)                                     any insolvency or similar proceedings.


 


18.5                     Immediate recourse


Each Guarantor
waives any right it may have of first requiring any Finance Party (or any
trustee or agent on its behalf) to proceed against or enforce any other rights
or security or claim payment from any person before claiming from that
Guarantor under this Clause 18.  This
waiver applies irrespective of any law or any provision of a Finance Document
to the contrary.


 


18.6                     Appropriations


Until all
amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably paid in full, each Finance
Party (or any trustee or agent on its behalf) may:


 


(a)                                      refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or agent on its
behalf) in respect of those amounts, or apply and enforce the same in such
manner and order as it sees fit (whether against those amounts or otherwise)
and no Guarantor shall be entitled to the benefit of the same; and


 


(b)                                     hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of any Guarantor’s liability under this Clause
18.


 


18.7                     Deferral of Guarantors’ rights


Until all
amounts which may be or become payable by the Obligors under or in connection
with the Finance Documents have been irrevocably paid in full or the Facility
Agent otherwise directs, no Guarantor will exercise any rights which it may
have by reason of performance by it of its obligations under the Finance
Documents:


 


(a)                                      to be indemnified by an Obligor;


 


(b)                                     to claim any contribution from any other guarantor of any Obligor’s
obligations under the Finance Documents; and/or


 


(c)                                      to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties under the
Finance Documents or


 


39

















 


of any other guarantee or security taken pursuant to,
or in connection with, the Finance Documents by any Finance Party.


 


18.8                     Additional security


This guarantee
is in addition to and is not in any way prejudiced by any other guarantee or
security now or subsequently held by any Finance Party.


 


18.9                     Confirmations and Restrictions


(a)                                      Any term or provision of this Clause 18.9 or any other term in
this Agreement or any Finance Document notwithstanding, the maximum aggregate
amount of the obligations for which any Guarantor which is incorporated in any
state of the United States of America (a “US Guarantor”) shall be liable shall not
exceed the maximum amount for which such US Guarantor can be liable without
rendering this Agreement or any other Finance Document, as it relates to the US
Guarantor, subject to avoidance under applicable law relating to fraudulent
conveyance or fraudulent transfer (including section 548 of the Bankruptcy
Code of the United States or any applicable provisions of comparable state law)
(collectively “Fraudulent Transfer Laws”),
in each case after giving effect (a) to all other liabilities of the US
Guarantor, contingent or otherwise, that are relevant under such Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of the
Guarantor in respect of intercompany indebtedness to any Borrower to the extent
that such indebtedness would be discharged in an amount equal to the amount
paid by the US Guarantor hereunder) and (b) to the value as assets of the US
Guarantor (as determined under the applicable provisions of such Fraudulent Transfer
Laws) of any rights to subrogation, contribution, reimbursement, indemnity or
similar rights held by such US Guarantor pursuant to (i) applicable law or (ii)
any other agreement providing for an equitable allocation among the US
Guarantor and other Subsidiaries or affiliates of any Borrower of obligations
arising under this Agreement or any guarantees of the obligations by such
parties.


 


(b)                                     The obligations and liabilities of each Guarantor (excluding ABB)
which is incorporated in Switzerland shall in respect of all present and future
conditional and unconditional claims of the Finance Parties against any member
of the Group other than that Guarantor and its wholly owned Subsidiaries
arising from time to time out of the Finance Documents only be deemed to be
undertaken or incurred to the extent and in the maximum amount of that
Guarantor’s free reserves available for distribution (being the positive
difference between the assets of that Guarantor and the aggregate of all
liabilities, the amount of the registered share capital and the mandatory
reserves at any given time, all these amounts to be established in accordance
with Swiss law), taking into account the deduction of Swiss withholding tax at
the rate of 35% (or such other rate in force from time to time), subject to any
applicable double taxation treaty, levied on any such reserves made available
for distribution.


 


40

















 


SECTION 8


 


REPRESENTATIONS,
UNDERTAKINGS AND EVENTS OF DEFAULT


 


19.                           REPRESENTATIONS


 


ABB (in
respect of itself and, where specified, each Group Company or each Material
Subsidiary) and each other Obligor (in respect of itself) makes the
representations and warranties set out in this Clause 19 to each Finance Party
on the date of this Agreement.


 


19.1                     Status


(a)                                      It is a corporation, duly incorporated and validly existing under
the law of its jurisdiction of incorporation.


 


(b)                                     It and each Group Company has the power to own its assets and carry
on its business as it is being conducted.


 


19.2                     Binding obligations


The
obligations expressed to be assumed by it in each Finance Document are, subject
to the Reservations, legal, valid, binding and enforceable obligations.


 


19.3                     Non-conflict with other
obligations


The entry into
and performance by it of, and the transactions contemplated by, the Finance
Documents to which it is a party do not and will not conflict with:


 


(a)                                      any law or regulation applicable to it;


 


(b)                                     its constitutional documents; or


 


(c)                                      any agreement or instrument binding upon it or any Group Company or
any of their assets,


 


and, in the
case of paragraph (c) on any repetition after the date of this Agreement, in a
manner that could reasonably be expected to have a Material Adverse Effect.


 


19.4                     Power and authority


It has the
power to enter into, perform and deliver, and has taken all necessary action to
authorise its entry into, performance and delivery of, the Finance Documents to
which it is a party and the transactions contemplated by those Finance
Documents.


 


19.5                     Validity and admissibility in
evidence


All
Authorisations required by ABB and each other Obligor (including, in the case
of any Dutch Obligor and if applicable, any works council advice):


 


(a)                                      to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a party; and


 


(b)                                     to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation,


 


have been
obtained or effected and are in full force and effect.


 


41

















 


19.6                     Governing law and enforcement


Subject to the
Reservations, the choice of governing law of each of the Finance Documents to
which it is a party will be recognised and enforced in:


 


(a)                                      its jurisdiction of incorporation; and


 


(b)                                     in relation to any Security Document, the jurisdiction where the
assets intended to be the subject of security under any Security Document are
situated.


 


19.7                     Insolvency


Neither it nor
any Material Subsidiary (excluding Combustion Engineering Inc.) has taken any
action nor have any steps been taken or legal proceedings been started against
it for winding-up, dissolution or re-organisation, the enforcement of any
Security over its assets or for the appointment of a receiver, administrative
receiver, or administrator, trustee or similar officer of it or any of its
assets.


 


19.8                     No filings or stamp taxes


Under the law
of:


 


(a)                                      its jurisdiction of incorporation; and


 


(b)                                     in relation to any Security Document, the jurisdiction where the assets
intended to be the subject of security under any Security Document are
situated,


 


it is not
necessary that the Finance Documents to which it is party be filed, recorded or
enrolled with any court or other authority in that jurisdiction or that any
stamp, registration or similar tax be paid on or in relation to those Finance
Documents or the transactions contemplated by those Finance Documents, other
than in respect of the security granted pursuant to any Security Document,
which steps will be taken prior to the first drawdown if required under the
provisions of paragraph 2 of Part 1 of Schedule 2 (Conditions Precedent).


 


19.9                     No default


(a)                                      No Default or, on repetition, no Event of Default is continuing or
might reasonably be expected to result from the making of any Utilisation.


 


(b)                                     No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding on a Group
Company or to which their assets are subject which has had or could reasonably
be expected to have a Material Adverse Effect.


 


19.10               No misleading information


(a)                                      Any factual information provided by it or any of its Subsidiaries
for the purposes of the Information Package was true and accurate in all
material respects as at the date it was provided or as at the date (if any) at
which it is stated.


 


(b)                                     The Business Plan has been prepared on the basis of recent
historical information and on the basis of assumptions considered in good faith
by ABB to be reasonable.


 


42

















 


(c)                                      Nothing has occurred or been omitted from the information provided
by any Group Company in relation to the Information Package and no information
has been given or withheld that results in the information contained in the Information
Package being untrue or misleading in any material respect as at the date of
the relevant component of the Information Package.


 


(d)                                     All written information supplied by a Group Company after the date
hereof in connection herewith is considered in good faith by ABB to be true,
complete and accurate in all material respects as at the date it was given and
is not misleading in any material respect as at such date.


 


19.11               Financial statements and
Liquidity Plans


(a)                                      Its Original Financial Statements were prepared in accordance with
GAAP consistently applied.


 


(b)                                     Its Original Financial Statements fairly present in all material
respects its financial condition and operations (consolidated in the case of
ABB and, where applicable, any other Obligor) during the relevant financial
year.


 


(c)                                      Each of the latest audited consolidated financial statements
required to be delivered under Clause 20.1(a) fairly presents in all material
respects the financial position of the Group as at the date to which they were
prepared and for the period then ended.


 


(d)                                     Each of the latest set of consolidated financial statements required
to be delivered under Clause 20.1(b) fairly presents in all material respects
the financial condition of the Group as at the date to which they were prepared
and for the period then ended.


 


(e)                                      The projections and forecasts contained in the Original Liquidity
Plan are fair and based on assumptions considered in good faith by ABB to be
reasonable as at the date to which it was drawn up and the Original Liquidity
Plan does not omit any information known to ABB which would make such
projections and forecasts materially misleading as at the date to which it was
drawn up.


 


(f)                                        The projections and forecasts contained in the Liquidity Plan most
recently delivered to the Facility Agent are fair and based on assumptions
considered in good faith by ABB to be reasonable on the date of delivery
hereunder and such Liquidity Plan does not omit any information known to ABB as
at such date which would make such projections and forecasts materially
misleading.


 


19.12               No Material Adverse Effect


Since 30
June 2003:


 


(a)                                      there has been no material adverse change in any of the business,
condition (financial or otherwise), operations, performance or properties of
the Group (taken as a whole); and


 


(b)                                     no event or circumstance or series of events or circumstances
whether related or not has occurred which has a Material Adverse Effect,


 


43

















 


provided that none of the facts or circumstances referred
to in (i) the Information Package or (ii) any public filings, announcements or
press releases issued by ABB or the rating agencies prior to the date hereof
shall, for the purposes of this representation, constitute a material adverse
change or a Material Adverse Effect as contemplated by the paragraphs above.


 


19.13               Pari passu ranking


Its payment
obligations under the Finance Documents rank at least pari passu with the
claims of all its other unsecured and unsubordinated creditors, except for
obligations mandatorily preferred by law applying to companies generally.


 


19.14               No proceedings pending or
threatened


No litigation,
arbitration or administrative proceedings of or before any court, arbitral body
or agency which might reasonably be expected to have a Material Adverse Effect
have (to the best of its knowledge and belief) been started or threatened
against it or any of its Subsidiaries save in relation to asbestos liabilities
relating to the business of Combustion Engineering Inc.


 


19.15               Environmental Compliance


Each Group
Company has complied in all respects with all Environmental Law save to the
extent that non-compliance could not reasonably be expected to have a Material
Adverse Effect.


 


19.16               Good Title to Assets


It has good, valid
and marketable title to, or valid leases or licences of, and all appropriate
Authorisations to use, the material assets necessary to carry on its business
as presently conducted.


 


19.17               Pensions


As of the last
actuarial report, its pension plan is funded to the levels required by
applicable local laws.


 


19.18               Dutch Borrower Regulatory
Compliance


The Dutch
Borrower represents, warrants and agrees that it has the appropriate exemptive
reliefs available pursuant to the Exemption Regulation and that it complies
with article 4 of the Exemption Regulation including in particular that:


 


(a)                                      on the date of this Agreement the Dutch Borrower has verified that
each Lender qualifies as a PMP in accordance with the Policy Guidelines; and


 


(b)                                     if on the date on which a New Lender becomes a party to this
Agreement, it is a requirement of Dutch law that it is a PMP and that the Dutch
Borrower must verify its PMP status in accordance with the Policy Guidelines,
on such date the Dutch Borrower has verified that such New Lender qualifies as
a PMP in accordance with the Policy Guidelines.


 


Each Lender
represents and warrants to the Dutch Borrower on the date of this Agreement
that it is a PMP and each New Lender to whom a Lender assigns or transfers any
or all of its rights under this Agreement (if on the date such assignment or
transfer becomes effective it is a requirement under Dutch law that such New
Lender is a PMP)


 


44

















 


will be deemed
to have represented and warranted to the Dutch Borrower that on such date it is
a PMP.


 


19.19               Repetition


(a)                                      The representations and warranties in Clause 19.1 (Status)
to Clause 19.6 (Governing law and
enforcement), 19.9 (No Default),
paragraph (d) of Clause 19.10 (No misleading
information), paragraphs (c) and (d) of Clause 19.11 (Financial
Statements) and Clause 19.13 (Pari
passu ranking) are deemed to be made by each Obligor by reference to
the facts and circumstances then existing on the date of each Utilisation
Request and the first day of each Interest Period.


 


(b)                                     The representation and warranty in paragraph (f) of Clause 19.11 (Financial statements) is deemed to be made
by ABB on the date of delivery of each Liquidity Plan in relation to that
Liquidity Plan.


 


(c)                                      The representation and warranty in paragraph (b) of Clause 19.10 (No misleading information) is deemed to be
made by ABB on the day each Business Plan is delivered to the Facility Agent
pursuant to Clause 20.4 (Liquidity Plan and
Business Plan).


 


20.                           INFORMATION
UNDERTAKINGS


 


The
undertakings in this Clause 20 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.


 


20.1                     Financial statements


(a)                                      ABB and each other Obligor shall supply to the Facility Agent in
sufficient copies for all the Lenders, as soon as the same become available,
but in any event within 120 days after the end of each of its financial years
in the case of ABB and within 150 days in the case of each other Obligor its statutory
unconsolidated annual statements for that financial year.


 


(b)                                     ABB shall supply to the Facility Agent in sufficient copies for all
the Lenders, as soon as the same become available, but in any event before the
date falling 120 days after the end of each of its financial years, its audited
consolidated annual statements.


 


(c)                                      ABB shall supply to the Facility Agent in sufficient copies for all
the Lenders, as soon as the same become available, but in any event within 45
days after the end of each quarter of each of its financial years (except the
fourth quarter) its consolidated financial statements for that quarter.


 


20.2                     Requirements as to financial
statements


(a)                                      Each set of financial statements delivered by an Obligor pursuant to
Clause 20.1 (Financial statements) shall be certified without personal
liability by a director of the relevant company as fairly representing its
financial condition as at the date at which those financial statements were
drawn up.


 


45

















 


(b)                                     Each set of financial statements delivered pursuant to Clause 20.1 (Financial
statements) shall be prepared using GAAP.


 


(c)                                      Each set of financial statements of an Obligor delivered pursuant to
Clause 20.1 (Financial statements) shall be prepared using GAAP, and
accounting practices and financial reference periods consistent with those
applied in the preparation of the Original Financial Statements unless, in
relation to any set of financial statements, ABB or the relevant Obligor
notifies the Facility Agent that there has been a change in GAAP, or its
accounting practices or reference periods and the relevant Obligor in
consultation with its auditors delivers to the Facility Agent:


 


(i)                        a description of any change necessary for those consolidated
financial statements to reflect the GAAP, accounting practices and reference
periods upon which that Obligor’s Original Financial Statements were prepared;
and


 


(ii)                     in respect of changes affecting the consolidated accounts of the
Group, sufficient information, in form and substance as may be reasonably
required by the Facility Agent, to enable the Lenders to determine whether
Clause 21 (Financial
covenants) has been complied with and make an accurate comparison
between the financial position indicated in those financial statements and that
Obligor’s Original Financial Statements.


 


Any reference
in this Agreement to those financial statements shall be construed as a
reference to those financial statements as adjusted to reflect the basis upon
which the Original Financial Statements were prepared.


 


20.3                     Covenant Compliance
Certificate


(a)                                      ABB shall supply to the Facility Agent, with each set of financial
statements delivered by ABB pursuant to paragraph (b) or (c) of Clause 20.1 (Financial
Statements), a Covenant Compliance Certificate setting out (in
reasonable detail):


 


(i)                        computations as to compliance with Clause 21.2 (Financial Condition) and
Clause 21.3 (Restriction on Subsidiary
Indebtedness) as at the date as at which those financial statements
were drawn up; and


 


(ii)                     a reconciliation of the available cash as set out in the Liquidity
Plan delivered with that Covenant Compliance Certificate to the cash position
as set out in the consolidated financial statements delivered with that
Covenant Compliance Certificate,


 


provided that, at any time on and
following the Trigger Date, a Covenant Compliance Certificate will only be
required to be delivered with each set of financial statements delivered by ABB
pursuant to paragraph (b) of Clause 20.1 (Financial
Statements) and with each set of financial statements delivered by
ABB pursuant to paragraph (c) of Clause 20.1 (Financial
Statements) that relate to the end of the second quarter in any
financial year).


 


46

















 


(b)                                     Each Covenant Compliance Certificate shall be signed by two officers
of ABB without personal liability.


 


20.4                     Liquidity Plan and Business
Plan


(a)                                      ABB shall supply to the Facility Agent (in sufficient copies for all
the Lenders) with each Covenant Compliance Certificate delivered prior to the
Trigger Date an up to date Liquidity Plan.


 


(b)                                     ABB shall supply to the Facility Agent (in sufficient copies for all
the Lenders), on or prior to 1 December of each financial year ending
after 31 December 2003 an updated Business Plan (in respect of financial
years ending in 2005 and 2006 for the Business Plan delivered on or prior to 1
December 2004 and in respect of the financial year ending in 2006 for the
Business Plan delivered on or prior to 1 December 2005) together with a
statement reconciling such updated Business Plan to the most recently delivered
Liquidity Plan.


 


20.5                     Information: miscellaneous


ABB shall
supply to the Facility Agent (in sufficient copies for all the Lenders, if the
Facility Agent so requests):


 


(a)                                      all documents dispatched by it to its shareholders (or any class of
them) or its creditors generally at the same time as they are dispatched;


 


(b)                                     promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings or Environmental Claim which are
current, threatened or pending against one or more Group Companies and which
could reasonably be expected to have a Material Adverse Effect;


 


(c)                                      promptly, such further information regarding the financial condition,
business and operations of any Group Company as any Finance Party (acting
through the Facility Agent) may reasonably request; and


 


(d)                                     promptly upon becoming aware of a material development, details of
the progress of the Combustion Engineering Inc Chapter XI filing and any change
in the structure of the Group that is material to the interests of the Lenders.


 


20.6                     Notification of default


(a)                                      ABB and each Obligor shall notify the Facility Agent of any Default
(and the steps, if any, being taken to remedy it) promptly upon becoming aware
of its occurrence (unless that Obligor is aware that a notification has already
been provided by another Obligor).


 


(b)                                     If any Lender considers in good faith that a Default is continuing,
promptly upon a request by the Facility Agent, ABB shall supply to the Facility
Agent a certificate signed by two of its authorised signatories (without
personal liability) on its behalf certifying that no Default is continuing (or
if a Default is continuing, specifying the Default and the steps, if any, being
taken to remedy it).


 


47

















 


20.7                     Use of Websites


(a)                                      Any Obligor may satisfy its obligation under this Agreement to
deliver any information in relation to those Lenders (the “Website Lenders”) who accept
this method of communication by posting this information onto an electronic
website designated by the Borrower and the Facility Agent (the “Designated
Website”) if:


 


(i)                        the Facility Agent expressly agrees (after consultation with each of
the Lenders) that it will accept communication of the information by this
method;


 


(ii)                     both ABB and the Facility Agent are aware of the address of and any
relevant password specifications for the Designated Website; and


 


(iii)                  the information is in a format previously agreed between ABB and the
Facility Agent.


 


If any Lender
(a “Paper
Form Lender”) does not agree to the delivery of information
electronically then the Facility Agent shall notify ABB accordingly and ABB
shall supply the information to the Facility Agent (in sufficient copies for
each Paper Form Lender) in paper form. 
In any event ABB shall supply the Facility Agent with at least one copy
in paper form of any information required to be provided by it.


 


(b)                                     The Facility Agent shall supply each Website Lender with the address
of and any relevant password specifications for the Designated Website
following designation of that website by ABB and the Facility Agent.  The Facility Agent shall notify each Website
Lender when any document is posted to the Designated Website.


 


(c)                                      ABB shall promptly upon becoming aware of its occurrence notify the
Facility Agent if:


 


(i)                        the Designated Website cannot be accessed due to technical failure;


 


(ii)                     the password specifications for the Designated Website change;


 


(iii)                  any new information which is required to be provided under this
Agreement is posted onto the Designated Website;


 


(iv)                 any
existing information which has been provided under this Agreement and posted
onto the Designated Website is amended; or


 


(v)                    ABB becomes aware that the Designated Website or any information
posted onto the Designated Website is or has been infected by any electronic
virus or similar software.


 


If the
Borrower notifies the Facility Agent under paragraph (c)(i) or paragraph (c)(v)
above, all information to be provided by ABB under this Agreement after the
date of that notice shall be supplied in paper form unless and until the


 


48

















 


Facility Agent
and each Website Lender is satisfied that the circumstances giving rise to the
notification are no longer continuing.


 


(d)                                     Any Website Lender may request, through the Facility Agent, one
paper copy of any information required to be provided under this Agreement
which is posted onto the Designated Website. 
ABB shall comply with any such request within ten Business Days.


 


20.8                     “Know your customer” checks


(a)                                      Each Obligor shall promptly upon the request of the Facility Agent
or any Lender supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Facility Agent (for itself or on
behalf of any Lender) or any Lender (for itself or on behalf of any prospective
New Lender) in order for the Facility Agent, such Lender or any prospective New
Lender to carry out and be satisfied with the results of all necessary “know
your customer” or other checks in relation to any person that it is required to
carry out pursuant to the transactions contemplated in the Finance Documents.


 


(b)                                     Each Lender shall (save as may be prohibited by law) promptly upon
the request of the Facility Agent supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Facility
Agent (for itself) in order for the Facility Agent to carry out and be
satisfied with the results of all necessary “know your customer” or other
checks in relation to any person that it is required to carry out pursuant to
the transactions contemplated in the Finance Documents.


 


(c)                                      ABB shall, by not less than 10 Business Days’ written notice to the
Facility Agent, notify the Facility Agent (which shall promptly notify the
Lenders) of its intention to request that one of its Subsidiaries becomes an
Additional Obligor pursuant to Clause 25 (Changes
to the Obligors).


 


(d)                                     Following the giving of any notice pursuant to paragraph (a) above,
ABB shall promptly upon the request of the Facility Agent or any Lender supply,
or procure the supply of, such documentation and other evidence as is
reasonably requested by the Facility Agent (for itself or on behalf of any
Lender) or any Lender (for itself or on behalf of any prospective New Lender)
in order for the Facility Agent, such Lender or any prospective New Lender to
carry out and be satisfied with the results of all necessary “know your
customer” or other checks in relation to any person that it is required to
carry out pursuant to the accession of such Subsidiary to this Agreement as an
Additional Obligor.


 


21.                           FINANCIAL
COVENANTS


 


21.1                     Financial definitions


In this
Clause:


 


“Asbestos Trusts” means the trusts
established for the benefit of present and future claimants in the proceedings
relating to Combustion Engineering Inc. under Chapter XI of the US Bankruptcy
Code;


 


49

















 


“Consolidated Net Worth” means total
stockholders’ equity, calculated disregarding changes in total accumulated
other comprehensive income/loss after 30 June 2003 onwards, in each case
as reflected in ABB’s consolidated statement of changes in stockholders’ equity
(part of the consolidated financial statements of ABB) adjusted:-


 


(a)                                      by excluding the amount of any adjustment in respect of ABB’s shares
to be contributed to the Asbestos Trusts and, when recognised as a provision,
the amount of any contingent or prospective liability in respect of the
obligation of members of the Group (as at the date hereof) to contribute cash
to the Asbestos Trusts;


 


(b)                                     to disregard capital gains and losses from disposals booked or
recorded after 30 June 2003 of assets and businesses classified as
non-core or discontinued operations as at 30 June 2003 (such as sales of
businesses, long term assets, equity investments and including the
abandonment/liquidation of businesses);


 


(c)                                      to exclude changes since 30 June 2003 in market valuation
resulting from the bifurcation of embedded derivatives and in the consequent
related amortisation of any premium/discount on issuance in respect of the
$968,000,000 convertible bonds issued by a member of the Group as well as any
changes in the market value of any derivative put in place by the Group to
hedge the embedded derivative in the bond;


 


(d)                                     to disregard impairments and other write offs in respect of goodwill
and other intangible assets to the extent the same occur after
30 June 2003;


 


(e)                                      to disregard movements on deferred tax assets relating to
discontinued operations to the extent the same occur after
30 June 2003; and


 


(f)                                        to exclude the effects of changes in US GAAP or the application
thereof effective after 30 June 2003.


 


“Consolidated Profits Before Interest and Tax”
means, in respect of any Relevant Period, the earnings before interest and
taxes, as reflected in ABB’s consolidated income statement.


 


“EBITDA” means, for any Relevant Period,
Consolidated Profits Before Interest and Taxes and Minority Interest before any
amount attributable to the impairment, write-off or amortisation of any
intangible assets and impairment, write-off or depreciation of tangible assets
(in each case to the extent that the same occur after 31 December 2002)
adjusted to disregard any impact of:


 


(a)                                      new accounting standards or the application thereof adopted in 2003
or thereafter;


 


(b)                                     costs relating to ABB’s announced restructuring programme known as
the “step change program” up to a maximum aggregate amount of $750,000,000
during the life of the Facility;


 


(c)                                      restatements of previous quarters;


 


50

















 


(d)                                     charges or credits in respect of employee share plans and other
employee incentive arrangements (including the “management incentive plan”)
which are (in each case) in place as at the date hereof;


 


(e)                                      impairments or write offs relating to marketable securities
classified as available for sale and held by group insurance or reinsurance
companies; and


 


(f)                                        gains or losses arising by reasons of disposals (such as the sale of
businesses, long term assets, equity investments and including the
abandonment/liquidation of businesses) occurring after 30 June 2003.


 


“Net Debt” means Total Gross Debt less cash
available in group treasury operations as disclosed in the Liquidity Plan and
the reconciliation to balance sheet cash and equivalents as disclosed in the
Covenant Compliance Certificate.


 


“Quarter Date” means the last day of each
Relevant Period.


 


“Relevant Period” means each period of
twelve months ending on the last day of ABB’s financial year and each period of
twelve months ending on the last day of each quarter of ABB’s financial year.


 


“Total Gross Debt” means the aggregate of
short-term borrowings and current maturities on long-term borrowings and
long-term borrowings in each case as reflected in ABB’s consolidated balance
sheet as of the last day of the Relevant Period plus, as reported in the latest
available Liquidity Plan, the obligation of members of the Group to make cash
payments to the Asbestos Trusts plus (without double counting) the aggregate
net proceeds of any Securitisation to the extent that the aggregate net
proceeds thereof for the Group at any time exceed $650,000,000 (excluding any
amount of such cash proceeds that are not freely transferable under applicable
law and regulation to the group treasury operations as disclosed in the
Covenant Compliance Certificate) on the last day of the Relevant Period
excluding the impact of changes in US GAAP or the application thereof effective
after 30 June 2003 and further excluding any changes from 30
June 2003 in the market valuation of derivatives embedded in the
$968,000,000 convertible bond issued by a member of the Group and the related
amortisation of discount on issuance resulting from the bifurcation of the
embedded derivatives in such bond.


 


“Total Gross Interest” means, in respect of
any Relevant Period, the interest expense for financial liabilities and costs
of the securitisation programmes of the Group as reflected in ABB’s
consolidated income statement (excluding items considered as other finance
expense, such as, but not limited to any fees, taxes or commissions, foreign
exchange gains or losses, gains or losses on marketable securities, gains or
losses on derivatives, the effects arising from the bifurcation of the embedded
derivatives in respect of the $968,000,000 convertible bond issued by a member
of the Group and charges or credits in relation to management incentive plans).


 


21.2                     Financial Condition


ABB shall
ensure that:


 


(a)                                      The ratio of EBITDA to Total Gross Interest for each Relevant Period
ended on each Quarter Date specified below (or, after the Trigger Date, each
Relevant


 


51

















 


Period ending on each 30 June and
31 December set out below) shall not be less than the ratio set out
below opposite such date.


 


	
  Date

  	
   

  	
  Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 December 2003

  	
   

  	
  2.45:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2004

  	
   

  	
  2.60:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30 June 2004

  	
   

  	
  2.60:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30 September 2004

  	
   

  	
  2.75:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 December 2004

  	
   

  	
  3.00:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2005

  	
   

  	
  3.25:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30 June 2005, and thereafter

  	
   

  	
  3.50:1

  	
   

  



 


(b)                                     The ratio of Net Debt to EBITDA for each Relevant Period ended on
each Quarter Date specified below (or, after the Trigger Date, each Relevant
Period ending on each 30 June and 31 December set out
below) shall not be more than the ratio set out below opposite such date.


 


	
  Quarter Date

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 December 2003

  	
   

  	
  4.40:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2004

  	
   

  	
  4.25:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30 June 2004

  	
   

  	
  3.75:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30 September 2004

  	
   

  	
  3.00:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 December 2004

  	
   

  	
  2.75:1

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31 March 2005, and thereafter

  	
   

  	
  2.50:1

  	
   

  



 


(c)                                      Consolidated Net Worth shall not, as at any Quarter Date (or, after
the Trigger Date, half year of ABB), be less than the relevant amount
calculated in accordance with the following formula:


 


A + B,


 


where:


 


A  =  $3,000,000,000;
and


 


B                                        =                                               in respect of a Quarter Date, 50 per cent. of the Cumulative
Consolidated Net Income of the Group for the period from 30 September 2003
until such Quarter Date.  For these
purposes, “Cumulative Consolidated Net Income” is the aggregate of the
consolidated net income of the Group (adjusted to exclude those amounts set out
in (a) to (f) of the definition of Consolidated Net Worth) for the fourth
quarter of the 2003 financial year of ABB and


 


52

















 


each completed financial year of ABB ending thereafter plus (if the
relevant Quarter Date is not the last day of a financial year of the Group) the
cumulative consolidated net income (adjusted as aforesaid) of the Group for the
part financial year during which such Quarter Date falls provided that if the consolidated net
income (as so adjusted) for any such financial year or the cumulative
consolidated net income (as so adjusted) for any such part financial year
ending on such Quarter Date is a negative amount, such amount will be deemed to
be zero for the purposes of this paragraph (c).


 


21.3                     Restriction on Subsidiary
Indebtedness


The aggregate
amount of Total Gross Debt (other than:


 


(a)                                      Project Finance Indebtedness;


 


(b)                                     Indebtedness owed by one Group Company to another Group Company;


 


(c)                                      amounts borrowed by a finance company which is a Group Company and
which are on-lent, and remain on-lent, to a member of the Obligor Group;


 


(d)                                     amounts borrowed by a Group Company from a bank to which
cash-collateral (in a substantially equivalent amount) has been granted by a
Group Company in respect of the relevant Group Company’s obligation to repay
such amounts;


 


(e)                                      any amounts borrowed by a Group Company which constitute Total Gross
Debt to the extent such amounts are borrowed for the purposes of refinancing
other borrowings constituting Total Gross Debt so long as amounts so borrowed
are promptly applied in such manner;


 


(f)                                        Indebtedness relating to Sirius, ABB Export Bank and ABB Credit OY
Leases (in each case as at the date of this Agreement);


 


(g)                                     Indebtedness in respect of bonds and commercial paper issued by
members of the Group that are capital market issuers; and


 


(h)                                     amounts owed to Combustion Engineering Inc. or any trust established
in connection with its Chapter XI filing),


 


of Group
Companies which are not members of the Obligor Group shall not at any time
after the date of this Agreement exceed $1,000,000,000.


 


22.                           GENERAL
UNDERTAKINGS


 


The
undertakings in this Clause 22 remain in force from the date of this Agreement
for so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.


 


22.1                     Authorisations


Each Obligor
shall promptly:


 


(a)                                      obtain, comply with and do all that is necessary to maintain in full
force and effect; and


 


53

















 


(b)                                     supply certified copies to the Facility Agent of,


 


any
Authorisation (including, in the case of any Dutch Obligor, any applicable
works council advice) required under any law or regulation of its jurisdiction
of incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, and, subject to the
Reservations (as they apply at the date of this Agreement only) enforceability
or admissibility in evidence in its jurisdiction of incorporation of any
Finance Document.


 


22.2                     Compliance with laws


Each Obligor
shall comply in all respects with all laws (including, without limitation,
Environmental Law and ERISA) to which it may be subject, if failure so to
comply would have a Material Adverse Effect.


 


22.3                     Negative pledge


(a)                                      Neither ABB nor any Obligor shall (and ABB shall procure that no
other Group Company will) create or permit to subsist any Security over any of
its assets.


 


(b)                                     Paragraph (a) above does not apply to:


 


(i)                        any Security over any bank account in favour of the bank with which
such account is held, in each case granted by any Group Company in the ordinary
course of its banking arrangements for the purpose of netting debit and credit
balances;


 


(ii)                     any Security arising by operation of law;


 


(iii)                  any Security contained in a contract for sale or supply entered into
in the ordinary course of trading, where such Security is granted to such
seller or, as the case may be, supplier and is limited in recourse to the asset
sold or, as the case may be, supplied;


 


(iv)                 any
Security over or affecting any asset acquired by a Group Company after the date
of this Agreement if:


 


(A)                the
Security was not created in contemplation of the acquisition of that asset by a
Group Company; and


 


(B)                  the principal amount secured has not been increased in contemplation
of, or since the acquisition of that asset by a Group Company;


 


(C)                  a Group Company uses all reasonable efforts promptly to discharge
such Security within 3 months of the acquisition of that asset by a Group
Company and, in any event, such Security is discharged within 6 months of the
acquisition of that asset by a Group Company;


 


(v)                    any Security over or affecting any asset of a Group Company acquired
after the date of this Agreement, where the Security is created prior to the
date on which that company becomes a Group Company if:


 


54

















 


(A)                the
Security was not created in contemplation of the acquisition of that company;


 


(B)                  the principal amount secured has not increased in contemplation of
or since the acquisition of that company;


 


(C)                  a Group Company uses all reasonable efforts promptly to discharge
such Security within 3 months of the acquisition of that asset by a Group
Company and, in any event, such Security is discharged within 6 months of the
acquisition of that asset by a Group Company;


 


(vi)                 any
Security arising pursuant to the Securitisations;


 


(vii)              any
Security over the assets of a Project Company, any shareholder loan made to a
Project Company or the shares in a Project Company where such Security was
created for the purpose of securing Indebtedness incurred to acquire and/or
develop the assets of such Project Company and where such Indebtedness
constitutes Project Finance Indebtedness of such Project Company, in each case
where the Project Company and Project Finance Indebtedness is created or
incurred in accordance with the usual business of the Group carried on at the
date of this Agreement;


 


(viii)           any
Security securing Indebtedness incurred by a Group Company to refinance
Indebtedness secured by Security of the type referred to in paragraphs (iv) or
(v) above where such first-mentioned Security and the conditions referred to in
paragraph (iv) or, as the case may be, (v) above continue to be satisfied,
mutatis mutandis;


 


(ix)                   any Security provided by a Group Company which is an insurance or
reinsurance company in the ordinary course of its business;


 


(x)                      any Security provided in connection with loans to Group Companies
cash collateralised by other members of the Group, and interest rate and
currency swaps and other derivative contracts, in the ordinary course of Group
treasury activities;


 


(xi)                   any Security provided in respect of ABB Credit OY Leases as at the
date of this Agreement;


 


(xii)                any
Security over any real estate assets pursuant to mortgage financings in a
principal amount up to $150,000,000;


 


(xiii)             any
Security over or affecting any asset created to facilitate the Disposal of an
asset by a Group Company (where such Disposal is permitted under paragraph (b)
of Clause 22.4 (Disposals));


 


(xiv)            any
Security over or affecting assets having an aggregate market value not in
excess of $750,000,000 to secure bonding lines of members of the Group;


 


55

















 


(xv)               any
Security provided over the shares in Sirius securing indebtedness in a
principal amount of not more than $200,000,000;


 


(xvi)            any
Security provided to or for the benefit of the Finance Parties pursuant to the
Finance Documents;


 


(xvii)         any
Security provided in connection with any real estate-related defeasance
structures, including without limitation U.S. tax leases; and


 


(xviii)      any
Security to the extent not falling within any of paragraphs (i) - (xvii)
(inclusive) above provided that:


 


(A)                the
total amount of Indebtedness secured pursuant to this paragraph (xviii) shall
at no time exceed $250,000,000; and


 


(B)                  Security may not be provided pursuant to this paragraph (xviii) in
respect of Indebtedness in excess of $25,000,000 in relation to any single or
series of related debt-financing transactions.


 


22.4                     Disposals


(a)                                      Neither ABB nor any Obligor shall (and ABB shall ensure that no
other Group Company will), enter into a Disposal.


 


(b)                                     Paragraph (a) above does not apply to a Disposal:


 


(i)                        of any asset, company or business classified as at 30 June 2003
as a non-core activity of ABB or as held for sale/discontinued operations (each
a “Non-Core Undertaking”);


 


(ii)                     of any asset of a Non-Core Undertaking that is not a core asset of
the Group;


 


(iii)                 prior
to the Trigger Date, of any asset, company or business that is a core asset of
the Group (each a “Core Undertaking”)
or of any asset of a Core Undertaking:


 


(A)                that
when taken with all other such Disposals in the same financial year generates
in aggregate net proceeds of not more than $750,000,000; and


 


(B)                  where two authorised signatories of ABB have certified in writing to
the Lenders that on a historic basis for the most recent Quarter Date prior to
such Disposal and looking forward for each Quarter Date during the term of the
Facility (calculated in each case on a pro forma basis) such Disposal would not
give rise to a breach of Clause 21.2 (Financial
Condition),


 


Provided that any such Disposal that
would not be permitted because of the limitation set out in paragraph (A) above
may be made if details thereof have been provided to the Lenders and the
Majority Lenders have not objected in writing to such Disposal within 30
Business Days;


 


56

















 


(iv)                 at
any time on or after the Trigger Date of a Core Undertaking or of an asset
owned by a Core Undertaking provided that
(in the case of a sale of the business or shares of a Core Undertaking or a
revenue generating asset of a Core Undertaking) two authorised signatories of
ABB have certified in writing to the Lenders that on a historic basis for the
most recent Quarter Date prior to such Disposal and looking forward for each
Quarter Date falling on 30 June and 31 December during the term of
the Facility (calculated in each case on a pro forma basis), such Disposal
would not give rise to a breach of Clause 21.2 (Financial condition);


 


(v)                    to a Group Company;


 


(vi)                 of
cash or cash equivalents where such Disposal is not otherwise prohibited under
this Agreement;


 


(vii)              made
in the ordinary course of business of the disposing Group Company;


 


(viii)           of
cash and cash equivalents, notes, shares and marketable securities, rights
under insurance contracts and real estate to or in connection with the trusts
to be established for the purpose of meeting claims in respect of the Chapter
XI Filing of CE up to the amount set out in the Original Liquidity Plan;


 


(ix)                   of assets which are sold and leased back in circumstances not
prohibited by the other terms hereof;


 


(x)                      of obsolete assets (not being businesses or shares in a company
owning a business) which in the reasonable opinion of a Group Company are not
required for the efficient operation of the business of the Group;


 


(xi)                   made by way of exchange for assets (not being businesses or shares
in a company owning a business) of similar nature and value;


 


(xii)                of
receivables pursuant to the Securitisations,


 


Provided that all Disposals shall be
made on arm’s length terms (other than distributions and other intra-group
transactions where ABB considers in good faith that the fiscal benefits to the
Group to be obtained from such transaction militate against such terms and such
transactions would not be materially adverse to the interests of the Lenders
hereunder).


 


(c)                                      Prior to the Trigger Date, any Disposal (not being an intra-Group
transaction) having a value in excess of $25,000,000 shall be for a cash
consideration of at least 80% of total consideration (or such greater amount or
lower percentage as the Majority Lenders may approve in relation to any such
Disposal, such approval not to be unreasonably withheld or delayed).


 


57

















 


22.5                     Claims Pari Passu


ABB shall
ensure that at all times the claims of the Finance Parties against each Obligor
under the Finance Documents rank at least pari passu with the claims of all its
other unsecured and unsubordinated creditors save those of such Obligor’s
creditors whose claims are mandatorily preferred by law applying to companies
generally.


 


22.6                     Mergers and Acquisitions


(a)                                      No Obligor shall enter into any amalgamation, demerger, merger or
corporate reconstruction (excluding any Approved Reorganisation or any Disposal
permitted under paragraph (b) of Clause 22.4 (Disposals)
and save as permitted under Clause 23.7 (Insolvency
Proceedings)) save where the Facility Agent is satisfied, acting
reasonably, that ABB or the relevant Obligor’s obligations under the Finance
Documents will continue to be ABB’s or the relevant Obligor’s legal, valid,
binding and (subject to the Reservations) enforceable obligations.


 


(b)                                      No
Obligor shall (and ABB shall ensure that no Group Company shall) acquire any
company, business or undertaking or form or enter into any joint venture,
partnership, consortium or other like arrangement (any such joint venture,
partnership, consortium or other like arrangement being hereafter a “JV”).


 


(c)                                       Paragraph (b) above does not apply:


 


(i)                        prior to the Trigger Date, to any acquisition of an undertaking (by
way of acquisition of shares or otherwise) or to any JV:


 


(A)                that
carries on a business currently conducted by a member of the Group or which is
reasonably ancillary to any such business; and


 


(B)


 


(1)                    where the aggregate consideration (or, in the case of a JV,
investment by Group Companies) is not in excess of $3,500,000; or


 


(2)                    where the aggregate consideration (or, in the case of a JV,
investment by Group Companies), when taken with all other such acquisitions or
investments in the same financial year (other than those in (i)(B)(1) above),
is not in excess of $750,000,000 (provided that all or part of such amount may
be carried forward from any applicable financial year to the following
financial year where a transaction signs in the applicable financial year and
closes in the first 3 months of the following financial year); and


 


(C)                  where two authorised signatories of ABB have certified in writing to
the Lenders that on a historic basis for the most recent Quarter Date prior to
such acquisition or other transaction and looking forward to each Quarter Date
for the term of the Facility on a pro forma basis, such acquisition would not
give rise to a breach of Clause 21.2 (Financial
condition),


 


58

















 


Provided that any acquisition or other
transaction that would not be permitted because of the limitation set out in
paragraph (B) above may be made if details thereof have been provided to the
Lenders and the Majority Lenders have not objected in writing to such
acquisition or other transaction within 30 Business Days;


 


(ii)                     at any time after the Trigger Date, in circumstances where two
authorised signatories of ABB have certified in writing to the Lenders that on
a historic basis for the most recent Quarter Date prior to such acquisition or
other transaction and looking forward for each Date falling on 30 June and
31 December during the term of the Facility on a pro forma basis, such
acquisition or other transaction would not give rise to a breach of Clause 21.2
(Financial Condition);


 


(iii)                  to a solvent reorganisation not affecting the Obligors or any
security contemplated or granted pursuant to the Agreed Form Pledges;


 


(iv)                 to
JVs entered into by Group Companies provided the formation of such JV is
pursuant to the core business of the Group and consistent with the ordinary
business practices of the Group as at the date hereof.


 


22.7                     Change of business


ABB shall procure
that no change is made to the business of the Group which would result in the
core business of the Group, taken as a whole, being something other than the
business of power and automation technology.


 


22.8                     Insurance


Each Obligor
shall (and ABB shall ensure that each Group Company will) maintain insurances
on and in relation to its business and assets with reputable underwriters or
insurance companies against those risks and to the extent as is usual for
companies carrying on the same or substantially similar business in the
relevant jurisdiction and taking into account the availability of insurance
generally.


 


22.9                     Prepayment of Group Facilities


Prior to the
Trigger Date, ABB shall not (and shall ensure that no other Group Company will)
voluntarily prepay, purchase or redeem any bonds or other capital markets
instruments issued by a Group Company having in each case a maturity date
falling after the Final Maturity Date provided
that any Group Company may prepay any bonds or other capital market
instruments out of the net cash proceeds of any capital markets instrument
issued after the date of this Agreement with a maturity date not earlier than
the bonds or capital markets instruments being prepaid.


 


22.10               Restrictions on making loans
and guarantees


(a)                                      ABB shall not (and shall ensure that no other Group Company shall)
after the date of this Agreement make any loans or grant any credit or other
financial accommodation (but excluding for the avoidance of doubt its own bank
deposits) to or for the benefit of any person or grant any guarantee or
indemnity in respect of the financial obligations or liabilities of any other
person.


 


(b)                                     Paragraph (a) above does not apply to:


 


59

















 


(i)                        trade credit or indemnities granted in the ordinary course of
business and upon terms usual for such trade (including vendor financing in an
aggregate amount in respect of the Group not materially greater than the amount
outstanding as at the date of this Agreement);


 


(ii)                     any loan, credit or other financial accommodation between members of
the Group;


 


(iii)                  loans to and other credit or financial accommodation to or for the
benefit of Project Companies in an aggregate amount in respect of the Group not
materially greater than the amount outstanding as at the date of this
Agreement;


 


(iv)                 any loan, credit or other financial accommodation involving
transactions with or for the benefit of employees, officers or directors of
Group Companies relating to the provision of motor vehicles;


 


(v)                    any other loan, credit or other financial accommodation provided the
aggregate amount of such transactions at any time does not exceed $25,000,000;


 


(vi)                 any
loan, credit, other financial accommodation, guarantee or indemnity to
facilitate the Disposal of the Oil, Gas & Petrochemical Division;


 


(vii)              prior
to the Trigger Date, any loan, credit, other financial accommodation, guarantee
or indemnity to facilitate Disposals permitted under paragraph (b) of Clause
22.4 (Disposals) up to an
aggregate amount not exceeding $150,000,000;


 


(viii)           at any
time on and after the Trigger Date, any loan, credit, other financial
accommodation, guarantee or indemnity to facilitate Disposals permitted under
paragraph (b) of Clause 22.4 (Disposals);
and


 


(ix)                   guarantees or indemnities in respect of the obligations or
liabilities of other members of the Group (where the relevant obligation or
liability of such other member of the Group is permitted under this Agreement).


 


22.11               Material Subsidiaries


ABB shall
maintain 100 per cent. (direct or indirect) ownership of all Material
Subsidiaries subject to any Disposals permitted under paragraph (b) of Clause
22.4 (Disposals) and save as
permitted under Clauses 22.6 (Mergers and
Acquisitions) and 23.7 (Insolvency
Proceedings).


 


22.12               Obligor Coverage


ABB shall
ensure that if External Debt is incurred at any time on or after the date of
this Agreement by a Group Company that is not an Obligor in circumstances where
the proceeds of such External Debt are not on-lent to the Group through an
Obligor or where the External Debt is incurred pursuant to a guarantee given by
a Group Company that is not an Obligor, then, in each case, the Group Company
that has incurred such External Debt or the Group Company that has on-lent such
External Debt into the Group shall by


 


60

















 


the date
falling no later than the date such External Debt is incurred, accede to this
Agreement as an Additional Obligor pursuant to Clause 25 (Changes to the Obligors).


 


23.                           EVENTS OF
DEFAULT


 


Each of the
events or circumstances set out in Clauses 23.1 (Non-payment) to 23.12 (Material
Adverse Effect) inclusive is an Event of Default.


 


23.1                     Non-payment


An Obligor
does not pay on the due date any amount payable pursuant to a Finance Document
at the place, and in the currency, in which it is expressed to be payable
unless:


 


(a)                                      payment is made within 3 Business Days of its due date; and


 


(b)                                     its failure to pay is due solely to administrative error or
technical delays in the transmission of funds.


 


23.2                     Financial Covenants


Any
requirement of Clause 21 (Financial
Covenants) is not satisfied.


 


23.3                     Other obligations


An Obligor
does not comply with any provision of the Finance Documents (other than those
referred to in Clause 23.1 (Non-payment)) and, if the failure to
comply is capable of remedy, it is not remedied within 15 Business Days of the
Facility Agent giving notice to ABB or ABB becoming aware of the failure to
comply.


 


23.4                     Misrepresentation


Any
representation or statement made or deemed (by virtue of Clause 19.19  (Repetition)) to be made by ABB or any
other Obligor in this Agreement is or proves to have been incorrect or
misleading in any respect when made or deemed to be made and, where the
circumstances making such representation or statement incorrect or misleading
are capable of being altered so that such representation or statement is
correct, such circumstances are not so altered within 15 Business Days of the
Facility Agent giving notice to ABB of such representation or statement being
incorrect provided that no Event
of Default shall occur under this Clause 23.4 by reason of the representation
set out in Clause 19.18(a) or 19.18(b) (Dutch
Borrower Regulatory Compliance) being untrue (but without prejudice
to the rights of the Finance Parties under this Agreement other than under this
Clause 23.4 or under applicable law and without prejudice to any other Event of
Default which may occur by reason of any representation set out in Clause
19.18(a) or 19.18(b) (Dutch Borrower Regulatory
Compliance) being untrue in any material respect or otherwise by
reason of a Lender not being a PMP).


 


23.5                     Cross default


(a)                                      Any Indebtedness of all or any of the Group Companies is not paid
when due nor within any originally applicable grace period.


 


(b)                                     Any Indebtedness of all or any of the Group Companies has (i) become
capable of being declared and is declared to be or (ii) otherwise becomes due
and payable, in any case, prior to its specified maturity as a result of a
default or an event of default (however described).


 


61

















 


(c)                                      Any commitment for any Indebtedness of all or any of the Group
Companies is cancelled or suspended by a creditor of all or any of the Group
Companies as a result of a default or an event of default (however described).


 


(d)                                     Any creditor of all or any of the Group Companies becomes entitled
to declare any Indebtedness of all or any of the Group Companies due and
payable prior to its specified maturity as a result of a default or an event of
default (however described).


 


(e)                                      No Event of Default will occur under this Clause 23.5 if (1) the
Indebtedness falling within paragraphs (a) to (d) is Project Finance
Indebtedness or intra-Group Indebtedness or (2) the aggregate amount of Indebtedness
or commitment for Indebtedness falling within paragraphs (a) to (d) (excluding
any described in (1) above) above is less than $50,000,000.


 


23.6                     Insolvency


(a)                                      Any Obligor or any Material Subsidiary is unable or admits in
writing an inability to pay its debts as they fall due, suspends making
payments on any of its debts or, by reason of actual or anticipated financial
difficulties, commences negotiations with one or more of its creditors with a
view to rescheduling any of its indebtedness.


 


(b)                                     The value of the assets of any Obligor is less than its liabilities
(taking into account contingent and prospective liabilities).


 


(c)                                      A moratorium is declared in respect of any indebtedness of any
Obligor or any Material Subsidiary.


 


(d)                                     This Clause 23.6 shall not apply in respect of Combustion
Engineering Inc.


 


23.7                     Insolvency proceedings


Any corporate
action, legal proceedings or other procedure or step is taken in relation to:


 


(a)                                      the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any Obligor or any Material
Subsidiary (excluding Combustion Engineering Inc) other than a solvent
liquidation or reorganisation of any Material Subsidiary;


 


(b)                                     a composition, assignment or arrangement with any creditor of any
Obligor or any Material Subsidiary;


 


(c)                                      the appointment of a liquidator (other than (i) a winding up
petition which is frivolous or vexatious and which is, in any event, discharged
within 30 days of its presentation or (ii) in respect of a solvent liquidation
of any Group Company (other than an Obligor)), receiver, administrator,
administrative receiver, compulsory manager or other similar officer in respect
of any Obligor or Material Subsidiary or any of its assets (having an aggregate
value of at least $50,000,000); or


 


62

















 


(d)                                     enforcement of any Security over any assets (having an aggregate
value of at least $50,000,000) of any Material Subsidiary or Obligor by reason
of a default or event of default (howsoever described) occurring under the
relevant agreement relating to the Indebtedness secured by such Security,


 


or any
analogous procedure or step is taken in any jurisdiction provided that this Clause 23.7 shall not
apply in respect of Combustion Engineering Inc.


 


23.8                     Repudiation


ABB or an
Obligor repudiates a Finance Document or evidences in writing an intention to
repudiate a Finance Document.


 


23.9                     Unlawfulness


Subject to
Clause 8.2 (Borrower Illegality),
it is or becomes unlawful for an Obligor to perform any of its material
obligations under the Finance Documents.


 


23.10               Cessation of business


The Group,
taken as a whole, ceases or threatens to cease to carry out its core business.


 


23.11               Material Audit Qualification


The Auditors’
report in respect of the annual consolidated financial statements of ABB
contains a qualification under US generally accepted audit standards, excluding
any reference to the asbestos related issues of Combustion Engineering Inc,
which could reasonably be expected to give rise to a Material Adverse Effect.


 


23.12               Material Adverse Effect


Any event or
circumstance occurs which has, or is reasonably likely to have, a Material
Adverse Effect.


 


23.13               Acceleration


On and at any
time after the occurrence of an Event of Default which is continuing the
Facility Agent may, and shall if so directed by the Majority Lenders, by notice
to ABB:


 


(a)                                      cancel the Total Commitments whereupon they shall immediately be
cancelled;


 


(b)                                     declare that all or part of the Advances, 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)                                      declare that all or part of the Advances be payable on demand,
whereupon they shall immediately become payable on demand by the Facility Agent
on the instructions of the Majority Lenders; and/or


 


(d)                                     exercise any or all of its rights, authorities, remedies and powers
under or pursuant to any of the Finance Documents and in accordance with their
terms.


 


63

















 


SECTION 9


CHANGES TO PARTIES


 


24.                           CHANGES
TO THE LENDERS


 


24.1                     Assignments and transfers by
the Lenders


Subject to
this Clause 24 a Lender (the “Existing Lender”) may:


 


(a)                                      assign any of its rights; or


 


(b)                                     transfer by novation any of its rights and obligations,


 


to another
bank (the “New Lender”).


 


24.2                     Conditions of assignment or
transfer


(a)                                      The consent of ABB is required for an assignment or transfer by a
Lender, unless the assignment or transfer is to another Lender or an Affiliate
of a Lender or unless an Event of Default has occurred and is continuing.


 


(b)                                     The consent of ABB to an assignment or transfer must not to be
unreasonably withheld or delayed.  ABB
will be deemed to have given its consent within 10 Business Days of receipt of
a request for such consent unless expressly refused by ABB within that time.


 


(c)                                      Nothing in this Agreement shall prevent any Lender from assigning or
pledging all or any part of its rights or interests under this Agreement to any
central bank or any supranational bank as security for its borrowings from that
central bank or supranational bank, provided that such assignment or pledge
does not involve a release of such Lender from any of its obligations under
this Agreement.


 


(d)                                     An assignment or transfer shall be in respect of a Commitment of at
least $10,000,000 or, if less, the whole of the Commitment of the relevant
assignor or transferor.


 


(e)                                      An assignment will only be effective on:


 


(i)                        receipt by the Facility Agent of written confirmation from the New
Lender (in form and substance satisfactory to the Facility Agent) that the New
Lender will assume the same obligations to the other Finance Parties and the
Obligors as it would have been under if it was an Original Lender and that the
New Lender is a Qualifying Lender; and


 


(ii)                     performance by the Facility Agent of all “know your customer” or
other checks relating to any person that it is required to carry out in
relation to such assignment to a New Lender, the completion of which the
Facility Agent shall promptly notify to the Existing Lender and the New Lender.


 


(f)                                        A transfer will only be effective if the procedure set out in Clause
24.5 (Procedure
for transfer) is complied with and, unless an Event of Default has
occurred and is continuing, if the New Lender is a Qualifying Lender.


 


(g)                                     If:


 


64

















 


(i)                        a Lender assigns or transfers any of its rights or obligations under
the Finance Documents or changes its Facility Office; and


 


(ii)                     as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged, or at such date it is
reasonably foreseeable that an Obligor would be obliged, to make a payment to
the New Lender or Lender acting through its new Facility Office under Clause 13
(Tax
gross-up and indemnities) or Clause 14 (Increased Costs),


 


then the New
Lender or Lender acting through its new Facility Office is only entitled to
receive payment under those Clauses to the same extent as the Existing Lender
or Lender acting through its previous Facility Office would have been if the
assignment, transfer or change had not occurred.


 


(h)                                     For so long as it is a requirement under Dutch law at the time of an
assignment or transfer by way of novation that the New Lender qualifies as a
PMP, a Lender may only assign or transfer by way of novation all or any of its
rights, benefits and obligations hereunder to a New Lender if and to the extent
that such new Lender qualifies as a PMP.


 


(i)                                         For so long as it is a requirement of Dutch law that each Lender is
a PMP and that the Dutch Borrower must verify the PMP status of a New Lender, a
proposed New Lender which is not a Verifiable PMP shall provide the Dutch
Borrower, through the Facility Agent, with information in respect of itself
reasonably requested by the Dutch Borrower with a view to enabling the Dutch
Borrower to verify its PMP status at least ten Business Days prior to the
proposed Transfer Date or the proposed date of assignment in relation to any
assignment or transfer pursuant to which it would become a New Lender
hereunder.


 


24.3                     Assignment or transfer fee


The New Lender
shall, on the date upon which an assignment or transfer takes effect, pay to
the Facility Agent (for its own account) a fee of $1,500.


 


24.4                     Limitation of responsibility
of Existing Lenders


(a)                                      Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender for:


 


(i)                        the legality, validity, effectiveness, adequacy or enforceability of
the Finance Documents or any other documents;


 


(ii)                     the financial condition of ABB or any Obligor;


 


(iii)                  the performance and observance by ABB or any Obligor of its
obligations under the Finance Documents or any other documents; or


 


(iv)                 the
accuracy of any statements (whether written or oral) made in or in connection
with any Finance Document or any other document,


 


and any
representations or warranties implied by law are excluded.


 


65

















 


(b)                                     Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:


 


(i)                        has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and affairs of ABB and
each Obligor and its related entities in connection with its participation in
this Agreement and has not relied exclusively on any information provided to it
by the Existing Lender in connection with any Finance Document; and


 


(ii)                     will continue to make its own independent appraisal of the
creditworthiness of ABB and each Obligor and its related entities whilst any
amount is or may be outstanding under the Finance Documents or any Commitment
is in force.


 


(c)                                      Nothing in any Finance Document obliges an Existing Lender to:


 


(i)                        accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 24; or


 


(ii)                     support any losses directly or indirectly incurred by the New Lender
by reason of the non-performance by ABB or any Obligor of its obligations under
the Finance Documents or otherwise.


 


24.5                     Procedure for transfer


(a)                                      Subject to the conditions set out in Clause 24.2 (Conditions
of assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Facility Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing Lender and the
New Lender.  The Facility Agent shall,
as soon as reasonably practicable after receipt by it of a duly completed
Transfer Certificate appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this Agreement, execute
that Transfer Certificate.


 


(b)                                     The Facility Agent shall only be obliged to execute a Transfer
Certificate delivered to it by the Existing Lender and the New Lender upon its
completion of all “know your customer” or other checks relating to any person that
it is required to carry out in relation to the transfer to such New Lender.


 


(c)                                      On the Transfer Date:


 


(i)                        to the extent that in the Transfer Certificate the Existing Lender
seeks to transfer by novation its rights and obligations under the Finance Documents
each of ABB, the Obligors and the Existing Lender shall be released from
further obligations towards one another under the Finance Documents and their
respective rights against one another shall be cancelled (being the “Discharged
Rights and Obligations”);


 


(ii)                     each of ABB, the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as ABB, that 


 


66

















 


Obligor and the New Lender have assumed and/or
acquired the same in place of ABB, that Obligor and the Existing Lender;


 


(iii)                  the Facility Agent, the Mandated Lead Arrangers, the New Lender and
other Lenders shall acquire the same rights and assume the same obligations
between themselves as they would have acquired and assumed had the New Lender
been an Original Lender with the rights and/or obligations acquired or assumed
by it as a result of the transfer and to that extent the Facility Agent, the
Mandated Lead Arrangers and the Existing Lender shall each be released from
further obligations to each other under this Agreement; and


 


(iv)                 the
New Lender shall become a Party as a “Lender”.


 


24.6                     Disclosure of information


Any Lender may
disclose to any of its Affiliates and any other person:


 


(a)                                      to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and obligations under
this Agreement;


 


(b)                                     with (or through) whom that Lender enters into (or may potentially
enter into) any sub-participation in relation to, or any other transaction
under which payments are to be made by reference to, this Agreement or any
Obligor; or


 


(c)                                      to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,


 


any
information about ABB, any Obligor, the Group and the Finance Documents as that
Lender shall consider appropriate if, in relation to paragraphs (a) and (b)
above, the person to whom the information is to be given has entered into a
confidentiality undertaking unless such person is any central bank or
supranational bank in which case no confidentiality undertaking will be
required.


 


Notwithstanding
any of the provisions of the Finance Documents, the Obligors and the Finance
Parties hereby agree that each Party and each employee, representative or other
agent of each Party may disclose to any and all persons, without limitation of
any kind, the “tax structure” and “tax treatment” (in each case within the
meaning of the U.S. Treasury Regulation Section 1.6011-4) of the Facility
and any materials of any kind (including opinions or other tax analyses) that
are provided to any of the foregoing relating to such tax structure and tax
treatment.


 


25.                           CHANGES
TO THE OBLIGORS


 


25.1                     Assignments and transfer by
Obligors


Neither ABB
nor any Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.


 


25.2                     Additional Borrowers


(a)                                      Subject to compliance with the provisions of paragraph (c) and (d)
of Clause 20.8 (Know Your Customer Checks),
ABB may request by written notice that


 


67

















 


any of its wholly-owned Subsidiaries become an
Additional Borrower.  That Subsidiary
shall become an Additional Borrower if:


 


(i)                        the Subsidiary is incorporated in an Agreed Jurisdiction or all the
Lenders approve the addition of that Subsidiary;


 


(ii)                     ABB delivers to the Facility Agent a duly completed and executed
Accession Letter;


 


(iii)                  ABB confirms that no Default is continuing or would occur as a
result of that Subsidiary becoming an Additional Borrower;


 


(iv)                 the
Facility Agent has received all of the documents and other evidence listed in
Part II of Schedule 2 (Additional Obligor Conditions Precedent)
in relation to that Additional Borrower, each in form and substance reasonably
satisfactory to the Facility Agent; and


 


(v)                    (unless it would result in the contravention of any applicable law,
taking into account the jurisdiction of incorporation of the relevant
Subsidiary and subject to sub-paragraph (b) of Clause 25.4 (Additional
Guarantors)), the Subsidiary, prior to or at the same time as it
becomes an Additional Borrower, becomes an Additional Guarantor in accordance
with Clause 25.4 (Additional Guarantors).


 


(b)                                     The Facility Agent shall notify ABB and the Lenders promptly upon
receiving (in form and substance reasonably satisfactory to it) all the
documents and other evidence listed in Part II of Schedule 2 (Additional
Obligor Conditions Precedent).


 


25.3                     Resignation of a Borrower


(a)                                      ABB may request that a Borrower ceases to be a Borrower by
delivering to the Facility Agent a Resignation Letter.


 


(b)                                     The Facility Agent shall accept a Resignation Letter and notify ABB
and the Lenders of its acceptance if:


 


(i)                        the Majority Lenders approve the resignation of that Borrower;


 


(ii)                     no Default would result from the acceptance of the Resignation
Letter (and ABB has confirmed this to be the case); and


 


(iii)                  the relevant Borrower is under no actual or contingent obligations
under any Finance Documents,


 


whereupon that
company shall cease to be a Borrower and shall have no further rights or
obligations under the Finance Documents.


 


25.4                     Additional Guarantors


(a)                                      Subject to compliance with the provisions of paragraphs (c) and (d)
of Clause 20.8 (Know Your Customer Checks),
ABB may request that any of its wholly-


 


68

















 


owned Subsidiaries become an Additional
Guarantor.  That Subsidiary shall become
an Additional Guarantor if:


 


(i)                        the Subsidiary is incorporated in an Agreed Jurisdiction, such
accession is pursuant to Clause 22.12 (Obligor
Coverage) or all the Lenders approve the addition of that
Subsidiary;


 


(ii)                     ABB delivers to the Facility Agent a duly completed and executed
Accession Letter;


 


(iii)                  ABB confirms that no Default is continuing or would occur as a
result of that Subsidiary becoming an Additional Guarantor; and


 


(iv)                 the
Facility Agent has received all of the documents and other evidence listed in
Part II of Schedule 2 (Additional Obligor Conditions Precedent)
in relation to that Additional Guarantor, each in form and substance reasonably
satisfactory to the Facility Agent.


 


(b)                                     If legal counsel in the jurisdiction of incorporation of the
relevant Subsidiary so advise, ABB and the Lenders shall enter into
negotiations with a view to agreeing such amendments to Clause 18 (Guarantee
and Indemnity) as may be necessary to enable the Subsidiary to
become an Additional Guarantor without contravening any applicable laws.


 


(c)                                      The Facility Agent shall notify ABB and the Lenders promptly upon
receiving (in form and substance reasonably satisfactory to it) all the
documents and other evidence listed in Part II of Schedule 2 (Additional
Obligor Conditions Precedent).


 


25.5                     Repetition of Representation


Delivery of an
Accession Letter constitutes confirmation by the relevant Subsidiary that the
representations and warranties in Clause 19.5 (Validity and Admissibility in Evidence)
and the representations and warranties deemed to be repeated pursuant to Clause
19.19 (Repetition)
are true and correct in relation to it as at the date of delivery as if made by
reference to the facts and circumstances then existing.


 


25.6                     Resignation of a Guarantor


(a)                                      ABB may request that a Guarantor ceases to be a Guarantor by
delivering to the Facility Agent a Resignation Letter.


 


(b)                                     Subject (and without prejudice) to paragraph (c) below, the Facility
Agent shall accept a Resignation Letter and notify ABB and the Lenders of its
acceptance if:


 


(i)                        no Default would result from the acceptance of the Resignation
Letter (and ABB has confirmed this is the case); and


 


(ii)                     in the case of an Original Guarantor, all the Lenders have consented
to ABB’s request.


 


69

















 


SECTION 10


THE FINANCE PARTIES


 


26.                           ROLE OF THE FACILITY AGENT AND THE MANDATED LEAD ARRANGERS


 


26.1                     Appointment of the Facility
Agent


(a)                                      Each of the Mandated Lead Arrangers and the Lenders appoints the
Facility Agent to act as its agent under and in connection with the Finance
Documents.


 


(b)                                     Each of the Mandated Lead Arrangers and the Lenders authorises the
Facility Agent to exercise the rights, powers, authorities and discretions
specifically given to the Facility Agent under or in connection with the
Finance Documents together with any other incidental rights, powers,
authorities and discretions.


 


(c)                                      The Facility Agent shall, unless ABB agrees otherwise, act out of an
office in London.


 


26.2                     Duties of the Facility Agent


(a)                                      The Facility Agent shall promptly forward to a Party the original or
a copy of any document which is delivered to the Facility Agent for that Party
by any other Party.


 


(b)                                     If the Facility Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance described is
a Default, it shall promptly notify the Lenders.


 


(c)                                      The Facility Agent shall promptly notify the Lenders of any Default
arising under Clause 23.1 (Non-payment).


 


(d)                                     The Facility Agent’s duties under the Finance Documents are solely
mechanical and administrative in nature.


 


26.3                     Role of the Mandated Lead
Arrangers


Except as
specifically provided in the Finance Documents, the Mandated Lead Arrangers
have no obligations of any kind to any other Party under or in connection with
any Finance Document.


 


26.4                     No fiduciary duties


(a)                                      Nothing in this Agreement constitutes the Facility Agent or a
Mandated Lead Arranger as a trustee or fiduciary of any other person.


 


(b)                                     Neither the Facility Agent nor any of the Mandated Lead Arrangers
shall be bound to account to any Lender for any sum or the profit element of
any sum received by it for its own account.


 


26.5                     Business with the Group


The Facility
Agent and each Mandated Lead Arranger may accept deposits from, lend money to
and generally engage in any kind of banking or other business with any of the
Group Companies.


 


70

















 


26.6                     Rights and discretions of the
Facility Agent


(a)                                      The Facility Agent may rely on:


 


(i)                        any representation, notice or document believed by it to be genuine,
correct and appropriately authorised; and


 


(ii)                     any statement made by a director, authorised signatory or employee
of any person regarding any matters which may reasonably be assumed to be
within his knowledge or within his power to verify.


 


(b)                                     The Facility Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:


 


(i)                        no Default has occurred (unless it has actual knowledge of a Default
arising under Clause 23.1 (Non-payment)); and


 


(ii)                     any right, power, authority or discretion vested in any Party or the
Majority Lenders has not been exercised.


 


(c)                                      The Facility Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other experts.


 


(d)                                     The Facility Agent may act in relation to the Finance Documents
through its personnel and agents.


 


26.7                     Majority Lenders’ instructions


(a)                                      Unless a contrary indication appears in a Finance Document, the
Facility Agent shall (a) act in accordance with any instructions given to it by
the Majority Lenders (or, if so instructed by the Majority Lenders, refrain
from acting or exercising any right, power, authority or discretion vested in
it as Facility Agent) and (b) not be liable for any act (or omission) if it
acts (or refrains from taking any action) in accordance with such an
instruction of the Majority Lenders.


 


(b)                                     Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the Finance
Parties.


 


(c)                                      The Facility Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the Lenders) until it
has received such security as it may require for any cost, loss or liability
(together with any associated VAT) which it may incur in complying with the
instructions.


 


(d)                                     In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Facility Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.


 


(e)                                      The Facility Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender’s consent) in any legal or arbitration
proceedings relating to any Finance Document.


 


71

















 


26.8                     Responsibility for
documentation


Neither the
Facility Agent nor any of the Mandated Lead Arrangers:


 


(a)                                      is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Facility Agent, a
Mandated Lead Arranger, ABB, any Obligor or any other person given in or in
connection with any Finance Document or the Information Memorandum; or


 


(b)                                     is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or any other agreement, arrangement
or document entered into, made or executed in anticipation of or in connection
with any Finance Document.


 


26.9                     Exclusion of liability


(a)                                      Without limiting paragraph (b) below, the Facility Agent will not be
liable for any action taken by it under or in connection with any Finance
Document, unless directly caused by its negligence, wilful default or wilful
misconduct.


 


(b)                                     No Party may take any proceedings against any officer, employee or
agent of the Facility Agent in respect of any claim it might have against the
Facility Agent or in respect of any act or omission of any kind by that
officer, employee or agent in relation to any Finance Document and any officer,
employee or agent of the Facility Agent may rely on this Clause.


 


(c)                                      The Facility Agent will not (absent negligence, wilful default or
wilful misconduct directly giving rise to such liability) be liable for any
delay (or any related consequences) in crediting an account with an amount
required under the Finance Documents to be paid by the Facility Agent if the
Facility Agent has taken all necessary steps as soon as reasonably practicable
to comply with the regulations or operating procedures of any recognised
clearing or settlement system used by the Facility Agent for that purpose.


 


(d)                                     Nothing in this Agreement shall oblige the Facility Agent or the
Mandated Lead Arranger to carry out any “know your customer” or other checks in
relation to any person on behalf of any Lender and each Lender confirms to the
Facility Agent and the Mandated Lead Arrangers that it is solely responsible
for any such checks it is required to carry out and that it may not rely on any
statement in relation to such checks made by the Facility Agent or the Mandated
Lead Arrangers.


 


26.10               Lenders’ indemnity to the
Facility Agent


The Lenders
shall (in proportion to their Commitments or, if the Total Commitments are then
zero, to their Commitments immediately prior to their reduction to zero)
severally indemnify the Facility Agent, within three Business Days of demand,
against any cost, loss or liability incurred by the Facility Agent (otherwise
than by reason of the Facility Agent’s negligence or wilful misconduct) in
acting as Facility Agent under the Finance Documents (unless the Facility Agent
has been reimbursed by ABB or the Obligors pursuant to a Finance Document).


 


72

















 


26.11               Resignation of the Facility
Agent


(a)                                      The Facility Agent may resign and appoint one of its Affiliates as
successor by giving notice to the Lenders and ABB provided that such successor
shall act out of an office in London.


 


(b)                                     Alternatively the Facility Agent may resign by giving notice to the Lenders
and ABB, in which case the Majority Lenders may appoint a successor Facility
Agent which will act out of an office in London.


 


(c)                                      If the Majority Lenders have not appointed a successor Facility
Agent in accordance with paragraph (b) above within 30 days after notice of
resignation was given, the resigning Facility Agent may appoint a successor
Facility Agent which will act out of an office in London.


 


(d)                                     A successor Facility Agent may only be appointed with the prior
consent of ABB (such consent not to be unreasonably withheld or delayed).


 


(e)                                      The retiring Facility Agent shall, at its own cost, make available
to the successor Facility Agent such documents and records and provide such
assistance as the successor Facility Agent may reasonably request for the
purposes of performing its functions as Facility Agent under the Finance
Documents.


 


(f)                                        Such Facility Agent’s resignation notice shall only take effect upon
the appointment of a successor as contemplated in paragraphs (b) and (c) above.


 


(g)                                     Upon the appointment of a successor, the retiring Facility Agent
shall be discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause 26.  Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves as they would
have had if such successor had been an original Party.


 


(h)                                     After consultation with ABB, the Majority Lenders may, by notice to
the Facility Agent, require it to resign in accordance with paragraph (b)
above.  In this event, the Facility
Agent shall resign in accordance with paragraph (b) above.


 


26.12               Confidentiality


(a)                                      In acting as agent for the Finance Parties, the Facility Agent shall
be regarded as acting through its agency division which shall be treated as a
separate entity from any other of its divisions or departments.


 


(b)                                     If information is received by another division or department of the
Facility Agent, it may be treated as confidential to that division or
department and the Facility Agent shall not be deemed to have notice of it.


 


(c)                                      Notwithstanding any other provision of any Finance Document to the
contrary, neither the Facility Agent nor any Mandated Lead Arranger is obliged
to disclose to any other person (i) any confidential information or (ii) any
other 


 


73

















 


information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach of a fiduciary
duty.


 


26.13               Relationship with the Lenders


(a)                                      The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility Office unless it
has received not less than 5 Business Days’ prior notice from that Lender to
the contrary in accordance with the terms of this Agreement.


 


(b)                                     Each Lender shall supply the Facility Agent with any information
required by the Facility Agent in order to calculate the Mandatory Costs.


 


26.14               Credit appraisal by the
Lenders


Without
affecting the responsibility of each of ABB and the Obligors for information
supplied by it or on its behalf in connection with any Finance Document, each
Lender confirms to the Facility Agent and each Mandated Lead Arranger that it
has been, and will continue to be, solely responsible for making its own
independent appraisal and investigation of all risks arising under or in
connection with any Finance Document including but not limited to:


 


(a)                                      the financial condition, status and nature of each Group Company;


 


(b)                                     the legality, validity, effectiveness, adequacy or enforceability of
any Finance Document and any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance Document;


 


(c)                                      whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under or in
connection with any Finance Document, the transactions contemplated by the
Finance Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any Finance
Document; and


 


(d)                                     the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Facility Agent, any other
Party or by any other person under or in connection with any Finance Document,
a Mandated Lead Arranger the transactions contemplated by the Finance Documents
or any other agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance Document.


 


26.15               Reference Banks


If a Reference
Bank (or, if a Reference Bank is not a Lender, the Lender of which it is an
Affiliate) ceases to be a Lender, the Facility Agent shall (in consultation
with ABB) appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.


 


74

















 


27.                           CONDUCT OF BUSINESS BY THE FINANCE PARTIES


 


No provision
of this Agreement will:


 


(a)                                      interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;


 


(b)                                     oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and manner of any
claim; or


 


(c)                                      oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.


 


28.                           SHARING
AMONG THE LENDERS


 


28.1                     Payments to Lenders


If a Lender (a
“Recovering
Lender”) receives or recovers any amount from ABB or an Obligor
other than in accordance with Clause 29 (Payment mechanics) and applies that amount
to a payment due under the Finance Documents then:


 


(a)                                      the Recovering Lender shall, within 3 Business Days, notify details
of the receipt or recovery, to the Facility Agent;


 


(b)                                     the Facility Agent shall determine whether the receipt or recovery
is in excess of the amount the Recovering Lender would have been paid had the
receipt or recovery been received or made by the Facility Agent and distributed
in accordance with Clause 29 (Payment mechanics), without taking account
of any Tax which would be imposed on the Facility Agent in relation to the
receipt, recovery or distribution; and


 


(c)                                      the Recovering Lender shall, within three Business Days of demand by
the Facility Agent, pay to the Facility Agent an amount (the “Sharing
Payment”) equal to such receipt or recovery less any amount which
the Facility Agent determines may be retained by the Recovering Lender as its
share of any payment to be made, in accordance with Clause 29.5 (Partial
payments).


 


28.2                     Redistribution of payments


The Facility
Agent shall treat the Sharing Payment as if it had been paid by ABB or the
relevant Obligor (as the case may be) and distribute it between the Finance
Parties (other than the Recovering Lender) in accordance with Clause 29.5 (Partial
payments).


 


28.3                     Recovering Lender’s rights


(a)                                      On a distribution by the Facility Agent under Clause 28.2 (Redistribution
of payments), the Recovering Lender will be subrogated to the rights
of the Finance Parties which have shared in the redistribution.


 


(b)                                     If and to the extent that the Recovering Lender is not able to rely
on its rights under paragraph (a) above, ABB or the relevant Obligor (as the
case may be) shall be liable to the Recovering Lender for a debt equal to the
Sharing Payment which is immediately due and payable.


 


75

















 


28.4                     Reversal of redistribution


If any part of
the Sharing Payment received or recovered by a Recovering Lender becomes
repayable and is repaid by that Recovering Lender, then:


 


(a)                                      each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 28.2 (Redistribution of payments) shall, upon
request of the Facility Agent, pay to the Facility Agent for the account of
that Recovering Lender an amount equal to its share of the Sharing Payment
(together with an amount as is necessary to reimburse that Recovering Lender
for its proportion of any interest on the Sharing Payment which that Recovering
Lender is required to pay); and


 


(b)                                     that Recovering Lender’s rights of subrogation in respect of any
reimbursement shall be cancelled and ABB or the relevant Obligor (as the case
may be) will be liable to the reimbursing Lender for the amount so reimbursed.


 


28.5                     Exceptions


(a)                                      This Clause 28 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this Clause, have a
valid and enforceable claim against ABB or the relevant Obligor (as the case
may be).


 


(b)                                     A Recovering Lender is not obliged to share with any other Lender
any amount which the Recovering Lender has received or recovered as a result of
taking legal or arbitration proceedings, if:


 


(i)                        it notified the other Lenders of the legal or arbitration proceedings;
and


 


(ii)                     the other Lender had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably practicable
having received notice or did not take separate legal or arbitration
proceedings.


 


76

















 


SECTION 11


ADMINISTRATION


 


29.                           PAYMENT
MECHANICS


 


29.1                     Payments to the Facility Agent


(a)                                      On each date on which ABB, an Obligor or a Lender is required to
make a payment under a Finance Document, ABB, such Obligor or, as the case may
be, such Lender shall make the same available to the Facility Agent (unless a
contrary indication appears in a Finance Document) for value on the due date at
the time and in such funds specified by the Facility Agent as being customary
at the time for settlement of transactions in the relevant currency in the
place of payment.


 


(b)                                     Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to Euro, in a principal
financial centre in a Participating Member State or London) with such bank as
the Facility Agent specifies.


 


29.2                     Distributions by the Facility
Agent


Each payment
received by the Facility Agent under the Finance Documents for another Party
shall, subject to Clause 29.3 (Distributions to the Obligors) and Clause
29.4 (Clawback)
be made available by the Facility Agent as soon as practicable after receipt to
the Party entitled to receive payment in accordance with this Agreement (in the
case of a Lender, for the account of its Facility Office), to such account as
that Party may notify to the Facility Agent by not less than 5 Business Days’
notice with a bank in the principal financial centre of the country of that
currency (or, in relation to Euro, in the principal financial centre of a
Participating Member State, Stockholm or London).


 


29.3                     Distributions to the Obligors


The Facility
Agent may (with the consent of ABB or the relevant Obligor (as the case may be)
or in accordance with Clause 30 (Set-off)) apply any amount received by it
for ABB or that Obligor in or towards payment (on the date and in the currency
and funds of receipt) of any amount due from ABB or that Obligor (as the case
may be) under the Finance Documents or in or towards purchase of any amount of any
currency to be so applied.


 


29.4                     Clawback


(a)                                      Where a sum is to be paid to the Facility Agent under the Finance
Documents for another Party, the Facility Agent is not obliged to pay that sum
to that other Party (or to enter into or perform any related exchange contract)
until it has been able to establish to its absolute satisfaction that it has
actually received that sum (and the Facility Agent shall make such due enquiry
as a diligent agent would make in so establishing).


 


(b)                                     If the Facility Agent pays an amount to another Party and it proves
to be the case that the Facility Agent had not actually received that amount,
then the Party to whom that amount (or the proceeds of any related exchange
contract) was paid by the Facility Agent shall on demand refund the same to the
Facility


 


77

















 


Agent together with interest on that amount from the
date of payment to the date of receipt by the Facility Agent, calculated by the
Facility Agent to reflect its cost of funds.


 


(c)                                      In the event that a Lender fails to make its participation in an
Advance available to the Facility Agent (as defined in Clause 29.1 (Payments to
the Facility Agent)) in accordance with the terms of this Agreement,
such Lender hereby indemnifies the Facility Agent on demand against all costs,
losses and expenses that the Facility Agent may incur as a result of such
failure (including, without limitation, where the Facility Agent, at its sole
option, makes arrangements to make available to the relevant Borrower an amount
equal to said participation).


 


(d)                                     For the purposes of paragraph (c) of this Clause 29.4, if a Lender
makes its participation available to the Facility Agent after 3.00 p.m. (London
time) on the due date, such participation shall be deemed to have been made
available on the Business Day immediately succeeding the said due date.


 


29.5                     Partial payments


(a)                                      If the Facility Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by ABB or the Obligors under the
Finance Documents, the Facility Agent shall apply that payment towards the
obligations of the Obligors 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 Facility Agent under the Finance Documents;


 


(ii)                     secondly, in or towards payment pro rata of any accrued interest or
commission due but unpaid under this Agreement;


 


(iii)                  thirdly, in or towards payment pro rata of any principal due but unpaid
under this Agreement; and


 


(iv)                 fourthly, in or towards payment pro rata of any other sum due but unpaid
under the Finance Documents.


 


(b)                                     The Facility Agent shall, if so directed by the Majority Lenders,
vary the order set out in paragraphs (a)(ii) to (iv) above.


 


(c)                                      Paragraphs (a) and (b) above will override any appropriation made by
ABB or any Obligor.


 


29.6                     No set-off by Obligors


All payments
to be made by ABB or the Obligors under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.


 


29.7                     Business Days


(a)                                      Any payment which is due to be made on a day that is not a Business
Day shall be made on the next Business Day in the same calendar month (if there
is one) or the preceding Business Day (if there is not).


 


78

















 


(b)                                     During any extension of the due date for payment of any principal or
an Unpaid Sum under this Agreement interest is payable on the principal at the
rate payable on the original due date.


 


29.8                     Currency of account


(a)                                      Subject to paragraphs (b) to (e) below, the Base Currency is the
currency of account and payment for any sum due from ABB or the Obligors under
any Finance Document.


 


(b)                                     A repayment of an Advance or Unpaid Sum or a part of an Advance or
Unpaid Sum shall be made in the currency in which that Advance or Unpaid Sum is
denominated on its due date.


 


(c)                                      Each payment of interest shall be made in the currency in which the
sum in respect of which the interest is payable was denominated when that
interest accrued.


 


(d)                                     Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.


 


(e)                                      Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.


 


29.9                     Change of currency


(a)                                      Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank of any
country as the lawful currency of that country, then:


 


(i)                        any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that country shall be
translated into, or paid in, the currency or currency unit of that country
designated by the Facility Agent (after consultation with ABB); and


 


(ii)                     any translation from one currency or currency unit to another shall
be at the official rate of exchange recognised by the central bank for the
conversion of that currency or currency unit into the other, rounded up or down
by the Facility Agent (acting reasonably).


 


(b)                                     If a change in any currency of a country occurs, this Agreement
will, to the extent the Facility Agent (acting reasonably and after
consultation with ABB) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the Relevant Interbank
Market and otherwise to reflect the change in currency.


 


30.                           SET-OFF


 


Without
prejudice to the rights at law of each Finance Party, while an Event of Default
is continuing, a Finance Party may set off any matured obligation due from ABB
or an Obligor under the Finance Documents (to the extent beneficially owned by
that Finance Party) against any matured obligation owed by that Finance Party
to ABB or that Obligor (as the case may be), regardless of the place of
payment, booking branch or currency of


 


79

















 


either
obligation.  If the obligations are in
different currencies, the Finance Party may convert either obligation at a
market rate of exchange in its usual course of business for the purpose of the
set-off.


 


31.                           NOTICES


 


31.1                     Communications in writing


(a)                                      Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be made by
fax or letter.


 


(b)                                     With the consent of the relevant Lender, the Facility Agent may
serve notices and other information on a Lender by way of electronic mail.


 


31.2                     Addresses


(a)                                      The address and fax number (and the department or officer, if any,
for whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection with
the Finance Documents is:


 


(i)                        in the case of the Original Obligors, that identified in Part II of
Schedule 1 (The Original Obligors), with a copy to ABB and ABB Capital
B.V., Zurich Branch;


 


(ii)                     in the case of ABB, that identified in Clause 31.2(b);


 


(iii)                  in the case of an Additional Obligor, that identified in the
Accession Letter relating to that Additional Obligor, with a copy to ABB and
ABB Capital B.V., Zurich Branch;


 


(iv)                 in
the case of ABB Capital B.V., Zurich Branch, that identified in Clause 31.2(b);


 


(v)                    in the case of each Lender, that notified in writing to the Facility
Agent on or prior to the date on which it becomes a Party; and


 


(vi)                 in
the case of the Facility Agent, that identified in Clause 31.2(b),


 


or any
substitute address, fax number or department or officer as the Party may notify
to the Facility Agent (or the Facility Agent may notify to the other Parties,
if a change is made by the Facility Agent) by not less than 5 Business Days’
notice.


 


(b)


 


(i)                        the Facility Agent:


 


Credit Suisse
First Boston


1 Cabot Square


Canary Wharf


London  E14 4LB


 


Attn:                      Loans Agency


Tel:                            +44 20 7888 8361


 


80

















 


Fax:                           + 44 20 7458 8204 / +44 20 7888 8398


 


(ii)                     ABB Capital B.V., Zurich Branch


 


Thurgauerstrasse
54


CH-8050 Zurich


Switzerland


 


Attn:                            Group Treasurer


Fax:                           +41 1 318 5252


 


Copy:                Legal Department


Fax:                           + 41 43 317 7992


 


(iii)                  ABB Ltd and ABB Asea Brown Boveri Ltd


 


Affolternstrasse
44


CH-8050 Zurich


Switzerland


 


Attn:                    Deputy CFO


Fax:                           + 41 43 317 3929


 


Copy:                Legal Department


Fax:                           + 41 43 317 7992


 


31.3                     Delivery


 


(a)                                      Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will only be
effective:


 


(i)                        if by way of fax, when received in legible form; or


 


(ii)                     if by way of letter, when it has been left at the relevant address
or 5 (in the case of domestic mail) or 10 (in the case of air mail) Business
Days after being deposited in the post postage prepaid in an envelope addressed
to it at that address; or


 


(iii)                  if by way of electronic mail, when received.


 


and, if a
particular department or officer is specified as part of its address details
provided under Clause 31.2 (Addresses), if addressed to that
department or officer, provided that if receipt is on a day that
is not a working day in the country of receipt or is at a time outside normal
business hours, such communication shall be effective on the next succeeding
working day.


 


(b)                                     Any communication or document to be made or delivered to the
Facility Agent will be effective only when actually received by the Facility
Agent and then only if it is expressly marked for the attention of the
department or officer identified in Clause 31.2 (Addresses) (or any
substitute department or officer as the Facility Agent shall specify for this
purpose).


 


81

















 


(c)                                      All notices from or to ABB or an Obligor shall be sent through the
Facility Agent.


 


31.4                     Notification of address and
fax number


Promptly upon
receipt of notification of an address, fax number or change of address or fax
number pursuant to Clause 31.2 (Addresses) or changing its own address or
fax number, the Facility Agent shall notify the other Parties.


 


31.5                     English language


(a)                                      Any notice given under or in connection with any Finance Document
must be in English.


 


(b)                                     All other documents provided under or in connection with any Finance
Document must be:


 


(i)                        in English; or


 


(ii)                     if not in English, and if so required by the Facility Agent,
accompanied by a certified English translation.


 


32.                           CALCULATIONS
AND CERTIFICATES


 


32.1                     Accounts


In any
litigation or arbitration proceedings arising out of or in connection with a
Finance Document, the entries made in the accounts maintained by a Finance
Party are prima
facie evidence of the matters to which they relate.


 


32.2                     Certificates and
Determinations


Except where
otherwise indicated, any certification or determination by a Finance Party of a
rate or amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.


 


32.3                     Day count convention


Any interest,
commission or fee accruing under a Finance Document will accrue from day to day
and is calculated on the basis of the actual number of days elapsed and a year
of 360 days or, in any case where the practice in the Relevant Interbank Market
differs, in accordance with that market practice.


 


33.                           PARTIAL
INVALIDITY


If, at any
time, any provision of the Finance Documents is or becomes illegal, invalid or
unenforceable in any respect under any law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction will in any way be affected or impaired.


 


34.                           REMEDIES
AND WAIVERS


No failure to
exercise, nor any delay in exercising, on the part of any Finance Party, any
right or remedy under the Finance Documents shall operate as a waiver, nor
shall any single or partial exercise of any right or remedy prevent any further
or other exercise or


 


82

















 


the exercise
of any other right or remedy.  The
rights and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.


 


35.                           AMENDMENTS
AND WAIVERS


 


35.1                     Required consents


(a)                                      Subject to Clause 35.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the Majority
Lenders and ABB and any such amendment or waiver will be binding on all
Parties.


 


(b)                                     The Facility Agent may effect (and is hereby so authorised by each
Finance Party), on behalf of any Finance Party, any amendment or waiver
permitted by this Clause.


 


35.2                     Exceptions


(a)                                      An amendment or waiver that has the effect of changing or which
relates to:


 


(i)                        the definition of “Majority Lenders” in Clause 1.1 (Definitions);


 


(ii)                     an extension to the date of payment of any amount under the Finance
Documents;


 


(iii)                  a reduction in the Margin or the amount of any payment of principal,
interest, fees or commission payable;


 


(iv)                 an
increase in or an extension of any Commitment;


 


(v)                    any provision which expressly requires the consent of all the
Lenders;


 


(vi)                 Clause
2.2 (Lenders’
rights and obligations), Clause 4.1 (Initial Conditions Precedent), Clause 24 (Changes to
the Lenders), Clause 25  (Changes to
the Obligors), Clause 28  (Sharing
among the Lenders) or this Clause 35;


 


(vii)              any
change to the Obligors other than in accordance with Clause 25  (Changes to the Obligors); or


 


(viii)             the
nature or scope of the property secured under the Agreed Form Pledges (if
executed) or the manner in which the proceeds of enforcement of such security
are distributed,


 


shall not be
made without the prior consent of all the Lenders.


 


(b)                                     An amendment or waiver which relates to the rights or obligations of
the Facility Agent or any Mandated Lead Arranger may not be effected without
the consent of the Facility Agent or such Mandated Lead Arranger.


 


36.                           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.


 


83

















 


SECTION 12


GOVERNING LAW AND
ENFORCEMENT


 


37.                           GOVERNING LAW


 


This Agreement
is governed by English law.


 


38.                           ENFORCEMENT


 


(a)                                      The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement (including a
dispute regarding the existence, validity or termination of this Agreement) (a
“Dispute”).


 


(b)                                     The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and accordingly no Party
will argue to the contrary.


 


(c)                                      This Clause 38 is for the benefit of the Finance Parties only.  As a result, no Finance Party shall be
prevented from taking proceedings relating to a Dispute (“Proceedings”) in any other
courts with jurisdiction.


 


(d)                                     If ABB Capital B.V. is represented by
an attorney or attorneys in connection with the signing and/or execution and/or
delivery of this Agreement or any agreement or document referred to herein or
made pursuant hereto and the relevant power or powers of attorney is or are
expressed to be governed by the laws of a particular jurisdiction, it is hereby
expressly acknowledged and accepted by the other parties hereto that such laws
shall govern the existence and extent of such attorney’s or attorneys’
authority and the effects of the exercise thereof.


 


(e)                                      Service of Process


 


ABB and each
Obligor incorporated in a jurisdiction other than England and Wales agree that
the documents which start any Proceedings in England and any other documents
required to be served in relation to those Proceedings may be served on ABB
Limited, at 20 Bedfordbury, London, WC2N 4BL or, if different, its registered
office, with a copy to ABB.  If the
appointment of the person mentioned in this Clause 38(e) ceases to be
effective, ABB and each Obligor shall immediately appoint another person in
England to accept service of process on its behalf in England.  If ABB or any Obligor fails to do so (and
such failure continues for a period of not less than fourteen days), the
Facility Agent shall be entitled to appoint such a person by notice to ABB or
the relevant Obligor (as the case may be). 
Nothing contained herein shall restrict the right to serve process in
any other manner allowed by law.


 


This Agreement has been entered into on the date
stated at the beginning of this Agreement.


 


84

















 


SCHEDULE 1

THE ORIGINAL PARTIES


 


Part I

The Original Lenders


 


	
  Name of
  Lender

  	
   

  	
  Commitment
  ($)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Barclays Bank PLC

  	
   

  	
  70,833,333

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Bayerische Hypo-und Vereinsbank AG

  	
   

  	
  70,833,333

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BNP Paribas SA

  	
   

  	
  70,833,333

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Citibank, N.A.

  	
   

  	
  70,833,334

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Commerzbank Aktiengesellschaft

  	
   

  	
  70,833,333

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Credit Suisse First Boston

  	
   

  	
  70,833,334

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Deutsche Bank Luxembourg S.A.

  	
   

  	
  70,833,334

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Dresdner Bank Luxembourg S.A.

  	
   

  	
  70,833,334

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  HSBC Bank plc

  	
   

  	
  70,833,333

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Nordea Bank Sweden AB (publ)

  	
   

  	
  70,833,333

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Skandinaviska Enskilda Banken AB (publ)

  	
   

  	
  70,833,333

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Svenska Handelsbanken AB (publ)

  	
   

  	
  70,833,333

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Banco Bilbao Vizcaya Argentaria S.A.

  	
   

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  CDC IXIS

  	
   

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Den norske Bank ASA

  	
   

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ING Belgium NV

  	
   

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  KBC Bank NV

  	
   

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Saudi American Bank

  	
   

  	
  25,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  1,000,000,000

  	
   

  



 


85

















 


Part II

The Original Obligors


 


	
  Name of
  Borrower

  	
   

  	
  Address

  	
   

  	
  Jurisdiction
  of

  incorporation

  
	
  ABB Capital
  B.V.

  	
   

  	
  Burgemeester
  Haspelslaan 65, 5/F

  PO Box 74690

  Amstelveen

  NL-1181 NB

  Netherlands

  

  Attention:Managing Director
 Fax:+ 31 20 445 9844

  

  Copy: Legal Department

  Fax: + 41 43 317 7992

  	
   

  	
  Netherlands

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABB Asea
  Brown Boveri Ltd

  	
   

  	
  Affolternstrasse
  44

  CH-8050 Zurich

  Switzerland

  

  Attention:Deputy CFO

  

  Fax:+41 43 317 3929

  

  Copy: Legal Department

  Fax: +41 43 317 7992

  	
   

  	
  Switzerland

  



 


	
  Name of
  Guarantor

  	
   

  	
  Address

  	
   

  	
  Jurisdiction
  of

  Incorporation

  
	
  ABB Capital
  B.V.

  	
   

  	
  Burgemeester
  Haspelslaan 65, 5/F

  PO Box 74690

  Amstelveen

  NL-1181 NB

  Netherlands

  

  Attention:Managing Director

  Fax:+ 31 20 445 9844

  

  Copy: Legal Department

  Fax: + 41 43 317 7992

  	
   

  	
  Netherlands

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABB Asea
  Brown Boveri Ltd

  	
   

  	
  Affolternstrasse
  44

  CH-8050 Zurich

  Switzerland

  	
   

  	
  Switzerland

  



 


86

















 


	
   

  	
   

  	
  Attention:Deputy
  CFO

  

  Fax:+41 43 317 3929

  

  Copy: Legal Department

  Fax: + 41 43 317 7992

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABB Ltd

  	
   

  	
  Affolternstrasse
  44

  CH-8050 Zurich

  Switzerland

  

  Attention: Deputy CFO

  Fax:+41 43 317 3929

  

  Copy: Legal Department

  Fax: +41 43 317 7992

  	
   

  	
  Switzerland

  



 


87

















 


SCHEDULE 2

CONDITIONS PRECEDENT


 


Part I

Conditions Precedent to initial Utilisation


 


1.                                 Corporate Documents


 


(a)                                      A copy of the constitutional documents of each Obligor.


 


(b)                                     A copy of a resolution of the board of directors of each Obligor (if
applicable) or, in the case of the Dutch Obligors, a copy of a resolution of
the board of managing directors (directie)
or, in the case of ABB, a copy of an excerpt of the minutes of the board of
directors of ABB:


 


(i)                        approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it execute the
Finance Documents to which it is a party;


 


(ii)                     authorising a specified person or persons to execute 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 (including, if relevant, any Utilisation
Request) to be signed and/or despatched by it under or in connection with the
Finance Documents to which it is a party.


 


(c)                                      A copy of the Shareholders resolutions of the Dutch Obligor in form
and substance reasonably satisfactory to the Facility Agent.


 


(d)                                     A copy of a shareholders resolution of ABB Asea Brown Boveri Ltd.


 


(e)                                      A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.


 


(f)                                        A certificate of each Obligor (signed without personal liability by
an authorised signatory of each Obligor) confirming that borrowing or
guaranteeing, as appropriate, the Total Commitments would not cause any
borrowing, guaranteeing or similar limit binding on that relevant Obligor to be
exceeded.


 


(g)                                     A certificate of an authorised signatory of the relevant Obligor,
certifying without personal liability that each copy document relating to it
specified in paragraph 1 (a) - (f) of this Schedule 2 is correct, complete
and in full force and effect as at a date no earlier than the date of this
Agreement.


 


(h)                                     The group structure chart signed for the purposes of identification
by an authorised signatory (without personal liability) of the Group.


 


2.                                 Agreed Form Security Documents


 


If the sale of
the Oil, Gas & Petrochemical Division (Upstream) has not completed:


 


88

















 


(a)                                      a copy of each of the Agreed Form Pledges and the Agreed Form Trust
Deed duly executed by each relevant Obligor;


 


(b)                                     a copy of the constitutional documents of each Group Company
entering into an Agreed Form Pledge;


 


(c)                                      a copy of a resolution of the board of directors of each Group
Company entering into an Agreed Form Pledge and/or the Agreed Form Trust Deed:


 


(i)                        approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it execute the
Finance Documents to which it is a party;


 


(ii)                     authorising a specified person or persons to execute 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 to which it is a party;


 


(d)                                     a copy of a shareholder’s resolution of ABB Holding AG;


 


(e)                                      a specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above;


 


(f)                                        a certificate of an authorised signatory of the relevant Group
Company certifying without personal liability that each copy document relating
to it specified in paragraph 2(b)-(e) of this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than the date of
this Agreement;


 


(g)                                     a legal opinion of Clifford Chance LLP, New York, US counsel to the
Mandated Lead Arrangers, substantially in the form distributed to the Original
Lenders prior to signing this Agreement;


 


(h)                                     a legal opinion of Wikborg, Rein & Co, Norwegian counsel to the
Mandated Lead Arrangers, substantially in the form distributed to the Original
Lenders prior to signing this Agreement;


 


(i)                                         a legal opinion of Baker & McKenzie, Swiss counsel to the
Mandated Lead Arrangers, substantially in the form distributed to the Original
Lenders prior to signing this Agreement;


 


(j)                                         with respect to a pledgor in respect of a security interest granted
in the shares of a Group Company incorporated in the United States of America,
all share certificates, stock transfer forms duly executed in blank in relation
to the shares, a copy of the register of members and constitutional documents
of each member of the Group whose shares are expressed to be the subject to
Security;


 


(k)                                      With respect to the pledgor in respect of a security interest
granted in the shares of a Group Company incorporated in Norway:


 


89

















 


(i)                          a notice addressed to that Group Company that its shares have been
made subject to a security interest in favour of the Secured Parties in the
form prescribed in the Security Document relating to the pledge of such shares
and executed by authorised signatories of the pledgor; and


 


(ii)                       with respect to any recipient of a notice pursuant to sub-paragraph
(i) above, acknowledgement by its authorised signatories of receipt of the notice
referred to in (i) above together with evidence that the security interest has
been noted in the register of shareholders of such Group Company; and


 


(iii)                    a power of attorney in favour of the Trustee in the form prescribed
in the Security Document relating to the pledge of such shares executed by the
authorised signatories of the pledgor.


 


Provided that if two authorised
signatories of ABB certify in writing to the Lenders that ABB has received
gross cash proceeds from Project Phoenix, a proposed bond issue (which will be
unsecured and have a maturity on or beyond 1 January 2008 and which may
include a tap issue) and/or asset sales in an amount equal to at least
$3,000,000,000 and the gross cash proceeds of Project Phoenix and the asset
sales equals at least $2,250,000,000 (of which the amount of the proceeds from
asset sales cannot exceed $250,000,000), then nothing shall be required under
this paragraph 2.


 


3.                                 Legal Opinions


 


(a)                                      A legal opinion of Clifford Chance LLP legal advisers to the
Mandated Lead Arrangers and the Facility Agent in England, substantially in the
form distributed to the Original Lenders prior to signing this Agreement.


 


(b)                                     If an Obligor is incorporated in a jurisdiction other than England
and Wales, a legal opinion of the legal advisers to the Mandated Lead Arranger
and the Facility Agent in the Relevant Jurisdiction, substantially in the form
distributed to the Original Lenders prior to signing this Agreement.


 


4.                                 Other documents and evidence


 


(a)                                      Repayment and cancellation in full of the Existing Credit Facility.


 


(b)                                     The Fee Letters executed on behalf of ABB.


 


(c)                                      Evidence that any process agent referred to in Clause 38(e) (Service of process), if not an Obligor,
has accepted its appointment.


 


(d)                                     The Original Financial Statements of each Obligor.


 


(e)                                      The Business Plan in form and substance reasonably satisfactory to
the Lenders.


 


(f)                                        The Original Liquidity Plan in form and substance reasonably
satisfactory to the Lenders.


 


90

















 


(g)                                     Evidence that the fees, costs and expenses then due from ABB
pursuant to Clause 12 (Fees),
Clause 17 (Costs and Expenses)
and Clause 13.6 (Stamp Taxes)
have been paid or will be paid by the first Utilisation Date.


 


(h)                                     Completion of Project Phoenix raising a gross amount of at least SFR
2,300,000,000 (approximately $1,750,000,000).


 


(i)                                         The receipt by ABB of gross proceeds (excluding the amount of any
deferred payment) from the sale of the Oil, Gas & Petrochemical Division
and/or the gross proceeds from Project Phoenix and/or the gross proceeds of a
proposed bond issue (which will be unsecured and have a maturity on or beyond 1
January 2008, and which may include a tap issue) and/or the gross proceeds
of any other disposals (excluding the Oil, Gas & Petrochemical Division)
made after the date of this Agreement (up to a maximum aggregate amount of
$250,000,000) providing ABB with, in aggregate, gross cash proceeds in an
amount of at least SFR 3,250,000,000.


 


In this
Schedule, “Project Phoenix” means the share capital increase of ABB announced
on 28 October 2003.


 


91

















 


Part II

Additional Obligor Conditions
Precedent


 


1.                                 An Accession Letter, duly executed by the Additional Obligor and
ABB.


 


2.                                 A copy of the constitutional documents of the Additional Obligor.


 


3.                                 A copy of a resolution of the board of directors, or other suitable
authority, of the Additional Obligor:


 


(a)                                      approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it execute the
Accession Letter;


 


(b)                                     authorising a specified person or persons to execute the Accession
Letter on its behalf; and


 


(c)                                      authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including any Utilisation
Request) to be signed and/or despatched by it under or in connection with the
Finance Documents.


 


4.                                 If required under applicable law, a copy of a resolution of the
Additional Obligor as Guarantor stating that the shareholders resolve and
approve the entering into, and the terms and conditions of, this Agreement, in
particular, in relation to any Additional Obligor incorporated in Switzerland
that is acceding as a Guarantor, the guarantee to be provided by such
Additional Obligor as Guarantor for the purpose of securing the prompt and
complete satisfaction of all present and future conditional and unconditional
claims of the Finance Parties against any member of the Group other than such
Additional Obligor as Guarantor and its wholly owned subsidiaries arising from
time to time out of the Finance Documents.


 


5.                                 A specimen of the signature of each person authorised by the
resolution referred to in paragraph 3 above.


 


6.                                 A certificate of the Additional Obligor (signed by two duly
authorised signatories) confirming that borrowing or guaranteeing (as the case
may be) the Total Commitments would not cause any borrowing, guaranteeing or
similar limit binding on it to be exceeded.


 


7.                                 A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Schedule 2 is correct,
complete and in full force and effect as at a date no earlier than the date of
the Accession Letter.


 


8.                                 A copy of any other Authorisation or other document, opinion or
assurance which the Facility Agent reasonably considers to be necessary in
connection with the entry into and performance of the transactions contemplated
by the Accession Letter or for the validity and enforceability of any Finance
Document.


 


9.                                 If available, the latest audited financial statements of the
Additional Obligor.


 


92

















 


10.                           A legal opinion of Clifford Chance Limited Liability Partnership,
legal advisers to the Mandated Lead Arrangers and the Facility Agent in
England.


 


11.                           If the Additional Obligor is incorporated in a jurisdiction other
than England and Wales, a legal opinion of the legal advisers to the Mandated
Lead Arrangers and the Facility Agent in the jurisdiction in which the
Additional Obligor is incorporated.


 


12.                           If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent specified in
Clause 38(e) (Service of process), if not an Obligor, has accepted its
appointment in relation to the proposed Additional Obligor.


 


93

















 


SCHEDULE 3

UTILISATION REQUEST


 


From:                                          [Name
of Borrower]


 


To:                                                      Credit Suisse First Boston as Facility Agent


 


Dated:                                     [•]


 


Dear Sirs


 


ABB Ltd – $1,000,000,000
Credit Agreement dated [•]

(the “Credit Agreement”)


 


1.                                 Words and expressions defined in the Credit Agreement have the same
meaning when used herein.


 


2.                                 We wish to borrow an Advance on the following terms:


 


	
  Proposed
  Utilisation Date:

  	
  [ • ] (or, if that is not a Business Day, the next Business Day)

  
	
  Currency of
  Advance:

  	
  [ • ]

  
	
  Amount:

  	
  [ • ]

  
	
  Interest
  Period:

  	
  [ • ]

  



 


3.                                 We confirm that each condition specified in Clause 4.1 (Initial Conditions Precedent) is
satisfied on the date of this Utilisation Request.


 


4.                                 The proceeds of this Advance should be credited to [account].


 


5.                                 This Utilisation Request is irrevocable.


 


Yours
faithfully


 


 


	
   

  	
   

  	
   

  
	
   

  	
  authorised
  signatory for

  	
   

  
	
   

  	
  [Name of
  Borrower]

  	
   

  



 


94

















 


SCHEDULE 4

THE MARGIN AND UTILISATION FEE


 


	
  Margin and

  Utilisation

  Fee (basis

  points per

  annum)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CREDIT RATING

  OF ABB LTD

  
	
  BBB/Baa2

  or higher

  	
   

  	
  BBB-/Baa3

  	
   

  	
  BB+/Ba1

  	
   

  	
  BB/Ba2

  	
   

  	
  BB-/Ba3 or

  lower

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Margin

  	
   

  	
  80

  	
   

  	
  110

  	
   

  	
  145

  	
   

  	
  185

  	
   

  	
  225

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Utilisation(1) Fee

  	
   

  	
  12.5

  	
   

  	
  12.5

  	
   

  	
  25

  	
   

  	
  25

  	
   

  	
  50

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Utilisation(2) Fee

  	
   

  	
  25

  	
   

  	
  25

  	
   

  	
  50

  	
   

  	
  50

  	
   

  	
  75

  	
   

  



 


Any adjustment
to the Margin or Utilisation Fee will apply from:


 


(i)                               the date of publication of any relevant change to the Credit Rating
of ABB; and/or


 


(ii)                            the date on which a Credit Rating ceases to be assigned to ABB by
either S&P or Moody’s.


 












(1)          Each day upon which Outstandings equal or exceed 33% of the Total
Commitments and are less than 66% of the Total Commitments.


 


(2)          Each day upon which Outstandings equal or exceed 66% of the Total
Commitments.


 


95

















 


SCHEDULE 5

FORM OF TRANSFER CERTIFICATE


 


To:                                                                             Credit Suisse First Boston as Facility Agent


 


From:                                                                 [The
Existing Lender] (the “Existing Lender”) and [The New Lender] (the “New Lender”)


 


Dated:


 


ABB Ltd – $1,000,000,000
Credit Agreement dated [•]

(the “Credit Agreement”)


 


1.                                 Words and expressions defined in the Credit Agreement have the same
meaning when used herein.


 


2.                                 We refer to Clause 24.5 (Procedure for transfer) of the Credit
Agreement:


 


(a)                                      The Existing Lender and the New Lender agree to the Existing Lender
and the New Lender transferring by novation all or part of the Existing
Lender’s Commitment, rights and obligations referred to in the Schedule in
accordance with Clause 24.5 (Procedure for transfer).


 


(b)                                     The proposed Transfer Date is
[            ].


 


(c)                                      The Facility Office and address, fax number and attention details
for notices of the New Lender for the purposes of Clause 31.2 (Addresses)
are set out in the Schedule.


 


3.                                 The New Lender expressly acknowledges the limitations on the
Existing Lender’s obligations set out in paragraph (c) of Clause 24.4 (Limitation
of responsibility of Existing Lenders).


 


4.                                 The New Lender confirms on the Transfer Date that it is a PMP.


 


5.                                 This Transfer Certificate is governed by English law.


 


THE SCHEDULE


 


Commitment/rights and
obligations to be transferred


 


[insert
relevant details]

[Facility
Office address, fax number and attention details for notices and account
details for payments,]


 


	
  [Existing
  Lender]

  	
  [New Lender]

  
	
   

  	
   

  
	
  By:

  	
  By:

  



 


96

















 


This Transfer
Certificate is accepted by the Facility Agent and the Transfer Date is
confirmed as [           ].


 


[Facility
Agent]


 


By:


 












(1)          Only to be included if it is a requirement under Dutch law at the
time of such assignment or transfer, that the New Lender qualifies as a PMP.


 


97

















 


SCHEDULE 6

TIMETABLES


 


	
   

  	
   

  	
  Advances
  in

  Euro

  	
   

  	
  Advances
  in

  Dollars

  	
   

  	
  Advances
  in

  Sterling

  	
   

  	
  Advances
  in

  other

  currencies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Delivery of
  a duly completed Utilisation Request in accordance with Clause 5.1 (Delivery
  of a Utilisation Request)

  	
   

  	
  10 a.m.
  London time, 3 Business Days prior to the proposed Utilisation Date

  	
   

  	
  11 a.m.
  London time, 3 Business Days prior to the proposed Utilisation Date

  	
   

  	
  11 a.m.
  London time, 1 Business Day prior to the proposed Utilisation Date

  	
   

  	
  11 a.m.
  London time, 3 Business Days prior to the proposed Utilisation Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facility
  Agent determines (in relation to a Utilisation) the Base Currency Amount of
  the Advance, if required under Clause 5.4 (Lenders’ participation)

  	
   

  	
  11 a.m.
  London time, 3 Business Days prior to the proposed Utilisation Date

  	
   

  	
  N/A

  	
   

  	
  11 a.m.
  London time, 1 Business Day prior to the proposed Utilisation Date

  	
   

  	
  11 a.m.
  London time, 3 Business Days prior to the proposed Utilisation Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facility
  Agent notifies the Lenders of the Advance in accordance with Clause 5.4 (Lenders’
  participation)

  	
   

  	
  Promptly
  upon receipt from the relevant Borrower

  	
   

  	
  Promptly
  upon receipt from the relevant Borrower

  	
   

  	
  Promptly
  upon receipt from the relevant Borrower

  	
   

  	
  Promptly
  upon receipt from the relevant Borrower

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facility
  Agent receives a notification from a Lender under Clause 6.2 (Unavailability
  of a currency)

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  Quotation
  Day as of 9 a.m. London time

  



 


98

















 


	
   

  	
   

  	
  Advances
  in

  Euro

  	
   

  	
  Advances
  in

  Dollars

  	
   

  	
  Advances
  in

  Sterling

  	
   

  	
  Advances
  in

  other

  currencies

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facility
  Agent gives notice in accordance with Clause 6.2 (Unavailability of a currency)

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  N/A

  	
   

  	
  Upon receipt
  of notification from the Lenders

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR or
  EURIBOR is fixed

  	
   

  	
  Quotation
  Day as of 11.00 a.m. Brussels time

  	
   

  	
  Quotation
  Day as of 11.00 a.m. London time

  	
   

  	
  Quotation
  Day as of 11.00 a.m. London time

  	
   

  	
  Quotation
  Day as of 11. 00 a.m. London time

  



 


99

















 


SCHEDULE 7

FORM OF ACCESSION LETTER


 


To:                              Credit Suisse First Boston as Facility Agent


 


From:                  [Subsidiary]
and ABB Ltd


 


Dated:             [ • ]


 


Dear Sirs


 


ABB Ltd – $1,000,000,000
Revolving Credit Agreement dated [•]

(the “Agreement”)


 


1.                                 We refer to the Agreement. 
This is an Accession Letter. 
Terms defined in the Agreement have the same meaning in this Accession
Letter unless given a different meaning in this Accession Letter.


 


2.                                 [Subsidiary]
agrees to become an [Additional Borrower]/[Additional Guarantor] and to be
bound by the terms of the Agreement as an [Additional Borrower]/[ Additional
Guarantor] pursuant to [Clause 25.2 (Additional Borrowers)]/[Clause 25.4 (Additional
Guarantors)] of the Agreement.


 


3.                                 [Subsidiary]
is a company duly incorporated under the laws of [name of relevant jurisdiction].


 


4.                                 [Subsidiary]
is a Subsidiary of ABB Ltd.


 


5.                                 [Subsidiary’s]
administrative details are as follows:


 


Address:


 


Fax No:


 


Attention:


 


6.                                 This Accession Letter is governed by English law.


 


[This
Guarantor Accession Letter is entered into by deed].


 


	
  ABB Ltd

  	
  [Subsidiary]

  
	
   

  	
   

  
	
  By:

  	
  By:

  



 


100

















 


SCHEDULE 8

FORM OF RESIGNATION LETTER


 


To:  Credit Suisse
First Boston as Facility Agent


 


From:  [resigning
Obligor] and ABB Ltd


 


Dated:  [ • ]


 


Dear Sirs


 


ABB Ltd – $1,000,000,000
Revolving Credit Agreement dated [•]

(the “Agreement”)


 


1.                                 We refer to the Agreement. 
This is a Resignation Letter. 
Terms defined in the Agreement have the same meaning in this Resignation
Letter unless given a different meaning in this Resignation Letter.


 


2.                                 Pursuant to [Clause 25.3 (Resignation of a Borrower)]/[Clause 25.6 (Resignation
of a Guarantor)], we request that [resigning Obligor] be
released from its obligations as a [Borrower]/[Guarantor] under the Agreement.


 


3.                                 We confirm that:


 


(a)                                      no Default would result from the acceptance of this request; and


 


(b)                                     [resigning
Obligor] is under no actual or contingent liability under the
Agreement.


 


4.                                 This Resignation Letter is governed by English law.


 


 


	
  ABB Ltd

  	
  [Subsidiary]

  
	
   

  	
   

  
	
  By:

  	
  By:

  



 


101

















 


SCHEDULE 9

MANDATORY COSTS


 


The Mandatory
Costs is an addition to the interest rate on an Advance denominated in Sterling
to compensate the Lenders for the cost attributable to such Advance resulting
from the imposition from time to time under or pursuant to the Bank of England
Act 1998 (the “BoE Act”) of a requirement to place non-interest-bearing or
Special Deposits (whether interest bearing or not) with the Bank of England
calculated by reference to liabilities used to fund the Advance.


 


The Mandatory
Costs shall be the rate determined by the Facility Agent to be equal to the
arithmetic mean (rounded upward, if necessary, to 4 decimal places) of the
respective rates notified by each Reference Bank to the Facility Agent as the
rate resulting from the application (as appropriate) of the following formulae:


 


XL +
S(L - D)

100 - (X + S)


 


where on the
day of application of a formula:


 


X                                       is the percentage of Eligible Liabilities (in excess of any stated
minimum) by reference to which that Reference Bank is required under or
pursuant to the BoE Act to maintain cash ratio deposits with the Bank of
England;


 


L                                         is LIBOR applicable to the relevant Advance;


 


S                                         is the level of interest bearing Special Deposits, expressed as a
percentage of Eligible Liabilities, which that Reference Bank is required to
maintain by the Bank of England (or other United Kingdom governmental
authorities or agencies); and


 


D                                       is the percentage rate per annum payable by the Bank of England to
that Reference Bank on Special Deposits.


 


(X, L, S and D
shall be expressed in the formula as numbers and not as percentages, e.g. if X
= 0.15% and L = 7%, XL will be calculated as 0.15 x 7 and not as 0.15% x
7%.  A negative result obtained from
subtracting D from L shall be counted as zero.)


 


If any
Reference Bank fails to notify any such rate to the Facility Agent, the
Mandatory Costs shall be determined on the basis of the rate(s) notified to the
Facility Agent by the remaining Reference Bank(s).


 


The Mandatory
Costs attributable to an Advance or other sum for any period shall be
calculated at or about 11.00 a.m. on the first day of that period for the
duration of that period.


 


The
determination of the Mandatory Costs in relation to any period shall, in the
absence of manifest error, be conclusive and binding on the Parties.


 


If there is
any change in circumstance (including the imposition of alternative or
additional requirements) which in the reasonable opinion of the Facility Agent
renders or will render the above formula (or any element of the formula, or any
defined term used in the formula) inappropriate or inapplicable, the Facility
Agent (following consultation with ABB and the


 


102

















 


Majority
Lenders) shall be entitled to vary the same by giving notice to the
Parties.  Any such variation shall, in
the absence of manifest error, be conclusive and binding on the Parties and
shall apply from the date specified in such notice.


 


For the
purposes of this Schedule, Eligible Liabilities and Special Deposits have the
meanings given to those terms under or pursuant to the BoE Act or by the Bank
of England (as may be appropriate), on the day of the application of the
formula.


 


103

















 


SCHEDULE 10

MATERIAL SUBSIDIARIES


 


	
  Company
  Name

  	
   

  	
  Jurisdiction

  	
   

  	
  ABB
  Interest (%)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABB Finance
  B.V.

  	
   

  	
  Netherlands

  	
   

  	
  100

  	
   

  
	
  ABB Capital
  B.V.

  	
   

  	
  Netherlands

  	
   

  	
  100

  	
   

  
	
  ABB
  International Finance Limited

  	
   

  	
  Guernsey

  	
   

  	
  100

  	
   

  
	
  ABB Finance
  Inc.

  	
   

  	
  United
  States

  	
   

  	
  100

  	
   

  
	
  ABB Holdings
  Inc.

  	
   

  	
  United
  States

  	
   

  	
  100

  	
   

  
	
  ABB AG

  	
   

  	
  Germany

  	
   

  	
  100

  	
   

  
	
  ABB AB

  	
   

  	
  Sweden

  	
   

  	
  100

  	
   

  
	
  ABB S.p.A.

  	
   

  	
  Italy

  	
   

  	
  100

  	
   

  
	
  ABB Schweiz
  Holding AG

  	
   

  	
  Switzerland

  	
   

  	
  100

  	
   

  
	
  ABB
  Financial Services AB

  	
   

  	
  Sweden

  	
   

  	
  100

  	
   

  
	
  ABB Treasury
  Center (Asia Pacific) Pte. Ltd

  	
   

  	
  Singapore

  	
   

  	
  100

  	
   

  
	
  ABB Financial
  Services Australia Limited

  	
   

  	
  Australia

  	
   

  	
  100

  	
   

  
	
  ABB Treasury
  Center (USA) Inc.

  	
   

  	
  United
  States

  	
   

  	
  100

  	
   

  
	
  ABB Vetco
  Gray Inc.

  	
   

  	
  United
  States

  	
   

  	
  100

  	
   

  
	
  ABB Offshore
  Systems AS

  	
   

  	
  Norway

  	
   

  	
  100

  	
   

  
	
  ABB Oy

  	
   

  	
  Finland

  	
   

  	
  100

  	
   

  
	
  ABB Ltd.

  	
   

  	
  England

  	
   

  	
  100

  	
   

  
	
  ABB Holding
  AS

  	
   

  	
  Norway

  	
   

  	
  100

  	
   

  
	
  ABB S.A.

  	
   

  	
  France

  	
   

  	
  100

  	
   

  
	
  Asea Brown
  Boveri S.A.

  	
   

  	
  Spain

  	
   

  	
  100

  	
   

  
	
  ABB (China)
  Ltd

  	
   

  	
  China

  	
   

  	
  100

  	
   

  
	
  ABB Australia Pty Limited

  	
   

  	
  Australia

  	
   

  	
  100

  	
   

  
	
  Sirius
  International Försakrings AB (publ)

  	
   

  	
  Sweden

  	
   

  	
  100

  	
   

  



 


104

















 


	
  Company
  Name

  	
   

  	
  Jurisdiction

  	
   

  	
  ABB
  Interest (%)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABB Inc.

  	
   

  	
  United
  States

  	
   

  	
  100

  	
   

  
	
  ABB Ltda.

  	
   

  	
  Brazil

  	
   

  	
  100

  	
   

  



 


105

















 


SCHEDULE 11

FORM OF COVENANT COMPLIANCE CERTIFICATE


 


To:                                                      Credit Suisse First Boston as Facility Agent


 


From:                                          ABB Ltd


 


Dated:


 


Dear Sirs


 


ABB Ltd $1,000,000,000 Multicurrency Revolving Credit Agreement dated [•] (the “Agreement”)


 


We refer to
the Agreement.  This is a Covenant
Compliance Certificate delivered with the consolidated accounts of ABB dated
[31 March, 30 June, 30 September] [2003] (the “Reference
Date”).  Terms defined in the
Agreement have the same meaning when used in this Covenant Compliance
Certificate unless given a different meaning.


 


We confirm
that:


 


(a)                            EBITDA:
Total Gross Interest


 


In respect of
the Relevant Period ending on the Reference Date:


 


(i)                                         EBITDA was [     ].


 


(ii)                                      Total Gross Interest was [     ].


 


Therefore the
ratio of EBITDA to Total Gross Interest in respect of such period was
[    ] : [    ] and the
covenant contained in paragraph 21.2(a) of Clause 21 (Financial Covenants) [has/has not] been
complied with.


 


(b)                           Net Debt of the Group


 


(i)                                         Short-term borrowings of the Group on the Reference Date were
[     ].


 


(ii)                                      Long Term Borrowings of the Group on the Reference Date were
[     ].


 


(iii)                                   Cash available in group treasury
operations and disclosed (prior to the Trigger Date) in the Liquidity Plan and
the reconciliation to balance sheet cash as disclosed in the quarterly
compliance certificate was [•].


 


(iv)                                  Total Gross Debt was
[           ].


 


Therefore the ratio of Net Debt to EBITDA in respect of such period was
[   ]:[   ] and the covenant contained in
paragraph 21.2(b) of Clause 21 (Financial
Covenants) [has/has not] been complied with.


 


(c)                            Consolidated
Net Worth


 


(i)                                         Consolidated Net Worth on the Reference Date was
[     ].


 


106

















 


(ii)                                      Cumulative Consolidated Net Income of the Group from [date] to the reference Date was
[     ].


 


Accordingly
the calculation set out in clause 20.2(c) is as follows:


 


$3,000,000,000
+ [insert
50% of consolidated net income figure or 0 if that figure is negative]
= zero


 


Therefore
Consolidated Net Worth on the Reference Date was at least
[     ] and the covenant contained in paragraph 21.2(c) of Clause 21 (Financial
Covenants) [has/has not] been complied with.


 


(d)                           Total
Gross Debt of the Group excluding the Obligor Group


 


The aggregate
amount of Total Gross Debt of Group Companies that are not members of the
Obligor Group (excluding items set out in paragraphs (i) to (v) of paragraph
21.3 of Clause 21 (Financial Covenants))
[has/has not] since the date of the Credit Agreement exceeded
$1,000,000,000.


 


 


	
   

  	
   

  	
   

  	
   

  
	
  Officer of
  ABB Ltd

  	
   

  	
  Officer of
  ABB Ltd

  	
   

  
	
  (without
  personal liability)

  	
   

  	
  (without
  personal liability)

  	
   

  



 


107

















 


SIGNATURES


 


The Original Borrowers


 


ABB CAPITAL B.V.


 


By:  PATRICK
KRAHENBUHL      BRIAN VAN REIJN


 


 


ABB ASEA BROWN BOVERI LTD


 


By:       ANN
LARSSON       ALEX HALL


 


 


The Original Guarantors


 


ABB LTD


 


By:        ALFRED
STORCK    URS ARNOLD


 


 


ABB CAPITAL B.V.


 


By:        PATRICK
KRAHENBUHL        BRIAN VAN REIJN


 


 


ABB ASEA BROWN BOVERI LTD


 


By:        ANN
LARSSON       ALEX HALL


 


 


The Mandated Lead Arrangers


 


BARCLAYS CAPITAL


 


By:        TIM
AUSTRUP


 


 


BAYERISCHE HYPO-UND VEREINSBANK AG


 


By:        FRANK
SCHMIDT       THOMAS PENTENRIEDER


 


 


BNP PARIBAS


 


By:         LIONEL
BORDARIER     CHRISTIAN LEROY


 


108

















 


CITIGROUP GLOBAL MARKETS LIMITED


 


By:        CAMILO
MORI


 


 


COMMERZBANK AKTIENGESELLSCHAFT


 


By:        MARTINA
BOLLER        AXEL RICHEBAECHER


 


 


CREDIT SUISSE FIRST BOSTON


 


By:         THOMAS
MUOIO        MARK WALSH


 


 


DEUTSCHE BANK AG


 


By:        MATTHIAS
GAAB        KARL-HEINZ HERWECK


 


 


DRESDNER KLEINWORT WASSERSTEIN


 


By:        ANDREAS
SCHEER        MATTHIAS WITTENBURG


 


 


HSBC BANK PLC


 


By:        PER
OLOV SYNNEMAR        JAN-CARL DE GEER


 


 


NORDEA BANK SWEDEN AB (PUBL)


 


By:       ARNE
LJUNG              BIRGITTA HOOG


 


 


SEB MERCHANT BANKING, SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


 


By:       MICHAEL
DICKS


 


 


SVENSKA HANDELSBANKEN AB (PUBL)


 


By:         HELENA
LIND SCHOGARNE


 


 


The Arrangers


 


109

















 


BANCO BILBAO VIZCAYA ARGENTARIA S.A.


 


By:           CHRIS METHERELL            
PAUL GRAHAM


 


 


CDC IXIS


 


By:       FLORENCE SOULE DE LAFONT        HENRI MALICK


 


 


DEN NORSKE BANK ASA


 


By:      SIGURD
KAYSER        KRISTI BIRKELAND


 


 


ING BELGIUM NV


 


By:      NICK
SMIT       YVES ADLER


 


 


KBC BANK NV


 


By:      HERLINDA
WOUTERS        ADRIAAN LOEFF


 


 


SAUDI AMERICAN BANK


 


By:      SYED
HASAN ALI


 


 


The Facility Agent


 


CREDIT SUISSE FIRST BOSTON


 


By:          THOMAS
MUOIO        MARK WALSH


 


 


The Lenders


 


BARCLAYS BANK PLC


 


By:        TIM
AUSTRUP


 


 


BAYERISCHE HYPO-UND VERINSBANK AG


 


By:        FRANK
SCHMIDT       THOMAS PENTENRIEDER


 


110

















 


BNP PARIBAS SA


 


By:        LIONEL
BORDARIER     CHRISTIAN LEROY


 


 


CITIBANK, N.A.


 


By:        CAMILO
MORI


 


 


COMMERZBANK AKTIENGESELLSCHAFT


 


By:        MARTINA BOLLER        AXEL RICHEBAECHER


 


 


CREDIT SUISSE FIRST BOSTON


 


By:        THOMAS
MUOIO        MARK WALSH


 


 


DEUTSCHE BANK LUXEMBOURG S.A.


 


By:        ASTRID
SCHNEIDER        STEPHANIE SCHREINER


 


 


DRESDNER BANK LUXEMBOURG S.A.


 


By:        ANDREAS
SCHEER        MATTHIAS WITTENBURG


 


 


HSBC BANK PLC


 


By:        PER
OLOV SYNNEMAR        JAN-CARL DE GEER


 


 


NORDEA BANK SWEDEN AB (PUBL)


 


By:       ARNE
LJUNG              BIRGITTA HOOG


 


 


SKANDINAVISKA ENSKILDA BANKEN AB (PUBL)


 


By:        MICHAEL
DICKS


 


111

















 


SVENSKA HANDELSBANKEN AB (PUBL)


 


By:        HELENA
LIND SCHOGARNE


 


 


BANCO BILBAO VIZCAYA ARGENTARIA S.A.


 


By:       CHRIS
METHERELL                   PAUL
GRAHAM


 


 


CDC IXIS


 


By:       FLORENCE
SOULE DE LAFONT             HENRI MALICK


 


 


DEN NORSKE BANK ASA


 


By:       SIGURD
KAYSER                  
KRISTI BIRKELAND


 


 


ING BELGIUM NV


 


By:       NICK
SMIT                    YVES
ADLER


 


 


KBC BANK NV


 


By:       HERLINDA
WOUTERS             ADRIAAN LOEFF


 


 


SAUDI AMERICAN BANK


 


By:       SYED
HASAN ALI


 


112