Contract
Exhibit 4
CONFIDENTIAL
TREATMENT REQUESTED BY HEIDELBERGCEMENT AG
Execution
Copy
GBP
8,750,000,000 and EUR 3,400,000,000
dated 14
May 2007
for
arranged
by
DEUTSCHE
BANK AG and THE ROYAL BANK OF SCOTLAND PLC
with
THE ROYAL
BANK OF SCOTLAND PLC
acting as
Agent
_____________________________________________________
MULTICURRENCY
TERM AND REVOLVING FACILITIES
AGREEMENT
INCORPORATING
A EURO SWINGLINE FACILITY
______________________________________________________
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THIS AGREEMENT is dated 14 May
2007 and made between:
(1)
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HEIDELBERGCEMENT AG
(The "Company" or the "Guarantor");
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(2)
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THE SUBSIDIARIES of the
Company listed in Part I of Schedule 1 (The Original Parties)
as original borrowers (together with the Company the "Original
Borrowers");
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(3)
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DEUTSCHE BANK AG and
THE ROYAL BANK OF
SCOTLAND PLC as mandated lead arrangers (whether acting
individually or together the "Arranger");
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(4)
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THE FINANCIAL INSTITUTIONS
listed in Part II of Schedule 1 (The Original Parties)
as lenders (the "Original
Lenders");
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(5)
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THE ROYAL BANK OF SCOTLAND PLC
as agent of the other Finance Parties (the "Agent");
and
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(6)
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DEUTSCHE BANK AG
and THE ROYAL BANK
OF SCOTLAND PLC as ancillary lenders (the "Ancillary
Lenders").
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IT IS AGREED as
follows:
SECTION
1
INTERPRETATION
1.1
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Definitions
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In this
Agreement:
"Accession
Letter" means a
document substantially in the form set out in Schedule 6 (Form of Accession
Letter).
"Acquisition" means the acquisition by the
Company and BidCo of up to 100% of the issued share capital of
Target.
"Acquisition Closing" means the date on which
first Utilisation occurs to fund the Acquisition pursuant to the Offer or the
Scheme.
"Additional Borrower" means a company which
becomes an Additional Borrower in accordance with Clause 29 (Changes to the
Obligors).
"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 London foreign exchange market at or about 11:00 a.m. on a
particular day.
"Ancillary Commencement Date" means, in relation
to the Ancillary Facility, the date on which the Ancillary Facility is first
made available, which date shall be a Business Day within the Availability
Period for Facility B.
"Ancillary Commitment" means, in relation to an
Ancillary Lender and an Ancillary Facility, the maximum Base Currency Amount
which that Ancillary Lender has agreed (whether or not subject to satisfaction
of conditions precedent) to make available from time to time under an Ancillary
Facility and which has been authorised as such under Clause 10 (Ancillary Facility), to the
extent that amount is not cancelled or reduced under this Agreement or the
Ancillary Documents relating to the Ancillary Facility.
"Ancillary Document" means each document
relating to or evidencing the terms of the Ancillary Facility.
"Ancillary Facility" means the ancillary
facility made available by the Ancillary Lenders in accordance with Clause
10 (Ancillary
Facility).
"Ancillary Lender" means Deutsche Bank AG and
The Royal Bank of Scotland plc, acting through one of their
branches.
"Ancillary Outstandings" means, at any time, in
relation to an Ancillary Lender and an Ancillary Facility the aggregate of the
equivalents (as calculated by that Ancillary Lender) in the Base Currency of the
face amount of each guarantee under that Ancillary Facility, in each case as
determined by such Ancillary Lender in accordance with the relevant Ancillary
Document or normal banking practice.
"Applicable GAAP" means, in the case of the
consolidated financial statements of the Group, IFRS, and in the case of the
unconsolidated financial statements of any Obligor, accounting principles
generally accepted in its jurisdiction of incorporation.
"Assignment Certificate" means a certificate
substantially in the form set out in Schedule 17 (Form of Assignment
Certificate) or any other form satisfactory to the Agent.
"Assignment Date" means, in relation to an
assignment pursuant to Clause 28.2 (Conditions of assignment or
assignment and transfer by assumption of contract (VertragsΓΌbernahme)),
the later of:
(a) the
proposed Assignment Date specified in the Assignment Certificate;
and
(b) the
date on which the Agent accepts the Assignment Certificate.
"Authorisation" means an authorisation, consent,
approval, resolution, licence, exemption, filing, notarisation or
registration.
"Availability Period" means:
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(a)
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in
relation to a Term Facility the period from and including the date of this
Agreement and ending on the earlier
of:
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(i)
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in
the case of an Acquisition to be made inter alia by way of a
Scheme:
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(A)
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the
date on which the Scheme lapses or is withdrawn or the shareholders of the
Target fail (on a vote) to approve the implementation of the Scheme (other
than any vote for adjournment of a shareholder meeting) unless (in each
case) an Offer Conversion Notice has been served or is served within
2 Business Days of such event pursuant to Clause 3.3 (Conversion from Scheme to
Offer);
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(B)
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the
date falling 15 days after the Scheme Date;
and
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(C)
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31
March 2008,
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or
in the
case of an Acquisition to be made inter alia by way of an
Offer:
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(D)
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the
date on which the Offer lapses or is withdrawn;
and
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(E)
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31
March 2008;
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and
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(ii)
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close
of business on the date which is three months after the date of this
Agreement unless the Press Release has been issued on or prior to such
date in accordance with paragraph (h) of Clause 26.15 (Acquisition-related
undertakings).
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In
addition, Facility C will be available until the date which is 364 days after
the date of this Agreement for any purpose set out in sub-paragraph (a)(iii) to
(v) of Clause 3.1 (Purpose).
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(b)
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in
relation to the Revolving Facility, the period from and including the date
of this Agreement to and including the Termination Date in relation to the
Revolving Facility.
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"Available Ancillary Commitment" means in
relation to the Ancillary Facility, an Ancillary Lender's Ancillary Commitment
less the Ancillary Outstandings in relation to the Ancillary
Facility.
"Available Commitment" means, in relation to a
Facility, a Lender's Commitment under that Facility minus (subject to Clause
10.7 (Affiliates of Lenders as
Ancillary Lenders) and as set out below):
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(a)
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the
Base Currency Amount of its participation in any outstanding Loans under
that Facility and, in the case of Facility B only, the Base Currency
Amount of the aggregate of its Ancillary Commitments;
and
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(b)
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in
relation to any proposed Utilisation, the Base Currency Amount of its
participation in any Loans that are due to be made under that Facility on
or before the proposed Utilisation Date and, in the case of Facility B
only, the Base Currency Amount of its Ancillary Commitment in relation to
any new Ancillary Facility that is due to be made available on or before
the proposed Utilisation Date.
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For the
purposes of calculating a Lender's Available Commitment in relation to any
proposed Utilisation under the Revolving Facility only, that Lender's
participation in any Revolving Facility Loans that are due to be repaid or
prepaid on or before the proposed Utilisation Date shall not be deducted from a
Lender's Commitment under that Facility.
"Available Euro Swingline Commitment" of a Euro
Swingline Lender means (but without limiting Clause 7.4 (Relationship with Revolving
Facility)) that Lender's Euro Swingline Commitment minus:
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(a)
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the
Base Currency Amount of its participation in any outstanding Euro
Swingline Loans; and
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(b)
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in
relation to any proposed Utilisation under the Euro Swingline Facility,
the Base Currency Amount of its participation in any Euro Swingline Loans
that are due to be made under the Euro Swingline Facility on or before the
proposed Utilisation Date.
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For the
purposes of calculating a Euro Swingline Lender's Available Euro Swingline
Commitment in relation to any proposed Utilisation of the Euro Swingline
Facility, that Lender's participation in any Euro Swingline Loans that are due
to be repaid or prepaid on or before the proposed Utilisation Date shall not be
deducted from a Euro Swingline Lender's Euro Swingline Commitment.
"Available Euro Swingline Facility" means the
aggregate for the time being of each Euro Swingline Lender's Available Euro
Swingline Commitment.
"Available Facility" means, in relation to a
Facility, the aggregate for the time being of each Lender's Available Commitment
in respect of that Facility.
"Base Currency" means EUR provided that with
respect to Facility A and Facility B until the relevant Base Currency
Redenomination Date only, "Base Currency"
means GBP.
"Base Currency Amount" means:
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(a)
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in
relation to a Loan, the amount specified in the Utilisation Request
delivered by a Borrower for that Loan (or, 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 or, if later, on the date the
Agent receives the Utilisation Request);
and
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(b)
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in
relation to an Ancillary Commitment, the amount specified as such in the
notice delivered to the Agent by the Company pursuant to Clause 10.2
(Availability)
(or, if the amount specified 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 Ancillary
Commencement Date for the Ancillary Facility or, if later, the date the
Agent receives the notice of the Ancillary Commitment in accordance with
the terms of this Agreement),
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adjusted
to reflect any repayment (other than, in relation to any Term Facility, a
repayment arising from a change of currency), prepayment, consolidation or
division of the Loan or (as the case may be) cancellation or reduction of the
Ancillary Facility.
"Base Currency Redenomination Date" means each
date notified by the Company to the Agent in accordance with Clause 2.2 (Base Currency Redonomination)
with effect from which it wishes to change the Base Currency for Facility A
and/or Facility B from GBP to EUR, which date must be no later than the date
which is 30 days after Acquisition Closing.
"BidCo" means Lehigh UK Limited, a limited
liability company wholly-owned directly by the Company and established under the
laws of England.
"Borrower" means an Original Borrower or an
Additional Borrower unless it has ceased to be a Borrower in accordance with
Clause 29 (Changes to the
Obligors).
"Break Costs" means the amount (if any) by
which:
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(a)
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the
interest (excluding the Margin) which a Lender should have received for
the period from the date of receipt of all or any part of its
participation in 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;
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exceeds:
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(b)
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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 European 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.
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"Business Day" means a day (other than a
Saturday or Sunday) on which banks are open for general business in London and
Frankfurt am Main and:
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(a)
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(in
relation to any date for payment or purchase of euro) any TARGET Day;
or
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(b)
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(in
relation to any date for payment or purchase of a currency other than
euro) the principal financial centre of the country of that
currency.
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"Certain Funds Period" means the period
commencing on the date of this Agreement and ending on the earlier of (i) the
last day of the Availability Period of the Term Facilities (ignoring for this
purpose the extended Availability Period of Facility C) and (ii) the earlier of
31 March 2008 and the date on which the Offer or Scheme lapses or is withdrawn
(unless an Offer Conversion Notice has been served or is served within
2 Business Days of such lapse or withdrawal pursuant to Clause 3.3
(Conversion from Scheme to
Offer)).
"Certain Funds Purpose" means the purpose set
out in paragraph (a)(i), (ii) (but only to the extent it relates to the DB
Facility), (iii) (but only to the extent it relates to the Existing 2004
Facility) and (vii) of Clause 3.1 (Purpose).
"Certain Funds Utilisation" means a Utilisation
made or to be made under a Term Facility during the Certain Funds Period where
such Utilisation is to be made solely for a Certain Funds Purpose.
"Clean-Up Date" means the date falling six
months after the Acquisition Closing.
"Clean-Up Default" means a Default referred to
in Clauses 27.3 (Other
obligations) (but only insofar as that Clause relates to a Clean-Up
Undertaking), Clause 27.4 (Misrepresentation) (but only
where it relates to a Clean-up Representation), Clause 27.5 (Cross-default), Clause 27.8
(Creditors' process)
and Clause 27.12 (Adverse
Judgement).
"Clean-Up Representation" means any of the
representations and warranties provided for in this Agreement except for the
representations in Clause 23.13 (No proceedings pending or
threatened), paragraph (b) of Clause 23.5 (Validity and admissibility in
evidence), Clause 23.11 (Financial Statements), Clause
23.14 (Environmental laws and
licences) and Clause 23.15 (Environmental
Releases).
"Clean-Up Undertaking" means any of the
undertakings specified in Clauses 26.3 (Negative pledge), 26.4 (Disposals), 26.10 (Guarantees), 26.11 (Loans out), 26.13 (Acquisitions) and 26.12
(Subsidiary Financial
Indebtedness).
"Commitment" means a Facility A Commitment, a
Facility B Commitment, a Facility C Commitment, a Revolving Facility Commitment
or a Euro Swingline Commitment.
"Compliance Certificate" means a certificate
substantially in the form set out in Schedule 8 (Form of Compliance
Certificate).
"Confidentiality Undertaking" means a
confidentiality undertaking substantially in the form as set out in Schedule 10
(Form of Confidentiality
Undertaking) or in any other form agreed between the Company and the
Agent.
"Court Orders" means the court orders of the
High Court of Justice sanctioning the Scheme or the Reduction, as the case may
be (both of which may be contained in the same court order).
"DB Facility" means the bilateral facility made
available pursuant to a facility agreement between the Company and Deutsche Bank
Luxembourg S.A. dated 23 April 2007.
"Default" means an Event of Default or any event
or circumstance specified in Clause 27 (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.
"Dutch Borrower" means a Borrower incorporated
in The Netherlands.
"Dutch FSA" means the Financial Supervision Act
(Wet op het financieel
toezicht) including any and all subordinate decrees and regulations
issued pursuant thereto.
"Environmental Claim" means any claim,
proceeding or investigation by any person in respect of any Environmental
Law.
"Environmental Law" means all laws, regulations
and administrative acts of any relevant jurisdiction which:
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(a)
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have
as a purpose or effect the protection of, and/or prevention of harm or
damage to, the environment;
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(b)
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provide
remedies or compensation for harm or damage to the environment;
or
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(c)
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relate
to Hazardous Substances or health and safety
matters.
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"Environmental Licence" means any authorisation
required at any time under Environmental Law.
"EURIBOR" means in relation to any Loan in
euro:
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(a)
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the
applicable Screen Rate; or
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(b)
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(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;
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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.
"Euro Swingline Commitment" means:
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(a)
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in
relation to a Euro Swingline Lender on the date of this Agreement, the
amount in euro set opposite its name under the heading "Euro Swingline
Commitment" in Part II B of Schedule 1 (The Original Parties)
and the amount of any other Euro Swingline Commitment transferred to it
under this Agreement; and
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(b)
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in
relation to any other Euro Swingline Lender, the amount of any Euro
Swingline Commitment transferred to it under this
Agreement,
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to the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Euro Swingline Facility" means the euro
swingline loan facility made available under this Agreement as described in
Clause 8 (Euro Swingline
Loans).
"Euro Swingline Lender" means:
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(a)
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an
Original Lender listed in Part II B of Schedule 1 (The Original Parties)
as a euro swingline lender; or
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(b)
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any
other person that becomes a Euro Swingline Lender after the date of this
Agreement in accordance with Clause 28 (Changes to
Lenders)
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which in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
"Euro Swingline Loan" means a loan made or to be
made under the Euro Swingline Facility or the principal amount outstanding for
the time being of that loan.
"Euro Swingline Rate" means, in relation to a
Euro Swingline Loan, the percentage rate per annum which is the aggregate
of:
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(a)
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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 11.00 a.m. London
time on the Utilisation Date for that Euro Swingline Loan for the offering
of deposits in euro for a period comparable to the Interest Period for the
relevant Euro Swingline Loan and for settlement on that
day;
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(b)
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the
applicable Margin for the Revolving Facility;
and
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(c)
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Mandatory
Cost (if any).
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For the
purposes of this definition of "Euro Swingline
Rate", the Reference Banks are the Reference Banks defined in Clause 1.1
(Definitions) in
relation to EURIBOR.
"Event of Default" means any event or
circumstance specified as such in Clause 27 (Events of
Default).
"Existing 2004 Facility" means the
EUR 600,000,000 facilities agreement entered into on 8 December 2004
(as amended and restated from time to time) between, inter alia, HeidelbergCement
AG and The Royal Bank of Scotland plc as agent.
"Facility" means Facility A, Facility B,
Facility C, the Revolving Facility or the Euro Swingline Facility.
"Facility A" means the term loan facility made
available under this Agreement as described in paragraph (a) of Clause 2 (The Facilities).
"Facility A Commitment" means:
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(a)
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in
relation to an Original Lender, until (and including) the applicable Base
Currency Redenomination Date, the amount in the Base Currency set opposite
its name under the heading "Facility A Commitment" in Part IIA of Schedule
1 (The Original
Parties) and, thereafter, the amount in the Base Currency
calculated at the Agent's Spot Rate of Exchange on the date three Business
Date prior to the Base Currency Redenomination Date, and the amount of any
other Facility A Commitment transferred to it under this Agreement;
and
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(b)
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in
relation to any other Lender, the amount in the Base Currency of any
Facility A Commitment transferred to it under this
Agreement,
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to the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility A Loan" means a loan made or to be
made under Facility A or the principal amount outstanding for the time being of
that loan.
"Facility
B" means the term loan facility made available under this Agreement as
described in paragraph (b) of Clause 2 (The Facilities).
"Facility B Commitment" means:
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(a)
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in
relation to an Original Lender, until (and including) the applicable Base
Currency Redenomination Date the amount in the Base Currency set opposite
its name under the heading "Facility B Commitment" in Part IIA of Schedule
1 (The Original
Parties) and, thereafter, the amount in the Base Currency
calculated at the Agent's Spot Rate of Exchange on the date three Business
Date prior to the Base Currency Redenomination Date, and the amount of any
other Facility B Commitment transferred to it under this Agreement;
and
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(b)
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in
relation to any other Lender, the amount in the Base Currency of any
Facility B Commitment transferred to it under this
Agreement,
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to the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility B Loan" means a loan made or to be
made under Facility B or the principal amount outstanding for the time being of
that loan.
"Facility C" means the term loan facility made
available under this Agreement as described in paragraph (c) of
Clause 2 (Facilities).
"Facility C Commitment" means:
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(a)
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in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Facility C Commitment" in Part IIA of
Schedule 1 (The Original
Parties) and the amount of any other Facility C Commitment
transferred to it under this Agreement;
and
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(b)
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in
relation to any other Lender, the amount in the Base Currency of any
Facility C Commitment transferred to it under this
Agreement,
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to the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility C Loan" means a loan made or to be
made under Facility C or the principal amount outstanding for the time being of
that loan.
"Facility C Repayment Date" means each of the
dates specified in Clause 11.1 (Repayment of Term Loans) as
Repayment Dates, but if any such date is not a Business Day, then that Repayment
Date shall be deemed to be the immediately succeeding Business Day.
"Facility C Repayment Instalment" means each
instalment for repayment of the Facility C Loans referred to in Clause 11.1
(Repayment of Term
Loans).
"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:
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(a)
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any
letter or letters dated 13 April 2006 and/or dated on or about the date of
this Agreement between the Arranger and the Company (or the Agent and the
Company) setting out any of the fees referred to in Clause 16 (Fees);
and
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(b)
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any
agreement setting out fees payable to the Ancillary Lenders referred to
in Clause 16.5 (Interest, commission and fees
on Ancillary Facility) of this Agreement or any other Finance
Document.
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"Finance Document" means this Agreement, the
Mandate Letter, any Fee Letter, any Ancillary Document, any transfer agreement,
any Accession Letter, any Resignation Letter, any compliance certificate and any
other document designated as a "Finance Document" by the Agent and the
Company.
"Finance Party" means the Agent, the Arranger or
a Lender or any Ancillary Lender.
"Finance Subsidiary" means a member of the Group
(other than the Company) whose sole purpose is to raise finance for the Group,
which does not own any material assets other than loans to other members of the
Group and credit balances in bank accounts and which does not have any equity
interests in any person.
"Financial Advisor" has the meaning given to
such term in Clause 4.1 (Initial Conditions
Precedent).
"Financial Indebtedness" means (without double
counting) any indebtedness for or in respect of:
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(a)
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moneys
borrowed;
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(b)
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any
amount raised by acceptance under any acceptance credit
facility;
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(c)
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any
amount raised pursuant to any note purchase facility or the issue of
bonds, notes, debentures, loan stock or any similar
instrument;
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(d)
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the
amount of any liability in respect of any lease which would, in accordance
with Applicable GAAP, be treated as a finance or capital
lease;
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(e)
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receivables
sold or discounted (other than any receivables to the extent they are sold
on a non recourse basis);
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(f)
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any
advance or deferred purchase agreement where the advance or deferred
payment is arranged primarily as a method of raising finance, in each case
except where the payment is advanced or deferred for not more than 120
days;
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(g)
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any
derivative transaction entered into in connection with protection against
or benefit from fluctuation in any interest or currency exchange rate
(and, when calculating the value of any such derivative transaction, only
the marked to market value shall be taken into
account);
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(h)
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any
counter-indemnity obligation in respect of a guarantee, indemnity, bond,
standby or documentary letter of credit or any other similar instrument
issued by a bank or financial
institution;
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(i)
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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.
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For the
avoidance of doubt, any liability under any guarantee and/or indemnity given for
the benefit of a purchaser in connection with any disposal (whether by way of
sale or otherwise) permitted under this Agreement shall not constitute Financial
Indebtedness.
"German Entity" has the meaning given to it in
Clause 27.6 (Insolvency).
"Group" means the Company and its
fully-consolidated Subsidiaries from time to time.
"Group Structure Chart" means the group
structure chart in the agreed form.
"Guarantee" has the meaning given to it in
Clause 26.10 (Guarantees).
"Hazardous Substance" means any waste,
pollutant, contaminant or other substance that may reasonably be expected to be
harmful to human health or other life or the environment or that may reasonably
be expected to make the use or ownership of any affected land or property
materially more costly.
"Holding Company" means, in relation to an
entity, any other entity in respect of which it is a Subsidiary.
"IFRS" means international
accounting standards within the meaning of the IAS Regulation 1606/2002 to the
extent applicable to the relevant financial statements.
"Implementation Agreement"
means an agreement setting out the terms on which the Scheme will be
implemented.
"Information Memorandum" means the document in
the form approved by the Company concerning the Group which, at the Company's
request and on its behalf, was prepared in relation to this transaction and
distributed by the Arranger to selected financial institutions.
"Initial Margin Application Period" means the
period from the date of this Agreement up to and including the date falling five
Business Days after the date on which the first Compliance Certificate is
delivered which pertains to a Relevant Period, but no earlier than the
Acquisition Closing or the date the Offer or Scheme lapses or is
withdrawn.
"Interest Period" means (subject to
paragraph (a)(vi) of Clause 7.2 (Completion of a Utilisation Request
for Euro Swingline Loans)), in relation to a Loan, each period determined
in accordance with Clause 14 (Interest Periods) and,
in relation to an Unpaid Sum, each period determined in accordance with
Clause 13.3 (Default
interest and lump sum damages).
"ITA" means the Income Tax Xxx
0000.
"Legal Reservations" means any matters which are
set out as qualifications or reservations as to matters of law of general
application in any legal opinion delivered to the Agent under Clause 4.1 (Initial Conditions Precedent)
or Clause 29 (Changes to the
Obligors).
"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 28 (Changes to the
Lenders),
|
which in
each case has not ceased to be a Party in accordance with the terms of this
Agreement.
"LIBOR" means, in relation to any
Loan:
|
(a)
|
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen Rate is available for the currency or 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 the currency
of that Loan and for a period comparable to the Interest Period for that
Loan.
"Loan" means a Term Loan, a Revolving Facility
Loan or a Euro Swingline Loan.
"Loan Note" means any loan note issued in
accordance with the arrangements for any loan note alternative in the Scheme or,
as the case may be, the Offer.
"Major Default" means any circumstances
constituting an Event of Default under any of Clause 27.1 (Non-Payment); Clause 27.3
(Other obligations)
insofar as it relates to a breach of any Major Undertaking; Clause 27.4 (Misrepresentation) insofar as
it relates to a breach of any Major Representation; Clause 27.6 (Insolvency), Clause 27.7
(Winding-up), Clause
27.10 (Unlawfulness) or
Clause 27.11 (Repudiation), in each case
insofar as they relate to an Obligor, Bidco or, where the relevant provision
under Clause 23 (Representations), Clause 26
(General Undertakings) or
Clause 27 (Events of
Default) is not restricted to an Obligor or Bidco, Castle Cement Ltd.,
Cimenteries CBR S.A., Lehigh Cement Co., USA, Lehigh Cement Limited, Canada or
PT Indocement Tunggal Prakarsa Tbk.
"Major Representation" means a representation or
warranty other than with respect to any member of the Target Group under any of
Clause 23.1 (Status)
(but, with respect to paragraph (b) thereof, only insofar as it relates to an
Obligor, Bidco or Castle Cement Ltd., Cimenteries CBR S.A., Lehigh Cement Co.,
USA, Lehigh Cement Limited, Canada or PT Indocement Tunggal Prakarsa Tbk) to
paragraph (a) of Clause 23.5 (Validity and admissibility in
evidence) inclusive (other than paragraph (c) of Clause 23.3 (Non-conflict with other
obligations)) and Clause 23.18 (Acquisition-related representations
and warranties).
"Major Undertaking" means an undertaking under
any of Clause 26.3 (Negative pledge) to Clause 26.6 (Change of business)
inclusive, Clause 26.10 (Guarantees), Clause 26.11
(Loans out), Clause 26.14 (Ownership of Borrowers (other than
the Company)) and paragraphs (a), (b), (c), (f), or (h) of Clause
26.15 (Acquisition-related
undertakings).
"Majority Lenders" means:
|
(a)
|
if
there are no Loans then outstanding, a Lender or Lenders whose Commitments
aggregate more than 66-2/3% of the Total Commitments (or, if the Total
Commitments have been reduced to zero, aggregated more than 66-2/3% of the
Total Commitments immediately prior to the reduction);
or
|
|
(b)
|
at
any other time, a Lender or Lenders whose participations in the Loans then
outstanding aggregate more than 66-2/3% of all the Loans then
outstanding.
|
"Mandate Letter" means the letter dated
13 April 2007 between the Arranger, the Company and others.
"Mandatory Cost" means the percentage rate per
annum calculated by the Agent in accordance with Schedule 4 (Mandatory Cost
formulae).
"Margin" means
|
(a)
|
in
relation to any Facility A Loan [n n n] per cent. per
annum;
|
|
(b)
|
in
relation to any Facility B Loan [n n n] per cent. per
annum;
|
|
(c)
|
in
relation to any Facility C Loan [n n n] per cent. per
annum; and
|
|
(d)
|
in
relation to any Revolving Facility Loan [n n n] per cent. per
annum,
|
but
if:
|
(i)
|
no
Event of Default has occurred and is
continuing;
|
|
(ii)
|
the
Initial Margin Application Period has expired;
and
|
|
(iii)
|
the
Group's Net Debt/EBITDA in respect of the most recently completed Relevant
Period ending on any 30 June or 31 December is within the range set
out below,
|
then the
Margin for each Loan under the relevant Facility identified below will be
determined (and if necessary adjusted) on the basis of the following
margin-grid:
Ratio
of Group's Net Debt/EBITDA
|
Facility
A
|
Facility
B
|
Facility
C
|
Revolving
Facility
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
However:
|
(i)
|
any
adjustment in the Margin shall take effect only 5 Business Days after
receipt by the Agent of the Compliance Certificate for that Relevant
Period pursuant to Clause 24.2 (Compliance
Certificate);
|
|
(ii)
|
for
the purpose of determining the Margin, "Group's Net Debt", "EBITDA" and
"Relevant Period" shall be determined in accordance with Clause 25.1
(Financial
definitions);
|
|
(iii)
|
while
an Event of Default is continuing the Margin shall be the highest
percentage set out above for a Loan under that Facility;
and
|
|
(iv)
|
the
Margin applicable to Facility A will increase by 5 bps on the date
which is twelve months after the date of this Agreement and an additional
7.50 bps on the date which is eighteen months after the date of this
Agreement.
|
"Material Adverse Effect" means a material
adverse effect on:
|
(a)
|
the
ability of an Obligor to perform its payment obligations under the Finance
Documents; or
|
|
(b)
|
the
validity or enforceability of the Finance Documents or the rights or
remedies of any Finance Party under the Finance
Documents.
|
"Material Company" means, at any time, a member
of the Group (other than the Company):
|
(a)
|
whose
turnover exceeds 5% of the consolidated turnover of the Group as
determined from the most recent audited or, in the case of half-yearly
financial statements, unaudited consolidated financial statements of the
Group and the most recent audited (if available) or unaudited (if audited
statements are not available) unconsolidated financial statements of such
member of the Group;
|
|
(b)
|
whose
total assets exceed 5% of the consolidated total assets of the Group as
determined from the most recent audited or, in the case of half-yearly
financial statements, unaudited consolidated financial statements of the
Group and the most recent audited (if available) or unaudited (if audited
statements are not available) unconsolidated financial statements of such
member of the Group;
|
|
(c)
|
which
has acquired all or substantially all of the assets of a Material Company;
or
|
|
(d)
|
which
is nominated by the Company (and notified to the Agent in writing) to
ensure that the aggregated total assets and turnover (disregarding for
purposes of this calculation all intra-group items and
participations/shareholdings in other members of the Group) of all
Material Companies and the Company represent no less than 80% of the
consolidated total assets and consolidated turnover of the Group;
and
|
|
(e)
|
prior
to the date of delivery of the first financial statements pursuant to
paragraphs (a)(i), (b)(i) or (c)(i) of Clause 24.1 (Financial Statements)
following the Acquisition Closing, any member of the Group listed as a
Material Company in Schedule 18 (List of Material
Companies).
|
The
determinations relevant for the purposes of paragraph (eee) above shall be
made by reference to the latest consolidated audited (if available) or unaudited
(if audited financial statements are not available) financial statements of that
member of the Group (adjusted to reflect the exclusion of intra-group items and
participations/shareholdings in other members of the Group) and the latest
audited consolidated financial statements of the Group.
A report
by the auditors of the Company that a member of the Group is or is not a
Material Company shall, in the absence of manifest error, be conclusive and
binding on all Parties.
"Minor Company" means any member of the Group
which is not an Obligor or a Material Company and is not directly or indirectly
fully-owned by the Company and with respect to which, due to statutory documents
or contractual arrangements with other shareholders in place, no member of the
Group (as the case may be acting jointly with another member of the Group) has
the legal ability to give instructions to the management board required to
ensure compliance with the terms of this Agreement without the consent of any
other shareholder in such member of the Group which is not a member of the
Group.
"Month" means a period starting on one day in a
calendar month and ending on the numerically corresponding day in the next
calendar month, except that:
|
(a)
|
(subject
to paragraph (c) below) if the numerically corresponding day is not a
Business Day, that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one, or if there
is not, on the immediately preceding Business
Day;
|
|
(b)
|
if
there is no numerically corresponding day in the calendar month in which
that period is to end, that period shall end on the last Business Day in
that calendar month; and
|
|
(c)
|
if
an Interest Period begins on the last Business Day of a calendar month,
that Interest Period shall end on the last Business Day in the calendar
month in which that Interest Period is to
end.
|
The above
rules will only apply to the last Month of any period.
"Obligor" means a Borrower or a
Guarantor.
"Offer" means, if there is an Offer Press
Release, the offer proposed to be made by BidCo, substantially on the terms set
out in the Offer Press Release, to acquire the whole of the issued share capital
of Target, as such offer may from time to time be amended, added to, revised,
renewed or waived as permitted in accordance with the terms of this
Agreement.
"Offer Conversion Notice" has the meaning given
to such term in Clause 3.3 (Conversion from Scheme to
Offer).
"Offer Document" means the offer document issued
or to be issued by BidCo to the shareholders of the Target in respect of the
Offer.
"Offer Press Release" means the press release
(if any) made by or on behalf of BidCo announcing a firm intention to make the
Offer.
"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 Company, its audited unconsolidated financial statements
and the audited consolidated financial statements of the Group for the
financial year ended 2006;
|
|
(b)
|
in
relation to Target, its consolidated audited financial statements for its
financial year ended 2006;
|
|
(d)
|
in
relation to each Original Obligor other than the Company, its audited
financial statements for its financial year ended
2006.
|
"Original Obligor" means an Original Borrower or
the Guarantor.
"Overall Commitment" of a Lender
means:
|
(a)
|
its
Revolving Facility Commitment;
or
|
|
(b)
|
in
the case of a Euro Swingline Lender which does not have a Revolving
Facility Commitment, the Revolving Facility Commitment of a Lender which
is its Affiliate.
|
"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.
"Panel" means the Panel on Takeovers and
Mergers.
"Party" means a party to this
Agreement.
"Permitted Acquisition" means any
acquisition:
|
(a)
|
made
pursuant to or in connection with the
Acquisition;
|
|
(b)
|
of
participations in members of the
Group;
|
|
(c)
|
by
a member of the Group from another member of the
Group;
|
|
(d)
|
not
permitted by the preceding paragraphs provided
that
|
|
(i)
|
in
respect of any single transaction with a consideration in excess of EUR
[n n n], until all
Facility A Loans have been repaid in full and the Available Commitment in
relation to Facility A is [n n n], and,
thereafter, EUR [n n n], the Company has
delivered to the Agent no later than one month after the date of execution
by all parties of the binding acquisition agreement in relation thereto,
or, if later, the date of consummation of such acquisition a certificate
of the Company signed by two directors or a director and a procurist
(Prokurist)
evidencing that on a pro
forma forward looking calculation (based on reasonable assumptions)
for the Group the Company will continue to be able to comply with its
obligations under Clause 25.2 (Financial Condition)
for the remainder of the lifetime of the Facilities;]
and
|
(ii) |
the
aggregate consideration (including Debt remaining in the acquired entity
or business) in respect of all acquisitions does not exceed, when
aggregated with the consideration (including Debt remaining in the
acquired entity or business) in respect of any other acquisition falling
under this paragraph (rrr) by any member of the Group, (x) prior to the
repayment of all Facility A Loans and the Available Commitment in relation
to Facility A being [n n n], EUR[n n n] (or its
equivalent) and (y) after the repayment of all Facility A Loans and the
Available Commitment in relation to Facility A being [n n n] but before the
repayment of Facility B Loans in an amount that would reduce Facility B
Loans to [n n n], and the
Available Commitment in relation to Facility B being [n n n], EUR [n n n] (or its
equivalent), in each case in any financial year of the Company, whereby
"Debt" shall mean
all long-term financial liabilities (consisting of "Debenture loans",
"Bank loans" and "Other long-term financial liabilities") and short-term
financial liabilities (consisting of "Debenture loans (current portfolio)"
(if any), "Bank loans (current portfolio)" and "Other short-term financial
liabilities"); or
|
|
(e)
|
made
with the prior consent of the Majority
Lenders.
|
"Permitted Disposals" means
disposals:
|
(a)
|
made
in the ordinary course of business of the disposing
entity;
|
|
(b)
|
for
cash and on arm's length terms where the Net Disposal Proceeds resulting
from such disposal are applied in prepayment of Term Loans (or, following
repayment in full of the Term Loans, in cancellation (and, if required in
order to be able to cancel, prepayment) of the Revolving Facility and, as
applicable, the Euro Swingline Facility) in accordance with the provisions
of this Agreement;
|
|
(c)
|
which
constitute a disposal of money for purposes not otherwise prohibited by
this Agreement;
|
|
(d)
|
which
constitute a disposal of obsolete or redundant
assets;
|
|
(e)
|
made
in the course of a solvent liquidation (other than of an Obligor) or any
transaction permitted under Clause 26.5 (Merger) below,
involving any member of the Group and not otherwise prohibited under this
Agreement;
|
|
(f)
|
made
by a member of the Group to another member of the
Group;
|
|
(g)
|
pursuant
to a lease (Vermietung) of assets
not required for the business of the
lessor;
|
(h) |
in
exchange for other assets similar or superior in value and
type;
|
(i) |
required
by law or any governmental authority or
agency;
|
(j) |
of
receivables on arm's length terms and a non-recourse basis in connection
with factoring or securitisation arrangements, provided that the
aggregate amount of receivables so sold by any member of the Group and
outstanding to the relevant third parties does not exceed EUR 500,000,000
(or its equivalent) in aggregate at any
time;
|
(k) |
which
constitute a sale and lease-back of assets on arm's length terms, provided that the
consideration in respect of such disposals does not exceed EUR 250,000,000
(or its equivalent) in aggregate over the lifetime of this
Agreement;
|
(l) |
pursuant
to and/or in connection with the funding of special purpose vehicles or
trusts assuming the obligation to fulfil pension obligations of any member
of the Group (commonly referred to as contractual trust arrangements)
and/or pursuant to or in connection with pension fund arrangements, provided that the
aggregate book value of assets disposed of in reliance on this paragraph
may not at any time prior to repayment in full of Facility A and Facility
B exceed EUR 500,000,000 (or its equivalent) and, thereafter, EUR
800,000,000 (or its equivalent);
|
(m) |
required
by any relevant anti-trust authority to be made in connection with the
Acquisition;
|
(n) |
made
with the prior consent of the Majority Lenders;
or
|
(o) |
on
arm's length terms and for fair market value of assets by a member of the
Group which, when aggregated with previous disposals (other than disposals
permitted under paragraphs (a) to (n) above) do not represent a material
part of the Company's total consolidated assets in any financial year of
the Company,
|
provided that prior to the
date on which the Offer or Scheme lapses or is withdrawn (unless an Offer
Conversion Notice has been served or is served within 2 Business Days of such
lapse or withdrawal pursuant to Clause 3.3 (Conversion from Scheme to
Offer)) this definition of Permitted Disposal shall not operate to allow
any disposal of Target Shares.
"Permitted Financial Indebtedness"
means:
|
(a)
|
Financial
Indebtedness listed in Schedule 13 (Existing Financial
Indebtedness) up to the amount outstanding on the date of this
Agreement;
|
(b) |
Financial
Indebtedness owed by a member of the Group to another member of the
Group;
|
(c) |
Financial
Indebtedness incurred by any entity (including, without limitation, the
members of the Target Group) which becomes a member of the Group after the
date of this Agreement, where:
|
|
(i)
|
such
Financial Indebtedness was incurred prior to the date on which such entity
became a member of the Group;
|
|
(ii)
|
the
principal amount of such Financial Indebtedness has not been increased in
contemplation of such entity becoming or since such entity became a member
of the Group; and
|
|
(iii)
|
such
Financial Indebtedness is discharged within six months after the date on
which such entity became a member of the Group, provided that no such
discharge shall be required (i) if and to the extent the principal amount
of such Financial Indebtedness does not, when aggregated with the
principal amount of all other Financial Indebtedness then outstanding in
reliance on this sub-paragraph, exceed an amount corresponding to 20% of
the Financial Indebtedness of the Group as determined from the most recent
consolidated financial statements of the Group and (ii) no principal
payment is due under such Financial Indebtedness on or prior to the
Termination Date for Facility
C;
|
(d) |
Financial
Indebtedness under any bonds issued by a member of the Target Group which
are outstanding at the Acquisition
Closing;
|
(e) |
Financial
Indebtedness incurred under the Finance
Documents;
|
(f) |
Financial
Indebtedness in respect of current accounts payable and accrued expenses
incurred in the ordinary course of business of the relevant member of the
Group;
|
(g) |
Financial
Indebtedness incurred with the prior consent of the Majority
Lenders;
|
(h) |
Financial
Indebtedness incurred with respect to loans from employees extended in
connection with customary profit sharing
schemes;
|
|
(i)
|
Financial
Indebtedness incurred under bank guarantees to be issued to any insurer of
any member of the Group (other than the
Company);
|
|
(j)
|
Financial
Indebtedness incurred by BidCo, the Company or Heidelberg Cement Finance
B.V. under any bank guarantees to be issued in support of the liability of
BidCo under the Loan Notes;
|
|
(k)
|
Financial
Indebtedness incurred by BidCo under the Loan Notes;
or
|
(l) |
Financial
Indebtedness which does not (when aggregated with the amount of any other
Financial Indebtedness of any member of the Group (other than the Company
or any Finance Subsidiary) not otherwise permitted under the above
paragraphs) exceed at any time [EUR n n n] (or its
equivalent).
|
"Permitted Guarantees" means:
|
(a)
|
existing
Guarantees listed in Schedule 14 (Existing
Guarantees);
|
|
(b)
|
Guarantees
granted pursuant to or in connection with hedging instruments entered into
in the ordinary course of
business;
|
|
(c)
|
Guarantees
granted pursuant to or in connection with the Finance Documents or the
Acquisition;
|
|
(d)
|
Guarantees
granted in the ordinary course of
business;
|
|
(e)
|
Guarantees
granted by a member of the Group to secure obligations of another member
of the Group (other than a guarantee by a member of the Group (other than
the Company or any Finance Subsidiary) to secure Financial Indebtedness of
the Company or any Finance
Subsidiary);
|
|
(f)
|
any
Guarantee given for the benefit of a purchaser in connection with any
disposal (whether by way of sale or otherwise) permitted under this
Agreement;
|
|
(g)
|
Guarantees
granted to a lessor or seller of real property to be used for the
extraction of raw materials to secure payment of lease or purchase price
instalments falling due depending on the progress of such extraction,
provided that the
aggregate principal amount secured by such Guarantees does not exceed
[EURn n n] (or its
equivalent) at any time;
|
|
(h)
|
Guarantees
granted to secure obligations of any Permitted Joint Venture in a
principal amount which when aggregated with the principal amount
guaranteed by all other such guarantees and loans or credits granted in
accordance with paragraph (f) of the definition of Permitted Loans does
not exceed [EURn n n] (or its
equivalent) at any time; or
|
|
(i)
|
any
other Guarantee, provided
that the aggregate maximum potential liability arising under all
Guarantees granted in reliance on this paragraph does not at any time
exceed [EURn n n] (or its
equivalent) and, when aggregated with loans or credits granted in
accordance with paragraph (h) of the definition of Permitted Loans, does
not exceed [EURn n n] (or its
equivalent) at any time.
|
"Permitted Joint Venture" means a joint venture
which is not a member of the Group and in respect of which a members of the
Group (a) own together at least 25.1% of the ordinary voting capital and (b)
together with one or more other shareholder(s) of such joint venture, has joint
control over the joint venture, whether by way of shareholding, voting rights,
agreement or otherwise. The terms "joint venture" and "joint control" shall have the meaning
attributed to them in IAS 31 as in effect on the date of this
Agreement.
"Permitted Liquidation" has the meaning given to
it in Clause 27.7 (Winding-up).
"Permitted Loans" means:
|
(a)
|
existing
loans and/or credit listed in Schedule 15 (Existing
Loans);
|
|
(b)
|
trade
credit extended on normal commercial terms and in the ordinary course of
trading activities of the lending
entity;
|
|
(c)
|
any
loan granted by a member of the Group to any of its employees or
directors;
|
|
(d)
|
any
loan or credit with a term of not more than 12 months resulting from
deferred payments for Permitted
Disposals;
|
|
(e)
|
any
loan or credit with a term of not more than 12 months resulting from
advanced payments for Permitted
Acquisitions;
|
|
(f)
|
any
loan or credit extended to Permitted Joint Ventures in an amount which
when aggregated with any other such loans or credits and any principal
amount guaranteed pursuant to Permitted Guarantees paragraph (h) of the
definition of Permitted Guarantees does not exceed [EURn n n] (or its
equivalent) at any time;
|
(g) |
any
loan or credit granted with the prior consent of the Majority Lenders;
or
|
|
(h)
|
any
loan or credit granted by a member of the Group which when aggregated with
the amount of any other loan or credit not otherwise permitted under the
above paragraphs does not at any time exceed [EURn n n] (or its
equivalent) and, when aggregated with any principal amount guaranteed
pursuant to paragraph (i) of the definition of Permitted Guarantees does
not exceed [EURn n n] (or its
equivalent) at any time.
|
"Permitted Security" means:
|
(a)
|
existing
Security listed in Schedule 9 (Existing Security)
securing Financial Indebtedness outstanding on the date of this Agreement
(or any refinancing thereof, subject to no increase of the principal
amount secured);
|
(b) |
any
Security created to secure Financial Indebtedness owed to a member of the
Group (other than loans from a Finance Subsidiary to any member of the
Group);
|
(c)
|
any
Security arising by operation of law (or by agreement having the same
effect) and in the ordinary course of business and not due to a
default;
|
(d)
|
any
Security over or affecting any asset acquired by a member of the Group
after the date of this Agreement,
if:
|
|
(i)
|
such
Security was not created in contemplation of the acquisition of that asset
by such member of the Group;
|
|
(ii)
|
the
principal amount secured has not been increased in contemplation of or
since the acquisition of that asset by such member of the Group;
and
|
|
(iii)
|
the
Security is removed or discharged within six months of the date of
acquisition of such asset;
|
(e)
|
any
Security over or affecting any asset of any entity which becomes a member
of the Group after the date of this Agreement (including, without
limitation, the Target and its Subsidiaries), where the Security was
created prior to the date on which the relevant entity became a member of
the Group (or thereafter due to an obligation to create such Security
assumed prior to the date on which such entity became a member of the
Group), if:
|
|
(i)
|
the
Security was not created or the obligation to create such Security was not
assumed in contemplation of such entity becoming a member of the
Group;
|
|
(ii)
|
the
principal amount secured has not been increased in contemplation of such
entity becoming, or since such entity became, a member of the Group;
and
|
|
(iii)
|
the
Security is removed or discharged within six months after the date such
entity became a member of the Group, provided that no such
discharge shall be required if and to the extent the principal amount of
the Financial Indebtedness secured by such Security does not, when
aggregated with the principal amount of any other Financial Indebtedness
secured by Security outstanding in reliance on this sub-paragraph, exceed
an amount corresponding to 3% of the consolidated total assets of the
Group, calculated on the basis of the consolidated financial statements of
the Group as of 31 December
2006;
|
(f)
|
any
Security arising in connection with conditional sale or retention of title
arrangements entered into in the ordinary course of
business;
|
(g)
|
any
Security arising under general business conditions in the ordinary course
of business, including without
limitation:
|
|
(i)
|
under
the general business conditions of any bank or financial institution with
which a member of the Group maintains a banking relationship in the
ordinary course of business;
|
|
(ii)
|
the
right to call for margin; and
|
|
(iii)
|
in
respect of hedging activities in the Group's ordinary course of business,
including in particular in respect of energy and
commodities;
|
|
(h)
|
any
Security arising pursuant to or in connection with
any:
|
|
(i)
|
cash
management arrangements;
|
|
(ii)
|
securities
transactions; or
|
|
(iii)
|
framework/master
agreements relating to derivatives
transactions,
|
in each
case made with a bank or financial institution in the ordinary course of the
relevant member of the Group's treasury activities;
(i)
|
any
Security created or subsisting over any asset held in any securities
depositary or any clearing house pursuant to the standard terms and
procedures of the relevant securities depositary or clearing house
applicable in the normal course of
trading;
|
(j)
|
any
Security arising pursuant to or in connection with any securities lending
transactions (including without limitation repurchase transactions)
entered into in the ordinary course of treasury activities in the context
of the Group taken as a whole;
|
(k)
|
any
Security created or subsisting in order to comply with the requirements of
section 8a of the German Altersteilzeitgesetz
and of section 7d of the German Social Security Code (Sozialgesetzbuch IV);
|
(l)
|
any
Security created or subsisting over cash deposited in escrow in connection
with Permitted Acquisitions;
|
(m)
|
any
Security created or subsisting with the prior consent of the Majority
Lenders;
|
(n)
|
any
Security created or subsisting over any cash securing the liability of
BidCo under the Loan Notes and/or under any guarantee issued by or on
behalf of Bidco as permitted under paragraph (c) of the definition of
Permitted Guarantees or paragraph (j) of the definition of Permitted
Financial Indebtedness;
|
(o)
|
any
other Security created or outstanding not permitted under the preceding
paragraphs, but only if and to the extent the aggregate principal amount
secured by all Security created or outstanding in reliance to this
paragraph does not at any time exceed EUR 350,000,000 (or its
equivalent).
|
"Permitted Transaction" means a Permitted
Transformation, a Permitted Disposal or a Permitted Liquidation.
"Permitted Transformation" means:
(a)
|
any
Transformation involving members of the Group only;
or
|
(b)
|
any
other Transformation implemented with the prior consent of the Majority
Lenders.
|
"Press Release" means an Offer Press Release or
a Scheme Press Release.
"Qualifying Lender" has the meaning given to it
in Clause 17 (Tax gross-up and
indemnities).
"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;
|
(b)
|
(if
the currency is domestic sterling) the first day of that period;
or
|
(c)
|
(for
any other currency) two Business Days before the first day of that
period,
|
unless
market practice differs in the European 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 European interbank market (and if
quotations would normally be given by leading banks in the European interbank
market on more than one day, the Quotation Day will be the last of those
days).
"Reduction" has the meaning given to such term
in the definition of "Scheme Date".
"Reference Banks" means Deutsche Bank Luxembourg
S.A, The Royal Bank of Scotland plc and such other bank agreed between the Agent
and the Company or such other banks as may be appointed by the Agent in
consultation with the Company.
"Relevant Period" means each period of twelve
months ending on the last day of the Company's financial year and each period of
twelve months ending on the last day of the first half of the Company's
financial year.
"Repeated Representations" means each of the
representations set out in Clauses 23.1 (Status) to 23.5 (Validity and admissibility in
evidence), Clause 23.9 (No default), Clause 23.11
(Financial Statements),
Clause 23.12 (Pari passu
ranking), Clause 23.13 (No proceedings pending or
threatened), Clause 23.14 (Environmental laws and
licences) and Clause 23.15 (Environmental
releases).
"Resignation Letter" means a letter
substantially in the form set out in Schedule 7 (Form of Resignation
Letter).
"Revolving Facility" means the revolving loan
facility made available under this Agreement as described in paragraph (d) of
Clause 2 (The
Facilities).
"Revolving Facility Commitment"
means:
(a)
|
in
relation to an Original Lender, the amount in the Base Currency set
opposite its name under the heading "Revolving Facility Commitment" in
Part IIA of Schedule 1 (The Original Parties)
and the amount of any other Revolving Facility Commitment transferred to
it under this Agreement; and
|
(b)
|
in
relation to any other Lender, the amount in the Base Currency of any
Revolving Facility Commitment transferred to it under this
Agreement,
|
to the
extent not cancelled, reduced or transferred by it under this
Agreement.
"Revolving Facility Loan" means a loan made or
to be made under the Revolving Facility or the principal amount outstanding for
the time being of that loan.
"Rollover Loan" means one or more Revolving
Facility Loans:
(a)
|
made
or to be made on the same day that a maturing Revolving Facility Loan is
due to be repaid;
|
(b)
|
the
aggregate amount of which is equal to or less than the maturing Revolving
Facility Loan;
|
(c)
|
in
the same currency as the maturing Revolving Facility Loan (unless it arose
as a result of the operation of Clause 9.2 (Unavailability of a
currency)); and
|
(d)
|
made
or to be made to the same Borrower for the purpose of refinancing a
maturing Revolving Facility Loan.
|
"Scheme" means the scheme of arrangement under
section 425 of the Companies Xxx 0000 which is or may be proposed by the Target
to its shareholders pursuant to which BidCo will become the only shareholder of
the Target.
"Scheme Date" means the date on which an office
copy of the Court Orders sanctioning the Scheme and the reduction of share
capital of the Target under Section 137 of the Companies Xxx 0000 provided for
by the Scheme (the "Reduction") are
delivered to the Registrar of Companies and the issue by the Registrar of
Companies of a certificate under Section 138 of the Companies Xxx 0000 in
relation to the Reduction or the last date on which any of the foregoing occur
if occurring on different dates.
"Scheme Document" means the document to be sent
to the shareholders of the Target containing the details of the Scheme and
convening a court approved meeting of the shareholders of the Target to seek
their approval of the Scheme.
"Scheme Press Release" means the press release
to be made by or on behalf of BidCo and the Target announcing a firm intention
to implement the Acquisition pursuant to the Scheme.
"Screen Rate" means:
|
(a)
|
in
relation to EURIBOR, the percentage rate per annum determined by the
Banking Federation of the European Union for the relevant period;
and
|
|
(b)
|
in
relation to LIBOR, 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 after consultation with the Company and the
Lenders.
"Security" means a mortgage, charge, pledge,
lien or other in rem
security interest (dingliche
Sicherheit) securing any obligation of any person or any other agreement
or arrangement having a similar effect where one of the reasons behind such
agreement or arrangement is to secure any obligation of any person.
"Selection Notice" means a notice substantially
in the form set out in Part II of Schedule 3 (Requests) given in accordance
with Clause 14 (Interest
Periods) or as the case may be, Clause 9 (Optional Currencies) in
relation to Facility A, Facility B or Facility C.
"Specified Disposals Letter" means the letter
from the Company to the Arrangers dated 4 May 2007 identifying certain assets of
the Group which may be disposed of.
"Specified Time" means a time determined in
accordance with Schedule 11 (Timetables).
"Subsidiary" means in relation to any person, an
entity which is controlled directly or indirectly by that person and, for these
purposes, "control" means:
(a)
|
the
direct or indirect ownership of a majority of the voting share capital of
such entity;
|
(b)
|
having
the right to appoint a majority of the board of directors or supervisory
board (or like board and in any case to the extent elected by the
shareholders) of such entity; or
|
(c)
|
having
the power to direct the management or policies of the entity, whether by
contract or otherwise.
|
"Syndication Date" means the date on which the
Arranger notifies the Company that a successful general syndication has occurred
and the relevant Lenders become party to this Agreement.
"Takeover Code" means The City Code on Takeover
and Mergers.
"Target" means Xxxxxx plc, a public limited
company established in England and Wales and listed in London on the Official
List of the London Stock Exchange.
"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.
"Target Group" means the Target and its
Subsidiaries from time to time but excluding for the purposes of Clause 27.16
(Clean-up Period) any
member of the Group which at the date it became a member of the Group was not a
member of the Target Group and which is contributed to the Target or any of its
Subsidiaries.
"Target Shares" means all of the shares of the
Target and all warranties and options in respect of the share capital of the
Target.
"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 Facility" means Facility A, Facility B or
Facility C.
"Term Loan" means a Facility A Loan, a
Facility B Loan or a Facility C Loan.
"Termination Date" means:
(a)
|
in
relation to Facility A, the date falling two years after the date of this
Agreement;
|
(b)
|
in
relation to Facility B, the date falling three years after the date of
this Agreement;
|
(c)
|
in
relation to Facility C, 30 December 2011;
and
|
(d)
|
in
relation to the Revolving Facility, the date falling five years after the
date of this Agreement.
|
"Total Commitments" means the aggregate of the
Total Facility A Commitments, the Total Facility B Commitments, the Total
Facility C Commitments and the Total Revolving Facility
Commitments.
"Total Euro Swingline Commitments" means the
aggregate of the Euro Swingline Commitments, being EUR 500,000,000 at the date
of this Agreement.
"Total Facility A Commitments" means the
aggregate of the Facility A Commitments, being GBP 5,330,000,000 at the date of
this Agreement.
"Total Facility B Commitments" means the
aggregate of the Facility B Commitments, being GBP 3,420,000,000 at the date of
this Agreement.
"Total Facility C Commitments" means the
aggregate of the Facility C Commitments, being EUR 2,400,000,000 at the date of
this Agreement.
"Total Revolving Facility Commitments" means the
aggregate of the Revolving Facility Commitments, being EUR 1,000,000,000 at the
date of this Agreement.
"Transfer Certificate" means a certificate
substantially in the form set out in Schedule 5 (Form of Transfer Certificate)
or any other form agreed between the Agent and the Company.
"Transaction Costs" means any costs, fees,
expenses or taxes incurred by the Company, BidCo and/or any other member of the
Group in connection with or for the purposes of the Acquisition and its
financing.
"Transfer Date" means, in relation to an
assignment and transfer by way of assumption of contract (VertragsΓΌbernahme) pursuant
to Clause 28.5 (Procedure
for assignment and transfer by way of assumption of contract
(VertragsΓΌbernahme)), the later of:
(a)
|
the
proposed Transfer Date specified in the Transfer Certificate;
and
|
(b)
|
the
date on which the Agent accepts the Transfer
Certificate.
|
"Transformation" has the meaning given to it in
Clause 26.5 (Merger).
"Unconditional Date" means the date on which the
Offer has become unconditional in all respects.
"Unpaid Sum" means any sum due and payable but
unpaid by an Obligor under the Finance Documents.
"Utilisation" means a utilisation of a
Facility.
"Utilisation Date" means the date of a
Utilisation, being the date on which the relevant Loan is to be
made.
"Utilisation Request" means:
(a)
|
in
the case of a Utilisation of Facility A, Facility B or Facility C or the
Revolving Facility a notice substantially in the form set out in Part I A
of Schedule 3 (Requests);
and
|
(b)
|
in
the case of a Utilisation of the Euro Swingline Facility a notice
substantially in the form set out in Part I B of Schedule 3 (Requests).
|
"VAT" means value added tax as provided for in
the Value Added Tax Act (Umsatzsteuergesetz) and any
other tax of a similar nature.
1.2
|
Construction
|
|
(a)
|
Unless
a contrary indication appears any reference in this Agreement
to:
|
|
(i)
|
the
"Agent", the
"Arranger", any
"Finance Party",
any "Lender", 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)
|
"director" includes any
statutory legal representative(s) (organschaftlicher
Vertreter) of a person pursuant to the laws of its jurisdiction of
incorporation, including but not limited to, in relation to a person
incorporated or established in Germany, a managing director (GeschΓ€ftsfΓΌhrer) or
member of the board of directors (Vorstand) provided that "director" in relation to
a Dutch Borrower means a managing director (bestuurder) and "board of directors"
means its managing board (Bestuur);
|
|
(iv)
|
a
"Finance Document"
or any other agreement or instrument is a reference to that Finance
Document or other agreement or instrument as amended, novated,
supplemented, extended, replaced or
restated;
|
|
(v)
|
"Group" includes all
entities which are a Subsidiary of the Company and would need to be
consolidated if financial statements had to be prepared by the Company at
such date;
|
|
(vi)
|
"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;
|
|
(vii)
|
an
"Interest Period"
includes each period determined under this Agreement by reference to which
interest on a Euro Swingline Loan is
calculated;
|
|
(viii)
|
a
"Lender" includes
a Euro Swingline Lender unless the context otherwise
requires;
|
|
(ix)
|
a
"person" includes
any individual, firm, company, corporation, government, state or agency of
a state or any association, trust, joint venture, consortium or
partnership (whether or not having separate legal
personality);
|
|
(x)
|
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;
|
|
(xi)
|
a
provision of law is a reference to that provision as amended or
re-enacted; and
|
|
(xii)
|
a
time of day is a reference to London
time.
|
|
(b)
|
Where
the Company undertakes to "procure" or "ensure" compliance with any term
of any Finance Document by any Subsidiary which is a Minor Company, the
Company shall be deemed to have complied with its obligations to "procure"
or "ensure" compliance if it has exercised diligently the voting, control,
direction or similar rights available to it with a view to "procure" or
"ensure" such compliance.
|
|
(c)
|
Section,
Clause and Schedule headings are for ease of reference
only.
|
|
(d)
|
Unless
a contrary indication appears, a term used in any other Finance Document
or in any notice given under or in connection with any Finance Document
has the same meaning in that Finance Document or notice as in this
Agreement.
|
|
(e)
|
A
Borrower providing "cash
cover" for an Ancillary Facility means a Borrower paying an amount
in the currency of the Ancillary Facility to an interest-bearing account
in the name of the Borrower and the following conditions being
met:
|
|
(i)
|
the
account is with the relevant Ancillary Lender (or its
Affiliate);
|
|
(ii)
|
until
no amount is or may be outstanding under that Ancillary Facility,
withdrawals from the account may only be made to pay a Finance Party
amounts due and payable to it under this Agreement in respect of that
Ancillary Facility; and
|
|
(iii)
|
the
Borrower has executed a security document over that account, in form and
substance satisfactory to the Ancillary Lender with which that account is
held, creating a first ranking security interest over that
account.
|
|
(f)
|
A
Default (including an Event of Default) is "continuing" if it has
not been remedied or waived.
|
|
(g)
|
A
Borrower "repaying" or "prepaying" Ancillary
Outstandings means:
|
|
(i)
|
that
Borrower providing cash cover in respect of the Ancillary
Outstandings;
|
|
(ii)
|
the
maximum amount payable under the Ancillary Facility being reduced or
cancelled in accordance with its terms;
or
|
|
(iii)
|
the
Ancillary Lender being satisfied that it has no further liability under
the Ancillary Facility,
|
and the
amount by which Ancillary Outstandings are repaid or prepaid under paragraphs
(g)(i) and (g)(ii) above is the amount of the relevant cash cover or
reduction.
|
(h)
|
An
amount borrowed includes any amount utilised under an Ancillary
Facility.
|
|
(i)
|
Any
certificates, certifications or other confirmation to be provided by any
director of any member of the Group shall be provided without personal
liability except in the case of fraud or wilful
misconduct.
|
1.3
|
Dutch
Terms
|
In this
Agreement, where it relates to a Dutch entity, a reference to:
|
(a)
|
a
necessary action to authorise, where applicable, includes without
limitation:
|
|
(i)
|
any
action required to comply with the Dutch Works Council Act (Wet op de ondernemingsraden);
and
|
|
(ii)
|
obtaining
unconditional positive advice (advies) from each
competent works council;
|
|
(b)
|
a
winding-up, administration or dissolution includes a Dutch entity
being:
|
|
(i)
|
declared
bankrupt (failliet verklaard);
|
|
(ii)
|
dissolved
(ontbonden);
|
|
(c)
|
a
moratorium includes surseance van betaling and granted a
moratorium includes surseance verleend;
|
|
(d)
|
a
trustee in bankruptcy includes a curator;
|
|
(e)
|
an
administrator includes a bewindvoerder;
|
|
(f)
|
a
receiver or an administrative receiver does not include a curator or bewindvoerder;
and
|
|
(g)
|
an
attachment includes a beslag.
|
1.4
|
Currency
Symbols and Definitions
|
"EUR" and "euro" denote the single currency unit of the
Participating Member States, "$" and
"dollars" denote the lawful currency of
the United States of America, "Β£" ,
"GBP" and "sterling" denote the lawful currency of the
United Kingdom and "JPY", "Β₯" and "yen" denote the lawful currency of
Japan.
1.5
|
This
Agreement is made in the English language. For the avoidance of doubt, the
English language version of this Agreement shall prevail over any
translation of this Agreement. However, where a German translation of a
word or phrase appears in the text of this Agreement, the German
translation of such word or phrase shall
prevail.
|
SECTION
2
THE
FACILITIES
2.1
|
The
Facilities
|
Subject
to the terms of this Agreement, the Lenders make available:
|
(a)
|
a
multicurrency term loan facility in an aggregate amount equal to the Total
Facility A Commitments;
|
|
(b)
|
a
multicurrency term loan facility in an aggregate amount equal to the Total
Facility B Commitments;
|
|
(c)
|
a
multicurrency term loan facility in an aggregate amount (in the Base
Currency) which is equal to the Total Facility C Commitments;
and
|
|
(d)
|
a
multicurrency revolving loan facility in an aggregate amount equal to the
Total Revolving Facility
Commitments.
|
The Term
Facilities will be available to HeidelbergCement AG and HeidelbergCement Finance
B.V. and the Revolving Facility will be available to all Borrowers, provided that Facility A will, for drawings to
be made for the purpose set out in paragraph (a)(viii) of Clause 3.1 (Purpose), only be available
to HeidelbergCement AG.
In
addition, subject to the terms of this Agreement and the Ancillary Documents, an
Ancillary Lender may make available an Ancillary Facility to HeidelbergCement AG
or HeidelbergCement Finance B.V. in place of part of its Commitment
under Facility B.
2.2
|
Base
Currency Redenomination
|
|
(a)
|
Any
request from the Company to the Agent requesting the occurrence of a Base
Currency Redenomination Date
must:
|
|
(i)
|
be
delivered in writing no later than the date which is five Business Days
prior to the proposed Base Currency Redenomination
Date;
|
|
(ii)
|
be
countersigned by the Financial Advisor;
and
|
|
(iii)
|
relate
to the whole of Facility A and/or the whole of Facility
B.
|
|
(b)
|
The
Agent shall determine on the date which is three Business Days prior to
the relevant Base Currency Redenomination Date (i) the Base Currency
Amount (for the new Base Currency applicable after that Base Currency
Redenomination Date) for all Facility A Loans and/or Facility B Loans and
(ii) the Facility A Commitment and/or Facility B Commitment of each Lender
under Facility A and/or Facility B as of that Base Currency Redenomination
Date.
|
2.3
|
Finance
Parties' rights and obligations
|
|
(a)
|
The
obligations of each Finance Party under the Finance Documents are several
and do not constitute a joint obligation (AusschluΓ der
gesamtschuldnerischen Haftung). 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 do not constitute a
joint creditorship (AusschluΓ der
GesamtglΓ€ubigerschaft) and any debt arising under the Finance
Documents to a Finance Party from an Obligor shall, except as otherwise
set out in this Agreement or any other Finance Document, be a separate and
independent debt (AusschluΓ der
gesamtschuldnerischen
Haftung).
|
|
(c)
|
A
Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance
Documents.
|
3.
|
3.1
|
Purpose
|
|
(a)
|
Each
Borrower shall apply all amounts borrowed by it under the Term Facilities
in or towards:
|
|
(i)
|
directly
and/or indirectly financing the payment of cash consideration due to the
shareholders of Target in respect of the acquisition by BidCo of up to
100% of the issued share capital of Target by way of a Scheme or an Offer
(whether in relation to the maximum cash consideration payable in respect
of any Offer or Scheme, any additional Target Shares which may have to be
acquired as a result of conversion rights, warrants or options, any
parallel cash offers the Takeover Code may require to be made in respect
of other classes of Target securities (if any) and any consideration
required to squeeze out non-assenting minority shareholders in Target
under the compulsory acquisition procedures under Part 28 of the Companies
Act 2006);
|
|
(ii)
|
on
the Acquisition Closing, refinancing of Financial Indebtedness incurred by
the Company to fund open market purchases outside the Scheme or Offer
(including the DB Facility);
|
|
(iii)
|
refinancing
existing Financial Indebtedness of the Group in an amount of up to EUR
2,000,000,000;
|
|
(iv)
|
refinancing
certain existing Financial Indebtedness of Target and its Subsidiaries in
an aggregate amount of up to EUR
1,600,000,000;
|
|
(v)
|
funding,
as the case may be, [n n nEUR n n n]
|
|
(vi)
|
payment
of Transaction Costs;
|
|
(vii)
|
funding
payments under or to cash collateralise the Loan Notes;
and
|
|
(viii)
|
prior
to the Acquisition Closing, in the case of Facility A only and only up to
EUR 3,000,000,000 (or its equivalent in GBP) to finance or refinance
the consideration payable to Target's shareholders in respect of on or
off-market purchases of shares of Target, including the refinancing of
Financial Indebtedness incurred by the Company to finance such
consideration.
|
|
(b)
|
Each
Borrower shall apply all amounts borrowed by it under Revolving Facility
towards the general corporate and working capital purposes of the Group
(including, for the avoidance of doubt, payment of Transaction Costs and
refinancing of existing working capital
lines).
|
3.2
|
Monitoring
|
No
Finance Party is bound to monitor or verify the application of any amount
borrowed pursuant to this Agreement.
3.3
|
Conversion
from Scheme to Offer
|
At any
time before the Scheme Date, the Company may give written notice to the Agent
(an "Offer Conversion Notice") that it
will withdraw the Scheme and/or launch an Offer instead provided that if an Offer is launched the terms
of this Agreement applicable to an Offer are complied with and provided further that the terms of any Offer
made after the issue of an Offer Conversion Notice must not (save as permitted
under this Agreement) deviate materially from the terms set out in the Scheme
Press Release save to the extent required to take into account the Acquisition
being made by way of an Offer rather than a Scheme. Any such Offer Conversion
Notice shall be irrevocable.
4.1
|
Initial
conditions precedent
|
|
(a)
|
Save
as set out in paragraph (b) below, no Borrower may deliver a Utilisation
Request unless the Agent has received all of the documents and other
evidence listed in Part I and, except for the delivery of the respective
Utilisation Requests, Part II of Schedule 2 (Conditions precedent)
which, unless otherwise set out therein, must be in form and substance
satisfactory to the Agent, provided that the
Lenders will only be obliged to comply with Clause 5.4 (Lender's participation)
in relation to any Utilisation if the Utilisation Requests specified in
Part II of Schedule 2 (Conditions precedent)
have been submitted no later than on the Specified Time applicable to such
Utilisation. The Agent shall notify the Company (with a copy to be sent to
the financial advisor appointed by the Company in connection with the
Acquisition and notified to the Agent, the "Financial Advisor")) and
the Lenders promptly upon being so satisfied or upon receipt, as
applicable. At any time upon request of the Company the Agent will confirm
to the Company (with a copy to the Financial Advisor) which of the
documents and other evidence listed in Part I and II of Schedule 2
(Conditions
Precedent) it has received, where applicable, in form and substance
satisfactory to it.
|
|
(b)
|
In
relation to any Utilisations to be made for the purpose set out in
paragraph (a)(viii) of Clause 3.1 (Purpose) the Company
may not deliver a Utilisation Request unless the Agent has received all of
the documents and other evidence listed in Part I and in paragraph (a)
under the heading "Other documents and evidence" of Part II of Schedule 2
(Conditions
precedent) which must be in form and substance satisfactory to the
Agent. The Agent shall notify the Company and the Lenders promptly upon
being so satisfied.
|
4.2
|
Further
conditions precedent
|
|
(a)
|
The
Lenders will only be obliged to comply with Clause 5.4 (Lenders' participation)
in relation to a Utilisation (other than one to which Clause 4.5 (Utilisations during the
Certain Funds Period) applies) if on the date of the Utilisation
Request and on the proposed Utilisation
Date:
|
|
(i)
|
in
the case of a Rollover Loan, no Event of Default is continuing or would
result from the proposed Loan and, in the case of any other Loan, no
Default is
continuing or would result from the proposed Loan;
and
|
|
(ii)
|
the
Repeated Representations made by each Obligor are true in all material
respects.
|
|
(b)
|
The
Lenders will only be obliged to comply with Clause 9.3 (Change of currency) if,
on the first day of an Interest Period, no Default is continuing or would
result from the change of currency and the Repeated Representations made
by each Obligor are true in all material
respects.
|
4.3
|
Conditions
relating to Optional Currencies
|
|
(a)
|
A
currency (other than USD, GBP or JPY which are committed Optional
Currencies) 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 European interbank market on the Quotation Day
and the Utilisation Date for that Loan;
and
|
|
(ii)
|
it
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 or Selection Notice for that
Loan.
|
|
(b)
|
If
the Agent has received a written request from the Company for a currency
to be approved under paragraph (a)(ii) above, the Agent will confirm to
the Company by the Specified
Time:
|
|
(i)
|
whether
or not the Lenders have granted their approval;
and
|
|
(ii)
|
if
approval has been granted, the minimum amount 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:
|
|
(i)
|
16
or more Term Loans would be outstanding;
or
|
|
(ii)
|
16
or more Revolving Facility Loans would be
outstanding.
|
|
(b)
|
A
Borrower may not request that a Term Loan be divided if, as a result of
the proposed division, 16 or more Term Loans would be
outstanding.
|
|
(c)
|
Any
Loan made by a single Lender under Clause 9.2 (Unavailability of a
currency) shall not be taken into account in this Clause
4.4.
|
4.5
|
Utilisations
during the Certain Funds Period
|
|
(a)
|
Subject
to Clause 4.1 (Initial
conditions precedent), during the Certain Funds Period, the Lenders
will in any event be obliged to comply with Clause 5.4 (Lenders' participation)
in relation to a Certain Funds Utilisation, except where on the date of
the Utilisation Request and/or on the proposed Utilisation
Date:
|
|
(i)
|
a
Major Default is continuing or would result from the proposed Utilisation;
or
|
|
(ii)
|
any
of the Major Representations is not true in all material
respects.
|
|
(b)
|
During
the Certain Funds Period (save in circumstances where (i) pursuant to
paragraph (a) above, a Lender is not obliged to comply with Clause 5.4
(Lenders'
participation) and/or (ii) Clause 12.1 (Illegality) applies),
none of the Finance Parties shall be entitled
to:
|
|
(i)
|
cancel
any of its Commitments to the extent to do so would prevent or limit the
making of a Certain Funds
Utilisation;
|
|
(ii)
|
rescind,
terminate or cancel this Agreement or any of the Facilities or exercise
any similar right or remedy or make or enforce any claim under the Finance
Documents it may have to the extent to do so would prevent or limit the
making of a Certain Funds
Utilisation;
|
|
(iii)
|
refuse
to participate in the making of a Certain Funds Utilisation;
or
|
|
(iv)
|
exercise
any right to set-off or counterclaim in respect of a Utilisation to the
extent that to do so would prevent or limit the making of a Certain Funds
Utilisation; or
|
|
(v)
|
cancel,
accelerate under Clause 27 (Events of Default) or
cause repayment or prepayment of any amounts owing hereunder or under any
other Finance Document to the extent to do so would prevent or limit the
making of a Certain Funds
Utilisation,
|
provided that immediately upon
the expiry of the Certain Funds Period all such rights, remedies and
entitlements shall be available to the Finance Parties notwithstanding that they
may not have been used or been available for use during the Certain Funds
Period.
SECTION
3
UTILISATION
5.1
|
Delivery
of a Utilisation Request
|
A
Borrower may utilise a 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)
|
it
identifies the Facility to be
utilised;
|
|
(ii)
|
the
proposed Utilisation Date is a Business Day within the Availability Period
applicable to that Facility;
|
|
(iii)
|
the
currency and amount of the Utilisation comply with Clause 5.3 (Currency and amount);
and
|
|
(iv)
|
the
proposed Interest Period complies with Clause 14 (Interest
Periods).
|
|
(b)
|
Only
one Loan 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
an Optional Currency.
|
|
(b)
|
The
amount of the proposed Loan must
be:
|
|
(i)
|
if
the currency selected is the Base Currency, a minimum of
euro 15,000,000 for each Term Facility (other than for
Facility A and Facility B prior to the relevant Base Currency
Redenomination Date where the minimum amount shall be GBP 10,000,000)
and euro 10,000,000 for the Revolving Facility or in either case, if less,
the Available Facility; or
|
|
(ii)
|
if
the currency selected is GBP, a minimum of GBP 10,000,000 for each Term
Facility and GBP 10,000,000 for the Revolving Facility or in either case,
if less, the Available Facility;
|
|
(iii)
|
if
the currency selected is USD, a minimum of USD 20,000,000 for each Term
Facility and USD 10,000,000 for the Revolving Facility or in
either case, if less, the Available
Facility;
|
|
(iv)
|
if
the currency selected is JPY, a minimum amount of JPY 250,000,000 for each
Term Facility and JPY 100,000,000 for the Revolving Facility or in
either case, if less, the Available
Facility;
|
|
(v)
|
if
the currency selected is an Optional Currency other than GBP, USD and JPY,
the minimum amount specified by the Agent pursuant to paragraph (b)(ii) of
Clause 4.3 (Conditions
relating to Optional Currencies) or, if less, the Available
Facility; and
|
|
(vi)
|
in
any event such that its Base Currency Amount is less than or equal to the
Available Facility.
|
5.4
|
Lenders'
participation
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Lender shall
make its participation in each Loan available by the Utilisation Date
through its Facility Office.
|
|
(b)
|
The
amount of each Lender's participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the
Loan.
|
|
(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.
|
5.5
|
Limits
on Utilisation
|
|
(a)
|
Facility
B and Facility C may only be utilised after Facility A has been drawn in
full and Facility C may only be utilised after Facility B has been drawn
in full, provided that
Facility C may be utilised prior to the utilisation of Facility B
in full for the purpose of refinancing the Existing 2004 Facility and the
DB Facility.
|
Further,
Facility C shall only be utilised for a purpose other than refinancing of the
Existing 2004 Facility and DB Facility if the aforementioned Existing 2004
Facility and DB Facility have been repaid on or before the proposed Utilisation
Date for that Facility C Loan to be made.
Finally,
prior to the end of the Certain Funds Period, any Utilisation under Facility A
may only be applied towards a purpose set out in paragraph (a)(i) and (viii) of
Clause 3.1 (Purpose).
|
(b)
|
Prior
to the end of the Certain Funds Period, the Borrowers may deliver
Utilisation Requests for Facility B Loans to be made for any purpose other
than as described in paragraph (a)(i) of Clause 3.1 (Purpose) only up to an
aggregate amount of the sum of GBP 925,000,000 plus the Own Liquidity
Amount, unless such Utilisation Request is countersigned by the Financial
Advisor.
|
In this paragraph (b) "Own
Liquidity Amount" means the amount (in GBP calculated as of any
settlement date) applied in any settlement of the purchase price due to the
Target's shareholders pursuant to the Offer or, as the case may be, Scheme which
was not funded under the Facilities, as notified by the Company to the Agent,
such notification to be countersigned by the Financial Advisor.
|
(c)
|
The
maximum aggregate amount of the Ancillary Commitments of the Ancillary
Lenders shall not at any time exceed the lower of GBP 300,000,000 and
the aggregate amount of Loan Notes issued or certain to be issued by Bidco
and/or the Company.
|
6.1
|
General
|
|
(a)
|
Clause
4.2 (Further conditions
precedent) and 4.3 (Conditions relating to
Optional Currencies);
|
|
(b)
|
Clause
5 (Utilisation -
Loans);
|
|
(c)
|
Clause 9
(Optional
currencies);
|
|
(d)
|
Clause 13
(Interest) as it
applies to the calculation of interest on a Loan but not default interest
on an overdue amount; and
|
|
(e)
|
Clause
14 (Interest
Periods),
|
do not
apply to Euro Swingline Loans.
6.2
|
Euro
Swingline Facility
|
Subject
to the terms of this Agreement, the Euro Swingline Lenders referred to in
paragraph (e) of Clause 7.3 (Euro Swingline Lenders'
participation) make available to the Borrowers a euro swingline loan
facility in an aggregate amount equal to the Total Euro Swingline
Commitments.
6.3
|
Purpose
|
Each
Borrower shall apply all amounts borrowed by it under the Euro Swingline
Facility towards refinancing any note or other instrument maturing under a euro
commercial paper programme. A Euro Swingline Loan may not be applied in
repayment or prepayment of another Euro Swingline Loan.
7.1
|
Delivery
of a Utilisation Request for Euro Swingline
Loans
|
A
Borrower may utilise the Euro Swingline Facility by delivery to the Agent of a
duly completed Utilisation Request not later than the Specified
Time.
7.2
|
Completion
of a Utilisation Request for Euro Swingline
Loans
|
|
(a)
|
Each
Utilisation Request for a Euro Swingline Loan is irrevocable and will not
be regarded as having been duly completed
unless:
|
|
(i)
|
it
identifies the Borrower;
|
|
(ii)
|
it
specifies that it is for a Euro Swingline
Loan;
|
|
(iii)
|
the
proposed Utilisation Date is a Business Day within the Availability Period
applicable to the Revolving
Facility;
|
|
(iv)
|
the
Euro Swingline Loan is denominated in
euro;
|
|
(v)
|
the
amount of the proposed Euro Swingline Loan is an amount whose Base
Currency Amount is not more than the Available Euro Swingline Facility and
is a minimum of euro 25,000,000 or, if less, the Available Euro Swingline
Facility; and
|
|
(vi)
|
the
proposed Interest Period:
|
|
(A)
|
does
not overrun the Termination Date applicable to the Revolving
Facility;
|
|
(B)
|
is
a period of not more than five TARGET Days;
and
|
|
(C)
|
ends
on a Business Day.
|
|
(b)
|
Only
one Euro Swingline Loan may be requested in each Utilisation
Request.
|
7.3
|
Euro
Swingline Lenders' participation
|
|
(a)
|
If
the conditions set out in this Agreement have been met, each Euro
Swingline Lender shall make its participation in each Euro Swingline Loan
available through its Facility Office in any Participating Member State or
London.
|
|
(b)
|
The
Euro Swingline Lenders will only be obliged to comply with
paragraph (a) above if on the date of the Utilisation Request and on
the proposed Utilisation
Date:
|
|
(i)
|
no
Default is continuing or would result from the proposed Utilisation;
and
|
|
(ii)
|
the
Repeated Representations to be made by each Obligor are true in all
material respects.
|
|
(c)
|
Subject
to paragraph (c) below, the amount of each Euro Swingline Lender's
participation in each Euro Swingline Loan will be equal to the proportion
borne by its Available Euro Swingline Commitment to the Available Euro
Swingline Facility immediately prior to making the Euro Swingline Loan,
adjusted to take account of any limit applying under Clause 7.4 (Relationship with the
Revolving Facility).
|
|
(d)
|
The
Agent shall determine the Base Currency Amount of each Euro Swingline Loan
and notify each Euro Swingline Lender of the amount of each Euro Swingline
Loan and its participation in that Euro Swingline Loan in each case by the
Specified Time.
|
|
(e)
|
In
case a Euro Swingline Lender is unable to participate in a Euro Swingline
Loan as contemplated in paragraph (a) above due to banks not being
generally open for business in the financial centre in which the relevant
Facility Office is situated on the day on which the requested Euro
Swingline Loan is to be made, such Euro Swingline Lender or the relevant
Lender of which it is an Affiliate (each a "Non-Operating Bank")
shall not be required to participate in the relevant Euro Swingline
Loan. Following receipt of a Utilisation Request relating to a
Euro Swingling Loan, the Agent (who shall incur no liability whatsoever
towards any party to this Agreement regarding the accuracy of any such
determination) shall determine in respect of each Euro Swingline Lender or
the relevant Lender of which it is an Affiliate and which is not a
Non-Operating Bank (each an "Operating Banks" and
together with each other Operating Bank on such day, the "Operating Bank") the
proportion which the Available Euro Swingline Commitment of such Operating
Bank bears to the aggregate amount of all Available Euro Swingline
Commitments of all Operating Banks at such time and notify the Operating
Banks thereof. Each Operating Bank shall then participate in
such Euro Swingline Loan in the proportion determined by the Agent in
respect of such Operating Bank pursuant to the preceding
sentence.
|
7.4
|
Relationship
with the Revolving Facility
|
|
(a)
|
This
subclause applies when a Euro Swingline Loan is outstanding or is to be
borrowed.
|
|
(b)
|
The
Revolving Facility may be used by way of Euro Swingline Loans. The Euro
Swingline Facility is not independent of the Revolving
Facility.
|
|
(c)
|
Notwithstanding
any other term of this Agreement a Lender is only obliged to participate
in a Revolving Facility Loan or a Euro Swingline Loan to the extent that
it would not result in the Base Currency Amount of its participation (and
that of a Lender which is its Affiliate) in the Revolving Facility Loans
and Euro Swingline Loans exceeding its Overall
Commitment.
|
|
(d)
|
Where,
but for the operation of paragraph (c) above, the Base Currency
Amount of a Lender's participation (and that of a Lender which is its
Affiliate) in the Revolving Facility Loans and Euro Swingline Loans would
have exceeded its Overall Commitment, the excess will be apportioned among
the other Lenders participating in the relevant Loan pro rata according to
their relevant Commitments. This calculation will be applied as often as
necessary until the Loan is apportioned among the relevant Lenders in a
manner consistent with paragraph (c)
above.
|
8.1
|
Repayment
of Euro Swingline Loans
|
|
(a)
|
Each
Borrower that has drawn a Euro Swingline Loan shall repay that Euro
Swingline Loan on the last day of its Interest
Period.
|
|
(b)
|
If
a Euro Swingline Loan is not repaid in full on its due date, the Agent
shall (if requested to do so in writing by any affected Euro Swingline
Lender) set a date (the "Loss Sharing Date") on
which payments shall be made between the Lenders to re-distribute the
unpaid amount between them. The Agent shall give at least three Business
Days notice to each affected Lender of the Loss Sharing Date and notify it
of the amounts to be paid or received by
it.
|
|
(c)
|
On
the Loss Sharing Date each Lender must pay to the Agent its Proportion of
the Unpaid Amount minus its (or its Affiliate's) Unpaid Swingline
Participation (if any). If this produces a negative figure for a Lender no
amount need be paid by that
Lender.
|
The "Proportion" of a Lender means
the proportion borne by:
|
(i)
|
its
Revolving Facility Commitment (or, if the Total Revolving Facility
Commitments are then zero, its Revolving Facility Commitment immediately
prior to their reduction to zero) minus the Base Currency Amount of its
participation (or that of a Lender which is its Affiliate) in any
outstanding Revolving Facility Loans and Euro Swingline Loans (but
ignoring its (or its Affiliate's) participation in the unpaid Euro
Swingline Loan): to
|
|
(ii)
|
the
Total Revolving Facility Commitments (or, if the Total Revolving Facility
Commitments are then zero, the Total Revolving Facility Commitments
immediately prior to their reduction to zero) minus any outstanding
Revolving Facility Loans and Euro Swingline Loans (but ignoring the unpaid
Euro Swingline Loan).
|
The "Unpaid Amount" means, in
relation to a Euro Swingline Loan, any principal not repaid and/or any interest
accrued but unpaid on that Euro Swingline Loan calculated from the Utilisation
Date to the Loss Sharing Date.
The "Unpaid Swingline
Participation" of a Lender means that part of the Unpaid Amount (if any)
owed to that Lender (or its Affiliate) (before any re-distribution under this
Clause 8.1 (Repayment of
Euro Swingline Loans)).
|
(d)
|
Out
of the funds received by the Agent pursuant to sub-clause (c) the Agent
shall pay to each Euro Swingline Lender an amount equal to the Shortfall
(if any) of that Euro Swingline Lender
where:
|
The "Shortfall" of a Euro
Swingline Lender is an amount equal to its Unpaid Swingline Participation minus
its (or its Affiliate's) Proportion of the Unpaid Amount.
|
(e)
|
If
the amount actually received by the Agent from the Lenders is insufficient
to pay the full amount of the Shortfall of all Euro Swingline Lenders then
the amount actually received will be distributed amongst the Euro
Swingline Lenders pro
rata to the Shortfall of each Euro Swingline
Lender.
|
|
(f)
|
|
(i)
|
Upon
a payment under this Clause 8.1, the paying Lender will be subrogated to
the rights of the Euro Swingline Lenders which have shared in the payment
received.
|
|
(ii)
|
If
and to the extent the paying Lender is not able to rely on its rights
under sub-paragraph (i) above, the relevant Borrower shall be liable to
the paying Lender for a debt equal to the amount the paying Lender has
paid under this paragraph.
|
|
(iii)
|
Any
payment under this paragraph does not reduce the obligations in aggregate
of any Obligor.
|
8.2
|
Voluntary
Prepayment of Euro Swingline Loans
|
|
(a)
|
The
Borrower to which a Euro Swingline Loan has been made may prepay at any
time the whole of that Euro Swingline
Loan.
|
|
(b)
|
Unless
a contrary indication appears in this Agreement, any part of the Euro
Swingline Facility which is prepaid may be reborrowed in accordance with
the terms of this Agreement.
|
8.3
|
Interest
|
|
(a)
|
The
rate of interest on each Euro Swingline Loan for its Interest Period is
the Euro Swingline Rate.
|
|
(b)
|
The
Agent shall promptly notify the Euro Swingline Lenders and the relevant
Borrower of the Euro Swingline Rate applicable to a Euro Swingline
Loan.
|
|
(c)
|
Each
Borrower shall pay accrued interest on each Euro Swingline Loan made to it
on the last day of its Interest
Period.
|
8.4
|
Interest
Period
|
|
(a)
|
Each
Euro Swingline Loan has one Interest Period
only.
|
|
(b)
|
The
Interest Period for a Euro Swingline Loan must be selected in the relevant
Utilisation Request.
|
8.5
|
Euro
Swingline Agent
|
|
(a)
|
The
Agent may perform its duties in respect of the Euro Swingline Facility
through an Affiliate acting as its
agent.
|
|
(b)
|
Notwithstanding
any other term of this Agreement and without limiting the liability of any
Obligor under the Finance Documents, each Lender shall (in proportion to
its share of the Total Revolving Facility Commitments or, if the Total
Revolving Facility Commitments are then zero, to its share of the Total
Revolving Facility Commitments immediately prior to their reduction to
zero) pay to or indemnify the Agent, within three Business Days of demand,
for or against any cost, loss or liability incurred by the Agent or its
Affiliate (other than by reason of the Agent's or the Affiliate's gross
negligence or wilful misconduct) in acting as Agent for the Euro Swingline
Facility under the Finance Documents (unless the Agent or its Affiliate
has been reimbursed by an Obligor pursuant to a Finance
Document).
|
9.1
|
Selection
of currency
|
|
(a)
|
A
Borrower (or the Company on behalf of a Borrower) shall select the
currency of a Loan:
|
|
(i)
|
(in
the case of an initial Utilisation) in a Utilisation Request;
and
|
|
(ii)
|
(afterwards
in relation to a Term Loan made to it) in a Selection
Notice.
|
|
(b)
|
If
a Borrower (or the Company on behalf of a Borrower) fails to issue a
Selection Notice in relation to a Term Loan, that Loan will remain
denominated for its next Interest Period in the same currency in which it
is then outstanding.
|
|
(c)
|
If
a Borrower (or the Company on behalf of a Borrower) issues a Selection
Notice requesting a change of currency, which it may do so on up to
5 occasions, and the first day of the requested Interest Period is
not a Business Day for the new currency, the Agent shall promptly notify
the Borrower and the Lenders and the Term Loan will remain in the existing
currency (with Interest Periods running from one Business Day until the
next Business Day) until the next day which is a Business Day for both
currencies, on which day the requested Interest Period will
begin.
|
|
(d)
|
At
no time may there be more than 5 different Optional Currencies outstanding
under the Facilities.
|
9.2
|
Unavailability
of a currency
|
If before
the Specified Time on any Quotation Day:
|
(a)
|
a
Lender notifies the Agent that the Optional Currency 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
9.2 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 Rollover 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.
9.3
|
Change
of currency
|
|
(a)
|
If
a Term Loan is to be denominated in different currencies during two
successive Interest Periods:
|
|
(i)
|
if
the currency for the second Interest Period is an Optional Currency, the
amount of that Loan in that Optional Currency will be calculated by the
Agent as the amount of that Optional Currency equal to the Base Currency
Amount of that Loan at the Agent's Spot Rate of Exchange at the Specified
Time;
|
|
(ii)
|
if
the currency for the second Interest Period is the Base Currency, the
amount of that Loan will be equal to the Base Currency
Amount;
|
|
(iii)
|
(unless
the Agent and the Borrower agree otherwise in accordance with paragraph
(b) below) the Borrower that has borrowed the Loan shall repay it on the
last day of the first Interest Period in the currency in which it was
denominated for that Interest Period;
and
|
|
(iv)
|
(subject
to Clause 4.2 (Further
conditions precedent)) the Lenders shall re-advance that Loan in
the new currency in accordance with Clause 9.5 (Agent's
calculations).
|
|
(b)
|
If
the Agent and the Borrower that has borrowed the Term Loan agree, the
Agent shall:
|
|
(i)
|
apply
the amount paid to it by the Lenders pursuant to paragraph (a)(iv) above
(or so much of that amount as is necessary) in or towards purchase of an
amount in the currency in which that Facility A Loan is outstanding for
the first Interest Period; and
|
|
(ii)
|
use
the amount it purchases in or towards satisfaction of the relevant
Borrower's obligations under paragraph (a)(iii)
above.
|
|
(c)
|
If
the amount purchased by the Agent pursuant to paragraph (b)(i) above is
less than the amount required to be repaid by the relevant Borrower, the
Agent shall promptly notify that Borrower and that Borrower shall, on the
last day of the first Interest Period, pay an amount to the Agent (in the
currency of the outstanding Term Loan for the first Interest Period) equal
to the difference.
|
|
(d)
|
If
any part of the amount paid to the Agent by the Lenders pursuant to
paragraph (a)(iv) above is not needed to purchase the amount required to
be repaid by the relevant Borrower, the Agent shall promptly notify that
Borrower and pay that Borrower, on the last day of the first Interest
Period that part of that amount (in the new
currency).
|
9.4
|
Same
Optional Currency during successive Interest
Periods
|
|
(a)
|
If
a Term Loan is to be denominated in the same Optional Currency during two
successive Interest Periods, the Agent shall calculate the amount of that
Term Loan in the Optional Currency for the second of those Interest
Periods (by calculating the amount of Optional Currency equal to the Base
Currency Amount of that Term Loan at the Agent's Spot Rate of Exchange at
the Specified Time) and (subject to paragraph (b)
below):
|
|
(i)
|
if
the amount calculated is less than the existing amount of that Term Loan
in the Optional Currency during the first Interest Period, promptly notify
the Borrower that has borrowed that Term Loan and that Borrower shall pay,
on the last day of the first Interest Period, an amount equal to the
difference; or
|
|
(ii)
|
if
the amount calculated is more than the existing amount of that Term Loan
in the Optional Currency during the first Interest Period, promptly notify
each Lender and, if no Default is continuing and the relevant Borrower has
not instructed the Agent otherwise, each Lender shall, on the last day of
the first Interest Period, pay its participation in an amount equal to the
difference.
|
|
(b)
|
If
the calculation made by the Agent pursuant to paragraph (a) above shows
that the amount of the Term Loan in the Optional Currency for the second
of those Interest Periods converted into the Base Currency at the Agent's
Spot Rate of Exchange at the Specified Time has increased or decreased by
less than 5 per cent. compared to its Base Currency Amount (taking into
account any payments made pursuant to (a) above), no notification shall be
made by the Agent and no payment shall be required under paragraph (a)
above.
|
9.5
|
Agent's
calculations
|
|
(a)
|
All
calculations made by the Agent pursuant to this Clause 9 will take into
account any repayment, prepayment, consolidation or division of Term Loans
to be made on the last day of the first Interest
Period.
|
|
(b)
|
Each
Lender's participation in a Loan will, subject to paragraph (a) above, be
determined in accordance with paragraph (b) of Clause 5.4 (Lenders'
participation).
|
10.1
|
Type
of Facility
|
An
Ancillary Facility may only be utilised by way of guarantee facility to secure
Financial Indebtedness of Bidco or the Company under the Loan
Notes.
10.2
|
Availability
|
|
(a)
|
The
Company and any Ancillary Lender agree that the relevant Ancillary Lender
will provide the Ancillary Facility on a bilateral basis in place of part
of that Ancillary Lender's unutilised Facility B Commitment (which shall
(except for the purpose of determining the Majority Lenders) be reduced by
the amount of the Ancillary Commitment under the Ancillary
Facility).
|
|
(b)
|
An
Ancillary Facility shall not be made available unless, not later than 3
Business Days prior to the Ancillary Commencement Date for that Ancillary
Facility, the Agent has received from the
Company:
|
|
(i)
|
a
notice in writing requesting the establishment of that Ancillary Facility
and specifying:
|
|
(A)
|
the
proposed Borrower(s) which may use the Ancillary
Facility;
|
|
(B)
|
the
proposed Ancillary Commencement Date and expiry date of the Ancillary
Facility;
|
|
(C)
|
the
proposed Ancillary Lender;
|
|
(D)
|
the
proposed Ancillary Commitment, the maximum amount of the Ancillary
Facility; and
|
|
(E)
|
the
proposed currency of the Ancillary Facility (if not denominated in the
Base Currency);
|
|
(ii)
|
a
copy of the proposed Ancillary Document;
and
|
|
(iii)
|
any
other information which the Agent may reasonably request in connection
with an Ancillary Facility.
|
The Agent
shall promptly notify the Company, the Ancillary Lender and the other Lenders of
the establishment of an Ancillary Facility.
No
amendment or waiver of a term of any Ancillary Facility shall require the
consent of any Finance Party other than the relevant Ancillary Lender unless
such amendment or waiver itself relates to or gives rise to a matter which would
require an amendment of or under this Agreement (including, for the avoidance of
doubt, under this Clause). In such a case, the provisions of this
Agreement with regard to amendments and waivers will apply.
|
(c)
|
Subject
to compliance with paragraph (b)
above:
|
|
(i)
|
the
Lender concerned will become an Ancillary Lender;
and
|
|
(ii)
|
the
Ancillary Facility will be
available,
|
with
effect from the date agreed by the Company and the Ancillary
Lender.
|
(a)
|
Except
as provided below, the terms of the Ancillary Facility will be those
agreed by the Ancillary Lender and the
Company.
|
|
(b)
|
However,
those terms:
|
|
(i)
|
must
be based upon normal commercial terms at that time (except as varied by
this Agreement);
|
|
(ii)
|
may
allow only the Company or HeidelbergCement Finance B.V. to use the
Ancillary Facility;
|
|
(iii)
|
may
not allow the Ancillary Outstandings to exceed the Ancillary
Commitment;
|
|
(iv)
|
may
not allow the Ancillary Commitment of a Lender to exceed the Available
Commitment with respect to Facility B of that Lender;
and
|
|
(v)
|
must
require that the Ancillary Commitment is reduced to nil, and that all
Ancillary Outstandings are repaid (or cash cover provided in respect of
all the Ancillary Outstandings) not later than the Termination Date for
Facility B (or such earlier date as the Facility B Commitment of the
Ancillary Lender (or its Affiliate) is reduced to
zero).
|
|
(c)
|
If
there is any inconsistency between any term of the Ancillary Facility and
any term of this Agreement, this Agreement shall prevail except for (i)
Clause 36.3 (Day count
convention) which shall not prevail for the purposes of calculating
fees, interest or commission relating to the Ancillary
Facility.
|
|
(d)
|
Interest,
commission and fees on the Ancillary Facility are dealt with in Clause
16.5 (Interest,
commission and fees on Ancillary
Facility).
|
|
(a)
|
An
Ancillary Facility shall cease to be available on the Termination Date in
relation to Facility B or such earlier date on which its expiry date
occurs or on which it is cancelled in accordance with the terms of this
Agreement.
|
|
(b)
|
If
an Ancillary Facility expires in accordance with its terms the Ancillary
Commitment of the Ancillary Lender shall be reduced to zero (and its
Facility B Commitment shall be increased
accordingly).
|
|
(c)
|
No
Ancillary Lender may demand repayment or prepayment of any amounts or
demand cash cover for any liabilities made available or incurred by it
under its Ancillary Facility
unless:
|
|
(i)
|
the
Total Facility B Commitments have been cancelled in full, or all
outstanding Loans under Facility B have become due and payable in
accordance with the terms of this Agreement, or the Agent has declared all
outstanding Loans under Facility B immediately due and payable, or the
expiry date of the Ancillary Facility occurs;
or
|
|
(ii)
|
it
becomes unlawful in any applicable jurisdiction for the Ancillary Lender
to perform any of its obligations as contemplated by this Agreement or to
fund, issue or maintain its participation in its Ancillary Facility;
or
|
|
(iii)
|
the
Ancillary Outstandings (if any) under the Ancillary Facility can be
refinanced by a Facility B Loan and the Ancillary Lender gives sufficient
notice to enable a Facility B Loan to be made to refinance those Ancillary
Outstandings.
|
|
(d)
|
For
the purposes of determining whether or not the Ancillary Outstandings
under the Ancillary Facility mentioned in paragraph (c)(iii) above can be
refinanced by a Utilisation of Facility
B:
|
|
(i)
|
the
Facility B Commitment of the Ancillary Lender will be increased by the
amount of its Ancillary Commitment;
and
|
|
(ii)
|
the
Utilisation may (so long as paragraph (c)(i) above does not apply) be made
irrespective of whether a Default is outstanding or any other applicable
condition precedent is not satisfied (but only to the extent that the
proceeds are applied in refinancing those Ancillary Outstandings) and
irrespective of whether Clause 4.4 (Maximum number of
Loans) or paragraph (a)(iii) of Clause 5.2 (Completion of a Utilisation
Request) applies.
|
|
(e)
|
On
the making of a Utilisation of Facility B to refinance Ancillary
Outstandings:
|
|
(i)
|
each
Lender will participate in that Utilisation in an amount (as determined by
the Agent) which will result as nearly as possible in the aggregate amount
of its participation in Facility B Loans then outstanding bearing the same
proportion to the aggregate amount of the Facility B Loans then
outstanding as its Facility B Commitment bears to the Total Facility B
Commitments; and
|
|
(ii)
|
the
relevant Ancillary Facility shall be
cancelled.
|
Each
Borrower and each Ancillary Lender agrees with and for the benefit of each
Lender that the Ancillary Outstandings under any Ancillary Facility provided by
that Ancillary Lender shall not exceed the Ancillary Commitment applicable to
that Ancillary Facility.
10.6
|
Information
|
Each
Borrower and each Ancillary Lender shall, promptly upon request by the Agent,
supply the Agent with any information relating to the operation of an Ancillary
Facility (including the Ancillary Outstandings) as the Agent may reasonably
request from time to time. Each Borrower consents to all such information being
released to the Agent and the other Finance Parties.
10.7
|
Affiliates
of Lenders as Ancillary Lenders
|
10.8
|
Facility
B Commitment amounts
|
Notwithstanding
any other term of this Agreement, each Lender shall ensure that at all times its
Facility B Commitment is not less than:
|
(a)
|
the
Ancillary Commitment of its Affiliate;
or
|
|
(b)
|
its
Ancillary Commitment.
|
SECTION
4
REPAYMENT,
PREPAYMENT AND CANCELLATION
11.
|
11.1
|
Repayment
of Term Loans
|
|
(a)
|
Each
Borrower shall repay the Facility A Loans made to it in full on the
applicable Termination Date.
|
|
(b)
|
Each
Borrower shall repay the aggregate Facility B Loans made to it in full on
the applicable Termination
Date.
|
|
(c)
|
The
Borrowers under Facility C shall repay the Facility C Loans in instalments
by repaying on each Facility C Repayment Date an amount equal or
equivalent to the amount set out in the Base Currency opposite that
Facility C Repayment Date
below:
|
Repayment
Date
|
Repayment
Instalment
(EUR
million)
|
30
June 2008
|
200
|
30
December 2008
|
400
|
30
June 2009
|
200
|
30
December 2009
|
400
|
30
June 2010
|
200
|
30
December 2010
|
400
|
30
June 2011
|
200
|
30
December 2011
|
the
balance
|
provided that:
|
(i)
|
no
Facility C Repayment Instalment to be repaid in any Optional Currency
shall exceed the balance of Facility C Loans outstanding in that
Optional Currency;
|
|
(ii)
|
for
Facility C Loans outstanding in an Optional Currency on the relevant
Facility C Repayment Date, the amount to be repaid in the relevant
Optional Currency shall be calculated by converting the relevant repayment
amount stated in the Base Currency above opposite that relevant Facility C
Repayment Date into the relevant Optional Currency at the Agent's Spot
Rate of Exchange on the date which is three Business Days before the
relevant Facility C Repayment Date;
and
|
|
(iii)
|
if,
in relation to a Facility C Repayment Date, the aggregate amount of
Facility C Loans made to the Borrowers exceeds the respective
Facility C Repayment Instalment to be repaid by the Borrower, the Company
may, if it give the Agent no less than three Business Days' (or such
shorter period as the Majority Lenders may agree) prior notice, select
which of those Facility C Loans will be wholly or partially repaid by
which Borrowers so that the relevant Facility C Repayment Instalment
is repaid on the relevant Facility C Repayment Date in
full.
|
|
(d)
|
No
Borrower may reborrow any part of a Term Facility which is
repaid.
|
11.2
|
Repayment
of Revolving Facility Loans
|
Each
Borrower which has drawn a Revolving Facility Loan shall repay that Loan on the
last day of its Interest Period.
12.1
|
Illegality
|
If, at
any time, it is or will become unlawful in any applicable jurisdiction for a
Lender to perform any of its obligations as contemplated by this Agreement or to
fund or maintain its participation in any Loan:
|
(a)
|
that
Lender shall promptly notify the Agent upon becoming aware of that
event;
|
|
(b)
|
upon
the Agent notifying the Company, the Commitment of that Lender will be
immediately cancelled; and
|
|
(c)
|
each
Borrower shall repay that Lender's participation in the Loans made to that
Borrower on the last day of the Interest Period for each Loan occurring
after the Agent has notified the Company 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).
|
12.2
|
Change
of control
|
Subject
in the case of paragraph (ii) and (iii) below to Clause 4.5 (Utilisations during the Certain
Funds Period), if any person or group of persons acting in concert other
than a permitted holder gains control of the Company:
|
(i)
|
the
Company shall promptly notify the Agent upon becoming aware of that
event;
|
|
(ii)
|
a
Lender shall not be obliged to fund a Utilisation (except for a Rollover
Loan);
|
|
(iii)
|
if
a Lender so requires and notifies the Agent within 30 days of being
informed by the Agent of the event, the Agent shall, by not less than 30
days notice to the Company, cancel the Commitment of that Lender and
declare the participation of that Lender in all outstanding Loans and all
Ancillary Outstandings, together with accrued interest and all other
amounts accrued under the Finance Documents, immediately due and payable,
at which time the Commitment of that Lender will be cancelled and all such
outstanding amounts will become immediately due and
payable.
|
|
(iv)
|
For
the purpose of this Clause 12.2 "control" means the
control over more than 50 per cent. (i) of the issued share capital
of the Company, or (ii) of the voting rights in the shares of the Company,
by contract or otherwise.
|
|
(v)
|
For
the purpose of this Clause 12.2, "acting in concert" shall
have the meaning given so such term in Section 2(5) of the German
Securities Acquisition and Takeover Act (Wertpapiererwerbs- und
Γbernahmegesetz).
|
|
(vi)
|
For
the purpose of this Clause 12.2, "permitted holder" means
any of (x) Xxxxx Cement GmbH, (y) any of the shareholders of Xxxxx Cement
GmbH on the date of this Agreement including the beneficial owners of the
shareholders of Xxxxx Cement GmbH or their heirs (Erben,
VermΓ€chtnisnehmer) or (z) any entity or any trust (Stiftung) or comparable
arrangement controlled by such persons to which shares in the Company are
transferred by the persons named under (x) to
(z).
|
12.3
|
Net
Disposal Proceeds and Net Financing
Proceeds
|
|
(a)
|
For
the purposes of this Clause 12.3 and Clause 12.4 (Application of mandatory
prepayments):
|
"CM Financing" means any issue
of any bond, private placement, equity or convertible instruments in the
international or domestic debt capital markets (excluding commercial paper) by a
member of the Group, but excluding any such financing which individually does
not exceed EUR 100,000,000 (or its equivalent) and (when aggregated with
other financings that do not individually exceed EUR 100,000,000 (or its
equivalent) does not exceed in aggregate EUR 250,000,000 (or its equivalent) in
any financial year of the Company.
"Disposal" means a sale, lease,
licence, transfer, loan or other disposal by a person of any asset, undertaking
or business (whether by a voluntary or involuntary single transaction or series
of transactions).
"Hybrid Debt" means any hybrid
instrument which the Company confirms in writing to the Agent has received at
least 50% equity credit from each of Standard & Poor's, Xxxxx'x and
Fitch.
"MTN Financing" means any issue
of medium term notes issued under the any existing or future MTN programme of
the Company, the volume of which shall be increased to
EUR 5,000,000,000.
"Net Disposal Proceeds" means
the cash consideration received by any member of the Group for any Specified
Disposal and any disposal of Target Shares made by any member of the Group and
after deducting all taxes, non-recurring fees, commission, costs and expenses in
each case properly and reasonably incurred by members of the Group in connection
with such Disposal.
"Net Financing Proceeds" means
the cash consideration received by any member of the Group from any Hybrid Debt,
CM Financing and/or MTN Financing, in each case after deducting all taxes,
non-recurring fees, commission, costs and expenses in each case properly and
reasonably incurred by members of the Group in connection with such
financing.
"Net Proceeds"
means
|
(i)
|
Net
Disposal Proceeds; and/or
|
|
(ii)
|
Net
Financing Proceeds.
|
"Specified Disposal" means the
Disposal by a member of the Group to a person who is not a member of the Group
of:
|
(iii)
|
any
of its shares in Vicat S.A. (whether in a single transaction or a series
of related or unrelated
transactions);
|
|
(iv)
|
the
Maxit Group (constituted at the date of this Agreement of Maxit Holding AB
and its Subsidiaries) (whether in a single transaction or a series of
related or unrelated transactions), including by way of
flotation;
|
|
(v)
|
any
asset identified in the Specified Disposals
Letter;
|
|
(vi)
|
any
other asset the Net Disposal Proceeds of which exceed (in relation to a
single transaction) EUR 100,000,000 (or its equivalent);
and
|
|
(vii)
|
any
other asset the Net Disposal Proceeds of which need to be applied in
prepayment pursuant to paragraph (uuu) of the definition of Permitted
Disposal.
|
|
(b)
|
Subject
to paragraph (c) and (d) below, the Company shall ensure that the
Borrowers prepay Utilisations in the amount equal to the Net Proceeds at
the times and in the order of application contemplated by Clause 12.4
(Application of
mandatory prepayments). The obligation to prepay the Facilities
from Specified Disposals as set out in paragraph (i) to (vi) of the
definition of Specified Disposal in paragraph (a) above shall cease to
apply once at least EUR 7,800,000,000 have been prepaid or cancelled from
or as a result of the Net Disposal Proceeds of such Specified Disposals or
from the Net Financing Proceeds of any Hybrid
Debt.
|
|
(c)
|
The
Company shall prepay Utilisations, together with accrued interest and all
other amounts due under the Finance Documents, in an amount equal to Net
Disposal Proceeds resulting from any disposal of Target Shares to a person
which is not a member of the
Group.
|
|
(d)
|
The
obligation of the Company to ensure that the Borrowers prepay Utilisations
as set out in paragraph (b) above shall be reduced by an amount equal to
the amount of any voluntary prepayment made pursuant to Clause 12.8 (Voluntary Prepayment of Term
Loans), provided
that:
|
|
(i)
|
the
Borrower making that voluntary prepayment stated in its notice of
prepayment that such voluntary prepayment is made in anticipation of
certain Net Proceeds to be specified therein which are expected to be
received by any member of the
Group;
|
|
(ii)
|
the
voluntary prepayment has been applied in accordance with Clause 12.4
(Application of
mandatory prepayments);
|
|
(iii)
|
and
the Company evidences (as the case may be following at any time after the
voluntary prepayment has been made) that the Net Proceeds specified in the
relevant prepayment have been
received,
|
in which
case such voluntary prepayment shall for all purposes of this Agreement be
treated as a prepayment from such Net
Proceeds.
12.4
|
Application
of mandatory prepayments
|
|
(a)
|
A
prepayment made under paragraph (b) or (c) of Clause 12.3 (Net Disposal Proceeds and Net
Financing Proceeds) shall be applied in the following
order:
|
|
(i)
|
first, in prepayment of
Facility A as contemplated in paragraphs (b) to (e) inclusive
below;
|
|
(ii)
|
secondly, in prepayment
of Facility B as contemplated in paragraphs (b) to (e) inclusive
below;
|
|
(iii)
|
thirdly, in prepayment
of Facility C as contemplated in paragraphs (b) to (e) inclusive
below;
|
|
(iv)
|
fourthly, in
cancellation of Available Commitments under the Revolving Facility (and
the Available Commitment of the Lenders under the Revolving Facility will
be cancelled rateably);
|
|
(v)
|
fifthly, in prepayment
of Revolving Facility Loans and, thereafter, Euro Swingline Loans and
cancellation of Revolving Facility Commitments;
and
|
|
(vi)
|
then,
in repayment and cancellation of the Ancillary Outstandings and Ancillary
Commitments.
|
|
(b)
|
Unless
the Company makes an election under paragraph (d) below, the Borrowers
shall prepay Loans promptly upon receipt of those
proceeds.
|
|
(c)
|
A
prepayment under Clause 12.3 (Net Disposal Proceeds and Net
Financing Proceeds) shall prepay the Facility C Loans by reducing
the relevant Facility C Repayment Instalment for each Facility C Repayment
Date falling after the date of prepayment pro
rata.
|
|
(d)
|
Subject
to paragraph (e) below, the Company may elect that any prepayment under
Clause 12.3 (Net
Disposal Proceeds and Net Financing Proceeds) be applied in
prepayment of a Loan on the last day of the Interest Period relating to
that Loan. If the Company makes that election then a proportion of the
Loan equal to the amount of the relevant prepayment will be due and
payable on the last day of its Interest
Period.
|
|
(e)
|
If
the Company has made an election under paragraph (d) above but an Event of
Default has occurred and is continuing, that election shall no longer
apply and a proportion of the Loan in respect of which the election was
made equal to the amount of the relevant prepayment shall be immediately
due and payable (unless the Majority Lenders otherwise agree in
writing).
|
12.5
|
Mandatory
Cancellation
|
The
Company shall cancel Facility A and, following the cancellation in full of
Facility A, Facility B in an amount equal to the Net Financing Proceeds
and/or Net Disposal Proceeds received by any member of the Group from a
Specified Disposal referred to paragraph (i) to (iv) of that definition, in each
case no later than on the date of delivery of the first Utilisation Request to
fund the acquisition of Target Shares pursuant to the Offer or the Scheme (which
shall be delivered no earlier than 3 Business Days prior to the relevant
Utilisation Date), promptly following receipt thereof, provided that prior to the end of the Certain
Funds Period such cancellation notice shall only be effective if it is
countersigned by the Financial Advisor and provided further that should the
countersignature by the Financial Advisor not be obtained the prepayment
requirement under Clause 12.3 (Net Disposal Proceeds and Net
Financing Proceeds) shall apply provided
that the payment obligation shall be deferred (gestundet) until the day
which is ten Business Days after the last day of the Certain Funds Period. Any
cancellation under this Clause 12.5 shall reduce the Commitments of the Lenders
under the Facility or Facilities rateably.
12.6
|
Restrictions
on Upstream Payments
|
If:
|
(a)
|
there
is a requirement to make a mandatory prepayment from Net Proceeds pursuant
to paragraph (b) of Clause 12.3 (Net Disposal Proceeds and Net
Financing Proceeds);
|
|
(b)
|
the
relevant member of the Group which received the sums pursuant to the
relevant event giving rise to the mandatory prepayment (the "Receiving Entity") is
neither the Borrower (or one of the Borrowers) nor the Holding Company (or
one of the Holding Companies) of the relevant
Borrower(s);
|
|
(c)
|
having
used their best endeavours to make such sums available or to make them
available without incurring a Relevant Tax Liability, the Receiving Entity
(and any intermediate members of the Group) are not legally able to make
any upstream or cross-stream payments or such payments would result in any
member of the Group incurring a Relevant Tax Liability of or in respect of
some or all of such sum which are necessary in order to make the sums
received pursuant to the relevant event giving rise to the mandatory
prepayment available to the relevant
Borrower(s);
|
|
(d)
|
the
Company, having used its best endeavours to fund the prepayment from other
resources available to the Group, is unable to procure the funding of such
prepayment; and
|
|
(e)
|
the
Agent has received a certificate signed by the chief financial officer or
two directors of the Company stating the circumstances and details of the
impediment to prepayment or the Relevant Tax
Liability,
|
then,
until such time that the impediment to prepayment no longer applies or no
Relevant Tax Liability would be triggered, such prepayment shall be made in an
amount equal to the aggregate of the amount the relevant member of the Group is
legally able to pay and without incurring such Relevant Tax Liability and the
amount the Company is able to procure from other resources available to the
Group. The Company shall continue to use its best endeavours to procure that the
prepayment which (but for this Clause 12.6) would have been due is
made.
In this
Clause 12.6 "Relevant Tax Liability"
means a material tax liability which would not have been incurred absent the
making of upstream or cross-stream payments (taking into account future tax
savings resulting therefrom and not taking into account tax liabilities that
would have been incurred otherwise but at a later point in time) and as a result
of which it seems economically unreasonable and - taking into account the
legitimate interests of the Lenders - inappropriate to make the relevant
mandatory prepayment.
12.7
|
Voluntary
cancellation
|
|
(a)
|
Subject
to paragraph (b) below, the Company may at any time following the
Acquisition Closing, or following a notice from the Company to the Agent
that it will not pursue with an Offer or Scheme any further if it gives
the Agent not less than three Business Days' (or such shorter period as
the Majority Lenders may agree) prior notice, cancel the whole or any part
(being a minimum amount and integral multiple of EUR 25,000,000) of
an Available Facility. Any cancellation under this Clause 12.7 shall
reduce the Commitments of the Lenders under the Facility or Facilities as
directed by the Company rateably. Any cancellation of Commitments under
the Revolving Facility shall not result in a pro rata cancellation
of the Euro Swingline Facility, provided that the
Available Commitment under the Euro Swingline Facility at no time exceeds
the Available Commitment under the Revolving
Facility.
|
|
(b)
|
Prior
to the end of the Certain Funds Period, no notice may be given under
paragraph (a) above unless such notice has been countersigned by the
Financial Advisor.
|
12.8
|
Voluntary
prepayment of Term Loans
|
|
(a)
|
A
Borrower to which a Term Loan has been made may, if it gives the Agent not
less than three Business Days' (or such shorter period as the Majority
Lenders may agree) prior notice, prepay the whole or any part of any Term
Loan (but, if in part, being an amount that reduces the Base Currency
Amount of that Term Loan by a minimum amount of EUR 25,000,000 or, with
respect to Facility A Loans or Facility B Loans prior to the Base Currency
Redenomiation Date, GBP
16,000,000).
|
|
(b)
|
A
Term Loan may only be prepaid after the last day of the Availability
Period (or, if earlier, the day on which the applicable Available Facility
is zero).
|
|
(c)
|
Any
prepayment under this Clause 12.8 shall satisfy the obligations under
Clause 11.1 (Repayment
of Term Loans) in the order determined by the
Company.
|
12.9
|
Voluntary
Prepayment of Revolving Facility
Loans
|
The
Borrower to which a Revolving Facility Loan has been made may, if it gives the
Agent not less than three Business Days' (or such shorter period as the Majority
Lenders may agree) prior notice, prepay the whole or any part of a Revolving
Facility Loan (but if in part, being an amount that reduces the Base Currency
Amount of the Revolving Facility Loan by a minimum amount and integral multiple
of EUR 25,000,000).
12.10
|
Right
of repayment and cancellation in relation to a single
Lender
|
|
(a)
|
If:
|
|
(i)
|
any
sum payable to any Lender by an Obligor is required to be increased under
paragraph (c) of Clause 17.2 (Tax gross-up);
or
|
|
(ii)
|
any
Lender claims indemnification from the Company under Clause 17.3 (Tax indemnity) or
Clause 18.1 (Increased
costs),
|
the
Company may, whilst the circumstance giving rise to the requirement for
indemnification continues give the Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of that
Lender's participation in the Loans.
|
(b)
|
On
receipt of a notice referred to in paragraph (a) above, the Commitment of
that Lender shall immediately be reduced to
zero.
|
|
(c)
|
On
the last day of each Interest Period which ends after the Company has
given notice under paragraph (a) above (or, if earlier, the date specified
by the Company in that notice), each Borrower to which a Loan is
outstanding shall repay that Lender's participation in that
Loan.
|
12.11
|
Restrictions
|
|
(a)
|
Any
notice of cancellation or prepayment given by any Party under this
Clause 12 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)
|
No
Borrower may reborrow any part of a Term Facility which is
prepaid.
|
|
(d)
|
Unless
a contrary indication appears in this Agreement, any part of Revolving
Facility which is prepaid may be reborrowed in accordance with the terms
of this Agreement.
|
|
(e)
|
The
Borrowers shall not repay or prepay all or any part of the Loans or cancel
all or any part of the Commitments except at the times and in the manner
expressly provided for in this
Agreement.
|
|
(f)
|
No
amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
|
|
(g)
|
If
the Agent receives a notice under this Clause 12 it shall promptly forward
a copy of that notice to either the Company or the affected Lender, as
appropriate.
|
|
(h)
|
The
Agent shall notify the Lenders as soon as possible of any proposed
prepayment of any Loan under Clause 12.2 (Change of Control) or
Clause 12.3 (Net
Disposal Proceeds and Net Financing Proceeds). Each Lender who (or
whose Affiliate) has subscribed for a capital increase in the Company or
on whose (or on whose Affiliate's) account such capital increase has been
subscribed may, if it gives the Agent no less than 3 Business Days prior
notice, elect to waive all or a specified part of its share of that
prepayment. In such case the remaining proceeds form such mandatory
prepayments shall be applied between the other Lenders in accordance with
Clause 33.5 (Partial
Payments).
|
Each
Lender that elects to make use of this right (an "Electing Lender") shall be
entitled to a preferential treatment on any such future mandatory prepayment
such that prior to any payment being made to any other Lender the Agent shall
first pay to each Electing Lender an amount equal to the amount required to put
each Electing Lender in the same position as any other Lender. If there is more
than one Electing Lender any payment shall be pro rata. The rights of any
Electing Lender under this paragraph (h) are personal rights and must not be
assigned and/or transferred to any other person.
12.12
|
Automatic
Cancellation
|
Any
Commitment will be automatically cancelled at the close of business on the last
day of any Availability Period applicable to the relevant Facility.
SECTION
5
COSTS
OF UTILISATION
13.
|
13.1
|
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)
|
EURIBOR
or, (in relation to any Loans in an Optional Currency) LIBOR;
and
|
|
(c)
|
Mandatory
Cost, if any.
|
13.2
|
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).
13.3
|
Default
interest and lump sum damages
|
|
(a)
|
If
an Obligor fails to pay any amount (other than interest) payable by it
under a Finance Document on its due date, subject to paragraph (b) below,
interest shall accrue on the overdue amount from the due date up to the
date of actual payment (both before and after judgment) at a rate which is
one per cent higher than the rate which would have been payable if the
overdue amount had, during the period of non-payment, constituted a Loan
in the currency of the overdue amount for successive Interest Periods,
each of a duration selected by the Agent (acting reasonably). If an
Obligor fails to pay interest payable by it under the Finance Documents on
its due date, lump sum damages (pauschalierter
Schadensersatz) shall accrue on the overdue amount from the due
date up to the date of actual payment (both before and after judgment) at
a rate which, subject to paragraph (b) below, is one per cent higher than
the rate which would have been payable if the overdue amount had, during
the period of non-payment, constituted a Loan in the currency of the
overdue amount for successive Interest Periods, each of a duration
selected by the Agent (acting reasonably). In the case of lump sum
damages, the relevant Obligor shall be free to prove that no damages have
arisen or that damages have not arisen in the asserted amount and any
Finance Party shall be entitled to prove that further damages have arisen.
Any interest or lump sum accruing under this Clause 13.3 shall be
immediately payable by the Obligor on demand by the
Agent.
|
|
(b)
|
If
any overdue amount consists of all or part of a Loan which became due on a
day which was not the last day of an Interest Period relating to that
Loan:
|
|
(i)
|
the
first Interest Period for that overdue amount shall have a duration equal
to the unexpired portion of the current Interest Period relating to that
Loan; and
|
|
(ii)
|
the
rate of interest applying to the overdue amount during that first Interest
Period shall be one per cent. higher than the rate which would have
applied if the overdue amount had not become
due.
|
13.4
|
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.
14.
|
14.1
|
Selection
of Interest Periods
|
|
(a)
|
A
Borrower (or the Company on behalf of a Borrower) may select an Interest
Period for a Loan in the Utilisation Request for that Loan or (if the Loan
is a Term Loan and has already been borrowed) in a Selection
Notice.
|
|
(b)
|
Each
Selection Notice for a Term Loan is irrevocable and must be delivered to
the Agent by the Borrower (or the Company on behalf of a Borrower) to
which that Term Loan was made not later than the Specified
Time.
|
|
(c)
|
If
a Borrower (or the Company on behalf of a Borrower) fails to deliver a
Selection Notice to the Agent in accordance with paragraph (b) above, the
relevant Interest Period will, subject to Clause 14.2 (Changes to Interest
Periods), be one
Month.
|
|
(d)
|
Subject
to this Clause 14, a Borrower (or the Company on behalf of a Borrower) may
select an Interest Period of one, two, three or six Months or any other
period agreed between the Company and the Agent (acting on the
instructions of all the Lenders). In addition a Borrower (or the Company
on its behalf) may select an Interest Period of (in relation to Facility
C) less than one Month, if necessary to ensure that there are sufficient
Facility C Loans (with an aggregate Base Currency Amount equal to or
greater than the Repayment Instalment) which have an Interest Period
ending on a Facility C Repayment Date for the Borrowers to make the
Facility C Repayment Instalment due on that
date.
|
|
(e)
|
An
Interest Period for a Loan shall not extend beyond the Termination Date
applicable to its Facility.
|
|
(f)
|
Each
Interest Period for a Term Loan shall start on the Utilisation Date or (if
already made) on the last day of its preceding Interest
Period.
|
|
(g)
|
A
Revolving Facility Loan has one Interest Period
only.
|
|
(h)
|
Prior
to the Syndication Date, Interest Periods shall be one Month or such other
period as the Agent and the Borrower (or the Company on its behalf) may
agree and any Interest Period which would otherwise end during the Month
preceding or extend beyond the Syndication Date shall end on the
Syndication Date.
|
14.2
|
Changes
to Interest Periods
|
|
(a)
|
Prior
to determining the interest rate for a Facility C Loan, the Agent may
shorten an Interest Period for any Facility C Loan to ensure there are
sufficient Facility C Loans (with an aggregate Base Currency Amount equal
to or greater than the Facility C Repayment Instalment) which have an
Interest Period ending on a Facility C Repayment Date for the Borrowers to
make the Facility C Repayment Instalment due on that
date.
|
|
(b)
|
If
the Agent makes any change to an Interest Period referred to in this
Clause 14.2, it shall promptly notify the Company and the
Lenders.
|
14.3
|
Non-Business
Days
|
If an
Interest Period would otherwise end on a day which is not a Business Day, that
Interest Period 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).
14.4
|
Consolidation
and division of Term Loans
|
|
(a)
|
Subject
to paragraph (b) below, if two or more Interest
Periods:
|
|
(i)
|
relate
to the same Term Loans made to the same Borrower and in the same currency;
and
|
|
(ii)
|
end
on the same date,
|
those
Term Loans will, unless that Borrower (or the Company on its behalf) specifies
to the contrary in the Selection Notice for the next Interest Period, be
consolidated into, and treated as, a single Term Loan on the last day of the
Interest Period.
|
(b)
|
Subject
to Clause 4.4 (Maximum
number of Loans) and Clause 5.3 (Currency and amount),
if a Borrower (or the Company on its behalf) requests in a Selection
Notice that a Term Loan be divided into two or more Term Loans, that Term
Loan will, on the last day of its Interest Period, be so divided with Base
Currency Amounts specified in that Selection Notice, being an aggregate
Base Currency Amount equal to the Base Currency Amount of the Term Loan
immediately before its
division.
|
15.1
|
Absence
of quotations
|
Subject
to Clause 15.2 (Market
disruption), if EURIBOR or, if applicable, LIBOR 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 EURIBOR or
LIBOR shall be determined on the basis of the quotations of the remaining
Reference Banks.
15.2
|
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 percentage 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 EURIBOR or, if applicable, LIBOR
for the relevant currency and the relevant Interest Period;
or
|
|
(ii)
|
before
close of business in London on the Quotation Day for the relevant Interest
Period, the Agent receives notifications from a Lender or Lenders (whose
participations in a Loan exceed 50 per cent. of that Loan) that the cost
to it of obtaining matching deposits in the European interbank market
would be in excess of EURIBOR or, if applicable,
LIBOR.
|
15.3
|
Alternative
basis of interest or funding
|
|
(a)
|
If
a Market Disruption Event occurs and the Agent or the Company so requires,
the Agent and the Company 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 Company, be binding on all
Parties.
|
15.4
|
Break
Costs
|
|
(a)
|
Each
Borrower shall, within three Business Days of demand by a Finance Party,
pay to that Finance Party its Break Costs attributable to all or any part
of 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.
|
|
(b)
|
Each
Lender shall, as soon as reasonably practicable after a demand by the
Agent, provide a certificate confirming the amount of its Break Costs for
any Interest Period in which they
accrue.
|
16.
|
16.1
|
Ticking
fee
|
|
(a)
|
From
the date of this Agreement until the earlier of the Acquisition Closing
and the date the Offer or Scheme is finally abandoned or finally lapses,
the Company shall pay to the Agent (for the account of each Lender) a fee
in the Base Currency computed at the rate of 0.075 per cent. per annum on
the aggregate of the daily amount of that the Lender's Available
Commitments under the
Facilities.
|
|
(b)
|
The
accrued ticking fee will become due and payable on the last day of each
successive period of three months ending prior to Acquisition Closing, or,
if earlier, the date of Acquisition Closing or within five Business Days
after the date the Offer or Scheme is finally abandoned or finally
lapses.
|
16.2
|
Commitment
fee
|
|
(a)
|
Following
Acquisition Closing, the Company shall pay to the Agent (for the account
of each Lender) a fee in the Base Currency computed at the rate of
30 per cent. of the Margin then applicable with respect to the
relevant Facility on amount of on that Lender's Available Commitment under
the Facilities for the relevant Availability
Period.
|
|
(b)
|
The
accrued commitment fee is payable on the last day of each successive
period of three Months which ends during the relevant Availability Period,
on the last day of the relevant Availability Period and, if cancelled in
full, on the cancelled amount of the relevant Lender's Commitment at the
time the cancellation is
effective.
|
16.3
|
Up-front
fee
|
The
Company shall pay to the Arranger an arrangement fee in the amount and at the
times agreed in a Fee Letter.
16.4
|
Agency
fee
|
The
Company shall pay to the Agent (for its own account) an agency fee in the amount
and at the times agreed in a Fee Letter.
16.5
|
Interest,
commission and fees on Ancillary
Facility
|
The rate
and time of payment of interest, commission, fees and any other remuneration in
respect of the Ancillary Facility shall be determined by agreement between the
Ancillary Lender and the Borrower of the Ancillary Facility based upon normal
market rates and terms.
SECTION
6
ADDITIONAL
PAYMENT OBLIGATIONS
17.1
|
Definitions
|
|
(a)
|
In
this Agreement:
|
"German Borrower" means a
Borrower subject to limited or unlimited tax liability in Germany.
"Protected Party" means a
Finance Party which is or will be subject to any liability, or required to make
any payment, for or on account of Tax in relation to a sum received or
receivable (or any sum deemed for the purposes of Tax to be received or
receivable) under a Finance Document.
"Qualifying Lender"
means:
|
(i)
|
in
respect of interest payable by a German Borrower, any Lender lending
through a permanent establishment (BetriebsstΓ€tte) in
Germany with which such Lender's participation in any Loans is effectively
connected in Germany or which is a Treaty
Lender;
|
|
(ii)
|
in
respect of interest payable by a UK Borrower, a Lender (other than a
Lender within sub-paragraph (C) below) which is beneficially entitled to
interest payable to that Lender in respect of an advance under a Finance
Document and is:
|
|
(A)
|
a
Lender:
|
|
(1)
|
which
is a bank (as defined for the purpose of section 879 of the ITA) making an
advance under a Finance Document;
or
|
|
(2)
|
in
respect of an advance made under a Finance Document by a person that was a
bank (as defined for the purpose of section 879 of the ITA) at the time
that that advance was made,
|
and which
is within the charge to United Kingdom corporation tax as respects any payments
of interest made in respect of that advance; or
|
(B)
|
a
Treaty Lender; or
|
|
(C)
|
a
building society (as defined for the purpose of section 880 of the ITA) in
respect of an advance made by that building
society.
|
|
(iii)
|
in
respect of any other Borrower, a Lender which is beneficially entitled to
interest payable to that Lender in respect of an advance under a Finance
Document and is:
|
|
(A)
|
lending
through a Facility Office in the jurisdiction of incorporation of the
relevant Borrower; or
|
|
(B)
|
a
Treaty Lender.
|
"Tax Credit" means a credit
against, relief or remission for, or repayment of any Tax.
"Tax Deduction" means a
deduction, charges or withholding for or on account of Tax from a payment under
a Finance Document.
"Tax Payment" means either the
increase in a payment made by an Obligor to a Finance Party under Clause 17.2
(Tax gross-up) or a
payment under Clause 17.3 (Tax indemnity).
"Treaty Lender" means a Lender
which:
|
(iv)
|
is
treated as a resident of a Treaty State for the purposes of the Treaty;
and
|
|
(v)
|
does
not carry on a business in the jurisdiction of incorporation of the
relevant Borrower through a permanent establishment or a permanent
representative with which that Lender's participation in the Loan is
effectively connected.
|
|
(vi)
|
is
entitled under the provisions of the Treaty with the jurisdiction of
incorporation of the Borrower to receive payments of interest from a
person resident in such jurisdiction without incurring a tax liability
including any Tax Deduction (subject to completion of any necessary
procedural formalities); and
|
|
(vii)
|
is
lending through a Facility Office in the Treaty
State.
|
"Treaty State" means a
jurisdiction having a double taxation agreement (a "Treaty") with the jurisdiction
of incorporation of the relevant Borrower which makes provision for full
exemption from tax imposed by the jurisdiction of incorporation of the relevant
Borrower on interest.
"UK Borrower" means a Borrower
which is incorporated in the United Kingdom.
17.2
|
Tax
gross-up
|
|
(a)
|
Each
Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by
law.
|
|
(b)
|
The
Company shall promptly upon becoming aware that an Obligor must make a Tax
Deduction (or that there is any change in the rate or the basis of a Tax
Deduction) notify the Agent accordingly. Similarly, a Lender shall notify
the Agent and the Company on becoming so aware in respect of a payment
payable to that Lender. If the Agent receives such notification from a
Lender it shall promptly notify the Company and that
Obligor.
|
|
(c)
|
If
a Tax Deduction is required by law to be made by an Obligor, the amount of
the payment due from that Obligor shall be increased to an amount which
(after making any Tax Deduction) leaves an amount equal to the payment
which would have been due if no Tax Deduction had been
required.
|
|
(d)
|
An
Obligor is not required to make an increased payment to a Lender under
paragraph (c) above for a Tax Deduction in respect of tax imposed by the
jurisdiction in which the relevant Obligor is resident for tax purposes
from a payment of interest on a Loan, if on the date on which the payment
falls due:
|
|
(i)
|
the
payment could have been made to the relevant Lender without a Tax
Deduction if it was a Qualifying Lender, but on that date that Lender is
not or has ceased to be a Qualifying Lender other than as a result of any
change after the date it became a Lender under this Agreement in (or in
the interpretation, administration, or application of) any law or Treaty,
or any published practice or concession of any relevant taxing authority;
or
|
|
(ii)
|
the
relevant Lender is a Treaty Lender and the Obligor making the payment is
able to demonstrate that the payment could have been made to the Lender
without the Tax Deduction had that Lender complied with its obligations
under paragraph (g) below.
|
|
(e)
|
If
an Obligor is required to make a Tax Deduction, that Obligor shall make
that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by
law.
|
|
(f)
|
Within
thirty days of making either a Tax Deduction or any payment required in
connection with that Tax Deduction, the Obligor making that Tax Deduction
shall deliver to the Agent for the Finance Party entitled to the payment
certificates evidencing to that Finance Party's reasonable satisfaction
that the Tax Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing
authority.
|
|
(g)
|
A
Treaty Lender and each Obligor which makes a payment to which that Treaty
Lender is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain authorisation to make
that payment without a Tax
Deduction.
|
17.3
|
Tax
indemnity
|
|
(a)
|
The
Company shall (within five Business Days of demand by the Agent) pay to a
Protected Party an amount equal to the loss, liability or cost which that
Protected Party determines (acting reasonably) will be or has been
(directly or indirectly) suffered for or on account of Tax by that
Protected Party in respect of a Finance
Document.
|
|
(b)
|
Paragraph
(a) above shall not apply:
|
|
(i)
|
with
respect to any Tax assessed on a Finance
Party:
|
|
(A)
|
under
the law of the jurisdiction in which that Finance Party is incorporated
or, if different, the jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax purposes;
or
|
|
(B)
|
under
the law of the jurisdiction in which that Finance Party's Facility Office
is located in respect of amounts received or receivable in that
jurisdiction,
|
if that
Tax is imposed on or calculated by reference to the net income received or
receivable (but not any sum deemed to be received or receivable) by that Finance
Party; or
|
(ii)
|
to
the extent a loss, liability or
cost:
|
|
(A)
|
is
compensated for by an increased payment under Clause 17.2 (Tax gross-up);
or
|
|
(B)
|
would
have been compensated for by an increased payment under Clause 17.2 (Tax gross-up) but was
not so compensated solely because one of the exclusions in paragraph (d)
of Clause 17.2 (Tax
gross-up) applied.
|
|
(c)
|
A
Protected Party making, or intending to make a claim under paragraph (a)
above shall promptly notify the Agent of the event which will give, or has
given, rise to the claim, following which the Agent shall notify the
Company.
|
|
(d)
|
A
Protected Party shall, on receiving a payment from an Obligor under this
Clause 17.3, promptly notify the
Agent.
|
17.4
|
Tax
Credit
|
If an
Obligor makes a Tax Payment and the relevant Finance Party determines (acting
reasonably) that:
|
(a)
|
a
Tax Credit is attributable either to an increased payment of which that
Tax Payment forms part, or to that Tax Payment;
and
|
|
(b)
|
that
Finance Party has obtained, utilised and retained that Tax Credit
(directly or on an affiliated group
basis),
|
the
Finance Party shall pay an amount to the Obligor which that Finance Party
determines (acting reasonably) will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not been
required to be made by the Obligor.
17.5
|
Stamp
taxes
|
The
Company shall pay and, within five 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.
17.6
|
Value
added tax
|
|
(a)
|
All
amounts set out, or expressed to be payable under a Finance Document by
any Party to a Finance Party which (in whole or in part) constitute the
consideration for VAT purposes shall be deemed to be exclusive of any VAT
which is chargeable on such supply, and accordingly, subject to paragraph
(c) below, if VAT is chargeable on any supply made by any Finance Party to
any Party under 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 owing and payable by such Finance
Party (and such Finance Party shall promptly provide an appropriate VAT
invoice to such Party). Should the reverse charge method apply, the
Borrowers shall not deduct any VAT from the amount which constitutes the
consideration for VAT
purposes
|
|
(b)
|
If
VAT is chargeable on any supply made by any Finance Party (the "Supplier") to any other
Finance Party (the "Recipient") under a
Finance Document, and any Party (the "Relevant Party") is
required by the terms of any Finance Document to pay an amount equal to
the consideration for such supply to the Supplier (rather than being
required to reimburse the Recipient in respect of that consideration),
such Party shall also pay to the Supplier (in addition to and at the same
time as paying such amount) an amount equal to the amount of such VAT. The
Recipient will promptly pay to the Relevant Party an amount equal to any
credit or repayment from the relevant tax authority which relates to the
VAT chargeable on that
supply.
|
|
(c)
|
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 neither the Finance
Party nor any other member of any group of which it is a member for VAT
purposes is entitled to credit or repayment from the relevant tax
authority in respect of the
VAT.
|
17.7
|
Tax
Certificate
|
|
(a)
|
For
the purpose of this Clause 17.7 and if expressly taken reference to this
Clause,
|
"Tax Certificate" means a
letter substantially in the form and the German language as required in the
official standard letter (a draft of which is attached as Schedule 16 (Tax confirmation)) for the
purpose of Section 8a of the German Corporate Income Tax Act (KΓΆrperschaftsteuergesetz)
("CITA") issued by the
German Federal Ministry of Finance to the credit committee of the German banking
association (dated 20 October 2005, docket nr. IV B 7 β S 2742a β 43/05)
specifying, in particular, any security interests or guarantees which have been
granted for the respective Loan or, in case the official standard letter is
amended by the German tax authorities (or by law), a letter in the form and
language of such an amended standard letter;
"Decrees" means the decrees
issued by the German Federal Ministry of Finance dated 15 July 2004, docket nr.
IV A 2 β S 2742a β 20/04 and 22 July 2005, docket nr. IV B 7 β S 2742a β 31/05
regarding the application of Section 8a of the CITA;
"Major Shareholder" means a
shareholder holding directly or indirectly more than 25 % of the shares in any
German Borrower; and "Affiliated Party" means any
person or entity related to a Major Shareholder within the meaning of sec 1 para
2 of the German Foreign Tax Act (AuΓensteuergesetz) other than
the respective German Borrower itself.
|
(b)
|
For
the purpose of providing evidence to the German tax authorities of the
absence of any detrimental recourse situation in connection with the tax
circulars issued by the German Federal Ministry of Finance (Bundesfinanzministerium)
on 15 July 2004 (IV A2 β S 2242a β 20/40) and on 22 July 2005 (IV B 7 β S
2742a β 31/05), each Lender undertakes at the request of any German
Borrower to issue (through the Agent) within a reasonable period of time
to any German Borrower a complete Tax Certificate, in case of each
Original Lender, after the signing of this Agreement, in the case of any
Lender other than an Original Lender, after the date on which such person
becomes a Lender and, in the case of any Original Lender and any other
Lender, after any amendment to this Agreement or as required by any
administrative pronouncement or guidelines issued by the German tax
authorities.
|
|
(c)
|
Upon
request of any German Borrower, the Lenders shall send (through the Agent)
within a reasonable period of time after having received the relating
request an updated Tax Certificate to such German Borrower. The same shall
apply if the German tax authorities amend or change their official
standard tax certificate (as specified in the letter to the credit
committee of the German banking association dated 20 October 2005, docket
nr. IV B 7 β S 2742a β 43/05). Any such request shall have attached a
completed draft Tax Certificate and shall expressly confirm that to the
German Borrowerβs best knowledge the draft Tax Certificate is accurate and
that the Lenders are released from any applicable confidentiality
obligations for the purposes of issuing the Tax Certificate. Upon request
such German Borrower will forward to the Lenders through the Agent such
information which may be reasonably required by the Lenders to enable the
Lenders to issue the Tax
Certificate.
|
|
(d)
|
The
Tax Certificate shall only include factual but not legal statements
(unless otherwise determined by the relevant Lender in its absolute
discretion). The Tax Certificate shall furthermore not contain any
statements that the Lenders are not permitted to issue by law,
administrative rule or regulation of the jurisdiction the relevant Lender
or Affiliate is subject to.
|
|
(e)
|
The
Lenders agree to issue (through the Agent) the Tax Certificate (except for
such Lenders prohibited by law, administrative rule or regulation of the
jurisdiction the relevant Lender or Affiliate is subject to) within a
reasonable period of time. Any costs and expenses reasonably incurred at
the level of the Agent or any Lender in connection with the issuance of
the Tax Certificate will be borne by the relevant German Borrower
requesting the Tax
Certificate.
|
|
(f)
|
Each
German Borrower confirms to each Lender that the Lenders issue the
respective Tax Certificate solely for providing evidence to the German tax
authorities of the absence of any back-to-back-financing pursuant to the
Decree dated 20 October 2005 to Section 8a of the German Corporate Income
Tax Act (KΓΆrperschaftsteuergesetz)
and that the Lenders are not responsible for examining the tax position of
the German Borrowers or for achieving any certain tax treatment of the
German Borrowers. Furthermore, each German Borrower confirms to each
Lender that this confirmation is not given for the German Borrowers to
rely on, but only for delivery to the competent tax authorities and that,
therefore, no German Borrower will raise any claims against a Lender in
connection with, a (correct or incorrect) Tax Certificate, unless such
claims are based on gross negligence or wilful misconduct on the part of
such Lender. Each of the German Borrower agrees to indemnify each Lender
with respect to any potential claims that might be made against that
Lender with respect to a Tax Certificate issued by it, unless such claims
are based on gross negligence or wilful misconduct on the part of such
Lender. The execution of the Tax Certificate shall only be descriptive by
nature and shall not amend any Finance Document or waive any rights any
Finance Party may have
thereunder.
|
|
(g)
|
It
is the common understanding of the Parties that no Finance Party is
providing any legal and/or tax advice to any other Party with respect to
this Agreement, in particular with respect to the application of Section
8a German Corporate Income Tax Act (KΓΆrperschaftsteuergesetz)
and the interpretation of the above Decree, and that it is the
responsibility of each Party, in particular each German Borrower, to
consult its own legal/tax
advisers.
|
18.
|
18.1
|
Increased
costs
|
|
(a)
|
Subject
to Clause 18.3 (Exceptions) the Company
shall, for any Interest Period beginning after the day on which the Agent
has notified the Company in accordance with paragraph (a) of Clause 18.2
(Increased cost
claims), 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 by any competent authority
of) any law or regulation or (ii) compliance with any law or regulation
made after the date of this Agreement. The amount of the Increased Costs
shall become due and payable within three Business Days of a demand by the
Agent.
|
|
(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 an Ancillary Commitment or funding or performing its obligations under any
Finance Document.
18.2
|
Increased
cost claims
|
|
(a)
|
A
Finance Party intending to make a claim pursuant to Clause 18.1 (Increased costs) shall
notify the Agent of the event giving rise to the claim, following which
the Agent shall promptly notify the
Company.
|
|
(b)
|
Each
Finance Party shall, as soon as practicable after a demand by the Agent,
provide a certificate confirming the amount of its Increased Costs and
setting out its calculation in reasonable
detail.
|
18.3
|
Exceptions
|
|
(a)
|
Clause
18.1 (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 17.3 (Tax
indemnity) (or would have been compensated for under Clause 17.3
(Tax indemnity)
but was not so compensated solely because any of the exclusions in
paragraph (b) of Clause 17.3 (Tax indemnity)
applied);
|
|
(iii)
|
compensated
for by the payment of the Mandatory
Cost;
|
|
(iv)
|
attributable
to the wilful breach by the relevant Finance Party or its Affiliates of
any law or regulation; or
|
|
(v)
|
attributable
to the implementation or application of or compliance with the
"International Convergence of Capital Measurement and Capital Standards, a
Revised Framework" published by the Basel Committee on Banking Supervision
in June 2004 in the form existing on the date of this Agreement ("Basel II") or any other
law or regulation which implements Basel II
(whether such implementation, application or compliance is by a
government, regulator, Finance Party or any of its
Affiliates).
|
|
(b)
|
In
this Clause 18.3, a reference to a "Tax Deduction" has the
same meaning given to the term in Clause 17.1 (Definitions).
|
19.1
|
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)
|
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.
|
19.2
|
Other
indemnities
|
The
Company shall (or shall procure that an Obligor will), within three Business
Days of demand, indemnify each Finance Party against any cost, loss or liability
incurred by that Finance Party (acting reasonably) 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 32 (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);
or
|
|
(d)
|
a
Loan (or part of a Loan) not being prepaid in accordance with a notice of
prepayment given by a Borrower or the
Company.
|
The
Company shall promptly indemnify the Agent within ten Business Days upon receipt
of appropriate evidence with respect to the claimed amounts 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.
|
20.1
|
Mitigation
|
|
(a)
|
Each
Finance Party shall, in consultation with the Company, 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 12.1 (Illegality), Clause 17
(Tax gross-up and
indemnities), Clause 18 (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.
|
|
(b)
|
Paragraph
(a) above does not in any way limit the obligations of any Obligor under
the Finance Documents.
|
20.2
|
Limitation
of liability
|
|
(a)
|
The
Company 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 20.1 (Mitigation).
|
|
(b)
|
A
Finance Party is not obliged to take any steps under Clause 20.1 (Mitigation) if, in the
opinion of that Finance Party (acting reasonably), to do so might be
prejudicial to it.
|
21.1
|
The
Company shall promptly on demand pay the Agent and the Arranger the amount of
all external expenses (including legal fees up to the amount agreed reasonable
travel expenses, printing and publicity costs and VAT) reasonably incurred by
any of them in connection with the negotiation, preparation, printing, execution
and syndication of:
|
(a)
|
this
Agreement and any other documents referred to in this Agreement up to the
amount agreed; and
|
|
(b)
|
any
other Finance Documents executed after the date of this
Agreement.
|
21.2
|
If (a) an
Obligor requests an amendment, waiver or consent or (b) an amendment is required
pursuant to Clause 33.9 (Change of currency), the
Company shall, within ten Business Days upon receipt of a reasonably detailed
invoice, reimburse the Agent for the amount of all external costs and expenses
(including legal fees) reasonably incurred by the Agent in responding to,
evaluating, negotiating or complying with that request or
requirement.
21.3
|
Enforcement
costs
|
The
Company shall, within ten Business Days upon receipt of a reasonably detailed
invoice, pay to each Finance Party the amount of all costs and expenses
(including legal fees) incurred by it in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
SECTION
7
GUARANTEE
22.1
|
Guarantee (Garantie) and indemnity (Ausfallhaftung)
|
The
Guarantor irrevocably and unconditionally:
|
(a)
|
guarantees
(garantiert) by
way of an independent payment obligation (selbstΓ€ndiges
Zahlungsversprechen) to each Finance Party to pay to that Finance
Party within five Business Days of receipt by it of a written demand by a
Finance Party (or the Agent on its behalf) the amount of principal,
interest, costs, expenses or other amount demanded in that demand, which
demand shall state that the sum demanded by that Finance Party under or in
connection with the Finance Documents has not been fully and irrevocably
paid by any other Borrower; and
|
|
(b)
|
undertakes
vis-Γ -vis each Finance Party to indemnify (schadloshalten) that
Finance Party immediately within five Business Days of a written demand
against any cost, loss or liability suffered by that Finance Party if any
obligation of any other Borrower under or in connection with any Finance
Document or 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 (Ersatz des positiven
Interesses).
|
22.2
|
Continuing and independent
guarantee and indemnity
|
|
(a)
|
This
guarantee and indemnity is independent and separate from the obligations
of any Borrower and is a continuing guarantee and indemnity which will
extend to the ultimate balance of sums payable by any Borrower under the
Finance Documents, regardless of any intermediate payment or discharge in
whole or in part.
|
|
(b)
|
The
guarantee and indemnity shall extend to any additional obligations of a
Borrower resulting from any amendment, novation, supplement, extension,
restatement or replacement of any Finance Documents, including without
limitation any extension of or increase in any facility or the addition of
a new facility under any Finance
Document.
|
22.3
|
Reinstatement
|
If any
payment by any Borrower or any discharge given by a Finance Party (whether in
respect of the obligations of any Borrower 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 Borrower 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 Borrower, as if the payment, discharge,
avoidance or reduction had not
occurred.
|
22.4
|
No
defences
|
|
(a)
|
The
obligations of the Guarantor under this Clause 22 will not be affected by
an act, omission, matter or thing which relates to the principal
obligation (or purported obligation) of any Borrower and which would
reduce, release or prejudice any of its obligations under this Clause 22,
including any personal defences of any Borrower (Einreden des
Hauptschuldners) or any right of revocation (Anfechtung) or set-off
(Aufrechnung) of
any Borrower.
|
|
(b)
|
The
obligations of the Guarantor under this Clause 22 are independent from any
other security or guarantee which may have been or will be given to the
Finance Parties. In particular, the obligations of the Guarantor under
this Clause 22 will not be affected by any of the
following:
|
|
(i)
|
the
release of, or any time (Stundung), waiver or
consent granted to, any Borrower from or in respect of its obligations
under or in connection with any Finance
Document;
|
|
(ii)
|
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 Borrower or any other person or any failure to realise
the full value of any security;
|
|
(iii)
|
any
incapacity or lack of power, authority or legal personality of or
dissolution or a deterioration of the financial condition of any other
Borrower; or
|
|
(iv)
|
any
unenforceability, illegality or invalidity of any obligation of any other
Borrower under any Finance
Document.
|
|
(c)
|
For
the avoidance of doubt this guarantee and indemnity does not constitute a
guarantee upon first demand (Garantie auf erstes
Anfordern) and nothing in this Clause 22 shall preclude any
defences that the Guarantor (in its capacity as Guarantor only) may have
against a Finance Party that the guarantee and indemnity does not
constitute its legal, valid, binding or enforceable
obligations.
|
22.5
|
Immediate
recourse
|
No
Finance Party will be required to proceed against or enforce any other rights or
security or claim payment from any person before claiming from the Guarantor
under this Clause 22. This applies irrespective of any law or any provision of a
Finance Document to the contrary.
22.6
|
Appropriations
|
Until all
amounts which may be or become payable by any Borrower under or in connection
with the Finance Documents have been irrevocably paid in full, each Finance
Party may:
|
(a)
|
refrain
from applying or enforcing any other moneys, security or rights held or
received by that Finance Party 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 the
Guarantor or on account of the Guarantor's liability under this Clause
22.
|
22.7
|
Deferral of Guarantor's
rights
|
Until all
amounts which may be or become payable by any Borrower under or in connection
with the Finance Documents have been irrevocably paid in full and unless the
Agent otherwise directs, the Guarantor will not 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 any Borrower;
|
|
(b)
|
to
claim any contribution from any other guarantor of any Borrower's
obligations under the Finance Documents;
and/or
|
|
(c)
|
to
take the benefit (in whole or in part and whether by way of legal
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.
|
If the
Guarantor receives any benefit, payment or distribution in relation to such
rights it shall hold that benefit, payment or distribution to the extent
necessary to enable all amounts which may be or become payable to the Finance
Parties by a Borrower under or in connection with the Finance Documents to be
repaid in full on trust for the Finance Parties and shall promptly pay or
transfer the same to the Agent or as the Agent may direct for application in
accordance with Clause 33 (Payment mechanics) of this
Agreement.
22.8
|
Additional
security
|
This
guarantee is in addition to and is not in any way prejudiced by any other
guarantee or security subsequently held by any Finance Party.
SECTION
8
23.
|
Each
Obligor on behalf of itself (and in the case of the Company and where set out
expressly, on behalf of each Material Company or each other member of the Group)
makes the representations and warranties set out in this Clause 23 to each
Finance Party on the date of this Agreement.
23.1
|
Status
|
|
(a)
|
It
is a stock corporation, limited liability company or partnership with
limited liability, duly incorporated or in the case of a partnership,
established and validly existing under the law of its jurisdiction of
incorporation.
|
|
(b)
|
It
and each of its Material Companies has the power to own its assets and
carry on its business as it is being
conducted.
|
23.2
|
Binding
obligations
|
The
obligations expressed to be assumed by it in each Finance Document are, subject
to the Legal Reservations, legal, valid, binding and enforceable
obligations.
23.3
|
Non-conflict with other
obligations
|
The entry
into and performance by it of, and the transactions contemplated by, the Finance
Documents do not and will not conflict with:
|
(a)
|
any
law or regulation applicable to it in its relevant jurisdiction of
incorporation;
|
|
(b)
|
its
constitutional documents; or
|
|
(c)
|
any
agreement, mortgage, bond or instrument to which it is a party or which is
binding upon it or any of its assets to an extent or in a manner which has
a Material Adverse Effect.
|
23.4
|
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.
23.5
|
Validity and admissibility in
evidence
|
|
(a)
|
All
Authorisations required or
desirable:
|
|
(i)
|
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
|
|
(ii)
|
to
make the Finance Documents to which it is a party admissible in evidence
in its jurisdiction of incorporation, have been obtained or effected and
are in full force and effect.
|
|
(b)
|
All
Authorisations necessary for the conduct of the business of a member of
the Group as carried on at the date of this Agreement have been obtained
or effected and are in full force and effect, except where failure to
obtain or effect those Authorisations is not reasonably likely to have a
Material Adverse Effect.
|
23.6
|
Governing law and
enforcement
|
Subject
to the Legal Reservations:
|
(a)
|
the
choice of German law as the governing law of the Finance Documents will be
recognised and enforced in its jurisdiction of incorporation;
and
|
|
(b)
|
any
judgment obtained in Germany in relation to a Finance Document will be
recognised and enforced in its jurisdiction of
incorporation.
|
23.7
|
Deduction of
Tax
|
It is not
required to make any deduction for or on account of Tax from any payment it may
make under any Finance Document to a Qualifying Lender (in the case of a Treaty
Lender on the assumption that the relevant treaty formalities have been complied
with).
23.8
|
No filing or stamp
taxes
|
Under the
law of its jurisdiction of incorporation it is not necessary that the Finance
Documents 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 or the transactions contemplated by the
Finance Documents.
23.9
|
No
default
|
|
(a)
|
No
Event of Default is continuing or might reasonably be expected to result
from the making of any Utilisation.
|
|
(b)
|
No
other event or circumstance is outstanding which constitutes a default
under any other agreement or instrument which is binding on it or (in the
case of the Company only) any of its Subsidiaries which might have a
Material Adverse Effect.
|
23.10
|
No misleading
information
|
|
(a)
|
The
factual information provided in the Information Memorandum and all other
written factual information designated by the Company to fall within the
scope of this Clause 23.10 was true and accurate in all material respects
as at the date it was provided or as at the date (if any) at which it is
stated.
|
|
(b)
|
The
financial projections contained in the Information Memorandum have been
prepared on the basis of recent historical information and on the basis of
reasonable assumptions.
|
|
(c)
|
So
far as the Company is aware, nothing has occurred and no information been
omitted from the Information Memorandum that results in the information
contained in the Information Memorandum being untrue or misleading in any
material respect.
|
|
(d)
|
The
Company is not aware of any fact or circumstance that has not been
disclosed or is not otherwise publicly available to any of the Finance
Parties prior to the making (including the repetition) of this
representation which might, if disclosed, have adversely affected the
decision of a person acting as a prudent businessman in considering
whether to provide finance to any of the Obligors upon the terms of this
Agreement.
|
23.11
|
Financial
statements
|
Its most
recent audited financial statements delivered pursuant to Clause 24.1
(Financial
Statements):
|
(a)
|
were
prepared in accordance with Applicable GAAP consistently applied unless
otherwise disclosed therein;
|
|
(b)
|
disclose
all liabilities (contingent or otherwise) and all unrealised or
anticipated losses required to be disclosed in accordance with Applicable
GAAP; and
|
(c) save as
disclosed therein, give a true and fair view of its financial condition and
operations (consolidated in the case of the Company's audited consolidated
financial statements) during the relevant financial year.
23.12
|
Pari passu
ranking
|
Its
payment obligations under the Finance Documents rank at least pari passu with the claims of
all its other unsecured and unsubordinated creditors, except for obligations
mandatorily preferred by law applying to companies generally.
23.13
|
No proceedings pending or
threatened
|
No action
or administrative proceedings of or before any court, arbitral body or
governmental authority or agency which are reasonably likely to be adversely
determined, have been started or credibly threatened against any member of the
Group and which if adversely determined, might reasonably be expected to have a
Material Adverse Effect.
23.14
|
Environmental laws and
licences
|
It and
(in the case of the Company only) each other member of the Group
has:
|
(a)
|
complied
with all Environmental Laws to which it may be
subject;
|
|
(b)
|
obtained
all Environmental Licences required or desirable in connection with its
business; and
|
|
(c)
|
complied
with the terms of those Environmental Licences,
|
in
each case where failure to do so would be reasonably likely to have a Material
Adverse Effect.
23.15
|
Environmental
Releases
|
No:
|
(a)
|
real property currently or previously owned, leased or
occupied by it or (in the case of the Company only) any of its
Subsidiaries is contaminated with any Hazardous Substance;
and
|
(b)
discharge,
release, leaching, migration or escape of any Hazardous Substance into the
environment has occurred or is occurring on, under or from that real property,
in each
case in circumstances where this would be reasonably likely to have a Material
Adverse Effect.
23.16
|
No material adverse
change
|
There has
been no material adverse change in the assets, business or financial condition
of the Company or the Group taken as whole since the date of the Original
Financial Statements.
23.17
|
Material
Companies
|
The list
of Material Companies attached as Schedule 18 (List of Material Companies)
is accurate in all material respects.
23.18
|
Acquisition-related
representations and
warranties
|
The Offer
Document or, as applicable, the Scheme Document contains all the material terms
of the Offer or Scheme.
23.19
|
Repetition
|
|
(a)
|
The
Repeated Representations shall be made by the Company on its own behalf
and on behalf of the other Obligors (under a power of attorney (Vollmacht) granted to
it by the Obligors pursuant to paragraph (d) below) (by reference to the
facts and circumstances then existing)
on:
|
|
(i)
|
the
Syndication Date, the date of each Utilisation Request and Selection
Notice; and
|
|
(ii)
|
in
the case of an Additional Borrower, the day on which it becomes (or it is
proposed that it becomes) an Additional
Borrower.
|
|
(b)
|
In
addition the representations in Clause 23.10 (No misleading information)
and Clause 23.11 (Financial statements)
will be deemed to be repeated by each relevant Obligor by reference to the
facts and circumstances then existing on the Syndication
Date.
|
|
(c)
|
In
addition, the representation in Clause 23.18 (Acquisition-related
representations and warranties) will be made by the Company on the
date of the first Utilisation Request funding the acquisition of Target
Shares pursuant to the Offer or
Scheme.
|
|
(d)
|
Each
Obligor (other than the Company) hereby empowers (bevollmΓ€chtigt) the
Company to make the Repeated Representations on its behalf as its attorney
(Stellvertreter).
Each Obligor (other than the Company) hereby relieves the Company from the
restrictions pursuant to section 181 of the Civil Code (BΓΌrgerliches Gesetzbuch) for the
purpose of making the Repeated Representations on its behalf as attorney
(Stellvertreter).
|
The
undertakings in this Clause 24 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.
24.1
|
Financial
statements
|
The
Company shall supply to the Agent in sufficient copies for all the
Lenders:
|
(a)
|
as
soon as the same become available, but in any event within 120 days
after the end of each of its financial
years:
|
|
(i)
|
its
audited unconsolidated financial statements and its audited consolidated
financial statements for that financial year;
and
|
|
(ii)
|
the
audited (if available) or unaudited (if audited financial statements are
not available) financial statements of each Obligor for that financial
year; and
|
|
(b)
|
as
soon as the same become available, but in any event within 60 days
after the end of each half of each of its financial
years:
|
|
(i)
|
its
unaudited consolidated financial statements and the consolidated financial
statements of the Group for that financial half year;
and
|
|
(ii)
|
the
unaudited unconsolidated financial statements of each Obligor for that
financial half year.
|
|
(c)
|
as
soon as the same become available, but in any event within 60 days
after the end of the first and third quarter of its financial
years:
|
|
(i)
|
its
unaudited consolidated financial statements for that financial quarter;
and
|
|
(ii)
|
the
unaudited unconsolidated financial statements of each Obligor for that
financial quarter.
|
24.2
|
Compliance
Certificate
|
|
(a)
|
The
Company shall supply to the Agent, with each set of financial statements
delivered pursuant to paragraph (a)(i) or (b)(i) of Clause 24.1 (Financial statements),
a Compliance Certificate setting out (in reasonable detail) computations
as to compliance with Clause 25 (Financial covenants)
and for the purpose of determining the Margin as set out in the definition
of "Margin" as at the date at which those financial statements were drawn
up.
|
|
(b)
|
Each
Compliance Certificate shall be accompanied by a list of Material
Companies as of the date at which those financial statements were drawn
up, setting out the Company's (or other Group member's) stake in such
Material Company, its net turnover (excluding intra-group turnover), its
share of the total consolidated net turnover of the group, its total
assets (excluding intra-group assets/transactions) and its share of the
total consolidated assets of the
Group.
|
|
(c)
|
Each
Compliance Certificate shall be signed by two directors of the Company (or
a director and a procurist (Prokurist) of the
Company) and, if required to be delivered with the financial statements
delivered pursuant to paragraph (a)(i) of Clause 24.1 (Financial statements),
shall be reported on by the Company's
auditors.
|
24.3
|
Requirements as to financial
statements
|
|
(a)
|
Each
set of financial statements delivered by the Company pursuant to Clause
24.1 (Financial
statements) shall be certified by two directors of the relevant
company as fairly representing its financial condition as at the date at
which those financial statements were drawn
up.
|
|
(b)
|
|
(i)
|
The
Company shall procure that each set of financial statements of an Obligor
delivered pursuant to Clause 24.1 (Financial statements)
is prepared using GAAP and accounting practices and financial reference
periods consistent with those applied in the preparation of the Original
Financial Statements for that Obligor unless, in relation to any set of
financial statements, it notifies the Agent that there has been a change
in Applicable GAAP or the accounting practices or reference periods which
would be material in the context of the definition of "Material Company", the undertakings in
this Clause 24 or the financial covenants in Clause 25 (Financial covenants),
and its auditors (or, if appropriate, the auditors of the Obligor) deliver
to the Agent:
|
|
(A)
|
a
description of any change necessary for those financial statements to
reflect the Applicable GAAP, accounting practices and reference periods
upon which that Obligor's Original Financial Statements were prepared;
and
|
|
(B)
|
sufficient
information, in form and substance as may be reasonably required by the
Agent, to enable the Lenders to determine whether Clause 25 (Financial covenants)
has been complied with, to determine the Margin as set out in the
definition of "Margin" and make an
accurate comparison between the financial position indicated in those
financial statements and that Obligor's Original Financial
Statements.
|
|
(ii)
|
If
the Company notifies the Agent of a change in accordance with paragraph
(i) above then the Company and Agent shall enter into negotiations in good
faith for a period of not more than 30 days with a view to agreeing any
amendments to this Agreement which may be necessary to put the Company and
the Finance Parties in the same position they would have been in had the
change not occurred and if any amendments are agreed they shall take
effect and be binding on each of the Parties in accordance with their
terms.
|
|
|
Any
reference in this Agreement to "those financial statements" shall be
construed as a reference to those financial statements as adjusted to
reflect the basis upon which the Original Financial Statements were
prepared.
|
|
|
If
no such agreement is reached within such 30 day period, the Company shall
supply with each set of its consolidated Financial Statements another set
of consolidated Financial Statements prepared on the same basis as its
original Financial Statements.
|
24.4
|
Budget
|
|
(a)
|
The
Company shall supply to the Agent in sufficient copies for all the
Lenders, as soon as the same become available but in any event within two
months after the beginning of each of its Financial Years, a Budget for
that financial year and the following two financial
years.
|
|
(b)
|
The
Company shall ensure that each
Budget:
|
|
(i)
|
is
in the same form as the business plan delivered pursuant to Schedule 2
(Conditions
Precedent) Part I item 4(a)(iv) and includes a projected
consolidated profit and loss, balance sheet and cashflow statement for the
Group, projected financial covenant
calculations;
|
|
(ii)
|
is
prepared in accordance with the Accounting Principles and the accounting
practices and financial reference periods applied to financial statements
under Clause 24.1 (Financial statements);
and
|
|
(iii)
|
has
been approved by the board of directors of the
Company.
|
24.5
|
Information:
miscellaneous
|
The
Company shall supply to the Agent (in sufficient copies for all the Lenders, if
the Agent so requests):
|
(a)
|
all
material statements and documents despatched by the Company to its
shareholders (or any class of them) generally or its creditors generally
at the same time as they are dispatched unless such information is
available on the website of the Company notified to the
Agent;
|
|
(b)
|
if
not publicly available, details of any announcement from Xxxxx'x, Standard
& Poor or Fitch of any change in its ratings or ratings outlook of the
long-term unsecured debt of the Company or of the rating of the Facilities
(if any);
|
|
(c)
|
promptly
upon becoming aware thereof, identification of any asset sold as a
Specified Disposal, the expected date of the Disposal and expected Net
Disposal Proceeds resulting from such Disposal and the envisaged date of
mandatory prepayment of Net Disposal
Proceeds;
|
|
(d)
|
promptly
upon becoming aware of them, reasonable details of any action or
administrative proceeding of or before any court, board of arbitration or
governmental authority or agency which is current, credibly threatened or
pending against any member of the Group which in each case is reasonably
likely to be adversely determined and which, if so determined, would be
reasonably likely to have a Material Adverse
Effect;
|
|
(e)
|
promptly,
such further information regarding the financial condition of any member
of the Group as any Finance Party (through the Agent) may reasonably
request in line with customary banking and regulatory requirements
(including, without limitation, all information and documents as may be
required under sections 13, 13(a) and 18 of the German Banking Act (Gesetz ΓΌber das Kreditwesen
KWG)); and
|
|
(f)
|
a
copy of any announcement that a member of the Group is required to make
prior to the Acquisition Closing in connection with on or off-market
purchases of Target Shares.
|
24.6
|
Notification of
default
|
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).
24.7
|
Use of
websites
|
|
(a)
|
The
Company may satisfy its obligation under this Agreement to deliver any
information in relation to those Lenders ( the "Website Lenders") who
accept this method of communication by posting this information onto an
electronic website designated by the Company and the Agent (the "Designated Website")
if:
|
|
(i)
|
the
Agent expressly agrees (after consultation with each of the Lenders) that
it will accept communication of the information by this
method;
|
|
(ii)
|
both
the Company and the Agent are aware of the address of and any relevant
password specifications for the Designated Website;
and
|
|
(iii)
|
the
information is in a format previously agreed between the Company and the
Agent.
|
|
|
If
any Lender (a "Paper Form
Lender") does not agree to the delivery of information
electronically then the Agent shall notify the Company accordingly and the
Company shall supply the information to the Agent (in sufficient copies
for each Paper Form Lender) in paper form. In any event the Company shall
supply the Agent with at least one copy in paper form of any information
required to be provided by it.
|
|
(b)
|
The
Agent shall supply each Website Lender with the address of and any
relevant password specifications for the Designated Website following
designation of that website by the Company and the
Agent.
|
|
(c)
|
The
Company shall promptly upon becoming aware of its occurrence notify the
Agent if:
|
|
(i)
|
the
Designated Website cannot be accessed due to technical
failure;
|
|
(ii)
|
the
password specifications for the Designated Website
change;
|
|
(iii)
|
any
new information which is required to be provided under this Agreement is
posted onto the Designated Website;
|
|
(iv)
|
any
existing information which has been provided under this Agreement and
posted onto the Designated Website is amended;
or
|
|
(v)
|
the
Company becomes aware that the Designated Website or any information
posted onto the Designated Website is or has been infected by any
electronic virus or similar
software.
|
|
|
If
the Company notifies the Agent under paragraph (c)(i) or paragraph (c)(v)
above, all information to be provided by the Company under this Agreement
after the date of that notice shall be supplied in paper form unless and
until the Agent and each Website Lender is satisfied that the
circumstances giving rise to the notification are no longer
continuing.
|
|
(d)
|
Any
Website Lender may request, through the Agent, one paper copy of any
information required to be provided under this Agreement which is posted
onto the Designated Website. The Company shall comply with any such
request within ten Business Days.
|
24.8
|
"Know your customer"
checks
|
|
(a)
|
If:
|
|
(i)
|
the
introduction of or any change in (or in the interpretation, administration
or application of) any law or regulation made after the date of this
Agreement;
|
|
(ii)
|
any
change in the status of an Obligor or the composition of the shareholders
of an Obligor after the date of this Agreement;
or
|
|
(iii)
|
a
proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to
such assignment or transfer,
|
|
|
obliges
the Agent or any Lender (or, in the case of paragraph (iii) above, any
prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information
is not already available to it, each Obligor shall promptly upon the
request of the Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Agent
(for itself or on behalf of any Lender) or any Lender (for itself or, in
the case of the event described in paragraph (iii) above, on behalf of any
prospective new Lender) in order for the Agent, such Lender or, in the
case of the event described in paragraph (iii) above, any prospective new
Lender to carry out and be satisfied it has complied with all necessary
"know your customer" or other similar checks under all applicable laws and
regulations pursuant to the transactions contemplated in the Finance
Documents.
|
|
(b)
|
Each
Lender shall promptly upon the request of the Agent supply, or procure the
supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry out
and be satisfied it has complied with all necessary "know your customer"
or other similar checks under all applicable laws and regulations pursuant
to the transactions contemplated in the Finance
Documents.
|
|
(c)
|
The
Company shall, by not less than ten Business Days' prior written notice to
the Agent, notify the Agent (which shall promptly notify the Lenders) of
its intention to request that one of its Subsidiaries becomes an
Additional Borrower pursuant to Clause 29 (Changes to the
Obligors).
|
|
(d)
|
Following
the giving of any notice pursuant to paragraph (c) above, if the accession
of such Additional Borrower obliges the Agent or any Lender to comply with
"know your customer" or similar identification procedures in circumstances
where the necessary information is not already available to it, the
Company shall promptly upon the request of the Agent or any Lender supply,
or procure the supply of, such documentation and other evidence as is
reasonably requested by the Agent (for itself or on behalf of any Lender)
or any Lender (for itself or on behalf of any prospective new Lender) in
order for the Agent or such Lender or any prospective new Lender to carry
out and be satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations pursuant to the accession of such member of the Group to this
Agreement as an Additional
Borrower.
|
25.1
|
Financial
definitions
|
In this
Clause 25:
"Consolidated Net Finance Charges" means for any
Relevant Period the aggregate amount of the Group's "Interest Payable and
similar charges" for such period minus the sum of the Group's "Income from
loans" and "Other interest receivable and similar income" for such period, each
to be calculated in the same manner as it was calculated on page 94 of the
Reference Financial Statements.
"Group's Net Debt" means in relation to any test
date the sum of the Group's long-term financial liabilities (consisting of
"Debenture loans", "Bank loans" and "Other long-term financial liabilities") and
short-term financial liabilities (consisting of "Debenture loans (current
portion)" (if any), "Bank loans (current portion)" and "Other short-term
financial liabilities") minus the sum of the Group's "Cash at bank and in hand"
and "Short-term investments", each to be calculated in the same manner as it was
calculated on pages 68 and 69 of the Reference Financial Statements but
excluding, for the avoidance of doubt, any amounts which are under IFRS not
considered to be debt irrespective of their legal nature.
"EBITDA" means, in relation to any Relevant
Period, the operating income of the Group before depreciation and amortisation
(OIBD) for that Relevant Period plus:
|
(a)
|
gains/losses
on greenhouse gas trading schemes according to both EU and Kyoto trading
scheme; and
|
|
(b)
|
up
to an aggregate amount of EUR 80,000,000 per annum, other gains and losses
from disposal of fixed assets and other non-recurring ordinary income and
expenses, but excluding: (x) any such items from single transactions where
the net gain/loss exceeds EUR 20,000,000, (y) any other exceptional
income, charges, depreciation and amortisation and (z) any write-backs of
provisions and asset impairments, in each case in line with the accounting
principles applied with respect to the Reference Financial
Statements.
|
"Reference Financial Statements" means the
audited consolidated financial statements of the Company for its financial year
ending 31 December 2006.
25.2
|
Financial
condition
|
The
Company shall ensure that:
|
(a)
|
Group's Net Debt /
EBITDA: The ratio of the Group's Net Debt / EBITDA in respect of
any Relevant Period specified in column 1 below shall not be more than the
ratio set out in column 2 below opposite that Relevant
Period:
|
Column
1
Relevant
Period
expiring
|
Column
2
Ratio
|
[β
β
β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
|
|
provided that if the Acquisition Closing
has not occurred, the ratio of Group's Net Debt / EBITDA for each Relevant
Period set out in column 1 above shall not be more than [n n n].
|
|
(b)
|
Interest Cover: The
ratio of the Group's EBITDA to Consolidated Net Finance Charges for each
Relevant Period specified in column 1 below shall not be less than the
ratio specified in column 2 below opposite that Relevant
Period:
|
Column
1
Relevant
Period
expiring
|
Column
2
Ratio
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
[β β β ]
|
|
|
provided that if the Acquisition Closing
has not occurred, the ratio of Group's EBITDA to Consolidated Net Finance
Charges for each Relevant Period specified in column 1 above shall
not be less than 5.00:1.
|
25.3
|
Financial
testing
|
|
(a)
|
Subject
to paragraph (b) below, the financial covenants set out in
Clause 25.2 (Financial condition)
shall be tested as of the last day of each Relevant Period by reference to
each of the financial statements delivered pursuant to paragraph (a)(i)
and (b)(i) of Clause 24.1 (Financial Statements)
and/or each Compliance Certificate delivered pursuant to Clause 24.2
(Compliance
Certificate).
|
|
(b)
|
In
respect of EBITDA and Consolidated Net Finance Charges for each of the
Relevant Periods ending an a date which is less than 12 months after the
Acquisition Closing, the amount thereof shall be calculated by reference
to EBITDA and Consolidated Net Finance Charges as disclosed in the
financial statements provided that
the EBITDA and Consolidated Net Finance Charges with respect of the
part of any Relevant Period falling prior to the Acquisition Closing shall
be included on a pro
forma basis as if the Acquisition had been made on the first day of
the Relevant Period.
|
The
undertakings in this Clause 26 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.
26.1
|
Authorisations
|
Each
Obligor shall promptly obtain, comply with and do all that is necessary to
maintain in full force and effect any Authorisation required under any law or
regulation of its jurisdiction of incorporation to enable it to perform its
obligations under the Finance Documents.
26.2
|
Compliance
with laws
|
|
(a)
|
Each
Obligor shall comply in all material respects with all applicable laws and
regulations to which it may be subject, if failure so to comply would
materially impair its ability to perform its obligations under the Finance
Documents.
|
|
(b)
|
The
Company shall procure that its Subsidiaries (other than an Obligor will)
comply in all respects with all applicable laws and regulations where
failure to do so is reasonably likely to have a Material Adverse
Effect.
|
26.3
|
Negative
pledge
|
No
Obligor shall (and the Company shall ensure that no other Material Company will)
create or permit to subsist any Security for or in respect of Financial
Indebtedness over any of its assets other than Permitted Security.
26.4
|
Disposals
|
No
Obligor shall (and the Company shall ensure that no other member of the Group
will), enter into a single transaction or a series of transactions (whether
related or not) to sell, lease, transfer or otherwise dispose of all or any part
of its assets other than pursuant to a Permitted Disposal.
26.5
|
Merger
|
The
Company shall not enter into any transformation (Umwandlung) within the
meaning of the German Transformation Act (Umwandlungsgesetz), any
similar transaction effected otherwise than in reliance on the provisions of the
German Transformation Act or, in each case, any similar transaction under the
laws of any jurisdiction other than Germany (each such transformation or similar
transaction, a "Transformation"), other
than pursuant to a Permitted Transformation.
26.6
|
Change
of business
|
The
Company shall ensure that no substantial change is made to the general nature of
the business of the Company or the Group taken as a whole from that carried on
at the date of this Agreement.
26.7
|
Insurance
|
Each
Obligor shall (and the Company shall ensure that each member of the Group will)
maintain insurances on and in relation to its business and assets with reputable
underwriters or insurance companies in accordance with Group practice existing
as of the date of this Agreement, save where failure to do so could not
reasonably be expected to have a Material Adverse Effect.
26.8
|
Environmental
compliance
|
Each
Obligor shall (and the Company shall ensure that each other member of the Group
will):
|
(a)
|
comply
in all material respects with all Environmental Laws to which it is
subject;
|
|
(b)
|
obtain
all Environmental Licences required in connection with its business;
and
|
|
(c)
|
comply
with the terms of all those Environmental
Licences,
|
in each
case where failure to do so is reasonably likely to have a Material Adverse
Effect.
26.9
|
Environmental
claims
|
The
Company shall promptly notify the Agent of any claim made against, or any notice
or other communication received by, any member of the Group in respect of any
actual or alleged breach of or liability under any Environmental Law which, if
substantiated, is reasonably likely to have a Material Adverse
Effect.
26.10
|
Guarantees
|
No
Obligor shall (and the Company shall ensure that no other member of the Group
will) grant any guarantee (excluding for the avoidance of doubt letters of
comfort without funding undertaking (weiche PatronatserklΓ€rungen))
or other similar assurance in respect of obligations of third parties which
could result in a payment claim by the beneficiary against the grantor thereof
in respect of obligations of third parties (each, a "Guarantee") to any person not a member of the
Group, other than Permitted Guarantees.
26.11
|
Loans
out
|
No
Obligor shall (and the Company shall procure that no other member of the Group
will) grant any loans or extend any credit to any person which is not a member
of the Group, other than Permitted Loans.
26.12
|
Subsidiary
Financial Indebtedness
|
The
Company shall ensure that no other member of the Group other than
HeidelbergCement Finance B.V. and any other Finance Subsidiary incurs any
Financial Indebtedness other than Permitted Financial Indebtedness.
26.13
|
Acquisitions
|
Until all
Facility A Loans and Facility B Loans have been repaid or prepaid and the
Available Commitment in relation to Facility A and Facility B is zero, no
Obligor shall (and the Company shall procure that no member of the Group
will):
|
(a)
|
acquire
the whole or any part of any business, or any participation in any
business (whether in the form of an asset or share deal);
or
|
|
(b)
|
enter
into or acquire any shares, stocks, securities or other interests in a
joint venture, in each case,
|
other
than pursuant to any Permitted Acquisition.
26.14
|
Ownership
of Borrowers (other than the
Company)
|
The
Company shall ensure that each Borrower (other than the Company) is, during the
lifetime of the Facilities (but only if and for so long as it remains a Borrower
thereunder), a member of the Group.
26.15
|
Acquisition-related
undertakings
|
The
Company shall and shall procure that BidCo (and, in relation to paragraph (c)
and (f), any member of the Group (other than a member of the Target Group))
will:
|
(a)
|
comply
in all material respects with all laws and regulations relevant in the
context of the Offer or Scheme, including the Takeover
Code;
|
|
(b)
|
not
without the consent of the Agent (acting on the instructions of the
Majority Lenders) agree to amend, waive, revise, withdraw or agree to
decide not to enforce in whole or in part any term or condition of the
Offer or Scheme save (i) where such amendment, waiver, revision,
withdrawal or non-enforcement could not be reasonably expected to be
material or prejudicial to the interests of the Lenders, (ii) as required
by the Takeover Code or the Takeover Panel, (iii) is pursuant to an Offer
Conversion Notice served in accordance with Clause 3.3 (Conversion from Scheme to
Offer) or (iv) where the Takeover Panel does not permit the
relevant terms and conditions to be
invoked;
|
|
(c)
|
ensure
that nothing is done to oblige Bidco to make a Rule 9
offer;
|
|
(d)
|
keep
the Agent reasonably informed as to the progress of the Offer or Scheme
and any material developments in relation to the Offer or
Scheme;
|
|
(e)
|
promptly
supply to the Agent copies of all documents, notices or announcements
received or issued by it or any other information in its possession in
relation to the Offer or Scheme which it is permitted to make available to
the Agent;
|
|
(f)
|
except
with the prior consent of the Arrangers or if the excess is funded by way
of additional equity raised by the Company, (i) not agree to any increase
in the purchase price per Target Share and (ii) not take any other action
that would result in the Offer or Scheme having to be made at a price in
each case above the amount separately agreed between the Arranger and the
Company;
|
|
(g)
|
unless
required by any law or regulation (including the Takeover Code), the
London Stock Exchange or the Panel, not make any statement or announcement
(other than the Offer or Scheme, the Press Release or the Offer Document
or Scheme Document) containing any information or statement concerning the
Finance Documents or Finance Parties without the prior approval of the
Arranger; and
|
|
(h)
|
issue
the Press Release within 3 months of the date of this
Agreement.
|
26.16
|
Material
Companies
|
The
Company shall ensure that the aggregated total assets and turnover of all
Material Companies and the Company equal at least 80% of the total assets and
consolidated turnover of (i) prior to the delivery of the first financial
statements pursuant to paragraphs (a)(i), (b)(i) or (c)(i) of Clause 24.1 (Financial Statements)
following the Acquisition Closing the Group excluding the Target Group and, (ii)
thereafter the Group, to be tested semi-annually as of 30 June and 31
December of any year.
26.17
|
Cash
Management
|
The
Company shall use its best efforts to procure that cash reserves available to
any member of the Target Group, unless the financial officer (or equivalent
officer) determines (acting reasonably) that it is necessary to hold such cash
reserves in the Target Group, are used to repay Financial Indebtedness of the
members of the Target Group and, thereafter, of other members of the
Group.
26.18
|
Replacement
of DB Facility
|
The
Company shall repay all amounts outstanding under the DB Facility by
Utilisations under Facility A within five Business Days of the date that it
and/or any other member of the Group acquires 3 per cent. or more of the
Target Shares. On such date the Company shall cancel the DB
Facility.
|
(a)
|
Each
of the events or circumstances set out in this Clause 27 is an Event of
Default (save as for Clause 27.15 (Acceleration) and
Clause 27.16 (Clean-Up
Period).
|
|
(b)
|
Without
prejudice to the provisions of this Agreement, section 490(1) of the Civil
Code (BΓΌrgerliches
Gesetzbuch) shall not apply.
|
27.1
|
Non-payment
|
An
Obligor fails to pay:
|
(a)
|
any
amount due from it in respect of principal or interest under this
Agreement on the due date and at the place and in the currency in which it
is expressed to be payable, unless such failure to pay is caused by
technical or administrative failure or error and payment is made within 3
Business Days after its due date;
or
|
|
(b)
|
any
other amount due under any Finance Document within 10 Business Days after
its due date.
|
27.2
|
Financial
covenants
|
Any
requirement of Clause 25 (Financial covenants) is not
satisfied.
27.3
|
Other
obligations
|
|
(a)
|
An
Obligor does not:
|
|
(i)
|
comply
with or perform any obligation expressed to be assumed by it under this
Agreement other than under Clause 27.1 (Non-payment) and Clause
25 (Financial
Covenants) referred to above;
or
|
|
(ii)
|
comply
with any other material provision of any Finance
Document.
|
|
(b)
|
No
Event of Default under paragraph (a) above will occur if the failure to
comply is capable of remedy and is remedied within 15 Business Days of the
Agent giving notice to the Company.
|
27.4
|
Misrepresentation
|
Any
representation or statement made or deemed to be made by or on behalf of an
Obligor in the Finance Documents or any other document delivered by or on behalf
of any Obligor under or in connection with any Finance Document is or proves to
have been incorrect or misleading in any material respect when made or, if in
order for a Repeating Representation which is not a Major Representation not to
be incorrect or misleading in any material respect, such representation is made
subject to disclosures and would have been incorrect or misleading in any
material respect if it had been made without such disclosure and, in each case
if capable of remedy, is not remedied within 15 Business Days after the
Agent has given notice thereof to the Company.
27.5
|
Cross
default
|
|
(a)
|
Any
Financial Indebtedness of (i) any Obligor, (ii) any Material Company or
(iii) or any other member of the Group (other than a Minor Company) (in
each case other than under the Finance Documents) is not paid when due nor
within any originally applicable grace
period.
|
|
(b)
|
Any
Financial Indebtedness of (i) any Obligor, (ii) any Material Company or
(iii) any other member of the Group (other than a Minor company) (in each
case other than under the Finance Documents) 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
creditor of any Financial Indebtedness of (i) any Obligor, (ii) any
Material Company or (iii) any other member of the Group (other than a
Minor Company) becomes entitled to declare any Financial Indebtedness of
any member of the Group due and payable prior to its specified maturity as
a result of an event of default (however
described).
|
|
(d)
|
No
Event of Default will occur under this Clause 27.5 if the aggregate amount
of Financial Indebtedness or commitment for Financial Indebtedness falling
within paragraphs (a) to (d) above is less than EUR 50,000,000 (or its
equivalent in any other currency or
currencies).
|
27.6
|
Insolvency
|
|
(a)
|
Any
Obligor or Material Company incorporated under the laws of Germany or
incorporated in another jurisdiction but having its centre of main
interests for the purposes of the European Regulation on Insolvency
Proceedings (EC Council Regulation 1346/2000 of 29 May 2000) in Germany
(each, a "German Entity") generally
suspends making payments on its debts or announces an intention to do so,
is over-indebted (ΓΌberschuldet) or unable
to pay its debts as they fall due (zahlungsunfΓ€hig), due
to imminent illiquidity commences negotiations with any or more of its
creditors with a view to the general readjustment or rescheduling of its
indebtedness or makes a general assignment for the benefit of or a
composition with its creditors or, for any of the reasons set out in
sections 17-19 of the German Insolvency Code (Insolvenzordnung),
files for insolvency (Antrag auf ErΓΆffnung eines
Insolvenzverfahrens), or the board of directors (GeschΓ€ftsfΓΌhrung) of a
German Entity is required by law to file for
insolvency.
|
|
(b)
|
The
competent court takes any of the actions set out in section 21 of the
German Insolvency Code (Insolvenzordnung) or
institutes insolvency proceedings against a German Entity (ErΓΆffnung eines
Insolvenzverfahrens).
|
|
(c)
|
Any
event analogous to any of the events referred to in paragraphs (a) and (b)
above occurs in any jurisdiction other than Germany with respect to an
Obligor or a Material Company which is not a German
Entity.
|
27.7
|
Winding-up
|
|
(a)
|
Any
(i) Obligor, (ii) Material Company or (iii) other member of the Group
(other than a Minor Company) takes any corporate action, or other steps
are taken or legal proceedings are started, for the winding-up of the
business or assets of any such Obligor, Material Company, or other member
of the Group (other than a Minor Company) or for the appointment of a
receiver, administrator, administrative receiver, trustee or similar
officer of any of them or of any of their respective business or
assets.
|
|
(b)
|
Paragraph
(a) above shall not apply to:
|
|
(i)
|
any
solvent liquidation of any Material Company or other member of the Group
which is not an Obligor; or
|
|
(ii)
|
any
winding-up resulting from the implementation of any transaction
contemplated in the German Transformation Act (Umwandlungsgesetz) or
any similar transaction effected otherwise than in reliance on the
provisions of the German Transformation Act or, in each case, any similar
transaction under the laws of any jurisdiction other than
Germany,
|
|
(c)
|
not
otherwise prohibited under this
Agreement,
|
(each, a
"Permitted Liquidation").
27.8
|
Creditors'
process
|
Any
attachment (PfΓ€ndung),
sequestration (Zwangsverwaltung), distress
(Beschlagnahme), and/or
other execution (Zwangsvollstreckung) legal
process (other than any prejudgment attachment (Arrest) or other execution
legal process in respect of provisional relief (einstweiliger Rechtsschutz))
in relation to, when aggregated with each other, obligations of at least EUR
50,000,000 (or its equivalent) affects any asset or assets of an Obligor or
Material Company and is not discharged within 30 Business Days.
27.9
|
Ownership
of the Borrower
|
A
Borrower (other than the Company) is not or ceases to be a member of the
Group.
27.10
|
Unlawfulness
|
It is or
becomes unlawful for an Obligor to perform any of its obligations under the
Finance Documents to which it is a party.
27.11
|
Repudiation
|
|
(a)
|
An
Obligor repudiates a Finance
Document.
|
|
(b)
|
The
validity or enforceability of the Finance Documents are adversely affected
in a material way.
|
27.12
|
Adverse
Judgement
|
An
enforceable judgment and/or order for the payment of an amount exceeding
(individually or when aggregated with other judgment(s) and/or order(s)
EUR 50,000,000 (or its equivalent) is rendered against an Obligor and/or
Material Company and such judgments or orders remain(s) unsatisfied or no other
steps preventing enforcement (Abwendung der
Zwangsvollstreckung) have been successfully taken within 30 Business Days
thereafter.
27.13
|
Equity
Injection
|
The
Company had not received no later than on the Acquisition Closing additional
equity in the amount of at least EUR 500,000,000 from shareholders (or any of
them) by way of cash capital increase.
27.14
|
Cessation
of Business
|
Any
Obligor ceases to carry on the business it carries on at the date of signing of
this Agreement, other than under or in connection with a Permitted
Transaction.
27.15
|
Acceleration
|
Subject
to the provisions of this Agreement relating to the Certain Funds Period and the
Clean-up Period, 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 Company:
|
(a)
|
cancel
the Total Commitments and/or Ancillary Commitments, at which time 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, at which time they shall become immediately
due and payable;
|
|
(c)
|
declare
that all or part of the Loans be payable on demand, at which time they
shall immediately become payable on demand by the Agent on the
instructions of the Majority
Lenders;
|
|
(d)
|
declare
all or any part of the amounts (or cash cover in relation to those
amounts) outstanding under the Ancillary Facility to be immediately due
and payable at which time they shall become immediately due and payable;
and/or
|
|
(e)
|
declare
that all or any part of the amounts (or cash cover in relation to those
amounts) outstanding under the Ancillary Facility be payable on demand, at
which time they shall immediately become payable on demand by the Agent on
the instructions of the Majority
Lenders.
|
27.16
|
Notwithstanding
any other provision of any Finance Document:
|
(a)
|
any
breach of a Clean-Up Representation or a Clean-Up Undertaking;
or
|
|
(b)
|
any
Event of Default constituting a Clean-Up
Default,
|
will be
deemed not to be a breach of representation or warranty, a breach of covenant or
a Default (as the case may be) if:
|
(i)
|
it
would have been (if it were not for this provision) a breach of
representation or warranty, a breach of covenant or a Default only by
reason of circumstances relating exclusively to any member of the Target
Group (or any obligation to procure or ensure in relation to a member of
the Target Group);
|
|
(ii)
|
the
circumstances giving rise to it have not been procured by or approved by
any member of the Group (other than a member of the Target
Group);
|
|
(iii)
|
it
does not have a Material Adverse
Effect;
|
|
(iv)
|
it
does not affect, as from the Acquisition Closing, the Company's ownership
of the shares to be acquired pursuant to the
Acquisition;
|
|
(v)
|
it
has been notified to the Agent by the Company promptly upon its becoming
aware thereof; and
|
|
(vi)
|
(where
the Default is capable of being remedied), the Company after having become
aware of such breach or Default has had or is having such commercially and
legally reasonable steps taken in respect of such breach or Default to
remedy it as are open to any members of the
Group.
|
If the
relevant circumstances are continuing on or after the Clean-up Date, there shall
be a breach of representation or warranty, breach of covenant or Default, as the
case may be notwithstanding the above (and without prejudice to the rights and
remedies of the Finance Parties).
SECTION
9
CHANGES
TO PARTIES
28.1
|
Assignments
and transfers by the Lenders
|
|
(a)
|
Subject
to this Clause 28, a Lender (the "Existing
Lender") may:
|
|
(i)
|
assign
any of its rights; or
|
|
(ii)
|
assign
and transfer by assumption of contract (VertragsΓΌbernahme) any
of its rights and obligations,
|
|
|
under
this Agreement to another bank or financial institution (the "New
Lender").
|
|
(b)
|
An
assignment of part of any rights or an assignment and transfer by
assumption of contract (VertragsΓΌbernahme) of
part of any rights and obligations under this Agreement by the Existing
Lender must be in a minimum amount of EUR 10,000,000 (net of any
retransfer).
|
28.2
|
Conditions
of assignment or assignment and transfer by assumption of contract (VertragsΓΌbernahme)
|
|
(a)
|
The
prior written consent of the Company is required for an assignment or an
assignment and transfer by assumption of contract (VertragsΓΌbernahme) by
an Existing Lender, unless the assignment or assignment and transfer by
assumption of contract (VertragsΓΌbernahme) is
to another Lender or an Affiliate of a Lender or unless an Event of
Default has occurred and is
continuing.
|
|
(b)
|
The
consent of the Company to an assignment or assignment and transfer by
assumption of contract (VertragsΓΌbernahme) must
not be unreasonably withheld or delayed. The Company will be deemed to
have given its consent five Business Days after the request of the
Existing Lender has become effective in accordance with Clause 35
(Notices) unless
consent is expressly refused by the Company within that
time.
|
|
(c)
|
An
assignment will only be effective upon acceptance by the Agent of an
otherwise duly completed Assignment Certificate delivered to it by the
Existing Lender and the New Lender. The Agent shall, subject to the
following sentence, as soon as reasonably practical after receipt by it of
a duly completed Assignment Certificate appearing on its face to comply
with the terms of this Agreement and delivered in accordance with the
terms of this Agreement, accept that Assignment Certificate. The Agent
shall only be obliged to accept an Assignment Certificate delivered to it
by the Existing Lender and the New Lender once it is satisfied it has
complied with all necessary βknow your customerβ or other similar checks
under all applicable laws and regulations in relation to the assignment to
such New Lender.
|
|
(d)
|
An
assignment and transfer by assumption of contract (VertragsΓΌbernahme) will
only be effective if the procedure set out in Clause 28.5 (Procedure for assignment and
transfer by assumption of contract (VertragsΓΌbernahme)) is
complied with.
|
|
(e)
|
If:
|
|
(i)
|
a
Lender assigns or assigns and transfers by assumption of contract (VertragsΓΌbernahme) 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, assignment
and transfer by assumption of contract (VertragsΓΌbernahme) 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 17
(Tax gross-up and
indemnities) or Clause 18 (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, assignment and transfer by assumption
of contract (VertragsΓΌbernahme) or
change had not occurred, provided that
this Clause 28.2(e) shall not prevent an Obligor from being
required to pay an increased amount under Clause 17 (Tax gross-up and
indemnities) to a Lender which is a Qualifying Lender under
paragraph (ii) of that definition (subject to the completion of procedural
formalities where such Qualifying Lender is a Treaty
Lender).
|
|
(f)
|
Notwithstanding
any other term of this Agreement, each Lender shall ensure that at all
times its Overall Commitment is not less
than:
|
|
(i)
|
its
Euro Swingline Commitment; or
|
|
(ii)
|
if
it does not have a Euro Swingline Commitment, the Euro Swingline
Commitment of a Lender which is its
Affiliate.
|
Each
Lender changing its Facility Office and each New Lender shall, on the date upon
which the change of the Facility Office or an assignment or assignment and
transfer by assumption of contract (VertragsΓΌbernahme)
takes effect, pay to the Agent (for its own account) a fee of
EUR 1,750.
|
(a)
|
Unless
expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
|
|
(i)
|
the
legality, validity, effectiveness, adequacy or enforceability of the
Finance Documents or any other
documents;
|
|
(ii)
|
the
financial condition of any Obligor;
|
|
(iii)
|
the
performance and observance by any Obligor of its obligations under the
Finance Documents or any other documents;
or
|
|
(iv)
|
the
accuracy of any statements (whether written or oral) made in or in
connection with any Finance Document or any other
document,
|
|
|
and
any representations or warranties implied by law are
excluded.
|
|
(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-assignment or a re-assignment and re-transfer by assumption of
contract (VertragsΓΌbernahme) from
a New Lender of any of the rights and obligations assigned or assigned and
transferred by assumption of contract (VertragsΓΌbernahme)
under this Clause 28; or
|
|
(ii)
|
support
any losses directly or indirectly incurred by the New Lender by reason of
the non-performance by any Obligor of its obligations under the Finance
Documents or otherwise.
|
|
(a)
|
Subject
to the conditions set out in Clause 28.2 (Conditions of assignment or
assignment and transfer by assumption of contract (VertragsΓΌbernahme)) an
assignment and transfer by assumption of contract (VertragsΓΌbernahme) is
effected in accordance with paragraph (c) below when the Agent accepts an
otherwise duly completed Transfer Certificate delivered to it by the
Existing Lender and the New Lender. The Agent shall, subject to paragraph
(b) below, 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, accept that Transfer
Certificate.
|
|
(b)
|
The
Agent shall only be obliged to accept a Transfer Certificate delivered to
it by the Existing Lender and the New Lender once it is satisfied it has
complied with all necessary "know your customer" or other similar checks
under all applicable laws and regulations in relation to the transfer to
such New Lender.
|
|
(c)
|
On
the Transfer Date:
|
|
(i)
|
to
the extent that in the Transfer Certificate the Existing Lender seeks to
assign and transfer by assumption of contract (VertragsΓΌbernahme) its
rights and obligations under the Finance Documents each of the Obligors
and the Existing Lender shall be released from further obligations towards
one another under the Finance Documents and their respective rights
against one another under the Finance Documents shall be cancelled (being
the "Discharged Rights and
Obligations");
|
|
(ii)
|
each
of the Obligors and the New Lender shall assume obligations towards one
another and/or acquire rights against one another which differ from the
Discharged Rights and Obligations only insofar as that Obligor and the New
Lender have assumed and/or acquired the same in place of that Obligor and
the Existing Lender;
|
|
(iii)
|
the
Agent, the Arranger, the New Lender and the other Lenders and any relevant
Ancillary Lender shall acquire the same rights and assume the same
obligations between themselves as they would have acquired and assumed had
the New Lender been an Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the assignment and transfer by
assumption of contract (VertragsΓΌbernahme) and
to that extent the Agent, the Arranger and any relevant Ancillary Lender
and the Existing Lender shall each be released from further obligations to
each other under the Finance Documents;
and
|
|
(iv)
|
the
New Lender shall become a Party as a
"Lender".
|
The Agent
shall promptly after it has executed a Transfer Certificate or an Assignment
Certificate, send to the Company a copy of that Transfer Certificate or
Assignment Certificate.
|
(a)
|
Each
Finance Party must keep confidential any information supplied to it by or
on behalf of any member of the Group in connection with the Finance
Documents. However, a Finance Party is entitled to disclose
information:
|
|
(i)
|
which
is publicly available, other than as a result of a breach by that Finance
Party of this Clause;
|
|
(ii)
|
in
connection with any legal or arbitration
proceedings;
|
|
(iii)
|
if
required to do so under any law or
regulation;
|
|
(iv)
|
to
its Affiliates and its and their respective officers, employees, auditors
and professional advisers;
|
|
(v)
|
to
the extent allowed under paragraph (b) below;
or
|
|
(vi)
|
with
the prior agreement of the Company.
|
|
(b)
|
Any
Lender may disclose to any of its Affiliates and any other
person:
|
|
(i)
|
to
(or through) whom that Lender assigns or assigns and transfers by
assumption of contract (VertragsΓΌbernahme) (or
may potentially assign or assign and transfer by assumption of contract
(VertragsΓΌbernahme)) all
or any of its rights and obligations under this
Agreement;
|
|
(ii)
|
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
|
|
(iii)
|
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 sub-paragraphs (i) and (ii)
above, the person to whom the information is to be given has entered into a
Confidentiality Undertaking. Any Lender may also disclose the size and term of
the Facilities and the name of each of the Obligors to any investor or potential
investor in a securitization (or similar transaction of broadly equivalent
economic effect) of that Lender's rights or obligations under the Finance
Documents.
29.1
|
Assignments and transfers by Obligors
|
No
Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
29.2
|
Additional
Borrowers
|
|
(a)
|
Subject
to compliance with the provisions of paragraphs (c) and (d) of Clause 24.8
("Know your customer"
checks), the Company may request that any other member of the Group
becomes an Additional Borrower (Vertragsbeitritt). That
other member of the Group shall become an Additional Borrower
if:
|
|
(i)
|
it
is Bidco or all the Lenders approve the addition of that other member of
the Group (such approval not to be unreasonably withheld or
delayed);
|
|
(ii)
|
the
Company delivers to the Agent a duly completed and executed Accession
Letter;
|
|
(iii)
|
the
Company confirms that no Default is continuing or would occur as a result
of that member of the Group becoming an Additional Borrower;
and
|
|
(iv)
|
the
Agent has received all of the documents and other evidence listed in Part
III of Schedule 2 (Conditions precedent)
in relation to that Additional Borrower, each in form and substance
satisfactory to the Agent.
|
|
(b)
|
The
Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part III of Schedule 2
(Conditions
precedent).
|
29.3
|
Resignation
of a Borrower
|
|
(a)
|
The
Company may request that a Borrower (other than the Company) ceases to be
a Borrower by delivering to the Agent a Resignation
Letter.
|
|
(b)
|
The
Agent shall accept a Resignation Letter and notify the Company and the
Lenders of its acceptance if such Borrower is under no actual or
contingent obligations as a Borrower under any Finance
Documents,
|
|
|
at
which time that entity shall cease to be a Borrower and shall have no
further rights or obligations under the Finance
Documents.
|
29.4
|
Repetition
of Representations
|
Delivery
of an Accession Letter constitutes confirmation by the relevant member of the
Group that the Repeated Representations are true and correct in relation to it
as at the date of delivery as if made by reference to the facts and
circumstances then existing.
SECTION
10
THE
FINANCE PARTIES
30.1
|
Appointment
of the Agent
|
|
(a)
|
Each
other Finance Party appoints the Agent to act as its agent and attorney
(Stellvertreter)
under and in connection with the Finance
Documents.
|
|
(b)
|
Each
other Finance Party authorises the Agent to exercise the rights, powers,
authorities and discretions specifically given to the Agent under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and
discretions.
|
|
(c)
|
Each
other Finance Party hereby relieves the Agent from the restrictions
pursuant to section 181 Civil Code (BΓΌrgerliches
Gesetzbuch) and similar restrictions applicable to it pursuant to
any other applicable law, in each case to the extent legally possible to
such Finance Party. A Finance Party which is barred by its constitutional
documents or by-laws from granting such exemption shall notify the Agent
accordingly.
|
30.2
|
Duties
of the Agent
|
|
(a)
|
The
Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the 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 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 other Finance
Parties.
|
|
(d)
|
If
the 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 or the Arranger) under this Agreement it shall promptly notify the
other Finance Parties.
|
|
(e)
|
The
Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
|
30.3
|
Role
of the Arranger
|
Except as
specifically provided in the Finance Documents, the Arranger has no obligations
of any kind to any other Party under or in connection with any Finance
Document.
30.4
|
No
fiduciary duties
|
|
(a)
|
Nothing
in this Agreement constitutes the Agent or the Arranger as a trustee
(TreuhΓ€nder) of
any other person. Neither of the Agent nor the Arranger have any financial
or commercial duty of care (VermΓΆgensfΓΌrsorgepflicht)
for any person.
|
|
(b)
|
Neither
the Agent nor the Arranger or any Ancillary Lender 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.
|
30.5
|
Business
with the Group
|
The
Agent, the Arranger and each Ancillary Lender may accept deposits from, lend
money to and generally engage in any kind of banking or other business with any
member of the Group.
30.6
|
Rights
and discretions of the Agent
|
|
(a)
|
The
Agent may rely on:
|
|
(i)
|
any
representation, notice or document believed by it to be genuine, correct
and appropriately authorised (including, without limitation, any
countersignature by the Financial Advisor);
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 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 27.1 (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 Company (other than a Utilisation Request or
Selection Notice) is made on behalf of and with the consent and knowledge
of all the Obligors.
|
|
(c)
|
The
Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other
experts.
|
|
(d)
|
The
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)
|
Notwithstanding
any other provision of any Finance Document to the contrary, neither the
Agent nor the 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
regulation or a breach of a fiduciary duty or duty of
confidentiality.
|
30.7
|
Majority Lenders'
instructions
|
|
(a)
|
Unless
a contrary indication appears in a Finance Document, the Agent shall (i)
exercise any right, power, authority or discretion vested in it as 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) 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 may refrain from acting in accordance with the instructions of the
Majority Lenders (or, if appropriate, the Lenders) until it has received
such security as it may require for any cost, loss or liability (together
with any associated VAT) which it may incur in complying with the
instructions.
|
|
(d)
|
In
the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the
Lenders.
|
|
(e)
|
The
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.
|
30.8
|
Responsibility
for documentation
|
Neither
the Agent nor the Arranger or any Ancillary Lender is responsible
for:
|
(a)
|
the
adequacy, accuracy and/or completeness of any information (whether oral or
written) provided by the Agent, the Arranger, an Ancillary Lender, an
Obligor or any other person given in or in connection with any Finance
Document, the Information Memorandum or the transactions contemplated by
the Finance Documents; or
|
|
(b)
|
the
legality, validity, effectiveness, adequacy or enforceability of any
Finance Document or any other agreement, arrangement or document entered
into, made or executed in anticipation of or in connection with any
Finance Document.
|
30.9
|
Exclusion
of liability
|
|
(a)
|
Without
limiting paragraph (b) below, none of the Agent or any Ancillary Lender
will not be liable for any action taken by it under or in connection with
any Finance Document, unless directly caused by its gross negligence or
wilful misconduct.
|
|
(b)
|
No
Party (other than the Agent or an Ancillary Lender) may take any
proceedings against any officer, employee or agent of the Agent in respect
of any claim it might have against the Agent or an Ancillary Lender or in
respect of any act or omission of any kind by that officer, employee or
agent in relation to any Finance Document and any officer, employee or
agent of the Agent and any Ancillary Lender may rely on this Clause
pursuant to section 328 para 1 Civil Code (BΓΌrgerliches
Gesetzbuch) (echter berechtigender Vertrag
zugunsten Dritter).
|
|
(c)
|
The
Agent will not 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 if the 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 for that purpose.
|
|
(d)
|
Nothing
in this Agreement shall oblige the Agent or the Arranger to carry out any
"know your customer" or other checks in relation to any person on behalf
of any Lender and each Lender confirms to the Agent and the Arranger that
it is solely responsible for any such checks it is required to carry out
and that it may not rely on any statement in relation to such checks made
by the Agent or the Arranger.
|
30.10
|
Lenders'
indemnity to the 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 the Agent, within three
Business Days of demand, against any cost, loss or liability incurred by the
Agent (otherwise than by reason of the Agent's gross negligence or wilful
misconduct) in acting as Agent under the Finance Documents (unless the Agent has
been reimbursed by an Obligor pursuant to a Finance Document).
30.11
|
Resignation
of the Agent
|
|
(a)
|
The
Agent may resign and appoint one of its Affiliates acting through an
office London, Luxembourg or Germany as successor by giving notice to the
other Finance Parties and the
Company.
|
|
(b)
|
Alternatively
the Agent may resign by giving notice to the other Finance Parties and the
Company, in which case the Majority Lenders (after consultation with the
Company) may appoint a successor
Agent.
|
|
(c)
|
If
the Majority Lenders have not appointed a successor Agent in accordance
with paragraph (b) above within 30 days after notice of resignation was
given, the Agent (after consultation with the Company) may appoint a
successor Agent acting through an office in London, Luxembourg or
Germany).
|
|
(d)
|
The
retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as Agent under the Finance
Documents.
|
|
(e)
|
The
Agent's resignation notice shall only take effect upon the appointment of
a successor.
|
|
(f)
|
Upon
the appointment of a successor, the retiring Agent shall be discharged
from any further obligation in respect of the Finance Documents but shall
remain entitled to the benefit of this Clause 30. 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 Company, the Majority Lenders may, by notice to the
Agent, require it to resign in accordance with paragraph (b) above. In
this event, the Agent shall resign in accordance with paragraph (b)
above.
|
30.12
|
|
(a)
|
In
acting as agent for the Finance Parties, the 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, it
may be treated as confidential to that division or department and the
Agent shall not be deemed to have notice of
it.
|
|
(a)
|
The
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).
|
Without
affecting the responsibility of any Obligor for information supplied by it or on
its behalf in connection with any Finance Document, each Lender and Ancillary
Lender confirms to the Agent, the Arranger and each Ancillary Lender 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 any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection with any
Finance Document;
|
|
(c)
|
whether
that Lender has recourse, and the nature and extent of that recourse,
against any Party or any of its respective assets under or in connection
with any Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered into,
made or executed in anticipation of, under or in connection with any
Finance Document; and
|
|
(d)
|
the
adequacy, accuracy and/or completeness of the Information Memorandum and
any other information provided by the 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.
|
30.15
|
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 (in consultation with
the Company) appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.
30.16
|
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.
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.
|
32.1
|
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) 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).
|
32.2
|
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).
32.3
|
Recovering
Finance Party's rights
|
|
(a)
|
On
a distribution by the Agent under Clause 32.2 (Redistribution of
payments), the Recovering Finance Party shall be entitled to
receive by way of assignment the rights of the Finance Parties to the
extent they have shared in the
redistribution.
|
|
(b)
|
If
and to the extent that the Recovering Finance Party is not able to rely on
its rights under paragraph (a) above, the relevant Obligor shall be liable
to the Recovering Finance Party for a debt equal to the Sharing Payment
which is immediately due and
payable.
|
32.4
|
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 32.2 (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)
|
that
Recovering Finance Party's rights of assignment in respect of any
reimbursement shall be cancelled and the relevant Obligor will be liable
to the reimbursing Finance Party for the amount so reimbursed and the
Recovering Finance Party shall re-assign any claims assigned to it
pursuant to paragraph (a) of Clause 32.3 (Recovering Finance Party's
rights).
|
32.5
|
Exceptions
|
|
(a)
|
This
Clause 32 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.
|
32.6
|
Ancillary
Lenders
|
|
(a)
|
This
Clause 32 shall not apply to any of Deutsche Bank AG or The Royal Bank of
Scotland plc in their capacity as an Ancillary Lender at any time prior to
service of notice under Clause 27.15 (Acceleration).
|
|
(b)
|
Following
service of notice under Clause 27.15 (Acceleration), this
Clause 32 shall apply, in mutatis mutandis
application, in respect of the distribution of payments by any
Obligor amongst the Lenders (including the Ancillary
Lenders).
|
SECTION
11
ADMINISTRATION
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 and in any
case in good time to allow the Agent to make available such amount to the
Party entitled to receive payment in accordance with this Agreement on the
due date for such payment. Irrevocably crediting of such payment on to the
Agent's account shall discharge the relevant Obligors payment
obligation.
|
|
(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),
Clause 33.4 (Clawback)
and Clause 30.16 (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 Arranger under the Finance
Documents;
|
|
(ii)
|
secondly, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under this
Agreement;
|
|
(iii)
|
thirdly, in or towards payment pro rata of any
principal due but unpaid under this Agreement;
and
|
|
(iv)
|
fourthly, in or towards payment pro rata of any other
sum due but unpaid under the Finance
Documents.
|
|
(b)
|
The
Agent shall, if so directed by the Majority Lenders, vary the order set
out in paragraphs (a)(ii) to (iv)
above.
|
|
(c)
|
Paragraphs
(a) and (b) above will override any appropriation made by 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 unless the counterclaim is undisputed or has been confirmed in a
final non-appealable judgment.
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 (e) 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 of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued.
|
|
(d)
|
Each
payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are
incurred.
|
|
(e)
|
Any
amount expressed to be payable in a currency other than the Base Currency
shall be paid in that other
currency.
|
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 Company);
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
Company) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the European
interbank market and otherwise to reflect the change in
currency.
|
34.
|
Subject
to Clause 4.5 (Utilisations during the Certain Funds Period), a Finance Party
may set off any matured obligation due from an Obligor under the Finance
Documents against any satisfiable (erfΓΌllbar) obligation within
the meaning of section 387 Civil Code (BΓΌrgerliches Gesetzbuch) 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.
|
35.1
|
Communications
in writing
|
Any
communication to be made under or in connection with the Finance Documents shall
be made in writing and, unless otherwise stated, may be made by fax or
letter.
35.2
|
Addresses
|
The
address and fax number (and the department or officer, if any, for whose
attention the communication is to be made) of each Party for any communication
or document to be made or delivered under or in connection with the Finance
Documents is:
|
(a)
|
in
the case of the Company, that identified with its name
below;
|
|
(b)
|
in
the case of each Lender, Ancillary Lender or any other Obligor, 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, that identified with its name
below,
|
or any
substitute address or fax 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 when
received (zugegangen), in
particular:
|
|
(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,
|
|
|
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 will be
effective only when actually received by the Agent and then only if it is
expressly marked for the attention of the department or officer identified
with the Agent's signature below (or any substitute department or officer
as the Agent shall specify for this
purpose).
|
|
(c)
|
All
notices from or to an Obligor shall be sent through the
Agent.
|
|
(d)
|
Any
communication or document by the Finance Parties or the Obligors may be
made or delivered to the Company for its own account and for the account
of the Obligors. For that purpose each Obligor appoints the Company as its
agent of receipt (Empfangsvertreter).
|
35.4
|
Notification
of address and fax number
|
Promptly
upon receipt of notification of an address or fax number or change of address or
fax number pursuant to Clause 35.2 (Addresses) or changing its
own address or fax number, the Agent shall notify the other
Parties.
|
(a)
|
Any
communication to be made between the 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 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 and a Lender will be
effective only when actually received in readable form and in the case of
any electronic communication made by a Lender to the Agent only if it is
addressed in such a manner as the Agent shall specify for this
purpose.
|
35.6
|
|
(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 (with respect to any document other than any corporate
documents referred to in Schedule 2 (Conditions Precedent)
in the original language) and accompanied by a English translation
(certified if so required by the Agent), it being understood that the
Finance Parties can rely on the correctness of any translation delivered
by or on behalf of any member of the Group without any further
investigation.
|
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 (Beweis des ersten Anscheins)
evidence of the matters to which they relate.
36.2
|
Certificates
and Determinations
|
|
(a)
|
The
Finance Parties make the certifications or determinations of a rate or
amount under any Finance Document in the exercise of their unilateral
right to specify performance (einseitiges
Leistungsbestimmungsrecht) which they will exercise with reasonable
discretion (billiges
Ermessen).
|
|
(b)
|
The
Parties agree not to dispute in any legal proceeding the correctness of
the determinations and certifications of a rate or amount made by a
Finance Party under any Finance Document unless the determinations or
certifications are inaccurate on their face or fraud can be
shown.
|
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 European
interbank market differs, in accordance with that market practice.
The
Parties agree that should at any time, any provisions of this Agreement be or
become void (nichtig),
invalid or due to any reason ineffective (unwirksam) this will
indisputably (unwiderlegbar) not affect the
validity or effectiveness of the remaining provisions and this Agreement will
remain valid and effective, save for the void, invalid or ineffective
provisions, without any Party having to argue (darlegen) and prove (beweisen) the Parties intent
to uphold this Agreement even without the void, invalid or ineffective
provisions.
The void,
invalid or ineffective provision shall be deemed replaced by such valid and
effective provision that in legal and economic terms comes closest to what the
Parties intended or would have intended in accordance with the purpose of this
Agreement if they had considered the point at the time of conclusion of this
Agreement.
No
failure to exercise, nor any delay in exercising, on the part of any Finance
Party, any right or remedy under the Finance Documents shall operate as a
waiver, nor shall any single or partial exercise of any right or remedy prevent
any further or other exercise or 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.
39.1
|
|
(a)
|
Subject
to Clause 39.2 (Exceptions) 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 may effect, on behalf of any Finance Party, any amendment or waiver
permitted by this Clause.
|
39.2
|
|
(a)
|
An
amendment or waiver that has the effect of changing or which relates
to:
|
|
(i)
|
the
definition of "Majority Lenders" in Clause 1.1 (Definitions);
|
|
(ii)
|
an
extension to the date of payment of any amount under the Finance
Documents;
|
|
(iii)
|
a
reduction in the Margin or a reduction in the amount of any payment of
principal, interest, fees or commission
payable;
|
|
(iv)
|
an
increase in or an extension of any
Commitment;
|
|
(v)
|
a
change to the Borrowers other than in accordance with Clause 29 (Changes to the
Obligors);
|
|
(vi)
|
any
provision which expressly requires the consent of all the
Lenders;
|
|
(vii)
|
Clause
2.3 (Finance Parties'
rights and obligations), Clause 28 (Changes to the Lenders)
or this Clause 39,
|
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 Arranger or any Ancillary Lender may not be effected without
the consent of the Agent, the Arranger or that Ancillary Lender as the
case may be.
|
|
(c)
|
Any
amendment or waiver which relates to the rights or obligations applicable
to a particular Facility and which does not adversely affect the rights or
interests of Lenders in respect of other Facilities shall only require the
consent of the Majority Lenders as if references in this clause to "Lenders" were only to Lenders
participating in that Facility.
|
|
(a)
|
If
at any time any Lender becomes a Non-Consenting Lender (as defined in
paragraph (c) below) then the Company may, on ten Business Days' prior
written notice to the Agent and such Lender, replace such Lender by
requiring such Lender to (and such Lender shall) transfer pursuant to
Clause 28 (Changes to
the Lenders) all (and not part only) of its rights and obligations
under this Agreement to a Lender or other bank or financial institution,
or other entity unrelated to and not affiliated with any member of the
Group (a "Replacement Lender")
selected by the Company, which confirms its willingness to assume and does
assume all the obligations of the transferring Lender (including the
assumption of the transferring Lender's participations on the same basis
as the transferring Lender) for a purchase price in cash payable at the
time of transfer equal to the outstanding principal amount of such
Lender's participation in the outstanding Loans and all accrued interest
and/or Break Costs and other amounts payable in relation thereto under the
Finance Documents.
|
|
(b)
|
The
replacement of a Lender pursuant to this Clause shall be subject to the
following conditions:
|
|
(i)
|
the
Company shall have no right to replace the Agent (in such
capacity);
|
|
(ii)
|
neither
the Agent nor the Lender shall have any obligation to the Company to find
a Replacement Lender;
|
|
(iii)
|
in
the event of a replacement of a Non-Consenting Lender such replacement
must take place no later than 30 Business Days after the date the
Non-Consenting Lender notifies the Company and the Agent of its failure or
refusal to agree to any consent, waiver or amendment to the Finance
Documents requested by the Company;
and
|
|
(iv)
|
in
no event shall the Lender replaced under this paragraph (b) be required to
pay or surrender to such Replacement Lender any of the fees received by
such Lender pursuant to the Finance
Documents.
|
|
(c)
|
In
the event that:
|
|
(i)
|
the
Company or the Agent (at the request of the Company) has requested the
Lenders to consent to a waiver or amendment of any provisions of the
Finance Documents;
|
|
(ii)
|
the
waiver or amendment in question requires the consent of all the Lenders;
and
|
|
(iii)
|
Lenders
whose Commitments aggregate more than 85 per cent. of the Total
Commitments (or, if the Total Commitments have been reduced to zero,
aggregated more than 85 per cent of the Total Commitments prior to
that reduction) have consented to such waver or
amendment,
|
|
|
then
any Lender who does not and continues not to agree to such waiver or
amendment shall be deemed a "Non-Consenting
Lender".
|
Each
Borrower confirms that in entering into this Agreement it is acting for its own
account and that it and its Subsidiaries will be the sole economic beneficiaries
of the funds within the meaning of section 8 of the Money Laundering Act (GeldwΓ€schegesetz).
SECTION
12
GOVERNING
LAW AND ENFORCEMENT
41.
|
This
Agreement is governed by German law.
42.
|
42.1
|
Jurisdiction
|
|
(a)
|
The
courts of Frankfurt am Main, Germany 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, Germany are the most
appropriate and convenient courts to settle Disputes and accordingly no
Party will argue to the contrary.
|
|
(c)
|
This
Clause 42.1 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.
|
42.2
|
Service
of process
|
|
(a)
|
Without
prejudice to any other mode of service allowed under any relevant law,
each Obligor (other than an Obligor incorporated in
Germany):
|
|
(i)
|
irrevocably
appoints the Company (the "Process
Agent") as its agent for service of process in relation to any
proceedings before the German courts in connection with any Finance
Document;
|
|
(ii)
|
agrees
that failure by a Process Agent to notify the relevant Obligor of the
process will not invalidate the proceedings concerned;
and
|
|
(iii)
|
undertakes
to deliver to the Process Agent without undue delay upon execution of this
Agreement a process agent appointment letter (the "Process Agent Appointment Letter")
substantially in the form of Schedule 12 (Form of Process Agent
Appointment Letter) and to send a copy of the executed Process
Agent Appointment Letter to the
Agent.
|
|
(b)
|
The
Process Agent hereby acknowledges the appointment. The Process Agent shall
ensure that documents to be served to an Obligor may validly be served by
delivery to the Process Agent. In particular, the Process Agent shall
notify the Agent of any change of address, accept any documents delivered
to it on behalf of an Obligor and fulfil any requirements of section 171
Code of Civil Procedure (Zivilprozessordnung),
in particular present the original Process Agent Appointment Letter to any
person effecting the service of process as required pursuant to section
171 sentence 2 Code of Civil Procedure (Zivilprozessordnung).
|
43.1
|
The
Parties to this Agreement may choose to conclude this Agreement by an
exchange of signed signature page(s), transmitted by means of
telecommunication (telekommunikative
Γbermittlung) by way of fax or attached as an electronic photocopy
(pdf., tif., etc.) to electronic mail.
|
43.2
|
If
the Parties to this Agreement choose to conclude this Agreement in
accordance with sub-clause 43.1 above, they will transmit the signed
signature page(s) of this Agreement to Xxx. Xxxxxxx Xxxxxxxxxx/Xxx. Xxxx
Xxxxxxxxxx, Xxxxxxxx Chance Partnerschaftsgesellschaft (the "Recipient"). The Agreement will be
considered concluded once the Recipient has actually received the signed
signature page(s) (Zugang der
Unterschriftsseite(n)) from all Parties to this Agreement and at
the time of the receipt of the last outstanding signature
page(s).
|
43.3
|
For
the purposes of this Clause 43 only, the Parties to this Agreement appoint
the Recipient as agent of receipt (Empfangsvertreter) and
expressly allow (gestatten) the
Recipient to collect the signed signature page(s) from all and for all
Parties to this Agreement. For the avoidance of doubt, the Recipient will
have no further duties connected with its position as Recipient. In
particular, the Recipient may assume the conformity to the authentic
original(s) of the signature page(s) transmitted to it by means of
telecommunication, the genuineness of all signatures on the original
signature page(s) and the signing authority of the
signatories.
|
This
Agreement has been entered into on the date stated at the beginning of this
Agreement.
The
Original Parties
The
Original Obligors
Name
of Original Borrowers
|
Registration
number (or equivalent, if any)
|
Local
court (Amtsgericht) of
Mannheim, HRB 330082
|
|
HeidelbergCement
Finance B.V.,
with
official seat in 's-Hertogenbosch, The Netherlands
|
The
Netherlands,
Chamber
of Commerce and Industry, 33232885
|
Name
of Guarantor
|
Registration
number (or equivalent, if any)
|
Local
court (Amtsgericht) of
Xxxxxxxx, XXX 000000
|
The
Original Lenders
Name
of
Original
Lender
|
Facility
A
Commitment
(GBP)
|
Facility
B
Commitment
(GBP)
|
Facility
C
Commitment
(EUR)
|
Revolving
Facility
Commitment
(EUR)
|
Deutsche
Bank Luxembourg S.A.
|
1,809,567,901
|
1,161,111,111
|
814,814,815
|
339,506,173
|
The
Royal Bank of Scotland plc, Niederlassung Frankfurt
|
3,520,432,099
|
2,258,888,889
|
1,585,185,185
|
660,493,827
|
Total
|
5,330,000,000
|
3,420,000,000
|
2,400,000,000
|
1,000,000,000
|
The
Original Euro Swingline Lenders
Name
of Original Euro Swingline Lender
|
Euro
Swingline Commitment
(EUR)
|
Deutsche
Bank Luxembourg S.A.
The
Royal Bank of Scotland plc, Niederlassung Frankfurt
|
169,753,086
330,246,914
|
|
Conditions
Precedent
Conditions
Precedent to signing
1.
|
Original
Obligors
|
|
(a)
|
In
relation to the Company an up-to-date commercial register extract (Handelsregisterauszug)
of recent date and its up-to-date articles of association (Satzung).
|
|
(b)
|
A
copy of the articles of association (statuten) and deed of
incorporation (oprichtingsakte) of
each Dutch Borrower, as well as an extract (uittreksel) from the
relevant Chamber of Commerce (Xxxxx van Koophandel)
of such Dutch Borrower(s).
|
|
(c)
|
A
specimen of the signature of each member of the board of managing
directors of each Dutch Borrower which will sign this Agreement on behalf
of such Dutch Borrower(s).
|
|
(d)
|
A
specimen of the signature of each person authorised to execute any Finance
Document and other documents and notices (including, if relevant, any
Utilisation Request and Selection Notice) to be signed and/or despatched
by it under or in connection with the Finance Documents to which it is a
party.
|
|
(e)
|
A
certificate of an authorised signatory of the relevant Original Obligor
certifying that each copy document relating to it specified in this Part I
of this Schedule 2 is correct, complete and in full force and effect as at
a date no earlier than the date of this
Agreement.
|
2.
|
Legal
opinions
|
|
(a)
|
A
legal opinion of Xxxxxxxx Chance, legal advisers to the Arranger and the
Agent in Germany and The Netherlands, substantially in the form
distributed to the Original Lenders prior to signing this Agreement (other
than as the legal matters covered by the Borrower's counsel pursuant to
paragraph (b) below).
|
|
(b)
|
A
legal opinion of Hengeler Xxxxxxx, legal adviser to the Company in Germany
confirming that all German Obligors are duly authorised and validly
executed the relevant Finance Document to which they are a
party.
|
|
(c)
|
A
draft legal opinion of De Brauw Blackstone Westbroek, legal adviser to the
Company in the Netherlands, confirming that each Dutch Borrower is duly
authorised and validly executed the relevant Finance Document to which it
is a party.
|
3.
|
Finance
Documents
|
The Fee
Letters executed by the Company.
4.
|
Financial
information
|
|
(a)
|
Copies
of:
|
|
(i)
|
the
Original Financial Statements;
|
|
(ii)
|
(if
and to the extent prepared and available to the Company) the most recent
(i) unaudited quarterly consolidated, (ii) audited annual consolidated and
(iii) audited annual unconsolidated financial statements of Target;
and
|
|
(iii)
|
the
agreed business plan.
|
|
(b)
|
Evidence
that the outcome of the rating assessment services is that the long-term
unsecured debt of the Company (under the scenario presented by the
Company) would be rated at least Baa3, respectively BBB- by Xxxxx'x and
Xxxxx.
|
5.
|
Corporate
information
|
|
(a)
|
The
Group Structure Chart which shows the Group before the
Acquisition.
|
|
(b)
|
The
Specified Disposals Letter executed by the
Company.
|
Conditions
Precedent to funding
Acquisition
Documents
(a)
|
A
Certificate of the Company in the agreed form (signed by two directors)
certifying that:
|
|
(i)
|
no
breach of paragraphs (a), (b), (c), (f) and/or (h) of Clause 26.15 (Acquisition-related
undertakings) has occurred;
|
|
(ii)
|
the
Offer Document or, as applicable, the Scheme Document contains all the
material terms of the Offer or
Scheme;
|
|
(iii)
|
the
amounts to be drawn under the Term Facilities (together with the amount of
any cash of any member of the Group to be used for that purpose, if any)
are sufficient to pay the purchase price for the Target Shares or the
amount due under the Scheme;
|
|
(iv)
|
the
first utilisation(s) (other than for purposes set out in paragraph
(a)(viii) of Clause 3.1 (Purpose)) will be
applied in accordance with Clause 3.1 (Purpose);
and
|
|
(v)
|
the
Unconditional Date or, as applicable, the Scheme Date has
occurred.
|
(b)
|
The
final draft Press Release setting out, that the Offer or Scheme has been
initially recommended by the board of Target, and in the case of an Offer
with a minimum acceptance threshold of
75%.
|
(c)
|
A
copy of the Offer Document or Scheme Document (as the case may be) which,
provided that, save as permitted
under this Agreement, it does not deviate materially from the relevant
draft Press Release provided prior to the delivery of the first
Utilisation Request to fund the acquisition of the Target Shares pursuant
to the Offer or Scheme, is not required to be in form and substance
satisfactory to the Agent.
|
(d)
|
Any
Press Release issued after the delivery of an Offer Conversion Notice
(which, provided it does not (save to the extent permitted under this
Agreement) deviate materially from the terms set out in the Scheme Press
Release save to the extent required to take into account the Acquisition
being made by way of an Offer rather than a Scheme, is not required to be
in form or substance satisfactory to the
Agent).
|
(e)
|
A
copy of the inter-company loan from HeidelbergCement Finance B.V. to Bidco
pursuant to which the proceeds of the relevant part of the Term Facilities
will be on lent to Bidco.
|
Other
documents and evidence
(a)
|
Evidence
that all fees, costs and expenses then due from the Company pursuant to
Clause 16 (Fees) and Clause 21
(Costs and
Expenses) have been paid or will be paid on or by the relevant
Utilisation Date.
|
(b)
|
Evidence
of the prior or simultaneous cancellation and full repayment (except as
provided below) of the following
facilities:
|
|
(i)
|
the
Existing 2004 Facility (as amended from time to time);
and
|
|
(ii)
|
the
DB Facility,
|
it being
understood that this evidence shall be deemed to have been provided in form and
substance satisfactory to the Agent upon receipt by the Agent of the
following:
|
(1)
|
in
relation to the Existing 2004 Facility, a copy of a duly executed
prepayment and cancellation notice in the agreed form and delivery of a
duly executed Utilisation Request for any amount outstanding thereunder on
the proposed Utilisation Date for the first utilisation to fund the Offer
or, as the case may be, Scheme; and
|
|
(2)
|
in
relation to the DB Facility delivery of a duly executed Utilisation
Request for an amount equal to the amount notified to the Agent by
Deutsche Bank Luxembourg S.A. as being the amount outstanding on the
proposed Utilisation Date for the first utilisation to fund the Offer or,
as the case may be, Scheme.
|
(c)
|
The
following in relation to a Scheme (which are not required to be in form
and substance to the satisfaction of the
Agent):
|
|
(i)
|
a
certified copy of the shareholder resolution approving the
Scheme;
|
|
(ii)
|
a
certified copy of the Implementation
Agreement;
|
|
(iii)
|
a
certified copy of the Court Order sanctioning the
Scheme;
|
|
(iv)
|
a
certified copy of the Court Order sanctioning the
Reduction;
|
|
(v)
|
evidence
that the Court Order sanctioning the Scheme and the Reduction has been
filed with, and registered by, the Registrar of Companies for England and
Wales; and
|
|
(vi)
|
a
certified copy of the certificate issued by the Registrar of Companies
under Section 138 of the Companies Xxx 0000 in relation to the
Reduction.
|
(d)
|
A
copy of the executed legal opinion by De Brauw Blackstone Westbroek
referred to in item 2(c) of Part I of this Schedule 2 which, if it does
not deviate from the draft delivered pursuant to item 2(c) of Part I of
this Schedule 2, does not have to be in form and substance satisfactory to
the Agent.
|
Conditions
Precedent required to be
delivered
by an Additional Borrower
1.
|
An
Accession Letter, duly executed by the Additional Borrower and the
Company.
|
2.
|
In
relation to an Additional Borrower incorporated or established in Germany
an up-to-date commercial register extract (Handelsregisterauszug)
of recent date, its up-to-date articles of association (Satzung) or partnership
agreement (Gesellschaftsvertrag),
copies of any by-laws as well as a list of shareholders (Gesellschafterliste)
(if applicable). In relation to an Additional Borrower incorporated in a
jurisdiction than other than Germany a copy of its constitutional
documents.
|
3.
|
In
relation to an Additional Borrower incorporated or established in Germany
a copy of a resolution signed by all the holders of the issued shares in
such Additional Borrower and/or if applicable a copy of a resolution of
the supervisory board (Aufsichtsrat) and/or if
applicable the advisory board (Beirat) of such
Additional Borrower approving the terms of, and the transactions
contemplated by the Finance Documents. In relation to an Additional
Borrower incorporated in a jurisdiction other than Germany a copy of a
resolution signed by all the holders of the issued shares in each such
Additional Borrower, approving the terms of, and the transactions
contemplated by the Finance
Documents.
|
4.
|
A
copy of a resolution of the board of directors of the Additional
Borrower:
|
|
(a)
|
approving
the terms of, and the transactions contemplated by, the Accession Letter
and the Finance Documents and resolving that it execute the Accession
Letter;
|
|
(b)
|
authorising
a specified person or persons to execute the Accession Letter on its
behalf; and
|
|
(c)
|
authorising
a specified person or persons, on its behalf, to sign and/or despatch all
other documents and notices (including, any Utilisation Request or
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance
Documents.
|
5.
|
A
specimen of the signature of each person authorised to execute any Finance
Document and other documents and notices (including, if relevant, any
Utilisation Request and Selection Notice) to be singed and/or despatched
by it under or in connection with the Finance Documents to which it is a
party by the resolution referred to in paragraph 3
above.
|
6.
|
A
certificate of the Additional Borrower (signed by a director) confirming
that borrowing the Total Commitments would not cause any borrowing limit
binding on it to be exceeded.
|
7.
|
A
certificate of an authorised signatory of the Additional Borrower
certifying that each copy document listed in this Part III of Schedule 2
is correct, complete and in full force and effect as at a date no earlier
than the date of the Accession
Letter.
|
8.
|
A
copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of the transactions contemplated by the
Accession Letter or for the validity and enforceability of any Finance
Document.
|
9.
|
If
available, the latest audited financial statements of the Additional
Borrower.
|
10.
|
A
legal opinion of Xxxxxxxx Chance, legal advisers to the Arranger and the
Agent in Germany.
|
11.
|
A
legal opinion of Hengeler Xxxxxxx, legal advisers to the Company in
Germany.
|
12.
|
If
the Additional Borrower is incorporated in a jurisdiction other than
Germany, a legal opinion of the legal advisers to the Arranger and the
Agent in the jurisdiction in which the Additional Borrower is
incorporated.
|
13.
|
If
the proposed Additional Borrower is incorporated in a jurisdiction other
than Germany, evidence that the process agent specified in Clause 42.2
(Service of
process), if not an Obligor, has accepted its appointment in
relation to the proposed Additional Borrower together with a copy of the
executed Process Agent Appointment Letter in relation to the proposed
Additional Borrower.
|
14.
|
Either
(i) a letter from the Company to the Agent (attaching supporting advice
from the Company's English solicitors) confirming that no Additional
Borrower is prohibited by Section 151 of the Companies Xxx 0000 from
entering into the Finance Documents and/or (ii) evidence that each
Additional Borrower has done all that is necessary (including, without
limitation, by re-registering as a private company) to follow the
procedures set out in Sections 155 to 158 of the Companies Xxx 0000 in
order to enable each Additional Borrower to enter into the Finance
Documents and perform its obligations under the Finance
Documents.
|
Requests
Utilisation
Request β Term and Revolving Facility Loans
From: [name of relevant
Borrower]
To: [Agent]
Dated:
Dear
Sirs
HeidelbergCement AG β
[ ] Facility
Agreement
dated
[ ] (the
"Agreement")
1.
|
We
refer to the Agreement. This is a Utilisation
Request. Terms defined in the Agreement have the same meaning
in this Utilisation Request unless given a different meaning in this
Utilisation Request.
|
2.
|
We
wish to borrow a Loan on the following
terms:
|
Proposed
Utilisation Date:
|
[ ]
(or, if that is not a Business Day, the next Business
Day)
|
Facility
to be utilised:
|
[Facility
[A]/[B]/[C]/[Revolving Facility]*
|
Currency
of Loan:
|
[ ]
|
Amount:
|
[ ]
or, if less, the Available Facility
|
Interest
Period:
|
[ ]
|
3.
|
[We
confirm that no Major Default is continuing and the Major Representations
are true and correct in all material
respects]*
|
4.
|
[We
confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation
Request.]*
|
5.
|
Without
prejudice to Clause 4.5 (Utilisations during the
Certain Funds Period), the Company confirms to each Finance Party
that each of the Repeated Representations is true and correct as at the
date hereof as if made by reference to the facts and circumstances
existing on the date hereof [with the exception of the following Repeating
Representations which are incorrect for the reasons set out below: [list any such representation
and related disclosure in reasonable
detail].
|
6.
|
[The
Company confirms to each Finance Party that the Offer Document or, as
applicable, Scheme Document contains all material terms of the Offer or
Scheme.]*
|
7.
|
The
proceeds of this Loan should be credited to [account].
|
8.
|
This
Utilisation Request is irrevocable.
|
Yours
faithfully
β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦
authorised
signatory for
[name
of relevant Borrower]
β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦
authorised
signatory for
[name of relevant Company]1
*
delete as appropriate
|
1 If
different from the Borrower.
|
Utilisation
Request - Euro Swingline Loans
From: [name of relevant
Borrower]
To: [Agent]
Dated:
Dear
Sirs
HeidelbergCement
AG
-[ ]
Facility Agreement
dated
[ ]
(the "Agreement")
1.
|
We
refer to the Agreement. This is a Utilisation
Request. Terms defined in the Agreement have the same meaning
in this Utilisation Request unless given a different meaning in this
Utilisation Request.
|
2.
|
We
wish to borrow a Euro Swingline Loan on the following
terms:
|
Proposed Utilisation Date:
|
[ ]
(or, if that is not a [Euro Swingline Business Day], the next [Euro
Swingline Business Day])
|
|
Facility to be utilised:
|
Euro
Swingline Facility
|
|
Amount:
|
Euro[ ]
or, if less, the Available Euro Swingline Facility
|
|
Interest Period:
|
[ ]
|
|
3.
|
We
confirm that each condition specified in Clause 7.3(b) (Euro Swingline Lenders'
participation) is satisfied on the date of this Utilisation
Request.
|
4.
|
The
proceeds of this Euro Swingline Loan
should be credited to [account].
|
5.
|
This
Utilisation Request is irrevocable.
|
Yours
faithfully
.........................................................
authorised
signatory for
[name
of relevant Borrower]
Selection
Notice
Applicable
to a Term Loan
From:
[Company on behalf of/[name of
relevant Borrower]
To: [Agent]
Dated:
Dear
Sirs
HeidelbergCement
AG - [ ] Facility Agreement
dated
[ ] (the "Agreement")
1.
|
We
refer to the Agreement. This is a Selection
Notice. Terms defined in the Agreement have the same meaning in
this Selection Notice unless given a different meaning in this Selection
Notice.
|
2.
|
We
refer to the following Facility A/B/C Loan[s] in [identify currency] with
an Interest Period ending on
[ ]*.
|
3.
|
[We
request that the above Facility A/B/C Loan[s] be divided into
[ ]
Facility A/B/C Loans with the following Base Currency Amounts and Interest
Periods:]**
|
or
[We
request that the next Interest Period for the above Facility A/B/C Loan[s] is
[ ]].***
4.
|
We
request that the above Facility A/B/C Loan[s] [is]/[are] [denominated in
the same currency for the next Interest Period]/[denominated in the
following currencies:
[ ].
As this results in a change of currency we confirm that each condition
specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Selection Notice. The
proceeds of any change in currency should be credited to [account].]
.
|
5.
|
The
Company confirms to each Finance Party that each of the Repeated
Representations is true and correct as at the date hereof as if made by
reference to the facts and circumstances existing on the date
hereof.
|
6.
|
This
Selection Notice is irrevocable.
|
|
*
Insert details of all Facility A Loans in the same currency which have an
Interest Period ending on the same
date.
|
|
**
Use this option if division of Loans is
requested.
|
|
***
Use this option if sub-division is not
required.
|
Yours
faithfully
.....................................
authorised
signatory for
[Company
on behalf of/[name of relevant Borrower]
Mandatory
Cost Formulae
1.
|
The
Mandatory Cost is an addition to the interest rate to compensate Lenders
for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central
Bank.
|
2.
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the Agent shall calculate, as a percentage rate, a rate (the "Additional Cost Rate") for each Lender,
in accordance with the paragraphs set out below. The Mandatory Cost will
be calculated by the Agent as a weighted average of the Lenders'
Additional Cost Rates (weighted in proportion to the percentage
participation of each Lender in the relevant Loan) and will be expressed
as a percentage rate per annum.
|
3.
|
The
Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender in its
notice to the Agent to be its reasonable determination of the cost
(expressed as a percentage of that Lender's participation in all Loans
made from that Facility Office) of complying with the minimum reserve
requirements of the European Central Bank in respect of loans made from
that Facility Office.
|
4.
|
The
Additional Cost Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the Agent as
follows:
|
|
(a)
|
in
relation to a sterling Loan:
|
AB + C(B β D)
+ E x 0.01
|
per
cent. per annum
|
100
β (A +
C)
|
|
(b)
|
in
relation to a Loan in any currency other than
sterling:
|
E x 0.01
|
per
cent. per annum.
|
300
|
Where:
|
A
|
is
the percentage of Eligible Liabilities (assuming these to be in excess of
any stated minimum) which that Lender is from time to time required to
maintain as an interest free cash ratio deposit with the Bank of England
to comply with cash ratio
requirements.
|
|
B
|
is
the percentage rate of interest (excluding the Margin and the Mandatory
Cost and, if the Loan is an Unpaid Sum, the additional rate of interest
specified in paragraph (a) of Clause 13.3 (Default interest and lump sum
damages)) payable for the relevant Interest Period on the
Loan.
|
|
C
|
is
the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
|
|
D
|
is
the percentage rate per annum payable by the Bank of England to the Agent
on interest bearing Special
Deposits.
|
|
E
|
is
designed to compensate Lenders for amounts payable under the Fees Rules
and is calculated by the Agent as being the average of the most recent
rates of charge supplied by the Reference Banks to the Agent pursuant to
paragraph 7 below and expressed in pounds per
Β£1,000,000.
|
5.
|
For
the purposes of this Schedule:
|
|
(a)
|
|
(b)
|
"Fees Rules" means the rules on periodic
fees contained in the FSA Supervision Manual or such other law or
regulation as may be in force from time to time in respect of the payment
of fees for the acceptance of
deposits;
|
|
(c)
|
"Fee Tariffs" means the fee tariffs
specified in the Fees Rules under the activity group A.1 Deposit acceptors
(ignoring any minimum fee or zero rated fee required pursuant to the Fees
Rules but taking into account any applicable discount rate);
and
|
|
(d)
|
"Tariff Base" has the meaning given to it
in, and will be calculated in accordance with, the Fees
Rules.
|
6.
|
In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
|
7.
|
If
requested by the Agent, each Reference Bank shall, as soon as practicable
after publication by the Financial Services Authority, supply to the
Agent, the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Rules in respect of the relevant
financial year of the Financial Services Authority (calculated for this
purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed
in pounds per Β£1,000,000 of the Tariff Base of that Reference
Bank.
|
8.
|
Each
Lender shall supply any information required by the Agent for the purpose
of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information on or prior
to the date on which it becomes a
Lender:
|
|
(a)
|
the
jurisdiction of its Facility Office;
and
|
|
(b)
|
any
other information that the Agent may reasonably require for such
purpose.
|
Each
Lender shall promptly notify the Agent of any change to the information provided
by it pursuant to this paragraph.
9.
|
The
percentages of each Lender for the purpose of A and C above and the rates
of charge of each Reference Bank for the purpose of E above shall be
determined by the Agent based upon the information supplied to it pursuant
to paragraphs 7 and 8 above and on the assumption that, unless a Lender
notifies the Agent to the contrary, each Lender's obligations in relation
to cash ratio deposits and Special Deposits are the same as those of a
typical bank from its jurisdiction of incorporation with a Facility Office
in the same jurisdiction as its Facility
Office.
|
10.
|
The
Agent shall have no liability to any person if such determination results
in an Additional Cost Rate which over or under compensates any Lender and
shall be entitled to assume that the information provided by any Lender or
Reference Bank pursuant to paragraphs 3, 7 and 8 above is true and correct
in all respects.
|
11.
|
The
Agent shall distribute the additional amounts received as a result of the
Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for
each Lender based on the information provided by each Lender and each
Reference Bank pursuant to paragraphs 3, 7 and 8
above.
|
12.
|
Any
determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
|
13.
|
The
Agent may from time to time, after consultation with the Company and the
Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all
Parties.
|
Form
of Transfer Certificate
To: [ ]
as Agent
From:
[The Existing Lender] (the
"Existing Lender") and [The New Lender] (the "New Lender")
Dated:
HeidelbergCement
AG β [ ] Facility Agreement
dated
[ ] (the "Agreement")
1.
|
We
refer to the Agreement. This is a Transfer Certificate. Terms defined in
the Agreement have the same meaning in this Transfer Certificate unless
given a different meaning in this Transfer
Certificate.
|
2.
|
We
refer to Clause 28.5 (Procedure for
assignment and transfer by assumption of contract
(VertragsΓΌbernahme)):
|
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender assigning
and transferring to the New Lender by assumption of contract (VertragsΓΌbernahme) all
or part of the Existing Lender's Commitment, rights and obligations
referred to in the Schedule in accordance with Clause 28.5 (Procedure for assignment and
transfer by assumption of contract
(VertragsΓΌbernahme)).
|
|
(b)
|
The
proposed Transfer Date is
[ ].
|
|
(c)
|
The
Facility Office and address, fax number and attention details for notices
of the New Lender for the purposes of Clause 35.2 (Addresses) are set out
in the Schedule.
|
3.
|
The
New Lender expressly acknowledges the limitations on the Existing Lender's
obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility
of Existing Lenders).
|
4.
|
The
New Lender expressly confirms that it [can/cannot] exempt the Agent from
the restrictions pursuant to section 181 Civil Code (BΓΌrgerliches
Gesetzbuch) and similar restrictions applicable to it pursuant to
any other applicable law as provided for in paragraph (c) of Clause 30.1
(Appointment of the
Agent).
|
5.
|
The
New Lender confirms that it assumes the same obligations to the other
Finance Parties as it would have been subject to if the New Lender would
have been an Original Lender.
|
6.
|
This
Transfer Certificate may be executed in any number of counterparts and
this has the same effect as if the signatures on the counterparts were on
a single copy of this Transfer
Certificate.
|
7.
|
This
Transfer Certificate is governed by German
law.
|
THE
SCHEDULE
Commitment/rights
and obligations to be transferred
[insert relevant
details]
[Facility Office address, fax number
and attention details for notices and account details for
payments,]
payments,]
[Existing
Lender]
|
[New
Lender]
|
By:
|
By:
|
This
Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as
[ ].
|
|
[Agent]
|
By:
Form
of Accession Letter
To: [ ]
as Agent
From: [Subsidiary] and
HeidelbergCement AG
Dated:
Dear
Sirs
HeidelbergCement
AG - [ ] Facility Agreement
dated
[ ] (the "Agreement")
1.
|
We
refer to the Agreement. This is an Accession Letter. Terms defined in the
Agreement have the same meaning in this Accession Letter unless given a
different meaning in this Accession
Letter.
|
2.
|
[Subsidiary] agrees to
become an Additional Borrower and to be bound by the terms of the
Agreement as an Additional Borrower pursuant to Clause [29.2 (Additional Borrowers)]
of the Agreement. [Subsidiary] is a
company duly incorporated under the laws of [name of relevant
jurisdiction].
|
3.
|
We
confirm to each Finance Party that each of the Repeated Representations is
true and correct in relation to us as at the date hereof as if made by
reference to the facts and circumstances existing on the date
hereof.
|
4.
|
[Subsidiary's]
administrative details are as
follows:
|
Address:
Fax
No:
Attention:
5.
|
This
Accession Letter is governed by German
law.
|
HeidelbergCement AG
|
[Subsidiary]
|
By:
|
By:
|
Form
of Resignation Letter
To: [ ]
as Agent
From: [resigning Borrower] and
HeidelbergCement AG
Dated:
Dear
Sirs
HeidelbergCement
AG - [ ] Facility Agreement
dated
[ ] (the "Agreement")
1.
|
We
refer to the Agreement. This is a Resignation Letter. Terms defined in the
Agreement have the same meaning in this Resignation Letter unless given a
different meaning in this Resignation
Letter.
|
3.
|
We
confirm that:
|
|
(a)
|
no
Default is continuing or would result from the acceptance of this request;
and
|
|
(b)
|
[
]*
|
4.
|
This
Resignation Letter is governed by German
law.
|
HeidelbergCement AG
|
[Subsidiary]
|
By:
|
By:
|
Form
of Compliance Certificate
To: [ ]
as Agent
From: HeidelbergCement
AG
Dated:
Dear
Sirs
HeidelbergCement
AG β [ ] Facility Agreement
dated
[ ] (the " Agreement")
1.
|
We
refer to the Agreement. This is a Compliance Certificate. Terms defined in
the Agreement have the same meaning when used in this Compliance
Certificate unless given a different meaning in this Compliance
Certificate.
|
2.
|
We
confirm that:
|
[insert
details of financial covenants and whether the Company is in compliance with
those covenants]
3.
|
We
confirm that the ratio of Group's Net Debt/EBITDA is [β’]:1 and that,
therefore, the Margin for Facility A should be [β’], for Facility B should
be [β’] for Facility C should be [β’] and for the Revolving Facility should
be [β’].
|
4.
|
[We
confirm that no Default is continuing.]*
|
5.
|
We
confirm that the following companies constitute Material Companies for the
purpose of this Agreement: [β’]
|
Signed:
.......................................
|
................................
|
Director
of
Company
|
Director
of
Company
|
[insert applicable
certification language]
|
|
..................................
for
and on behalf of
[name of auditors of the
Company]
|
|
* If
this statement cannot be made, the certificate should identify any Default
that is continuing and the steps, if any, being taken to remedy
it.
|
Existing
Security
(Note:
With respect to land charges, mortgages, hypothecations etc., references are
made to nominal amounts)
Name
of Obligor
|
Security
|
Total
Principal Amount of
Indebtedness outstanding (except otherwise stated below) |
ENCI
Holding NV
|
Guarantees
to the Pensionfund ENCI for mortgages issued to personnel of ENCI Holding
NV
|
7,600
EUR
|
ENCI
BV
|
Guarantees
to the Pensionfund ENCI for mortgages issued to personnel of ENCI
BV
|
2,192,000
EUR
|
GVV
GrundstΓΌcks- und VermΓΆgensverwaltungs-GmbH & Co. KG
|
Premise
Deggendorf land charge in favour of Xx X. Xxxxx
|
205,000
EUR
|
Xxxxxxxxxxxx
Beton Aschaffenburg GmbH & Co. KG
|
Loan
granted by Xx Xxxxx Xxxxxx;
Ownership
transfer by way of security (mixing machinery Stockstadt)
|
400,000
EUR
|
TBG
Rhein-Nahe GmbH & Co. KG
|
a)
land charge on premise in Xxxxxxxxx, securitization of loans granted for
new construction of mixing machinery
b)
land charge on premises in Bad Kreuznach-Planig b1) working capital credit
b2) modernizing mixing machinery Ingelheim
|
a)
373,000 EUR
(land
charge 1,023,000 EUR);
b)
b1) 0 EUR
b2) 588,000 EUR
(land
charge: b1) 77,000 EUR
b2)
435,000 EUR and 330,000 EUR)
|
Lieferbeton
Xxxxxxxx GmbH & Co. KG
|
Loan
granted from saving bank for purchase of premise in
Xxxxxxx-Xxxxxxx
|
410,000
EUR
|
TBG
Transportbeton Xxxxx GmbH & Co. KG
|
Ownership
transfer of ready mix concrete factory HΓΌnfeld by way of security; in
favour of IKB Industriekreditbank AG
|
67,000
EUR
|
TBG
Transportbeton Mittelelbe GmbH & Co. KG
|
Ownership
transfer of ready mix concrete factory Langenweddingen by way of security;
in favour of IKB Industriekreditbank AG
|
201,000
EUR
|
TBG
LΓΌssen
|
Land
charge; 487,000 EUR Sparkasse in Bremen for current account; charged on
factory site Arberger Hafendamm 15
|
1,278,000
EUR
|
TBG
LΓΌssen
|
Land
charge; 537,000 EUR Bankhaus Neelmeyer, Bremen, for current account;
charged on sand pit Thedinghausen/Kaper
|
1,278,000
EUR
|
SMW
Sand- und MΓΆrtelwerk GmbH & Co. KG
|
Cautionary
mortgage
|
9,000,000
EUR
|
Name
of Obligor
|
Security
|
Total
Principal Amount of
Indebtedness outstanding (except otherwise stated below) |
AWT
Abwassertechnik (former Xxxxxxxxxxxx Xxxxx)
|
Real
estate Prettin: mortgage land claim
|
3,006,000
EUR
|
TPCC
|
Legal
mortgage over TPCC land and building
|
11,750,000,000
TZS (= 6,855,000 EUR)
|
TPCC
|
Debenture
over TPCC inventories and trade receivables
|
11,750,000,000
TZS (= 6,855,000 EUR)
|
Cimbenin
|
Pledge
on all equipment and buildings on overdraft facility
|
Limit:
500,000,000 XOF (= 762,000 EUR)
|
Cimbenin
|
Pledge
on prepayments from customers on overdraft facility
|
Limit:
500,000,000 XOF (= 762,000 EUR)
|
Cimgabon
|
Deposit
to electricity company
|
130,000
EUR
|
HeidelbergCement
BangladeshΒ·
|
First
ranking mortgage by deposits of title deeds on all immovable assets of the
company Β·
First
ranking hypothecation/charge of all movable assets of the
company
|
6,000,000
NOK (= 740,000 EUR)
|
Erste
Salzburger Gipswerksgesellschaft Xxxxxxxxx Xxxxxx KG
|
HΓΆchstbetragshypothek
ΓΌber 2,340,000 EUR fΓΌr Kredit bei der BANK AUSTRIA-CREDITANSTALT, derzeit
ausgenΓΌtzt mit 828 000 EUR
|
2,340,000
EUR
|
Mtec
xxxxxx technik GmbH
|
Real
estate mortgage for credit in IKB/KfW Bank
|
1,534,000
β¬
|
AB
Svenska Leca
|
Chattel
mortgage of 2,500,000,SEK towards Handelsbanken
|
2,500,000
SEK (= 273,000 EUR)
|
Maxit
Baustoffwerke GmbH
|
Real
estate mortgage of property in KrΓΆlpa, Xxxxxxxxxxxxxx Xxx 0 towards Hypo
Vereinsbank AG
|
10,000,000
DEM
|
Maxit
Baustoffwerke GmbH
|
Real
estate mortgage of property in KrΓΆlpa, Xxxxxxxxxxxxxx Xxx 0 towards Hypo
Vereinsbank AG
|
6,800,000
DEM
|
Maxit
Baustoffwerke GmbH
|
Real
estate mortgage of property in Leuphan, KrΓΆlpa and Ichtershausen-ThΓΆrey 2
towards HypoVereinsbank Kulmbach
|
16,000,000
DEM
|
Xxxxxxx
Maxit MauermΓΆrtel GmbH & Co
|
Real
estate mortgage for credit in HypoVereinsbank Kulmbach
|
6,400,000
EUR
|
Continental
Florida Materials Inc.
|
Personal
Property (east Broward County ready mix batch plant)
|
125,000
USD (= 92,000 EUR)
|
Name
of Obligor
|
Security
|
Total
Principal Amount of
Indebtedness outstanding (except otherwise stated below) |
Svensk
Leca
|
Real
EstateMortage
|
268,000
EUR
|
Svensk
Leca
|
a)
Guarantee for re-cultivation of clay pits
b)
Trade tax re mineral oils
c)
Svenska Handelsbanken/ Environmental Protection Agency
|
a)
188,000 EUR
b)
4,000 EUR
c)
54,000 EUR
|
Maxit
A/S, Frankreich
|
Real
estate mortgage Falquemont mine
|
716,000
EUR
|
Maxit
A/S, Denmark
|
Real
estate mortgage in FIH 10,000,000 DKK
|
10,000,000
DKK (= 1,342,101 EUR)
|
Duna-DrΓ‘va
Cement Kft.
|
Machines,
booked value of 1,000,000,000 HUF
(= 4,065,000 EUR)
Buildings
3,000,000,000 HUF (= 12,295,000 EUR)
Stocks
2 000 000 000 HUF (= 8,130,000 EUR)
Drafts
6 000 000 000 HUF (= 24,390,000 EUR)
|
12,000,000,000
HUF (= 48,780,000 EUR)
|
TBG
Pannonbeton Kft.
|
Leased
machines 18,006,740 HUF
|
18
006 740 HUF (= 73,000 EUR)
|
Ghacem
|
Encumbrances
concerning other assets
Letter
of credit
|
6,964,000
EUR
|
HeidelbergCement
Sweden AB
|
Security
account in Nordea Bank pledged for NordPool ASA concerning financial
derivates for electricity trading.
|
1,483,000
EUR
|
Cement
Company of Northern Nigeria
|
Collateral
assignment fixed tangible assets
|
4,621,000
EUR
|
Gralex
|
Registered
land mortgages
|
2,738,000
EUR
|
Kaspicementi
|
Encumbrances
fixed assets for loan with Bank Republik
|
2,540,000
EUR
|
Rustavcementi
JSC
|
Encumbrances
fixed assets for loan with Ministry of Finance
|
1,421,000
EUR
|
Saqcementi
Ltd.
|
Encumbrances
fixed assets for loan with Bank Republik
|
3,259,000
EUR
|
TBG
Betonpumpendienst GmbH, Hoppegarten
|
Financial
Lease of concrete pumps
|
1,755,000
EUR
|
Walhalla
Kalk GmbH & Co. KG
|
Land
charge/ real estate mortgage HypoVereinsbank
Regensburg
|
2,096,000
EUR
|
Form
of Confidentiality Undertaking
Form
of Confidentiality Undertaking
To: [insert name of Potential
Lender]
Re:
|
GBP
8,750,000,000 and EUR 3,400,000,000 facilities agreement in connection
with the acquisition of the shares of Run plc (the
"Facilities")
|
Dear
Sirs
We
understand that you are considering participating in the Facilities. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
(A) CONFIDENTIALITY
You
undertake:
|
(a)
|
to
keep the Confidential Information confidential and not to disclose it to
anyone except as provided for by paragraph 2 below and to ensure that
the Confidential Information is protected with security measures and a
degree of care that would apply to your own confidential
information;
|
|
(b)
|
to
keep confidential and not disclose to anyone except as provided for by
paragraph 2 below the fact that the Confidential Information has been
made available or that discussions or negotiations are taking place or
have taken place between us in connection with the
Facilities;
|
|
(c)
|
to
use the Confidential Information only for the Permitted Purpose;
and
|
|
(d)
|
to
use all reasonable endeavours to ensure that any person to whom you pass
any Confidential Information (unless disclosed under paragraph 2(b)
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to
it.
|
We agree
that you may disclose Confidential Information and those matters referred to in
paragraph 1(b) above:
|
(a)
|
to
members of the Participant Group and their officers, directors, employees
and professional advisers to the extent necessary for the Permitted
Purpose and to any auditors of members of the Participant
Group;
|
|
(b)
|
(i)
where requested or required by any court of competent jurisdiction or any
competent judicial, governmental, supervisory or regulatory body, (ii)
where required by the rules of any stock exchange on which the shares or
other securities of any member of the Participant Group are listed or
(iii) where required by the laws or regulations of any country with
jurisdiction over the affairs of any member of the Participant Group;
or
|
|
(c)
|
with
the prior written consent of us and the
Company.
|
You agree
(to the extent permitted by law and except where disclosure is to be made to any
competent supervisory or regulatory body during the ordinary course of its
supervisory or regulatory function over you) to inform us of the full
circumstances of any disclosure under paragraph 2(b) or upon becoming aware
that Confidential Information has been disclosed in breach of this
letter.
If we so
request in writing, you shall return all Confidential Information supplied to
you by us and destroy or permanently erase (to the extent technically
practicable) all copies of Confidential Information made by you and use all
reasonable endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases (to the extent
technically practicable) such Confidential Information and any copies made by
them, in each case save to the extent that you or the recipients are required to
retain any such Confidential Information by any applicable law, rule or
regulation or by any competent judicial, governmental, supervisory or regulatory
body or in accordance with internal policy, or where the Confidential
Information has been disclosed under paragraph 2(b) above.
The
obligations in this letter are continuing and, in particular, shall survive the
termination of any discussions or negotiations between you and
us. Notwithstanding the previous sentence, the obligations in this
letter shall cease on the earlier of (a) the date you become a party to or
otherwise acquire (by assignment or otherwise) a direct interest in the
Facilities and (b) twelve months after you have returned all Confidential
Information supplied to you by us and destroyed or permanently erased (to the
extent technically practicable) all copies of Confidential Information made by
you (other than any such Confidential Information or copies which have been
disclosed under paragraph 2 above (other than sub-paragraph 2(a)) or
which, pursuant to paragraph 4 above, are not required to be returned or
destroyed)[ and (c) in any event [ ] months
from the date of this letter].
6.
|
No
Representation; Consequences of Breach,
etc
|
You
acknowledge and agree that:
|
(a)
|
neither
we nor any of our officers, employees or advisers (each a "Relevant
Person")
|
|
(i)
|
make
any representation or warranty, express or implied, as to, or assume any
responsibility for, the accuracy, reliability or completeness of any of
the Confidential Information or any other information supplied by us or
any member of the Group or the assumptions on which it is based,
or
|
|
(ii)
|
shall
be under any obligation to update or correct any inaccuracy in the
Confidential Information or any other information supplied by us or any
member of the Group or be otherwise liable to you or any other person in
respect to the Confidential Information or any such information;
and
|
|
(b)
|
we
or members of the Group may be irreparably harmed by the breach of the
terms of this letter and damages may not be an adequate remedy; each
Relevant Person or member of the Group may be granted an injunction or
specific performance for any threatened or actual breach of the provisions
of this letter by you.
|
7.
|
No
Waiver; Amendments, etc
|
This
letter sets out the full extent of your obligations of confidentiality owed to
us in relation to the information the subject of this letter. No failure or
delay in exercising any right, power or privilege under this letter will operate
as a waiver thereof nor will any single or partial exercise of any right, power
or privilege preclude any further exercise thereof or the exercise of any other
right, power or privileges under this letter. The terms of this
letter and your obligations under this letter may only be amended or modified by
written agreement between us.
8.
|
Inside
Information
|
You
acknowledge that some or all of the Confidential Information is or may be
price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation including securities law
relating to insider dealing and market abuse and you undertake not to use any
Confidential Information for any unlawful purpose.
9.
|
Nature
of Undertakings
|
The
undertakings given by you under this letter are given to us and (without
implying any fiduciary obligations on our part) are also given for the benefit
of the Company.
(B) NO
FRONT RUNNING UNDERTAKING
You
acknowledge and agree that:
|
(a)
|
you
will not, and you will procure that no other member of the Participant
Group will engage in any Front
Running;
|
|
(b)
|
if
you or any other member of the Participant Group engages in any Front
Running we may suffer loss or damage [and your position in future
financings with us and the Borrower may be
prejudiced];*
|
|
(c)
|
if
you or any other member of the Participant Group engages in any Front
Running we retain the right not to allocate to you a commitment under the
Facilities];
|
|
(d)
|
[you
confirm that neither you nor any other member of the Participant
Group has engaged in any Front Running.]*
|
[When you
sign the Facility Agreement and any transfer document under the Facility
Agreement (in the case of any transfer document, only if signed within
[three/six] months after [the date of signing of the Facility Agreement]/[the
close of primary syndication]), you will, if we so request, confirm to us in
writing that neither you nor any other member of the Participant Group has
breached the terms of this Part B of this letter.]*
[Any
arrangement, front-end or similar fee which may be payable to you in connection
with the Facilities] is only payable on condition that neither you nor any other
member of the Participant Group has breached the terms of this Part B of this
letter. This condition is in addition to any other conditions agreed
between us in relation to your entitlement to any such fee.]*
10.
|
Third
Party Rights
|
|
(a)
|
Subject
to paragraph 6 and paragraph 9 the terms of this letter may be
enforced and relied upon only by you and us and the operation of the
Contracts (Rights of Third Parties) Xxx 0000 is
excluded.
|
|
(b)
|
Notwithstanding
any provisions of this letter, the parties to this letter do not require
the consent of any Relevant Person or any member of the Group to rescind
or vary this letter at any time.
|
11.
|
Governing
Law and Jurisdiction
|
This
letter (including the agreement constituted by your acknowledgement of its
terms) shall be governed by and construed in accordance with the laws of England
and the parties submit to the non-exclusive jurisdiction of the English
courts.
______________________
*
Optional.
12.
|
Definitions
|
In this
letter (including the acknowledgement set out below):
"close of primary syndication" means the time we
notify the parties participating as lenders of record in primary syndication as
to the allocation of commitments relating to the Facilities.
"Arranger Group" means us, each of our holding
companies and subsidiaries and each subsidiary of each of our holding companies
and each of our or their directors, officers and employees (including any sales
and trading teams) provided that when
used in this letter in respect of an Arranger it applies severally only in
respect of that Arranger, each of that Arranger's holding companies and
subsidiaries, each subsidiary of each of its holding companies and each
director, officer and employee (including any sales and trading teams) of that
Arranger or any of the foregoing and not, for the avoidance of doubt, those of
another Arranger.
"Confidential Information" means any information
relating to the Company, the Group, and the Facilities provided to you by us or
any of our affiliates or advisers, in whatever form, and includes information
given orally and any document, electronic file or any other way of representing
or recording information which contains or is derived or copied from such
information but excludes information that (a) is or becomes public knowledge
other than as a direct or indirect result of any breach of this letter or (b) is
known by you before the date the information is disclosed to you by us or any of
our affiliates or advisers or is lawfully obtained by you after that date, other
than from a source which is connected with the Group and which, in either case,
as far as you are aware, has not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality.
The
"Facility Agreement" means the facility
agreement to be entered into in relation to the Facilities.
A "Facility Interest" means a legal, beneficial or
economic interest acquired or to be acquired expressly and specifically in or in
relation to the Facilities, whether as initial lender or by way of assignment,
transfer, novation, sub-participation (whether disclosed, undisclosed, risk or
funded) or any other similar method.
"Front Running" means undertaking any of the
following activities prior to the close of primary syndication which is intended
to or is reasonably likely to encourage any person to take a Facility Interest
except as a lender of record in primary syndication:
|
(a)
|
communication
with any person or the disclosure of any information to any person in
relation to a Facility Interest;
[or]
|
|
(b)
|
making
a price (whether firm or indicative) with a view to buying or selling a
Facility Interest; [or]
|
|
(c)
|
[entering
into (or agreeing to enter into) any agreement, option or other
arrangement, whether legally binding or not, giving rise to the assumption
of any risk or participation in any exposure in relation to a Facility
Interest],
|
excluding
where any of the foregoing is:
|
(i)
|
made
to or entered into by you with another member of the Participant Group (in
the case of the undertaking made by you in this letter) or by us with
another member of the Arranger Group (in the case of the undertaking made
by us in this letter); or
|
|
(ii)
|
an
act of a member of the Participant Group (in the case of the undertaking
made by you in this letter) or the Arranger Group (in the case of the
undertaking made by us in this letter) who in each case is operating on
the public side of an information barrier unless such person is acting on
the instructions of a person who has received Confidential Information and
is aware of the proposed Facility.
|
"Group" means the Company and each of its
affiliated companies as contemplated in Section 15 of the Stock Corporation
Act (Aktiengesetz).
"Participant Group" means you, each of your
holding companies and subsidiaries and each subsidiary of each of your holding
companies and where such term is used in Part B of this letter and the
definition of "Front Running" each of your or their directors, officers and
employees (including any sales and trading teams).
"Permitted Purpose" means considering and
evaluating whether to enter into the Facilities.
Please
acknowledge your agreement to the above by signing and returning the enclosed
copy.
Yours
faithfully
__________________
For and
on behalf of
[Existing
Lender]
To: [Existing
Lender]
The
Company
We
acknowledge and agree to the above:
__________________
For and
on behalf of
[Potential
Lender]
Timetables
Loans
in euro
|
Loans
in domestic sterling
|
Loans
in other currencies
|
||||
Agent
confirms to Company if a currency is approved as an Optional Currency in
accordance with Clause 4.3(b) (Conditions
relating to Optional Currencies)
|
-
|
-
|
U-4
|
|||
Delivery
of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation
Request) or a Selection Notice (Clause 14.1 (Selection of Interest
Periods))
|
U-3
9.30am
|
U-1
9.30am
|
U-3
9.30am
|
|||
Agent
determines (in relation to a Utilisation) the Base Currency Amount of the
Loan, if required under Clause 5.4 (Lenders'
participation)
|
U-3
noon
|
U-1
noon
|
U-3
noon
|
|||
Agent
notifies the Lenders of the Loan in accordance with Clause 5.4 (Lenders'
participation)
|
U-3
3.00pm
|
U-1
3.00pm
|
U-3
3.00pm
|
|||
Agent
receives a notification from a Lender under Clause 9.2 (Unavailability of a
currency)
|
Quotation
Day
10.00am
|
Quotation
Day
10.00am
|
Quotation
Day
10.00am
|
|||
Agent
gives notice in accordance with Clause 9.2 (Unavailability of a
currency)
|
Quotation
Day
10.30am
|
Quotation
Day
10.30am
|
Quotation
Day
10.30am
|
|||
Agent
determines amount of the Term Loan in Optional Currency in accordance with
Clause 9.3 (Change of
currency)
|
U-3
11.00am
|
Quotation
Day
11.00am
|
Quotation
Day
11.00am
|
|||
Agent
determines amount of the Term Loan in Optional Currency in accordance with
Clause 9.4(a) (Same
Optional Currency during successive Interest
Periods)
|
Quotation
Day
11.00am
|
Quotation
Day
11.00am
|
Quotation
Day
11.00am
|
|||
Agent
calculates the amount of the Term Loan in Optional Currency converted into
the Base Currency in accordance with Clause 9.4(b) (Same Optional Currency during
successive Interest Periods)
|
U-3
|
U-3
|
U-3
|
|||
EURIBOR
or LIBOR is fixed
|
Quotation
Day as of 11:00 a.m. Brussels time in respect of EURIBOR and as of 11:00
a.m. London time in respect of LIBOR
|
Quotation
Day as of 11:00 a.m.
|
Quotation
Day as of 11:00 a.m.
|
Swingline
Loans
Delivery
of a duly completed Utilisation Request for a Euro Swingline Loan
(Clause 7.1 (Delivery of a Utilisation
Request for Euro Swingline Loans))
|
U
9.30am
London
time
|
|
Agent
determines the Euro Swingline rate for the Euro Swingline Loan and
notifies the Euro Swingline Lenders and the relevant Borrower under
Clause 8.3 (Interest)
|
U
11.00am
London
time
|
|
Agent
determines (in relation to a Utilisation) the Base Currency Amount of the
Euro Swingline Loan,
if required under Clause 7.3 (Euro Swingline Lenders'
participation) and notifies each Euro Swingline Lender of the
amount of its participation in the Euro Swingline Loan under
Clause 7.3 (Euro
Swingline Lenders' participation)
|
U
noon
London
time
|
"U" =
date of utilisation or, if applicable, in the case of a Term Loan that has
already been borrowed, the first day of the relevant Interest Period for that
Loan
"U - X" =
Business Days prior to date of utilisation
Form
of Process Agent Appointment Letter
To: [ ]
as process agent
From: [Obligor]
Date:
Dear
Sirs
[Company]
[β’] Facility Agreement
dated
[β’] (the "Agreement")
We refer
to the Agreement and hereby irrevocably appoint you as our agent for service of
process in relation to any proceeding before any German court in connection with
the above mentioned Agreement.
Existing
Financial Indebtedness
Entity
|
Dealer
|
actual
drawings in EUR
|
Butra
HeidelbergCement, Brunei
|
[β
β
β ]
|
1,588,014
|
Butra
HeidelbergCement, Brunei
|
[β
β
β ]
|
17,207,950
|
Carpat
Agregate SA
|
[β
β
β ]
|
50,000
|
Carpat
Cement Holding
|
[β
β
β ]
|
3,300,000
|
CBRSA
|
[β
β
β ]
|
1,000,000
|
Cem
Invest Ltd
|
[β
β
β ]
|
1,588,153
|
Cimbenin
|
[β
β
β ]
|
913,423
|
Cimbenin
|
[β
β
β ]
|
831,442
|
Cimgabon
|
[β
β
β ]
|
547,101
|
Cimgabon
|
[β
β
β ]
|
211,642
|
Duna
Drava
|
[β
β
β ]
|
4,683,729
|
Duna
Drava
|
[β
β
β ]
|
16,986,930
|
Duna
Drava
|
[β
β
β ]
|
15,535,328
|
Duna
Drava
|
[β
β
β ]
|
1,871,698
|
Duna
Drava
|
[β
β
β ]
|
658,240
|
Duna
Drava
|
[β
β
β ]
|
1,701,646
|
Duna
Drava
|
[β
β
β ]
|
654,277
|
Duna
Drava
|
[β
β
β ]
|
12,170,385
|
Ekocem
|
[β
β
β ]
|
3,446,757
|
Ekocem
|
[β
β
β ]
|
1,334,401
|
Enci
Holding
|
[β
β
β ]
|
1,000,000
|
Ghacem
Ltd
|
[β
β
β ]
|
734,916
|
Ghacem
Ltd
|
[β
β
β ]
|
7,246,270
|
Gorazde
Beton
|
[β
β
β ]
|
266,880
|
Gorazde
Cement
|
[β
β
β ]
|
10,088,070
|
Heidelberg
Bangladesh
|
[β
β
β ]
|
57,037
|
Heidelberg
Bangladesh
|
[β
β
β ]
|
5,737,667
|
Heidelberg
Bangladesh
|
[β
β
β ]
|
12,516,615
|
HeidelbergCement
Financial Services AB
|
[β
β
β ]
|
44,165,758
|
Indocement
|
[β
β
β ]
|
23,014,470
|
Indocement
|
[β
β
β ]
|
25,902,225
|
Indocement
|
[β
β
β ]
|
17,314,531
|
Indorama
Cements Ltd.
|
[β
β
β ]
|
2,171,946
|
Indorama
Cements Ltd.
|
[β
β
β ]
|
2,171,946
|
Indorama
Cements Ltd.
|
[β
β
β ]
|
2,068,597
|
Kryvyi
Rih
|
[β
β
β ]
|
6,571,358
|
Kryvyi
Rih
|
[β
β
β ]
|
2,497,116
|
Entity
|
Dealer
|
actual
drawings in EUR
|
Kryvyi
Rih
|
[β β β ]
|
6,254,134
|
Kryvyi
Rih
|
[β β β ]
|
4,989,344
|
Lehigh
Cement Company
|
[β β β ]
|
15,560,913
|
Lehigh
Cement Limited
|
[β β β ]
|
35,848,355
|
maxit
Beijing Building material, China
|
[β β β ]
|
5,627,623
|
maxit
TrockenmΓΆrtel, Austria
|
[β β β ]
|
319,000
|
maxit
Yapi, Turkey
|
[β β β ]
|
1,347,250
|
maxit
Yapi, Turkey
|
[β β β ]
|
727,591
|
maxit
Yapi, Turkey
|
[β β β ]
|
1,612,426
|
maxit
Yapi, Turkey
|
[β β β ]
|
186,281
|
maxit,
Denmark
|
[β β β ]
|
531,422
|
Northern
Nigeria Cement Co
|
[β β β ]
|
565,097
|
Northern
Nigeria Cement Co
|
[β β β ]
|
1,034,729
|
Northern
Nigeria Cement Co
|
[β β β ]
|
153,977
|
Northern
Nigeria Cement Co
|
[β β β ]
|
123,027
|
OKSM sp.
z o.o.
|
[β β β ]
|
2,401,922
|
Rustavicement
|
[β β β ]
|
2,277,063
|
Rustavicement
|
[β β β ]
|
2,140,761
|
Sierra
Leone Cement Corp.
|
[β β β ]
|
54,903
|
SocietΓ©
Nigerienne de Cementerie (SNC)
|
[β β β ]
|
374,609
|
SocietΓ©
Nigerienne de Cementerie (SNC)
|
[β β β ]
|
107,388
|
Tanzania
Portland
|
[β β β ]
|
381,868
|
ZKSM
S.A.
|
[β β β ]
|
2,188,417
|
Existing
Guarantees
(Note:
roundings to the nearest '000 in certain cases)
Lender/Guarantor
|
Borrower/Beneficiary
|
Amount in
EUR
|
ENCI
N.V.
|
[β β β ]
|
1,361,341
|
ENCI
N.V.
|
[β β β ]
|
907,560
|
HC
AG
|
[β β β ]
|
875,000
|
HC
AG
|
[β β β ]
|
726,890
|
BB
Rt.
|
[β β β ]
|
197,586
|
maxit
Deutschland GmbH
|
[β β β ]
|
870,000
|
maxit
Deutschland GmbH
|
[β β β ]
|
64,000
|
maxit
Deutschland GmbH
|
[β β β ]
|
92,000
|
maxit
Deutschland GmbH
|
[β β β ]
|
398,000
|
maxit
Deutschland GmbH
|
[β β β ]
|
478,000
|
Fibo
Exclay Deutschland GmbH
|
[β β β ]
|
184,000
|
maxit
Holding AB
|
[β β β ]
|
8,721,000
|
StrΓ₯bruken AB (250
KSEK)
|
[β β β ]
|
27,000
|
maxit
AB
|
[β β β ]
|
266,000
|
maxit AB
(500 KSEK)
|
[β β β ]
|
53,000
|
maxit AB
(984 KSEK)
|
[β β β ]
|
107,000
|
maxit AB
(1051 KSEK)
|
[β β β ]
|
118,000
|
AB Svensk
Leca (45 KSEK)
|
[β β β ]
|
5,000
|
AB Svensk
Leca
|
[β β β ]
|
53,000
|
maxit
Finland
|
[β β β ]
|
908,000
|
maxit
Norway
|
[β β β ]
|
1,252,000
|
maxit
Norway
|
[β β β ]
|
120,000
|
maxit A/S
Denmark
|
[β β β ]
|
59,000
|
maxit A/S
Denmark
|
[β β β ]
|
532,000
|
Leca
Portugal
|
[β β β ]
|
88,000
|
Leca
Portugal
|
[β β β ]
|
20,000
|
Leca
Portugal
|
[β β β ]
|
3,000
|
Leca
Portugal
|
[β β β ]
|
883,000
|
maxit
Turkey
|
[β β β ]
|
145,000
|
maxit
Group AB (200 KSEK)
|
[β β β ]
|
21,000
|
maxit
Group AB (463 KSEK)
|
[β β β ]
|
54,000
|
Sudharzer
Gipswerke
|
[β β β ]
|
75,000
|
Sudharzer
Gipswerke
|
[β β β ]
|
31,000
|
Sudharzer
Gipswerke
|
[β β β ]
|
80,000
|
Sudharzer
Gipswerke
|
[β β β ]
|
1,144,000
|
Sudharzer
Gipswerke
|
[β β β ]
|
920,000
|
Lehigh
Receivables Corporation
|
[β β β ]
|
34,348,000
|
Euroc
Beton AB
|
[β β β ]
|
524,000
|
Sand
& Grus AB Jehander
|
[β β β ]
|
890,000
|
HCNE
AB
|
[β β β ]
|
1,459,000
|
[β β β ]
|
||
Total
Guarantees to third parties
|
59,212,377
|
Existing
Loans
Lender/Guarantor
|
Borrower/
Beneficiary
|
Currency
|
Amount
(local
currency)
|
Amount
in EUR
(as
of 04/05/2007)
|
Conversion
rate (as of 04/05/2007)
|
Cement
company Northern Nigeria
|
[β β β ]
|
USD
|
172,000
|
126,406
|
1.361
|
Edo
Cement Company Ltd.
|
[β β β ]
|
USD
|
98,000
|
72,022
|
1.361
|
Cimgabon
|
[β β β ]
|
USD
|
551,000
|
404,939
|
1.361
|
SocietΓ©
Nigerienne de Cementerie (SNC)
|
[β β β ]
|
USD
|
125,831
|
92,475
|
1.361
|
Ghacem
|
[β β β ]
|
USD
|
1,572,302
|
1,155,510
|
1.361
|
Scancem
International ANS
|
[β β β ]
|
USD
|
917,000
|
673,918
|
1.361
|
Scancem
East as
|
[β β β ]
|
NOK
|
233,000
|
28,712
|
8.115
|
Roscem
|
[β β β ]
|
RUB
|
750,000
|
21,417
|
35.020
|
CBR
IS
|
[β β β ]
|
EUR
|
868,000
|
868,000
|
1.000
|
CBR IS
(155120)
|
[β β β ]
|
EUR
|
1,751,000
|
1,751,000
|
1.000
|
ENCI
Holding NV
|
[β β β ]
|
EUR
|
11,000,000
|
11,000,000
|
1.000
|
ENCI B.V.
(105830)
|
[β β β ]
|
EUR
|
26,000
|
26,000
|
1.000
|
ENCI B.V.
(105830)
|
[β β β ]
|
EUR
|
207,000
|
207,000
|
1.000
|
Xxxxx
B.V.
|
[β β β ]
|
EUR
|
250,000
|
250,000
|
1.000
|
Xxxxx
B.V.
|
[β β β ]
|
EUR
|
113,000
|
113,000
|
1.000
|
Xxxxx
B.V.
|
[β β β ]
|
EUR
|
45,000
|
45,000
|
1.000
|
Xxxxx
B.V.
|
[β β β ]
|
EUR
|
1,238,000
|
1,238,000
|
1.000
|
Xxxxx
B.V.
|
[β β β ]
|
EUR
|
44,000
|
44,000
|
1.000
|
Xxxxx
B.V.
|
[β β β ]
|
EUR
|
1,268,000
|
1,268,000
|
1.000
|
CBRSA
(105830 )
|
[β β β ]
|
EUR
|
251,000
|
251,000
|
1.000
|
PAES
(105830 ) 50% JV
|
[β β β ]
|
EUR
|
5,000
|
5,000
|
1.000
|
Lender/Guarantor
|
Borrower/
Beneficiary
|
Currency
|
Amount
(local
currency)
|
Amount
in EUR
(as
of 04/05/2007)
|
Conversion
rate (as of 04/05/2007)
|
PAES
(105840 ) 50% JV
|
[β β β ]
|
EUR
|
528,000
|
528,000
|
1.000
|
InterBeton
S.A.
|
[β β β ]
|
EUR
|
2,750,000
|
2,750,000
|
1.000
|
Ukracem
BV
|
[β β β ]
|
EUR
|
14,000,000
|
14,000,000
|
1.000
|
Xxxxxxxxxxxx Beton
GmbH (155150)
|
[β β β ]
|
EUR
|
64,724
|
64,724
|
1.000
|
Xxxxxxxxxxxx Beton
GmbH (155150)
|
[β β β ]
|
EUR
|
33,000
|
33,000
|
1.000
|
Xxxxxxxxxxxx Beton
GmbH (155150)
|
[β β β ]
|
EUR
|
119,000
|
119,000
|
1.000
|
Xxxxxxxxxxxx Beton
GmbH (155150)
|
[β β β ]
|
EUR
|
60,000
|
60,000
|
1.000
|
Xxxxxxxxxxxx Beton
GmbH (155150)
|
[β β β ]
|
EUR
|
170,000
|
170,000
|
1.000
|
Xxxxxxxxxxxx Beton
GmbH (155150)
|
[β β β ]
|
EUR
|
397,631
|
397,631
|
1.000
|
Xxxxxxxxxxxx Beton
GmbH (155150)
|
[β β β ]
|
EUR
|
119,131
|
119,131
|
1.000
|
Xxxxxxxxxxxx Beton
GmbH (155150)
|
[β β β ]
|
EUR
|
49,875
|
49,875
|
1.000
|
Xxxxxxxxxxxx Beton
GmbH (155150)
|
[β β β ]
|
EUR
|
74,000
|
74,000
|
1.000
|
HC
AG
|
[β β β ]
|
EUR
|
210,000
|
210,000
|
1.000
|
HC
AG
|
[β β β ]
|
EUR
|
1,500,000
|
1,500,000
|
1.000
|
HC AG
(105830)
|
[β β β ]
|
EUR
|
51,129
|
51,129
|
1.000
|
HC AG
(105830)
|
[β β β ]
|
EUR
|
8,095
|
8,095
|
1.000
|
HC AG
(105830)
|
[β β β ]
|
EUR
|
353,807
|
353,807
|
1.000
|
HC AG
(105830)
|
[β β β ]
|
EUR
|
50,000
|
50,000
|
1.000
|
HC AG
(105830)
|
[β β β ]
|
EUR
|
575,807
|
575,807
|
1.000
|
Lender/Guarantor
|
Borrower/
Beneficiary
|
Currency
|
Amount
(local
currency)
|
Amount
in EUR
(as
of 04/05/2007)
|
Conversion
rate (as of 04/05/2007)
|
HC AG
(105830)
|
[β β β ]
|
EUR
|
564,025
|
564,025
|
1.000
|
HC AG
(105830)
|
[β β β ]
|
EUR
|
1,034,380
|
1,034,380
|
1.000
|
HC AG
(105840)
|
[β β β ]
|
EUR
|
2,000,000
|
2,000,000
|
1.000
|
Xxxxxxxxxxxx
Kalksandstein GrundstΓΌcks- und Beteiligungs- GmbH & Co.
KG
|
[β β β ]
|
EUR
|
511,292
|
511,292
|
1.000
|
Xxxxxxxxxxxx
Kalksandstein GrundstΓΌcks- und Beteiligungs- GmbH & Co.
KG
|
[β β β ]
|
EUR
|
26,485
|
26,485
|
1.000
|
Xxxxxxxxxxxx
Kalksandstein GrundstΓΌcks- und Beteiligungs- GmbH & Co.
KG
|
[β β β ]
|
EUR
|
3,291,501
|
3,291,501
|
1.000
|
Heidelberger
Kalksandstein GrundstΓΌcks-und Beteiligungs- GmbH & Co.
KG
|
[β β β ]
|
EUR
|
478,238
|
478,238
|
1.000
|
Xxxxxxxxxxxx Sand
und Kies GmbH
|
[β β β ]
|
EUR
|
337,590
|
337,590
|
1.000
|
Xxxxxxxxxxxx Sand
und Kies GmbH
|
[β β β ]
|
EUR
|
750
|
750
|
1.000
|
Xxxxxxxxxxxx Sand
und Kies GmbH
|
[β β β ]
|
EUR
|
1,022,000
|
1,022,000
|
1.000
|
"HeidelbergCement AG
(former Xxxxxxxxx Zement)"
|
[β β β ]
|
EUR
|
945,028
|
945,028
|
1.000
|
"HeidelbergCement AG
(former Xxxxxxxxx Zement)"
|
[β β β ]
|
EUR
|
9,449
|
9,449
|
1.000
|
"HeidelbergCement
Baustoffe fΓΌr Geotechnik GmbH (former AZ BUT)"
|
[β β β ]
|
EUR
|
31,639
|
31,639
|
1.000
|
Lender/Guarantor
|
Borrower/
Beneficiary
|
Currency
|
Amount
(local
currency)
|
Amount
in EUR
(as
of 04/05/2007)
|
Conversion
rate (as of 04/05/2007)
|
HeidelbergCement
AG
|
[β β β ]
|
EUR
|
3,000,000
|
3,000,000
|
1.000
|
"HeidelbergCement AG
(former Xxxxxxxxx Zement) "
|
[β β β ]
|
EUR
|
9,436
|
9,436
|
1.000
|
"HeidelbergCement AG
(former Xxxxxxxxx Zement) "
|
[β β β ]
|
EUR
|
1,023
|
1,023
|
1.000
|
"HeidelbergCement
AG (former Xxxxxxxxx Zement) "
|
[β β β ]
|
EUR
|
6,442
|
6,442
|
1.000
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
48,704,949
|
197,586
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
9,935,676
|
40,307
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
112,021,186
|
454,447
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
974,168
|
3,952
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
974,168
|
3,952
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
340,910
|
1,383
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
4,383,510
|
17,783
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
3,896,426
|
15,807
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
1,168,903
|
4,742
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
374,927
|
1,521
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
584,452
|
2,371
|
246.500
|
Duna
Drava Cement
|
[β β β ]
|
HUF
|
1,948,090
|
7,903
|
246.500
|
Optiroc
SA France
|
[β β β ]
|
EUR
|
22,000
|
22,000
|
1.000
|
maxit
Deutschland GmbH
|
[β β β ]
|
EUR
|
338,000
|
338,000
|
1.000
|
maxit
Baustoffe GmbH, Austria
|
[β β β ]
|
EUR
|
6,000
|
6,000
|
1.000
|
Deitermann GmbH,
Austria
|
[β β β ]
|
EUR
|
96,000
|
96,000
|
1.000
|
m-tec
Iberica SA, Spain
|
[β β β ]
|
EUR
|
7,000
|
7,000
|
1.000
|
maxit AS,
Denmark
|
[β β β ]
|
DKK
|
334,000
|
44,822
|
7.452
|
maxit
Deutschland GmbH
|
[β β β ]
|
EUR
|
89,000
|
89,000
|
1.000
|
Lender/Guarantor
|
Borrower/
Beneficiary
|
Currency
|
Amount
(local
currency)
|
Amount
in EUR
(as
of 04/05/2007)
|
Conversion
rate (as of 04/05/2007)
|
Maxit
France SAS
|
[β β β ]
|
EUR
|
6,000
|
6,000
|
1.000
|
Lehigh
Cement Company
|
[β β β ]
|
USD
|
28,000
|
20,578
|
1.361
|
Lehigh
Cement Company
|
[β β β ]
|
USD
|
100,000
|
73,492
|
1.361
|
Xxxx
Landing Sand & Gravel
|
[β β β ]
|
USD
|
2,876,000
|
2,113,618
|
1.361
|
Texas
Lehigh Cement Company
|
[β β β ]
|
USD
|
625,000
|
459,322
|
1.361
|
Lehigh
Northwest Cement Limited
|
[β β β ]
|
CAD
|
166,000
|
110,358
|
1.504
|
Ferndale
Ready Mix & Gravel Inc.
|
[β β β ]
|
USD
|
2,000
|
1,470
|
1.361
|
Lehigh
|
[β β β ]
|
USD
|
229,727
|
168,830
|
1.361
|
Lehigh
|
[β β β ]
|
CAD
|
618,535
|
411,205
|
1.504
|
Lehigh
|
[β β β ]
|
USD
|
3,463,222
|
2,545,177
|
1.361
|
C&A
Norway
|
[β β β ]
|
NOK
|
1,492,000
|
183,857
|
8.115
|
Cement
Norway
|
[β β β ]
|
NOK
|
6,551,000
|
807,270
|
8.115
|
Cement
Norway
|
[β β β ]
|
NOK
|
7,000,000
|
862,600
|
8.115
|
Reci Esti
AS
|
[β β β ]
|
EEK
|
562,000
|
35,924
|
15.644
|
Scancem
as
|
[β β β ]
|
NOK
|
604,000
|
74,430
|
8.115
|
Concrete
& Aggregates Sweden
|
[β β β ]
|
SEK
|
145,000
|
15,812
|
9.17
|
Cementa
Sweden
|
[β β β ]
|
SEK
|
185,000
|
20,174
|
9.17
|
HC
Northern Europe AB
|
[β β β ]
|
SEK
|
1,611,000
|
175,682
|
9.17
|
Scancem
Treasury SA
|
[β β β ]
|
SEK
|
51,057,590
|
5,567,894
|
9.17
|
Heidelbergcement
Financial Service AB (155120)
|
[β β β ]
|
USD
|
303,783
|
223,255
|
1.361
|
Heidelbergcement
Financial Service AB (155120)
|
[β β β ]
|
EUR
|
567,316
|
567,316
|
1.000
|
Tax
Confirmation
[ON
LETTERHEAD OF LENDER]
To/An:
|
Borrower
|
HeidelbergCement AG β [ ] Facility
Agreement
dated
[ ] (the "Agreement")
Confirmation
Letter for submission to the revenue office for the purposes of Β§ 8 a
XXxX
|
Xxxxxxxxxxxxx
xxx Vorlage beim Finanzamt fΓΌr Zwecke des Β§ 0x XXxX
|
[Xxxxx],
[Date]
Dear
Sirs :
|
Sehr
geehrte Damen und Xxxxxx,
|
We
refer to the EUR [β] facility agreement dated [ ] 2007 between,
amongst others, [β].
|
wir
beziehen uns auf den Darlehensvertrag ΓΌber KreditfazilitΓ€ten in
HΓΆhe von EUR [β] vom [ ] 2007 zwischen, unter anderem,
[β].
|
Save
as defined in this letter, terms defined in the Agreement shall have the
same meaning in this letter.
|
Begriffe,
die im Darlehensvertrag definiert sind, haben in dieser Bescheinigung
dieselbe Bedeutung, es sei denn, sie sind in dieser Bescheinigung
gesondert definiert.
|
You
have asked us to provide a confirmation letter to be presented at the tax
office for the purpose of Sec 8a of the German Corporate Income Tax Act
(KStG).
|
Sie
xxxxxx uns gebeten, zur Vorlage beim Finanzamt fΓΌr Zwecke des Β§ 0x XXxX
xxxx Xxxxxxxxxxxxx auszustellen.
|
In
that regard, we hereby confirm that in respect of the
Facility:
|
Hierzu
erklΓ€ren wir, dass uns bezΓΌglich der unter dem Darlehensvertrag
eingerΓ€umten Kreditlinie:
|
o
|
no
security on capital claims has been provided to us by other persons than
the Borrowers.ii)
|
o
|
keine
Sicherheiten an Kapitalforderungen von anderen Personen als dem
Kreditnehmer gewΓ€hrt wurden.ii)
|
o
|
the
security listed below has been provided to us by persons other than the
Borrowers:
|
o
|
die
nachfolgend aufgefΓΌhrten Sicherheiten von anderen Personen als dem
Kreditnehmer gewΓ€hrt wurden:
|
1.
|
Rights
in
rem
|
1.
|
Dingliche
Sicherheiten
|
Pledge
(e.g. of deposits)
|
Pfandrechte
(z.B. an Einlagen)
|
___________________________________________________________________
___________________________________________________________________
|
____________________________________________________________________
____________________________________________________________________
|
Assignment
for security purposes (e.g. assignment of
receivables)
|
Sicherungsabtretungen
(z.B. Einzelabtretung von
Forderungen)
|
___________________________________________________________________
___________________________________________________________________
|
____________________________________________________________________
____________________________________________________________________
|
2.
|
Personal
security (e.g. suretyship guarantee, co-assumption of
debt)
|
2.
|
Personalsicherheiten
(z.B. BΓΌrgschaft, Garantie,
SchuldmitΓΌbernahme)
|
___________________________________________________________________
___________________________________________________________________
|
____________________________________________________________________
____________________________________________________________________
|
connected
with:
|
verbunden
mit folgenden/r:
|
rights in rem/restriction on disposal (e.g. over deposits) |
dinglichen
Sicherheiten (z.B. an Einlagen)
|
___________________________________________________________________
___________________________________________________________________
|
____________________________________________________________________
____________________________________________________________________
|
assignment for security (e.g. assignment of receivable or pool of receivables) |
Sicherungsabtretungen
(z.B. Einzelabtretungen von Forderungen, Global-/Mantelabtretung von
Forderungen)
|
___________________________________________________________________
___________________________________________________________________
|
____________________________________________________________________
____________________________________________________________________
|
submission
to immediate enforcement into all assets or particular
assets
|
Unterwerfung
unter die sofortige Zwangsvollstreckung mit dem gesamten VermΓΆgen oder
hinsichtlich einzelner
VermΓΆgensgegenstΓ€nde
|
___________________________________________________________________
___________________________________________________________________
|
____________________________________________________________________
____________________________________________________________________
|
agreed restrictions on disposal |
vereinbarten
VerfΓΌgungsbeschrΓ€nkungen
|
___________________________________________________________________
___________________________________________________________________
|
____________________________________________________________________
____________________________________________________________________
|
other
arrangements, e.g. pledge under general terms and conditionsiii).
|
sonstigen
Vereinbarungen (z.B. Pfandrechte unter Allgemeinen
GeschΓ€ftsbedingungen).iii)
|
___________________________________________________________________
___________________________________________________________________
|
____________________________________________________________________
____________________________________________________________________
|
3.
|
Security
in the form described above which was waived during the term of the
loan
|
3.
|
Sicherheiten
der oben genannten Art, auf die wΓ€hrend des bestehenden
DarlehensverhΓ€ltnisses verzichtet
wurde.
|
___________________________________________________________________
___________________________________________________________________
|
____________________________________________________________________
____________________________________________________________________
|
other
comments (did any person (other than the Borrower) grant security without
releasing the Lender from Banking secret?)
|
Sonstige
Anmerkungen (hat insbesondere eine andere Person als der Kreditnehmer
Sicherheiten bestellt ohne den Kreditgeber von den BeschrΓ€nkungen des
Bankgeheimnisses zu befreien?)
|
___________________________________________________________________
___________________________________________________________________
|
____________________________________________________________________
____________________________________________________________________
|
The
confirmation letter contains only information known by the persons at the
Lender involved in the financing referred to above.
|
Die
Bescheinigung enthΓ€lt nur solche Angaben, die dem bei dem unterzeichnenden
Kreditgeber mit vorgenannten Finanzierung vertrauten Personenkreis bekannt
sind.
|
By
issuing this Confirmation Letter, for legal reasons, the Lender does not
provide any tax advice. In particular, the Lender does not guarantee that
any tax consequences that is sought by means of this confirmation letter
is achieved.
|
Der
unterzeichnende Kreditgeber ΓΌbernimmt mit dieser ErklΓ€rung β bereits aus
rechtlichen Xxxxxxx β keine Beratung in steuerlichen Angelegenheiten.
Insbesondere steht der unterzeichnende Kreditgeber nicht fΓΌr einen
steuerlichen Erfolg ein, der mit dieser Bescheinigung angestrebt
wird.
|
The
German version of this confirmation shall be
binding.
|
Die
Deutsche Fassung dieser BestΓ€tigung ist bindend.
|
With
kind regards,
[LENDER]
|
Mit
freundlichen GrΓΌΓen
[KREDITGEBER]
|
ii)
|
The
list of securities granted by third parties must be supplied and the
grantors of the securities must be named regardless of whether not merely
short-term deposits or not merely short-term other capital claims within
the meaning of marginal note 20 of the FMoF letter of 15 July 2004 on sec.
8a of the German Corporate Income Tax Act (Federal Tax Gazette 2004 I, p.
593) are involved. Furthermore, this information must be provided
regardless of whether the security depends on the fulfilment of a
condition (e.g. security is provided or the debt secured falls due) or on
the expiration of a period.
|
ii)
|
Die
AufzΓ€hlung der von Dritten gewΓ€hrten Sicherheiten und die namentliche
Auflistung der Sicherheitengeber erfolgt unabhΓ€ngig davon, ob es sich
dabei um nicht nur kurzfristige Einlagen oder nicht nur kurzfristige
sonstige Kapitalforderungen i.S.d. Rdnr. 20 des BMF-Schreibens vom 15.
Juli 2004 zu Β§ 0x XXxX (XXxXx. I 2004 S. 593) handelt. Sie erfolgt xxxxxx
unabhΓ€ngig davon, ob die Sicherheit vom Eintritt einer Bedingung (z.B. dem
Sicherungsfall oder der FΓ€lligkeit der gesicherten Xxxxxx) oder dem Ablauf
einer Xxxxx abhΓ€ngig ist.
|
iii)
|
All
the securities and trust relationships granted for the loan must also be
included (e.g. encumbrance of real property, mortgage, letter of
responsibility, assignment as security)
|
iii)
|
EinzufΓΌgen
sind xxxxxx sΓ€mtliche fΓΌr das Darlehen/den Kredit bestellten Sicherheiten
und TreuhandverhΓ€ltnisse (z.B. Grundschuld, Hypothek, PatronatserklΓ€rung,
SicherungsΓΌbereignung).
|
Form
of Assignment Certificate
|
To:
|
[ ]
as Agent
|
|
From:
|
[The
Existing Lender] (the "Existing
Lender") and [The New Lender] (the "New Lender")
|
Dated:
HeidelbergCement
AG β [ ] Facility Agreement
dated
[ ] (the " Agreement")
1.
|
We
refer to the Agreement. This is an Assignment Certificate. Terms defined
in the Agreement have the same meaning in this Assignment Certificate
unless given a different meaning in this Assignment
Certificate.
|
2.
|
We
refer to Clause 28.5 (Procedure for
assignment and transfer by assumption of contract
(VertragsΓΌbernahme)) of the
Agreement:
|
|
(a)
|
The
Existing Lender and the New Lender agree to the Existing Lender assigning
all or part of the Existing Lenderβs rights referred to in the
Schedule.
|
|
(b)
|
The
proposed Assignment Date is
[ ].
|
|
(c)
|
The
Facility Office and address, fax number and attention details for notices
of the New Lender for the purposes of Clause 35.2 (Addresses) of the
Agreement are set out in the
Schedule.
|
3.
|
The
New Lender confirms that it will assume the same obligations to the other
Finance Parties as it would have been subject to if the New Lender would
have been an Original Lender to the extent such obligations relate to the
assigned claims including, without limitation, any obligations under
Clause 32 (Sharing
among the Finance Parties) of the
Agreement.
|
4.
|
The
New Lender expressly acknowledges the limitations on the Existing Lenderβs
obligations set out in paragraph (c) of Clause 28.4 (Limitation of responsibility
of Existing Lenders) of the
Agreement.
|
5.
|
The
New Lender confirms that it assumes the same obligations to the other
Finance Parties as it would have been subject to if the New Lender would
have been an Original Lender.
|
6.
|
This
Assignment Certificate may be executed in any number of counterparts and
this has the same effect as if the signatures on the counterparts were on
a single copy of this Transfer
Certificate.
|
7.
|
This
Assignment Certificate is governed by German
law.
|
THE
SCHEDULE
Rights
to be assigned
[insert relevant
details]
[Facility
Office address, fax number and attention details for notices and account details
for payments,]
[Existing
Lender]
|
[New
Lender]
|
By:
|
By:
|
This
Assignment Certificate is accepted by the Agent on
[_______].
|
|
[Agent]
|
|
By:
|
List
of Material Companies
Company
|
|
ABETON
|
Abetong
AB
|
AZBUT
|
Xxxxxxxxx
Xxxxx. f. Umwelt u. Tiefbau GmbH & Xx.XX
|
BEAMIX
|
Beamix
Holding B.V.
|
BETIND
|
Betongindustri
AB
|
CCHRON
|
CarpatCement
Holding SA (XXX)
|
CEMUK
|
Castle
Cement Ltd.
|
CBRIS
|
Cbr
International Services S.A
|
CCNNCO
|
Cement
Company of Northern Nigeria
|
CEMAB
|
Cementa
AB
|
CESCEM
|
Ceskomoravsky
Cement a.s.
|
CBRSA
|
Cimenteries
CBR S.A.
|
CIMTOG
|
Ciments
du Togo SA
|
SSP
|
CMS
Ceskomoravske Sterkovny
|
DONCEM
|
Doncement
JSC
|
DDC
|
Duna
Drava Cement
|
ENCICM
|
ENCI
B.V.
|
MaxitFranken
|
Xxxxxxx
Maxit MauermΓΆrtel GmbH
|
GHACEM
|
Ghacem
Ltd
|
XXXXXX
|
Gorazdze
Beton (BT Gliwice)
|
GORAZD
|
Gorazdze
Cement A.S.
|
HCTINT
|
HC
Trading International Inc.
|
HZAG
|
HeidelbergeCement
AG
|
BANGRP
|
HeidelbergCement
Bangladesh Ltd
|
DKBET
|
HeidelbergCement
Beton A/S
|
HZFIN
|
HeidelbergCement
Finance B.V.
|
HZFSAB
|
HeidelbergCement
Financial Services AB
|
HDKASA
|
Xxxxxxxxxxxx
Kalksandstein GmbH
|
KRYVYI
|
Kryvyi
Rih Cement
|
KUNDA
|
Kunda
Nordic Cement
|
HCILEG
|
Lehigh
Cement Co., USA (Subgroup)
|
LPCLCN
|
Lehigh
Cement Limited, Canada (Subgroup)
|
Optiroc
a.s, Norway
|
maxit
a.s, Norway
|
maxit
A/S
|
maxit
A/S
|
maxit
AB
|
maxit
AB
|
maxit
AG, Switzerland
|
maxit
AG, Switzerland
|
MAXITD
|
Maxit
Deutschland GmbH
|
Optiroc
Oy Ab
|
maxit
Oy Ab
|
Optiroc
EspaΓ±a S.L.
|
maxit
S.L.
|
XXXXX
|
Xxxxx
B.V.
|
m-tec
|
m-tec
xxxxxx technik GmbH
|
MYSORE
|
Mysore
Cement Ltd.
|
NORBET
|
Norbeton
a.s
|
NORCAS
|
Norcem
a.s
|
NORSTO
|
NorStone
a.s
|
INDO
|
PT
Indocement Tunggal Prakarsa Tbk.
|
-
169 -
BETONB
|
Readymix
Belgien
|
JEHAND
|
Sand
& Grus AB Jehander
|
CAPITA
|
Scancem
Treasury S.A.
|
GABOCO
|
SociΓ©tΓ©
des Ciments du Gabon
|
SRM
|
SRM
Ltd
|
TPCCCO
|
Tanzania
Portland Cement Company
|
TEUTON
|
Teutonia
Zementwerk AG
|
KAKANJ
|
Tvornica
cementa Kakanj d.d.
|
VOSTOK
|
Vostok
XX
|
Xxxxxx
Plc
|
SIGNATURES
THE
COMPANY
HEIDELBERGCEMENT
AG
By:
|
|
Address:
|
Xxxxxxxx
Xxxxxxx 0
00000
Xxxxxxxxxx
Xxxxxxx
|
Fax:
|
x00
0000 000 000
|
THE
ORIGINAL BORROWERS
HEIDELBERGCEMENT
AG
By:
|
|
Address:
|
Xxxxxxxx
Xxxxxxx 0
00000
Xxxxxxxxxx
Xxxxxxx
|
Fax:
|
x00
0000 000 000
|
HEIDELBERGCEMENT
FINANCE B.V
By:
|
|
Address:
|
Xxxx
Xxxxxxxxxx 0
0000
XX'x-Xxxxxxxxxxxxx
The
Netherlands
|
Fax:
|
x00
0000 00 000
|
THE
GUARANTOR
HEIDELBERGCEMENT
AG
By:
|
|
Address:
|
Xxxxxxxx
Xxxxxxx 0
00000
Xxxxxxxxxx
Xxxxxxx
|
Fax:
|
x00
0000 000 000
|
THE
ARRANGER
DEUTSCHE
BANK AG
By:
|
|
Address:
|
Global
Banking β Loan Capital Markets Frankfurt
GroΓe
Xxxxxxxxxxxxx 00-00 (0. xxxxx)
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
|
Fax:
|
x00
00 000 00000
|
THE ROYAL
BANK OF SCOTLAND PLC
By:
|
|
Address:
|
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
|
Fax:
|
x00
00 0000 0000
|
Attn.:
|
Xxxxxxxxx
Xxxxxx/Xxxx Xxxxx
|
THE
AGENT
THE ROYAL
BANK OF SCOTLAND PLC
By:
|
|
Address:
|
000
Xxxxxxxxxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
|
Fax:
|
x00
00 0000 0000
|
Attn.:
|
Syndicated
Loans Agency
Attention
of Xxxxxx Xxxxxxx
|
THE
ORIGINAL LENDERS
THE ROYAL
BANK OF SCOTLAND PLC, NIEDERLASSUNG FRANKFURT
By:
|
|
Address:
|
Xxxxxxxxxxxxxx
00
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
|
Fax:
|
x00
00 00000 000
|
Attn.:
|
Xxxxxx
Xxxxxx/Xxx X'Xxxxxxxx
|
DEUTSCHE
BANK LUXEMBOURG S.A.
By:
|
|
Address:
|
0,
Xxxxxxxxx Xxxxxx Xxxxxxxx
X-000
Xxxxxxxxxx
|
Fax:
|
x000
00000 00000
|
THE
ANCILLARY LENDERS
DEUTSCHE
BANK AG
By:
|
|
Address:
|
Global
Banking β Loan Capital Markets Frankfurt
GroΓe
Xxxxxxxxxxxxx 00-00 (0. xxxxx)
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
|
Fax:
|
x00
00 000 00000
|
THE ROYAL
BANK OF SCOTLAND PLC
By:
|
|
Address:
|
Xxxxxxxxxxxxxx
00
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
|
Fax:
|
x00
00 00000 000
|
Attn.:
|
Xxxxxx
Xxxxxx/Xxx X'Xxxxxxxx
|
- 174 -