Agreements filed as exhibits may contain representations and warranties that
have been negotiated between the parties to the agreement. Such representations
and warranties should not be relied upon by any shareholder of the Corporation
in any investment decision in the Corporation's securities.
XXXXXXXX
CHANCE
Execution Copy
DATED 14 JUNE 2005
KRONOS TITAN GMBH
KRONOS EUROPE S.A./N.V.
KRONOS TITAN AS
KRONOS NORGE AS
TITANIA AS
AND
KRONOS DENMARK APS
AS BORROWERS
KRONOS TITAN GMBH
KRONOS EUROPE S.A./N.V.
KRONOS NORGE AS
AND
KRONOS DENMARK APS
AS GUARANTORS
WITH
DEUTSCHE BANK LUXEMBOURG S.A.
ACTING AS AGENT
--------------------------------------------------------------------------------
SECOND AMENDMENT AGREEMENT
RELATING TO A
FACILITY AGREEMENT
DATED 25 JUNE 2002
(as amended by an amendment agreement
dated 3 September 2004)
--------------------------------------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation.........................................2
2. Amendment..............................................................3
3. Representations........................................................3
4. Continuity and further Assurance.......................................3
5. Fees, Costs and Expenses...............................................4
6. Transfer and Assignment................................................4
7. Miscellaneous..........................................................6
SCHEDULE 1 Conditions Precedent............................................7
SCHEDULE 2 Amended Facility Agreement......................................9
SCHEDULE 3 Transfer of Available Commitments/Participations...............10
THIS SECOND AMENDMENT AGREEMENT is dated 14 June 2005 (the "Agreement") and
is made between:
(1) Kronos Titan GmbH (formerly known as Kronos Titan GmbH & Co. oHG), a
limited liability company (Gesellschaft mit beschrankter Haftung)
organised under the laws of the Federal Republic of Germany, having its
business address at Xxxxxxxxxxxx 0, 00000 Xxxxxxxxxx, Xxxxxxx Xxxxxxxx
of Germany, which is registered in the commercial register
(Handelsregister) of the local court (Amtsgericht) of Koln under HRB
00000 (xxx "Xxxxxx Borrower");
(2) Kronos Europe S.A./N.V., a Belgian company with its registered office at
Xxxxxxxxxxxxxxxx 00, 0000 Xxxxx, Xxxxxxx, registered nationally under
RPR 0449.103.862 (the "Belgian Borrower");
(3) Kronos Titan AS, a Norwegian company with registered office at Xxxxxxx.
0, 0000 Xxxxx Xxxxxxxxxxx, Xxxxxx, registered under no. 948 616 491 (the
"Norwegian Borrower 1");
(4) Titania AS, a Norwegian company with registered office at 4380 Xxxxx i
Dalane, Norway, registered under no. 916 769 318 (the "Norwegian
Borrower 2");
(5) Kronos Norge AS, a Norwegian company with registered office at Xxxxxxx.
0, 0000 Xxxxx Xxxxxxxxxxx, Xxxxxx, registered under no. 816 769 132 (the
"Norwegian Borrower 3" and together with the Norwegian Borrower 1 and
the Norwegian Xxxxxxxx 0, xxxxxxxxxxxx xxx "Xxxxxxxxx Xxxxxxxxx");
(0) Xxxxxx Xxxxxxx ApS, a Danish company with registered office at Hanne
Xxxxxxxx Xxx 00, 0000 Xxxxx, Xxxxxxx, with registration number CVR. no.
24 24 27 81 (the "Danish Borrower");
(7) Deutsche Bank AG as mandated lead arranger;
(8) THE EXITING LENDERS as specified on the signature page;
(9) THE CONTINUING LENDERS as specified on the signature page (the Exiting
Lenders and the Continuing Lenders are herein collectively referred to
as the "Lenders"); and
(10) Deutsche Bank Luxembourg S.A. as agent for the Finance Parties (as
defined in the Original Facility Agreement) (the "Agent") and as
security agent for the Secured Parties (as defined in the Original
Facility Agreement).
RECITALS:
(A) The Lenders made a facility available to the German Borrower, the
Belgian Borrower, the Norwegian Borrowers and the Danish Borrower
pursuant to the terms and conditions under the Original Facility
Agreement (as defined below).
(B) The parties hereto have agreed to amend the Original Facility Agreement
pursuant to the terms and conditions of this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Amended Facility Agreement" means the Original Facility Agreement, as
amended by this Agreement.
"Effective Date" means the date on which the Agent confirms to the
Lenders and the German Borrower in writing that it has received each of
the documents listed in Schedule 1 (Conditions Precedent) in a form and
substance satisfactory to the Agent.
"Original Facility Agreement" means the EUR 80,000,000 multicurrency
revolving facility agreement dated 25 June 2002 (as amended by a first
amendment agreement dated 3 September 2004) between, inter alia, Kronos
Titan GmbH (formerly known as Kronos Titan GmbH & Co. oHG), Kronos
Europe S.A./N.V. and others as borrowers, Kronos Titan GmbH (formerly
known as Kronos Titan GmbH & Co. oHG), Kronos Europe S.A./N.V. and
others as guarantors, Deutsche Bank AG as mandated lead arranger,
Deutsche Bank Luxembourg S.A. as agent and security agent and others.
1.2 Unless a contrary indication appears, terms used in the Original
Facility Agreement shall, when used in this Agreement have the same
meaning as in the Original Facility Agreement.
1.3 Any reference in this Agreement to a "Clause" or a "sub-clause" shall,
subject to any contrary indication, be construed as a reference to a
clause or a sub-clause hereof.
2. AMENDMENT
2.1 Amendment of the Original Facility Agreement
As of the Effective Date, the Original Facility Agreement shall be
amended so that it shall be read and construed for all purposes as set
out in Schedule 2 (Amended Facility Agreement).
2.2 Security Confirmation
(a) The German Borrower hereby confirms that the Security Documents
entered into by it continue in full force and effect and also shall
secure its obligations and the obligations of any of the other
Obligors under the Amended Facility Agreement.
(b) The Belgian Borrower hereby confirms that the Security Documents
entered into by it continue in full force and effect and also shall
secure its obligations and the obligations of any of the other
Obligors under the Amended Facility Agreement.
(c) Kronos Denmark ApS hereby confirms that the Security Documents
entered into by it continue in full force and effect and also shall
secure its obligations and the obligations of any of the other
Obligors under the Amended Facility Agreement
(d) Each of the Norwegian Borrowers hereby confirms that the Security
Documents entered into by it continue in full force and effect and
also shall secure its obligations and the obligations of any of the
other Norwegian Borrowers under the Amended Facility Agreement, in
each case to the extent as permitted under the Norwegian Companies
Xxx 0000 Section 8-7.
3. REPRESENTATIONS
As of the Effective Date, the Obligors make the representations set out
in Clause 22 (Representations) (other than Clause 22.10) of the Original
Facility Agreement as if each reference in those representations to
"this Agreement" or "the Finance Documents" includes a reference to (a)
this Agreement and (b) the Amended Facility Agreement.
4. CONTINUITY AND FURTHER ASSURANCE
4.1 Continuing obligations
The provisions of the Original Facility Agreement shall, save as amended
in this Agreement, continue in full force and effect.
4.2 Further assurance
Each of the Obligors shall, at the request of the Agent and at its own
expense, do all such acts and things necessary or desirable to give
effect to the amendments effected or to be effected pursuant to this
Agreement.
5. FEES, COSTS AND EXPENSES
5.1 Transaction expenses
1 Each of the Borrowers shall within three Business Days of demand, pay
the Agent the amount of all reasonable out-of-pocket costs and expenses
(including reasonable legal fees of outside counsel) reasonably incurred
by the Agent in connection with the negotiation, preparation, printing
and execution of this Agreement and any other documents referred to in
this Agreement.
5.2 Enforcement costs
Each of the Borrowers shall, within three Business Days of demand, pay
to each Secured Party and the Mandated Lead Arranger the amount of all
reasonable out-of-pocket costs and expenses (including legal fees)
reasonably incurred by that Secured Party or the Mandated Lead Arranger
in connection with the enforcement of, or the preservation of any
rights, powers and remedies under this Agreement.
5.3 Stamp taxes
The Borrowers shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of this Agreement.
6. TRANSFER AND ASSIGNMENT
6.1 Each Lender confirms that the details in Part I and Part II of Schedule
3 (Transfer of Available Commitment/Loans) accurately summarise its
participation in the Facility made available under the Original Facility
Agreement.
6.2 Each Exiting Lender hereby assigns and transfers, with effect from the
Effective Date (aufschiebende Befristung), such part of its Available
Commitment and its participation in outstanding Letters of Credit
(together with all its rights and obligations under the Finance
Documents relating thereto) as is set out in Part III and Part IV of
Schedule 3 (Transfer of Available Commitments/Participations) to such
Continuing Lender as is set out in Part III and Part IV of Schedule 3
(Transfer of Available Commitments/Participations) in accordance with
paragraph (b) of Clause 27.5 (Procedure for Transfer) of the Original
Facility Agreement so that each Continuing Lender's Available Commitment
is as referred to in Part V of Schedule 3 (Transfer of Available
Commitments/Participations) and each Continuing Lender's participation
in outstanding Letters of Credit is as referred to in Part VI of
Schedule 3 (Transfer of Available Commitments/Participations).
6.3 Each of the Continuing Lenders hereby accepts such transfer and
assignment.
6.4 Each Continuing Lender confirms that it has received such information as
it has required in connection with this transaction and that it has not
relied and will not hereafter rely on the respective Exiting Lender to
check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such
information and further agrees that it has not relied and will not rely
on the respective Exiting Lender to assess or keep under review on its
behalf the financial condition, creditworthiness, condition, affairs,
status or nature of the Obligors.
6.5 Each Exiting Lender makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or, in any case, any
document relating thereto and assumes no responsibility for the
financial condition of the Obligors or for the performance and
observance by the Obligors of any of its obligations under the Finance
Documents or, in any case, any document relating thereto and any and all
such conditions and warranties, whether express or implied by law or, in
any case, otherwise, are hereby excluded.
6.6 Each Exiting Lender hereby gives notice that nothing herein or in the
other Finance Documents (or, in any case, any document relating thereto)
shall oblige such Exiting Lender to (a) accept a re-transfer from the
respective Continuing Lender of the whole or any part of its rights,
benefits and/or obligations under the Finance Documents transferred
pursuant hereto or (b) support any losses directly or indirectly
sustained or incurred by the respective Continuing Lender for any reason
whatsoever including the non-performance by an Obligor or any other
party to the Finance Documents (or, in any case, any document relating
thereto) of its obligations under any such document. The respective
Continuing Lender hereby acknowledges the absence of any such obligation
as is referred to in (a) or (b) above.
6.7 Each Exiting Lender and the respective Continuing Lender hereby agree
that the benefit of the guarantees and indemnities granted pursuant to
Clause 21 (Guarantee and Indemnity) of the Original Facility Agreement
and the benefit of each of the Security Documents shall be transferred
to the respective Continuing Lender on the Effective Date to the extent
such guarantees and indemnities relate to the portion of the
Outstandings assigned and transferred to the respective Continuing
Lender pursuant hereto.
6.8 Each Continuing Lender hereby expressly consents to the declarations of
the Security Agent made on behalf and in the name of such Continuing
Lender as Future Pledgee (as such term is defined in the Security
Documents, being pledges which are governed by German law) in such
Security Documents. Each Continuing Lender confirms that it is aware of
the content of such Security Documents.
7. MISCELLANEOUS
7.1 Incorporation of terms
The provisions of Clause 37 (Partial Invalidity), Clause 38 (Remedies
and waivers), Clause 40 (Governing Law) and Clause 41.1 (Jurisdiction of
German Courts) of the Original Facility Agreement shall be incorporated
into this Agreement as if set out in full in this Agreement and as if
references in those clauses to "this Agreement" or "the Finance
Documents" are references to this Agreement.
7.2 Designation as Finance Document
The German Borrower and the Agent designate this Agreement as a Finance
Document by execution of this Agreement for the purposes of the
definition of Finance Document in the Original Facility Agreement.
THIS AGREEMENT has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
Conditions Precedent
1. Obligors
(a) A copy of the constitutional documents of each Obligor.
(b) A copy of a resolution of the board of directors of the Belgian
Borrower, each Norwegian Borrower and the Danish Borrower:
(i) approving the terms of, and the transactions contemplated
by, this Agreement and resolving that it executes this
Agreement;
(ii) authorising a specified person or persons to execute this
Agreement 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 this
Agreement.
(c) A copy of a resolution signed by all the holders of the issued
shares in the German Borrower, approving the terms of, and the
transactions contemplated by, this Agreement.
(d) A specimen of the signature of each person authorised to sign this
Agreement.
(e) A certificate validly signed on behalf of the relevant Obligor
confirming that borrowing and/or guaranteeing the Total Commitments
would not cause any borrowing and/or guaranteeing limit binding on
it to be exceeded.
(f) A certificate of an authorised signatory of the relevant Obligor
certifying that each copy document relating to it specified in this
Schedule 1 is correct, complete and in full force and effect as at
a date no earlier than the date of this Agreement.
(g) The Original Financial Statements (as defined in the Amended
Facility Agreement) of each Obligor.
2. Legal Opinions
(a) A legal opinion of Xxxxxxxx Chance Partnerschaftsgesellschaft,
legal advisers to the Agent in Germany, substantially in the form
distributed to the Lenders prior to signing this Agreement.
(b) A legal opinion of Xxxxxxxx Chance, legal advisers to the Agent in
Belgium, substantially in the form distributed to the Lenders prior
to signing this Agreement.
(c) A legal opinion of Xxxxx, Xxxxxx-Xxxxxx & Xxxxxxxxx, legal advisers
to the Agent in Norway, substantially in the form distributed to
the Lenders prior to signing this Agreement.
(d) A legal opinion of Gorissen Xxxxxxxxxx Kierkegaard, legal advisers
to the Agent in Denmark, substantially in the form distributed to
the Lenders prior to signing this Agreement.
(e) A legal opinion of Xxxxxxxx Chance LLP, legal advisers to the Agent
in the United States of America, substantially in the form
distributed to the Lenders prior to signing this Agreement.
3. Other documents and evidence
(a) A copy of a confirmation agreement relating to the Subordination
Agreement, duly executed by the Parent and the German Borrower.
(b) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable in
connection with the entry into and performance of the transaction
contemplated by this Agreement or for the validity and
enforceability of this Agreement.
SCHEDULE 2
Amended Facility Agreement
XXXXXXXX
CHANCE
Conformed Copy
DATED 25 June 2002
as amended by an amendment agreement dated 3 September 2004 and a second
amendment agreement dated 14 June 2005
KRONOS TITAN GMBH & CO. OHG
KRONOS EUROPE S.A./N.V.
KRONOS TITAN AS
and
TITANIA AS
as Borrowers
KRONOS TITAN GMBH & CO. OHG
KRONOS EUROPE S.A./N.V.
and
KRONOS NORGE AS
as Guarantors
KRONOS DENMARK APS
as Security Provider
DEUTSCHE BANK AG
as Mandated Lead Arranger
DEUTSCHE BANK LUXEMBOURG S.A.
as Agent and Security Agent
and
KBC BANK NV
as Fronting Bank
and
Others
--------------------------------------------------------------------------------
EUR 80,000,000
FACILITY AGREEMENT
--------------------------------------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation...........................................1
2. The Facility............................................................20
3. Purpose.................................................................20
4. Conditions Of Utilisation...............................................20
5. Utilisation.............................................................22
6. Optional Currencies.....................................................23
7. Letters of Credit.......................................................24
8. Repayment...............................................................26
9. Borrower's Liabilities In Relation To Letters Of Credit.................26
10. Prepayment And Cancellation.............................................28
11. Interest................................................................31
12. Default Interest........................................................31
13. Interest Periods and Terms..............................................32
14. Changes To The Calculation Of Interest..................................33
15. Fees....................................................................34
16. Tax Gross Up And Indemnities............................................36
17. Increased Costs.........................................................40
18. Other Indemnities.......................................................41
19. Mitigation By The Lenders...............................................42
20. Costs And Expenses......................................................43
21. Guarantee And Indemnity.................................................45
22. Representations.........................................................48
23. Information Undertakings................................................52
24. Financial Covenants.....................................................54
25. General Undertakings....................................................56
26. Events Of Default.......................................................64
27. Changes To The Lenders..................................................69
28. Changes To The Obligors.................................................73
29. Role Of The Agent, the Security Agent And The Mandated Lead Arranger ...74
30. Conduct Of Business By The Finance Parties..............................83
31. Sharing Among The Finance Parties.......................................83
32. The Lenders and the Fronting Bank.......................................85
33. Payment Mechanics.......................................................88
34. Set-Off.................................................................91
36. Calculations And Certificates...........................................94
37. Partial Invalidity......................................................94
38. Remedies And Waivers....................................................94
39. Amendments And Waivers..................................................94
40. Governing Law...........................................................96
41. Enforcement.............................................................96
SCHEDULE 1 The Original Lenders............................................97
SCHEDULE 2 Conditions Precedent............................................98
SCHEDULE 3 Utilisation Request.................... .......................102
SCHEDULE 4 Mandatory Cost Formulae........................................104
SCHEDULE 5 Form of Transfer Certificate....................................108
SCHEDULE 6 Form of Compliance Certificate..................................112
SCHEDULE 7 Existing Security..............................................114
SCHEDULE 8 Existing Financial Indebtedness.................................115
SCHEDULE 9 Timetables......................................................116
SCHEDULE 10 Form of Combining Schedule.....................................119
SCHEDULE 11 Form of Confidentiality Undertaking............................136
SCHEDULE 12 Form of Letter of Credit.......................................141
SCHEDULE 13 Form of Auditor's Report.......................................143
THIS AGREEMENT is dated 25 June 2002 and made between:
(1) KRONOS TITAN GMBH & CO. OHG (the "German Borrower"), KRONOS EUROPE
S.A./N.V. (the "Belgian Borrower"), KRONOS TITAN AS (the "Norwegian
Borrower 1") and TITANIA AS (the "Norwegian Borrower 2") as borrowers
(each a "Borrower" and together the "Borrowers");
(2) KRONOS TITAN GMBH & CO. OHG (the "German Guarantor"), KRONOS EUROPE
S.A./N.V. (the "Belgian Guarantor") and KRONOS NORGE AS (the "Norwegian
Guarantor") as guarantors (each a "Guarantor" and together the
"Guarantors");
(3) KRONOS DENMARK APS as additional security provider ("Kronos Denmark");
(4) DEUTSCHE BANK AG as mandated lead arranger (the "Mandated Lead
Arranger");
(5) KBC BANK NV as fronting bank (the "Fronting Bank");
(6) THE FINANCIAL INSTITUTIONS listed in Schedule 1 as lenders (the
"Original Lenders"); and
(7) DEUTSCHE BANK LUXEMBOURG S.A. as agent of the other Finance Parties (the
"Agent") and as Security Agent for the Secured Parties (the "Security
Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Additional Cost Rate" has the meaning given to it in Schedule 4
(Mandatory Cost formulae).
"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.
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the
European foreign exchange market at or about 11:00 a.m. on a particular
day.
"Amendment Agreement" means the amendment agreement dated [?] 2005
relating to this Agreement.
"Applicable GAAP" means:
(b) in relation to any Obligor whose jurisdiction of incorporation is
the Federal Republic of Germany, generally accepted accounting
principles in the Federal Republic of Germany;
(c) in relation to any Obligor whose jurisdiction of incorporation is
Belgium, generally accepted accounting principles in Belgium;
(d) in relation to any Obligor whose jurisdiction of incorporation is
Norway, generally accepted accounting principles in Norway; and
(e) in relation to Kronos Denmark, generally accepted accounting
principles in Denmark; and
(f) in relation to the Parent, US GAAP.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"Availability Period" means the period from and including the date of
this Agreement to and including the Business Day falling immediately
before the Termination Date.
"Available Commitment" means a Lender's Commitment minus:
(a) the Base Currency Amount of its participation in any outstanding
Loans and Letters of Credit; and
(b) in relation to any proposed Utilisation, the Base Currency Amount
of its participation in any Loans and Letters of Credit that are
due to be made on or before the proposed Utilisation Date,
other than that Lender's participation in any Loans and Letters of
Credit that are due to be repaid, prepaid or expire on or before the
proposed Utilisation Date.
"Available Facility" means the aggregate for the time being of each
Lender's Available Commitment.
"Base Currency" means euros.
"Base Currency Amount" means, in relation to a Loan or a Letter of
Credit, the amount specified in the Utilisation Request delivered by a
Borrower for that Loan or a Letter of Credit (or, in the case of a Loan
only, if the amount requested is not denominated in the Base Currency,
that amount converted into the Base Currency at the Agent's Spot Rate of
Exchange on the date which is three Business Days before the Utilisation
Date adjusted to reflect any repayment or prepayment of the Loan).
"Break Costs" means the amount (if any) by which:
(a) the interest which a Lender should have received for the period
from the date of receipt of all or any part of its participation in
a Loan or Unpaid Sum to the last day of the current Interest Period
in respect of that Loan 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 day other than a date for the payment, purchase
of, or rate fixing relating to euro) a day, other than a Saturday
or Sunday, on which banks are open for general business in
Luxembourg, (in relation to the Letter of Credit) the principal
financial centre of the country of the Facility Office of the
Fronting Bank and (in relation to any date for payment or purchase
of, or rate fixing relating to, a sum denominated in a currency
other than euro) the principal financial centre of the country of
that currency; or
(b) (in relation to any date for payment, purchase of, or rate fixing
relating to euro) any TARGET Day.
"Capital Lease" means any lease or hire purchase contract which would,
in accordance with Applicable GAAP, be treated as a finance or capital
lease.
"Cash Collateral" means, in relation to any Letter of Credit or L/C
Proportion of a Letter of Credit, a deposit in an interest-bearing
account or accounts with the Fronting Bank as the Agent (with the
consent of the Fronting Bank) may specify, that deposit and account to
be secured in favour of, and on terms and conditions acceptable to, the
Agent and the Fronting Bank.
"Cash Collateral Documents" means any documents as the Agent may
specify, to be entered into in relation to the Cash Collateral.
"Cash Equivalent Investments" means:
(a) marketable debt securities for which a recognised trading market
exists (including money market funds that invest substantially all
of their assets in debt securities accessible within 30 days)
maturing within one year after the relevant date of calculation,
denominated in euros, sterling or dollars or kroner ("Accepted
Currency") issued by any member state of the European Union, Norway
and the United States of America which are not convertible into any
other form of security;
(b) marketable debt securities for which a recognised trading market
exists (including money market funds that invest substantially all
of their assets in debt securities accessible within 30 days)
maturing within one year after the relevant date of calculation,
denominated in any Accepted Currency which are not convertible into
any other form of security, rated P-1 (Xxxxx'x Investor Services
Inc.) or A-1 (Standard & Poors' Corporation);
(c) certificates of deposit and time deposits maturing within one year
after the relevant date of calculation, denominated in any Accepted
Currency issued by, and acceptances by, banking institutions
authorised under applicable legislation of any member state of the
European Union, the United States of America or Norway which at the
time of making such issue or acceptances, have outstanding debt
securities rated as provided in paragraph (b) above or which have
minimum capital of EUR 250,000,000; and
(d) such other securities (if any) as are approved in writing by the
Agent,
in each case to which any member of the Group is beneficially entitled
at that time and which are not issued or guaranteed by any member of the
Group.
"Charged Property" means all the assets of the Borrowers or Kronos
Denmark which from time to time are, or are expressed to be, the subject
of the Transaction Security.
"Combining Schedule" means a schedule substantially in the form set out
in part I of Schedule 10 (Form of Combining Schedule) when delivered
pursuant to Clause 23.3(a)(i) and part II of Schedule 10 (Form of
Combining Schedule) when delivered pursuant to Clause 23.3(a)(ii), in
each case combining the financial information of the Parent including
each of the Obligors and its Subsidiaries (on a legal entity basis)
which is used to prepare and corresponds with the Parent's (audited, in
the case of a financial year) consolidated balance sheet and statements
of income and cash flows for the relevant financial year or financial
quarter (as the case may be), in each case prepared using US GAAP.
"Commitment" means:
(a) in relation to an Original Lender, the amount in the Base Currency
set opposite its name under the heading "Commitment" in 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 in the Base Currency of
any Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Compliance Certificate" means a certificate substantially in the form
set out in part I of Schedule 6 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially as set out in Schedule 11 (Form of Confidentiality
Undertaking) or in any other form agreed between the German Borrower and
the Agent.
"Default" means an Event of Default or any event or circumstance
specified in Clause 26 (Events of Default) which would (with the expiry
of a grace period, the giving of notice, the making of any determination
under the Finance Documents or any combination of any of the foregoing)
be an Event of Default.
"Environmental Claim" means any claim, proceeding or investigation by
any person in respect of any Environmental Law.
"Environmental Law" means any applicable law in any jurisdiction in
which any member of the Group 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.
"Environmental Permits" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of any member of the Group conducted on or from the properties
owned or used by the relevant member of the Group.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of that
Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its request quoted by
the Reference Banks to leading banks in the European interbank
market,
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 Loan.
"Event of Default" means any event or circumstance specified as such in
Clause 26 (Events of Default).
"Expiry Date" means, in relation to any Letter of Credit, the date on
which the maximum aggregate liability under that Letter of Credit is to
be reduced to zero provided that any such date will end on or before the
Termination Date.
"Facility" means the revolving loan and letter of credit facility made
available under this Agreement as described in Clause 2 (The Facility).
"Facility Office" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"Fee Letter" means any letter or letters dated on or about the date of
this Agreement between the Mandated Lead Arranger and the German
Borrower (or the Agent and the German Borrower or the Fronting Bank and
the relevant Borrower) setting out any of the fees referred to in Clause
15 (Fees).
"Finance Document" means this Agreement, the Security Documents, the
Subordination Agreement, any Fee Letter and any other document
designated as such by the Agent and the German Borrower.
"Finance Party" means the Agent, the Mandated Lead Arranger, the
Fronting Bank, the Security Agent or a Lender.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any Capital Lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount under any other transaction (including any forward sale
or purchase agreement) having the commercial effect of a borrowing
as defined in paragraphs (a) or (c) above (which, for the avoidance
of doubt, shall not include deferred payment obligations which are
standard within the industry and in the ordinary course of
business);
(g) any derivative transaction and the resulting net liability as
determined from time to time, if any, entered into in connection
with protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution; and
(i) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a) to (h)
above.
"Fronting Bank" means KBC Bank NV.
"Group" means each of the Obligors and their Subsidiaries.
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Intellectual Property" means all patents, trade marks, service marks,
trade names, design rights, copyright (including rights in computer
software and moral rights and in published and unpublished work),
titles, rights to know-how and other intellectual property rights, in
each case whether registered or unregistered and including applications
for the grant of any of the foregoing and all rights or forms of
protection having equivalent or similar effect to any of the foregoing
which may subsist anywhere in the world.
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 13 (Interest Periods) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 12.1
(Default interest periods).
"Intra-group Loan" means a borrowing of money as defined in paragraphs
(a), (c) and (f) of the definition of Financial Indebtedness from the
Parent or any other member of the Kronos Group by any member of the
Group.
"Kronos Group" means Kronos Worldwide, Inc. and its Subsidiaries (other
than any such Subsidiaries which form part of the Group).
"L/C Amount" means:
(a) each sum paid or due and payable by the Fronting Bank to the
beneficiary of a Letter of Credit pursuant to the terms of that
Letter of Credit; and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from the Fronting
Bank under a Letter of Credit), claims, losses and out-of-pocket
expenses which the Fronting Bank incurs or sustains in connection
with a Letter of Credit,
in each case which has not been reimbursed pursuant to Clause 9
(Borrower's liabilities in relation to Letters of Credit).
"L/C Commission Rate" means a letter of credit commission rate of 1.75
per cent. per annum.
"L/C Proportion" means, in relation to a Lender in respect of any Letter
of Credit and save as otherwise provided in this Agreement, the
proportion (expressed as a percentage) borne by that Lender's Available
Commitment to the Available Facility immediately prior to the issue of
that Letter of Credit.
"Legal Opinions" means the legal opinions delivered to the Agent
pursuant to Clause 4.1 (Initial conditions precedent).
"Legal Reservations" means:
(a) the principle that equitable remedies may be granted or refused at
the discretion of a court, the limitation of enforcement by laws
relating to insolvency, reorganisation and other laws generally
affecting the rights of creditors; and
(b) the time bearing of claims, defences of set-off or counterclaim and
similar principles which are set out in the Legal Opinions as
qualifications as to matters of law.
"Lender" means:
(a) any Original Lender; and
(b) any bank, financial institution, trust, fund or other entity which
has become a Party in accordance with Clause 27 (Changes to the
Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"Letter of Credit" means a letter of credit issued or to be issued by
the Fronting Bank under the Facility substantially in the form set out
in Schedule 12 (Form of Letter of Credit) or in such other form
requested by the Borrower which is acceptable to the Agent and the
Fronting Bank.
"LIBOR" means:
(a) in relation to any Loan (other than a Loan denominated or to be
denominated in sterling), the applicable Screen Rate; or
(b) in relation to (i) any Loan denominated in or to be denominated in
sterling or (ii) any other Loan if no Screen Rate is available for
the currency or Interest Period of that other Loan, the arithmetic
mean of the rates (rounded upwards to four decimal places) as
supplied to the Agent at its request quoted by the Reference Banks
to leading banks in the London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to the
Interest Period for that Loan.
"Loan" means a loan made or to be made under the Facility or the
principal amount outstanding for the time being of that loan.
"LMA" means the Loan Market Association.
"Majority Lenders" means:
(a) until the Total Commitments have been reduced to zero, a Lender or
Lenders whose Commitments aggregate more than 51% of the Total
Commitments (or, if the Total Commitments have been reduced to zero
and there are no Loans or Letters of Credit then outstanding,
aggregated more than 51% of the Total Commitments immediately prior
to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Outstandings aggregate more than 51% of all the Outstanding.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"Margin" means 1.125 per cent. per annum.
"Material Adverse Effect" means a material adverse effect on the
business, assets or financial condition of the German Borrower, the
Belgian Borrower or the Group taken as a whole.
"Material Contracts" means any agreements including licence agreements
entered into by any member of the Group which is reasonably likely to be
material to the business or financial condition of any Obligor or the
Group taken as a whole.
"Material Subsidiary" means Unterstutzungskasse Kronos Titan GmbH and
any other Subsidiary of any Obligor:
(a) whose total assets represent 5 per cent. or more of the
consolidated total assets of the Group; or
(b) whose total operating income represents 5 per cent. or more of the
consolidated total operating income of the Group,
all as shown (in the case of any Subsidiary) in its most recent annual
or half yearly accounts (consolidated, as the case may be, if it has
Subsidiaries) and (in the case of the Group) the most recent annual or,
as the case may be, half yearly Combining Schedules of the Group,
provided that:
(i) if any Material Subsidiary sells, transfers or otherwise
disposes of the majority of its undertaking or assets
(whether by a single transaction or a number of related
transactions) to any other member of the Group:
(1) that other member of the Group shall be deemed to
become a Material Subsidiary on the date of the
relevant sale, transfer or disposal; and
(2) any Material Subsidiary which sells, transfers or
otherwise disposes of the majority of its
undertaking or assets (whether by a single
transaction or a number of related transactions)
shall no longer be a Material Subsidiary on the date
of the relevant sale, transfer or disposal,
until the Material Subsidiaries are next determined from the
annual or half yearly accounts referred to above;
(ii) if any Material Subsidiary does not satisfy either of the
tests set out in paragraphs (a) and (b) above for reasons
other than those referred to under paragraph (i) above, then
such Material Subsidiary shall cease to be a Material
Subsidiary from the point of time that the non-satisfaction
of such tests can be determined from the annual audited
accounts or the half yearly unaudited accounts referred to
above; and
(iii) if a Subsidiary has been acquired since the date as of which
the latest consolidated annual or half yearly accounts of
the Group were prepared, such accounts shall be adjusted in
order to take into account the acquisition of such
Subsidiary.
"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) 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; and
(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.
The above exceptions will only apply to the last Month of any period.
"Norwegian Borrowers" means the Norwegian Borrower 1, the Norwegian
Borrower 2 and Kronos Norge AS.
"Obligor" means a Borrower or a 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 the Norwegian Guarantor, its audited consolidated
financial statements for the financial year ended 31 December 2004
prepared using Applicable GAAP;
(b) in relation to each Obligor, its audited unconsolidated financial
statements for the financial year ended 31 December 2004 prepared
using Applicable GAAP; and
(c) in relation to the Group, a Combining Schedule for the financial
year ended 31 December 2004 prepared using US GAAP.
"Outstandings" means at any time, the aggregate of the Base Currency
Amounts of the outstanding Loans and the amount of the maximum actual
and contingent liabilities of the Lenders in respect of each outstanding
Letter of Credit. "Parent" means Kronos International, Inc., a Delaware
corporation.
"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 Community relating to
Economic and Monetary Union.
"Party" means a party to this Agreement.
"Permitted Affiliate Transactions" means any transaction entered into
between any member of the Group and the Parent or any other member of
the Kronos Group either (i) in the ordinary course of trading or
business and in accordance with past practice or (ii) which is necessary
to accommodate legal or regulatory requirements of such member of the
Group.
"Permitted Financial Indebtedness" means Financial Indebtedness, without
duplication:
(a) arising under or permitted pursuant to the Finance Documents;
(b) incurred with the prior written consent of the Majority Lenders and
any Refinancing thereof;
(c) existing on the date of this Agreement and listed in Schedule 8
(Existing Financial Indebtedness) and any Refinancing thereof,
provided that the Financial Indebtedness referred to in item 1 of
Schedule 8 (Existing Financial Indebtedness) (or any Refinancing
thereof) is repaid upon the first Utilisation Date and the
Financial Indebtedness referred to in item 7 of Schedule 8
(Existing Financial Indebtedness) (or any Refinancing thereof) is
repaid no later than 120 days from the date of this Agreement and
provided further that any Refinancing of the Financial Indebtedness
referred to in items 2 and 3 of Schedule 8 (Existing Financial
Indebtedness) is subject to a subordination agreement between the
debtor, the creditor and the Security Agent on substantially the
same terms as in the Subordination Agreement;
(d) arising under any derivative transaction entered into by any member
of the Group in respect of Financial Indebtedness of such members
of the Group and any Refinancing thereof provided that such
derivative transactions are (i) entered into to protect members of
the Group from fluctuations in interest rates on outstanding
Financial Indebtedness to the extent the notional principal amount
of such derivative transactions does not, at the time of the
incurrence thereof, exceed the principal amount of the Financial
Indebtedness to which such derivative transaction relates and (ii)
entered into in the ordinary course of business of such members of
the Group and not for investment or speculative purposes;
(e) arising under any commodity agreements or currency agreements
entered into by any member of the Group provided that (i) in the
case of any such currency agreements which relate to Financial
Indebtedness or trade payables of any member of the Group, such
currency agreements do not increase the outstanding Financial
Indebtedness or trade payables of such member of the Group (other
than as a result of fluctuations in foreign currency exchange rates
or by reason of fees, indemnities and compensation payable
thereunder) and (ii) in the case of any such commodity agreements
or currency agreements, such agreements are entered into in the
ordinary course of business of such members of the Group and not
for investment or speculative purposes;
(f) owed by any Obligor to any other Obligor;
(g) owed by any member of the Group which is not an Obligor to any
other member of the Group which is not an Obligor or to an Obligor,
unless incurred in violation of this Agreement;
(h) arising under any Intra-group Loans provided that the payment
claims of the Parent or any other member of the Kronos Group in
respect of any such Intra-group Loans have been subordinated to the
claims of the Finance Parties pursuant to the Subordination
Agreement; and
(i) arising from the honouring by a Lender or other financial
institution of a cheque, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business, provided
that such Financial Indebtedness is extinguished within two
Business Days of incurrence;
(j) consisting of guarantees, indemnities or obligations in respect of
customary purchase price adjustments in connection with the
acquisition of or disposal over assets up to an aggregate amount of
EUR 2,000,000 (or its equivalent in another currency or
currencies);
(k) incurred by the Norwegian Borrower 2 in the ordinary course of
business to finance the purchase price for the acquisition of heavy
earth moving equipment or other similar equipment related to mining
by it or any Refinancing thereof up to an aggregate amount of EUR
10,000,000 (or its equivalent in another currency or currencies);
(l) incurred by any member of the Group the principal amount of which
(when aggregated with the principal amount of all other Financial
Indebtedness incurred by the members of the Group other than any
Financial Indebtedness permitted under paragraphs (a) to (k) above)
does not exceed EUR 5,000,000 (or its equivalent in another
currency or currencies).
"Permitted Loans and Guarantees" means:
(a) any guarantee or indemnity granted by any member of the Group or
any assumption of liability in respect of any obligation of any
other person made by any member of the Group in the ordinary course
of its trading or business and upon terms usual for such trading or
business;
(b) any guarantee or indemnity required under any of the Finance
Documents;
(c) any loan, grant of credit, guarantee or indemnity or assumption of
any liability in respect of any other person which is granted or
made by any member of the Group who is not an Obligor to or for the
benefit of an Obligor;
(d) any loan, grant of credit, guarantee or indemnity or assumption of
any liability in respect of any other person which is granted or
made by any Obligor to or for the benefit of any other Obligor; and
(e) any loan granted by any Obligor to any wholly-owned subsidiary
being a member of the Group which is not an Obligor (including the
sale or discounting of receivables by any member of the Group to
the German Borrower) up to an aggregate amount of EUR 5,000,000.
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is euro) two TARGET Days before the first day of
that period; or
(b) (for any other currency) two Business Days 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 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 Deutsche Bank Luxembourg S.A. and the principal
offices of Commerzbank Aktiengesellschaft and Dexia Bank Belgium NV/SA
or such other bank or banks as may from time to time be agreed between
the German Borrower and the Agent acting on the instructions of the
Majority Lenders.
"Refinance" means, in respect of any Financial Indebtedness, to
refinance in whole or in part the amount of such Financial Indebtedness
on arms' length terms and in accordance with market standards and the
terms "Refinanced" and "Refinancing" shall be construed accordingly.
"Relevant Interbank Market" means in relation to euro, the European
interbank market and, in relation to any other currency, the London
interbank market.
"Relevant Jurisdiction" means:
(a) the jurisdiction of incorporation of each member of the Group; and
(b) the jurisdiction where any asset subject to or intended to be
subject to the Transaction Security is situated.
"Repeating Representations" means each of the representations set out in
Clauses 22.1 (Status) to 22.6 (Governing law and enforcement), Clause
22.9 (No default), Clause 22.13 (No proceedings pending or threatened),
Clause 22.19 (Legal and beneficial owner) and Clause 22.20 (No winding
up).
"Rollover Loan" means one or more Loans:
(a) made or to be made on the same day that a:
(i) maturing Loan is due to be repaid; or
(ii) demand in respect of a Letter of Credit is due to be met;
(b) the aggregate amount of which is equal to or less than the maturing
Loan or Letter of Credit;
(c) in the same currency as the maturing Loan (unless it arose as a
result of the operation of Clause 6.2 (Unavailability of a
currency)) or Letter of Credit; and
(d) made or to be made to the same Borrower for the purpose of:
(i) refinancing a maturing Loan; or
(ii) satisfying any demand made by the Fronting Bank through the
Agent pursuant to a drawing under a Letter of Credit.
"Screen Rate" means:
(a) in relation to any amount to be advanced or owing in euro, the
percentage rate per annum determined by the Banking Federation of
the European Union for the relevant period; and
(b) in all other respects, the British Bankers Association Interest
Settlement Rate for the relevant currency and period,
displayed on the appropriate page of the Reuters screen. If the agreed
page is replaced or service ceases to be available, the Agent may
specify another page or service displaying the appropriate rate in the
Agent's reasonable discretion with the approval of the German Borrower
(which approval shall not be unreasonably withheld or delayed) and after
consultation with the Lenders.
"Secured Parties" means the Security Agent, the Agent, the Fronting Bank
and each Lender from time to time party to this Agreement.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"Security Document" means each of the documents delivered to the Agent
listed in Section 4 of Schedule 2 (Conditions Precedent) together with
any other document entered into by a Borrower or Kronos Denmark creating
or expressed to create Security over all or any part of its assets in
respect of the obligations of any of the Obligors under any of the
Finance Documents.
"Specified Time" means a time determined in accordance with Schedule 9
(Timetables).
"Structure Chart" means a chart showing the Parent and its Subsidiaries
and any direct shareholders of any member of the Group and the
relationship between all such entities.
"Subordination Agreement" means the subordination agreement entered into
between the Security Agent, the Parent and the German Borrower.
"Subsidiary" means in relation to any company or corporation, a company
or corporation:
(a) which is controlled, directly or indirectly, by the first mentioned
company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly by the first mentioned company or
corporation; or
(c) which is a Subsidiary of another Subsidiary of the first mentioned
company or corporation,
and for this purpose, a company or corporation shall be treated as being
controlled by another if that other company or corporation is able to
direct its affairs and/or to control the composition of its board of
directors or equivalent body.
"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).
"Term" means, in relation to any Letter of Credit, the period from its
Utilisation Date until its Expiry Date.
"Termination Date" means the date falling 36 Months after the date of
the Amendment Agreement.
"Total Commitments" means the aggregate of the Commitments, being EUR
80,000,000 at the date of this Agreement.
"Transaction Security" means the Security created or expressed to be
created in favour of the Security Agent and/or the Secured Parties
pursuant to the Security Documents or this Agreement.
"Transfer Certificate" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificate) or any other
form agreed between the Agent and the German Borrower.
"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 Agent executes the Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"US GAAP" means generally accepted accounting principles in the United
States of America.
"Utilisation" means a utilisation of the Facility, whether by way of
Loan or Letter of Credit.
"Utilisation Date" means the date of a Utilisation, being the date on
which a Loan is to be made or the relevant Letter of Credit is to be
issued.
"Utilisation Request" means a notice substantially in the form set out
in Schedule 3 (Utilisation Request).
1.2 Construction
(a) Unless a contrary indication appears, any reference in this
Agreement to:
(i) the "Agent", the "Mandated Lead Arranger", the "Security
Agent", any "Finance Party", any "Lender", the "Parent", any
"Obligor" or any "Party" shall be construed so as to include
its successors in title, permitted assigns and permitted
transferees;
(ii) "assets" includes present and future properties, revenues
and rights of every description;
(iii) the "European interbank market" means the interbank market
for euro operating in Participating Member States;
(iv) 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;
(v) "indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of
money, whether present or future, actual or contingent;
(vi) a Lender's "participation", in relation to a Letter of
Credit, shall be construed as a reference to the rights and
obligations of that Lender in relation to that Letter of
Credit as are expressly set out in this Agreement;
(vii) a "person" includes any individual, person, firm, company,
corporation, unincorporated organisation, government, state
or agency of a state or any association, trust, joint
venture or partnership (whether or not having separate legal
personality) or two or more of the foregoing;
(viii) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(ix) a provision of law is a reference to that provision as
amended or re-enacted; and
(x) a time of day is a reference to Luxembourg time.
(b) Section, Clause and Schedule headings are for ease of reference
only.
(c) 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.
(d) A Default (other than an Event of Default) is "continuing" if it
has not been remedied or waived and an Event of Default is
"continuing" if it has not been waived.
1.3 Currency Symbols and Definitions
"$" and "dollars" denote lawful currency of the United States of
America, "(pound)" and "sterling" denote lawful currency of the United
Kingdom, "NOK" and "kroner" denote lawful currency of Norway and "EUR"
and "euro" means the single currency unit of the Participating Member
States.
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 loan and letter of credit
facility in an aggregate amount equal to the Total Commitments.
2.2 Finance Parties' rights and obligations
(a) The obligations of each Finance Party under the Finance Documents
are several. Failure by a Finance Party 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 Finance Party under or in connection with the
Finance Documents are separate and independent rights and any debt
arising under the Finance Documents to a Finance Party from an
Obligor 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.
3. PURPOSE
3.1 Purpose
Each Borrower shall apply all amounts borrowed by it under the Facility
towards its general corporate purposes, including its working capital
requirements and refinancing its existing indebtedness.
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 Agent has
received all of the documents and other evidence listed in Schedule 2
(Conditions precedent) in form and substance satisfactory to the Agent,
except for the evidence referred to in paragraph 3 (a) of Schedule 2,
provided that such evidence must be received by the Agent no later than
on the Utilisation Date and prior to the first Utilisation. The Agent
shall notify the German Borrower and the Lenders promptly upon being so
satisfied.
4.2 Further conditions precedent
The Lenders and the Fronting Bank will only be obliged to comply with
Clause 5.4 (Lenders' and Fronting Bank participation) if on the date of
the Utilisation Request and on the proposed Utilisation Date:
(a) no Default is continuing or would result from the proposed Loan or
Letter of Credit, as the case may be; and
(b) the Repeating Representations to be made by each Obligor and Kronos
Denmark are true in all material respects.
4.3 Conditions relating to Optional Currencies
(a) A currency will constitute an Optional Currency in relation to a
Loan if:
(i) 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 Loan; and
(ii) it is either (y) dollars or kroner or (z) some other
currency that has been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to receipt by
the Agent of the relevant Utilisation Request for that Loan.
(b) If the Agent has received a written request from a Borrower for a
currency to be approved under paragraph (a)(ii) above, the Agent
will confirm to that Borrower by the Specified Time:
(i) whether or not the Lenders have granted their approval; and
(ii) if approval has been granted, the minimum amount (and, if
required, integral multiples) for any subsequent Utilisation
in that currency.
4.4 Maximum number of Loans
(a) A Borrower may not deliver a Utilisation Request if as a result of
the proposed Utilisation 8 or more Loans and/or 6 or more Letters
of Credit would be outstanding.
(b) Any Loan made by a single Lender under Clause 6.2 (Unavailability
of a currency) shall not be taken into account in this Clause 4.
SECTION 3
UTILISATION
5. UTILISATION
5.1 Delivery of a Utilisation Request
A Borrower may utilise the Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each 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 or Term, as the case may be,
complies with Clause 13 (Interest Periods and Terms).
(b) Only one Loan or Letter of Credit may be requested in each
Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be the Base
Currency or, in the case of Loans only, an Optional Currency.
(b) The amount of the proposed Loan or Letter of Credit must be:
(i) (in respect of a Loan) if the currency selected is the Base
Currency, a minimum of EUR 5,000,000 or, if less, the
Available Facility; or
(ii) if the currency selected is dollars, a minimum of $
5,000,000 or, if less, the Available Facility; or
(iii) if the currency selected is kroner, a minimum of NOK
50,000,000, or, if less, the Available Facility; or
(iv) if the currency selected is an Optional Currency other than
dollars or kroner, the minimum amount (and, if required,
integral multiple) specified by the Agent pursuant to
paragraph (b)(ii) of Clause 4.3 (Conditions relating to
Optional Currencies) or, if less, the Available Facility
provided that the minimum amount so specified by the Agent
does not materially exceed the minimum amount set out in
sub-paragraphs (i) of paragraph (b) above;
(v) (in respect of a Letter of Credit) an amount which, when
aggregated with the amount of Outstandings in respect of
Letters of Credit at such time, does not exceed EUR
5,000,000; and
(vi) in any event such that its Base Currency Amount is less than
or equal to the Available Facility.
5.4 Lenders' and Fronting Bank participation
(a) If the conditions set out in this Agreement have been met, (i) each
Lender shall make its participation in each Loan available by the
Utilisation Date through its Facility Office, and (ii) the Fronting
Bank shall issue each Letter of Credit through its Facility Office.
(b) The amount of each Lender's participation in each Loan and each
Letter of Credit will be equal to the proportion borne by its
Available Commitment to the Available Facility immediately prior to
making the Loan or issuing the Letter of Credit.
(c) The Agent shall determine the Base Currency Amount of each Loan
which is to be made in an Optional Currency and shall notify each
Lender of the amount, currency and the Base Currency Amount of each
Loan and the amount of its participation in that Loan, in each case
by the Specified Time.
6. OPTIONAL CURRENCIES
6.1 Selection of currency
A Borrower shall select the currency of a Loan in a Utilisation Request.
6.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a) a Lender notifies the Agent that the Optional Currency (other than
an Optional Currency which is dollars or kroner) requested is not
readily available to it in the amount required; or
(b) a Lender notifies the Agent that compliance with its obligation to
participate in a Loan in the proposed Optional Currency would
contravene a law or regulation applicable to it,
the 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 Loan in the Base Currency (in an amount equal to
that Lender's proportion of the Base Currency Amount or, in respect
of a Rollover Loan, an amount equal to that Lender's proportion of
the Base Currency Amount of the maturing Loan that is due to be
made) and its participation will be treated as a separate Loan
denominated in the Base Currency during that Interest Period.
6.3 Participation in a Loan
Each Lender's participation in a Loan will be determined in accordance
with paragraph (b) of Clause 5.4 (Lenders' and Fronting Bank
participation).
7. LETTERS OF CREDIT
7.1 Completion of Letters of Credit
The Fronting Bank is authorised to issue any Letter of Credit pursuant
to Clause 5 (Utilisation) by:
(a) completing the issue date and the proposed Expiry Date of that
Letter of Credit; and
(b) executing and delivering that Letter of Credit to the relevant
recipient on the Utilisation Date.
7.2 Renewal of a Letter of Credit
(a) Not less than three Business Days before the Expiry Date of a
Letter of Credit the Borrower may, by written notice to the Agent,
request that the Term of that Letter of Credit be extended.
(b) The Finance Parties shall treat the request in the same way as a
Utilisation Request for a Letter of Credit in the amount and
maturity of the Letter of Credit (as to be extended).
(c) The terms of each renewed Letter of Credit shall be the same as
those of the relevant Letter of Credit immediately prior to its
renewal, save that its Term shall commence on the date which was
the Expiry Date of that Letter of Credit immediately prior to its
renewal and shall end on the proposed Expiry Date specified in the
request.
(d) The Fronting Bank is authorised to amend any Letter of Credit
pursuant to a request if the conditions set out in this Agreement
have been complied with.
7.3 Restrictions on participation in Letters of Credit
If at any time prior to the issue of a Letter of Credit any Lender is
prohibited by law or pursuant to any request from or requirement of any
central bank or other fiscal, monetary or other authority from having
any right or obligation under this Agreement in respect of a Letter of
Credit, that Lender shall notify the Agent on or before the Business Day
prior to the proposed Utilisation Date and:
(a) the maximum actual and contingent liabilities of the Fronting Bank
under that Letter of Credit shall be reduced by an amount equal to
an amount which would have been the amount of that Lender's L/C
Proportion of that Letter of Credit if the prohibition had not
occurred;
(b) the L/C Proportion of that Lender in relation to that Letter of
Credit shall be nil; and
(c) that Lender's Available Commitment shall be reduced by an amount
equal to an amount which would have been the amount of that
Lender's L/C Proportion of the Letter of Credit if the prohibition
had not occurred.
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
8. REPAYMENT
8.1 Repayment of Loans
Each Borrower which has drawn a Loan shall repay that Loan on the last
day of its Interest Period.
9. BORROWER'S LIABILITIES IN RELATION TO LETTERS OF CREDIT
9.1 Demands under Letters of Credit
If a demand is made under a Letter of Credit or the Fronting Bank incurs
in connection with a Letter of Credit any other liability, cost, claim,
loss or expense which is to be reimbursed pursuant to this Agreement,
the Fronting Bank shall promptly notify the Agent of the amount of such
demand or such liability, cost, claim, loss or expense and the Letter of
Credit to which it relates and the Agent shall promptly make demand upon
the relevant Borrower in accordance with this Agreement and notify the
Lenders.
9.2 Borrowers' indemnity to Fronting Banks
The relevant Borrower shall irrevocably and unconditionally as a primary
obligation indemnify (within three Business Days of demand of the Agent)
the Fronting Bank at its request against:
(a) any sum paid or due and payable by the Fronting Bank under the
Letter of Credit; and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from the Fronting
Bank under any Letter of Credit or in connection with any such
Letter of Credit), claims, losses and out-of-pocket expenses which
the Fronting Bank may at any time incur or sustain in connection
with or arising out of any such Letter of Credit.
9.3 Borrowers' indemnity to Lenders
The relevant Borrower shall irrevocably and unconditionally as a primary
obligation indemnify (within three Business Days of demand of the Agent)
each Lender against:
(a) any sum paid or due and payable by that Lender (whether under
Clause 32.1 (Lenders' Indemnity) or otherwise) in connection with
that Letter of Credit; and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from that Lender in
connection with that Letter of Credit), claims, losses and expenses
which that Lender may at any time incur or sustain in connection
with any Letter of Credit.
9.4 Preservation of rights
Neither the obligations of the relevant Borrower set out in this Clause
9 nor the rights, powers and remedies conferred on the Fronting Bank or
Lender by this Agreement or by law shall be discharged, impaired or
otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of
the Fronting Bank, any Lender or any other person or any change in
its status, function, control or ownership;
(b) any of the obligations of the Fronting Bank, any Lender or any
other person under this Agreement or under any Letter of Credit or
under any other security taken in respect of its obligations under
this Agreement or otherwise in connection with a Letter of Credit
being or becoming illegal, invalid, unenforceable or ineffective in
any respect;
(c) time or other indulgence being granted or agreed to be granted to
the Fronting Bank, any Lender or any other person in respect of its
obligations under this Agreement or under or in connection with a
Letter of Credit or under any other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the Fronting Bank, any Lender or any other person
under a Letter of Credit or this Agreement;
(e) any other act, event or omission which, but for this Clause 9,
might operate to discharge, impair or otherwise affect any of the
obligations of the relevant Borrower set out in this Clause 9 or
any of the rights, powers or remedies conferred upon that Fronting
Bank or any Lender by this Agreement or by law.
The obligations of the relevant Borrower set out in this Clause 9 shall
be in addition to and independent of every other security which the
Fronting Bank or any Lender may at any time hold in respect of the
Borrower's obligations under this Agreement.
9.5 Settlement conditional
Any settlement or discharge between the relevant Borrower and the
Fronting Bank or a Lender shall be conditional upon no security or
payment to the Fronting Bank or Lender by the Borrower, or any other
person on behalf of the Borrower, being avoided or reduced by virtue of
any laws relating to bankruptcy, insolvency, liquidation or similar laws
of general application and, if any such security or payment is so
avoided or reduced, the Fronting Bank or Lender shall be entitled to
recover the value or amount of such security or payment from the
Borrower subsequently as if such settlement or discharge had not
occurred.
9.6 Right to make payments under Letters of Credit
The Fronting Bank shall be entitled to make any payment in accordance
with the terms of the relevant Letter of Credit without any reference to
or further authority from the relevant Borrower or any other
investigation or enquiry. The relevant Borrower irrevocably authorises
the Fronting Bank to comply with any demand under a Letter of Credit
which is valid on its face.
10. PREPAYMENT AND CANCELLATION
10.1 Illegality
If it becomes unlawful after the date of this Agreement in any
applicable jurisdiction for a Lender or the Fronting Bank to perform any
of its obligations as contemplated by this Agreement or to fund, issue
or participate in any Loan or Letter of Credit and without prejudice to
its rights and obligations under Clause 19 (Mitigation by the Lenders):
(a) that Lender or the Fronting Bank, as the case may be, shall
promptly notify the Agent upon becoming aware of that event;
(b) upon the Agent notifying the German Borrower (on behalf of the
Borrowers), the Commitment of that Lender will be immediately
cancelled; and
(c) upon cancellation of such Lender's Commitment, each Borrower shall:
(i) repay that Lender's participation in the Loans made to that
Borrower; and
(ii) ensure that the liabilities of that Lender or the Fronting
Bank under or in respect of each Letter of Credit are
reduced to zero or otherwise secured by providing Cash
Collateral in an amount equal to such Lender's L/C
Proportion of those Letters of Credit or the Fronting Bank's
maximum actual and contingent liabilities under that Letter
of Credit in the currency of those Letters of Credit
on the last day of the Interest Period for each Loan or Term for
each Letter of Credit, as the case may be, outstanding as at the
date upon which the Agent has so notified the German Borrower or,
if earlier, the date specified by the Lender in the notice
delivered to the Agent (being no earlier than the last day of any
applicable grace period permitted by law).
10.2 Voluntary cancellation
(a) The German Borrower may, if it gives the Agent not less than ten
(10) days' (or such shorter period as the Majority Lenders may
agree) prior written notice, cancel the whole or any part (being a
minimum amount of EUR 10,000,000) of the Available Facility. Any
cancellation under this Clause 10.2 shall reduce the Commitments of
the Lenders rateably.
(b) The relevant Borrower may give the Agent not less than ten Business
Days' prior notice of its intention to procure that the Fronting
Bank's liability under a Letter of Credit is reduced to zero
(whereupon it shall do so)
10.3 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender or the Fronting Bank by an
Obligor is required to be increased under Clause 16.2 (Tax
gross-up); or
(ii) any Lender or the Fronting Bank claims indemnification from
the Borrowers under Clause 16.3 (Tax indemnity) or Clause
17.1 (Increased costs); or
(iii) any Lender or Fronting Bank notifies the Agent of its
Additional Cost Rate under paragraph 3 of Schedule 4
(Mandatory Cost formulae),
the German Borrower may, whilst (in the case of paragraphs (i) and
(ii) above) the circumstance giving rise to the requirement or
indemnification continues or (in the case of paragraph (iii) above)
that the Additional Cost Rate is greater than zero, give the Agent
notice:
(1) of cancellation of the Commitment of that Lender and its
intention to procure the repayment of that Lender's
participation in the Loans; or
(2) (if such circumstance relates to the Fronting Bank) of
cancellation of the Letters of Credit or of the Borrower's
intention to provide Cash Collateral in respect of the
Fronting Bank's liability under such Letters of Credit.
(b) On receipt of a notice from the German Borrower 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 or Term, as the case may
be, which ends after the German Borrower has given notice under
paragraph (a) above (or, if earlier, the date specified by the
German Borrower in that notice), each Borrower to which a Loan or
Letter of Credit is outstanding shall repay that Lender's
participation in that Loan and shall procure either that such
Lender's L/C Proportion of each relevant Letter of Credit be
reduced to zero (by reduction of the amount of that Letter of
Credit in an amount equal to that Lender's L/C Proportion) or that
Cash Collateral be provided to the Agent in an amount equal to such
Lender's L/C Proportion of that Letter of Credit); and (if the
circumstance relates to the Fronting Bank) the Borrower shall
procure that the Fronting Bank's liability under any Letters of
Credit issued by it shall either be reduced to zero or otherwise
secured by the Borrower providing Cash Collateral in an amount
equal to the Fronting Bank's maximum actual and contingent
liabilities under those Letters of Credit.
10.4 Restrictions
(a) Any notice of cancellation or prepayment given by any Party under
this Clause 10 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) The Borrowers shall not repay or prepay all or any part of the
Outstandings 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 Agent receives a notice under this Clause 10 it shall
promptly forward a copy of that notice to either the German
Borrower or the affected Lender, as appropriate.
SECTION 5
COSTS OF UTILISATIONS
11. INTEREST
11.1 Calculation of interest
The rate of interest on each Loan 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 Loan in euro, EURIBOR; and
(c) Mandatory Cost, if any.
11.2 Payment of interest
The Borrower to which a Loan has been made shall pay accrued interest on
that Loan 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).
12. DEFAULT INTEREST
12.1 Default interest periods
If any sum due and payable by an Obligor hereunder is not paid on the
due date therefor in accordance with Clause 33.1 (Payments to the Agent)
or if any sum due and payable by an Obligor under any judgment of any
court in connection herewith is not paid on the date of such judgment,
the period beginning on such due date or, as the case may be, the date
of such judgment and ending on the date upon which the obligation of
such Obligor to pay such sum is discharged shall be divided into
successive periods, each of which (other than the first) shall start on
the last day of the preceding such period and the duration of each of
which shall (except as otherwise provided in this Clause 12) be selected
by the Agent.
12.2 Default interest
An Unpaid Sum shall bear interest, or, insofar as it relates to unpaid
interest, shall give rise to a claim for lump sum damages, during each
Interest Period in respect thereof at the rate per annum which is one
per cent. per annum above the percentage rate which would apply if it
had been a Loan in the amount and currency of such Unpaid Sum and for
the same Interest Period (provided that in the case of lump sum damages,
the Obligor shall be free to prove that no damage has arisen or that
damage has not arisen in the asserted amount, whereas in the case of
lump sum damages and default interest the Finance Party shall be
entitled to assert further damages), provided that if such Unpaid Sum
relates to a Loan which became due and payable on a day other than the
last day of an Interest Period relating thereto:
12.2.1 the first Interest Period applicable to such Unpaid Sum shall be of a
duration equal to the unexpired portion of the current Interest Period
relating to that Loan; and
12.2.2 the percentage rate of interest applicable thereto from time to time
during such period shall be that which exceeds by one per cent. the rate
which would have been applicable to it had it not so fallen due.
12.3 Payment of default interest
Any interest which shall have accrued under Clause 12.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the Obligor owing such Unpaid Sum on the last day of each
Interest Period in respect thereof or on such other dates as the Agent
may specify by notice to such Obligor.
12.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the relevant Borrower of
the determination of a rate of interest under this Agreement.
13. INTEREST PERIODS AND TERMS
13.1 Selection of Interest Periods and Terms
(a) A Borrower may select an Interest Period for a Loan and a Term for
a Letter of Credit in the Utilisation Request for that Loan or
Letter of Credit, as the case may be.
(b) Subject to this Clause 13, a Borrower may select an Interest Period
of one, two, three or six Months or any other period not exceeding
twelve Months agreed between such Borrower and the Agent (acting on
the instructions of all the Lenders).
(c) The Borrower may select a Term for a Letter of Credit of a period
not exceeding twelve months, ending on or before the Termination
Date.
(d) An Interest Period for a Loan and a Term for a Letter of Credit
shall not extend beyond the Termination Date.
(e) Each Interest Period for a Loan and each Term for a Letter of
Credit shall start on the Utilisation Date.
(f) A Loan has one Interest Period only.
13.2 Non-Business Days
If an Interest Period or Term would otherwise end on a day which is not
a Business Day, that Interest Period or Term, as the case may be, will
instead end on the next Business Day in that calendar month (if there is
one) or the preceding Business Day (if there is not).
14. CHANGES TO THE CALCULATION OF INTEREST
14.1 Absence of quotations
Subject to Clause 14.2 (Market disruption), if LIBOR or, if applicable,
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.
14.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share
of that Loan for the Interest Period shall be the rate per annum
which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender 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 Loan from
whatever source it may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(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 Agent
to determine LIBOR or, if applicable, EURIBOR for the
relevant currency and Interest Period; or
(ii) before close of business in Luxembourg on the Quotation Day
for the relevant Interest Period, the Agent receives
notifications from a Lender or Lenders (whose participations
in a Loan exceed 35 per cent. of that Loan) that the cost to
it of obtaining matching deposits in the Relevant Interbank
Market would be in excess of LIBOR or, if applicable,
EURIBOR.
14.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the German
Borrower so requires, the Agent and the German Borrower 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 all the Lenders and the German Borrower,
be binding on all Parties.
14.4 Break Costs
Each Borrower shall, within three Business Days of demand by a Finance
Party (which demand shall be accompanied by a certificate showing, in
reasonable detail, the calculation of the Break Costs incurred by such
Finance Party in respect of the relevant Interest Period), pay to that
Finance Party its Break Costs attributable to all or any part of a Loan
or Unpaid Sum being paid by that Borrower on a day other than the last
day of an Interest Period for that Loan or Unpaid Sum.
15. FEES
15.1 Commitment fee
(a) Each of the Borrowers shall jointly and severally pay to the Agent
(for the account of each Lender) a fee in the Base Currency
computed at the rate of 0.45 per cent. per annum on that Lender's
Available Commitment for the Availability Period, provided that the
Norwegian Borrowers shall only be liable to the extent which is
permitted under the Norwegian Companies Xxx 0000 Section 8-7.
(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.
15.2 Utilisation fee
(a) If at any time the total amount of the Loans exceeds 50 per cent.
of the Total Commitments then the Borrowers shall pay to the Agent
(for the account of each Lender) a utilisation fee in the Base
Currency computed at the rate of 0.15 per cent. per annum of the
total amount of such Loans calculated on a daily basis.
(b) The fee referred to in sub-clause (a) above shall be payable
jointly and severally by each of the Borrowers in the Base Currency
on the last day of each successive period of three Months and on
the Termination Date, provided that the Norwegian Borrowers shall
only be liable to the extent which is permitted under the Norwegian
Companies Xxx 0000 Section 8-7.
15.3 Agency and security handling fee
Each of the Borrowers shall jointly and severally pay to Deutsche Bank
Luxembourg S.A. for its own account in its capacity as Agent and
Security Agent an agency and security handling fee in the amount and at
the times agreed in a Fee Letter provided that the Norwegian Borrowers
shall only be liable to the extent which is permitted under the
Norwegian Companies Xxx 0000 Section 8-7.
15.4 Letter of Credit Commission
(a) The relevant Borrower shall, in respect of each Letter of Credit,
pay to the Agent (for the account of each Lender) (for distribution
in proportion to each Lender's L/C Proportion of that Letter of
Credit) a letter of credit commission at the L/C Commission Rate on
the maximum actual and contingent liabilities of the Fronting Bank
under the relevant Letter of Credit.
(b) The letter of credit commission shall be paid in advance in respect
of each successive period of three Months (or such shorter period
as shall end on the relevant Expiry Date) which begins during the
Term of the relevant Letter of Credit, the first payment to be made
on the Utilisation Date for that Letter of Credit and after that on
the first day of each such period.
15.5 Fronting Bank Fee
The relevant Borrower shall, in respect of each Letter of Credit, pay to
the Fronting Bank a fee in the amounts and at the times agreed between
such Fronting Bank and the Borrower.
15.6 Arrangement and Participation Fee
Each of the Borrowers shall jointly and severally pay to Deutsche Bank
AG for its own account in its capacity as Mandated Lead Arranger an
arrangement and participation fee in the amount and at the times agreed
in a Fee Letter, provided that the Norwegian Borrowers shall only be
liable to the extent which is permitted under the Norwegian Companies
Xxx 0000 Section 8-7.
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
16. TAX GROSS UP AND INDEMNITIES
16.1 Definitions
In this Agreement:
"Qualifying Lender" means any Lender which is a bank or financial
institution and which is incorporated or resident or acting out of a
Facility Office in a member state of the European Union (but excluding
the United Kingdom of Great Britain and Northern Ireland), provided that
with regard to any Original Lender, Qualifying Lender means any Original
Lender which is a bank or financial institution and is a resident for
tax purposes in either Germany, Norway, Luxembourg or the Netherlands or
is acting out of a Facility Office, registered with the Belgian Banking
and Finance Commission, in Belgium.
16.2 Tax gross-up
All payments to be made by an Obligor to any Finance Party hereunder
shall be made free and clear of and without deduction for or on account
of Tax unless such Obligor is required to make such a payment subject to
the deduction or withholding of Tax, in which case the sum payable by
such Obligor (in respect of which such deduction or withholding is
required to be made) shall be increased to the extent necessary to
ensure that such Finance Party receives a sum net of any withholding or
deduction equal to the sum which it would have received had no such
deduction or withholding been made or required to be made.
16.3 Tax indemnity
Without prejudice to Clause 16.2 (Tax Gross-up), if any Finance Party is
required to make any payment of or on account of Tax on or in relation
to any sum received or receivable hereunder (including any sum deemed
for the purposes of Tax to be received or receivable by such Finance
Party whether or not actually received or receivable) or if any
liability in respect of any such payment is asserted, imposed, levied or
assessed against any Finance Party, the Borrowers shall, upon demand of
the Agent, promptly indemnify the Finance Party which suffers a loss or
liability as a result against such payment or liability together with
any interest, penalties, costs and expenses payable or incurred in
connection therewith, provided that this Clause 16.3 shall not apply to:
(a) any Tax imposed on and calculated by reference to the net income
actually received or receivable by such Finance Party (but, for the
avoidance of doubt, not including any sum deemed for purposes of
Tax to be received or receivable by such Finance Party but not
actually receivable) by the jurisdiction in which such Finance
Party is incorporated and any other jurisdiction where such Finance
Party is subject to such tax; or
(b) any Tax imposed on and calculated by reference to the net income of
the Facility Office of such Finance Party actually received or
receivable by such Finance Party (but, for the avoidance of doubt,
not including any sum deemed for purposes of Tax to be received or
receivable by such Finance party but not actually receivable) by
the jurisdiction in which its Facility Office is located and any
other jurisdiction where such Finance Party is subject to such tax.
16.4 Claims by Finance Parties
16.4.1 A Finance Party intending to make a claim pursuant to Clause 16.3 (Tax
indemnity) shall notify the Agent of the event giving rise to the claim,
whereupon the Agent shall notify the Borrowers thereof.
16.4.2 A Lender and each Obligor which makes a payment or would be required to
make a payment under this Clause 16 (Tax Gross-Up and Indemnities) shall
co-operate in completing any procedural formalities necessary for that
Obligor to (i) obtain authorisation to make that payment without a
deduction or withholding, and (ii) provide any relevant information
which would be required by any relevant taxation authority from the
Obligor or the Lender in order to justify a payment made without a
deduction or withholding.
16.5 Notification of requirement to deduct Tax
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it hereunder (or if thereafter there
is any change in the rates at which or the manner in which such
deductions or withholdings are calculated), such Obligor shall promptly
notify the Agent.
16.6 Evidence of payment of Tax
If an Obligor makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full
amount required to be deducted or withheld to the relevant taxation or
other authority within the time allowed for such payment under
applicable law and shall deliver to the Agent for each Lender, within
sixty days after it has made such payment to the applicable authority,
an original receipt (or a certified copy thereof) issued by such
authority evidencing the payment to such authority of all amounts so
required to be deducted or withheld in respect of that Lender's share of
such payment.
16.7 Excluded Claims
If any Lender is not or ceases to be a Qualifying Lender, or if the
circumstances set out in Clause 27.2(g) apply or if any Lender fails to
cooperate as required under Clause 16.4.2, no Obligor shall be liable to
pay to that Lender under Clause 16.2 (Tax gross-up) or Clause 16.3 (Tax
indemnity) any amount in respect of Taxes asserted, assessed, levied or
imposed in excess of the amount it would have been obliged to pay if
that Lender had been or had not ceased to be a Qualifying Lender or had
cooperated provided that this Clause 16.7 (Excluded claims) shall not
apply (and each Obligor shall be obliged to comply with its obligations
under Clause 16.2 (Tax gross-up) or Clause 16.3 (Tax indemnity)) if:
(a) after the date hereof and after the date when such Lender first
becomes a Lender for the purposes of this Agreement, there shall
have been any introduction of, change in, or change in the
interpretation, administration or application of, any law or
regulation or order or governmental rule or treaty or any published
practice or published concession of any relevant tax authority and
it is as a result thereof that such Lender was not or ceased to be
a Qualifying Lender; or
(b) such Lender is not or ceases to be a Qualifying Lender but would
have been or would not have ceased to be, a Qualifying Lender, had
all representations, confirmations and other documents and
information provided by each Obligor to any Finance Party been true
and accurate.
16.8 Tax credit payment
If an additional payment is made under Clause 16 (Tax gross-up and
indemnities) by an Obligor for the benefit of any Finance Party,
including for the avoidance of doubt any payment in respect of any
deduction or withholding, and such Finance Party, in its reasonable
discretion, determines that it has obtained a credit against, a relief
or remission for, or repayment of, any tax, then, if and to the extent
that such Finance Party, in its sole opinion, determines that:
16.8.1 such credit, relief, remission or repayment is in respect of or
calculated with reference to the additional payment made pursuant to
Clause 16 (Tax gross-up and indemnities); and
16.8.2 its tax affairs for its year in respect of which such credit, relief,
remission or repayment was obtained have been finally settled,
such Finance Party shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief,
remission or repayment, pay to such Obligor such amount as such Finance
Party shall, in its reasonable opinion, determine to be the amount which
will leave such Finance Party (after such payment) in no worse after-tax
position than it would have been in had the additional payment in
question not been required to be made by such Obligor.
16.9 Tax credit clawback
If any Finance Party makes any payment to an Obligor pursuant to Clause
16.8 (Tax credit payment) and such Finance Party subsequently
determines, in its reasonable opinion, that the credit, relief,
remission or repayment in respect of which such payment was made was not
available or has been withdrawn or that it was unable to use such
credit, relief, remission or repayment in full, such Obligor shall
reimburse such Finance Party such amount as such Finance Party
determines, in its reasonable opinion, is necessary to place it in the
same after-tax position as it would have been in if such credit, relief,
remission or repayment had been obtained and fully used and retained by
such Finance Party.
16.10 Tax and other affairs
Subject to the provisions of Clause 19 (Mitigation by the Lenders) no
provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever manner
it thinks fit, oblige any Finance Party to claim any credit, relief,
remission or repayment in respect of any payment under Clause 16 (Tax
gross-up and indemnities) in priority to any other credit, relief,
remission or repayment available to it nor oblige any Finance Party to
disclose any information relating to its tax or other affairs or any
computations in respect thereof.
16.11 Stamp taxes
The Borrowers shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
16.12 Value added tax
(a) All consideration expressed to be payable under a Finance Document
by any Party 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 any Party to reimburse a Finance
Party for any costs or expenses, that Party shall also at the same
time pay and indemnify the Finance Party against all VAT incurred
by the Finance Party in respect of the costs or expenses to the
extent that the Finance Party reasonably determines that it is not
entitled to credit or repayment of the VAT.
17. INCREASED COSTS
17.1 Increased costs
(a) Subject to Clause 17.3 (Exceptions) the Borrowers shall, within
three Business Days of a demand by the 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 in the interpretation,
administration 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 or Letter of Credit.
17.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause 17.1
(Increased costs) shall notify the Agent of the event giving rise
to the claim, following which the Agent shall promptly notify the
Borrowers.
(b) Each Finance Party shall, as soon as practicable after a demand by
the Agent, provide a certificate confirming the amount of and basis
for its Increased Costs and showing in reasonable detail the
calculation thereof.
In determining such Increased Costs, each Finance Party will act
reasonably and in good faith and on a non-discretionary basis.
17.3 Exceptions
(a) Clause 17.1 (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 an Obligor;
(ii) compensated for by Clause 16.3 (Tax indemnity) (or would
have been compensated for under Clause 16.3 (Tax indemnity)
but was not so compensated solely because the exclusion in
paragraphs (a) and (b) of Clause 16.3 (Tax indemnity)
applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation.
(b) In this Clause 17.3, a reference to a "Tax Deduction" means any
deduction or withholding for or on account of Tax from a payment
under a Finance Document
18. OTHER INDEMNITIES
18.1 Currency indemnity
(a) If any sum due from 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 that Obligor;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three
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) To the extent permitted by applicable law, 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.
18.2 Other indemnities
The Borrowers shall, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability incurred by that
Finance Party as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by 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 31 (Sharing among
the Finance Parties);
(c) funding, or making arrangements to fund, its participation in a
Loan 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 or negligence by
that Finance Party alone);
(d) issuing or making arrangements to issue a Letter of Credit
requested by the Borrower in a Utilisation Request but not issued
by reason of the operation of any one or more of the provisions of
this Agreement; or
(e) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by a Borrower.
18.3 Indemnity to the Agent
The Borrowers shall promptly indemnify the Agent against any cost, loss
or liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default;
or
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
19. MITIGATION BY THE LENDERS
19.1 Mitigation
(a) Each Finance Party shall, in consultation with the relevant
Borrower, 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 10.1
(Illegality), Clause 16 (Tax gross-up and indemnities), Clause 17
(Increased costs) or paragraph 3 of Schedule 4 (Mandatory Cost
formulae) including (but not limited to) transferring its rights
and obligations under the Finance Documents to another Affiliate or
Facility Office or to another Lender which is willing to accept
such transfer.
(b) Paragraph (a) above does not in any way limit the obligations of
any Obligor under the Finance Documents.
19.2 Limitation of liability
(a) Prior to taking any of the steps referred to in Clause 19.1
(Mitigation) the relevant Finance Party will consult with the
relevant Borrower and following a request from such Borrower will
provide the relevant Borrower with an estimate of any costs and
expenses which are likely to be incurred by it as a result of it
taking such steps. The Borrower shall then be entitled to request
that the relevant Finance Party does not take those steps.
(b) The relevant Borrower shall indemnify each Finance Party for all
costs and expenses reasonably incurred by that Finance Party as a
result of steps taken by it under Clause 19.1 (Mitigation).
(c) A Finance Party is not obliged to take any steps under Clause 19.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it. The incurring of
minor costs and expenses of an administrative nature will not be
regarded as prejudicial to such Finance Party.
20. COSTS AND EXPENSES
20.1 Transaction expenses
Each of the Borrowers shall promptly on demand pay the Agent, the
Mandated Lead Arranger and the Security Agent the amount of all
reasonable out-of-pocket costs and expenses (including legal fees of
outside counsel) reasonably incurred by any of them in connection with
the negotiation, preparation, printing, execution and syndication and
perfection of:
(a) this Agreement, the Security Documents and any other documents
referred to in this Agreement and the Transaction Security; and
(b) any other Finance Documents executed after the date of this
Agreement.
20.2 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 33.9 (Change of currency), each
of the Borrowers shall, within three Business Days of demand, reimburse
the Agent for the amount of all reasonable out-of-pocket costs and
expenses (including reasonable legal fees of outside counsel) reasonably
incurred by the Agent in responding to, evaluating, negotiating or
complying with that request or requirement.
20.3 Enforcement costs
Each of the Borrowers shall, within three Business Days of demand, pay
to each Secured Party and the Mandated Lead Arranger the amount of all
reasonable out-of-pocket costs and expenses (including legal fees)
reasonably incurred by that Secured Party or the Mandated Lead Arranger
in connection with the enforcement of, or the preservation of any
rights, powers and remedies under any Finance Document and the
Transaction Security and any proceedings instituted by or against the
Security Agent as a consequence of taking or holding the Transaction
Security or enforcing those rights, powers and remedies.
20.4 Limitation
Notwithstanding anything to the contrary in any Finance Document, the
Borrower shall not be obliged to pay any losses, costs or expenses under
any Finance Document arising from or relating to disputes solely among
the Agent and the Lenders, or losses, costs or expenses of the Agent or
any Lender resulting from its gross negligence or wilful misconduct.
SECTION 7
GUARANTEE ON FIRST DEMAND (GARANTIE AUF ERSTES ANFORDERN)
21. GUARANTEE AND INDEMNITY
21.1 Guarantee and indemnity
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees (garantiert) 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 (Garantie auf erstes
Anfordern); 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.
21.2 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.
21.3 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.
21.4 Waiver of defences
The obligations of each Guarantor under this Clause 21 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 21 (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;
(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.
21.5 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 21. This waiver
applies irrespective of any law or any provision of a Finance Document
to the contrary.
21.6 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
after the occurrence of a Default:
(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 21.
21.7 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 and unless the 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 of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents by
any Finance Party.
21.8 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.
21.9 Guarantee Limitation Norway
Notwithstanding anything to the contrary contained in this Clause 21,
the obligation of the Norwegian Guarantor under this Clause 21 in
respect of the obligations of any Borrower other than a Norwegian
Borrower shall be deemed to be granted and incurred by the Norwegian
Guarantor only to the extent which is permitted under the Norwegian
Companies Xxx 0000 Section 8-7.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
22. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 22 as to itself and its Subsidiaries (in each case to the extent
applicable) to each Finance Party on the date of this Agreement.
22.1 Status
(a) It is a corporation, duly incorporated and validly existing under
the law of its jurisdiction of incorporation.
(b) It and each of its Subsidiaries has the power to own its assets and
carry on its business as it is being conducted.
22.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
to which it is a party are, subject to any general principles of law
limiting its obligations which are specifically referred to in any legal
opinion delivered pursuant to Clause 4 (Conditions of Utilisation),
legal, valid, binding and enforceable obligations.
22.3 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 and the
granting of the Security under the Security Documents to which it is a
party do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) its and each of its Subsidiaries' constitutional documents; or
(c) any agreement or instrument binding upon it or any of its
Subsidiaries or any of its or any of its Subsidiaries' assets the
violation of which would reasonably be expected to have a Material
Adverse Effect.
22.4 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.
22.5 Validity and admissibility in evidence
All Authorisations required or desirable:
(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 each Relevant Jurisdiction,
have been obtained or effected and are in full force and effect.
22.6 Governing law and enforcement
(a) Subject to any general principles of law affecting the choice of
the governing law which are specifically referred to in any legal
opinion delivered pursuant to Clause 4 (Conditions of Utilisation),
the choice of the governing law specified in each of the Finance
Documents to which it is a party will be recognised and enforced in
each Relevant Jurisdiction.
(b) Subject to any general principles of law affecting the recognition
and enforcement of judgments which are specifically referred to in
any legal opinion delivered pursuant to Clause 4 (Conditions of
Utilisation), any judgment obtained in Germany in relation to a
Finance Document to which it is a party will be recognised and
enforced in each Relevant Jurisdiction.
22.7 Deduction of Tax
Subject to the Legal Reservations, it is not required under the law of
each Relevant Jurisdiction to make any deduction for or on account of
Tax from any payment it may make under any Finance Document.
22.8 No filing or stamp taxes
Under the law of each Relevant Jurisdiction it is not necessary that the
Finance Documents to which it is a 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 the
Finance Documents to which it is a party or the transactions
contemplated by such Finance Documents except for Belgian stamp duties
of EUR 0.15 payable on any loan or credit agreement and any pledge
agreement executed in Belgium, subject to the conditions of the Belgian
Stamp Duties Code (Wetboek Zegelrechten) of 26 June 1947 and Belgian
registration, stamp and other duties payable in respect of any Belgian
law floating charge.
22.9 No default
(a) No Default is continuing or would 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
it or any of its Subsidiaries or to which its (or its
Subsidiaries') assets are subject which would reasonably be
expected to have a Material Adverse Effect.
22.10 No misleading information
Any factual information heretofore or contemporaneously furnished by or
on behalf of the Parent or any member of the Group in writing to any
Finance Party for purposes of or in connection with the Finance
Documents or any transaction contemplated therein is true and accurate
in all material respects on the date as of which such information is
dated or certified and not incomplete by omitting to state any fact
necessary to make such information not misleading in any material
respect at such time.
22.11 Financial statements
(a) Its Original Financial Statements were prepared in accordance with
Applicable GAAP consistently applied.
(b) Its Original Financial Statements fairly represent its financial
condition and operations (consolidated in the case of the Norwegian
Guarantor) during the relevant financial year.
(c) There has been no material adverse change in the business, assets
or financial condition of the German Borrower, the Belgian Borrower
or the Group taken as a whole since the date of the Original
Financial Statements.
22.12 Pari passu ranking
Save as provided in Clause 22.17 (Ranking), its payment obligations
under the Finance Documents to which it is a party 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.
22.13 No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect have been
started or (to the best of its knowledge and belief) threatened in
writing against it or any of its Subsidiaries.
22.14 Environmental compliance
Each member of the Group has performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or agreements directly or
indirectly concerned with any contamination, pollution or waste or the
release or discharge of any toxic or hazardous substance in connection
with any real property which is or was at any time owned, leased or
occupied by any member of the Group or on which any member of the Group
has conducted any activity where failure to do so would reasonably be
expected to have a Material Adverse Effect.
22.15 Environmental Claims
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened in writing against any member of the
Group where that claim would be reasonably likely, if determined against
that member of the Group, to have a Material Adverse Effect.
22.16 No Security
No Security exists over all or any of the present or future assets of
any Obligor other than any Security permitted under Clause 25.3
(Negative pledge).
22.17 Ranking
Subject to the Legal Reservations, each Security Document to which it is
a party has or will have first ranking priority and it is not subject to
any prior ranking or pari passu ranking Security.
22.18 Transaction Security
Subject to the Legal Reservations, each Security Document to which it is
a party validly creates the Security which is expressed to be created by
that Security Document and evidences the Security it is expressed to
evidence.
22.19 Legal and beneficial owner
It is the absolute legal and beneficial owner of the assets subject to
the Transaction Security created or expressed to be created pursuant to
the Security Documents to which it is a party.
22.20 No winding-up
None of the events described in Clause 26.6 (Insolvency) and Clause 26.7
(Insolvency proceedings) have occurred in relation to any Obligor.
22.21 Structure Chart
The Structure Chart dated March 20051 provided by the Obligors prior to
the date of this Agreement is true, complete and accurate in all
material respects as at the date hereof and nothing has occurred or been
omitted as at the date hereof that renders the information contained in
the Structure Chart untrue or misleading in any material respect.
22.22 Repetition
The Repeating Representations are to be made by each Obligor and Kronos
Denmark by reference to the facts and circumstances then existing on the
date of each Utilisation Request and the first day of each Interest
Period by delivery of a Certificate to that effect.
23. INFORMATION UNDERTAKINGS
The undertakings in this Clause 23 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.
23.1 Financial statements of the Obligors
(a) Each Obligor shall supply to the Agent in sufficient copies for all
the Lenders as soon as the same become available, but in any event
within 150 days after the end of each of its financial years (i)
its audited consolidated financial statements for that financial
year (if any) and (ii) its audited unconsolidated financial
statements for that financial year.
(b) Any financial statements to be delivered pursuant to paragraph (a)
above shall (i) be prepared using Applicable GAAP, (ii) be
certified by the Chief Executive Officer and/or the Chief Financial
Officer (or equivalent position) of the relevant Obligor, together
with one of its authorised signatories, as fairly representing its
financial condition as at the date as at which those financial
statements were drawn up and (iii) be certified by the relevant
Obligor's external auditors.
23.2 Financial statements of the Parent
(a) The Borrowers shall supply to the Agent in sufficient copies for
all the Lenders:
(i) as soon as the same become available, but in any event
within 100 days after the end of each financial year of the
Parent the audited consolidated financial statements of the
Parent for that financial year; and
(ii) as soon as the same become available, but in any event
within 55 days after the end of each quarter of each
financial year of the Parent the unaudited consolidated
financial statements of the Parent for that period.
(b) Any financial statements to be delivered pursuant to paragraph (a)
above shall be prepared using Applicable GAAP.
23.3 Combining financial information
(a) The Borrowers shall supply to the Agent in sufficient copies for
all the Lenders:
(i) as soon as they become available, but in any event within
120 days after the end of each financial year of the Parent
an unaudited Combining Schedule for that financial year;
(ii) as soon as they become available, but in any event within 60
days after the end of each quarter of each financial year of
the Parent, an unaudited Combining Schedule for the period
as of the beginning of the financial year and ending on such
quarter.
(b) Each of the Obligors shall procure that each of the Combining
Schedules delivered pursuant to paragraph (a) above are prepared by
the Parent and the Obligors using US GAAP.
(c) Any Combining Schedule to be delivered pursuant to paragraph (a)
above shall (i) be prepared using US GAAP, (ii) be certified by the
Chief Executive Officer and/or Chief Financial Officer (or
equivalent position) of the Parent, together with one of its
authorised signatories, as fairly representing the financial
condition of the Group as at the date as at which those Combining
Schedules were drawn up and (iii) in the case of the Combining
Schedule to be delivered pursuant to Clause 23.3(a)(i) above, be
accompanied by a report from the Parent's external auditors in the
form of Schedule 13 (Form of Auditor's Report).
23.4 Compliance Certificate
(a) The Borrowers shall supply to the Agent, with each Combining
Schedule delivered pursuant to paragraphs (a) and (b) of Clause
23.3 (Combining financial information), a Compliance Certificate
setting out (in reasonable detail) computations as to compliance
with Clause 24 (Financial covenants) as at the date as at which
those Combining Schedules were prepared.
(b) Each Compliance Certificate shall be signed by the Chief Executive
Officer, Chief Financial Officer or any other executive officer,
together with one authorised signatory of the German Borrower, who
in each case will sign on behalf of all Borrowers which hereby
authorise the aforementioned persons to do so, and, (in the case of
a Compliance Certificate delivered pursuant to Clause 23.3 (a)
(i)), accompanied by a letter from the Parent's external auditors
in the form set out in part II of Schedule 6 (Form of Compliance
Certificate).
23.5 Information: miscellaneous
The Obligors shall (through the German Borrower) supply to the Agent (in
sufficient copies for all the Lenders, if the Agent so requests):
(a) all documents dispatched by any of the Obligors or the Parent to
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 which are
current, threatened or pending against any member of the Group, and
which, if adversely determined, would reasonably be expected to
have a Material Adverse Effect; and
(c) promptly, such further information regarding the financial
condition, business and operations of any member of the Group as
any Finance Party (through the Agent) may reasonably request.
23.6 Notification of default
(a) Each Obligor shall notify the 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) Promptly upon a request by the Agent, the Borrower shall supply to
the Agent a certificate signed by two of its directors or senior
officers 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).
24. FINANCIAL COVENANTS
24.1 Financial definitions
In this Clause 24:
"EBITDA" means, for any Relevant Period the income of the Group before
Net Interest, before any provision on account of taxation and before any
amount attributable to the amortisation of intangible assets and
depreciation of tangible assets.
"Equity" means at any time the aggregate amount of the total assets of
the Group less (i) the total liabilities of the Group but excluding
changes due to foreign currency translation or any other item of other
comprehensive income as defined by US GAAP after 31 December 2004 and
(ii) any intangible assets of the Group as defined by US GAAP (including
for the avoidance of doubt any goodwill). Equity shall be reduced by (x)
the aggregate amount of all loans made by any member of the Group (other
than (a) loans to another member of the Group, (b) loans resulting from
transactions permitted by Clause 25.4 (Disposals) paragraph (b)
sub-paragraph (ii) and (ix) provided that such loan or the respective
disposal is not otherwise prohibited by this Agreement and the amount of
such loan does not exceed the fair market value of the respective assets
disposed and (c) loans resulting from any conversion of accounts
receivables into notes up to an aggregate amount of EUR 5,000,000 (or
its equivalent in another currency or currencies)) that are outstanding
as of such time to the extent such loans have been included in the total
assets of the Group as of such time, and (y) the aggregate nominal
amount of any indebtedness in respect of which any guarantee or
indemnity has been granted by any member of the Group (other than a
guarantee or indemnity permitted pursuant to the definition of Permitted
Loans and Guarantees).
"Financial Quarter" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"Net Financial Debt" means at any time, without duplication, the
aggregate amount of all obligations of the Group for or in respect of
Financial Indebtedness less any cash or Cash Equivalent Investments of
the Group (except for any such Cash Equivalent Investments that are
subject to any Security securing Financial Indebtedness other than
Financial Indebtedness outstanding with respect to the Finance
Documents).
"Net Interest" means in respect of any Relevant Period, the aggregate
amount of the interest (including the interest element of leasing and
hire purchase payments and capitalised interest), commission, fees,
discounts and other finance payments payable by any member of the Group
on a Combining Schedule (including any commission, fees, discounts and
other finance payments payable by any member of the Group under any
interest rate hedging arrangement but deducting any commission, fees,
discounts and other finance payments receivable by any member of the
Group under any interest rate hedging instrument) but deducting any
other interest receivable by any member of the Group on any deposit or
bank account.
"Net Secured Debt" means at any time the aggregate amount of all
obligations of the Group for or in respect of Net Financial Debt which
is secured by any Security (and so that no amount shall be included more
than once).
"Quarter Date" means each of 31 March, 30 June, 30 September and 31
December.
"Relevant Period" means each period of twelve months ending on the last
day of the Group's financial year and each period of twelve months
ending on the last day of each of the first, second and third Financial
Quarter of the Group's financial year.
"Rolling Basis" means the calculation of a ratio or an amount made at
the end of a Financial Quarter in respect of that Financial Quarter and
each of the preceding three Financial Quarters.
24.2 Financial condition
Each Borrower shall ensure that:
(a) The ratio of (i) Net Secured Debt of the Group at the end of the
applicable Relevant Period to (ii) EBITDA of the Group, calculated
on a Rolling Basis, shall not in respect of any Relevant Period be
more than 0.70:1.
(b) The ratio of (i) Net Financial Debt of the Group at the end of the
applicable Relevant Period to (ii) the consolidated Equity of the
Group at the end of the applicable Relevant Period shall not in
respect of any Relevant Period be more than 0.5:1.
24.3 Financial testing
The financial covenants set out in Clause 24.2 (Financial condition)
shall be tested quarterly in accordance with US GAAP by reference to
each of the Combining Schedules as evidenced by each Compliance
Certificate delivered pursuant to Clause 23.4 (Compliance certificate).
25. GENERAL UNDERTAKINGS
The undertakings in this Clause 25 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.
25.1 Authorisations
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in
full force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of the Relevant
Jurisdictions to enable it to perform its obligations under the Finance
Documents to which it is a party and to ensure the legality, validity,
enforceability or admissibility in evidence in each Relevant
Jurisdiction of incorporation of any Finance Document.
25.2 Compliance with laws
Each Obligor shall comply in all material respects with all laws to
which it may be subject, if failure so to comply would materially impair
its ability to perform its obligations under the Finance Documents.
25.3 Negative pledge
(a) No Obligor shall (and each Obligor shall ensure that none of its
Subsidiaries will) create or permit to subsist any Security over
any of its assets.
(b) No Obligor shall (and each Obligors shall ensure that no of its
Subsidiaries will):
(i) sell, transfer or otherwise dispose of any of its assets on
terms whereby they are or may be leased to or re-acquired by
an Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its
receivables on recourse terms other than to the German
Borrower and where such transaction is not otherwise
prohibited by this Agreement;
(iii) enter into any arrangement under which money or the benefit
of a bank or other account may be applied, set-off or made
subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a
similar effect,
in circumstances where the arrangement or transaction is entered
into primarily as a method of raising Financial Indebtedness or of
financing the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to:
(i) any Security listed in Schedule 7 (Existing Security)
(including any Security which has been Refinanced provided
that the assets subject to such Security have not materially
changed in any way) except to the extent the principal
amount secured by that Security exceeds the amount stated in
that Schedule;
(ii) any netting or set-off arrangement entered into by any
member of the Group in the ordinary course of its banking
arrangements for the purpose of netting debit and credit
balances;
(iii) any Security entered into in the ordinary course of business
under customary general business conditions;
(iv) any lien arising by operation of law or regulatory
requirement and in the ordinary course of business and not
as a result of a default howsoever described;
(v) any Security arising by operation of law in favour of any
government, state or local authority in respect of Taxes
which are either (a) not yet due and unpaid or (b) being
contested in good faith by appropriate proceedings and for
which adequate reserves have been made;
(vi) any Security over or affecting any asset acquired by a
member of the Group after the date of this Agreement if:
(1) the Security was not created in contemplation of the
acquisition of that asset by a member of the Group;
and
(2) the principal amount secured has not been increased
in contemplation of, or since the acquisition of
that asset by a member of the Group;
(vii) any Security over or affecting any asset of any company
which becomes a member of the Group after the date of this
Agreement, where the Security is created prior to the date
on which that company becomes a member of the Group, if:
(1) the Security was not created in contemplation of the
acquisition of that company; and
(2) the principal amount secured has not increased in
contemplation of or since the acquisition of that
company;
(viii) the Transaction Security;
(ix) any Security which has been approved in writing by the
Majority Lenders;
(x) any Security incurred or deposits made in the ordinary
course of business in connection with workers' compensation,
unemployment insurance and other types of social security,
including any Security securing letters of credit issued in
the ordinary course of business in accordance with past
practice;
(xi) any Security over assets of the Norwegian Borrower 2
acquired with Financial Indebtedness permitted under
paragraph (k) of the definition of Permitted Financial
Indebtedness provided that such Security is removed upon the
full discharge of the relevant Permitted Financial
Indebtedness incurred to finance the payment of the purchase
price for such asset; or
(xii) any Security securing indebtedness the principal amount of
which (when aggregated with the principal amount of any
other indebtedness which has the benefit of Security given
by any member of the Group other than any permitted under
paragraphs (i) to (ix) above) does not exceed EUR 5,000,000
its equivalent in another currency or currencies).
25.4 Disposals
(a) No Obligor shall (and each Obligor shall ensure that none of its
Subsidiaries will), enter into a single transaction or a series of
transactions (whether related or not) and whether voluntary or
involuntary to sell, lease, transfer or otherwise dispose of any
asset.
(b) Paragraph (a) above does not apply to any sale, lease, transfer or
other disposal:
(i) which is made on arm's length terms and for fair market
value in the ordinary course of trading or business of the
disposing entity;
(ii) of assets which are obsolete;
(iii) which is made from any Obligor to another Obligor;
(iv) which is made from any Obligor to a wholly-owned subsidiary
being a member of the Group which is not an Obligor,
provided that the fair market value of the assets to be
disposed of does not, when aggregated with the fair market
value of all other assets disposed of pursuant to this
paragraph (b)(iv) exceed EUR 5,000,000 (or its equivalent in
any other currency or currencies);
(v) of assets in exchange for other assets comparable or
superior as to type, value and quality;
(vi) which is a Permitted Affiliate Transaction;
(vii) made in connection with the granting of a non-exclusive
licence to use any Intellectual Property owned by members of
the Group provided that any such licences do not prohibit
any of the member of the Group from using any Intellectual
Property which is material to its business;
(viii) made with the prior written consent of the Majority Lenders;
(ix) of non-core assets which is made on arm's length terms and
for fair market value provided that the consideration
receivable (when aggregated with the consideration
receivable for any other sale, lease, transfer or other
disposal, other than any permitted under paragraphs (i) to
above) does not exceed EUR 5,000,000 (or its equivalent in
another currency or currencies) in any financial year;
(x) of cash other than by way of a payment to any member of the
Group which is not an Obligor as equity payment, it being
understood, however, that payments to Unterstutzungskasse
Kronos Titan GmbH up to an aggregate amount of EUR 1,000,000
(or its equivalent in another currency or currencies) shall
be permitted, and provided that such disposal is not
otherwise prohibited by this Agreement; or
(xi) of Cash Equivalent Investments on arms' length terms.
25.5 Disposals of Plant
No Obligor shall sell, lease, transfer or otherwise dispose of its
respective manufacturing plant at Langerbrugge, Leverkusen, Nordenham
and Frederikstad to any other Obligor unless it has received the prior
written consent of the Majority Lenders.
25.6 Indebtedness
Each Obligor shall ensure that neither it nor any of its Subsidiaries
shall incur or permit to subsist any Financial Indebtedness other than
Permitted Financial Indebtedness.
25.7 Merger
No Obligor shall (and each Obligor shall ensure that none of its
Subsidiaries will) enter into any amalgamation, demerger, merger or
corporate reconstruction other than (a) a solvent reorganisation between
members of the Group (other than any Obligor) and (b) a solvent
reorganisation between members of the Group and a Borrower provided that
the Borrower is the surviving entity.
25.8 Change of business
The Obligors shall procure that no substantial change is made to the
general nature of the business of any of the Borrowers or the Group from
that carried on at the date of this Agreement and that there shall be no
cessation of any substantial part of such business.
25.9 Insurance
Each Obligor shall (and each Obligor shall ensure that each of its
Subsidiaries 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.
25.10 Environmental compliance
Each Obligor (and each Obligor shall ensure that each of its
Subsidiaries will) comply in all material respects with all
Environmental Laws and obtain and maintain any Environmental Permits and
take all reasonable steps in anticipation of known or expected future
changes to or obligations under the same where failure to do so would
reasonably be expected to have a Material Adverse Effect.
25.11 Environmental Claims
The Obligors shall inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same:
(a) if any Environmental Claim has been commenced or is threatened in
writing against any member of the Group; or
(b) of any facts or circumstances which will or are reasonably likely
to result in any Environmental Claim being commenced or threatened
against any member of the Group,
where the claim would be reasonably likely, if determined against that
member of the Group, to have a Material Adverse Effect.
25.12 Acquisition
No Obligor shall (and each Obligor shall ensure that none of its
Subsidiaries will):
(a) purchase, subscribe for or otherwise acquire any shares (or other
securities (but excluding Cash Equivalent Investments) or
interests) in, or incorporate, any other company, including any
additional shares or other interests in any member of the Group who
is not an Obligor but excluding Unterstutzungskasse Kronos Titan
GmbH or agree to do any of the foregoing; or
(b) purchase or otherwise acquire all or substantially all of the
assets of a company or a business unit or agree to do so; or
(c) form, or enter into, any partnership, consortium, joint venture or
other like arrangement or agree to do so,
in each case other than: (i) any such investment made between two or
more Obligors, or (ii) if the aggregate amount of any such investments
made by members of the Group would not exceed EUR 5,000,000 (or its
equivalent in another currency or currencies, as measured at the time of
such investment).
This Clause 25.12 does not apply to any acquisitions resulting from
settlements or compromises of accounts receivable or trade payables,
acquisitions in securities of trade creditors or customers received
pursuant to any plan of reorganisation or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers or in good
faith settlements of delinquent obligations of such trade creditors or
customers, in each case in the ordinary course of business and provided
that the aggregate face value of accounts receivables and/or trade
payables and/or delinquent obligations shall in aggregate not exceed EUR
5,000,000 (or its equivalent in another currency or currencies).
25.13 Pari passu
Each Obligor shall ensure that at all times the claims of the Finance
Parties against it under this Agreement rank at least pari passu with
the claims of all of its other unsecured and unsubordinated creditors
save those whose claims are preferred solely by any bankruptcy,
insolvency, liquidation or other similar laws of general application.
25.14 Loans and Guarantees
No Obligor shall (and each Obligor shall ensure that none of its
Subsidiaries will) make any loans or grant any credit (in each case of
the type described in paragraphs (a), (c) and (f) of the definition of
Financial Indebtedness) or give any guarantee or indemnity to or for the
benefit of any person or otherwise voluntarily assume any liability,
whether actual or contingent, in respect of any obligation of any person
other than (i) Permitted Loans and Guarantees or (ii) any loan, credit,
guarantee, indemnity or assumption of such liability in respect of any
member of the Kronos Group.
25.15 Transactions with members of the Kronos Group
No Obligor shall (and each Obligor shall ensure that none of its
Subsidiaries will) enter into any transaction with a member of the
Kronos Group unless (i) such transaction is a Permitted Affiliate
Transaction, (ii) such transaction is concluded on arm's length terms
and for fair market value, (iii) with regard to the payment of cash,
after giving effect to such transaction, no Default has occurred which
is continuing or would occur as a result thereof, or (iv) such
transaction is permitted by any other provision of this Agreement.
25.16 Profit and loss transfer agreements
No Obligor shall (and each bligor shall ensure that none of its
Subsidiaries will) enter into a profit and loss transfer agreement
(Ergebnis abfuhrungsvertrag), any partnership agreements (stille
Beteiligungen), any other intercompany agreement (Unternehmensvertrag)
or any other similar arrangement resulting in any person not being a
member of the Group being entitled to share in the profits of any member
of the Group or being entitled to exercise control over any member of
the Group provided that the German Borrower shall be permitted to enter
into a profit and loss transfer agreement with the Parent for the
purpose of sharing Taxes.
25.17 Intellectual Property
Each Obligor shall (and the Obligors shall ensure that each of its
Subsidiaries will):
(a) observe and comply with all material obligations and laws to which
it in its capacity as registered proprietor, beneficial owner,
user, licensor or licensee of the Intellectual Property required to
conduct its business or any part of it is subject where failure to
do so would reasonably be expected to have a Material Adverse
Effect;
(b) do all acts as are necessary to maintain, protect and safeguard
such Intellectual Property where failure to do so would reasonably
be expected to have a Material Adverse Effect and not discontinue
the use of any of such Intellectual Property nor allow it to be
used in such a way that it is put at risk by becoming generic or by
being identified as disreputable if in each case to do so would
reasonably be expected to have a Material Adverse Effect; and
(c) (save where a licence is granted to terminate or prevent
litigation) not after the date of this Agreement grant any licence
to any person to use the Intellectual Property required to conduct
the business of any member of the Group if to do so would
reasonably be expected to have a Material Adverse Effect.
25.18 Compliance with Material Contracts
Each Obligor shall (and each Obligor shall ensure that each of its
Subsidiaries will):
(a) comply in all material respects with its obligations under each
Material Contract to which it is party and take all action
necessary to ensure the continued validity and enforceability of
its rights thereunder;
(b) not amend, vary, novate or supplement any such Material Contract in
any material respect;
(c) not terminate, revoke, transfer, assign or otherwise dispose of its
rights and obligations under any such Material Contract during the
term of this Agreement,
if such non-compliance, failure to take action, amendment, variation,
novation, supplement, termination, revocation, transfer, assignment or
other disposal, as the case may be, would be reasonably expected to have
a Material Adverse Effect.
26. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 26 is an Event of
Default.
26.1 Non-payment
An Obligor or Kronos Denmark does not pay on the due date any amount due
and payable pursuant to a Finance Document to which it is a party at the
place at and in the currency in which it is expressed to be payable
unless:
(a) in the case of principal or interest due under a Finance Document,
its failure to pay is caused by administrative or technical error
and payment is made within 3 Business Days of its due date; and
(b) in the case of any amount due under a Finance Document other than
principal or interest, payment is made within 3 Business Days after
written notice of such non-payment has been given to the German
Borrower.
26.2 Financial covenants
Any requirement of Clause 24 (Financial covenants) is not satisfied.
26.3 Other obligations
(a) An Obligor or Kronos Denmark does not comply with any provision of
the Finance Documents to which it is a party (other than those
referred to in Clause 26.1 (Non-payment) and Clause 26.2 (Financial
covenants)).
(b) No Event of Default under paragraph (a) above will occur if such
breach is capable of remedy and is remedied within thirty (30)
days.
26.4 Misrepresentation
(a) Any representation or statement made by an Obligor or Kronos
Denmark in the Finance Documents or any other document delivered by
or on behalf of any Obligor or Kronos Denmark under or in
connection with any Finance Document is or proves to have been
incorrect or misleading in any material respect when made.
(b) No Event of Default under paragraph (a) above will occur if such
misrepresentation is capable of remedy and is remedied within 15
Business Days.
26.5 Cross default
(a) Any Financial Indebtedness of the Parent or any member of the Group
is not paid at maturity, whether by acceleration or otherwise.
(b) Any Financial Indebtedness of the Parent or any member of the Group
is declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however
described).
(c) Any commitment for any Financial Indebtedness of the Parent or any
member of the Group is cancelled or suspended by a creditor of the
Parent or any member of the Group as a result of an event of
default (however described).
(d) Any creditor of the Parent or any member of the Group becomes
entitled to declare any Financial Indebtedness of the Parent or any
member of the Group due and payable prior to its specified maturity
as a result of an event of default (however described).
(e) No Event of Default will occur under this Clause 26.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above
is less than EUR 5,000,000 (or its equivalent in any other currency
or currencies).
26.6 Insolvency
(a) Any Obligor, Material Subsidiary or the Parent is unable or admits
inability to pay its debts which have fallen due or its debts which
will fall due in the future, suspends making payments on any of its
debts or, in the case of the German Borrower or any Material
Subsidiary whose jurisdiction of incorporation is Germany, is
overindebted (Uberschuldung).
(b) A moratorium is declared in respect of any indebtedness of any
Obligor, Material Subsidiary or the Parent in excess of EUR
5,000,000.
26.7 Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, the opening of insolvency proceedings,
winding-up, dissolution, administration or reorganisation (by way
of voluntary arrangement, scheme of arrangement or otherwise) of
any Obligor, Material Subsidiary or the Parent other than a solvent
liquidation or reorganisation of any member of the Group which is
not an Obligor;
(b) a composition, assignment or arrangement with any creditor
involving indebtedness in excess of EUR 5,000,000 of any Obligor,
Material Subsidiary or the Parent;
(c) the appointment of a liquidator (other than in respect of a solvent
liquidation of a member of the Group which is not an Obligor
permitted under this Agreement), receiver, administrator including
an insolvency administrator, administrative receiver, compulsory
manager or other similar officer in respect of any Obligor,
Material Subsidiary or the Parent or any of its assets where such
asset have an aggregated fair market value in excess of EUR
5,000,000; or
(d) enforcement of any Security over any assets of any Obligor,
Material Subsidiary or the Parent where such assets have an
aggregated fair market value in excess of EUR 5,000,000,
or any analogous procedure or step is taken in any jurisdiction.
26.8 Creditors' process
Any expropriation, attachment, sequestration, distress, enforcement or
execution affects any asset or assets of the Parent, any Obligor or any
Material Subsidiary having an aggregate value of EUR 5,000,000 and is
not discharged within 45 days.
26.9 Ownership of the Obligors
An Obligor is not or ceases to be a Subsidiary of the Parent.
26.10 Unlawfulness
It is or becomes unlawful for an Obligor or Kronos Denmark to perform
any of its obligations under the Finance Documents if the effect thereof
would reasonably be expected to have a Material Adverse Effect.
26.11 Transaction Security
(a) Any Obligor or Kronos Denmark fails duly to perform or comply with
any of the obligations assumed by it in the Security Documents,
provided that no Event of Default under this paragraph (a) will
occur if such breach is capable of remedy and is remedied within
fifteen (15) Business Days after written notice of such breach has
been given to the German Borrower by the Agent or the relevant
Obligor or Kronos Denmark, as the case may be, has obtained actual
knowledge of such breach, whichever is the earlier.
(b) At any time of the Transaction Security is or becomes unlawful or
is not, or ceases to be legal, valid, binding or enforceable or
otherwise ceases to be effective if the effect thereof would
reasonably be expected to have a Material Adverse Effect.
26.12 Repudiation
An Obligor or Kronos Denmark repudiates a Finance Document or any of the
Transaction Security or evidences an intention to repudiate a Finance
Document or any of the Transaction Security.
26.13 Material Contracts
Any Material Contract is not or ceases to be in full force and effect if
this would reasonably be expected to have a Material Adverse Effect.
26.14 Material adverse change
There occurs a material adverse change in the business, assets or
financial condition of any of the German Borrower, the Belgian Borrower
or of the Group taken as a whole.
26.15 Acceleration
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Borrowers:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued or outstanding under the
Finance Documents be immediately due and payable, whereupon they
shall become immediately due and payable;
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders; and/or
(d) require the relevant Borrower to procure that the liabilities of
each of the Lenders and the Fronting Bank under each Letter of
Credit are promptly reduced to zero; and/or
(e) require the relevant Borrower to provide Cash Collateral for each
Letter of Credit in an amount specified by the Agent and in the
currency of that Letter of Credit;
(f) exercise, or direct the Security Agent to exercise, any or all of
its rights, remedies, powers or discretions under any of the
Finance Documents.
SECTION 9
CHANGES TO PARTIES
27. CHANGES TO THE LENDERS
27.1 Assignments and transfers by the Lenders
(a) Subject to this Clause 27, a Lender (the "Existing Lender") may:
(i) assign (Abtretung) any of its rights; or
(ii) transfer by way of assignment and assumption of debt
(Vertragsubernahme) any of its rights and obligations,
to another bank or financial institution or to a trust, fund or
other entity which is regularly engaged in or established for the
purpose of making, purchasing or investing in loans, securities or
other financial assets (the "New Lender").
27.2 Conditions of assignment or transfer
(a) Any such assignment or transfer shall be in a minimum amount of EUR
4,000,000 except in the case of an assignment or transfer which has
the effect of reducing the participation of the relevant Lender to
zero.
(b) The consent of the German Borrower 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 a Default has
occurred which is continuing.
(c) The consent of the German Borrower to an assignment or transfer
must not be unreasonably withheld or delayed. The German Borrower
will be deemed to have given its consent five Business Days after
the Lender has requested it unless consent is expressly refused by
the German Borrower within that time.
(d) The consent of the Fronting Bank is required for an assignment or
transfer by a Lender in relation to a Letter of Credit.
(e) An assignment will only be effective on receipt by the Agent of
written confirmation from the New Lender (in form and substance
satisfactory to the Agent) that the New Lender will assume the same
obligations to the other Finance Parties and the other Secured
Parties as it would have been under if it was an Original Lender.
(f) A transfer will only be effective if the procedure set out in
Clause 27.5 (Procedure for transfer) is complied with.
(g) If:
(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 to make a payment to the New Lender or Lender acting
through its new Facility Office under Clause 16 (Tax
gross-up and indemnities) or Clause 17 (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.
27.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of EUR 3,500.
27.4 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, the Transaction
Security or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor or Kronos
Denmark 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.
(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 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 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
27; or
(ii) support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by any Obligor
or Kronos Denmark of its obligations under the Finance
Documents or otherwise.
27.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 27.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing
Lender and the New Lender. The 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) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by assignment and assumption its
rights (the "Transferred Rights") and obligations (the
"Transferred Obligations") under the Finance Documents and
in respect of the Transaction Security each of the Obligors
and Kronos Denmark and the Existing Lender shall be released
from further obligations towards one another under the
Finance Documents and in respect of the Transaction
Security;
(ii) the Transferred Rights of the Existing Lender shall be
transferred to the New Lender and the Transferred
Obligations of the Existing Lender shall be assumed by the
New Lender so that each of the Obligors and Kronos Denmark
and the New Lender shall have those obligations and/ or
rights towards one another;
(iii) the Agent, the Mandated Lead Arranger, the Security Agent,
the New Lender, the other Lenders and the Fronting Bank
shall have the same rights and the same obligations between
themselves and in respect of the Transaction Security as
they would have had, had the New Lender been an Original
Lender with the rights and/or obligations transferred to or
assumed by it as a result of the transfer and to that extent
the Agent, the Mandated Lead Arranger, the Existing Lender
and the Fronting Bank 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".
For the avoidance of doubt it is hereby agreed that the benefit of the
guarantees and indemnities granted pursuant to Clause 21 (Guarantee and
Indemnity) and the benefit of each of the Security Documents shall be
transferred to the New Lender following a transfer pursuant to this
Clause 27.
27.6 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 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.
28. CHANGES TO THE OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
SECTION 10
THE FINANCE PARTIES
29. ROLE OF THE AGENT, THE SECURITY AGENT AND THE MANDATED LEAD ARRANGER
29.1 Appointment of the Agent and the Security Agent
(a) Each other Finance Party appoints the Agent to act as its agent and
the Security Agent to act as its trustee and administrator under
and in connection with the Finance Documents (provided that, in the
case of any Transaction Security which is accessory in nature and
which is granted pursuant to any Security Document which is
governed by German law, the Security Agent shall act as
administrator only).
(b) Each other Finance Party authorises the Agent and the Security
Agent to exercise the rights, powers, authorities and discretions
specifically given to the Agent and the Security Agent under or in
connection with the Finance Documents together with any other
incidental rights, powers, authorities and discretions. The Agent
and the Security Agent shall be released from the restrictions set
out in section 181 of the German Civil Code. The Agent and the
Security Agent can grant substitute power of attorney and release
any sub-agents from the restrictions set out in section 181 of the
German Civil Code and revoke such power of attorney.
29.2 Definitions: For the purposes of Section 10 (The Finance Parties):
"Agent's and Security Agent's Liabilities" means all liabilities
(including any liability in respect of tax), to which the Agent, the
Security Agent or any person appointed by any of them under any Finance
Document becomes subject by reason of it acting as agent or holding the
Transaction Security under the Finance Document;
"German Security" means any security assumed and accepted by or through
the Security Agent or the Finance Parties, as the case may be, pursuant
to any Security Document governed by German law and held or administered
by the Security Agent on behalf of or in trust for the Finance Parties
hereunder and any addition or replacement or substitution thereof.
29.3 Administering of Transaction Security:
The Security Agent shall hold and administer the Transaction Security.
Each Lender hereby authorises the Security Agent to accept as its
representative (Stellvertreter) any security created in favour of such
Lender.
29.4 Administration of German Security
The Security Agent shall in relation to the German Security
(a) hold and administer any German Security which is security assigned
(Sicherungseigentum/Sicherungsabtretung) or otherwise transferred
under a non-accessory security right (nicht akzessorische
Sicherheit) to it as trustee (Treuhander) for the benefit of the
Secured Parties;
(b) administer any German Security which is pledged (Verpfandung) or
otherwise transferred to a Secured Party under an accessory
security right (akzessorische Sicherheit) as agent.
29.5 Acts of Agent and Security Agent:
In additional to Clause 29.3 (Administering of Transaction Security):
(a) each of the Security Agent and the Agent shall be at liberty to
place any Finance Document and any other documents delivered to it
in connection therewith in any safe or receptacle or with any bank,
any company whose business includes undertaking the safe custody of
documents or any firm of lawyers of good repute and shall not be
responsible for any loss thereby incurred;
(b) the Security Agent, whenever it thinks fit, may delegate by power
of attorney or otherwise to any person or persons all or any of the
rights, trusts, powers, authorities and discretions vested in it by
a Finance Document and such delegation may be made upon such terms
and subject to such conditions and subject to such regulations as
the Security Agent may think fit;
(c) each of the Security Agent and the Agent may refrain from doing or
do anything which would or might in its opinion be contrary to or
necessary to comply with any relevant law of any jurisdiction;
(d) each of the Security Agent and the Agent and every attorney, agent
or other person appointed by it under any Finance Document may
indemnify itself or himself out of the Charged Property against all
the Agent's and Security Agent's Liabilities, subject to the
provisions of the Security Document; and
(e) the Security Agent shall have the rights to, but shall not be under
any obligation to, insure any of the Charged Property and shall not
be responsible for any loss which may be suffered by any person as
a result of the lack of or inadequacy or insufficiency of any such
insurance.
29.6 Parallel Debt
29.6.1 Each of the Obligors hereby agrees and covenants with the Security
Agent by way of an abstract acknowledgement of debt (abstraktes
Schuldanerkenntnis) that each of them shall pay to the Security Agent
sums equal to, and in the currency of, any sums owing by it to a Secured
Party (other than the Security Agent) under any Finance Document (the
"Principal Obligations") as and when the same fall due for payment under
the relevant Finance Document (the "Parallel Obligations").
29.6.2 The Security Agent shall have its own independent right to demand
payment of the Parallel Obligations by the Obligors. The rights of the
Secured Parties to receive payment of the Principal Obligations are
several from the rights of the Security Agent to receive the Parallel
Obligations.
29.6.3 The payment by an Obligor of its Parallel Obligations to the Security
Agent in accordance with this Clause 29.6 shall be a good discharge of
the corresponding Principal Obligations and the payment by an Obligor of
its corresponding Principal Obligations in accordance with the
provisions of the Finance Documents shall be a good discharge of the
relevant Parallel Obligations.
29.6.4 Despite the foregoing, any such payment shall be made to the Agent,
unless the Agent directs such payment to be made to the Security Agent.
29.7 Duties of the Agent and the Security Agent
(a) The Agent and the Security Agent shall promptly forward to a Party
the original or a copy of any document which is delivered to the
Agent or the Security Agent for that Party by any other Party.
(b) Except where a Finance Document specifically provides otherwise,
the Agent is not obliged to review or check the adequacy, accuracy
or completeness of any document it forwards to another Party.
(c) If the Agent or the Security 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 Finance Parties.
(d) If the Agent or the Security Agent is aware of the non-payment of
any principal, interest, commitment fee or other fee payable to a
Finance Party (other than the Agent, the Mandated Lead Arranger or
the Security Agent) under this Agreement it shall promptly notify
the other Finance Parties.
(e) The Agent's and the Security Agent's duties under the Finance
Documents are solely mechanical and administrative in nature.
29.8 Role of the Mandated Lead Arranger
Except as specifically provided in the Finance Documents, the Mandated
Lead Arranger has no obligations of any kind to any other Party under or
in connection with any Finance Document.
29.9 No fiduciary duties
(a) Except where a Finance Document specifically provides otherwise,
nothing in this Agreement constitutes the Agent, the Security Agent
or the Mandated Lead Arranger as a trustee or fiduciary of any
other person.
(b) Neither the Agent, the Security Agent nor the Mandated Lead
Arranger 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.
29.10 Business with the Group
The Agent, the Security Agent and the Mandated Lead Arranger may accept
deposits from, lend money to and generally engage in any kind of banking
or other business with any member of the Group.
29.11 Rights and discretions of the Agent and the Security Agent
(a) The Agent and the Security 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 Agent and the Security 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 26.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any
Party or the Majority Lenders has not been exercised; and
(iii) any notice or request made by the German Borrower (other
than a Utilisation Request) is made on behalf of and with
the consent and knowledge of all the Obligors.
(c) The Agent and the Security Agent may engage, pay for and rely on
the advice or services of any lawyers, accountants, surveyors or
other experts.
(d) The Agent and the Security Agent may act in relation to the Finance
Documents through its personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this Agreement.
(f) The Security Agent may, upon a disposal of any property the subject
of the Security Document by any receiver, or by any of the Obligors
or Kronos Denmark where the Security Agent has consented to the
disposal, to any third party, release such property from the
Security Document.
(g) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Mandated Lead Arranger is
obliged to do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any law or a breach of a
fiduciary duty or duty of confidentiality.
29.12 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document, the
Agent and the Security Agent shall (i) exercise any right, power,
authority or discretion vested in it as Agent or Security Agent in
accordance with any instructions given to it by the Majority
Lenders (or, if so instructed by the Majority Lenders, refrain from
exercising any right, power, authority or discretion vested in it
as Agent or Security Agent) and (ii) not be liable for any act (or
omission) if it acts (or refrains from taking any action) in
accordance with 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 Agent and the Security Agent may refrain from acting in
accordance with the instructions of the Majority Lenders (or, if
appropriate, the Lenders) (i) if in the reasonable opinion of the
Agent or the Security Agent, as the case may be, such instructions
are contrary to applicable law or (ii) 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 Agent and the Security Agent may act
(or refrain from taking action) as it considers to be in the best
interest of the Lenders.
(e) The Agent and the Security 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.
29.13 Responsibility for documentation
None of the Agent, the Mandated Lead Arranger and the Security Agent:
(a) is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent,
the Mandated Lead Arranger, the Security Agent, an Obligor, Kronos
Denmark or any other person given in or in connection with any
Finance Document or the transactions contemplated in the Finance
Documents; or
(b) is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or the Transaction
Security or any other agreement, arrangement or document entered
into, made or executed in anticipation of or in connection with any
Finance Document or the Transaction Security.
29.14 Exclusion of liability
(a) Without limiting paragraph (b) below, neither the Agent nor the
Security Agent will be liable for any action taken by it under or
in connection with any Finance Document or the Transaction
Security, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party may take any proceedings against any officer, employee or
agent of the Agent or the Security Agent in respect of any claim it
might have against the Agent or the Security Agent 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 Agent or the Security Agent may rely on this Clause.
(c) Neither the Agent nor the Security Agent will 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 Agent
or the Security Agent if the Agent or the Security 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 Agent or the Security
Agent for that purpose.
29.15 Lenders' indemnity to the Agent and the Security Agent
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify each
of the Agent and the Security Agent, within three Business Days of
demand, against any cost, loss or liability incurred by the Agent or the
Security Agent (otherwise than by reason of the Agent's or the Security
Agent's gross negligence or wilful misconduct) in acting as Agent or as
Security Agent under the Finance Documents (unless the Agent or the
Security Agent has been reimbursed by an Obligor pursuant to a Finance
Document).
29.16 Resignation of the Agent and the Security Agent
(a) The Agent and the Security Agent may resign and appoint one of its
Affiliates acting through an office in one of the Participating
Member States as successor by giving notice to the other Finance
Parties and the Borrowers.
(b) Alternatively the Agent and the Security Agent may resign by giving
notice to the other Finance Parties and the Borrowers, in which
case the Majority Lenders (after consultation with the German
Borrower) may appoint a successor Agent or Security Agent.
(c) If the Majority Lenders have not appointed a successor Agent or
Security Agent in accordance with paragraph (b) above within 30
days after notice of resignation was given, the Agent or the
Security Agent (after consultation with the German Borrower) may
appoint a successor Agent or Security Agent (acting through an
office in one of the Participating Member States).
(d) The retiring Agent or Security Agent shall, at its own cost, make
available to the successor Agent or Security Agent such documents
and records and provide such assistance as the successor Agent or
the Security Agent may reasonably request for the purposes of
performing its functions as Agent under the Finance Documents.
(e) The Agent's or the Security Agent's resignation notice shall only
take effect upon the appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent or the
Security Agent shall be discharged from any further obligation in
respect of the Finance Documents but shall remain entitled to the
benefit of this Clause 29. 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.
(g) After consultation with the German Borrower, the Majority Lenders
may, by notice to the Agent or the Security Agent, require it to
resign in accordance with paragraph (b) above. In this event, the
Agent or the Security Agent shall resign in accordance with
paragraph (b) above.
29.17 Confidentiality
(a) In acting as agent for the Finance Parties or as security agent for
the Secured Parties, as the case may be, the Agent and the Security
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
Agent or the Security Agent, it may be treated as confidential to
that division or department and neither the Agent nor the Security
Agent shall not be deemed to have notice of it.
29.18 Relationship with the Lenders
(a) The Agent and the Security 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 five Business
Days prior notice from that Lender to the contrary in accordance
with the terms of this Agreement.
(b) Each Lender shall supply the Agent with any information required by
the Agent in order to calculate the Mandatory Cost in accordance
with Schedule 4 (Mandatory Cost formulae).
(c) Each Secured Party shall supply the Agent with any information that
the Security Agent may reasonably specify (through the Agent) as
being necessary or desirable to enable the Security Agent to
perform its functions as security agent. Each Lender shall deal
with the Security Agent exclusively through the Agent and shall not
deal directly with the Security Agent
29.19 Credit appraisal by the Secured Parties
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Secured Party confirms to the Agent, the Mandated Lead Arranger and
the Security Agent 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 member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and the Transaction Security and any other
agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document or the Transaction Security;
(c) whether that Secured Party 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 Transaction
Security, 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;
(d) the adequacy, accuracy and/or completeness of any information
provided by the Agent, the Security Agent, any Party or by any
other person 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
(e) the right or title of any person in or to, or the value or
sufficiency of any part of the Charged Property, the priority of
any of the Transaction Security or the existence of any Security
affecting the Charged Property.
29.20 Application of proceeds
To the extent that the Agent or the Security Agent receives monies
pursuant to or as a result of any breach of any Finance Document to be
applied in discharging any obligation (whether actual or contingent,
present or future) of any Obligor under any Finance Document, such
monies shall be applied in the order set out in Clause 33.5 (Partial
Payments).
29.21 Release of Transaction Security
If the Security Agent, with the approval of the Majority Lenders, shall
determine that all obligations the discharge of which is secured by the
Security Documents have been full and finally discharged and none of the
Lenders is under any commitment, obligation or liability (whether actual
or contingent) to make advances or provide other financial accommodation
to the Borrowers under this Agreement the Security Agent shall release
all of the security then held by it, whereupon each of the Security
Agent, the Agent, the Mandated Lead Arranger, the Lenders and the
Obligors shall be released from its obligations hereunder or under the
other Finance Documents (save for those which arose prior to such
winding-up) and Kronos Denmark shall be released from its obligations
under the Finance Documents.
29.22 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 Agent shall
(with the approval of the German Borrower which approval shall not be
unreasonably withheld or delayed) appoint another Lender or an Affiliate
of a Lender to replace that Reference Bank.
29.23 Deduction from amounts payable by the Agent
If any Party owes an amount to the Agent under the Finance Documents the
Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent
would otherwise be obliged to make under the Finance Documents and apply
the amount deducted in or towards satisfaction of the amount owed. For
the purposes of the Finance Documents that Party shall be regarded as
having received any amount so deducted.
30. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
Subject to the provisions of Clause 19 (Mitigation by the Lenders) 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.
31. SHARING AMONG THE FINANCE PARTIES
31.1 Payments to Finance Parties
If a Finance Party (a "Recovering Finance Party") receives or recovers
any amount from an Obligor other than in accordance with Clause 33
(Payment mechanics) or Clause 29.20 (Application of proceeds) and
applies that amount to a payment due under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business Days,
notify details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Finance Party would have been
paid had the receipt or recovery been received or made by the Agent
and distributed in accordance with Clause 33 (Payment mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days of
demand by the Agent, pay to the Agent an amount (the "Sharing
Payment") equal to such receipt or recovery less any amount which
the Agent determines may be retained by the Recovering Finance
Party as its share of any payment to be made, in accordance with
Clause 33.5 (Partial payments).
31.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Finance Party) in accordance with Clause 33.5
(Partial payments).
31.3 Recovering Finance Party's rights
The Recovering Finance Party will be assigned the claims (or the part
thereof) to which the Sharing Payment is allocated (and the relevant
Obligor shall be liable to the Recovering Finance Party in an amount
equal to the Sharing Payment).
31.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 31.2 (Redistribution of
payments) shall, upon request of the Agent, pay to the Agent for
account of that Recovering Finance Party an amount equal to the
appropriate part of its share of the Sharing Payment (together with
an amount as is necessary to reimburse that Recovering Finance
Party for its proportion of any interest on the Sharing Payment
which that Recovering Finance Party is required to pay); and
(b) such Recovering Finance Party's rights to an assignment in respect
of any reimbursement shall be cancelled and the relevant Obligor
will be liable to the reimbursing party for the amount so
reimbursed and such Recovering Finance Party shall re-assign to the
relevant Finance Party any amount assigned to it by such Finance
Party pursuant to Clause 31.3.
31.5 Exceptions
(a) This Clause 31 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to this
Clause, have a valid and enforceable claim against the relevant
Obligor.
(b) A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration
proceedings, if:
(i) it notified that other Finance Party of the legal or
arbitration proceedings; and
(ii) that other Finance Party had an opportunity to participate
in those legal or arbitration proceedings but did not do so
as soon as reasonably practicable having received notice and
did not take separate legal or arbitration proceedings.
32. THE LENDERS AND THE FRONTING BANK
32.1 Lenders' Indemnity
If any Borrower fails to comply with its obligations under Clause 9.2
(Borrowers' Indemnity to Fronting Banks) the Agent shall make demand on
each Lender for its share of that L/C Amount and, subject to Clause 32.2
(Direct Participation), each Lender shall indemnify the Fronting Bank
for that Lender's L/C Proportion of the L/C Amount.
32.2 Direct Participation
If any Lender is not permitted (by its constitutional documents or any
applicable law) to comply with Clause 32.1 (Lenders' Indemnity) then
that Lender will not be obliged to comply with Clause 32.1 (Lenders'
Indemnity) and shall instead be deemed to have taken, on the date the
Letter of Credit is issued (or if later, on the date that L/C Proportion
is transferred or assigned to such Lender in accordance with the terms
of this Agreement), an undivided interest and participation in that
Letter of Credit in an amount equal to that Lender's L/C Proportion of
that Letter of Credit. On receipt of demand by the Agent in accordance
with Clause 32.1 (Lenders' Indemnity), each such Lender shall pay to the
Agent (for the account of the Fronting Bank) its L/C Proportion of any
L/C Amount.
32.3 Obligations not Discharged
Neither the obligations of each Lender in this Clause 32 nor the rights,
powers and remedies conferred upon the Fronting Bank by this Agreement
or by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of
the Fronting Bank, the Borrower or any other person or any change
in its status, function, control or ownership;
(b) any of the obligations of the Fronting Bank, the Borrower or any
other person under this Agreement, under a Letter of Credit or
under any other security taken in respect of its obligations under
this Agreement or under a Letter of Credit being or becoming
illegal, invalid, unenforceable or ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted to
the Fronting Bank, the Borrower or any other person in respect of
its obligations under this Agreement, under a Letter of Credit or
under any other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the Fronting Bank, the Borrower or any other person
under this Agreement, under a Letter of Credit or under any other
security; and
(e) any other act, event or omission which, but for this Clause 32.3,
might operate to discharge, impair or otherwise affect any of the
obligations of each Lender in this Agreement contained or any of
the rights, powers or remedies conferred upon any Fronting Bank by
this Agreement or by law.
The obligations of each Lender in this Agreement contained shall be in
addition to and independent of every other security which the Fronting
Bank may at any time hold in respect of any Letter of Credit.
32.4 Settlement Conditional
Any settlement or discharge between a Lender and the Fronting Bank shall
be conditional upon no security or payment to the Fronting Bank by a
Lender or any other person on behalf of a Lender being avoided or
reduced by virtue of any laws relating to bankruptcy, insolvency,
liquidation or similar laws of general application and, if any such
security or payment is so avoided or reduced, the Fronting Bank shall be
entitled to recover the value or amount of such security or payment from
such Lender subsequently as if such settlement or discharge had not
occurred.
32.5 Exercise of Rights
The Fronting Bank shall not be obliged before exercising any of the
rights, powers or remedies conferred upon them in respect of any Lender
by this Agreement or by law:
(a) to take any action or obtain judgment in any court against the
Borrower;
(b) to make or file any claim or proof in a winding-up or dissolution
of the Borrower; or
(c) to enforce or seek to enforce any other security taken in respect
of any of the obligations of the Borrower under this Agreement.
SECTION 11
ADMINISTRATION
33. PAYMENT MECHANICS
33.1 Payments to the Agent
(a) On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor or Lender shall make
the same available to the 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 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 Agent specifies.
33.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 33.3 (Distributions to an
Obligor) and Clause 33.4 (Clawback) and Clause 29.23 (Deduction from
amounts payable by the Agent) be made available by the 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
Agent by not less than five 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 or London).
33.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 34 (Set-off)) apply any amount received by it for that Obligor in
or towards payment (on the date and in the currency and funds of
receipt) of any amount due from that Obligor under the Finance Documents
or in or towards purchase of any amount of any currency to be so
applied.
33.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance Documents
for another Party, the Agent is not obliged to pay that sum to that
other Party (or to enter into or perform any related exchange
contract) until it has been able to establish to its satisfaction
that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be
the case that the 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 Agent shall on demand refund the
same to the Agent together with interest on that amount from the
date of payment to the date of receipt by the Agent, calculated by
the Agent to reflect its cost of funds.
33.5 Partial payments
(a) If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by an Obligor under the
Finance Documents, the Agent shall apply that payment towards the
obligations of that Obligor under the Finance Documents in the
following order:
(i) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent and the Security Agent under
the Finance Documents;
(ii) secondly, in or towards payment of any demand made by the
Fronting Bank in respect of a payment made or to be made by
it under a Letter of Credit;
(iii) thirdly, in or towards payment pro rata of any accrued
interest, commission or Fronting Bank Fee due but unpaid
under this Agreement;
(iv) fourthly, in or towards payment pro rata of any Outstandings
due but unpaid under this Agreement; and
(v) fifthly, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (v) above.
(c) Paragraphs (a) and (b) above will override any appropriation made
by an Obligor.
33.6 No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
33.7 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).
(b) During any extension of the due date for payment of any principal
or Unpaid Sum under this Agreement interest is payable on the
principal or Unpaid Sum at the rate payable on the original due
date.
33.8 Currency of account
(a) Subject to paragraphs (b) to (f) below, the Base Currency is the
currency of account and payment for any sum due from an Obligor
under any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid
Sum shall be made in the currency in which that Loan or
Unpaid Sum is denominated on its due date.
(c) Each payment in respect of a Letter of Credit (including any Cash
Collateral in respect of a Letter of Credit) shall be made in the
Base Currency.
(d) 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.
(e) Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are incurred.
(f) Any amount expressed to be payable in a currency other than the
Base Currency shall be paid in that other currency.
33.9 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 Agent (after consultation with the German Borrower);
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
Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the German Borrower) 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.
34. SET-OFF
A Finance Party may set off any matured obligation due from 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 that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
35. NOTICES
35.1 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, letter or telex.
(b) Any document to be delivered pursuant to Clause 4.1 (Initial
conditions precedent) shall be delivered in original form or a
certified copy, certified as a true and up-to-date copy by an
authorised signatory.
(c) Any Utilisation Request shall be confirmed by letter, although
failure to do so shall not invalidate the original request.
35.2 Addresses
The address, fax number and telex 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:
(a) in the case of each Obligor, that identified with its name below;
(b) in the case of each Lender and the Fronting Bank, that notified in
writing to the Agent on or prior to the date on which it becomes a
Party; and
(c) in the case of the Agent and the Security Agent, that identified
with its name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify to
the other Parties, if a change is made by the Agent) by not less than
five Business Days' notice.
35.3 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 five 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 telex, when despatched, but only if, at the
time of transmission, the correct answerback appears at the
start and at the end of the sender's copy of the notice;
and, if a particular department or officer is specified as part of
its address details provided under Clause 35.2 (Addresses), if
addressed to that department or officer.
(b) Any communication or document to be made or delivered to the Agent
or the Security Agent will be effective only when actually received
by the Agent or the Security Agent and then only if it is expressly
marked for the attention of the department or officer identified
with the Agent's or the Security Agent's signature below (or any
substitute department or officer as the Agent shall specify in
writing for this purpose).
(c) All notices from or to an Obligor shall be sent through the Agent.
(d) Any communication or document made or delivered to the German
Borrower in accordance with this Clause will be deemed to have been
made or delivered to each of the Obligors.
(e) All notices to a Lender or the Fronting Bank from the Security
Agent shall be sent through the Agent.
35.4 Notification of address, fax number and telex number
Promptly upon receipt of notification of an address, fax number and
telex number or change of address, fax number or telex number pursuant
to Clause 35.2 (Addresses) or changing its own address, fax number or
telex number, the Agent shall notify the other Parties.
35.5 Electronic communication
(a) Any communication to be made between the Agent or the Security
Agent and a Lender under or in connection with the Finance
Documents may be made by electronic mail or other electronic means,
if the Agent, the Security Agent, the Fronting Bank and the
relevant Lender:
(i) agree that, unless and until notified to the contrary, this
is to be an accepted form of communication;
(ii) notify each other in writing of their electronic mail
address and/or any other information required to enable the
sending and receipt of information by that means; and
(iii) notify each other of any change to their address or any
other such information supplied by them.
(b) Any electronic communication made between the Agent or the Security
Agent and a Lender and/or the Fronting Bank will be effective only
when actually received in readable form and in the case of any
electronic communication made by a Lender or the Fronting Bank to
the Agent or the Security Agent only if it is addressed in such a
manner as the Agent or the Security Agent shall specify for this
purpose.
35.6 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 Agent,
accompanied by a certified English translation and, in this
case, the English translation will prevail unless the
document is a constitutional, statutory or other official
document.
36. CALCULATIONS AND CERTIFICATES
36.1 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.
36.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document shall contain reasonable details of
the relevant calculation and is, in the absence of manifest error, prima
facie evidence of the matters to which it relates.
36.3 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.
37. 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.
38. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Secured Party or the Mandated Lead Arranger, 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 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.
39. AMENDMENTS AND WAIVERS
39.1 Required consents
(a) Subject to Clause 39.2 (Exceptions) and Clause 29.21 (Release of
Transaction Security) any term of the Finance Documents may be
amended or waived only with the consent of the Majority Lenders and
the Obligors and any such amendment or waiver will be binding on
all Parties.
(b) The Agent, or in respect of the Security Documents the Security
Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.
39.2 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) the definition of "Availability Period";
(iii) an extension to the date of payment of any amount of
principal, interest, fees or commission under the Finance
Documents;
(iv) a reduction in the Margin, the L/C Commission Rate or a
reduction in the amount of any payment of principal,
interest, fees or commission payable;
(v) an increase in or an extension of any Commitment;
(vi) a change to the Borrowers or Guarantors;
(vii) any provision which expressly requires the consent of all
the Lenders;
(viii) Clause 2.2 (Finance Parties' rights and obligations), Clause
21 (Guarantee and indemnity), Clause 27 (Changes to the
Lenders) or this Clause 39;
(ix) the nature or scope of the Charged Property or the manner in
which the proceeds of enforcement of the Transaction
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 Agent, the Security Agent, the Mandated Lead Arranger or the
Fronting Bank may not be effected without the consent of the Agent,
the Security Agent, the Mandated Lead Arranger or the Fronting
Bank.
SECTION 12
GOVERNING LAW AND ENFORCEMENT
40. GOVERNING LAW
This Agreement is governed by the laws of the Federal Republic of
Germany.
41. ENFORCEMENT
41.1 Jurisdiction of German courts
(a) The courts of Frankfurt am Main 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 Frankfurt am Main are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 41.1 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 in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties may
take concurrent proceedings in any number of jurisdictions.
41.2 Service of process
Without prejudice to any other mode of service allowed under any
relevant law, each Obligor:
(a) irrevocably appoints the German Borrower as its agent for service
of process in relation to any proceedings before the German courts
in connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
EXECUTION PAGE
The Borrowers
KRONOS TITAN GMBH & CO. OHG
By: Xx. Xxxxxx Fiand Xxxxxx Xxxx
Address: Xxxxxxxxx(xxxx)x 0
00000 Xxxxxxxxxx
Xxxxxxx
Tel: x00 000 0000000
Fax: x00 000 00000
E-mail: xxxxxx.xxxx@xxx-xxx.xxx
Attention of: Xxxxxx Xxxx - Financial Controller
KRONOS EUROPE S.A./N.V.
By: Xxxx van der Auwera
Address: Xxxxxxxxxxxxxxxx 00
X 0000 Xxxx
Xxxxxxx
Tel: x00 000 00000
Fax: x00 000 00000
E-mail: Xxxx.XxxxxxXxxxxx@xxx-xxx.xxx
Attention of: Xxxx Van Der Auwera
KRONOS TITAN AS
By: Xxxxx Xxxxxxx
Address: Xxxxxxxxxx 0
Xxxxxxxxxxx Xxxxxxx
Xxxxxx
Tel: x00 00 00 0000
Fax: x00 00 00 0000
E-mail: Xxxxx.Xxxxxxx@xxx-xxx.xxx, Xxxxx.Xxxxxxx@xxx-xxx.xxx
Attention of: Xxxxx Xxxxxxx - Financial Controller / Xxxxx Xxxxxxx - Manager
TITANIA AS
By: Xxxxx Xxxxxxx
Address: Xxxxxxxxxx 0
Xxxxxxxxxxx Xxxxxxx
Xxxxxx
Tel: x00 00 00 0000
Fax: x00 00 00 0000
E-mail: Xxxxx.Xxxxxxx@xxx-xxx.xxx, Xxxxx.Xxxxxxx@xxx-xxx.xxx
Attention of: Xxxxx Xxxxxxx - Financial Controller / Xxxxx Xxxxxxx - Manager
The Guarantors
KRONOS TITAN GMBH & CO. OHG
By: Xx. Xxxxxx Fiand Xxxxxx Xxxx
Address: Xxxxxxxxx(xxxx)x 0
00000 Xxxxxxxxxx
Xxxxxxx
Tel: x00 000 0000000
Fax: x00 000 00000
E-mail: xxxxxx.xxxx@xxx-xxx.xxx
Attention of: Xxxxxx Xxxx - Financial Controller
KRONOS EUROPE S.A./N.V.
By: Xxxx van der Auwera
Address: Xxxxxxxxxxxxxxxx 00
X 0000 Xxxx
Xxxxxxx
Tel: x00 000 00000
Fax: x00 000 00000
E-mail: Xxxx.XxxxxxXxxxxx@xxx-xxx.xxx
Attention of: Xxxx Van Der Auwera
KRONOS NORGE AS
By: Xxxxx Xxxxxxx
Address: Xxxxxxxxxx 0
Xxxxxxxxxxx Xxxxxxx
Xxxxxx
Tel: x00 00 00 0000
Fax: x00 00 00 0000
E-mail: Xxxxx.Xxxxxxx@xxx-xxx.xxx, Xxxxx.Xxxxxxx@xxx-xxx.xxx
Attention of: Xxxxx Xxxxxxx - Financial Controller / Xxxxx Xxxxxxx - Manager
Kronos Denmark
KRONOS DENMARK APS
By: Xxxxxx Xxxx
Address: Hanne Xxxxxxxx Xxx 00
0000 Xxxxx
Xxxxxxx
Tel: x00 00 000 000 0000
Fax: x00 000 00 000
E-mail: xxxxxx.xxxx@xxx-xxx.xxx
Attention of: Xxxxxx Xxxx
The Mandated Lead Arranger
DEUTSCHE BANK AG
By: Olivier Xxxxxxxx Xxxx van den Xxxxx
Address: Xxxxxxxxxxxx 00
00000 Xxxxxxxxx
Xxx: x00 00 000 00000/32423
Fax: x00 00 000 00000/32427
E-mail: xxxx-xxx-xxx.xxxxx@xx.xxx; xxxxx-xxxxxx.xxxxx@xx.xxx
Attention of: Xxxx van den Xxxxx; Xxxxx-Xxxxxx Xxxxx
The Agent
DEUTSCHE BANK LUXEMBOURG S.A.
By: Xxxxxxxxx Xxxx
Address: 0, Xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
Tel: x000 000 00000/329
Fax: x000 000 00000
E-mail: xxxxxxxxx.xxxx@xx.xxx; xxxx.xxxxxx@xx.xxx
Attention of: Xxxxxxxxx Xxxx; Xxxx Xxxxxx
The Security Agent
DEUTSCHE BANK LUXEMBOURG S.A.
By: Xxxxxxxxx Xxxx
Address: 0, Xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
Tel: x000 000 00 000/329
Fax: x000 000 00 000
E-mail: xxxxxxxxx.xxxx@xx.xxx; xxxx.xxxxxx@xx.xxx
Attention of: Xxxxxxxxx Xxxx/Xxxx Xxxxxx
The Lenders
DEUTSCHE BANK LUXEMBOURG S.A.
By: Xxxxxxxxx Xxxx
Address: 0, Xxxxxxxxx Xxxxxx Xxxxxxxx
X-0000 Xxxxxxxxxx
Tel: x000 000 00 000/329
Fax: x000 000 00 000
E-mail: xxxxxxxxx.xxxx@xx.xxx; xxxx.xxxxxx@xx.xxx
Attention of: Xxxxxxxxx Xxxx/Xxxx Xxxxxx
COMMERZBANK AKTIENGESELLSCHAFT, FILIALE KOLN
By: Xxxxxxxxx Xxxx
Address: Unter Sachsenhausen 21-27
D-50667 Koln
Tel: x00 000 000 0000/2444
Fax: x00 000 000 0000
E-mail: xxxxx.xxxxxx@xxxxxxxxxxx.xxx; xxxxxx.xxxxxxx@xxxxxxxxxxx.xxx
Attention of: Xxxxx Xxxxxx/Xxxxxx Xxxxxxx, Abteilung fur Firmenkunden (AFK)
DEN NORSKE BANK ASA, FILIALE DEUTSCHLAND
By: Xxxxxxxxx Xxxx
Address: Xxxxxxxxxxxxxx 00
X-00000 Xxxxxxx
Tel: x00 00 00 00 0000
Fax: x00 00 00 00 00 00
E-mail: xxxxxx.xxxxxxxx@xxx.xx
Attention of: Holger Graflich
DEXIA BANK BELGIUM NV/SA
By: Xxxxxxxxx Xxxx
Address: Xxxxxxxxxxx 00
X-0000 Xxxxxxxx
Tel: x00 0 000 0000
Fax: x00 0 000 0000
E-mail: xxxxx.xxxxxx@xxxxx.xx
Attention of: Xxxxx Xxxxxx
KBC BANK NV
By: Xxxxxxxxx Xxxx
Address: Xxxxxxxxx 0
X-0000 Xxxxxxxx
Tel: x00 0 000 00 00
Fax: x00 0 000 00 00
E-mail: xxxxxxx.xxxx@xxx.xx
Attention of: KBC Corporate Branch Gent; Xxxxxxx Xxxx
DRESDNER BANK AG IN KOLN
By: Xxxxxxxxx Xxxx
Address: Unter Sachsenhausen 5-17
D-50450 Koln
Tel: x00 000 000 0000
Fax: x00 000 000 0000
E-mail: Xxxxxx.Xxxxx@Xxxxxxxx-Xxxx.xxx
Attention of: Unternehmenskunden Koln Ost, Xx Xxxxx
THE FRONTING BANK
KBC BANK NV
By: Xxxxxxxxx Xxxx
Address: Xxxxxxxxx 0
X-0000 Xxxxxxxx
Tel: x00 0 000 00 00
Fax: x00 0 000 00 00
E-mail: xxxxxxx.xxxx@xxx.xx
Attention of: KBC Corporate Branch Gent; Xxxxxxx Xxxx
SCHEDULE 3 Transfer of Available Commitments/Participations
SIGNATURES
The Borrowers
Kronos Titan GmbH
By: /s/ Ulfert Fiand
Kronos Europe S.A./N.V.
By: /s/ E. Van de Auwera
Kronos Titan AS
By: /s/ Xxxxx Xxxxxxx
Titania AS
By: /s/ Xxxxx Xxxxxxx
Kronos Norge AS
By: /s/ Xxxxx Xxxxxxx
Kronos Denmark ApS
By: /s/ Xxxxxx Xxxx
The Guarantors
Kronos Titan GmbH
By: /s/ Ulfert Fiand
Kronos Europe S.A./N.V.
By: /s/ E. Van de Auwera
Kronos Norge AS
By: /s/ Xxxxx Xxxxxxx
Kronos Denmark ApS
By: /s/ Xxxxxx Xxxx
The Mandated Lead Arranger
Deutsche Bank AG
By: /s/ Authorized Representative
The Agent and Security Agent
Deutsche Bank Luxembourg S.A.
By: /s/ Authorized Representative
The Exiting Lenders
Dexia Bank Belgium N.V./S.A.
By: /s/ Authorized Representative
Dresdner Bank AG in Koln
By: /s/ Authorized Representative
The Continuing Lenders
Deutsche Bank Luxembourg S.A.
By: /s/ Authorized Representative
Commerzbank Aktiengesellschaft, Filiale Koln
By: /s/ Authorized Representative
DnBNOR Bank ASA (as legal successor to Den norske Bank ASA)
By: /s/ Authorized Representative
KBC Bank N.V.
By: /s/ Authorized Representative
