Exhibit 2
_________________________________________________
[e]227,000,000
TERM FACILITIES
AND REVOLVING CREDIT AGREEMENT
_________________________________________________
DATED 3 FEBRUARY 2004
FOR
SGL CARBON AKTIENGESELLSCHAFT
AS THE COMPANY AND AS AN ORIGINAL BORROWER
BAYERISCHE LANDESBANK
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
DEUTSCHE BANK AG
AND
DRESDNER KLEINWORT XXXXXXXXXXX
AS MANDATED LEAD ARRANGERS
DEUTSCHE BANK LUXEMBOURG S.A.
AS FACILITY AGENT AND SECURITY AGENT
WITH
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
AS DOCUMENTATION AGENT
XXXXX & XXXXXXXX
FRANKFURT
CONTENTS
Clause Page
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION........................................ 1
SECTION 2
THE FACILITIES
2. THE FACILITIES........................................................ 1
3. PURPOSE............................................................... 1
4. CONDITIONS OF UTILISATION............................................. 1
SECTION 3
UTILISATION
5. UTILISATION........................................................... 1
6. CHANGE OF CURRENCY.................................................... 41
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT............................................................. 1
8. COMPANY'S LIABILITIES IN RELATION TO THE LETTER OF CREDIT............. 43
9. PREPAYMENT AND CANCELLATION........................................... 1
SECTION 5
COSTS OF UTILISATION
10. INTEREST.............................................................. 1
11. INTEREST PERIODS AND THE TERM......................................... 1
12. CHANGES TO THE CALCULATION OF INTEREST................................ 1
13. FEES.................................................................. 1
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. TAX GROSS UP AND INDEMNITIES.......................................... 1
15. INCREASED COSTS....................................................... 1
16. OTHER INDEMNITIES..................................................... 1
17. MITIGATION BY THE LENDERS............................................. 1
18. COSTS AND EXPENSES.................................................... 1
SECTION 7
GUARANTEE
19. GUARANTEE AND INDEMNITY............................................... 1
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTATIONS....................................................... 72
21. INFORMATION UNDERTAKINGS.............................................. 1
22. FINANCIAL COVENANTS................................................... 1
23. GENERAL UNDERTAKINGS.................................................. 1
24. EVENTS OF DEFAULT.....................................................107
SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS................................................ 1
26. CHANGES TO THE OBLIGORS............................................... 1
SECTION 10
THE FINANCE PARTIES
27. ROLE OF THE FACILITY AGENT, THE SECURITY AGENT, THE DOCUMENTATION
AGENT, THE MANDATED LEAD ARRANGERS AND THE COMPANY AS AGENT OF THE
OBLIGORS.............................................................. 1
28. THE LENDERS, THE ISSUING BANKS AND THE SUFACILITY BANKS...............124
29. CONDUCT OF BUSINESS BY THE FINANCE PARTIES............................ 1
30. SHARING AMONG THE LENDERS AND THE ISSUING BANKS....................... 1
SECTION 11
ADMINISTRATION
31. PAYMENT MECHANICS..................................................... 1
32. SET-OFF............................................................... 1
33. NOTICES............................................................... 1
34. CALCULATIONS AND CERTIFICATES......................................... 1
35. PARTIAL INVALIDITY.................................................... 1
36. REMEDIES AND WAIVERS.................................................. 1
37. AMENDMENTS AND WAIVERS................................................ 1
38. COUNTERPARTS.......................................................... 1
SECTION 12
GOVERNING LAW AND ENFORCEMENT
39. GOVERNING LAW......................................................... 1
40. ENFORCEMENT........................................................... 1
Schedules
SCHEDULE 1 The Original Parties............................................. 1
SCHEDULE 2 Conditions Precedent and Conditions Subsequent................... 1
SCHEDULE 3 Requests......................................................... 1
SCHEDULE 4 Mandatory Cost Formula........................................... 1
SCHEDULE 5 Form of Transfer Certificates.................................... 1
SCHEDULE 6 Form of Accession Letter......................................... 1
SCHEDULE 7 Form of Compliance Certificate................................... 1
SCHEDULE 8 Existing Security................................................ 1
SCHEDULE 9 LMA Form of Confidentiality Undertaking.......................... 1
SCHEDULE 10 Timetables...................................................... 1
SCHEDULE 11 Form of Security Trust Agreement................................ 1
SCHEDULE 12 Borrowers and their Allocations................................. 1
SCHEDULE 13 Current Material Subsidiaries................................... 1
SCHEDULE 14 Form of Letter of Credit........................................ 1
SCHEDULE 15 Existing Competition Law Proceedings and Anti-Trust Lawsuits.... 1
SCHEDULE 16 Existing Intra-Group Loans...................................... 1
SCHEDULE 17 Existing Indebtedness........................................... 1
SCHEDULE 18 Form of Intercreditor Agreement................................. 1
THIS AGREEMENT is dated 3 February 2004 and made between:
(1) SGL CARBON AKTIENGESELLSCHAFT, Wiesbaden (the "COMPANY");
(2) THE COMPANY and THE COMPANIES listed in Part I of Schedule 1 as original
borrowers (the "ORIGINAL BORROWERS");
(3) THE COMPANIES listed in Part I of Schedule 1 as original guarantors (the
"ORIGINAL GUARANTORS");
(4) BAYERISCHE LANDESBANK, CREDIT SUISSE FIRST BOSTON INTERNATIONAL, DEUTSCHE
BANK AG and DRESDNER KLEINWORT XXXXXXXXXXX, THE INVESTMENT BANKING
DIVISION OF DRESDNER BANK AG as Mandated Lead Arrangers (the "MANDATED
LEAD ARRANGERS");
(5) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as lenders
(the "ORIGINAL LENDERS");
(6) DEUTSCHE BANK LUXEMBOURG S.A. as Facility Agent and Security Agent for
the Lenders (the "FACILITY AGENT" and the "SECURITY AGENT"); and
(7) CREDIT SUISSE FIRST BOSTON INTERNATIONAL as Documentation Agent (the
"DOCUMENTATION AGENT").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a Borrower Accession Letter or a Guarantor
Accession Letter and "ACCESSION LETTERS" shall be construed accordingly.
"ACQUISITION" means:
(i) the purchase, subscription for or other acquisition of any shares
(or other securities or any interest therein) in, or
incorporation, formation or organisation of, any other company; or
(ii) the purchase or other acquisition of any assets or (without
limitation to any of the foregoing) acquisition of any business or
interest therein.
"ADDITIONAL BORROWER" means any Material Subsidiary (other than the
Issuer) that becomes an Additional Borrower in accordance with Clause 26
(Changes to the Obligors).
"ADDITIONAL EU COMPETITION LAW LIABILITIES" means the fine imposed on the
Company or any Group Member by the competition directorate of the
European Commission in the
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amount of [e]23,600,000 in relation to the EU Competition Law
Proceedings, listed on Schedule 15 (Existing Competition Law Proceedings
and Anti-Trust Lawsuits), No. 3.
"ADDITIONAL GUARANTOR" means a company (other than the Issuer) that
becomes an Additional Guarantor in accordance with Clause 26 (Changes to
the Obligors).
"ADDITIONAL OBLIGOR" means an Additional Borrower or an Additional
Guarantor.
"ADMINISTRATIVE AGENT" means Credit Suisse First Boston as administrative
agent under the US Term Loan Agreement.
"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.
"ALLOCATION" means in relation to each Borrower, the amount set opposite
its name under the heading "Amount of such Borrower's Allocation" in
Schedule 12 (Borrowers and their Allocations), being the maximum amount
of Term Facility A, Term Facility B, Term Facility C and the Revolving
Credit Facility that may be drawn down by that particular Borrower.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
"AVAILABILITY PERIOD" means:
(a) in relation to Term Facility A and Term Facility C, the period
from and including the Signing Date up to and including 23
February 2004;
(b) in relation to Term Facility B, the period from and including the
Signing Date up to and including the date occurring one (1) Month
prior to the Termination Date applicable to the Term Facility B;
provided that the Availability Period for Term Facility B shall
end upon the Utilisation of both Letters of Credit for the
Original EU Competition Law Liabilities; and
(c) in relation to the Revolving Credit Facility, the period from and
including the Signing Date up to and including the date occurring
one (1) Month prior to the Termination Date applicable to the
Revolving Credit Facility.
"AVAILABLE COMMITMENT" means in relation to a Facility, a Lender's
Commitment under that Facility minus the amount of its participation in
the Letters of Credit and/or minus the Euro Amount of its participation
in any Revolving Credit Facility Loans and/or minus the amount in Euros
of its participation in any amount outstanding under the Term Facility
Loans; and in relation to any proposed Utilisation, means that difference
adjusted as follows:
(a) by subtracting therefrom the amount of its participation in any
Loans (and subtracting therefrom the Euro Amount in the case of
the Revolving Credit Facility) that are due to be made or issued
under that Facility on or before the proposed Utilisation Date;
and
(b) in relation to the Revolving Credit Facility only, by adding
thereto the Euro Amount of its participation in any Revolving
Credit Facility Loans that are due to be repaid or prepaid (or, if
any Revolving Credit Facility Loan is due to be repaid or
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prepaid in part, the Euro Amount of its participation in that
part) on or before the proposed Utilisation Date.
"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.
"BAFIN" means Bundesanstalt f{u"}r Finanzdienstleistungsaufsicht.
"BASE FINANCIAL STATEMENTS" means:
(a) the consolidated financial statements of the Group for the
financial year ended 31 December 2002 prepared by the Company and
audited by BDO; and
(b) the unaudited consolidated interim financial statements of the
Company as of and for the nine months ended 30 September 2003.
"BDO" means Deutsche Warentreuhand AG - Wirtschaftsprufungs-
gesellschaft.
"BORROWER" means each Original Borrower and an Additional Borrower unless
it has ceased to be a Borrower in accordance with Clause 26 (Changes to
the Obligors).
"BORROWER ACCESSION LETTER" means a document substantially in the form
set out in Part I of Schedule 6 (Form of Accession Letter).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest which a Finance Party 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 or Term 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 or Term,
exceeds:
(b) the amount which that Finance Party would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the Relevant
Interbank Market for a period starting on the Business Day
following receipt or recovery and ending on the last day of the
current Interest Period or Term.
"BRIDGE ARRANGERS" means Credit Suisse First Boston International and
Deutsche Bank AG London.
"BRIDGE LENDERS" means the lenders making available the Bridge Loan from
time to time.
"BRIDGE LOAN" means the loan agreement to be entered into by, inter alia,
the Company as borrower and Credit Suisse First Boston International and
Deutsche Bank AG London as lenders providing for bridge loans in an
amount of up to [e]270,000,000, as amended from time to time.
"BRIDGE LOAN AGENT" means Credit Suisse First Boston International, as
agent with respect to the Bridge Loan.
3
"BRIDGE LOAN DOCUMENTS" means the Bridge Loan, the Intercreditor
Agreement, the Exchange Notes Indenture, the Exchange Notes Registration
Rights Agreement, the Exchange Notes Escrow Agreement, any fee letter,
any security document, any accession letter, any hedging agreement, any
transfer certificate, any subfacility document and any other document
designated as such by the Bridge Loan Agent and the Company and "Bridge
Loan Document" means any of them.
"BUDGET" means with respect to each financial year commencing on or after
1 January 2004, the latest annual budget delivered by the Company to the
Facility Agent pursuant to Clause 21.4 (Budgets).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London, Frankfurt am Main and
Luxembourg and:
(a) (in relation to any date for payment or purchase of a currency
other than Euro) the principal financial centre of the country of
that currency; or
(b) (in relation to any date for payment or purchase of Euro) any
TARGET Day.
"CANADIAN COMPETITION LAW LIABILITIES" means the fines imposed on the
Company or any Group Member by the Canadian antitrust authorities in
relation to Existing Competition Law Proceedings in Canada in the
outstanding amount of Canadian Dollar 6,000,000 as of the Signing Date.
"CARTEL DEPOSIT ACCOUNT" means the account of the Company established
with Deutsche Bank, Augsburg Branch to fund the Additional EU Competition
Law Liabilities, the Canadian Competition Law Liabilities, any civil
lawsuits settled in 2004 up to an amount of Euro 3,000,000, and the US
Competition Law Liabilities, in each case including interest accruing
thereon and currency hedging losses with respect thereto up to the amount
of [e]125,300,000 (or its equivalent in another currency or currencies),
over which the Lenders are granted first ranking and the Bridge Lenders
are granted second ranking security.
"CARTEL DEPOSIT ACCOUNT AGREEMENT" means the agreement establishing the
Cartel Deposit Account.
"CASH COLLATERAL" means, in relation to any Letter of Credit or Letter of
Credit Proportion of any Letter of Credit, a cash deposit in an interest-
bearing account or accounts with the Facility Agent (or such other
financial institution reasonably acceptable to the Facility Agent) in the
name of the Company (and identified as a Cash Collateral account), that
cash deposit and account to be secured in favour of the Security Agent
and the relevant Lenders on terms and conditions acceptable to the
Facility Agent and the Security Agent.
"CASH COLLATERAL DOCUMENTS" means any documents, as the Facility Agent
and the Security Agent may specify, to be entered into in relation to the
Cash Collateral.
"CASH EQUIVALENTS" has the meaning given to it in Clause 22.1 (Financial
Definitions).
"CHANGE OF CONTROL" means if any person or group of persons acting in
concert gains control of the Company or becomes a Holding Company of the
Company.
For the purposes of this definition:
(a) "CONTROL" means:
4
(i) the holding of more than fifty (50) per cent. of the issued
share capital of the Company; or
(ii) the possession, directly or indirectly, of the power
(whether by way of ownership, shares, proxy, contract,
agency or otherwise) to (A) cast, or direct the casting of,
more than fifty (50) per cent. of the maximum number of
votes that might be cast at a general meeting of the
shareholders of the Company, (B) appoint or remove all, or
the majority of, the directors or other equivalent officers
of the Company, or (C) give directions with respect to the
operating and financial policies of the Company which the
directors or other equivalent officers thereof are obliged
to comply with; and
(b) "PERSONS ACTING IN CONCERT" comprise persons who, pursuant to an
agreement or understanding (whether formal or informal), actively
co-operate to obtain or consolidate control of an entity.
"CHARGED ASSETS" means any assets of any Obligor that are secured in
favour of the Security Agent and/or the other Finance Parties pursuant to
the Security Documents or any of them.
"CLOSING" means the date on which all the conditions precedent as set out
in Part II of Schedule 2 (Conditions Precedent and Conditions Subsequent)
are satisfied in accordance with Clause 4 (Conditions of Utilisation), or
waived.
"CLOSING DATE" means the date on which the Closing takes place.
"CODE" means the U.S. Internal Revenue Code of 1986, as amended.
"COMMITMENT" means a Term Facility A Commitment, a Term Facility B
Commitment, a Term Facility C Commitment or a Revolving Credit Facility
Commitment in each case as reduced or increased from time to time by any
transfer or assignment pursuant to Clause 25 (Changes to the Lenders) and
in the case of a Subfacility, as reduced or increased pursuant to Clause
2.2(c), and "COMMITMENTS" shall be construed accordingly.
"COMPETITION LAW LIABILITIES" means the fines imposed on the Company or
any Group Member by any relevant court or authority in relation to
Existing Competition Law Proceedings in the amounts as set out in
Schedule 15 (Existing Competition Law Proceedings and Anti-Trust
Lawsuits).
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 7 (Form of Compliance Certificate).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 9
(LMA Form of Confidentiality Undertaking) or in any other form agreed
between the Company and the Facility Agent.
"CONVERT DEPOSIT ACCOUNT" means the account of the Company established
with Credit Suisse First Boston, Frankfurt Branch to fund the repurchase
of the Convertible Bond, over which the Lenders are granted first ranking
and the Bridge Lenders are granted second ranking security.
5
"CONVERT DEPOSIT ACCOUNT AGREEMENT" means the agreement establishing the
Convert Deposit Account.
"CONVERTIBLE BOND(S)" means, collectively, the 3.5% convertible bonds
issued by the Company in 2000 and due in 2005.
"DANGEROUS SUBSTANCE" means any radioactive emissions, noise and any
natural or artificial substance (in whatever form) the generation,
transportation, storage, treatment, use or disposal of which (whether
alone or in combination with any other substance) gives rise to a risk of
causing harm to man or any other living organism or damaging the
Environment or public health or welfare, including (without limitation)
any controlled, special, hazardous, toxic, radioactive or dangerous
waste.
"DEBT ISSUE" means any issue after the date of this Agreement of public
or privately placed debt securities of any Group Member.
"DEFAULT" means an Event of Default or any event or circumstance
specified in Clause 24 (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.
"DEFAULT MARGIN" means the aggregate of the applicable Margin plus 1.25
per cent. per annum.
"DORMANT COMPANY" means each Group Member (i) which has been dormant
since its incorporation or since the end of its previous financial year;
and (ii) the value of whose total gross assets is less than [e]100,000
(or its equivalent in another currency or currencies).
"EMPLOYEE PLAN" means an "EMPLOYEE BENEFIT PLAN" as defined in section 3
(3) of ERISA, other than a Multiemployer Plan, which is maintained for,
or under which contributions are made on behalf of, employees of a US
Group Member or any ERISA Affiliate.
"ENVIRONMENT" means all, or any of, the following media: the air
(including, without limitation, the air within buildings and the air
within other natural or man-made structures above or below ground), water
(including, without limitation, ground and surface water) and land
(including, without limitation, surface and sub-surface soil).
"ENVIRONMENTAL CLAIM" means any claim by any person:
(a) in respect of any loss or liability suffered or incurred by that
person as a result of or in connection with any violation of
Environmental Law; or
(b) that arises as a result of or in connection with Environmental
Contamination and that could give rise to any remedy or penalty
(whether interim or final) that may be enforced or assessed by
private or public legal action or administrative order or
proceedings.
6
"ENVIRONMENTAL CONTAMINATION" means each of the following and their
consequences:
(a) any release, discharge, emission, leakage or spillage of any
Dangerous Substance at or from any site owned, leased, occupied or
used by any Group Member into any part of the Environment; or
(b) any accident, fire, explosion or sudden event at any site owned,
leased, occupied or used by any Group Member which is directly or
indirectly caused by or attributable to any Dangerous Substance;
or
(c) any other pollution of the Environment.
"ENVIRONMENTAL LAW" means all laws (including, without limitation, common
law), regulations, directives, codes of practice, circulars, guidance
notices and the like having legal effect concerning the protection of
human health, the Environment, the conditions of the work place or the
generation, transportation, storage, treatment or disposal of Dangerous
Substances.
"ENVIRONMENTAL LICENCE" means any permit, licence, authorisation, consent
or other approval required by any Environmental Law.
"EQUITY ISSUE" means any issue of shares by any Group Member or any issue
or grant of rights to subscribe for shares in any Group Member, other
than any issue of shares or rights to subscribe for shares under a stock
option or similar program of the Company, whereby such issue or granting
of rights is funded through cash payments provided by any third party not
being a Group Member
"ERISA" means the US Employee Retirement Income Security Act of 1974 or
any successor legislation to that Act and the regulations promulgated and
rulings issued under that Act or any such successor legislation.
"ERISA AFFILIATE" means any person that for purposes of Title I and Title
IV of ERISA and section 412 of the Code is a member of a US Group
Member's controlled group, or under common control with a US Group
Member, within the meaning of section 414(b) or (c) of the Code.
"ERISA EVENT" means:
(a) any reportable event, as defined in section 4043 of ERISA, with
respect to an Employee Plan, as to which PBGC has not by
regulation waived the requirement of section 403(a) of ERISA that
it be notified within thirty days of the occurrence of such event
(provided that a failure to meet the minimum funding standard of
section 412 of the Code or section 302 of ERISA shall be a
reportable event for the purposes of this paragraph (a) regardless
of the issuance of any waivers in accordance with section 412(d)
of the Code) or the requirements of subsection (1) of section
403(b) of ERISA (taking into account subsection (2) of such
section) are met with respect to a contributing sponsor, as
defined in section 4001(a)(13) of ERISA, of an Employee Plan and
an event described in paragraph (9), (10), (11) (12 or (13) of
section 4043(c) of ERISA is reasonably expected to occur with
respect to such Employee Plan within the following 30 days;
7
(b) the filing under section 4041(c) of ERISA of a notice of intent to
terminate any Employee Plan or the termination of any Employee
Plan under section 4041(c) of ERISA;
(c) the institution of proceedings under section 4042 of ERISA by the
PBGC for the termination of, or the appointment of a trustee to
administer, any Employee Plan;
(d) the failure to make a required contribution to any Employee Plan
that would result in the imposition of an Encumbrance under
section 412 of the Code or section 302 of ERISA; and
(e) an engagement in a non-exempt prohibited transaction within the
meaning of section 4795 of the Code or section 406 of ERISA which
upon the occurrence of any of the events described in paragraphs
(a) to (c) (inclusive) above could reasonably be expected to have
a Material Adverse Effect.
"EU COMPETITION LAW LIABILITIES" means the Original EU Competition Law
Liabilities and the Additional EU Competition Law Liabilities.
"EU COMPETITION LAW PROCEEDINGS" means the Existing Competition Law
Proceedings initiated by the competition directorate of the European
Commission.
"EURIBOR" means, in relation to any Loans in Euros:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the period of that Loan) the
arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Facility Agent at its request quoted by
the Reference Banks to Prime Banks in the European interbank
market,
as of the Specified Time on the Quotation Day for the offering of
deposits in Euros for a period comparable to the Interest Period of the
relevant Loan.
"EURO AMOUNT" means, in relation to a Revolving Credit Facility Loan, the
amount specified in the Utilisation Request for that Revolving Credit
Facility Loan (or, if the amount requested is not denominated in Euros,
that amount converted into Euros at the Facility Agent's Spot Rate of
Exchange on the date which is in relation to a Utilisation three (3)
Business Days before the Utilisation Date or, if later, on the date the
Facility Agent receives the Utilisation Request, adjusted to reflect any
repayment, prepayment, consolidation or division or reduction of the
Revolving Credit Facility Loan).
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 24 (Events of Default).
"EXCESS CASH FLOW" has the meaning given to it in Clause 22.1 (Financial
Definitions).
"EXCHANGE NOTES" means the high yield exchange notes issued or to be
issued by the Issuer in exchange for Bridge Loans, escrowed on the
Closing Date, and issued in accordance with the terms of the Bridge Loan
and the related Bridge Loan Documents; provided that such high yield
exchange notes are subject to the terms of, and issued in accordance with
the provisions set forth in the Intercreditor Agreement.
8
"EXCHANGE NOTES ESCROW AGENT" means the entity named as escrow agent
under the Exchange Notes Escrow Agreement.
"EXCHANGE NOTES ESCROW AGREEMENT" means the escrow agreement to be dated
the Closing Date, relating to the escrow of the Exchange Notes on the
Closing Date, among the Company, the Issuer, the Bridge Loan Agent, the
Exchange Notes Trustee and the Exchange Notes Escrow Agent.
"EXCHANGE NOTES INDENTURE" means the indenture governing the Exchange
Notes, to be dated the Closing Date, among the Issuer, the Exchange Notes
Trustee and the Subordinated Guarantors.
"EXCHANGE NOTES INVESTORS" means the noteholders of the Exchange Notes
from time to time.
"EXCHANGE NOTES REGISTRATION RIGHTS AGREEMENT" means the registration
rights agreement, to be dated the Closing Date, relating to the
registration of the Exchange Notes with the US Securities and Exchange
Commission.
"EXCHANGE NOTES SECURITY AGENT" means the entity or entities named as
security agent for the Exchange Notes Investors under the Exchange Notes.
"EXCHANGE NOTES TRUSTEE" means The Bank of New York as the trustee for
the Exchange Notes Investors under the Exchange Notes.
"EXISTING COMPETITION LAW PROCEEDINGS" means the competition law related
litigation, civil lawsuits and/or other proceedings of or before any
court or agency set out in Schedule 15 (Existing Competition Law
Proceedings and Anti-Trust Lawsuits).
"EXISTING INDEBTEDNESS" means the Financial Indebtedness of the Group
outstanding on the Signing Date as set out in Schedule 17 (Existing
Indebtedness).
"EXPIRY DATE" means, in relation to any Letter of Credit, the date on
which the maximum aggregate liability under it is to be reduced to zero.
"FACILITIES" means Term Facility A, Term Facility B, Term Facility C and
the Revolving Credit Facility and "FACILITY" shall be construed
accordingly.
"FACILITY AGENT'S SPOT RATE OF EXCHANGE" means the Facility Agent's spot
rate of exchange for the purchase of the relevant currency with Euros in
the London foreign exchange markets at or about 11:00 a.m. London time on
a particular day.
"FACILITY OFFICE" means the office or offices notified by a Lender or a
Issuing Bank to the Facility Agent in writing on or before the date it
becomes a Lender or a Issuing Bank (or, following that date, by not less
than five (5) Business Days' written notice) as the office or offices
through which it will perform its obligations under this Agreement.
"FEE LETTERS" means any letter or letters dated on the Signing Date
between the Mandated Lead Arrangers and the Company (or the Facility
Agent or the Security Agent or a Issuing Bank and the Company) setting
out any of the fees referred to in Clause 13 (Fees).
"FINANCE DOCUMENTS" means this Agreement, the Intercreditor Agreement,
any Fee Letter, any Security Document, the Convert Deposit Account
Agreement, the Cartel Deposit Account Agreement, any Accession Letter,
any Hedging Agreement, any Transfer
9
Certificate, the US Term Loan Agreement, any Subfacility Document and any
other document designated as such by the Facility Agent and the Company
and "FINANCE DOCUMENT" means any of them.
"FINANCE PARTIES" means the Documentation Agent, the Facility Agent, the
Security Agent, the Mandated Lead Arrangers, an Issuing Bank, a
Subfacility Bank, the Senior Lenders, the Administrative Agent, and
"FINANCE PARTY" means any of them.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) moneys borrowed and debt balances at banks;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with the Relevant
GAAP or IFRS, be treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial effect
of a borrowing;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution;
(i) any amount raised by the issue of redeemable shares;
(j) any amount of any liability under an advance or deferred purchase
agreement if one of the primary reasons behind the entry into such
agreement is to raise finance;
(k) (without double counting) the amount of any liability in respect
of any guarantee or indemnity for any of the items referred to in
paragraphs (a) to (j) above, however, for the avoidance of doubt
not including any deferred payment arrangement of 180 days or less
with trade creditors as customary in the industry; and
(l) (without double counting) the amount of any liability of third
parties in respect of any of the items referred to in paragraphs
(a) to (j) above, secured over assets of any Group Member.
"FINANCIAL QUARTER" means each of those periods of approximately thirteen
weeks ending on any Quarter Date in each financial year.
10
"FRONTING FEE" means the fronting fee determined in accordance with
Clause 13.6 (Fronting Fee) and to be paid to a relevant Issuing Bank in
accordance with Clause 5.9 (Letter of Credit Fronting Fee).
"FUNDING LOANS" means one or more loans from the Issuer (as lender) to
the Company (as borrower), in an amount equal to the principal amount of
the High Yield Notes which is made subject to the terms of, and in
accordance with, the Intercreditor Agreement.
"GOVERNMENT AGENCY" means (a) a government or government department or
other body, (b) a governmental, semi-governmental or judicial person, or
(c) a person (whether autonomous or not) who is charged with the
administration of law under statute or the rules of any stock exchange.
"GROUP" means the Company and its Subsidiaries from time to time and
"GROUP MEMBER" shall be construed accordingly.
"GROUP STRUCTURE CHART" means a group structure chart of the Group, in
agreed form, delivered by the Company to the Facility Agent pursuant to
Clause 4 (Conditions of Utilisation).
"GUARANTOR" means an Original Guarantor or an Additional Guarantor,
unless it has ceased to be a Guarantor in accordance with this Agreement.
"GUARANTOR ACCESSION LETTER" means a document substantially in the form
set out in Part II of Schedule 6 (Form of Accession Letter).
"HEDGE COUNTERPARTY" means any financial institution that is a party to
an outstanding Hedging Agreement with any Group Member from time to time
and entitled to the same security rights as the Finance Parties under
this Agreement after accession to the Security Trust Agreement upon
notification to the Security Agent by the Company pursuant to the terms
of the Security Trust Agreement. Such Hedge Counterparty will benefit
from the Transaction Security up to its Hedge Counterparty's
Participation Amount as notified by the Company. The Security Agent will
keep updated lists of the Hedging Counterparties and their respective
Hedge Counterparty's Participation Amounts by means of the List of
Secured Parties.
"HEDGE COUNTERPARTIES MAXIMUM SECURED AMOUNT" means an amount of
[e]65,000,000 at maximum which will be applied from the proceeds of the
enforcement of the Transaction Security pursuant to the provisions of the
Security Trust Agreement in order to discharge the claims of any Hedge
Counterparty in accordance with the respective Hedge Counterparty's
Participation Amount as notified by the Company.
"HEDGE COUNTERPARTY'S PARTICIPATION AMOUNT" has the meaning ascribed to
such term in the Security Trust Agreement.
"HEDGING AGREEMENTS" means each of the agreements entered into or to be
entered into between certain Group Members and hedge counterparties for
the purpose of hedging interest rate liabilities and currency risks in
accordance with Clause 23.28 (Hedging).
"HIGH YIELD INDENTURE" means the indenture under which the High Yield
Notes are issued.
"HIGH YIELD INVESTORS" means the High Yield Trustee and the noteholders
of the High Yield Notes from time to time.
11
"HIGH YIELD NOTES" means the 8 1/2 % Senior Notes due 2012 in an
aggregate principal amount of [e]270,000,000 issued or to be issued by
the Issuer; provided that such high yield notes are issued in accordance
with the Intercreditor Agreement.
"HIGH YIELD TRUSTEE" means The Bank of New York as the trustee under the
High Yield Indenture.
"HITCO OPTIONS" means the option exercisable under a shareholders
agreement between Hitco Carbon Composites, Inc and Xxxx X. Xxxxxxx
described in more detail in the annual report of the Company on Form 20-F
filed with the Securities and Exchange Commission on 1 July 2002,
provided that, for the avoidance of doubt, all such options exist in
respect to shares in Hitco Carbon Composites, Inc only and there are no
options in relation to the shares of SGL Carbon LLC.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"IFRS" means international financial reporting standards as promulgated
by the International Accounting Standards Board and consistently applied.
"INITIAL MARGIN" means 2.75 per cent. per annum.
"INSURANCE PROCEEDS" means the total proceeds of any insurance claim
intended to compensate for damage to any asset or interruption of
business received by any Group Member, after deducting:
(a) any reasonable out-of-pocket expenses incurred by any Group Member
in relation to such a claim;
(b) proceeds relating to third party claims which are applied towards
meeting such claims; and
(c) Taxes paid (or reasonably estimated to be payable) by any Group
Member in respect of such claims.
"INTELLECTUAL PROPERTY" means any and all rights and interests existing
now or in the future in any part of the world in or relating to
registered and unregistered trade marks and service marks, domain names,
patents, registered designs, utility models, trade names, business names,
titles, registered or unregistered copyrights in published and
unpublished works, unregistered designs, inventions registered or
unregistered, data base rights, know-how, any other intellectual property
rights and any applications for any of the foregoing and any goodwill
therein.
"INTELLECTUAL PROPERTY RIGHTS" means any Intellectual Property owned by
any Group Member.
"INTERCREDITOR AGREEMENT" means the intercreditor agreement,
substantially in the form set out in Schedule 18 (Form of Intercreditor
Agreement) between, inter alia, the Security Agent, the Company, the
Obligors, the Issuer, the Hedge Counterparties, the Secured Creditors and
(upon accession) the High Yield Trustee and The Bank of New York as
trustee for the holders of the Convertible Bonds, setting out certain
subordination, delayed maturity and blockage provisions in favour of the
Lenders.
12
"INTEREST PERIOD" means, in relation to a Loan, each period determined in
accordance with Clause 11 (Interest Periods and the Term) and, in
relation to an Unpaid Sum, each period determined in accordance with
Clause 10.7 (Default Interest and Penalty).
"INTRA-GROUP LOAN" means any loan between Group Members other than the
Funding Loan.
"INTRA-GROUP LOAN DOCUMENT" means any document, in the agreed form,
setting out the terms on which an Intra-Group Loan is to be made
available in accordance with the terms of this Agreement.
"ISSUER" means (i) SGL Carbon Luxembourg S.A., a wholly-owned, special
purpose direct subsidiary of the Company incorporated in Luxembourg,
formed to issue the High Yield Notes; or (ii) any other issuer of the
High Yield Notes.
"ISSUING BANKS" means each of the creditors having issued a Letter of
Credit from time to time in their capacity as Lender pursuant to their
respective Term Facility B Commitment at the time when such Letter of
Credit was issued and, until the release of the Original Letter of Credit
in accordance with Clause 5.8 (Cancellation and replacement of Letter of
Credit), the Original Issuing Banks.
"JOINT VENTURE" means any joint venture entity, whether a company,
unincorporated firm, undertaking, association, joint venture or
partnership or any other entity.
"LENDERS" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 25 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement and shall include any Lender in its capacity as a
Subfacility Bank.
"LETTER OF CREDIT" means each letter of credit issued by the Issuing
Banks substantially in the form set out in Schedule 14 (Form of Letter of
Credit) or in such other form requested by the Company which is
acceptable to the Facility Agent and the Term Facility B Lenders and,
until its release in accordance with Clause 5.8 (Cancellation and
replacement of Letter of Credit), the Original Letter of Credit.
"LETTER OF CREDIT AMOUNT" means:
(a) each sum paid, or due and payable, by an Issuing Bank to the
beneficiary of a Letter of Credit pursuant to the terms of the
respective Letter of Credit; and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from an Issuing
Bank under the Letter of Credit), claims, losses and expenses
which that Issuing Bank incurs or sustains under or in connection
with the respective Letter of Credit,
in each case which has not been reimbursed pursuant to Clause 8.2 (The
Company's Indemnity to Issuing Banks).
13
"LETTER OF CREDIT COMMISSION RATE" means, save as otherwise provided in
this Agreement, the rate referred to in Clause 13.4 (Letter of Credit
Commission).
"LETTER OF CREDIT PROPORTION" means, in relation to an Issuing Bank
and/or a Term Facility B Lender in respect of any Letter of Credit and
save as otherwise provided in this Agreement, the proportion (expressed
as a percentage) borne by that Issuing Bank's or Term Facility B Lender's
Available Commitment in respect of Term Facility B to the Available
Facility immediately prior to the issue of such Letter of Credit.
"LIBOR" means, in relation to any Loan not in Euros:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or period of that
Loan) the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Facility Agent at its request
quoted by the Reference Banks to Prime Banks in the London
interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to the
Interest Period for that Loan.
"LMA" means the Loan Market Association.
"LOAN" means the Term Facility A Loan, the Term Facility B Loan, the Term
Facility C Loan or a Revolving Credit Facility Loan and "LOANS" shall be
construed accordingly.
"MAJORITY LENDERS" means:
(a) if there are no Loans or Letters of Credit then outstanding, a
Lender or Lenders whose Commitments aggregate more than 66 2/3 per
cent. of the Total Commitments (or, if the Total Commitments have
been reduced to zero, aggregated more than 66 2/3 per cent. of the
Total Commitments immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in
the Outstandings aggregate more than 66 2/3 per cent. of all the
Outstandings.
"MANAGEMENT AND EMPLOYEE BENEFIT PLANS" means (i) the stock option plan,
the matching shares plan, the share bonus plan and the employee share
ownership plan, each relating to shares in the Company and each adopted
in the ordinary shareholders' meeting of the Company on 27 April 2000 and
(ii) the stock option plan relating to shares in Hitco Carbon Composites,
Inc. adopted in January 2002, each as described in more detail in the
annual report on Form 20-F filed by the Company with the US Securities
and Exchange Commission on 1 July 2002.
"MANDATORY CASH COLLATERAL" means Cash Collateral that the Company must
provide in relation to interest accruing on the Letters of Credit.
"MANDATORY COST" means the percentage rate per annum calculated by the
Facility Agent in accordance with Schedule 4 (Mandatory Cost Formula).
"MARGIN" means the percentage rate per annum determined in accordance
with Clause 10.2 (Margin Ratchets) to Clause 10.4 (Margin in Default)
(inclusive).
14
"MATERIAL ADVERSE CHANGE" means any circumstance that has or could be
expected to have a Material Adverse Effect.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on:
(a) the business, operations, assets, condition (financial or
otherwise) or prospects of the Group taken as whole;
(b) the ability of any Obligor to perform and comply with its
obligations under any Finance Document;
(c) the validity, legality or enforceability of any Finance Document
or any rights or remedies of any Finance Party under any Finance
Document; or
(d) the validity, legality or enforceability of any Security created
pursuant to the Security Documents or on the priority or ranking
of any such Security.
"MATERIAL SUBSIDIARY" means:
(a) any company listed in Schedule 13 (Current Material Subsidiaries);
and
(b) any Group Member having more than five (5) per cent. of EBITDA or
turnover of the Group by reference to the most recent respective
annual audited financial statements.
For this purpose:
(a) the (i) turnover or (ii) EBITDA of a Subsidiary of the Group will
be determined from its financial statements upon which the latest
audited financial statements of the Group have been based;
(b) if a company becomes a Group Member after the Closing Date, the
(i) turnover or (ii) EBITDA of that company will be determined as
set out in its latest audited financial statements as at the date
it becomes a Group Member and based on the most recently available
financial information of the Group, adjusted to give pro forma
effect to the acquisition of such company;
(c) in relation to a Group Member which has acquired or disposed of a
company or business the (i) turnover or (ii) EBITDA of that Group
Member will be determined from its latest audited financial
statements adjusted to reflect such acquisition or disposals; and
(d) if a Material Subsidiary disposes of all or substantially all of
its assets to another Subsidiary of the Group, it will immediately
cease to be a Material Subsidiary and the other Subsidiary (if it
is not already) will immediately become a Material Subsidiary. The
subsequent financial statements of such Subsidiaries and the Group
will be used for determining the status of the relevant
Subsidiaries as Material Subsidiaries.
If there is a dispute as to whether or not a company is a Material
Subsidiary, a certificate of the Company's appointed auditors will be, in
the absence of manifest error, conclusive.
"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:
15
(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) for the purpose of determining the last day of an Interest Period,
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 (a) to (c) will only apply to the last Month of any
period.
"MULTIEMPLOYER PLAN" means a "MULTIEMPLOYER PLAN" as defined in section
4001(a)(3) of ERISA, maintained or contributed to for employees of a US
Group Member or any ERISA Affiliate.
"NET PROCEEDS" means, in relation to:
(a) any disposal of an asset by a Group Member, the total proceeds of
such disposal received by such Group Member, after deducting:
(i) any out-of-pocket costs and expenses incurred by any Group
Member in respect of such disposal;
(ii) the unpaid balance on the date of such disposal of any
Permitted Indebtedness which must be repaid by the seller on
such disposal (together with any premium, interest or fees
required to be paid in connection therewith);
(iii) Taxes paid (or reasonably estimated to be payable) by any
Group Member in connection with such disposal; and
(iv) in the case of a disposal effected by a Group Member other
than a Borrower, such provision as is reasonable for all
costs and Taxes incurred by the Group and fairly
attributable to upstreaming the cash proceeds or making any
distribution in connection with such proceeds to enable them
to reach a Borrower by such means as results in the lowest
possible liability in respect of such costs and Taxes; and
(b) any Debt Issue and/or any Equity Issue by a Group Member, the
total proceeds of such issue received by such Group Member, after
deducting:
(i) any out-of-pocket costs and expenses incurred by any Group
Member in respect of such issue; and
(ii) Taxes paid (or reasonably estimated to be payable) by any
Group Member in connection with such issue.
"OBLIGORS" means each Borrower and each Guarantor and "OBLIGOR" shall be
construed accordingly.
16
"ORIGINAL EU COMPETITION LAW LIABILITIES" means the fines imposed on the
Company or any Group Member by the competition directorate of the
European Commission in the amounts of [e]80,200,000 and [e]27,750,000
in relation to the EU Competition Law Proceedings, listed on Schedule 15
(Existing Competition Law Proceedings and Anti-Trust Lawsuits), No. 1 and
2.
"ORIGINAL FACILITIES AGREEMENT" means the [e]495,000,000 term facilities
and revolving credit agreement dated 20 December 2002, as amended.
"ORIGINAL FINANCING DOCUMENTS" has the meaning ascribed to "Facilities
Agreement" in the Original Facilities Agreement.
"ORIGINAL ISSUING BANKS" means Deutsche Bank Luxembourg S.A., Dresdner
Bank AG in Munchen, Bayerische Landesbank, Commerzbank
Aktiengesellschaft, Augsburg Branch, WestLB AG, DZ Bank AG Deutsche
Zentral- Genossenschaftsbank, Bayerische Hypo- und Vereinsbank AG,
Augsburg Branch having issued the Original Letter of Credit.
"ORIGINAL LETTER OF CREDIT" means the letter of credit of up to an amount
of [e]80,200,000, plus interest accruing thereon at 6.04 per cent. per
annum since 24 October 2001, issued by the Original Issuing Banks.
"ORIGINAL OBLIGOR" means an Original Borrower or an Original Guarantor.
"ORIGINAL TERM FACILITY C" means the [e]20,000,000 term facility made
available to the Company under the Original Facilities Agreement.
"OUTSTANDINGS" means, at any time, the aggregate of the amounts of the
outstanding Loans and the maximum actual and contingent liabilities of
the Issuing Banks, as the case may be, in respect of the outstanding
Letter of Credit.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the Euro as its lawful currency in
accordance with legislation of the European Union relating to European
Monetary Union.
"PARTY" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"PBGC" means the US Pension Benefit Guaranty Corporation, or any entity
succeeding to all or any of its functions under ERISA.
"PERFECTION REQUIREMENTS" means the execution of any Security Document
and the making of appropriate registrations, transfers of possession or
endorsements of the Security Documents as specifically contemplated by
any legal opinion to be delivered in accordance with Clause 4 (Conditions
of Utilisation).
"PERMITTED ACQUISITIONS" means Acquisitions:
(a) made in the ordinary course of business; and/or
(b) where the consideration for such Acquisitions in the aggregate
does not exceed [e]10,000,000 (or its equivalent in another
currency or currencies) per annum, provided that such limitation
shall not apply as long as (i) the Leverage Ratio (as tested
quarterly against the Company's latest consolidated financial
statements on a four quarter rolling basis) will be less than
3.0:1; (ii) on a pro forma basis for such
17
Acquisition the Leverage Ratio is at least 0.25 lower than the
applicable ratio set out opposite the relevant Quarter Date in
Clause 22.4 (Leverage Ratio), and (iii) the Available Commitment
under the Revolving Credit Facility is not less than
[e]10,000,000; and/or
(c) where the consideration for such Acquisitions in aggregate does
not exceed 25 per cent. of the Net Proceeds of any Equity Issue
(other than the Rights Issue) realised after the Signing Date,
PROVIDED THAT where any assets are so acquired by the relevant Group
Member such assets are not subject to any material liabilities or to
Security other than Permitted Security.
"PERMITTED DISPOSAL" means:
(a) disposals of inventory made on customary terms in the ordinary
course of trading of the disposing entity;
(b) disposals of assets in exchange for other assets comparable or
superior as to type, value and quality;
(c) disposals between any Group Members, PROVIDED THAT if the assets
disposed of are pledged or assigned in favour of the Security
Agent they remain subject to the same or equivalent security after
the disposal and FURTHER PROVIDED THAT this paragraph (c) will not
permit disposal by an Obligor or its Subsidiary to a Group Member
which is not an Obligor or its Subsidiary;
(d) disposals on arm's length terms of any surplus or obsolete or
worn-out assets which in the reasonable opinion of the Group
Member making the disposal are not required for the efficient
operation of the business of the Group as a whole or by any Group
Member;
(e) disposals of Cash Equivalents, other than Cash Equivalents
deposited in the Convert Deposit Account or the Cartel Deposit
Account, on arm's length terms for Cash or in exchange for Cash
Equivalents;
(f) disposals of cash, other than cash deposited in the Convert
Deposit Account or the Cartel Deposit Account, where such disposal
is not otherwise prohibited by the Finance Documents;
(g) disposals constituted by the creation of any Permitted Security;
(h) a sale or securitisation of receivables on a non-recourse basis
only to the extent that it is entered into with the prior written
consent of the Majority Lenders, such consent not to be
unreasonably withheld;
(i) [intentionally left blank];
(j) any disposal of land and/or buildings of SGL CARBON AG, Werk
Ringsdorff, Werksteil Nord in Bonn, relating to the real estate
registered with Amtsgericht Bonn, Grundbuchamt Lannesdorf, Xxxxx
01105, Flur 2, Flurstucke 972, 968, 967, laufende Nummer 3, 4
und 5, Amtsgericht Bonn, Grundbuchamt Muffendorf, Xxxxx 0488, Flur
3, Flurstuck 1218, laufende Nummer 1, and Xxxxx 0575, Flur 3,
Flurstucke 418/69, 1127, 1217, 1276, 1279, laufende Nummer 2,
8, 9, 10, 12.
18
(k) disposals of Cash or Cash Equivalents in the Convert Deposit
Account to purchase Convertible Bonds in the Tender Offer or in
the open market (at a price no higher than par) after completion
of the Tender Offer, and to redeem or repay the Convertible Bonds
at maturity;
(l) disposals of Cash or Cash Equivalents in the Cartel Deposit
Account to satisfy the Additional EU Competition Law Liabilities
and the US Competition Law Liabilities; or
(m) disposals where the higher of the market value or consideration
receivable (when aggregated with the higher of the market value or
consideration receivable for any other sale, lease, transfer or
other disposal, other than any permitted under paragraphs (a) to
(l) above) does not exceed [e]25,000,000 (or its equivalent in
another currency or currencies) in any financial year.
"PERMITTED GUARANTEES AND CONTINGENT LIABILITIES" means:
(a) any guarantees and indemnities required by the Finance Documents;
(b) any guarantees and indemnities given by any Group Member in the
ordinary course of and on terms customary in its business in
respect of obligations not constituting Financial Indebtedness;
(c) any guarantees constituting Permitted Indebtedness;
(d) any guarantees issued by any Group Member in respect of
liabilities of an Obligor, or a Subsidiary of an Obligor which are
secured by any Security specified in Schedule 11 (Form of Security
Trust Agreement);
(e) any guarantee or indemnity given by any Group Member for the
benefit of the US Lenders, provided that the same guarantee or
indemnity, ranking equally, has been or will concurrently
therewith be provided for the benefit of the Lenders;
(f) any guarantee for the benefit of the Subordinated Creditors,
provided that a guarantee substantially on the same terms (other
than with respect to its subordination) has been or will
concurrently therewith be issued for the benefit of the Senior
Lenders and that such Subordinated Guarantee is provided subject
to the terms of, and in accordance with, the Intercreditor
Agreement;
(g) any guarantee for the benefit of the holders of the Convertible
Bonds, provided that the same guarantee, ranking equally, has been
or will concurrently therewith, be provided for the benefit of the
Subordinated Creditors and that such guarantee is provided subject
to the terms of, and in accordance with, the Intercreditor
Agreement; and
(h) any guarantees and indemnities to which the Facility Agent (acting
on the instructions of the Majority Lenders) shall have given its
prior written consent.
"PERMITTED INDEBTEDNESS" means any Financial Indebtedness:
(a) arising under or permitted pursuant to the Finance Documents;
(b) to the extent that such Financial Indebtedness is subordinated on
terms acceptable to the Majority Lenders (acting reasonably);
19
(c) pursuant to the Convertible Bonds;
(d) [intentionally left blank];
(e) arising under Permitted Loans;
(f) arising under Permitted Guarantees and Contingent Liabilities;
(g) arising under and permitted by Clause 23.27 (Treasury
Transactions) and Clause 23.28 (Hedging);
(h) to which the Majority Lenders shall have given their prior written
consent;
(i) [intentionally left blank];
(j) incurred under leasing arrangements existing at the Signing Date
in an amount not exceeding a net present value of [e]5,000,000 at
any time;
(k) incurred for leasing arrangements over assets in the ordinary
course of business in an amount not exceeding a net present value
of [e]5,000,000 at any time;
(l) incurred by the Issuer in respect of the High Yield Notes and the
Exchange Notes;
(m) incurred by an Obligor other than the Company, individually in an
amount not exceeding [e]2,000,000 at any time and in aggregate in
an amount not exceeding [e]20,000,000 at any time (which may also
be guaranteed by the Company);
(n) incurred by a Group Member that is not an Obligor, individually in
an amount not exceeding [e]5,000,000 at any time and in aggregate
in an amount not exceeding [e]30,000,000 at any time (which may
also be guaranteed by the Company);
(o) incurred by the Company under the Bridge Loan or the Funding Loan,
provided that such Financial Indebtedness is subordinated pursuant
to the Intercreditor Agreement to the obligations under the Senior
Facilities;
(p) in the case of the acquisition of Fortafil, an amount not
exceeding [e]10,000,000 of state subsidised Financial Indebtedness
of such company;
(q) incurred with banks or financial institutions providing lines for
commercial letters of credit and guarantees (including
confirmations and avals (Avale)) (but only insofar as they are not
securing Financial Indebtedness in excess of [e]10,000,000 in the
aggregate (or its equivalent in another currency or currencies))
for the Group and having registered the maximum amount and tenor
of such lines (with the approval of the Company) with the Security
Agent, provided that the aggregate amount of such lines shall not
at any time be in excess of [e]90,000,000 (or its equivalent in
another currency or currencies), which banks or financial
institutions are at the Signing Date or at any time thereafter a
creditor and accede to the Security Trust Agreement and therefore
benefit from the Transaction Security as a Secured Creditor;
provided that any such creditor shall cease to be a Secured
Creditor if:
(A) the Company so notifies the Security Agent; and
20
(B) such Secured Creditor confirms in writing to the Security
Agent that all claims in respect to the relevant Financial
Indebtedness incurred have been satisfied in full;
(r) incurred by SGL Carbon S.A., Nowy Sacz,, ZEW S.A., Raciborz, and
SGL Angraph SP.ZO.O., all of them Poland, in an aggregate amount
of Polish Zloty 60,000,000, granted by BNP Paribas Bank Polska
S.A., Poland, pursuant to the credit facility agreement dated 6
December 2000, as amended by amendment agreement dated 18 December
2003, providing for a facility not maturing before 30 December
2008 under which no repayments are to be made prior to such
maturity date (other than Polish Zloty 10,000,000 to be repaid on
31 December 2007);
(s) not falling within paragraphs (a) to (r) above PROVIDED THAT the
aggregate amount of Financial Indebtedness falling within this
paragraph (s) does not exceed [e]25,000,000 (or its equivalent in
another currency or currencies) at any time,
provided that at no time shall the aggregate amount of Financial
Indebtedness falling within paragraphs (m), (n) and (s) exceed
[e]50,000,000 (or its equivalent in another currency or currencies).
"PERMITTED JOINT VENTURES" means Joint Ventures where the aggregate
amount of net assets transferred to the Joint Venture does not exceed
[e] 10,000,000 per annum.
"PERMITTED LOANS" means:
(a) trade credit given by any Group Member in the ordinary course of
and on terms customary in its business;
(b) any loans to employees under benefit schemes PROVIDED THAT such
loans do not exceed [e]5,000,000 at any time;
(c) any Intra-Group Loan, PROVIDED THAT:
(i) such Intra-Group Loan is specified in the Group Structure
Chart;
(ii) no Security is taken by the Intra-Group lender in respect to
such Intra-Group Loan;
(iii) the borrower of such Intra-Group Loan is an Obligor and the
lender is another Obligor or, provided that the claims under
such Intra-Group Loan are subordinated to the obligations
under the Senior Facilities pursuant to a written agreement
to that effect, in form and substance satisfactory to the
Facility Agent, a non-Obligor;
(iv) the borrower of such Intra-Group Loan is a non-Obligor, the
lender is an Obligor and the aggregate outstandings from
such Intra-Group Loans do not exceed [e]40,000,000 at any
time; or
(v) neither the borrower nor the lender of such Intra-Group Loan
are Obligors;
(d) the Funding Loans;
21
(e) any loans to which the Majority Lenders shall have given their
prior written consent.
"PERMITTED MERGER" means any merger between the following companies,
provided that any Security granted by the merged companies shall continue
to be fully effective (where applicable) after the merger and provided
further that the surviving company shall become an Obligor prior to or
concurrently with the effectiveness of the merger in case of any merger
involving one or more Obligors:
(a) RK Carbon International Ltd., Wilmslow, England, UK, RK
Technologies International Ltd., Wilmslow, England, UK, and SGL
TECHNIC Ltd., Xxxx of Ord, Scotland, UK; and
(b) SGL ACOTEC (Wuhan) Co. Ltd., Wuhan/China and NANTONG SGL NANBAO
Graphite Equipment Co. Ltd., Nantong/China,
and shall also include any merger between non-Obligors to the extent the
shares in such non-Obligors are not encumbered in favour of the Finance
Parties.
"PERMITTED SECURITY" means:
(a) any Security granted in connection with the Original Financing
Documents, provided that all such Security shall be released on or
before 31 March 2004 and the Security listed in Schedule 8
(Existing Security) except to the extent that the principal amount
of obligations secured by that Security exceeds the amount stated
in that Schedule;
(b) any netting or set-off arrangement entered into by any Group
Member in the ordinary course of its banking arrangements for the
purpose of netting debit and credit balances (but not any netting
or set-off relating to such hedging agreement in respect of cash
collateral or any other Security except as otherwise permitted
hereunder);
(c) any Security arising by operation of law and in the ordinary
course of trading other than by reason of default, PROVIDED THAT
any such Security (other than a landlord's lien
(Vermieterpfandrecht) or contractor's lien
(Werkunternehmerpfandrecht) existing in respect of agreements made
prior to the Signing Date) is discharged within ten (10) days
after having arisen;
(d) any Security over any assets of any Group Member (if any),
existing at the Signing Date, PROVIDED THAT the amount thereby
secured is not increased and further PROVIDED THAT such Security
shall be released as soon as possible but in any event prior to or
concurrently with the Closing Date;
(e) any Security over or affecting any asset acquired by a Group
Member after the Signing Date and existing at the time of
acquisition of such asset if:
(i) the Security was not created in contemplation of the
acquisition of that asset by a Group Member;
(ii) the principal amount secured has not been increased in
contemplation of or since the acquisition of that asset by a
Group Member; and
22
(iii) the Security is removed or discharged within three (3)
Months of the date of acquisition of such asset;
(f) any Security over or affecting any asset acquired by any company
which becomes a Group Member after the Signing Date and existing
on the date on which the relevant company becomes a Group Member,
if:
(i) the Security was not created in contemplation of the
acquisition of that company;
(ii) the principal amount secured has not been increased in
contemplation of or since the acquisition of that company;
and
(iii) the Security is removed or discharged within three (3)
Months of that company becoming a Group Member;
(g) any retention of title arrangement entered into by any Group
Member in the normal course of its trading activities on the
counterparty's standard or usual terms to the extent that such
terms are customary;
(h) any lien in favour of a bank over goods and documents of title to
goods arising in the ordinary course of documentary credit
transactions entered into in the ordinary course of trade PROVIDED
THAT such lien is discharged within fifteen (15) days of arising;
(i) any Security arising under the general business conditions of any
German credit institution (Kreditinstitut) or similar foreign
institution with whom a Group Member maintains a banking
relationship in its ordinary course of business;
(j) any Security arising by operation of law in favour of any
governmental, state or local authority in respect of taxes,
assessments or government charges which are being contested by the
relevant Group Member in good faith;
(k) any security over real estate, equipment, inventory, accounts
receivables, bank accounts or intellectual property rights located
or generated in Poland of the Group Members identified in
paragraph (r) of the definition of Permitted Indebtedness, in each
case, which is created by mortgages, one or more charges to
equipment or inventory, assignments of accounts receivable,
pledges of bank accounts or assignments of intellectual property
rights and secures Financial Indebtedness permitted by paragraph
(r) of the definition of Permitted Indebtedness;
(l) any Security securing Financial Indebtedness the principal amount
of which (when aggregated with the principal amount of any other
Financial Indebtedness which has the benefit of Security (other
than any Security permitted under paragraphs (a) to (k) above))
does not exceed [e]5,000,000 (or its equivalent in another currency
or currencies);
(m) any first ranking Security over the Funding Loans in favour of the
Subordinated Creditors;
(n) any Security given by any Group Member for the benefit of the US
Lenders, provided that the same Security, ranking equally, has been
or will concurrently therewith be provided for the benefit of the
Lenders;
23
(o) any Security in favour of the Subordinated Creditors; provided that
Security substantially on the same terms (other than with respect
to its subordination) has been or will concurrently therewith be
issued for the benefit of the Senior Lenders and that such Security
is provided subject to the terms of, and in accordance with, the
Intercreditor Agreement;
(p) any Security for the benefit of the holders of the Convertible
Bonds, provided that the same Security, ranking equally, has been
or will concurrently therewith be provided for the benefit of the
Subordinated Creditors and that such Security is provided subject
to the terms of, and in accordance with, the Intercreditor
Agreement;
(q) any Security to which the Majority Lenders shall have given their
prior written consent (PROVIDED THAT the principal amount of the
indebtedness secured by such Security shall not be increased beyond
the amount expressly so permitted);
(r) any Security required to be given by any Group Member pursuant to
the terms of the Bridge Loan Documents or the High Yield Indenture,
provided subject to the terms of, and in accordance with, the
Intercreditor Agreement; and
(s) any of the Security created pursuant to the Security Documents.
"PREPAYMENT ACCOUNT" means an interest-bearing account or accounts held
with the Security Agent (or such other financial institution reasonably
acceptable to the Facility Agent) in the name of the Company and pledged
to the Security Agent (for the benefit of the Finance Parties), and into
which sums are deposited in accordance with Clause 9 (Prepayment and
Cancellation) and may not be withdrawn by any Group Member other than as
provided for in Clause 9 (Prepayment and Cancellation).
"PRIME BANK" means a financial institution with a rating of not lower
than A1 (Xxxxx'x Investor Services, Inc.) or A+ (Standard & Poor's
Corporation).
"QUARTER DATE" means each of 31 March, 30 June, 30 September and 31
December.
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is Euro) two (2) TARGET Days before the first day
of that period; or
(b) (for any other currency) two (2) Business Days before the first
day of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Facility Agent in accordance with market practice in
the Relevant Interbank Market (and if quotations would normally be given
by leading banks in the Relevant Interbank Market on more than one day,
the Quotation Day will be the last of those days).
"REFERENCE BANKS" means Deutsche Bank Luxembourg S.A., Dresdner Bank AG,
Commerzbank Aktiengesellschaft and the principal offices of such other
banks or financial institutions as may from time to time be agreed
between the Company and the Facility Agent in accordance with Clause
27.15 (Reference Banks).
24
"REGULATIONS T, U AND X" means, respectively, Regulations T, U and X of
the Board of Governors of the Federal Reserve System of the United States
(or any successor).
"RELEASE AGREEMENT" means the release agreement relating to the Original
Facilities Agreement entered into on or about the date of signing this
Agreement by, inter alia, the Company, certain of its subsidiaries and
certain financial institutions for the purpose of releasing certain
obligations of the Original Obligors under the Original Finance Documents
and certain security granted in connection with the Original Finance
Documents.
"RELEVANT GAAP" means:
(a) in respect of the Company, IFRS; and
(b) in respect of any other Group Member (either alone or including
its Subsidiaries) the generally accepted accounting principles and
practices of its jurisdiction of incorporation.
"RELEVANT INTERBANK MARKET" means, in relation to Euro, the European
interbank market and, in relation to any other currency, the London
interbank market.
"RELEVANT JURISDICTION" means, in respect of any person, the jurisdiction
of the country in which such person is incorporated and, if different,
where it is resident or has its principal place of business, and each
jurisdiction or state in which it owns or leases property or otherwise
conducts its business.
"RELEVANT PERIOD" has the meaning given to it in Clause 22.1 (Financial
Definitions).
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clause 20.2 (Status) to Clause 20.8 (Governing Law and Enforcement)
(inclusive), Clause 20.11 (No Default and no Material Adverse Effect) to
Clause 20.26 (No Immunity) (inclusive), Clause 20.29 (Budgets), paragraph
(c) of Clause 20.30 (Group Structure Chart) and Clause 20.32 (ERISA and
Multiemployer Plans) to Clause 20.36 (Auditors) (inclusive).
"REVOLVING CREDIT FACILITY" means the revolving loan facility made
available under this Agreement as described in Clause 2.1(d).
"REVOLVING CREDIT FACILITY CANCELLATION DATE" means a date on which a
cancellation of the whole or part of the Available Facility for the
Revolving Credit Facility is to be made under Clause 9.11 (Voluntary
Cancellation) as specified in the relevant notice given under
Clause 9.11(a).
"REVOLVING CREDIT FACILITY COMMITMENT" means:
(a) in relation to an Original Lender, the Euro Amount set opposite
its name under the heading "Revolving Credit Facility Commitment"
in Part II of Schedule 1 (The Original Parties) and the Euro
Amount of any other Revolving Credit Facility Commitment
transferred to it under this Agreement; and
(b) in relation to any other Lender, the Euro Amount of any Revolving
Credit Facility Commitment transferred to it under this Agreement.
"REVOLVING CREDIT FACILITY LENDER" means a Lender providing Loans in
accordance with the Revolving Credit Facility.
25
"REVOLVING CREDIT FACILITY LOAN" means a loan made or to be made under
the Revolving Credit Facility or the principal amount outstanding for the
time being of that loan.
"REVOLVING CREDIT FACILITY OUTSTANDINGS" means, at any time, the
aggregate of the Euro Amounts of the outstanding Revolving Credit
Facility Loans.
"RIGHTS ISSUE" means the proposed issuance of rights to purchase
33,277,437 ordinary shares of the Company.
"ROLLOVER LOAN" means one or more Revolving Credit Facility Loans:
(a) made or to be made on the same day that a maturing Revolving
Credit Facility Loan is due to be repaid;
(b) the aggregate amount of which is equal to or less than the
maturing Revolving Credit Facility Loan;
(c) in the same currency as the maturing Revolving Credit Facility
Loan (unless it arose as a result of the operation of Clause 6.2
(Unavailability of Dollars)); and
(d) made or to be made for the purpose of refinancing such maturing
Revolving Credit Facility Loan.
"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 Facility Agent
may specify another page or service displaying the appropriate rate after
consultation with the Company and the Lenders.
"SECURED CREDITOR" means any bank or financial institution which is a
creditor of any Group Member under any Permitted Indebtedness Agreement
(as defined in the Security Trust Agreement) from time to time and
entitled to the same security rights as the Finance Parties under this
Agreement after accession to the Security Trust Agreement upon
notification to the Security Agent by the Company pursuant to the terms
of the Security Trust Agreement. Such Secured Creditor will benefit from
the Transaction Security up to its Secured Creditor's Participation
Amount as notified by the Company. The Security Agent will keep updated
lists of the Secured Creditors and their respective Secured Creditor's
Participation Amounts by means of the List of Secured Parties.
"SECURED CREDITORS MAXIMUM SECURED AMOUNT means an amount of [e]
90,000,000 at maximum which will be applied from the proceeds of the
enforcement of the Transaction Security pursuant to the provisions of the
Security Trust Agreement in order to discharge the claims of any Secured
Creditor in accordance with the respective Secured Creditor's
Participation Amounts as notified by the Company.
"SECURED CREDITOR'S PARTICIPATION AMOUNT" has the meaning ascribed to
such term in the Security Trust Agreement.
26
"SECURED PARTIES" means the Finance Parties, the Hedging Counterparties
and the other Secured Creditors, each a "SECURED PARTY".
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"SECURITY DOCUMENTS" means:
(a) each document referred to in paragraph 3 of Part I, in Part II and
in paragraph 13 of Part III of Schedule 2 (Conditions Precedent
and Conditions Subsequent);
(b) any Cash Collateral Document; and
(c) any other document entered into by any Group Member creating or
evidencing or purporting to create or evidence Security for all or
any part of the obligations of the Obligors or any of them under
the Finance Documents or any of them.
"SECURITY TRUST AGREEMENT" means the security trust agreement,
substantially in the form set out in Schedule 11 (Form of Security Trust
Agreement) to be made between, amongst others, the Obligors and the
Secured Parties.
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 3 (Requests) given in accordance with Clause 11
(Interest Periods and the Term) in relation to Term Facility A and Term
Facility B.
"SENIOR FACILITIES" means the Facilities and the US Term Loan Facility.
"SENIOR LENDERS" means the Lenders and the US Term Lenders.
"SIGNING DATE" means 3 February 2004, the date of execution of this
Agreement.
"SPECIFIED TIME" means a time determined in accordance with Schedule 10
(Timetables).
"SUBFACILITIES" means any facilities made available by a Subfacility Bank
pursuant to and in accordance with Clause 5.10 (Utilisation of the
Subfacilities) and each not exceeding an amount of [e]10,000,000 in total
at any given time and "SUBFACILITY" shall be construed accordingly.
"SUBFACILITY BANK" means each Revolving Credit Facility Lender which
becomes a Subfacility Bank by operation of Clause 2.2 (Subfacilities).
"SUBFACILITY DOCUMENTS" means any documents setting out the terms on
which the Subfacilities are made available as agreed between the relevant
Borrower, Subfacility Bank and approved by the Facility Agent.
"SUBORDINATED CREDITORS" means the Exchange Notes Investors, the Exchange
Notes Trustee, the High Yield Investors and the Bridge Lenders.
"SUBORDINATED DEBT" has the meaning given to it in Clause 22.1 (Financial
Definitions).
"SUBORDINATED FINANCE DOCUMENTS" means, collectively, the Bridge Loan
Documents, the Exchange Notes, the Funding Loan, the High Yield
Indenture, and the High Yield Notes.
27
"SUBORDINATED FINANCE PARTIES" means any Subordinated Creditor, the
Bridge Loan Agent, any other agent under the Bridge Loan Documents, the
Exchange Notes Security Agent, the Exchange Notes Trustee, the Exchange
Notes Escrow Agent, the High Yield Trustee and the Bridge Arrangers and
"SUBORDINATED FINANCE PARTY" means any of them.
"SUBORDINATED GUARANTEES" means the guarantees to be provided by the
Subordinated Guarantors for the benefit of the Subordinated Creditors and
the holders of the Convertible Bonds in relation to the High Yield Notes,
the Exchange Notes, the Bridge Loans and/or the Convertible Bonds, as the
case may be, in each case issued subject to the terms of, and
subordinated to the claims of the Senior Lenders in accordance with the
provisions set forth in, the Intercreditor Agreement.
"SUBORDINATED GUARANTORS" means (a) with respect to the Bridge Loans,
each of the Guarantors, to the extent legally permissible; and (b) with
respect to the High Yield Notes, the Company and certain Guarantors, to
the extent legally permissible.
"SUBSIDIARY" means, in relation to any company, corporation or
partnership, a company, corporation or partnership:
(a) a company, corporation or partnership which is "controlled",
directly or indirectly, by and therefore is a "dependent
enterprise" (abhangiges Unternehmen) of the first mentioned
company, partnership or corporation, in the case of the latter,
within the meaning of Sec. 17 of the Stock Corporation Act
(Aktiengesetz), or which is a "subsidiary" (Tochterunternehmen)
within the meaning of Sec. 290 of the Commercial Code
(Handelsgesetzbuch) of such company, corporation or partnership;
(b) a company, corporation or partnership more than half of the issued
share capital or issued voting share capital of which is
beneficially owned, directly or indirectly, by the first mentioned
company, corporation or partnership;
(c) a partnership in which:
(i) there is a participation of more than fifty (50) per cent.
in the assets of such partnership by the first mentioned
company, corporation or partnership; or
(ii) the first mentioned company, corporation or partnership has
the power to (A) cast, or control the casting of, more than
fifty (50) per cent. of the maximum number of votes that
might be cast at a general meeting, (B) appoint or remove
all, or the majority of, the directors or other equivalent
officers, or (C) give directions with respect to the
operating and financial policies which the directors or
other equivalent officers thereof are obliged to comply
with; or
(iii) in the case of a limited partnership, the general partner
has control over such limited partnership and the first
mentioned company, corporation or partnership has control of
the general partner,
and, for this purpose, a company, corporation or partnership shall be
treated as being controlled by another if that other company, corporation
or partnership is able to direct its affairs and/or to control the
composition of its board of directors or equivalent body.
28
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement of
payments in Euro.
"TAX" means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same) by any
Government Agency.
"TENDER OFFER" as defined in Clause 23.41 (Tender Offer).
"TERM" means, in relation to any Letter of Credit, the period from its
Utilisation Date until its Expiry Date.
"TERM FACILITIES" means Term Facility A, Term Facility B and Term
Facility C, and "TERM FACILITY" shall be construed accordingly.
"TERM FACILITY A" means a term loan facility made available under this
Agreement as described in Clause 2.1(a).
"TERM FACILITY A COMMITMENT" means:
(a) in relation to an Original Lender, the amount in Euros set
opposite its name under the heading "Term Facility A Commitment"
in Part II of Schedule 1 (The Original Parties) and the amount in
Euros of any other Term Facility A Commitment transferred to it in
accordance with this Agreement; and
(b) in relation to any other Lender, the amount in Euros of any Term
Facility A Commitment transferred to it in accordance with this
Agreement,
to the extent not cancelled, reduced or transferred by it in accordance
with this Agreement.
"TERM FACILITY A LOAN" means a loan made or to be made under Term
Facility A or the principal amount outstanding for the time being of that
loan.
"TERM FACILITY A OUTSTANDINGS" means, at any time, the amount in Euros of
the outstanding Term Facility A Loan.
"TERM FACILITY A REPAYMENT DATE" means each of the dates specified in the
table in Clause 7.1 (Repayment of Term Facility A Loan).
"TERM FACILITY B" means a term facility made available under this
Agreement as described in Clause 2.1(b).
"TERM FACILITY B COMMITMENT" means:
(a) in relation to an Original Lender, the amount in Euros set
opposite its name under the heading "Term Facility B Commitment"
in Part II of Schedule 1 (The Original Parties) and the amount in
Euros of any other Term Facility B Commitment transferred to it in
accordance with this Agreement; and
(b) in relation to any other Lender, the amount in Euros of any Term
Facility B Commitment transferred to it in accordance with this
Agreement,
29
to the extent not cancelled, reduced or transferred by it in accordance
with this Agreement.
"TERM FACILITY B EXCESS EXPOSURE" means the excess of (i) the aggregate
amount of the Term Facility B Outstandings plus the maximum actual and
contingent liabilities of the Issuing Banks in respect of any proposed
Letter of Credit (including, for the avoidance of doubt, interest
accruing on such Letter of Credit) over (ii) the Total Term Facility B
Commitments plus the sum of the aggregate amount of Cash Collateral
provided in respect of any Letter of Credit in accordance with para. (b)
of Clause 23.31 (Mandatory Cash Collateral).
"TERM FACILITY B LENDER" means a Lender having committed funds under Term
Facility B pursuant to its Term Facility B Commitment.
"TERM FACILITY B LOAN" means, upon conversion of the Term Facility B in
accordance with Clause 8.7 (Conversion of Term Facility B upon demand
under Letter of Credit), the loan deemed to have been made under Term
Facility B or the principal amount outstanding for the time being of that
loan.
"TERM FACILITY B OUTSTANDINGS" means, at any time, the aggregate amount
of (i) the maximum actual and contingent liabilities of the Issuing Banks
in respect of the issued Letters of Credit (including, for the avoidance
of doubt, interest accruing thereon); and (ii) upon conversion of any
Letter of Credit in accordance with Clause 8.7 (Conversion of Term
Facility B upon demand under Letter of Credit), the aggregate of the
amount in Euros of the outstanding Term Facility B Loans.
"TERM FACILITY C" means a term loan facility made available under this
Agreement as described in Clause 2.1(c).
"TERM FACILITY C COMMITMENT" means:
(a) in relation to an Original Lender, the amount in Euros set
opposite its name under the heading "Term Facility C Commitment"
in Part II of Schedule 1 (The Original Parties); and
(b) in relation to any other Lender, the amount in Euros of any Term
Facility C Commitment transferred to it in accordance with this
Agreement,
to the extent not cancelled, reduced or transferred by it in accordance
with this Agreement.
"TERM FACILITY C LOAN" means the loan made under Term Facility C or the
principal amount outstanding for the time being of that loan.
"TERM FACILITY C OUTSTANDINGS" means, at any time, the aggregate of the
amount in Euros of the outstanding Term Facility C Loan.
"TERM FACILITY C REPAYMENT DATE" means each of the dates specified in the
table in paragraph (a) of Clause 7.3 (Repayment of Term Facility C Loan).
"TERM FACILITY C REPAYMENT INSTALMENT" means the amount by which the
amount of the outstanding Term Facility C Loan drawn by the Company is to
be reduced on a Term Facility C Repayment Date in accordance with Clause
7.3(a).
30
"TERM FACILITY LOANS" means the Term Facility A Loan, the Term Facility B
Loan, and the Term Facility C Loan, and "TERM FACILITY LOAN" shall be
construed accordingly.
"TERMINATION DATE" means:
(a) in relation to Term Facility A, 30 December 2008;
(b) in relation to Term Facility B, 30 December 2008;
(c) in relation to Term Facility C, 30 September 2007; and
(d) in relation to the Revolving Credit Facility, 30 December 2008.
"TOTAL COMMITMENTS" means the aggregate of the Total Term Facility A
Commitments, the Total Term Facility B Commitments, the Total Term
Facility C Commitments and the Total Revolving Credit Facility
Commitments.
"TOTAL REVOLVING CREDIT FACILITY COMMITMENTS" means the aggregate of the
Revolving Credit Facility Commitments.
"TOTAL TERM FACILITY A COMMITMENTS" means the aggregate of the Term
Facility A Commitments.
"TOTAL TERM FACILITY B COMMITMENTS" means the aggregate of the Term
Facility B Commitments.
"TOTAL TERM FACILITY C COMMITMENTS" means the aggregate of the Term
Facility C Commitments.
"TOTAL TERM FACILITY COMMITMENTS" means the Total Term Facility A
Commitments, the Total Term Facility B Commitments and the Total Term
Facility C Commitments, and "TOTAL TERM FACILITY COMMITMENT" shall be
construed accordingly.
"TRANSACTION SECURITY" means any Security for all or any part of the
obligations of the Obligors or any of them under the Finance Documents or
any of them expressed to be created by or pursuant to, or to be evidenced
in, the Security Documents or any of them.
"TRANSFER CERTIFICATE" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificates) or any other
form agreed between the Facility Agent and the Company.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Facility Agent executes the Transfer
Certificate.
"TREASURY TRANSACTION" means any currency or interest purchase, cap or
collar agreement, forward rate agreement, interest rate or currency
future or option contract, foreign exchange or currency purchase or sale
agreement, interest rate swap, currency swap or combined interest rate
and currency swap agreement and any other similar agreement.
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor under
the Finance Documents.
31
"US COMPETITION LAW LIABILITIES" means the fines imposed on the Company
or any Group Member by the U.S. Department of Justice in relation to
Existing Competition Law Proceedings in the USA in the outstanding amount
as of the Signing Date of USD 79,250,000.
"US COMPETITION LAW PROCEEDINGS" means the Existing Competition Law
Proceedings initiated by the U.S. Department of Justice.
"US GROUP MEMBER" means any Group Member incorporated, resident or with
its principal place of business in the United States of America or any
state thereof or which owns or leases property or otherwise conducts
business in the United States of America or any state thereof.
"US TERM LENDERS" means the lenders making available the US Term Loans
from time to time.
"US TERM LOANS" means the loans made by the US Term Lenders to SGL Carbon
LLC under and in accordance with the US Term Loan Agreement.
"US TERM LOAN AGREEMENT" means the loan agreement dated 3 February 2004
between, inter alia, SGL Carbon LLC as borrower and certain financial
institutions as lenders providing for US Dollar denominated term loans in
an aggregate amount of up to USD 116,000,000, as amended from time to
time.
"US TERM LOAN FACILITY" means the senior secured credit facility
documented by the US Term Loan Agreement.
"UTILISATION" means a utilisation of a Facility by way of Loan or (in the
case of the Term Facility B) Letter of Credit.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is made or to be made or a Letter of Credit is
issued or to be issued.
"UTILISATION REQUEST" means a notice substantially in the form set out in
Part I of Schedule 3 (Requests).
"VAT" means value added tax and any other tax of a similar nature.
1.2 CONSTRUCTION
(a) Any reference in this Agreement to:
(i) a document being in the "AGREED FORM" is a reference to a document
which is either initialled as such on or before the Closing Date
for the purposes of identification by or on behalf of the Company
and the Mandated Lead Arrangers or the Facility Agent (or any
other party to any such document) or is executed on or before the
Signing Date by any of the Obligors and the Mandated Lead
Arrangers or the Facility Agent or, if not so executed or
initialled, is in form and substance reasonably satisfactory to
the Facility Agent;
(ii) "ASSETS" includes present and future properties, revenues and
rights of every description;
32
(iii) the "EUROPEAN INTERBANK MARKET" means the interbank market for
Euro operating in Participating Member States;
(iv) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated;
(v) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(vi) a Lender's/Issuing Bank's "PARTICIPATION", in relation to the
Letter(s) of Credit, shall be construed as a reference to its
rights and obligations in relation to that Letter of Credit as are
expressly set out in this Agreement;
(vii) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust
or partnership (whether or not having separate legal personality)
or two or more of the foregoing;
(viii) a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law; but
if not having the force of law, being one with which it is
customary for persons to whom it is directed to comply) of any
governmental, intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
(ix) a provision of law is a reference to that provision as amended or
re-enacted; and
(x) unless a contrary indication appears, a time of day is a reference
to Brussels time.
(b) Section, Clause and Schedule headings are for ease of reference only.
(c) Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in
this Agreement.
(d) A Default (other than an Event of Default) is "CONTINUING" if it has not
been remedied or waived and an Event of Default is "CONTINUING" if it has
not been waived.
1.3 CURRENCY DEFINITIONS
In this Agreement:
(a) "$" and "DOLLARS" denote the lawful currency of the United States of
America;
(b) "[e]" and "EURO" denote the single currency of the Participating Member
States; and
(c) "{pound-sterling}" and "STERLING" denote the lawful currency of the
United Kingdom.
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SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available the
Facilities referred to below to the relevant Borrowers in relation to each
such Facility:
(a) (to SGL Carbon S.A., Spain and SGL Carbon S.p.A., Italy) a term loan
facility in Euros in an aggregate amount equal to the Total Term
Facility A Commitments;
(b) (to the Company) a term facility in Euros in an aggregate amount
equal to the Total Term Facility B Commitments;
(c) (to the Company) a term facility in Euros in an aggregate amount
equal to the Total Term Facility C Commitments; and
(d) (to the Company) a multicurrency revolving credit facility in an
aggregate amount equal to the Total Revolving Credit Facility
Commitments to be made available by way of revolving loans, letters
of credit, bank guarantees and, in accordance with Clause 2.2
(Subfacilities), by way of Subfacilities.
2.2 SUBFACILITIES
(a) Subject to the terms of this Agreement, any Borrower may, at any time
during the Availability Period applicable to the Revolving Credit
Facility, by notice in writing to the Facility Agent request the
conversion of the whole or part of the Available Revolving Credit
Facility into a Subfacility with effect from the date specified in such
notice being a date not less than five (5) Business Days after the date
such notice is received by the Facility Agent (the "EFFECTIVE DATE") and
further provided that not more than three (3) Subfacilities are existing
at the same time. Any such notice shall specify:
(i) the proposed Subfacility Bank;
(ii) the proposed Borrower; and
(ii) the amount of the proposed Subfacility,
and shall contain the approval by the relevant Subfacility Bank of its
acting as Subfacility Bank and of the terms of the proposed Subfacility,
and the Facility Agent shall promptly notify each Lender upon receipt of
any such notice.
(b) Any Revolving Credit Facility Lender may become a Subfacility Bank;
however, no Revolving Credit Facility Lender shall be obliged to make
available Subfacilities under this Clause 2.2 (Subfacilities).
(c) In the event of the establishment of a Subfacility in accordance with
this Clause 2.2 (Subfacilities), then with effect on and from the
Effective Date, the Total Revolving Credit Facility Commitments shall be
reduced by the amount of the Subfacility, but shall automatically
increase by the amount of the relevant Subfacility upon a Subfacility
ceasing
34
to be available to the relevant Borrower or upon the Subfacility being
cancelled in accordance with Clause 2.2(d) below.
(d) Any Borrower which has requested the establishment of a Subfacility may
at any time by notice in writing to the Facility Agent and the relevant
Subfacility Bank cancel such Subfacility in whole or in part, in which
event on the date specified in the notice, being a date not less than ten
(10) Business Days after the date such notice is received by the Facility
Agent, the Subfacility shall be cancelled and the relevant Borrower shall
immediately repay or pay all amounts outstanding under such Subfacility.
(e) No Subfacility Bank may (other than at maturity of the relevant
Subfacility), until notice has been served under Clause 24.22
(Acceleration) or an automatic cancellation has occurred under Clause
24.23 (US Obligors) demand repayment of any monies made available by it
or withdraw prior to its original maturity any Subfacility or the right
to make utilisations thereunder (unless an Event of Default has occurred
which has not been waived by the Majority Lenders) or demand cash cover
in respect of any guarantee or similar contingent liability by it or take
any action analogous to any of the foregoing under the Subfacility.
2.3 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
(a) The obligations of each Lender, each Subfacility Bank and each Issuing
Bank under the Finance Documents are several. Failure by a Lender, a
Subfacility Bank or an Issuing Bank to perform its obligations under the
Finance Documents does not affect the obligations of any other Party
under the Finance Documents. No Finance Party is responsible for the
obligations of any other Finance Party under the Finance Documents.
(b) The rights of each Lender, each Subfacility Bank and each Issuing Bank
under or in connection with the Finance Documents are separate and
independent rights and any debt arising under the Finance Documents or,
as the case may be, the Subfacility Documents to a Lender, a Subfacility
Bank or, as the case may be, a Issuing Bank from an Obligor shall be a
separate and independent debt. The creation of jointly held assets
(Gesamthandsvermogen) is excluded.
(c) A Finance Party may, except as otherwise stated in the Finance Documents
and subject to the terms of the Intercreditor Agreement, separately
enforce its rights under the Finance Documents PROVIDED THAT if any
Lender commences proceedings in respect of the Finance Documents it shall
promptly notify the other Lenders through the Facility Agent and the
Facility Agent shall notify the other Lenders accordingly.
3. PURPOSE
3.1 PURPOSE
(a) Each Borrower shall apply all amounts borrowed by it under Term Facility
A in or towards discharging its share of the Existing Indebtedness.
(b) The Company shall utilize Term Facility B for the purpose of replacing
the Original Letter of Credit and in or towards the issue of Letters of
Credit for the Original EU Competition Law Liabilities, including
interest accruing thereon at the respective rate.
(c) The Company shall apply all amounts borrowed by it under Term Facility C
in or towards discharging the amounts outstanding under the Original Term
Facility C.
35
(d) The Company shall apply all amounts borrowed by it under the Revolving
Credit Facility in or towards financing the general corporate purposes
and refinancing of existing working capital facilities of the Group (but
not to fund:
(i) the making or declaration of any dividend, return on capital,
repayment of capital contributions or other distribution (whether
in cash or kind) or making of any other payment whatsoever in
respect of share capital whether directly or indirectly by the
Company;
(ii) the refinancing of the Convertible Bond;
(iii) the financing of cartel fines or Cash Collateral relating thereto;
or
(iv) the refinancing of any other Financial Indebtedness incurred after
the Signing Date).
(e) The Company shall apply all amounts borrowed by it under the
Subfacilities and utilise all other banking arrangements comprised in the
Subfacilities, for the general working capital requirements or other
general corporate purposes of the Group.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of the
proceeds of, or the use of, any Utilisation pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 CONDITIONS PRECEDENT TO EFFECTIVENESS OF FINANCE DOCUMENTS
This Agreement and the other Finance Documents become effective upon
receipt by the Facility Agent of all the documents and other evidence
listed in Part 0 of Schedule 2 (Conditions Precedent and Conditions
Subsequent) in form and substance satisfactory to the Facility Agent. The
Facility Agent shall notify the Company and the Lenders promptly upon
being so satisfied.
4.2 INITIAL CONDITIONS PRECEDENT
No Borrower may deliver a Utilisation Request unless the Facility Agent
has received all of the documents and other evidence listed in Part I of
Schedule 2 (Conditions Precedent and Conditions Subsequent) in form and
substance satisfactory to the Facility Agent. The Facility Agent shall
notify the Company and the Lenders promptly upon being so satisfied.
4.3 FURTHER CONDITIONS PRECEDENT
The Lenders and the Issuing Banks will only be obliged to comply with
Clause 5.4 (Lenders' and Issuing Banks' Participation) if on the date of
the Utilisation Request and on the proposed Utilisation Date:
(a) in the case of a Rollover Loan, no Event of Default (other than an
Event of Default pursuant to Clause 24.18 (b) during the time
period reserved for negotiations of the parties set out therein) is
continuing or would result from the proposed Rollover Loan and, in
the case of any other Loan or Letter of Credit, no Default is
continuing or would result from the proposed Loan or Letter of
Credit;
36
(b) the Repeating Representations made or deemed to be made by the
Company and each other Obligor are true in all material respects;
(c) no Change of Control has occurred.
4.4 MAXIMUM NUMBER OF LOANS
(a) A Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation more than ten (10) Revolving Credit Facility Loans
would be outstanding.
(b) A Borrower may only deliver one Utilisation Request in relation to the
Term Facility A Loan and the Term Facility C Loan.
SECTION 3
UTILISATION
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
A Borrower may utilise a Facility made available to it by delivery to the
Facility Agent of a duly completed Utilisation Request not later than the
Specified Time.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request 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);
(iv) the proposed Interest Period or, as the case may be, Term complies
with Clause 11 (Interest Periods and the Term);
(v) in relation to a Loan, it provides payment instructions; and
(vi) in relation to a Letter of Credit, the Issuing Banks and the
Facility Agent have prior to the delivery of the Utilisation
Request approved its terms (which, unless the Facility Agent and
the Issuing Banks agree otherwise, shall be substantially in the
form set out in Schedule 14 (Form of Letter of Credit)), the
purpose of its issue and the identity of the beneficiary.
(b) Only one Loan or Letter of Credit may be requested in each Utilisation
Request.
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5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request in relation to:
(i) the Term Facility A Loan, the Letters of Credit under Term
Facility B and the Term Facility C Loan must be Euros; and
(ii) a Revolving Credit Facility Loan must be Euros or Dollars.
(b) Neither the:
(i) amount in Euros of the Term Facility A Loan, the Letters of Credit
under Term Facility B or the Term Facility C Loan; nor
(ii) the Euro Amount of a proposed Revolving Credit Facility Loan,
may exceed the applicable Available Commitment.
(c) The amount of a proposed Revolving Credit Facility Loan must be:
(i) if the currency selected is Euros, a minimum of [e]5,000,000 and an
integral multiple of [e]1,000,000 or, if less, the applicable
Available Facility; or
(ii) if the currency selected is Dollars, a minimum of $ 5,000,000 and
an integral multiple of $ 1,000,000 or, if less, the applicable
Available Facility.
(d) The amount in Euros of the Term Facility A Loan must be equal to the
Total Term Facility A Commitments.
(e) The amount in Euros of the proposed Term Facility C Loan must be equal to
the Total Term Facility C Commitments.
5.4 LENDERS' AND ISSUING BANKS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met:
(i) each Lender shall make its participation in each Loan available by
the Utilisation Date through its Facility Office; and
(ii) each Issuing Bank shall issue any Letter of Credit by the
Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in the Term Facility Loans will
be equal to the proportion borne by its Available Commitment to the
Available Facility, in relation to the relevant Term Facility,
immediately prior to the making of such Term Facility Loan.
(c) The amount of each Issuing Bank's participation in a Letter of Credit
will be equal to the proportion borne by its Available Commitment to the
Available Facility immediately prior to the issue of such Letter of
Credit.
(d) The amount of each Lender's participation in each Revolving Credit
Facility Loan (other than under a Subfacility) will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to the making of such Revolving Credit Facility Loan.
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(e) No Revolving Credit Facility Loan shall be made on any Utilisation Date
if, as a result, the aggregate of all Revolving Credit Facility
Outstandings on that Utilisation Date when aggregated at that time with
the amount of all Subfacilities effective at that time shall exceed the
aggregate of the Revolving Credit Facility Commitments on that
Utilisation Date.
(f) The Facility Agent shall notify each Lender the currency, the amount and
the Interest Period in relation to of each Loan or Letter of Credit at
the Specified Time.
5.5 [INTENTIONALLY LEFT BLANK]
5.6 CANCELLATION OF A FACILITY
If, prior to the date on which it receives a Utilisation Request in
respect of a Facility, the Facility Agent receives a notice of
cancellation of the whole or part of the Available Facility for such
Facility which is to take effect under Clause 9.11 (Voluntary
Cancellation) on a date falling on or after such date, such Available
Facility shall be treated, for the purpose of Clause 5.3 (Currency and
Amount), as if it had already been reduced by the amount of such
cancellation (as specified in such notice). Nothing in this Clause 5.6
shall be treated as reducing any Lender's Available Commitment under that
Facility for the purposes of Clause 13.1 (Commitment Fee) prior to the
date on which such cancellation would otherwise take effect.
5.7 CANCELLATION OF A LENDER'S COMMITMENT
If a Lender's Commitment is cancelled under Clause 9.1 (Illegality) or
Clause 9.12 (Right of repayment and cancellation in relation to a single
Lender or Issuing Bank) after the Facility Agent has received a
Utilisation Request but before the Loan requested in that Utilisation
Request has been made, then the amount of that Loan shall be reduced by
the proportion which such Lender's Term Facility Commitment or Revolving
Credit Facility Commitment bore to the Total Term Facility Commitments or
the Total Revolving Credit Facility Commitments (as the case may be)
immediately prior to such cancellation taking effect.
5.8 CANCELLATION AND REPLACEMENT OF LETTER OF CREDIT
(a) The Company shall use its reasonable efforts to cause the European
Commission to return any Letter of Credit to the Issuing Banks in
exchange against a new Letter of Credit in each case if and to the extent
an Issuing Bank in respect of such Letter of Credit is not also a Term
Facility B Lender.
(b) However, the Company shall also use its reasonable efforts to cause the
European Commission to return any Letter of Credit to the Issuing Banks
or cause the European Commission to release the Issuing Banks from their
liabilities under such Letter of Credit upon:
(i) the European Commission waiving the requirement for such Letter of
Credit to be issued; and
(ii) in any event, on the Termination Date applicable to the Term
Facility B Loan.
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(c) In the event that the amount required to be covered by any Letter of
Credit is reduced by the European Commission, the Company shall
immediately notify the Facility Agent accordingly, whereupon:
(i) a new Letter of Credit shall immediately be issued for the lesser
amount required by the European Commission which shall be
effective only upon the cancellation and return of the original
Letter of Credit to the Facility Agent; and
(ii) upon such cancellation and return of the original Letter of
Credit, each Issuing Bank's Letter of Credit Proportion shall be
reduced pro rata.
(d) To the extent that on the occurrence of the event described in paragraph
(b) above the Company does not return to the Facility Agent the
respective original Letter of Credit, the Company will provide Cash
Collateral in an amount equal to the amount by which such Letter of
Credit may be reduced.
5.9 LETTER OF CREDIT FRONTING FEE
Until such time as a Letter of Credit is returned to the respective
Issuing Bank and replaced by a new Letter of Credit in accordance with
Clause 5.8 (Cancellation and replacement of Letter of Credit), the
Company shall pay the Fronting Fee to such Issuing Bank, whereas the Term
Facility B Lenders will be entitled to the relevant remuneration pursuant
to Clause 13.4 (Letter of Credit Commission).
5.10 UTILISATION OF THE SUBFACILITIES
(a) Subfacilities may comprise overdraft facilities, letters of credit, bank
guarantees, short term loans, foreign exchange facilities or, if approved
by the Facility Agent, any other facilities or financial accommodation as
may be required in connection with the business of the Group which the
Company and the relevant Subfacility Bank may agree from time to time.
(b) The rate of interest, fees and other remuneration in respect of each
Subfacility and all other terms and conditions thereof shall be
determined by agreement between the Subfacility Bank and the relevant
Borrower as set out in the relevant Subfacility Documents, and shall be
based upon the normal market rates and terms from time to time of the
Subfacility Bank taking account its fronting function.
(c) Each Borrower and each Subfacility Bank agree with and for the benefit of
each Subfacility Bank that any utilisations made under any Subfacility
provided by such Subfacility Bank shall not exceed the Subfacility.
(d) In case of any inconsistency between any term of a Subfacility Document
and of this Agreement, the terms of this Agreement shall prevail.
(e) Each Borrower and each Subfacility Bank shall, promptly upon request by
the Facility Agent, provide the Facility Agent with such information
relating to the operation of each Subfacility as the Facility Agent may
from time to time request. Each Borrower consents to all such information
being released to the Facility Agent and each Lender.
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6. CHANGE OF CURRENCY
6.1 SELECTION OF CURRENCY
A Borrower shall select the currency of a Revolving Credit Facility Loan
in a Utilisation Request.
6.2 UNAVAILABILITY OF DOLLARS
If before the Specified Time on any Quotation Day:
(a) the Facility Agent has received notice from a Lender that Dollars
are not readily available to it in the amount required; or
(b) a Lender notifies the Facility Agent that compliance with its
obligation to participate in a Revolving Credit Facility Loan in
Dollars would contravene a law or regulation applicable to it,
the Facility Agent will give notice to the Company to that effect by the
Specified Time on that day. In this event, any Lender that gives notice
pursuant to this Clause 6.2 will be required to participate in the
Revolving Credit Facility Loan in Euros (in an amount equal to that
Lender's proportion of the Euro Amount of that Loan or, in respect of a
Rollover Loan, an amount equal to that Lender's proportion of the Euro
Amount of the maturing Revolving Credit Facility Loan that is due to be
repaid) and its participation will be treated as a separate Loan
denominated in Euros during that Interest Period.
41
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 REPAYMENT OF TERM FACILITY A LOAN
(a) The Company shall repay the Term Facility A Loan by repaying on each Term
Facility A Repayment Date an amount or amounts such that the amount in
Euros of the outstanding Term Facility A Loan is reduced by an amount
equal to the amount which appears opposite the Term Facility A Repayment
Dates set out in the following table:
Term Facility A Repayment Date Repayment Amount
30 June 2004 [e]2,500,000
31 December 2004 [e]2,500,000
30 June 2005 [e]5,000,000
31 December 2005 [e]5,000,000
30 June 2006 [e]1,250,000
31 December 2006 [e]1,250,000
30 June 2007 [e]1,250,000
31 December 2007 [e]1,250,000
30 June 2008 [e]1,250,000
30 December 2008 [e]3,750,000
TOTAL [e]25,000,000
(b) The Company may not re-borrow any part of Term Facility A which is
repaid.
7.2 SATISFACTION OF LIABILITIES IN RELATION TO TERM FACILITY B
(a) The Company shall ensure that no amount is outstanding on the Termination
Date applicable to Term Facility B in relation to a Utilisation in the
form of the issuance of a Letter of Credit and shall ensure that the
Letters of Credit are returned to the Facility Agent, or else provide
sufficient Cash Collateral (including, inter alia, interest coverage
payable in arrears in respect of each six (6) Months period after the
Termination Date applicable to Term Facility B) to the Facility Agent to
cover the Company's payment obligations thereunder in full. Such
obligation to provide Cash Collateral is continuing and, in particular,
shall survive the termination of this Agreement.
42
(b) The Company shall repay the Term Facility B Loan by repaying on the
Termination Date applicable to the Term Facility B an amount or amounts
such that the aggregate amount in Euros of all the outstanding Term
Facility B Loans is repaid in full.
7.3 REPAYMENT OF TERM FACILITY C LOAN
(a) The Company shall repay the Term Facility C Loan by repaying on each Term
Facility C Repayment Date an amount or amounts such that the aggregate
amount in Euros of all outstandings under the Term Facility C Loan drawn
by the Company is reduced by an amount equal to the amount which appears
opposite the relevant Term Facility C Repayment Date set out in the
following table:
Term Facility C Repayment Date Repayment Amount
30 September 2004 [e]2,333,335
31 March 2005 [e]2,333,333
30 September 2005 [e]2,333,333
31 March 2006 [e]2,333,333
30 September 2006 [e]2,333,333
31 March 2007 [e]2,333,333
30 September 2007 [e]6,000,000
TOTAL [e]20,000,000
(b) The Company may not re-borrow any part of Term Facility C which is
repaid.
7.4 REPAYMENT OF REVOLVING CREDIT FACILITY LOANS
Each Borrower shall repay each Revolving Credit Facility Loan that it has
drawn on the last day of that Revolving Credit Facility Loan's Interest
Period and no Interest Period shall fall after the Termination Date
applicable to the Revolving Credit Facility.
8. COMPANY'S LIABILITIES IN RELATION TO LETTER OF CREDIT
8.1 DEMANDS UNDER LETTER OF CREDIT
If a demand is made under a Letter of Credit, as the case may be, or an
Issuing Bank incurs in connection with a Letter of Credit any other
liability, cost, claim, loss or expense which is to be reimbursed
pursuant to this Agreement, the relevant Issuing Bank shall promptly
notify the Facility Agent of the amount of such demand or such liability,
cost, claim, loss or expense and the Facility Agent shall promptly notify
the Company.
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8.2 THE COMPANY'S INDEMNITY TO ISSUING BANKS
The Company shall irrevocably and unconditionally as a primary obligation
indemnify (on demand of the Facility Agent) any Issuing Bank which has
issued a Letter of Credit at the request of the Company against:
(a) any sum paid, or due and payable, by that Issuing Bank to the
beneficiary of such Letter of Credit under or in connection with
the relevant Letter of Credit; and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from that Issuing
Bank under the relevant Letter of Credit or in connection with
it), claims, losses and expenses which that Issuing Bank may at
any time reasonably incur or sustain in connection with or arising
out of the relevant Letter of Credit.
The indemnity obligations pursuant to this Clause 8.2 shall in respect of
any Original Issuing Bank which is not a party to this Agreement create
direct claims of such Original Issuing Bank (Vertrag zugunsten Dritter)
against the Company.
8.3 THE COMPANY'S INDEMNITY TO TERM FACILITY B LENDERS
The Company shall irrevocably and unconditionally as a primary obligation
indemnify (on demand of the Facility Agent) a Term Facility B Lender in
respect of any Letter of Credit:
(a) any sum paid, or due and payable, by that Term Facility B Lender
(whether under Clause 28.1 (Lenders' Indemnity), Clause 28.2
(Direct Participation) or otherwise) in connection with such
Letter of Credit; and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from that Term
Facility B Lender in connection with such Letter of Credit),
claims, losses and expenses which that Term Facility B Lender may
at any time reasonably incur or sustain in connection with such
Letter of Credit.
8.4 PRESERVATION OF RIGHTS
Neither the obligations of the Company set out in this Clause 8 nor any
rights, powers and remedies conferred on any Term Facility B Lender or
Issuing Bank derived therefrom or by law shall be discharged, impaired or
otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of
the relevant upon Term Facility B Lender, Issuing Bank or any
other person or any change in the status, function, control or
ownership of any of them;
(b) any of the obligations of the relevant Term Facility B Lender,
Issuing Bank or any other person under any of the Finance
Documents, under any Letter of Credit or under any other security
taken in respect of the Company's obligations under any of the
Finance Documents, or otherwise in connection with such Letter of
Credit, being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted to
the relevant Term Facility B Lender, Issuing Bank or any other
person in respect of the obligations of any of them under any of
the Finance Documents, under or in connection with any
44
Letter of Credit or under any other security taken in respect
of the Company's obligations under any of the Finance
Documents, or otherwise in connection with such Letter of Credit;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the relevant Term Facility B Lender, Issuing Bank or
any other person under any Letter of Credit or under any of the
Finance Documents; or
(e) any other act, event or omission which, but for this Clause 8,
might operate to discharge, impair or otherwise affect any of the
obligations of the Company set out in this Clause 8 or any of the
rights, powers or remedies conferred upon any Issuing Bank by this
Agreement or by law.
The obligations of the Company set out in this Clause 8 shall be in
addition to and independent of every other security which any Term
Facility B Lender or Issuing Bank may at any time hold in respect of the
Company's obligations under this Agreement or otherwise in connection
with such Letter of Credit.
8.5 SETTLEMENT CONDITIONAL
Any settlement or discharge between the Company and a Term Facility B
Lender or Issuing Bank shall be conditional upon no security or payment
to that Term Facility B Lender or Issuing Bank by the Company, or any
other person on behalf of the Company, being avoided or reduced by virtue
of any laws relating to bankruptcy, insolvency, liquidation or similar
laws of general application and, if any such security or payment is so
avoided or reduced, that Term Facility B Lender or Issuing Bank shall be
entitled to recover the value or amount of such security or payment from
the Company subsequently as if such settlement or discharge had not
occurred.
8.6 RIGHT TO MAKE PAYMENTS UNDER LETTERS OF CREDIT
Each Issuing Bank shall be entitled to make any payment in accordance
with the terms of any Letter of Credit without any reference to, or
further authority from, the Company or any other investigation or
enquiry. The Company irrevocably authorises each Issuing Bank to comply
with any demand under such Letter of Credit which is valid on its face.
8.7 CONVERSION OF TERM FACILITY B UPON DEMAND UNDER LETTER OF CREDIT
If a demand is made under a Letter of Credit or, as the case may be, an
Issuing Bank or a Term Facility B Lender incurs any liability, cost,
claim, loss or expense in connection with a Letter of Credit, and to the
extent that the Company is obligated to indemnify the relevant Issuing
Bank or Term Facility B Lender pursuant to Clause 8.2 (The Company's
Indemnity to Issuing Banks) or Clause 8.3 (The Company's Indemnity to
Term Facility B Lenders), the Issuing Bank or Term Facility B Lenders, as
the case may be, shall be deemed to have made a loan to the Company under
Term Facility B in the amount of such indemnity (the "TERM FACILITY B
LOAN"), In case of any subsequent demand under a Letter of Credit the
amount of the Term Facility B Loan shall be increased in accordance with
such further amount becoming due and payable by the Company pursuant to
Clause 8.2 (The Company's Indemnity to Issuing Banks) or Clause 8.3 (The
Company's Indemnity to Term Facility B Lenders). The amount of any Cash
Collateral provided by the Company in accordance with the terms of this
Agreement shall be applied towards the indemnity amount referred to in
the preceding two sentences of this Clause 8.7 and the amount of the Term
Facility B Loan shall be reduced accordingly.
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9. PREPAYMENT AND CANCELLATION
9.1 ILLEGALITY
If it becomes unlawful in any jurisdiction for a Lender or Issuing Bank
to perform any of its obligations as contemplated by this Agreement or to
fund, issue, participate in or allow to remain outstanding any Loan or
Letter of Credit:
(a) that Lender or Issuing Bank shall promptly notify the Facility
Agent upon becoming aware of that event;
(b) upon the Facility Agent notifying the Company, any Commitment of
that Lender will be immediately cancelled or, as the case may be,
any obligation of that Issuing Bank to issue Letters of Credit
will immediately cease; and
(c) each Borrower shall, on the last day of the Interest Period for
each Loan or Term for any Letter of Credit occurring after the
Facility Agent has notified the Company or, if earlier, the date
specified by the Lender or Issuing Bank in the notice delivered to
the Facility Agent (being no earlier than the last day of any
applicable grace period permitted by law):
(i) repay that Lender's participation in the Loans made to that
Borrower together with accrued interest thereon, Break Costs
and all other amounts owing to such Lender under the Finance
Documents;
(ii) (if the circumstance relates to an Issuing Bank) procure
either that such Issuing Bank's Letter of Credit Proportion
of the Letter of Credit be reduced to zero (by reduction of
the amount of the Letter of Credit in an amount equal to
that Issuing Bank's Letter of Credit Proportion) or that
Cash Collateral be provided in an amount in Euros equal to
such Issuing Bank's Letter of Credit Proportion of the
Letter of Credit.
9.2 MANDATORY PREPAYMENT FROM DEBT ISSUE OR EQUITY ISSUE
The Company shall ensure that an amount equal to one hundred (100) per
cent. of the Net Proceeds arising from a Debt Issue (other than the issue
of the High Yield Notes) and an amount equal to seventy-five (75) per
cent. of the Net Proceeds arising from an Equity Issue (other than the
Rights Issue) (such Equity Issue only to be made in accordance with
applicable laws) by any Group Member are paid to the Facility Agent
promptly upon the receipt of such Net Proceeds by such Group Member and
applied in prepayment of the outstandings under the Senior Facilities in
accordance with Clause 9.7 (Application of Prepayments).
9.3 MANDATORY PREPAYMENT FROM ASSET DISPOSALS
(a) Subject to paragraph (b) and (c) below, the Company shall ensure that the
Net Proceeds arising from each disposal of assets by any Group Member are
paid to the Facility Agent promptly upon the receipt of such Net Proceeds
by such Group Member and applied in prepayment of the outstandings under
the Senior Facilities in accordance with Clause 9.7 (Application of
Prepayments).
(b) Paragraph (a) shall not apply to Net Proceeds arising from any disposal:
46
(i) to the extent that the Company or the relevant Group Member can
demonstrate to the satisfaction of the Facility Agent that such
disposal was on arm's length terms and that the Net Proceeds are
to be re-invested in similar or like assets of a comparable or
superior quality, type or value within a period of 180 days from
the date of receipt of such Net Proceeds by such Group Member;
(ii) if such disposal falls within paragraphs (a) (subject to a limit
of [e]500,000 per disposal), (b), (c) or (e) of the definition of
"PERMITTED DISPOSAL" in Clause 1.1 (Definitions);
(iii) if such disposal relates to a sale of electrical contacts
(graphite specialties) by Xxxxxx Ringsdorff S.A.;
(iv) if the Net Proceeds per disposal do not exceed [e]1,000,000 (or
its equivalent in another currency) or, when aggregated with the
Net Proceeds received by any Group Member from any other disposals
of assets made in the immediately preceding twelve (12) calendar
month period (excluding the Net Proceeds from disposals falling
within sub-paragraphs (i); (ii) or (iii) above), do not exceed
[e]7,500,000 (or its equivalent in another currency).
(c) The Company shall ensure that any Net Proceeds to be applied in
accordance with paragraph (b)(i) above are promptly deposited in the
Prepayment Account upon receipt by the relevant Group Member. The
relevant Group Member that received the Net Proceeds shall be entitled,
during the period of 180 days from the date of receipt of such Net
Proceeds, to withdraw such Net Proceeds from the Prepayment Account only
to the extent that it is able to demonstrate to the satisfaction of the
Facility Agent that such Net Proceeds will be immediately re-invested in
accordance with paragraph (b)(i) above. Any amounts not so re-invested
during such 180 day period shall thereafter be paid to the Facility Agent
and applied in prepayment of the outstandings under the Senior Facilities
in accordance with Clause 9.7 (Application of Prepayments).
9.4 MANDATORY PREPAYMENT FROM INSURANCE PROCEEDS
(a) Subject to paragraphs (b), (c), and (d) below, the Company shall ensure
that any Insurance Proceeds received by any Group Member are paid to the
Facility Agent promptly upon the receipt of such Insurance Proceeds by
such Group Member and applied in prepayment of the outstandings under the
Senior Facilities in accordance with Clause 9.7 (Application of
Prepayments).
(b) Paragraph (a) shall not apply to any Insurance Proceeds unless the
Insurance Proceeds exceed [e]1,000,000 (or its equivalent in another
currency) or, when aggregated with the Insurance Proceeds received by
Group Members from claims made in the immediately preceding twelve (12)
calendar month period (excluding the Insurance Proceeds from disposals
falling within paragraphs (c) below), exceed [e]7,500,000 (or its
equivalent in another currency).
(c) Paragraph (a) shall not apply to any Insurance Proceeds to the extent
that:
(i) such Insurance Proceeds are promptly upon receipt by the relevant
Group Member deposited in the Prepayment Account in accordance
with paragraph (d) below; and
(ii) such Insurance Proceeds are applied, to the satisfaction of the
Facility Agent, towards the replacement, reinstatement and/or
repair of the assets and/or the
47
satisfaction of business interruption losses in respect of which
the relevant insurance claim was made (or to refinance any
expenditure incurred in the replacement, reinstatement and/or
repair of such assets and/or the satisfaction of business
interruption losses) within a period of 180 days from the date of
receipt of such Insurance Proceeds by the relevant Group Member.
(d) The Company shall ensure that any Insurance Proceeds to be applied in
accordance with paragraph (c) above are promptly deposited in the
Prepayment Account, upon receipt by the relevant Group Member. The
relevant Group Member that received the Insurance Proceeds shall be
entitled, during the period of 180 days from the date of its receipt of
such Insurance Proceeds, to withdraw such Insurance Proceeds from the
Prepayment Account only to the extent that it is able to demonstrate to
the satisfaction of the Facility Agent that such Insurance Proceeds will
be immediately applied in accordance with paragraph (c) above. Any sums
not so withdrawn during the 180 day period shall thereafter be paid to
the Facility Agent and applied in prepayment of the outstandings under
the Senior Facilities in accordance with Clause 9.7 (Application of
Prepayments).
9.5 MANDATORY PREPAYMENT FROM EXCESS CASH FLOW
The Company shall ensure that, within thirty (30) days of delivery to the
Facility Agent of the most recent audited consolidated financial
statements of the Company pursuant to Clause 21.1(a), commencing with the
audited consolidated financial statements of the Company for the
financial year ending 31 December 2003, an amount equal to fifty (50) per
cent. of the amount of the Excess Cash Flow exceeding a minimum amount of
[e]7,500,000 for the financial year to which such financial statements
relate shall be paid to the Facility Agent and applied in prepayment of
the outstandings under the Senior Facilities in accordance with Clause
9.7 (Application of Prepayments).
9.6 MANDATORY PREPAYMENT IN RESPECT TO DIVIDEND PAYMENTS OR DISTRIBUTIONS
If the Company makes any dividend, return of capital, repayment of
capital contributions or other distribution (whether in cash or kind) or
makes any distribution of assets or other payment whatsoever in respect
of share capital whether directly or indirectly, the Company shall ensure
that within thirty (30) days of the same, an amount equal to such payment
or distribution shall be paid to the Facility Agent and applied in
prepayment of the outstandings under the Senior Facilities in accordance
with Clause 9.7 (Application of Prepayments).
9.7 APPLICATION OF PREPAYMENTS
(a) Any amounts paid to the Facility Agent in accordance with Clause 9.2
(Mandatory Prepayment from Debt Issue or Equity Issue) to Clause 9.6
(Mandatory Prepayment in respect to Dividend Payments or Distributions)
(inclusive) shall be applied:
(i) first, in prepayment on a pro rata basis of all outstanding Term
Facility Loans and the US Term Loans;
(ii) secondly, Cash Collateral to be provided in an amount equal to
each Issuing Bank's Letters of Credit Proportion or Issuing Bank's
liability under the Letter of Credit in Euros, as relevant;
48
(iii) thirdly, in permanent prepayment on a pro rata basis of all
outstanding Revolving Credit Facility Loans (in such order as the
Company may select or, in the absence of such selection, as the
Facility Agent shall determine); and
(iv) fourthly, if any excess remains, in payment of such excess to the
relevant Group Member,
provided that to the extent that the US Term Lenders exercise their right
to refuse prepayment under the US Term Loan Agreement , the amount so
refused shall be applied pro rata to the outstanding Term Facility Loans
and thereafter be applied for the provision of Cash Collateral in
accordance with paragraph (a) (ii) of this Clause 9.7.
(b) Notwithstanding Clause 9.7 (a), any prepayment in respect of accounts
receivables made in accordance with Clause 9.3 (Mandatory Prepayment from
Asset Disposals) shall be applied in cancellation and prepayment of the
outstanding Revolving Credit Facility.
(c) Any prepayment of the Term Facility A Loan, Term Facility B Loans or Term
Facility C Loans in accordance with this Clause 9.7 shall reduce (and
there shall be a corresponding cancellation in) the Available Facility in
respect of each such Term Facility. Any such cancellation shall reduce
the Commitments of the Lenders rateably under such Term Facility. No
amount so cancelled may be reborrowed.
(d) Any prepayment of the Revolving Credit Facility Loans in accordance with
this Clause 9.7 shall reduce (and there shall be a corresponding
cancellation in) the Available Facility in respect of the Revolving
Credit Facility. Any such cancellation shall reduce the Commitments of
the Lenders rateably under that Facility. No amount so cancelled may be
reborrowed.
(e) Any amounts to be applied in prepayment of the US Term Loan in accordance
with this Clause 9.7 (Application of Prepayments) shall be converted into
Euros at the Facility Agent's Spot Rate of Exchange three Business Days
prior to the date the relevant Prepayment is made.
9.8 DATE FOR PREPAYMENT
(a) If Clause 9.2 (Mandatory Prepayment from Debt Issue or Equity Issue) to
Clause 9.5 (Mandatory Prepayment from Excess Cash Flow) (inclusive) would
require the prepayment of a Loan otherwise than on the last day of an
Interest Period relating to that Loan, the Company may, by written notice
to the Facility Agent (to be received not less than three (3) Business
Days prior to the date on which such prepayment would be required to be
made (but for this Clause 9.8)), request that the amount of such
prepayment be placed in an identified Prepayment Account in which event
such amount shall be paid to the credit of such Prepayment Account and
shall, together with any interest accrued thereon, be applied by the
Facility Agent in prepayment of the relevant Loan on the last day of the
then current Interest Period relating to that Loan.
(b) So long as any Loan remains outstanding or any of the Commitments are
available for drawing, no amount shall be withdrawn from such Prepayment
Account except for immediate application in making any prepayment
pursuant to Clause 9.2 (Mandatory Prepayment from Debt Issue or Equity
Issue) to Clause 9.5 (Mandatory Prepayment from Excess Cash Flow)
(inclusive) or as provided in paragraph (c) below.
49
(c) The Facility Agent shall be entitled (but not obliged) to apply the whole
or any part of the sums standing to the credit of such Prepayment Account
in or towards payment of any unpaid sums at any time due from any Obligor
under this Agreement.
9.9 VOLUNTARY PREPAYMENT
(a) The Company may, if it gives the Facility Agent not less than five (5)
Business Days' (or such shorter period as the Majority Lenders may agree)
prior notice, prepay the whole or any part of any Term Facility A Loan or
Term Facility B Loan (but, if in part, being an amount that reduces the
amount of the relevant Term Facility Loan by a minimum amount of
[e]500,000 and represents an integral multiple of [e]250,000).
(b) A Term Facility A Loan or Term Facility B Loan may only be prepaid after
the last day of the Availability Period applicable to its Facility (or,
if earlier, the first day on which the Available Facility applicable to
its Facility is zero).
(c) Any prepayment under this Clause 9.9 shall be applied on a pro rata basis
against all outstanding Term Facility Loans and the US Term Loans as
determined by the Company with not less than five (5) Business Days'
prior notice to the Facility Agent.
(d) The Company may, if it gives the Facility Agent not less than five (5)
Business Days' (or such shorter period as the Lender of the Term Facility
C Loan may agree) prior notice, prepay the whole or any part of the Term
Facility C Loan (but, if in part, being an amount that reduces the amount
of the Term Facility C Loan by a minimum amount of [e]5,000,000).
(e) Any amounts to be applied in prepayment of the US Term Loan in accordance
with this Clause 9.9 (Voluntary Prepayment) shall be converted into Euros
at the Facility Agent's Spot Rate of Exchange on the date the relevant
Prepayment is made.
9.10 CASH COLLATERALISATION OF LETTER OF CREDIT
The Company may provide Cash Collateral in Euros to reduce an Issuing
Bank's Letter of Credit Proportion or a Issuing Bank's liability under
any Letter of Credit at any time, PROVIDED THAT to the extent that such
Letter of Credit is issued by more than one Issuing Bank, such Cash
Collateral shall be applied towards the pro rata reduction of each
Issuing Bank's Letter of Credit Proportion.
9.11 VOLUNTARY CANCELLATION
(a) The Company may, if it gives the Facility Agent not less than five (5)
Business Days' (or such shorter period as the Majority Lenders may agree)
prior notice, cancel the whole or any part (being a minimum amount of
[e]500,000 and representing an integral multiple of [e]250,000) of the
Available Facility for the Revolving Credit Facility. Any cancellation
under this Clause 9.11 shall reduce the Commitments of the Lenders
rateably under the Revolving Credit Facility.
(b) The Company may give the Facility Agent not less than five (5) Business
Days' (or such shorter period as the Majority Lenders may agree) prior
notice of its intention to procure that the relevant Issuing Bank's
liability under any Letter of Credit is reduced to zero (whereupon the
Company shall do so).
50
9.12 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER OR
ISSUING BANK
(a) If:
(i) any sum payable to any Lender or Issuing Bank by an Obligor is
required to be increased under Clause 14.2(c); or
(ii) any Lender or Issuing Bank claims indemnification from the Company
(or that the Company procures that the liabilities of each of the
Issuing Banks under or in connection with the Letters of Credit
are promptly reduced to zero) under Clause 14.3 (Tax Indemnity) or
Clause 15.1 (Increased Costs); or
(iii) any Lender notifies the Facility Agent of its Additional Cost Rate
under paragraph 3 of Schedule 4 (Mandatory Cost Formula),
the Company may, whilst (in the case of paragraphs (i) and (ii) above)
the circumstance giving rise to the requirement or indemnification
continues or (in the case of paragraph (iii) above) that Additional Cost
Rate is greater than zero, give the Facility Agent at least ten (10)
Business Days' prior written notice:
(A) of cancellation of the Commitments of that Lender and its
intention to procure the repayment of that Lender's participation
in the Loans; or
(B) (if such circumstance relates to an Issuing Bank) the reduction to
zero of that Issuing Bank's liability in respect of the Letter of
Credit or the provision of Cash Collateral in respect of that
Issuing Bank's Letter of Credit Proportion.
(b) On receipt of a notice referred to in paragraph (a) above, any Commitment
of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period or, as the case may be, Term
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 and the Company in relation to
any Letter of Credit shall:
(i) repay that Lender's participation in that Loan; and
(ii) procure either that such Issuing Bank's Letter of Credit
Proportion of such Letter of Credit be reduced to zero (by
reduction of the amount of the Letter of Credit in an amount equal
to that Issuing Bank's Letter of Credit Proportion) or that Cash
Collateral be provided in an amount equal to such Issuing Bank's
Letter of Credit Proportion of the Letter of Credit in Euros).
9.13 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 9 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 that is prepaid.
51
(d) Unless a contrary indication appears in this Agreement, any part of the
Revolving Credit Facility that is prepaid (other than pursuant to Clause
9.7 (Application of Prepayments)) 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,
reduce the liabilities of the Issuing Banks or provide Cash Collateral in
respect of any Letter of Credit, and the Company shall not 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 Facility Agent receives a notice under this Clause 9 it shall
promptly forward a copy of that notice to either the Company or the
affected Lender, as appropriate.
(h) Any reduction or cancellation of the Term Facility A Commitment, a Term
Facility B Commitment, the Term Facility C Commitment or, as the case may
be, a Revolving Credit Facility Commitment under this Clause 9 shall
reduce the Total Term Facility A Commitments, the Total Term Facility B
Commitments, the Total Term Facility C Commitment or, as the case may be,
Total Revolving Credit Facility Commitments by the amount of such
reduction or cancellation.
SECTION 5
COSTS OF UTILISATION
10. INTEREST
10.1 CALCULATION OF INTEREST IN RESPECT OF TERM FACILITY A LOAN, TERM FACILITY
B LOANS AND REVOLVING CREDIT FACILITY LOANS
The rate of interest on the Term Facility A Loan, each Term Facility B
Loan and each Revolving Credit Facility 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 Loan in Dollars, LIBOR; and
(c) Mandatory Cost, if any.
10.2 MARGIN RATCHETS
(a) Save as provided in paragraph (b) below, the Margin, in relation to a
Term Facility A Loan, Term Facility B Loan and a Revolving Credit
Facility Loan, respectively, shall be the percentage rate per annum
specified in the definition of "INITIAL MARGIN" in Clause 1.1
(Definitions).
(b) Save as provided in Clause 10.4 (Margin in Default) and in accordance
with Clause 10.3 (Margin Changes), if the financial statements of the
Group in respect of the Financial Quarter ended 31 March 2005 or any
Financial Quarter thereafter, and the Compliance Certificate relating to
such financial statements, delivered to the Facility Agent pursuant to
52
Clause 21.1 (Financial Statements) and Clause 21.2 (Compliance
Certificate) respectively, disclose that the Leverage Ratio as at and for
the period of twelve (12) Months ending on the last day of that Financial
Quarter falls within a range of the ratios specified in Column A below,
then the Margin, in respect of the Term Facility A Loan, all Term
Facility B Loans and all Revolving Credit Facility Loans, shall be the
adjusted percentage rate per annum set out opposite such ratios in Column
B below:
COLUMN A COLUMN B
(LEVERAGE RATIO) (MARGIN (PER CENT. PER ANNUM))
Greater than 4.0:1 2.75 per cent. per annum
Equal to or less than 4.0:1 but greater than 3.25:1 2.25 per cent. per annum
Equal to or less than 3.25:1 but greater than 2.5:1 1.75 per cent. per annum
Equal to or less than 2.5:1 1.25 per cent. per annum
10.3 MARGIN CHANGES
(a) Save as provided in this Clause 10.3 and Clause 10.4 (Margin in Default),
any change in the Margin provided for by Clause 10.2 (Margin Ratchets)
shall take effect, in relation to all existing and future Term Facility A
Loans, Term Facility B Loans and Revolving Credit Facility Loans,
respectively, five Business Days after receipt by the Facility Agent of
the relevant consolidated financial statements of the Group and the
Compliance Certificate pursuant to Clause 21.2 (Compliance Certificate)
for the relevant Financial Quarter.
(b) If in any financial year of the Group:
(i) the Margin has been adjusted pursuant to this Clause 10.3 in
reliance on a Compliance Certificate relating to consolidated
financial statements of the Group delivered pursuant to Clause
21.1 (Financial Statements) in respect of any Financial Quarter in
that financial year; and
(ii) the audited consolidated financial statements of the Group
delivered pursuant to Clause 21.1 (Financial Statements) in
respect of that financial year show that such reduction should not
have been made,
that reduction shall be reversed with retrospective effect, the Margin
applicable to the relevant Facility shall be that justified by the
audited consolidated financial statements, amounts of interest calculated
by reference to the adjusted Margin (whether or not already paid) shall
be recalculated by reference to the Margin justified by such financial
statements and the Borrowers shall be required to make a payment to the
Facility Agent, in such amounts as the Facility Agent may specify, to
cover any shortfall in amounts of interest which should have been
received by the Lenders following any recalculation. The Facility Agent's
determination of any such shortfall shall, save in the case of manifest
error, be
53
conclusive and the Facility Agent shall provide the Company with
reasonable details of the calculation of such shortfall.
10.4 MARGIN IN DEFAULT
(a) The Margin shall immediately convert to the Default Margin from the date
determined by the Facility Agent as being the date on which a Default has
occurred or come into existence (until the date specified by the Facility
Agent as being the date on which it has been demonstrated to its
reasonable satisfaction that such Default is no longer continuing or has
been waived or in the case of a breach of a financial covenant under
Clause 22 (Financial Covenants), the date on which the Facility Agent
receives a Compliance Certificate confirming that such breach has been
remedied (and the Margin shall thereafter be determined in accordance
with Clause 10.2 (Margin Ratchets) on the basis of the unaudited
consolidated management accounts of the Group in respect of the preceding
four Financial Quarters last delivered to the Facility Agent pursuant to
Clause 21.1 (Financial Statements), together with the Compliance
Certificate relating to such financial statements delivered pursuant to
Clause 21.2 (Compliance Certificates). If the Facility Agent has
reasonable doubts (berechtigte Xxxxxxx) that such breach has been
remedied, the Facility Agent (acting on behalf of the Majority Lenders)
may request that the management accounts are to be reviewed by auditors.
(b) The Facility Agent shall promptly notify the Lenders and the Company of
any determination that a Default has occurred or exists or, as the case
may be, that it has been demonstrated to its reasonable satisfaction that
such Default is no longer continuing.
10.5 PAYMENT OF INTEREST
The Borrower to which a Term Facility A Loan, Term Facility B Loan or, as
the case may be, a Revolving Credit Facility 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 (6) Months, on the dates
falling at six-monthly intervals after the first day of the Interest
Period).
10.6 CALCULATION AND PAYMENT OF INTEREST IN RESPECT OF THE TERM FACILITY C
LOAN
The rate of interest on the Term Facility C Loan is 7.36 per cent. per
annum calculated on the basis of 30 days per month and otherwise of the
actual number of days elapsed and a 360 days' year. The Company shall pay
accrued interest on the Term Facility C Loan on each 31 March and each 30
September of each calendar year. However, in respect of the interest
payment due in relation to the period ending 31 March 2004, the Lender
under Term Facility C will notify the amount of interest due on such date
to the Facility Agent in writing in advance and the Facility Agent will
collect such amount from the Company for distribution to such Lender.
10.7 DEFAULT INTEREST AND PENALTY
(a) An Obligor shall be in default (Verzug) if it fails to pay any amount
(other than in payment of interest and fees, other than commitment fees)
payable by it under a Finance Document on its due date. On the occurrence
of such a default (Verzug), 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 per annum determined by the Facility Agent from time
to time to be the aggregate of (i) EURIBOR or, in relation to any Loan in
Dollars, LIBOR, (ii) the Default Margin, and (iii) the Mandatory Cost for
such period as the Facility Agent may select on the
54
Business Day immediately following such date, such rate to be
recalculated on the same basis at the end of each such period until such
sum is received by the Facility Agent. Any interest accruing under this
Clause 10.7 shall be immediately payable by the Obligor on demand by the
Facility Agent.
(b) If an Obligor fails to pay any amounts in payment of interest or fees
under a Finance Document on its due date, such Obligor shall pay
liquidated damages to the Facility Agent for the account of the relevant
Lenders in an amount determined by the Facility Agent as being, in
respect of the period from the due date of payment until receipt by the
Facility Agent of the relevant amount, the equivalent of interest at a
rate determined in accordance with Clause 10.7(a) applied to the relevant
overdue amount.
(c) In the circumstances described in sub-Clauses (a) and (b) above, the
Company shall be entitled to demonstrate that the damage actually
suffered by the Lenders is lower than the amounts determined in
accordance therewith, and the Lenders shall be entitled to prove and
claim for any higher damage.
10.8 NOTIFICATION OF RATES OF INTEREST
The Facility Agent shall promptly notify the Lenders and the relevant
Borrower of the determination of a rate of interest under this Agreement.
11. INTEREST PERIODS AND THE TERM
11.1 SELECTION OF INTEREST PERIODS
(a) A Borrower may select an Interest Period for a Loan in the Utilisation
Request for that Loan or (if the Loan has already been borrowed) in a
Selection Notice.
(b) Each Selection Notice for a Term Facility Loan is irrevocable and must be
delivered to the Facility Agent by the Borrower to which that Term
Facility Loan was made not later than the Specified Time.
(c) If a Borrower fails to deliver a Selection Notice to the Facility Agent
in accordance with paragraph (b) above, the relevant Interest Period
will, subject to Clause 11.2 (Changes to Interest Periods), be three (3)
Months.
(d) Subject to this Clause 11, a Borrower may select an Interest Period of
one (1), two (2), three (3) or six (6) Month(s) or any other period
agreed between the relevant Borrower and the Facility Agent (acting on
the instructions of all the Lenders); however, in relation to a Revolving
Credit Facility Loan, there may not be more than twelve (12) one Month
Interest Periods in any one year.
(e) Subject to Clause 11.3 (Non-Business Days), an Interest Period for a Term
Facility Loan shall not extend beyond the Termination Date applicable to
its Facility. An Interest Period for a Revolving Credit Facility Loan
shall not extend beyond the Termination Date applicable to the Revolving
Credit Facility. A Term for a Letter of Credit or a Bank Guarantee shall
not extend beyond the Termination Date applicable to the Revolving Credit
Facility.
(f) Each Interest Period for a Term Facility Loan shall start on the
Utilisation Date or (if already made) on the last day of its preceding
Interest Period.
55
(g) A Revolving Credit Facility Loan has one Interest Period only, which
shall start on the respective Utilisation Date.
(h) The Term for each Letter of Credit shall start on the Utilisation Date.
11.2 CHANGES TO INTEREST PERIODS
(a) Prior to determining the interest rate for a Term Facility A Loan or Term
Facility B Loan, the Facility Agent may, but is not obliged to, shorten
an Interest Period for any Term Facility A Loan or Term Facility B Loan
to ensure that the Loans drawn by any Borrower in respect of that Term
Facility A or Term Facility B and having an Interest Period ending on a
Term Facility A Repayment Date and Term Facility B Repayment Date,
respectively, have an aggregate amount in Euros equal to or greater than
the relevant Repayment Instalment applicable to that Borrower and that
Loan on that date.
(b) Prior to determining the interest rate for a Revolving Credit Facility
Loan, the Facility Agent may, but is not obliged to, shorten an Interest
Period for any Revolving Credit Facility Loan, so that it ends on a
Revolving Credit Facility Cancellation Date (or, if any such date is not
a Business Day, on the preceding Business Day), in order to ensure that
the aggregate Euro Amount of the Revolving Credit Facility Loans will not
exceed the Total Revolving Credit Facility Commitments immediately after
any Revolving Credit Facility Cancellation Date.
(c) If the Facility Agent makes any of the changes to an Interest Period
referred to in this Clause 11.2, it shall promptly notify the Company and
the Lenders.
11.3 NON-BUSINESS DAYS
If an Interest Period or Term 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).
11.4 CONSOLIDATION AND DIVISION OF TERM FACILITY LOANS
(a) Subject to paragraph (b) below, if two or more Interest Periods:
(i) relate to Loans under such Term Facility and in the same currency;
and
(ii) end on the same date; and
(iii) are made to the same Borrower,
those Term Facility Loans will, unless that Borrower specifies to the
contrary in the Selection Notice for the next Interest Period, be
consolidated into, and treated as, a single Loan under the Term Facility
on the last day of the Interest Period.
(b) Subject to Clause 4.3 (Maximum Number of Loans and Letters of Credit) and
Clause 5.3 (Currency and Amount), if a Borrower requests in a Selection
Notice that the Term Facility Loan be divided into up to six (6) Loans
under a Term Facility, that Term Facility Loan will, on the last day of
its Interest Period, be so divided with amounts specified in that
Selection Notice, being an amount equal to the amount in Euros of the
Term Facility Loan immediately before its division, having taken into
account any repayment to be made on that day.
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12. CHANGES TO THE CALCULATION OF INTEREST
12.1 ABSENCE OF QUOTATIONS
Subject to Clause 12.2 (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.
12.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share of that
Loan for the Interest Period shall be the rate per annum which is the sum
of:
(i) the Margin;
(ii) the rate notified to the Facility 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 Facility Agent to
determine EURIBOR or, if applicable, LIBOR for the relevant
currency and Interest Period; or
(ii) before close of business in Luxembourg on the Quotation Day for
the relevant Interest Period, the Facility Agent receives
notifications from a Lender or Lenders (whose participations in a
Loan exceed fifty (50) per cent. of that Loan) that the cost to it
of obtaining matching deposits in the Relevant Interbank Market
would be in excess of EURIBOR or, if applicable, LIBOR.
12.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Facility Agent or the Company
so requires, the Facility Agent and the Company shall enter into
negotiations (for a period of not more than thirty (30) days) with a view
to agreeing a substitute basis for determining the rate of interest. If
no agreement is reached, Clause 12.2 (Market Disruption) shall continue
to apply.
(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.
12.4 BREAK COSTS
(a) Each Borrower shall, within three (3) Business Days of demand by the
Facility Agent acting on behalf of a Finance Party, pay to the Facility
Agent on demand for the account of that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum
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being paid by that Borrower on a day other than the last day of an
Interest Period or Term for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by
the Facility Agent, provide a certificate confirming the amount of its
Break Costs for any Interest Period in which they accrue.
13. FEES
13.1 COMMITMENT FEE
(a) The Company shall, in respect of each Term Facility (except for Term
Facility C), pay to the Facility Agent (for the account of each Lender) a
commitment fee in Euros, as the case may be, computed from the Signing
Date until the earlier of (i) the relevant Utilisation Date and (ii) the
date on which the relevant Facility has been cancelled, at the rate of
the lower of (i) fifty (50) per cent. of the Margin on that Lender's
Available Commitment under each Term Facility; and (ii) one (1) per cent.
per annum for the Availability Period applicable to that Term Facility.
(b) The Company shall, in respect of the Revolving Credit Facility, pay to
the Facility Agent (for the account of each Lender) a commitment fee in
Euros computed at the rate of the lower of (i) fifty (50) per cent. of
the Margin on that Lender's Available Commitment under each Term
Facility; and (ii) one (1) per cent. per annum for the Availability
Period applicable to the Revolving Credit Facility.
(c) Accrued commitment fees are payable on the last day of each successive
period of three (3) Months which ends during the relevant Availability
Period, on the last day of the relevant Availability Period and on the
cancelled amount of the relevant Lender's Commitment at the time the
cancellation is effective.
13.2 AGENCY FEE
The Company shall pay to the Facility Agent (for its own account) an
agency fee in the amount and at the times agreed in a Fee Letter.
13.3 SECURITY AGENT FEE
The Company shall pay to the Security Agent (for its own account) a
security agent fee in the amount and at the times agreed in a Fee Letter.
13.4 LETTER OF CREDIT COMMISSION
(a) The Company shall in respect of the Letters of Credit pay to the Facility
Agent (for the account of each Term Facility B Lender) (for distribution
in proportion to each Term Facility B Lender's Letter of Credit
Proportion of the Letters of Credit) a letter of credit commission in
Euros computed at the rate of the Margin (as may be adjusted in
accordance with Clause 10.2 (Margin Ratchets)) on the maximum actual and
contingent liabilities of the Term Facility B Lenders under the Letters
of Credit less the amount of any Cash Collateral provided in respect of
such Letters of Credit (the "LETTER OF CREDIT COMMISSION RATE").
(b) The letter of credit commission shall be paid in arrears in respect of
each preceding period of three (3) Months (or such shorter period as
shall end on the relevant Expiry Date) which
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begins during the Term of the relevant Letters of Credit, the first
payment to be made on the Utilisation Date for such Letters of Credit and
after that on the first day of each such successive period.
13.5 [INTENTIONALLY LEFT BLANK]
13.6 FRONTING FEE
The Fronting Fee in Euros of 0.25 per cent. per annum shall be paid by
the Company to each Issuing Bank on the amount of such Issuing Bank's
maximum actual and contingent liabilities as a Issuing Bank under a
Letter of Credit (less the amount of any Cash Collateral provided for
such liabilities and less the amount of the own commitment of the Issuing
Bank in its capacity as Lender) payable in arrears in respect of each
preceding period of three (3) Months (or such shorter period as shall end
on the Expiry Date) which begins during the Term of such Letter of
Credit, the first payment to be made on the Utilisation Date for the
Letter of Credit and after that on the first day of each such successive
period.
13.7 SUBFACILITY MARGIN AND COMMITMENT FEE
(a) Each Subfacility Bank shall, in respect of its Subfacility and to the
extent such amounts are actually received from the relevant Borrower by
the Subfacility Bank, pay to the Facility Agent (for the account of each
Lender) (for distribution in proportion to each Lender's Revolving Credit
Facility Commitment) (i) interest equal to the Margin applicable to a
Revolving Credit Facility Loan (as may be adjusted in accordance with
Clause 10.2 (Margin Ratchets)) on the daily utilised amount under the
Subfacility (the "SUBFACILITY MARGIN") and (ii) a commitment fee computed
at the rate per annum set out in Clause 13(1)(b) above on the daily
unutilised amount under the Subfacility (the "SUBFACILITY COMMITMENT
FEE").
(b) The Subfacility Margin and the Subfacility Commitment Fee shall be
payable monthly in arrears.
13.8 SUBFACILITY FEE
Each Borrower shall, in respect of each Subfacility established for it,
pay to the relevant Subfacility Bank for the latter's own account a fee
on the amount of such Subfacility from day to day during the period
beginning with the date of the establishment of the Subfacility and
ending on the date on which such Subfacility expires in accordance with
the terms of this Agreement, such fee to be calculated at the rate of
0.25 per cent. per annum payable monthly in arrears.
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. TAX GROSS UP AND INDEMNITIES
14.1 DEFINITIONS
(a) In this Clause 14:
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"PROTECTED PARTY" means a Finance Party that 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.
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of, any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
"TAX PAYMENT" means an increased payment made by an Obligor to a Finance
Party under Clause 14.2 (Tax Gross-up) or a payment under Clause 14.3
(Tax Indemnity).
(b) In this Clause 14 a reference to "DETERMINES" or "DETERMINED" means a
determination made in the absolute discretion of the person making the
determination.
14.2 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) A Borrower 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 Facility Agent accordingly. Similarly, a Lender
shall notify the Facility Agent on becoming so aware in respect of a
payment payable to that Lender. If the Facility Agent receives such
notification from a Lender it shall notify the relevant Borrower 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 on a
payment of interest on a Loan, if on the date on which the payment falls
due, the Obligor making the payment is able to demonstrate that the
payment:
(i) relates to a Tax referred to in Clause 14.3(b); or
(ii) 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 (30) 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 Facility Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that Finance
Party that the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
(g) A Finance Party and each Obligor that makes a payment to which that
Finance Party is entitled shall, to the extent practicable, co-operate in
completing any procedural formalities
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necessary in due time for that Obligor to obtain authorisation
to make that payment without a Tax Deduction.
14.3 TAX INDEMNITY
(a) The Company shall (within three (3) Business Days of demand by the
Facility Agent) pay to a Protected Party an amount equal to the loss,
liability or cost that that Protected Party determines will be or has
been (directly or indirectly) suffered for or on account of Tax by that
Protected Party.
(b) Paragraph (a) above shall not apply with respect to any Tax assessed on a
Finance Party:
(i) 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, for the avoidance of doubt, caused by its German
limited tax liability (beschrankte Steuerpflicht); or
(ii) 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 in either case 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.
(c) A Protected Party making, or intending to make, a claim pursuant to
paragraph (a) above shall promptly notify the Facility Agent of the event
which will give, or has given, rise to the claim, following which the
Facility Agent shall notify the Company.
(d) A Protected Party shall, on receiving a payment from an Obligor under
this Clause 14.3, notify the Facility Agent.
14.4 TAX CREDIT
(a) If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(i) a Tax Credit is attributable to that Tax Payment; and
(ii) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Deduction not been required
by law.
(b) If such a Tax Credit by reference to which a Finance Party has made a
payment to an Obligor under paragraph (a) above is subsequently
disallowed or cancelled, the Obligor must reimburse any payment made
under paragraph (a) above to the relevant Finance Party.
(c) If an Obligor makes a Tax Payment, a Finance Party shall take all
reasonable steps to claim a Tax Credit unless in the opinion of that
Finance Party the making of such claim might have an adverse effect on
its business, operations, property, condition or prospects (financial or
otherwise). The relevant Obligor shall bear any costs incurred by a
Finance Party in making such a claim.
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14.5 STAMP TAXES
The Company shall pay and, within three (3) 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. Each
Finance Party shall use best efforts to avoid incurring such stamp duty,
registration and other similar Taxes in circumstances where it would be
reasonable for it to do so.
14.6 VALUE ADDED TAX
(a) All consideration payable under a Finance Document by an Obligor to a
Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable, the Obligor shall pay to the Finance Party (in addition to
and at the same time as paying the consideration) an amount equal to the
amount of the VAT.
(b) Where a Finance Document requires an Obligor to reimburse a Finance Party
for any costs or expenses, that Obligor shall also at the same time pay
and indemnify that Finance Party against all VAT incurred by that Finance
Party in respect of the costs or expenses save to the extent that that
Finance Party is entitled to repayment or credit in respect of the VAT.
15. INCREASED COSTS
15.1 INCREASED COSTS
(a) Subject to Clause 15.3 (Exceptions) the Company shall, within three (3)
Business Days of a demand by the Facility Agent, pay for the account of a
Finance Party the amount of any Increased Costs incurred by that Finance
Party or any of its Affiliates as a result of:
(i) the introduction of or any change in (or in the interpretation or
application of) any law or regulation; or
(ii) compliance with any law or regulation made after the Signing Date.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from the Facilities or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its Affiliates
to the extent that it is attributable to that Finance Party having
entered into its Commitment or funding or performing its obligations
under any Finance Document or any Letter of Credit.
15.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 15.1
(Increased Costs) shall notify the Facility Agent of the event giving
rise to the claim, following which the Facility Agent shall promptly
notify the Company.
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(b) Each Finance Party shall, as soon as practicable after a demand by the
Facility Agent or the Company, provide a certificate confirming the
amount of its Increased Costs in and supported in reasonable detail in
abstract terms.
15.3 EXCEPTIONS
(a) Clause 15.1 (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 14.3 (Tax Indemnity) (or would have been
compensated for under Clause 14.3 (Tax Indemnity) but was not so
compensated solely because one of the exclusions in Clause 14.3(b)
applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the breach by the relevant Finance Party or its
Affiliates of any law or regulation.
(b) In this Clause 15.3, a reference to a "TAX DEDUCTION" has the same
meaning given to the term in Clause 14.1 (Definitions).
16. OTHER INDEMNITIES
16.1 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 (3)
Business Days of demand, indemnify each Finance Party to whom that Sum is
due against any cost, loss or liability arising out of or as a result of
the conversion including any discrepancy between (A) the rate of exchange
used to convert that Sum from the First Currency into the Second Currency
and (B) the rate or rates of exchange available to that person at the
time of its receipt of any amount paid to it in satisfaction, in whole or
in part, of such claim, proof, order, judgment or award.
(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.
16.2 OTHER INDEMNITIES
The Company shall (or shall procure that an Obligor will), within three
(3) Business Days of demand, indemnify each Finance Party against any
reasonable cost, loss or liability incurred by that Finance Party as a
result of:
63
(a) 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);
(b) issuing, or making arrangements to issue any Letter of Credit but
not issued by reason of the operation of any one or more of the
provisions of this Agreement; or
(c) any Outstandings (or part of any Outstandings) not being prepaid
in accordance with a notice of prepayment given by a Borrower.
16.3 INDEMNITY TO THE FACILITY AGENT AND THE SECURITY AGENT
The Company shall promptly indemnify the Facility Agent and the Security
Agent against any cost, loss or liability incurred by the Facility Agent
or the Security Agent (in each case acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default;
(b) (in the case of the Facility Agent) entering into or performing
any foreign exchange contract for the purposes of Clause 6 (Change
of Currency); or
(c) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
17. MITIGATION BY THE LENDERS
17.1 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 cancelled pursuant
to, any of Clause 9.1 (Illegality), Clause 14 (Tax Gross-Up and
Indemnities) or Clause 15 (Increased Costs) 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.
17.2 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 17.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 17.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so might be prejudicial to it or any of its
Affiliates.
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18. COSTS AND EXPENSES
18.1 TRANSACTION EXPENSES
Unless and to the extent agreed otherwise, the Company shall promptly on
demand pay to the Documentation Agent, the Facility Agent, the Security
Agent and the Mandated Lead Arrangers the amount of all costs and
expenses (including legal fees) reasonably incurred by any of them in
connection with the negotiation, preparation, printing, execution,
syndication and performance of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the Signing Date.
18.2 AMENDMENT COSTS
If:
(a) an Obligor requests an amendment, waiver or consent; or
(b) an amendment is required pursuant to Clause 6 (Change of
Currency),
the Company shall, within three (3) Business Days of demand, reimburse
the Documentation Agent, the Facility Agent and the Security Agent for
the amount of all costs and expenses (including legal fees) reasonably
incurred by the Facility Agent or the Security Agent, as the case may be,
in responding to, evaluating, negotiating or complying with that request
or requirement.
18.3 ENFORCEMENT COSTS
The Company shall, within three (3) Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
reasonably incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
18.4 SECURITY AGENT EXPENSES
The Company shall promptly on demand pay to the Security Agent the amount
of all costs and expenses (including legal fees) reasonably incurred by
the Security Agent (for its own account and that of any Finance Party) in
connection with the constitution, administration or release of any of the
Transaction Security.
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SECTION 7
GUARANTEE
19. GUARANTEE AND INDEMNITY
19.1 GUARANTEE AND INDEMNITY
Subject to Clause 19.9 (Limitations for German Guarantors) to Clause
19.15 (Limitations for Canadian Guarantors) inclusive, each Guarantor
irrevocably and unconditionally jointly and severally:
(a) guarantees (garantiert) to each Finance Party punctual performance
by each Borrower of all that Borrower's obligations under the
Finance Documents;
(b) undertakes with each Finance Party that whenever an Obligor does
not pay any amount when due under or in connection with any
Finance Document, that Guarantor shall immediately on demand pay
that amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal. The amount of the cost, loss or liability shall be
equal to the amount which that Finance Party would otherwise have
been entitled to recover.
19.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
19.3 REINSTATEMENT
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for
those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from each Obligor, as if the
payment, discharge, avoidance or reduction had not occurred.
19.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 19 will not be
affected by an act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice any of its obligations under this
Clause 19 (without limitation and whether or not known to it or any
Finance Party) including:
66
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of any
Group Member;
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Obligor or other
person or any non-presentation or non-observance of any formality
or other requirement in respect of any instrument or any failure
to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality of
or dissolution or change in the members or status of an Obligor or
any other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
19.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or the Facility Agent on its behalf) to
proceed against or enforce any other rights or security or claim payment
from any person before claiming from that Guarantor under this Clause 19.
This waiver applies irrespective of any law or any provision of a Finance
Document to the contrary.
19.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or the Facility Agent on its
behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
Facility Agent on its behalf) in respect of those amounts, or
apply and enforce the same in such manner and order as it sees fit
(whether against those amounts or otherwise) and no Guarantor
shall be entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of any Guarantor's liability
under this Clause 19.
19.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full and unless the Facility Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
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(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents by
any Finance Party.
19.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance
Party.
19.9 LIMITATIONS FOR GERMAN GUARANTORS
(a) Each Finance Party agrees that the enforcement of the guarantee and
indemnity pursuant to this Clause 19, and any Security provided by a
Guarantor pursuant to the terms of the Security Documents, other than in
respect of Loans made available to such Guarantor or to a Subsidiary of
such Guarantor by a Lender, or by another Obligor from the proceeds of
Loans, shall be limited, in relation to any Obligor (other than the
Company) which is a German limited liability company (Gesellschaft mit
beschrankter Haftung - GmbH) (a "GERMAN OBLIGOR"), to the extent that
payment under that guarantee and indemnity, or the enforcement of the
Security, would cause the higher of (i) the German Obligor's net assets
(including, for the avoidance of doubt, the amount corresponding to such
German Obligor's registered share capital (Stammkapital)) as per 31
December 2003 minus 10 per cent. (the "BASE NET ASSETS") and (ii) the
German Obligor's net assets (including, for the avoidance of doubt, the
amount corresponding to such German Obligor's Stammkapital) as per the
end of the calendar month preceding the date of enforcement of this
guarantee and indemnity or of any Security (the "CURRENT NET ASSETS") to
fall below its Stammkapital PROVIDED THAT for the purposes of the
calculation of the Base Net Assets and the Current Net Assets the
following balance sheet items shall be adjusted as follows:
(i) the amount of any increase of the Stammkapital of the relevant
German Obligor after the Signing Date shall be deducted from the
relevant Stammkapital;
(ii) loans provided to the relevant German Obligor (or to any direct or
indirect Subsidiary of such German Obligor) by any Group Member
shall be disregarded if and to the extent such loans have been
made from funds made available to a German Obligor pursuant to the
terms of this Agreement, or are subordinated, or are considered
subordinated pursuant to Sec. 32a GmbHG; and
(iii) loans and other liabilities incurred in violation of the
provisions of this Agreement shall be disregarded,
and FURTHER PROVIDED THAT the relevant German Obligor shall for the
purposes of the determination of the Base Net Assets and the Current Net
Assets dispose of all assets where the relevant assets are shown in the
balance sheet of the German Obligor with a book value (Buchwert) which is
significantly lower than the market value of such assets. The above
limitations shall not apply if following notification by a Finance Party
of claims raised under the guarantee and indemnity pursuant to this
Clause 19, or of the enforcement of Security by such Finance Party, the
relevant German Obligor does not provide conclusive evidence, including
in particular interim financial statements up to the end of the last
completed calendar month (which shall be audited if reasonably requested
by the Facility
68
Agent), within twenty five (25) days after the date of such notification,
or if after receipt of such unaudited statements notification is given to
the relevant German Obligor to provide audited financial statements up to
the end of that same calendar month and such audited financial statements
are not provided within fifty (50) days after the date of such
notification.
(b) Each German Obligor may at any time request by giving written notice to
the Facility Agent that the amount of the Base Net Assets relevant for
the purpose of Clause 19.9 (a) is reduced to an amount (the "REDUCED
AMOUNT") corresponding to the amount of such German Obligor's actual net
assets (to be determined as set out in paragraph (a) above), less or
plus, as the case may be, any decrease or increase to be reasonably
expected in the course of a period of one Month from the date of receipt
by the Facility Agent of the notice (the "NOTICE PERIOD"). Together with
any such written request, the relevant German Obligor shall provide the
Facility Agent with reasonable evidence (substantially applying the rules
applicable for setting up a statement of overindebtedness
("Uberschuldungsstatus")) showing the German Obligor's net assets
position (to be determined as set out in paragraph (a) above), and shall
further provide the Facility Agent with a written confirmation setting
out the German Obligor's projected net assets as per the end of the
Notice Period and stating the reasons therefor in reasonable detail. Upon
the lapse of the Notice Period, the Base Net Assets shall be deemed to
correspond to the Reduced Amount, unless the Lenders have terminated this
Agreement in accordance with the provisions of this Agreement and
notified the respective German Guarantor thereof before the lapse of such
Notice Period.
19.10 LIMITATIONS FOR AUSTRIAN OBLIGORS
Each Guarantor established in Austria ("AUSTRIAN GUARANTOR") acknowledges
that:
(i) it will receive valuable direct or indirect benefits as a result
of the Facilities or Subfacilities made available under this
Agreement;
(ii) the Borrowers of the Facilities shall pay to each Austrian
Guarantor an adequate and arm's length annual fee for granting the
guarantee under this Clause 19;
(iii) each Finance Party has acted in good faith in connection with the
guarantee given by that Austrian Guarantor and the transactions
contemplated by the Finance Documents; and
(iv) it has not incurred and does not intend to incur debts, including
contingent liabilities beyond its ability to pay as they mature.
(b) Notwithstanding anything to the contrary contained herein or any other
Finance Document the liability of each Austrian Guarantor:
(i) shall be limited to funds applied by the Borrowers for the
valuable direct or indirect benefits of the Austrian Guarantors;
and
(ii) shall be limited to an amount of:
(A) the Future Additional Net Asset Value of that Austrian
Guarantor; in addition, if applicable,
69
(B) the equivalent in Euro of the aggregate Utilisations (plus
accrued interest commission and fee thereon) on-lent to the
respective Austrian Guarantor calculated by the Facility
Agent on the date which Utilisation(s) are made.
For the purposes of this Clause 19.10 "FUTURE ADDITIONAL NET ASSET
VALUE" means the future increase of the value of the balance sheet
positions "Eigenkapital" (as defined under the provisions of
Austrian accounting laws, currently Art. 224 sec. 3 lit A Austrian
Commercial Code) as of the date of the execution of this Agreement
(the "REFERENCE NET ASSET VALUE") as opposed to the value of this
balance sheet position on the day of the payment demand under the
Guarantee pursuant to this Clause 19. An interim financial
statement of that Austrian Guarantor established upon the date of
the execution of this Agreement and certified by the statutory
auditors of that Austrian Guarantor shall be prima facie evidence
as to the amount of the Reference Net Asset Value.
(c) Each Austrian Guarantor shall procure to record its potential obligation
under its guarantee and indemnity pursuant to this Clause 19 in its
financial statements to be established after the execution of this
Agreement or its Accession to this Agreement, respectively, pursuant to
Art. 199 Austrian Commercial Code.
(d) Each Austrian Guarantor agrees that the benefit of this guarantee and
indemnity shall be transferred and shall remain in full legal effect when
an Existing Lender (as defined in Clause 25 (Changes to Lenders) seeks to
transfer its rights and obligations under the Finance Documents by
assignment or by novation to a New Lender pursuant to Clause 25 (Changes
to Lenders).
19.11 LIMITATIONS FOR FRENCH OBLIGORS
(a) Each Guarantor organised under the laws of France (a "FRENCH GUARANTOR")
acknowledges that
(i) it has not incurred and does not intend to incur debts, including
contingent liabilities beyond its ability to pay as they mature;
(ii) the guarantee and indemnity has been authorised by the assembly of
the shareholders before the contract had been signed as defined in
articles L 227-9 and L 227-10 of the French Commercial Code if such
an authorisation is necessary according to article L 225-38 and
article L 223-19 French Commercial Code.
(b) The liability of each French Guarantor under this Clause 19.11 (A) shall
not include any obligation which does not present an economic, social or
financial interest for the entire group, (B) shall be limited to funds
applied by the Borrowers for the valuable direct or indirect benefits of
the French Guarantors; (C) shall not include any obligation which is
contrary to the statutory object of the French Guarantor, (D) shall not
include any obligation which if incurred would constitute the provision
of financial assistance as defined by article L 225-216 of the French
Commercial Code and (E) shall be limited at any time to the greater of:
(aa) the equivalent to Euros of the Loans (plus any accrued
interest thereon, commissions and fees) made available to
any Obligor (other than, if applicable, the French
Guarantor) to the extent directly or indirectly on-lent to
the French Guarantor calculated by the Facility Agent on the
date on
70
which such Loan(s) are made, to the extent that such Loan(s)
have been on lent by such Obligor to the French Guarantor;
and
(bb) 70 per cent. of the greater of:
(i) the Net Asset Value of the French Guarantor calculated
and certified by the statutory auditors of the French
Guarantor on the basis of the last audited financial
statements available at the date hereof; and
(ii) the Net Asset Value of the French Guarantor calculated
and certified by the statutory auditors of the French
Guarantor on the basis of the last audited financial
statements available at the date on which demand is
made on it pursuant to this Clause 19 .
For the purposes of this Clause 19.11(b) "NET ASSET VALUE" of the French
Guarantor means the capitaux propres (as defined under the provisions of
French accounting laws, decrees and regulations consistently applied) of
the French Guarantor. A certificate of the statutory auditors of the
French Guarantor as to the Net Asset Value shall be prima facie evidence
as to the amount to which it relates.
19.12 LIMITATIONS FOR ITALIAN OBLIGORS
Each Finance Party agrees that the enforcement of the guarantee and
indemnity given pursuant to this Clause 19 by any Guarantor incorporated
in Italy (an "ITALIAN GUARANTOR") shall be limited as follows: each
Italian Guarantor shall not be liable for any amounts in respect of the
guarantee and indemnity pursuant to this Clause 19 in excess of an amount
of [e]20,000,000.
19.13 LIMITATIONS FOR SPANISH OBLIGORS
Each Finance Party agrees that the guarantee, indemnity and any other
obligations of each Guarantor incorporated in Spain (a "SPANISH
GUARANTOR") assumed under this Agreement and any Security provided
pursuant to the terms of this Agreement by a Spanish Guarantor shall not
include and shall not extend to any amount of the Facilities utilised in
breach of Article 81.1 of Spanish Corporation's Act ("Ley de Sociedades
Anonimas") to fund the acquisition of such Spanish Guarantor and/or
the acquisition of its dominant company and/or future upstream dominant
companies, together with interest accrued thereon or other amounts owing
in respect thereof under this Agreement.
19.14 LIMITATIONS FOR US OBLIGORS
Each Finance Party agrees that the enforcement of the Guarantee and
Indemnity pursuant to this Clause 19, and any Security provided by a
Guarantor organized under the laws of a state of the United States of
America (a "U.S. GUARANTOR") pursuant to the terms of this Agreement,
other than in respect of Loans made available to such U.S. Guarantor or
to a Subsidiary of such U.S. Guarantor by a Lender, or by another Obligor
from the proceeds of Loans, shall be limited, in relation to any U.S.
Guarantor, to the greatest amount that would not render such
U.S. Guarantor's obligations hereunder subject to avoidance as a
fraudulent transfer or conveyance under Section 548 of Title 11 of the
United States Code or any provisions of applicable state law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving
effect to all other liabilities of such U.S. Guarantor, contingent or
otherwise, that are relevant under the Fraudulent Transfer Laws
(specifically excluding, however, any liabilities of such U.S. Guarantor
(a) in respect of Intra-Group Loans to the extent that such indebtedness
would be discharged in an amount equal to the amount paid
71
by such U.S. Guarantor hereunder and (b) under any guarantee of senior
unsecured indebtedness or Subordinated Debt, which guarantee contains a
limitation as to maximum amount similar to that set forth in this
paragraph, pursuant to which the liability of such U.S. Guarantor
hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the
value (as determined under the applicable provisions of the Fraudulent
Transfer Laws) of any rights to subrogation, contribution, reimbursement,
indemnity or similar rights of such U.S. Guarantor pursuant to (i)
applicable law or (ii) any agreement providing for an equitable
allocation among such U.S. Guarantor and other Group Members of
obligations arising under guarantees by such parties.
19.15 LIMITATIONS FOR CANADIAN OBLIGORS
Each guarantor organised under the federal laws of Canada or any of the
Provinces of Canada (a "CANADIAN GUARANTOR") hereby acknowledges, being a
direct or indirect subsidiary of the Company, that it will be receiving a
direct and indirect benefit from the Loans being provided to the Company
and the other Borrowers, and hereby acknowledges and confirms that it is
providing the guarantee contained herein in consideration of such direct
or indirect benefit, and for other good and valuable consideration.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTATIONS
20.1 REPRESENTATION AND WARRANTIES
(a) On the Signing Date, the Company (in respect of its own affairs
and each Group Member), each Original Obligor (in respect of its
own affairs and those of its Subsidiaries) and, on the date of its
accession to this Agreement, each Additional Obligor (in respect
of its own affairs and those of its Subsidiaries) makes the
representations and warranties set out in this Clause 20 to each
Finance Party.
(b) The Obligors acknowledge that the Finance Parties have entered
into this Agreement in reliance on these representations and
warranties.
20.2 STATUS
(a) It is a corporation or limited partnership, duly incorporated or
formed and validly existing under the law of the jurisdiction of
its place of incorporation or its seat.
(b) It has the power to own its assets and carry on its business as it
is currently being conducted.
20.3 NO WINDING-UP
No administrator, receiver, insolvency trustee, examiner, liquidator or
similar officer or official has been appointed with respect to it or any
of its assets and (to the best of its knowledge and belief) no petition
by a third party or proceeding for any such appointment is pending nor
has any resolution for any such appointment been passed.
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20.4 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document to
which it is a party are, subject to any general principles of law
limiting its obligations which are specifically referred to in any legal
opinion delivered pursuant (i) to Clause 4 (Conditions of Utilisation),
(ii) Clause 26 (Changes to the Obligors) or (iii) the conditions
precedent set forth in the Finance Documents, legal, valid, binding and
enforceable obligations.
20.5 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents to which it is a party do not and
will not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement or instrument binding upon it or any of its assets,
nor will such entry into and performance (except as provided in any
Security Documents) result in the creation of, or oblige it to create,
any Security (other than Permitted Security) over any of its assets.
20.6 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. No limit on its powers will be
exceeded as a result of such entry, delivery or performance.
20.7 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All Authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which it
is a party;
(b) to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation;
(c) to enable it to own its material assets and carry on its business
as it is being conducted; and
(d) to enable it to create any Security expressed to be created by it
by or pursuant to, or as the case may be, any Security expressed
to have been created by it and to be evidenced in, any Security
Document and to ensure that such Security has the priority and
ranking it is expressed to have,
have (save for any filings or registrations required in relation to the
Security Documents, which filings or registrations will be made promptly
after execution of the relevant documents no later than the time frame
agreed with the Security Agent and in any event within applicable time
limits) been obtained or effected and are in full force and effect.
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20.8 GOVERNING LAW AND ENFORCEMENT
(a) The choice of German law as the governing law of the Finance
Documents (to the extent they are expressed to be governed by
German law), the choice of New York law for the US Term Loan
Agreement and the Intercreditor Agreement, and in respect of any
Security Document to which it is a party, the choice of the
relevant governing law of that Security Document, will in each
case be recognised and enforced in its jurisdiction of
organisation.
(b) Any judgment obtained in the Federal Republic of Germany in
relation to a Finance Document (to the extent its provides for the
jurisdiction of a German court), any judgment obtained in the
relevant US Federal or New York state court in relation to the US
Term Loan Agreement and the Intercreditor Agreement (with the
exemption of any Obligor incorporated in Poland), and in respect
of any Security Document to which it is a party, any judgment
obtained in the courts which are expressed to have jurisdiction to
hear disputes under that Security Document) will be recognised and
enforced in its jurisdiction of organisation
20.9 DEDUCTION OF TAX
It is not required under the law of its jurisdiction of incorporation
(other than Italy) to make any deduction for or on account of Tax from
any payment it may make under any Finance Document.
20.10 NO FILING OR STAMP TAXES
It is not necessary that the Finance Documents be filed, recorded or
enrolled with any Government Agency in any jurisdiction where an Obligor
is domiciled or that any stamp, registration or similar tax be paid on or
in relation to the Finance Documents or the transactions contemplated
therein (save for complying with Perfection Requirements).
20.11 NO DEFAULT AND NO MATERIAL ADVERSE EFFECT
(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 to which its assets are subject which might have a
Material Adverse Effect.
(c) No other event or circumstance is outstanding which would, with
the lapse of time, the giving of notice, the making of any
determination under the relevant document or any combination of
the foregoing, constitute a default under any other agreement or
instrument relating to Financial Indebtedness which is binding on
it or to which its assets are subject which might reasonably be
expected to have a Material Adverse Effect.
(d) No Material Adverse Effect has occurred since the date of
submission of the latest financial statements pursuant to Clause
21.1(b).
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20.12 INFORMATION
Any written information provided by the Company on its own behalf or on
behalf of any Group Member to any Finance Party in connection with the
Finance Documents 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
and is not untrue or misleading in any material respect.
20.13 GOOD TITLE TO ASSETS
Except in relation to certain toll manufacturing equipment
(Auftragsfertigung), it has, subject to Permitted Security, good and
marketable title to or valid leases or licenses of or is otherwise
entitled to use (in each case, on arm's length terms) all material assets
necessary to carry on its business as it is being conducted.
20.14 INTELLECTUAL PROPERTY RIGHTS
(a) It owns or has licensed to it on arm's length terms all the
Intellectual Property Rights which are required by it in order for
it to carry on its business in all material respects as it is
currently being conducted (the "MATERIAL IPR") and, to the best of
its knowledge and belief, it does not, in carrying on its
business, infringe any Intellectual Property Rights of any third
party in any material respect.
(b) It has taken all formal or procedural actions (including payment
of fees) required to maintain in full force and effect any
registered Material IPR owned by it.
(c) It is not aware of any adverse circumstance relating to the
validity, subsistence or use of any of its Intellectual Property
which might reasonably be expected to have a Material Adverse
Effect.
20.15 CREATION OF SECURITY
(a) It is, or upon the execution (and the fulfilment of any conditions
included therein) of the Security Documents to which it is a party
will be, subject to any Permitted Security, the absolute legal and
beneficial owner of all the assets over which it purports to
create Security (other than as provided in any Security Document)
by or pursuant to or as evidenced in the Security Documents.
(b) Subject to any general principles of law limiting its obligations
which are specifically referred to in any legal opinion delivered
pursuant (i) to Clause 4 (Conditions of Utilisation), (ii) Clause
26 (Changes to the Obligors) or (iii) the Perfection Requirements,
each Security Document to which it is or is to be a party creates,
or upon such execution will create, the Security which that
Security Document purports to create and with the ranking and
priority it is expressed to have or, if that Security Document
purports to evidence Security, accurately evidences, or upon such
execution will so evidence, Security which has been validly
created.
20.16 PENSION SCHEMES
(a) Each Group Member is in compliance with all applicable laws and contracts
relating to the pension schemes (if any) for the time being operated by
it or in which it participates and each such pension scheme is adequately
provided for (either by way of being funded or by way of provision in the
balance sheet) based on reasonable actuarial assumptions applicable
75
to the jurisdiction in which the relevant pension scheme is maintained
and administered and funded in accordance with applicable law.
(b) Except as disclosed to the Lenders prior to the date of this Agreement,
no Group Member has (to the best of its knowledge and belief) any
liability in respect of any pension scheme and there are no circumstances
which would give rise to such liability.
20.17 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its unsecured and unsubordinated creditors
except for obligations mandatorily preferred by law applying to companies
generally.
20.18 INTRA-GROUP LOANS
Other than the existing Intra-Group Loans and similar financial
arrangements set out in Schedule 16 (Existing Intra-Group Loans), there
are no other Intra-Group Loans.
20.19 NO PROCEEDINGS PENDING OR THREATENED
(a) Subject to paragraph (c) below, no litigation, arbitration or
administrative proceeding of or before any court, arbitral body or
agency which, if adversely determined, might reasonably be
expected to have a Material Adverse Effect, has been started or
(to the best of its knowledge and belief) threatened against it,
nor are there (to the best of its knowledge and belief) any
circumstances reasonably likely to give rise to such litigation,
arbitration or administrative proceeding which, if adversely
determined, might reasonably be expected to have a Material
Adverse Effect.
(b) No labour disputes which might reasonably be expected to have a
Material Adverse Effect have (to the best of its knowledge and
belief) been started or threatened against it.
(c) Other than the Existing Competition Law Proceedings, no
competition law related (i) civil litigation, civil lawsuits or
other civil proceedings of or before any court have been started
in accordance with the applicable procedural rules or (to the best
of its knowledge and belief) threatened in any relevant
jurisdiction against any Group Member which, if adversely
determined, might reasonably be expected to have a Material
Adverse Effect; (ii) fines other than the EU Competition Law
Liabilities, the Canadian Competition Law Liabilities and the US
Competition Law Liabilities have been assessed by way of any
administrative proceedings by any Government Agency in an
aggregate amount exceeding [e]2,500,000.
20.20 ENVIRONMENTAL COMPLIANCE
(a) It has obtained all requisite Environmental Licences required for
the carrying on of its business as currently conducted and has at
all times complied with:
(i) all applicable Environmental Laws;
(ii) the terms and conditions of such Environmental Licences; and
76
(iii) all other covenants, conditions, restrictions and agreements
directly or indirectly concerned with any Environmental
Contamination,
where failure to do so might have a Material Adverse Effect.
(b) There are to its knowledge no circumstances which may prevent or
interfere in any material respect with the compliance in the
future of it and each of its Subsidiaries with all applicable
Environmental Laws, the terms of all Environmental Licences
referred to in paragraph (a) above and all covenants, conditions,
restrictions and agreements referred to in paragraph (a) above.
20.21 ENVIRONMENTAL RELEASES
No:
(a) property currently or previously owned, leased, occupied or
controlled by it (including any offsite waste management or
disposal location utilised by it or any of its Subsidiaries) is
contaminated with any Dangerous Substance; and
(b) discharge, release, leaching, migration or escape of any Dangerous
Substance into the Environment has occurred or is occurring on,
under or from any property,
in each case to the best of its knowledge, in circumstances where this is
reasonably likely to have a Material Adverse Effect.
20.22 ENVIRONMENTAL CLAIMS
No Environmental Claim has been started or (to the best of its knowledge
and belief) threatened against it or any of its Subsidiaries which might
reasonably be expected to have a Material Adverse Effect.
20.23 TAXATION
(a) It has duly and punctually paid and discharged all Taxes imposed
upon it or its assets within the time period allowed without
incurring penalties (other than to the extent that: (i) payment is
being contested in good faith and in accordance with the relevant
procedures, (ii) adequate reserves are being maintained for those
Taxes in accordance with Relevant GAAP, and (iii) payment can be
lawfully withheld and will not result in the imposition of any
material penalty nor in any material Security ranking in priority
to the claims of any Finance Party under any Finance Document or
to any Security created under any Security Document; or failure to
pay is caused by administrative or technical error that is
remedied as soon as possible after receipt of notification thereof
from the relevant Tax authorities).
(b) It is not materially overdue in the filing of any Tax returns.
(c) No claims are being or are likely to be asserted against it with
respect to Taxes which might reasonably be expected to have a
Material Adverse Effect.
20.24 NO INDEBTEDNESS
It has:
(i) no Financial Indebtedness (other than Permitted Indebtedness); and
77
(ii) no other indebtedness, except for any which has been incurred in
the ordinary course of its business.
20.25 NO SECURITY OR GUARANTEES
(a) Other than any Permitted Security:
(i) no Security exists over all or any of its assets; and
(ii) no arrangement or transaction as described in Clause 23.3(b)
has been entered into by it and is outstanding.
(b) Other than any Permitted Guarantees or Contingent Liabilities, it
has not granted or agreed to grant any guarantee.
20.26 NO IMMUNITY
In any proceedings taken in its jurisdiction of organisation in relation
to any Finance Document to which it is a party, it will not be entitled
to claim for itself or any of its assets any immunity from suit,
execution, attachment or other legal process.
20.27 [INTENTIONALLY LEFT BLANK]
20.28 BASE FINANCIAL STATEMENTS
(a) The Base Financial Statements:
(i) were prepared in accordance with IFRS or Relevant GAAP consistently
applied; and
(ii) (in the case of the unaudited nine (9) months consolidated interim
financial statements of the Company for the period ending 31
September 2003) fairly represent the financial condition and
operations of the Group as at the date to which they were prepared
and during the relevant financial period for which they were
prepared, subject to normal year end adjustments, and take account
of all material liabilities (contingent or otherwise), and all
unrealised or anticipated losses, of the Group as at the date to
which they were prepared.
(b) There has been no material adverse change in the business or financial
condition of any Obligor since the date to which the latest Base
Financial Statements were prepared.
(c) The financial year of the Group is the calendar year.
20.29 BUDGETS
(a) It:
(i) regards (as at the date that the most recent Budget is delivered
to the Facility Agent under Clause 21.4 (Budgets)) as neither
unreasonable, nor to any material extent unattainable, any of the
forecasts or projections set out in that Budget;
(ii) believes (after having made all reasonable enquiries) that the
assumptions, upon which the forecasts and projections relating to
the Group contained in the most
78
recent Budget delivered under Clause 21.4 (Budgets) are based,
are fair and reasonable; and
(iii) has made full disclosure of all material facts relating to the
Group to all the persons responsible for the preparation of each
Budget.
20.30 GROUP STRUCTURE CHART
(a) The Group Structure Chart contains descriptions, which are true,
complete and correct in all material respects, of the corporate
ownership structure of the Group as it will be immediately after the
initial Utilisation after the Closing Date, including details of:
(i) all Subsidiaries, direct or indirect, of the Company;
(ii) all minority shareholdings in any Group Member held by any person
who is not a Group Member;
(iii) all companies, partnerships and Joint Ventures in which any Group
Member has an interest or participation; and
(iv) all Intra-Group Loans in an amount of more than [e]1,000,000 which
are not merely temporary trading balances.
(b) There are no re-organisational steps relating to the corporate ownership
structure of the Group contemplated at the Signing Date (including any
significant transfers of businesses or assets from one Group Member to
another) which are not reflected in the Group Structure Chart.
(c) All re-organisational steps resulting in the Group corporate ownership
structure set out in the Group Structure Chart have been or will be taken
in compliance in all material respects with all relevant laws and
regulations and all requirements of all relevant regulatory authorities.
20.31 ISSUE OF SHARE CAPITAL
Except for the Management and Employee Benefit Plans, the Hitco Options
and the conversion rights under the Convertible Bonds, there are no
agreements in force or corporate resolutions passed which call for the
present or further issue or allotment of, or grant to any person the
right (whether conditional or otherwise) to call for the issue or
allotment of, any share, partnership interest, loan note or loan capital
of any Group Member (including an option or right of pre-emption or
conversion).
20.32 ERISA AND MULTIEMPLOYER PLANS
(a) Neither any US Group Member nor any ERISA Affiliate is making or accruing
an obligation to make contributions or has within any of the five
calendar years immediately preceding the Signing Date made or accrued an
obligation to make contributions to any Multiemployer Plan to an extent
or in a manner which might reasonably be expected to have a Material
Adverse Effect.
(b) Each Employee Plan is in compliance in all material respects in form and
operation with ERISA and the Code and all other applicable laws and
regulations.
79
(c) Each Employee Plan which is intended to be qualified under section 401(a)
of the Code has been determined by the IRS to be so qualified or is in
the process of being submitted to the IRS for approval or will be so
submitted during the applicable remedial amendment period and, to the
knowledge of the Company, nothing has occurred since the date of such
determination that would adversely affect such determination (or, in the
case of an Employee Plan with no determination, nothing has occurred that
would adversely affect such qualification).
(d) The fair market value of the assets of each Employee Plan subject to
Title IV of ERISA is at least equal to the present value of all
accumulated benefit obligations under such Employee Plan (based on the
assumptions used for the purposes of Statement of Financial Accounting
No. 87) as of the date of the most recent financial statements reflecting
such amounts or, if additional contributions are required to make such
Employee Plan sufficient, the Company does not believe that such might
reasonably be expected to have a Material Adverse Effect.
(e) There are no material actions, suits or claims pending against an
Employee Plan (other than routine claims for benefits), or (to the
knowledge of the Company, any US Group Member or any ERISA Affiliate)
threatened, which might reasonably be expected to be asserted
successfully against any Employee Plan.
(f) Each US Group Member and any ERISA Affiliate has made all material
contributions to or under each such Employee Plan required by law within
the applicable time limits prescribed by law, by the terms of such
Employee Plan, or by any contract or agreement requiring contributions to
an Employee Plan.
(g) Neither any US Group Member nor any ERISA Affiliate has ceased operations
at a facility so as to become subject to the provisions of section
4068(a) of ERISA, withdrawn as a substantial employer so as to become
subject to the provisions of section 4063 of ERISA or ceased making
contributions to any Employee Plan subject to section 4064(a) of ERISA to
which it made contributions.
(h) Neither any US Group Member nor any ERISA Affiliate has incurred or
reasonably expects to incur any material liability to PBGC.
20.33 MARGIN STOCK
(a) No US Group Member is engaged principally, or as one of its important
activities, in the business of owning or extending credit for the purpose
of purchasing or carrying any Margin Stock.
(b) The Facilities will not be used, directly or indirectly, for any purpose
which might constitute all or any part of the Facilities a "purpose
credit" within the meaning of Regulation U or Regulation X.
(c) No US Group Member or any agent acting on its behalf has taken or will
take any action which might cause the Finance Documents to violate any
regulation of the Board of Governors of the Federal Reserve System of the
United States.
20.34 INVESTMENT COMPANIES
No Group Member is subject to regulation under the United States Public
Utility Holding Company Act of 1935 or the United States Investment
Company Act of 1940 or any United States federal or state statute or
regulation limiting its ability to incur indebtedness.
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20.35 INSURANCES
(a) The insurance arrangements required by Clause 23.11 (Insurance) are in
full force and effect as required by this Agreement.
(b) No event or circumstance has occurred, and there has been no failure to
disclose a material fact, which would (to the best of its knowledge and
belief) entitle any insurer to reduce or avoid its liability under any
such insurance arrangements.
20.36 AUDITORS
The Company's appointed auditors and the auditors for each Obligor are
one of the internationally recognized "big four" firm of accountants or
BDO.
20.37 TIME FOR MAKING REPRESENTATIONS AND WARRANTIES
(a) The representations and warranties set out in this Clause 20 are made:
(i) in the case of an Obligor which is a Party on the Signing Date, by
that Obligor on that date, the date of the first Utilisation
Request under this Agreement and the first Utilisation Date; and
(ii) in the case of an Obligor which becomes a Party after the Signing
Date, by that Obligor on the day on which it becomes an Additional
Obligor.
(b) The Repeating Representations are deemed to be made by each Obligor to
each Finance Party by reference to the facts and circumstances then
existing on each of the following days or dates:
(i) the date of each Utilisation Request, the first day of each
Interest Period and on each Quarter Date throughout the Term of
any Letter of Credit; and
(ii) the day on which a company becomes or it is proposed that a
company becomes an Additional Obligor.
21. INFORMATION UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the Signing Date
for so long as any amount is outstanding under the Finance Documents or
any Commitment is in force.
21.1 FINANCIAL STATEMENTS
The Company shall supply to the Facility Agent in sufficient copies for
all the Lenders:
(a) as soon as the same become available, but in any event within one
hundred and twenty (120) days after the end of each of its
financial years:
(i) its audited consolidated and unconsolidated financial
statements for that financial year; and
(ii) at the request of the Facility Agent, the financial
statements of each Obligor (audited where audited financial
statements are available) for that financial year;
81
each comprised of its respective balance sheet, profit and loss
account and cash flow statement; and
(b) as soon as the same become available, but in any event within
fifty (50) days after the end of each Financial Quarter in each of
its financial years, its unaudited consolidated financial
statements (in a form satisfactory to the Facility Agent) for that
Financial Quarter comprised of its balance sheet, profit and loss
account and cash flow statement, together with a description of
the business, market and financial developments of the Company and
each business segment.
21.2 COMPLIANCE CERTIFICATE
(a) The Company shall supply to the Facility Agent, with each set of financial
statements delivered pursuant to Clause 21.1(a)(i) or (b) (Financial
Statements), a Compliance Certificate setting out (in reasonable detail),
in each case as at the date to which those financial statements were drawn
up:
(i) computations as to compliance with Clause 22 (Financial
Covenants);
(ii) (in the case of a Compliance Certificate accompanying audited
financial statements) computations:
(A) establishing the amount of Excess Cash Flow (if any) for the
purpose of Clause 9.5 (Mandatory Prepayments from Excess
Cash Flow), together with a calculation of how that amount
has been determined; and
(B) establishing calculations with respect to any Margin
adjustments for the purpose of Clause 10.2 (Margin
Ratchets);
(iii) in the case of the annual audited consolidated financial
statements by the Company's auditors, a confirmation that the
Minimum Guarantor Coverage (as defined in Clause 22.5 (Minimum
Guarantor Coverage)) has been met as per the relevant balance
sheet date; and
(iv) (in the case of a Compliance Certificate accompanying unaudited
quarterly financial statements) computations with respect to any
margin adjustments for the purpose of Clause 10.2 (Margin
Ratchets) and a list of all Material Subsidiaries.
(b) The Company shall ensure that each Compliance Certificate shall be signed
by two directors of the Company and, if required to be delivered with the
financial statements delivered pursuant to Clause 21.1(a)(i), by the
auditors that certified such statements.
21.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Company pursuant to
Clause 21.1(a) shall be audited and certified without material
qualification by an internationally recognised firm of independent
auditors approved by the Facility Agent.
(b) Each set of financial statements delivered by the Company pursuant to
Clause 21.1 (Financial Statements) shall be certified by two directors
or, as the case may be, two members of the management board of the
Company or relevant Obligor as fairly representing its financial
condition and operations as at the date as at which those financial
statements were drawn up.
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(c) Each set of financial statements delivered by the Company pursuant to
Clause 21.1(b) shall be in such form as the Facility Agent may reasonably
require and shall include a comparison of actual performance with the
performance projected by the relevant Budget for the period to which
those financial statements relate, as well as a comparison with the
preceding year, and shall provide management commentary explaining any
differences in such performance and any material developments or
proposals affecting the Group or its business.
(d) The Company will ensure that each set of financial statements delivered
by it pursuant to Clause 21.1 (Financial Statements) is prepared using
the IFRS and accounting practices and financial reference periods
consistent with those applied in the preparation of the Base Financial
Statements unless, in relation to any set of financial statements, it
notifies the Facility Agent that such financial statements have been
prepared on a different basis as a result of a change in accounting
principles and its auditors (being an internationally recognised firm of
independent auditors approved by the Facility Agent) and shall deliver to
the Facility Agent:
(i) a description of any change necessary for those financial
statements to reflect the IFRS, accounting practices and reference
periods upon which the Base Financial Statements were prepared; and
(ii) sufficient information, in form and substance as may be reasonably
required by the Facility Agent, to enable the Lenders to determine
whether Clause 22 (Financial Covenants) has been complied with and
to establish any of the other matters referred to in Clause 21.2
(Compliance Certificate) and to make an accurate comparison between
the financial position indicated in those financial statements and
the Base Financial Statements.
Any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to
reflect the basis upon which the Base Financial Statements were prepared.
(e) If the Company notifies the Facility Agent of a change in accordance with
paragraph (d) above then the Company and Facility Agent shall enter into
negotiations in good faith with a view to agreeing:
(i) whether or not the change might result in any material alteration
in the commercial effect of any of the terms of this Agreement; and
(ii) if so, any amendments to this Agreement which may be necessary to
ensure that the change does not result in any material alteration
in the commercial effect of those terms, and if any amendments are
agreed they shall take effect and be binding on each of the Parties
in accordance with their terms.
21.4 BUDGETS
(a) The Company shall, as soon as the same becomes available and in any event
no later than three (3) months after the commencement of each financial
year of the Group, deliver to the Facility Agent in sufficient copies for
the Lenders a budget (the "BUDGET") for that financial year and the
following three (3) financial years (together, the "FINANCIAL YEARS UNDER
REVIEW") (in a form and showing such detailed information as the Facility
Agent may reasonably require) prepared by reference to each Financial
Quarter and including:
83
(i) forecasts of any projected disposals (including timing and amount
of any projected disposals) on a consolidated basis of the Group
for each Financial Year under Review;
(ii) projected profit and loss accounts (including projected turnover
and operating costs), broken down in respect of operating profit
before depreciation and amortisation in different business
units/divisions, and projected balance sheets and cash flow
statements, together with the main operating assumptions relating
to such projected financial statements, on a quarterly basis, for
each Financial Year under Review on a consolidated basis for the
Group;
(iii) revisions to the projections set out in the Budget and actuals of
the preceding year, together with the main operating assumptions
relating thereto, for each Financial Year under Review, based on
the financial condition and performance and prospects of the Group
at such time;
(iv) projected Capital Expenditure as defined in Clause 22.1 (Financial
Definitions) to be incurred on a Financial Quarter basis for the
Financial Years under Review on a consolidated basis for the Group;
and
(v) projected Consolidated EBITDA as at the end of each Financial
Quarter.
(b) The Company shall provide the Facility Agent with details of any material
changes in the projections delivered under this Clause 21.4 as soon as
reasonably practicable after it becomes aware of any such change.
21.5 INFORMATION: MISCELLANEOUS
(a) The Company shall supply to the Facility Agent (in sufficient copies for
all the Lenders, if the Facility Agent so requests):
(i) all material documents dispatched by any Group Member to its
shareholders (or any class of them) or by the Company and its
Material Subsidiaries to its creditors (or any class of them)
generally at the same time as they are dispatched;
(ii) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which are
current, threatened or pending against any Group Member and which
might, if adversely determined, have a Material Adverse Effect and
any details of any litigation or administrative proceedings which
are current, or any material litigation or material administrative
proceedings which are threatened or pending, regarding competition
law proceedings and related civil lawsuits, including, for the
avoidance of doubt, any fines which have been assessed by way of
any administrative proceedings by any Government Authority,
including details regarding the Existing Competition Law
Proceedings as identified in Schedule 15 (Existing Competition Law
Proceedings and Anti-Trust Lawsuits);
(iii) in relation to each Financial Quarter, a status report relating to
the Existing Competition Law Proceedings signed by the Company's
in-house legal counsel;
(iv) promptly upon becoming aware of them, the details of any labour
dispute which is current, threatened or pending against any Group
Member and which might, if adversely determined, have, whether in
respect of that Group Member or the Group taken as a whole, a
Material Adverse Effect;
84
(v) promptly upon becoming aware of them, the details of any rating or,
following the issuance of any such rating, any change in an
Obligor's credit rating by Xxxxx'x Investor Services, Inc. or by
Standard and Poor's Corporation;
(vi) promptly upon becoming aware of them, the details of any proposed
acquisition(s) (as defined below), to the extent such details are
not subject to the terms of a reasonable confidentiality
undertaking, in excess of [e]2,500,000 per annum, including, but
not limited to:
(A) the provision of the target company's audited annual
financial statements;
(B) due diligence reports prepared in connection with such
acquisition(s); and
(C) pro forma projections for the Group after the acquisition of
the target company,
and "acquisitions" for the purposes of this paragraph shall be any
investment or acquisition of any share or any interest in the
capital of any person, the investment or acquisition of any
business or going concern or the whole or substantially the whole
of any assets or business of any person (or any assets that
constitute a division or operation unit of the business of any
person);
(vii) promptly upon becoming aware of them, the details on any material
change with regard to lines of credit exceeding in each case
[e]1,000,000 granted by banks and/or financial institutions other
than the Senior Lenders in relation to the Senior Facilities;
(viii)details of any change in the corporate ownership structure of the
Group from that set out in the Group Structure Chart;
(ix) at each Quarter Date a cash flow analysis, signed by the chief
financial officer of the Company in relation to the preceding
Financial Quarter;
(x) promptly, and, in any event, prior to the date on which any
Subsidiary becomes a Borrower or a Guarantor, such further
information regarding the financial condition, business and
operations of any Group Member as any Lender (through the Facility
Agent) may reasonably request;
(xi) any communication received by it in respect of any actual or
alleged breach of or liability under Environmental Law which, if
substantiated might have a Material Adverse Effect or result in
liabilities of and/or expenditure by, one or more Group Members in
excess of [e]5,000,000 (or its equivalent in another currency or
currencies) in aggregate;
(xii) promptly upon becoming aware of them, the details of any claim(s)
and/or potential claim(s) for an amount in excess of [e]10,000,000
(or its equivalent in another currency or currencies) in aggregate
made by or on behalf of any Group Member under any insurance
policy; and
(xiii)promptly upon becoming aware of them, the details of any Group
Member which becomes or ceases to be a Dormant Company.
85
(b) The Company shall ensure that, upon receipt of reasonable notice, senior
management is available once a year for the purpose of a meeting with the
Lenders, the Facility Agent and the Documentation Agent in relation
thereto.
21.6 NOTIFICATION OF DEFAULT
(a) Each Obligor shall notify the Facility Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming aware of
its occurrence (unless that Obligor is aware that a notification has
already been provided by another Obligor).
(b) Promptly upon a request by the Facility Agent, the Company shall supply
to the Facility Agent a certificate signed by two of its directors or
senior officers on its behalf certifying that no Default is continuing
(or if a Default is continuing, specifying the Default and the steps, if
any, being taken to remedy it).
21.7 ERISA REPORTING REQUIREMENTS
(a) The Company shall procure that each US Group Member and each ERISA
Affiliate (each a "RELEVANT COMPANY") shall:
(i) promptly and in any event within thirty (30) days after any
Relevant Company knows or has reason to know that any ERISA Event
which would reasonably be expected to have a Material Adverse
Effect has occurred; and
(ii) promptly and in any event within ten (10) days after any Relevant
Company knows or has reason to know that a request for a minimum
funding waiver under section 412 of the Code has been filed with
respect to any Title IV Plan or Multiemployer Plan,
deliver to the Facility Agent a written statement of the chief financial
officer of the Company describing such ERISA Event or waiver request and
the action, if any, that it proposes to take with respect thereto and a
copy of any notice filed with the PBGC or the IRS pertaining thereto.
(b) The Company shall procure that each Relevant Company shall,
simultaneously with the date that any Relevant Company files a notice of
intent to terminate any Title IV Plan (if such termination would require
material additional contributions in order to be considered a standard
termination within the meaning of section 4041(b) of ERISA), deliver to
the Facility Agent a copy of such notice.
21.8 INSPECTION OF BOOKS AND RECORDS
Each Obligor shall (and the Company shall ensure that each Group Member
will) keep books and records which accurately reflect in all material
respects all of its business, affairs and transactions.
21.9 INVESTIGATIONS
(a) If an Event of Default is continuing or the Majority Lenders reasonably
believe, after consultation with the Company, that any financial
statement, certificate or calculation provided under this Agreement is
inaccurate or incomplete in any material respect, the Facility Agent
(acting on the instructions of the Majority Lenders) may:
86
(i) instruct (or require the Company to instruct) the auditors of the
Company (or such other internationally recognised big four firm of
accountants as the Facility Agent selects) to investigate the
affairs, financial performance or accounting and other reporting
procedures and standards of the Group; or
(ii) instigate such other investigations and commission such other
reports as the Facility Agent (acting on the instructions of the
Majority Lenders) reasonably requires.
The reasonable costs and expense of each such investigation or report
shall be borne by the Company.
(b) Each Obligor shall (and the Company shall ensure that each other Group
Member will) co-operate fully with any person carrying out an
investigation or preparing a report pursuant to paragraph (a) above.
22. FINANCIAL COVENANTS
The covenants in this Clause 22 remain in force from the Signing Date for
so long as any amount is outstanding under the Finance Documents or any
Commitment is in force.
22.1 FINANCIAL DEFINITIONS
(a) In this Clause 22:
"AMORTISATION AND OTHER PAYMENTS" means, in respect of any Relevant
Period the aggregate of:
(i) all repayments, prepayments and other payments of principal and
premium paid or falling due in respect of the Senior Facilities
(but excluding any amounts paid or falling due under the Revolving
Credit Facility and capable of being simultaneously re-drawn under
the terms of this Agreement); and
(ii) all repayments, prepayments and other payments of principal paid or
falling due in respect of any other Financial Indebtedness (other
than in respect of Subordinated Debt) of any Group Member (but
excluding Intra Group Loans and any amounts paid or falling due
under any overdraft or revolving credit facility and capable of
being simultaneously re-drawn under the terms of the relevant
facility); and
(iii) the amount of cash dividends or distributions paid in respect of
that period.
"APPROVED BANK" means any bank which is an authorised banking institution
under applicable legislation and whose debt securities are rated at least
A1 by Xxxxx'x Investor Services, Inc. or A+ by Standard and Poor's
Corporation or as the Facility Agent may approve.
"CAPITAL EXPENDITURE" means any capital expenditure which should in
accordance with IFRS or the Relevant GAAP be treated as capital
expenditure in the audited consolidated financial statements of the
Group.
"CASH" means:
(i) cash in hand;
87
(ii) any credit balance on any current, savings or deposit account with
any Approved Bank that is repayable on demand or upon not more than
ninety (90) days' notice; and
(iii) all cash held in the Cartel Deposit Account and Convert Deposit
Account.
"CASH EQUIVALENTS" means:
(i) debt securities which are not convertible into any other form of
security, rated or issued by any person rated A1 or better by
Xxxxx'x Investor Services, Inc. or A+ or better by Standard &
Poor's Corporation and not issued or guaranteed by any Group
Member;
(ii) certificates of deposit issued by, and acceptances by, banking
institutions authorised under applicable legislation which at the
time of making such issue or acceptances, have outstanding debt
securities rated as provided in paragraph (i) above;
(iii) such other securities (if any) as are approved as such in writing
by the Facility Agent (acting on the instructions of the Majority
Lenders); and
(iv) which, in each case, have no more than twelve (12) months to final
maturity, other than moneys held in the Convert Deposit Account
which may be held until the redemption of the Convertible Bonds.
"CASH FLOW FROM INVESTING ACTIVITIES" has the meaning given to it in
IFRS.
"CASH FLOW FROM OPERATING ACTIVITIES" has the meaning given to it in
IFRS.
"CONSOLIDATED EBITDA" means, in respect of any Relevant Period,
consolidated net pre-taxation profits of the Group for such Relevant
Period adjusted by, without duplication:
(i) adding back Net Interest Costs;
(ii) adding back any amount attributable to the depreciation of tangible
assets or impairment of shareholdings;
(iii) adding back any amount attributable to the amortisation and/or
impairment of goodwill, intellectual property and other intangible
assets;
(iv) adding back any amount attributable to net write-offs of tangible
fixed assets, inventory and deferred tax assets including, but not
limited to, as a consequence of impairment tests or restructuring
measures; and
(v) adding back any amount attributable to the provisions taken for the
Competition Law Liabilities and for any other future competition
law related fines.
"EXCESS CASH FLOW" means, in respect of any financial year of the Group,
consolidated Cash Flow from Operating Activities, adding back any amounts
paid in respect of the US Competition Law Liabilities, the Canadian
Competition Law Liabilities, the EU Competition Law Liabilities to the
extent paid from the Cartel Deposit Account, and any civil lawsuits
settled in 2004 up to an amount of Euro 3,000,000, less:
(i) Acquisitions and Capital Expenditure for that financial year; and
88
(ii) Amortisation and Other Payments during that financial year.
"INTEREST COVERAGE RATIO" means, for any Relevant Period, the ratio of
Consolidated EBITDA for such period to Net Interest Expense for such
period.
"INTEREST PAYABLE" means, in respect of any Relevant Period, the
aggregate amount of interest (including the interest element of leasing
and hire purchase payments), expenses (cash or non-cash), commission,
fees, discounts and other finance charges of any nature payable (whether
or not paid, payable or capitalised) by any Group Member (including any
commission, fees, discounts and other finance charges payable by any
Group Member under any interest rate hedging arrangement) but after
deducting any commission, fees, discounts and other finance charges
receivable by any Group Member under any interest rate hedging
arrangement, and deducting any fees and costs paid in connection with the
transactions contemplated by this Agreement, the US Term Loan Agreement,
the Bridge Loan and the High Yield Notes.
"LEVERAGE RATIO" means, for any Relevant Period, the ratio of Total Net
Debt on the last day of that period to Consolidated EBITDA for that
period.
"NET INTEREST COSTS" means, for any Relevant Period, Interest Payable for
such period, but after deducting any non-cash interest, interest
receivable or accrued during such period by any Group Member on any cash
deposit or bank account or on any Cash Equivalents.
"NET INTEREST EXPENSE" means Net Interest Costs less
(i) imputed or actual interest on the US Department of Justice fines
and interest accrued or imputed interest on European Commission
fines;
(ii) interest on pension provisions; and
(iii) amortisation of capitalised debt financing costs,
in each case, accrued or recognized during such period.
"NET WORTH" means the shareholders' equity, including capital stock,
additional paid-in capital (other than shares which are expressed to be
redeemable), retained earnings and minority interest as reflected in the
relevant consolidated balance sheet of the Group, adjusted
(i) to disregard any capital gains and losses from disposals made
after 30 September 2003;
(ii) to disregard the impacts of the conversion of the relevant amounts
in respect of any non-German Subsidiaries from the original
reporting currency into Euro;
(iii) to disregard impairments and other write-offs in respect of
goodwill and other intangible assets; and
(iv) to disregard movements on deferred tax assets resulting from
extraordinary items to the extent the same occur after 30
September 2003.
For the purpose of this definition, adjustments made pursuant to
paragraph (ii) and (iii) shall not exceed [e]60,000,000 in the aggregate
over the lifetime of the Senior Facilities.
89
"RELEVANT PERIOD" means each period of twelve (12) months ending on the
last day of each of the Company's financial years and/or each period of
twelve (12) months that corresponds with four (4) consecutive Financial
Quarters ending on the Quarter Date on which the relevant calculation
falls to be made.
"SENIOR NET DEBT" means Total Net Debt less the aggregate amount
outstanding under the High Yield Notes, the Exchange Notes, the Bridge
Loan and all other Subordinated Debt.
"SUBORDINATED DEBT" means the Financial Indebtedness of the Group
subordinated pursuant to the Intercreditor Agreement to all amounts which
may be or become payable to the Finance Parties under the Finance
Documents.
"TOTAL NET DEBT" means, at any time (but so that no amount shall be
included or excluded more than once), the aggregate indebtedness of any
Group Members constituting Financial Indebtedness (but excluding
indebtedness of any Group Member to another Group Member to the extent
permitted under this Agreement) less Cash and Cash Equivalents, plus:
(i) the amount of receivables sold or securitised, but disregarding the
amount of receivables sold or securitized on a non-recourse basis
provided the proceeds from this disposal or securitisation have
been applied in full for the prepayment and cancellation of the
Revolving Credit Facility in accordance with Clause 9.3 (Mandatory
Prepayment from Asset Disposal); and
(ii) the aggregate amount of fines assessed against the Company in
relation to any Competition Law Liabilities, any other competition
law related fines, civil proceedings and costs related to either of
them, or, if greater:
(A) in relation to the fines imposed on the Company or any Group
Member by the European Commission, the aggregate amount of
such fines plus accrued interest thereon, such interest
calculated at the rate as set by the European Commission;
and
(B) in relation to the fines imposed on the Company or any Group
Member by the US Department of Justice, the total amount of
all such fines together with all other amounts arising from
hedging activities relating to those fines.
(b) All accounting expressions which are not otherwise defined in this
Agreement shall be construed in accordance with IFRS.
22.2 NET WORTH
Net Worth shall at all times throughout the term of the Facilities exceed
[e] 325,000,000.
22.3 NET INTEREST COVER
The Company must ensure that the Interest Coverage Ratio for each
Relevant Period ending on each Quarter Date specified in Column A below
shall equal or exceed the ratio set out opposite such Quarter Date in
Column B below:
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COLUMN A COLUMN B
(QUARTER DATE) (RATIO)
30 March 2004 2.00:1
30 June 2004 2.00:1
30 September 2004 2.25:1
31 December 2004 2.45:1
30 March 2005 2.55:1
30 June 2005 2.65:1
30 September 2005 2.75:1
31 December 2005 2.85:1
30 March 2006 3.00:1
30 June 2006 3.15:1
30 September 2006 3.30:1
31 December 2006 3.45:1
30 March 2007 3.50:1
30 June 2007 3.60:1
30 September 2007 3.65:1
31 December 2007 3.75:1
30 March 2008 3.90:1
30 June 2008 4.00:1
30 September 2008 4.20:1
31 December 2008 4.35:1
22.4 LEVERAGE RATIO
The Company must ensure that the Leverage Ratio for each Relevant Period
ending on each Quarter Date specified in Column A below shall not be
greater than the ratio set out opposite such Quarter Date in Column B
below:
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COLUMN A COLUMN B
(QUARTER DATE) (RATIO)
31 March 2004 5.85:1
30 June 2004 5.85:1
30 September 2004 5.15:1
31 December 2004 4.65:1
31 March 2005 4.45:1
30 June 2005 4.35:1
30 September 2005 4.05:1
31 December 2005 3.90:1
31 March 2006 3.55:1
30 June 2006 3.40:1
30 September 2006 3.10:1
31 December 2006 2.85:1
31 March 2007 2.75:1
31 June 2007 2.70:1
30 September 2007 2.55:1
31 December 2007 2.40:1
31 March 2008 2.25:1
30 June 2008 2.20:1
30 September 2008 2.00:1
and each Quarter Date thereafter
22.5 MINIMUM GUARANTOR COVERAGE
The Company must ensure that, the contribution to Consolidated EBITDA and
turnover of the Guarantors represent at all times at least eighty-five
(85) per cent. of the Consolidated EBITDA and turnover of the Group (the
"MINIMUM GUARANTOR COVERAGE").
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22.6 SENIOR NET DEBT TO CONSOLIDATED EBITDA
The Company must ensure that the ratio of Senior Net Debt to Consolidated
EBITDA for each Relevant Period ending on a Quarter Date specified in
Column A below shall not be greater than the ratio set out opposite such
Quarter Date in Column B below:
COLUMN A COLUMN B
(QUARTER DATE) (RATIO)
30 March 2004 2.55:1
30 June 2004 2.55:1
30 September 2004 2.20:1
31 December 2004 1.95:1
30 March 2005 1.85:1
30 June 2005 1.80:1
30 September 2005 1.65:1
31 December 2005 1.55:1
30 March 2006 1.30:1
30 June 2006 1.25:1
30 September 2006 1.05:1
31 December 2006 1.00:1
and each Quarter Date thereafter
22.7 FIXED CHARGE COVER RATIO
The Company must ensure that the fixed charge cover ratio being:
(A - B) + C
-----------
C + D
where:
A is the Group's Cash Flow from Operating Activities plus any fees
paid in relation to this Agreement, the Bridge Loan, the High
Yield Notes, the Rights Issue and the Tender Offer, plus any
amounts paid in respect of the US Competition Law Liabilities, the
Canadian Competition Law Liabilities, the EU Competition Law
Liabilities to the extent paid from the Cartel Deposit Account,
and any civil lawsuits settled in 2004 up to an amount of Euro
3,000,000;
B is the Group's Cash Flow from Investing Activities;
C is the Net Interest Expense; and
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D is the Amortisation and Other Payments;
in each case for each Relevant Period ending on a Quarter Date
(commencing on December 31, 2004), shall not be lower than 1.00 to 1.
22.8 MAXIMUM CAPITAL EXPENDITURE
The Company must ensure that the aggregate Capital Expenditure of the
Group in respect of each financial year of the Company specified in
Column A below, shall not exceed the amount set out (opposite that
financial year) in Column B below.
COLUMN A COLUMN B
(FINANCIAL YEAR DATE)( AMOUNT [e])
31 December 2004 53,000,000
31 December 2005 55,000,000
31 December 2006 54,600,000
31 December 2007 53,600,000
31 December 2008 53,600,000
If in any financial year (the "ORIGINAL FINANCIAL YEAR") the amount of
the Capital Expenditure is less than the maximum amount permitted for the
Original Financial Year (the difference being referred to below as the
"UNUSED AMOUNT"), then the maximum expenditure amount set out in Column B
above for the immediately following financial year shall be increased by
an amount (the "CARRY-FORWARD AMOUNT") equal to the lesser of (i) 50 per
cent. of the maximum amount permitted for the Original Financial Year and
(ii) the Unused Amount.
22.9 CALCULATIONS
All calculations made for the purposes of the financial covenants set out
in Clause 22.3 (Net Interest Cover) to Clause 22.7 (Fixed Charge Cover
Ratio) (inclusive) shall be made by reference to, where the Relevant
Period to which such covenant relates ends on, or the Quarter Date to
which such covenant relates falls on:
(a) any day other than the last day of any financial year of the
Company, the unaudited consolidated financial statements of the
Company for each of the four consecutive Financial Quarters within
that Relevant Period or, as the case may be, the unaudited
consolidated financial statements of the Company for the Financial
Quarter ending on that Quarter Date, in each case as delivered
pursuant to Clause 21 (Information Undertakings); and
(b) the last day of any financial year of the Company, as in paragraph
(a) above or, when so delivered, the audited consolidated
financial statements of the Company for that financial year.
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22.10 FINANCIAL TESTING
(a) Each of the financial covenants set out in this Clause 22 (other than the
Minimum Guarantor Coverage) shall be tested by reference to each of the
financial statements and each Compliance Certificate delivered pursuant
to Clause 21.1 (Financial Statements) and Clause 21.2 (Compliance
Certificate).
(b) All financial covenants set out in Clause 22.3 (Net Interest Cover),
Clause 22.4 (Leverage Ratio), Clause 22.6 (Senior Net Debt to
Consolidated EBITDA) and Clause 22.7 (Fixed Charge Cover Ratio) shall be
tested against the Company's latest consolidated financial statements on
a four Financial Quarter rolling basis and adjusted pro forma for
Permitted Acquisitions and Permitted Disposals assuming such transactions
had occurred at the beginning of the relevant four- Financial Quarter
period. The Minimum Guarantor Coverage shall be tested on the basis of
the Company's consolidated financial statements as of 30 September 2003,
and subsequently on the basis of the Company's audited consolidated
financial statements as per year-end starting with 31 December 2004.
23. GENERAL UNDERTAKINGS
The undertakings in this Clause 23 remain in force from the Signing Date
for so long as any amount is outstanding under the Finance Documents or
any Commitment is in force.
23.1 AUTHORISATIONS
(a) Each Obligor shall (and the Company shall ensure that each other Group
Member will) promptly:
(i) obtain, comply with and do all that is necessary to maintain in
full force and effect; and
(ii) supply certified copies to the Facility Agent of,
any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its obligations
under the Finance Documents and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.
(b) Each Obligor shall (and the Company shall ensure that each other Group
Member will):
(i) ensure that it has the right and is duly qualified to conduct its
business as it is conducted from time to time in all applicable
jurisdictions;
(ii) obtain, comply with and do all that is necessary to maintain in
full force and effect any Authorisation which is necessary for the
conduct of its business or the business of the Group as a whole;
and
(iii) upon the Facility Agent's written request supply the Facility Agent
with copies of any such Authorisations.
23.2 COMPLIANCE WITH LAWS
Each Obligor shall (and the Company shall ensure that each other Group
Member will) comply in all respects with all laws to which it may be
subject, if failure so to comply
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would materially impair its ability to perform its obligations under the
Finance Documents to which it is a party.
23.3 NEGATIVE PLEDGE
(a) No Obligor shall (and the Company shall ensure that no other Group Member
will) create or permit to subsist any Security over any of its assets.
(b) No Obligor shall (and the Company shall ensure that no other Group Member
will):
(i) sell, transfer or otherwise dispose of any of its assets on terms
whereby they are or may be leased to or re-acquired by any Group
Member;
(ii) sell, transfer or otherwise dispose of any of its receivables on
recourse terms;
(iii) enter into any arrangement under which money or the benefit of a
bank or other account may be applied, set-off or made subject to a
combination of accounts; or
(iv) enter into any other preferential arrangement having a similar
effect,
in each case, in circumstances where the arrangement or transaction
is entered into primarily as a method of raising Financial
Indebtedness or of financing the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to Permitted Security.
(d) No Obligor shall (and the Company shall ensure that no other Group Member
will) agree to create or permit to subsist any covenant in any document,
other than the Finance Documents, the Bridge Loan, the Exchange Notes
Indenture, the High Yield Notes and the Convertible Bonds, that it will
not create or permit to subsist any Security over its assets.
23.4 DISPOSALS
(a) Other than pursuant to the Management and Employee Benefit Plans, the
Hitco Options, any Permitted Joint Venture and the conversion rights
under the Convertible Bonds, no Obligor shall (and the Company shall
ensure that no other Group Member will) enter into a single transaction
or a series of transactions (whether related or not) and whether
voluntary or involuntary to sell, lease, transfer or otherwise dispose of
any shares in any Group Member, unless such sale, lease, transfer or
disposal of shares is made to an Obligor and the Company provides
evidence satisfactory to the Security Agent (including a confirmation of
the relevant Obligor's external legal counsel addressed to such Obligor
and expressed to be made available to, and to be relied upon by, the
Security Agent on behalf of the Lenders), that the Security created over
such shares in favour of the Secured Parties is not impaired thereby.
(b) No Obligor shall (and the Company shall ensure that no other Group Member
will) enter into a single transaction or a series of transactions
(whether related or not) and whether voluntary or involuntary to sell,
lease, transfer or otherwise dispose of all or any part of its respective
assets (other than shares referred to in paragraph (a) above).
(c) Paragraph (b) above does not apply to any Permitted Disposal.
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23.5 OPTIONS
Other than pursuant to the Management and Employee Benefit Plans, the
Hitco Options and the conversion rights under the Convertible Bonds, no
Obligor shall (and the Company shall ensure that no other Group Member
will) enter into or permit to subsist any option or other arrangement
whereby any person has the right (whether or not exercisable only on a
contingency) to require any Group Member to purchase or otherwise acquire
or sell or otherwise dispose of any material property or any interest in
any material property otherwise than where any such arrangement is
permitted by Clause 23.27 (Treasury Transactions).
23.6 CHANGE OF BUSINESS
No Obligor shall (and the Company shall ensure that no other Group Member
will) make, or take any steps to make, any substantial change to the
general nature of its business from that carried on at the Signing Date
or carry on any other business which results in any substantial change to
the general nature of the business of the Group as a whole from that
carried on at the Signing Date.
23.7 YEAR END
Commencing 1 January 2004, each Obligor shall (and the Company shall
ensure that each other Group Member will) ensure that each of its
financial years and each Financial Quarter in each of its financial years
shall end on a Quarter Date and the Company shall ensure that each
financial year, and each Financial Quarter of each financial year, of the
Group shall end on a Quarter Date.
23.8 RECORD KEEPING
Upon reasonable notice being given by the Facility Agent to the relevant
Obligor, that Obligor shall (and the Company shall ensure that each other
Group Member will) permit the Facility Agent and/or any professional
advisers appointed by the Facility Agent to examine during normal
business hours the records and books of account of such Obligor and to
discuss financial matters with its officers and auditors or those of any
other Group Member for the purpose of ascertaining compliance with the
Finance Documents, with the reasonable costs thereof to be paid by the
Company.
23.9 CONSTITUTIONAL DOCUMENTS
No Obligor shall request, permit or make any change to its constitutional
documents without written notification to the Facility Agent where such
change relates to the shareholders, the share capital, the management,
the registered office or the legal form of such Obligor.
23.10 PRESERVATION OF ASSETS
Each Obligor shall (and the Company shall ensure that each other Group
Member will) maintain and preserve all of its assets that are necessary
in the conduct of its business in good working order and condition
(ordinary wear and tear excepted).
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23.11 INSURANCE
(a) Each Obligor shall (and the Company shall ensure that each other Group
Member will) maintain insurance on and in relation to its business and
assets with reputable underwriters or insurance companies against such
risks and to such extent as is usual for prudent companies carrying on a
business such as that carried on by such Obligor or Group Member in the
country or countries in which such Obligor or Group Member owns or leases
property or conducts its business.
(b) Without limiting paragraph (a) above, each Obligor shall (and the Company
shall ensure that each other Group Member will) maintain insurance
against business interruption (Betriebsunterbrechung), professional
indemnity (i.e. directors' and officers' liability insurance), pollution,
public liability, product liability and third party liability
(Haftplicht) in each case at levels no lower than those in place prior to
Closing.
(c) Each Obligor shall (and the Company shall ensure that each other Group
Member will) pay all premiums and do all other things necessary to keep
in place the insurance arrangements required to be effected and
maintained by it pursuant to paragraphs (a) and (b) above.
(d) The Company shall supply the Facility Agent on reasonable request with
copies of each receipt for all premiums and other amounts payable by any
Obligor or other Group Member under the insurance arrangements effected
and maintained by any of them pursuant to paragraphs (a) and (b) above
and shall, in any event, use all reasonable endeavours to procure that
the insurer in respect of such insurance arrangements undertakes to the
Facility Agent to notify it should any renewal fee or other sum payable
by any Obligor or other Group Member not be paid when due.
(e) Upon reasonable request, the Company shall supply the Facility Agent with
a copy of all insurance policies or certificates of insurance evidencing
compliance with paragraphs (a) and (b) above or (in the absence of the
same) such other evidence of the existence of any insurance arrangements
referred to in paragraphs (a) and (b) above as may be reasonably
acceptable to the Facility Agent and shall, in any event, notify the
Facility Agent of any material changes to any such insurance arrangements
made from time to time.
(f) If any Obligor (or any other Group Member) fails to purchase or maintain
any insurance required by this Clause, the Facility Agent or the Security
Agent may purchase such insurance as may be necessary to remedy any such
failure and each Obligor shall (and the Company shall ensure that each
other Group Member will) indemnify the Facility Agent or, as the case may
be, the Security Agent on demand against any reasonable costs or expenses
incurred by it in purchasing any such insurance.
(g) No Obligor shall (and the Company shall ensure that no other Group Member
will) do or omit to do anything which might render any insurance required
by this Clause void, voidable or unenforceable.
23.12 INTELLECTUAL PROPERTY
Each Obligor shall (and the Company shall ensure that each other Group
Member will):
(a) make such registrations and pay such fees and other amounts as are
necessary to keep those registered Intellectual Property Rights
which are necessary for carrying on the business of the Group as a
whole in force, and to record its interest in those Intellectual
Property Rights;
98
(b) observe and comply with all material obligations and laws to which
it in its capacity as registered proprietor, beneficial owner,
user, licensor or licensee of the Intellectual Property Rights (or
any part thereof) is subject where failure to do so might
reasonably be expected to have a Material Adverse Effect;
(c) do all acts as are reasonably practicable (including the
institution of legal proceedings) to maintain, protect and
safeguard the Intellectual Property necessary for carrying on the
business of the Group as a whole; and
(d) not terminate or discontinue the use of any Intellectual Property
necessary for carrying on the business of the Group, save that
licensing arrangements in relation to such Intellectual Property
may be entered into between any Group Members PROVIDED THAT such
licensing arrangements:
(i) do not allow any further sub-licensing by the licensee; and
(ii) do not have a material adverse effect on the value of any of
the Intellectual Property licensed under such sub-license.
23.13 ENVIRONMENTAL COMPLIANCE
Each Obligor shall (and the Company shall ensure that each other Group
Member will) obtain and maintain all requisite Environmental Licences and
comply with:
(a) all applicable Environmental Laws; and
(b) the terms and conditions of all Environmental Licences applicable
to it,
and take all reasonable steps in anticipation of known or expected future
changes to or obligations under the same, in each case where failure to
do so would or might reasonably be expected to have a Material Adverse
Effect.
23.14 ENVIRONMENTAL CLAIMS
The Company shall inform the Facility Agent in writing as soon as
reasonably practicable upon its becoming aware of:
(a) any Environmental Claim which has been commenced or threatened
against any Group Member, or
(b) any facts or circumstances which will or are reasonably likely to
result in any Environmental Claim being commenced or threatened
against any Group Member,
where the claim might, if determined against that Group Member,
reasonably be expected to have a Material Adverse Effect.
23.15 PENSION SCHEMES
(a) The Company will, if reasonably requested by the Facility Agent, deliver
to the Facility Agent:
(i) at such time as those reports are prepared in order to comply with
then current statutory or auditing requirements (if any); and
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(ii) if the Facility Agent reasonably believes that any relevant
statutory or auditing requirements are not being complied with,
actuarial reports in relation to the pension schemes operated by any
Group Members.
(b) Each Obligor shall (and the Company shall procure that each other Group
Member will) ensure that all pension schemes applicable to it are fully
provided for (either by way of being funded or by way of provision in its
balance sheet) based on reasonable actuarial assumptions to the extent
required by applicable law and are administered and funded in accordance
with applicable law.
23.16 TAXATION
(a) Each Obligor shall (and the Company shall ensure that each other Group
Member will) pay and discharge all Taxes imposed upon it or its assets
within the time period allowed without incurring penalties, save to the
extent that:
(i) payment is being contested in good faith and in accordance with the
relevant procedures;
(ii) adequate reserves are being maintained for those Taxes in
accordance with Relevant GAAP; and
(iii) payment can be lawfully withheld and will not result in the
imposition of any material penalty nor in any material Security
ranking in priority to the claims of any Finance Party under any
Finance Document or to any Security created under any Security
Document.
(b) No Obligor shall (and the Company shall ensure that no other Group Member
will) be materially overdue in the filing of any Tax returns.
(c) Each Obligor shall (and the Company shall ensure that each other Group
Member will) do all such things as are necessary to ensure that no claims
are or are reasonably likely to be asserted against any Group Member with
respect to Taxes which might reasonably be expected to have a Material
Adverse Effect.
23.17 SECURITY
(a) Each Obligor shall ensure that any Security expressed to be created by it
by or pursuant to, or, as the case may be, expressed to have been created
by it and to be evidenced in, any Security Document remains in full force
and effect with the ranking and priority it is expressed to have.
(b) No Obligor shall (and the Company shall ensure that no other Group Member
will) do or omit to do anything or knowingly permit or cause anything to
be done or omitted to be done which would or could adversely affect any
Security expressed to be created by any Obligor by or pursuant to, or any
Security expressed to have been created by any Obligor and to be
evidenced in, any Security Document.
(c) Each Obligor shall take all such actions as the Facility Agent or the
Security Agent may reasonably request for the purpose of perfecting any
Security granted or to be granted pursuant to the Finance Documents and
preserving the Security to be created or evidenced by the Finance
Documents.
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(d) Each Obligor shall, if the Security Agent lawfully exercises any power
(whether of sale or other disposal or otherwise) or right with respect to
the Charged Assets, do all reasonable acts to permit the exercise of such
power or right.
(e) Each Obligor shall satisfy the conditions subsequent set out in Part III
of Schedule 2 (Conditions Precedent and Conditions Subsequent) as soon as
possible after the Closing Date, but in any event not later than 31 March
2004.
23.18 PARI PASSU RANKING
Without limiting Clause 23.17(a) (Security), each Obligor shall (and
shall cause each other Group Member to) ensure that its payment
obligations under the Finance Documents will rank at least pari passu
with the claims of all its unsecured and unsubordinated creditors except
for obligations mandatorily preferred by law applying to companies
generally.
23.19 SHARE CAPITAL
No Obligor shall (and the Company shall ensure that no other Group Member
will):
(a) redeem, purchase, return or make any repayment in respect of any
of its share capital or make any capital distribution or enter
into any agreement to do so; or
(b) allot or issue any shares or grant to any person the right
(whether conditional or otherwise) to call for the issue or
allotment of any share, partnership interest, loan note or loan
capital of such Obligor or other Group Member (including an option
or a right of pre-emption or conversion) or enter into any
agreement or pass any corporate resolution to do any of the
foregoing other than:
(i) for the purposes of an issue of shares by one wholly-owned
Subsidiary of the Company to another wholly-owned Subsidiary
of the Company provided that Security is, in respect to the
Shares of an Obligor, created over such shares in favour of
the Secured Parties; or
(ii) for the purposes of an issue of shares by the Company to a
person who acts or is to act as the trustee of any Group
pension scheme or employee or management incentive scheme
PROVIDED THAT such scheme has been approved in writing by
the Facility Agent such approval not to be unreasonably
withheld.
23.20 DIVIDENDS AND OTHER DISTRIBUTIONS
As long as the Leverage Ratio is greater than 1.00 to 1:
(a) the Company to the extent permissible under German law, will
recommend not to make and not to propose to make any dividend,
return on capital, repayment of capital contributions or other
distribution (whether in cash or kind) or make any distribution of
assets or other payment whatsoever in respect of share capital
whether directly or indirectly; and
(b) the Company will refrain from making any share buy-backs other
than as provided for in the Management and Employee Benefit Plans.
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23.21 INTRA-GROUP DEBT AND SUBORDINATED DEBT
No Obligor shall (and the Company shall ensure that no other Group Member
will):
(i) pay, repay, prepay, redeem, purchase, or otherwise retire the
principal amount of any indebtedness;
(ii) pay any interest or return on principal or repayment of principal
or other distribution (whether in cash or kind) but excluding, for
the avoidance of doubt, the capitalization of interest and payment
in kind, or PIK interest, or make any distribution of assets or
other payments whatsoever in respect of any indebtedness; or
(iii) set apart any sum for a foresaid purpose, including without
limitation by depositing any moneys in a defeasance trust or the
taking of any similar action,
in each case which indebtedness (A) is subordinated or junior in right of
payment to the obligations under the Senior Facilities pursuant to a
written agreement to that effect (other than, in the case of this para.
(A), regular scheduled payments of interest or other amounts as and when
due, to the extent not prohibited by applicable subordination
provisions), or (B) under any Intra-Group Loan Document with a Group
Member which is not an Obligor. Without affecting the ranking of the High
Yield Notes, this Clause 23.21 shall apply thereto as if they were within
the classes of indebtedness covered hereby.
23.22 CASH FLOW RESTRICTIONS
The Company shall ensure that, other than the Finance Documents, the
Bridge Loan and the High Yield Notes, no Group Member will be a party to
any contractual or similar arrangement pursuant to which any Group Member
is prohibited from making any payments of dividends or other
distributions, or from lending monies, to another Group Member.
23.23 MERGER
With the exception of Permitted Mergers, no Obligor shall (and the
Company shall ensure that no other Group Member will) enter into any
amalgamation, demerger, merger or corporate reconstruction which results
in assets being transferred from it to an entity that is not an Obligor
unless the Facility Agent (acting on the instructions of the Majority
Lenders) shall have given its prior written consent thereto, such consent
not to be unreasonably withheld.
23.24 INDEBTEDNESS
No Obligor shall (and the Company shall ensure that no other Group Member
will) incur, create or permit to subsist or have outstanding:
(a) any Financial Indebtedness other than Permitted Indebtedness; or
(b) any other indebtedness except, in the ordinary course of its
business.
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23.25 LOANS OUT
(a) No Obligor shall (and the Company shall ensure that no other Group
Member will) make any loans, grant any credit or provide any other
financial accommodation to or for the benefit of any person,
including any of its shareholders.
(b) Paragraph (a) shall not apply to Permitted Loans.
23.26 GUARANTEES OR CONTINGENT LIABILITIES
(a) No Obligor shall (and the Company shall ensure that no other Group
Member will):
(i) give any guarantee or indemnity to or for the benefit of any
person or otherwise voluntarily assume any liability,
whether actual or contingent, in respect of any obligation
of any person; or
(ii) be or become directly or indirectly or actually or
contingently liable for any loss, damage or expense
resulting from the non-payment or breach of any obligation
of any other person.
(b) Paragraph (a) shall not apply to any Permitted Guarantees or
Contingent Liabilities.
23.27 TREASURY TRANSACTIONS
No Obligor shall (and the Company shall ensure that no other Group Member
will) enter into any Treasury Transaction except for:
(a) Treasury Transactions entered into in accordance with Clause 23.28
(Hedging); and
(b) any other foreign exchange transactions for spot or forward
delivery entered into in the ordinary course of business (and not
for investment or speculative purposes) to hedge actual or
projected interest rate, currency value or commodity price
exposures incurred by any Group Member in the ordinary course of
business.
23.28 HEDGING
Each Borrower shall (and the Company shall ensure that each other Group
Member will) within 180 days of the date of this Agreement enter into
and/or maintain Hedging Agreements:
(i) so as to ensure that for a period of not less than three (3) years
commencing on the Signing Date, the Group has hedging of interest
rate exposure in respect of not less than fifty (50) per cent. of
the aggregate amounts outstanding from time to time under the
Loans, the US Term Loan, the Bridge Loan and the High Yield Notes;
and
(ii) which rank pari passu with the claims of the Finance Parties under
the Finance Documents.
23.29 ACQUISITIONS
No Obligor shall (and the Company shall ensure that no other Group Member
will) engage in any Acquisitions other than Permitted Acquisitions or as
otherwise permitted by Clause 23.30 (Joint Ventures).
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23.30 JOINT VENTURES
(a) No Obligor shall (and the Company shall ensure that no other Group Member
will):
(i) form, or enter into, or permit to subsist;
(ii) purchase, subscribe for or otherwise acquire any shares (or other
securities or any interest therein) in; or
(iii) transfer any assets to, or lend to, or guarantee or give security
for the obligations of,
any partnership, consortium, Joint Venture or other like arrangement or
agree to do any of the foregoing.
(b) Paragraphs (a) shall not apply to:
(i) any partnership, consortium, Joint Venture or other like
arrangement existing at the Signing Date;
(ii) any Permitted Loans;
(iii) and Permitted Joint Ventures; and
(iv) any Permitted Guarantees and Contingent Liabilities;
23.31 MANDATORY CASH COLLATERAL
Until the Expiry Date, the Company shall provide (i) on each Quarter
Date, and (ii) on each Utilisation Date in respect of any proposed Letter
of Credit, Mandatory Cash Collateral in an amount equal to the Term
Facility B Excess Exposure calculated as of such date. The Company shall
provide on each Quarter Date together with each Compliance Certificate to
be delivered pursuant to Clause 21.2 (a) (iv) and on each Utilisation
Date in respect of any proposed Letter of Credit, a confirmation signed
by two directors of the Company that the Company is not required to
provide Mandatory Cash Collateral in accordance with the preceding
sentence, together with a calculation setting out (in reasonable detail)
the computations as to compliance with the requirements of this Clause
23.31 (b).
23.32 AMENDMENTS TO FINANCE AND OTHER DOCUMENTS
Neither the Company nor any Obligor shall amend, vary, novate, supplement
or terminate any Finance Documents (other than the US Term Loan
Agreement), any Subordinated Finance Document or any document delivered
to the Facility Agent pursuant to Clause 4 (Conditions of Utilisation) or
Clause 26 (Changes to the Obligors), or waive any right thereunder,
except for:
(i) any of the foregoing which is expressly consented to in writing by
the Facility Agent (acting on the instructions of the Majority
Lenders); or
(ii) any amendment, variation or waiver which is of a minor or
technical nature.
23.33 COMPLIANCE WITH ERISA
The Company shall procure that each US Group Member and each ERISA
Affiliate shall not cause or permit to occur either an event which would
result in the imposition of
104
Security under section 412 of the Code or section 302 or section 4068
of ERISA or an ERISA Event that might reasonably be expected to have a
Material Adverse Effect.
23.34 FEDERAL RESERVE REGULATIONS
The Company shall procure that each US Group Member and each ERISA
Affiliate will use the Facilities without violating Regulations T, U and
X.
23.35 MATERIAL ADVERSE EFFECT
No Obligor shall (and the Company shall ensure that no other Group Member
will) enter into any agreement or obligation:
(i) which is reasonably likely to have a Material Adverse Effect; or
(ii) the performance of which would result in a breach of any provision
of any Finance Document by any Obligor.
23.36 ADDITIONAL GUARANTORS
The Company shall procure that any Subsidiary (other than HITCO Carbon
Composites Inc.) which qualifies as a Material Subsidiary becomes an
Additional Guarantor no later than ninety (90) days after the Signing
Date or, if such Subsidiary only qualifies as a Material Subsidiary after
such date, after the relevant audited financial statements are to be
delivered in accordance with Clause 21.1 (Financial Statements) paragraph
(a) (i), that the shares in such Material Subsidiary are pledged or
assigned and that the assets of such Material Subsidiary are pledged or
assigned in favour of the Finance Parties in accordance with the
applicable laws. However, should any Obligor acquire shares in a target
company which will qualify as a Material Subsidiary, the above applies
mutatis mutandis within ninety (90) days of the date of such acquisition.
23.37 [INTENTIONALLY LEFT BLANK]
23.38 GERMAN OBLIGORS
The provisions of Clause 23.4 (Disposals) to Clause 23.7 (Year End),
Clause 23.9 (Constitutional Documents), Clause 23.12 (Intellectual
Property), Clause 23.22 (Cash Flow Restrictions) to Clause 23.27
(Treasury Transactions), Clause 23.29 (Acquisitions) and Clause 23.30
(Joint Ventures) (the "RELEVANT RESTRICTIVE COVENANTS") shall not apply
to any Obligor whose Relevant Jurisdiction is Germany (each a "GERMAN
OBLIGOR") or any of its Subsidiaries from time to time whose Relevant
Jurisdiction is Germany (together with such German Obligor, a "GERMAN
GROUP").
23.39 NOTIFICATION BY A GERMAN OBLIGOR
Each German Obligor undertakes to inform the Facility Agent in writing
and in good time of the intention of it or of any member of its German
Group to carry out any of the acts or take any of the steps referred to
in the Relevant Restrictive Covenants explaining if and how such steps
might affect the financial situation of the Company or the Group, or the
Finance Parties' risk and security position. Any such notification shall
not be made later than forty-five (45) days before such measure shall be
implemented, or in case of urgent matters requiring an implementation on
shorter notice immediately after the need for the relevant measure arises
PROVIDED THAT the reasons for such urgent implementation are
105
described in the notification. The Facility Agent shall be entitled
within ten (10) Business Days of receipt of the relevant German Obligor's
notice to request the relevant German Obligor and the Company to supply
to the Facility Agent in sufficient copies for the Finance Parties
further relevant information in connection with the proposed action or
steps referred to in such notice. If any notification pursuant to this
Clause 23.39 is received by the Facility Agent, the Lenders will
determine within twenty (20) Business Days after receipt of the relevant
notification, on a case by case basis, whether the proposed measure would
constitute an Event of Default if implemented.
23.40 NON-GERMAN ACCOUNTS
Each German Obligor undertakes to provide the Facility Agent within
fifteen (15) Business Days after each Quarter Date with (i) a list
identifying all such bank accounts held outside Germany and evidencing
the balances of such accounts as at of the relevant Quarter Date together
with (ii) written confirmation by the relevant German Obligor or by the
Company, respectively, that the relevant balances at no time exceed the
maximum amount of [e]500,000 and [e]2,000,000, as the case may be, in the
aggregate of all such non-German bank accounts of all German Obligors.
23.41 TENDER OFFER
The Company shall:
(a) commence a tender offer for the Convertible Bonds as soon as
practicable after the Company's extraordinary general meeting and
in any event no later than three (3) days after the Closing Date
(the "TENDER OFFER");
(b) on or prior to the Closing Date, irrevocably deposit into the
Convert Deposit Account an amount sufficient to fund principal and
interest (through maturity) of the Convertible Bond;
(c) from the submitting of the tender documents to Bafin until close
of the tender of the Convertible Bond not make or permit any
amendment to the terms and conditions of the tender offer; and
(d) ensure that the principal and related interest amounts deposited
in the Convert Deposit Account in respect of any Convertible Bonds
not tendered shall remain in the Convert Deposit Account and shall
further pay into the Convert Deposit Account an additional amount
equal to the present value of the remaining interest obligation in
respect of such Convertible Bonds.
23.42 ARM'S LENGTH TERMS
No Obligor shall (and the Company shall ensure that no other Group Member
will) enter into any contract or arrangement with or for the benefit of
any other person (including any disposal to that person) other than in
the ordinary course of business and on arm's length terms.
23.43 DORMANT COMPANIES
The Company shall ensure that:
(a) no Group Member shall, while it is a Dormant Company:
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(i) carry on any business or incur any liability; or
(ii) demand or accept payment of any indebtedness owing to it by
any other Group Member; and
(b) no Group Member shall pay any indebtedness owing to any Dormant
Company.
24. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 24 is an Event
of Default.
24.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable, including payment of Mandatory Cash Collateral
by the Company, unless:
(i) its failure to pay is caused by administrative or technical error;
and
(ii) payment is made within two (2) Business Days of its due date.
24.2 FINANCIAL COVENANTS
Any requirement of Clause 22 (Financial Covenants) is not satisfied.
24.3 OTHER OBLIGATIONS
(a) An Obligor does not comply with a material provision of the
Finance Documents (other than those referred to in Clause 24.1
(Non-Payment) and Clause 24.2 (Financial Covenants)) or does not
comply with any provision of the Finance Documents which is
capable of remedy and fails to remedy such breach within a grace
period specified by the Facility Agent of not more than ten (10)
Business Days or, in case of a failure by an Obligor to comply
with a notification requirement pursuant to Clause 23.39
(Notification by a German Obligor), does not promptly upon the
Facility Agent's request comply with its obligations thereunder.
(b) An Obligor implements a measure requiring prior notification of
the Facility Agent pursuant to Clause 23.39 (Notification by a
German Obligor) after having been informed by the Facility Agent
that the Lenders consider implementation of the relevant measure
as having material adverse consequences for their risk or security
position, or implements such measure prior to the earlier to occur
of (i) approval by the Lenders of such measure and (ii) twenty
(20) Business Days after having notified the Facility Agent in
accordance with Clause 23.39 (Notification by a German Obligor).
24.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by 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 deemed to be made and which has or is reasonably likely to have a
Material Adverse Effect.
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24.5 CROSS DEFAULT
(a) Any Financial Indebtedness of any Group Member is not paid when
due and payable nor within any originally applicable grace period.
(b) Any Financial Indebtedness of any Group Member is declared to be
or otherwise becomes due and payable prior to its specified
maturity as a result of an event of default (however described).
(c) Any commitment for any Financial Indebtedness of any Group Member
is cancelled or suspended by a creditor of any Group Member as a
result of an event of default (however described).
(d) Any creditor of any Group Member becomes entitled to declare any
Financial Indebtedness of any Group Member due and payable prior
to its specified maturity as a result of an event of default
(however described).
(e) No Event of Default will occur under this Clause 24.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above
is less than [e]2,500,000 (or its equivalent in any other currency
or currencies).
24.6 INSOLVENCY
(a) A Group Member located in an OECD country or a Material Subsidiary (each
a "RELEVANT COMPANY") is unable or admits inability to pay its debts as
they fall due, suspends making payments on any of its debts or, by reason
of actual or anticipated financial difficulties, commences negotiations
with one or more of its creditors with a view to rescheduling any of its
indebtedness. In particular, any Relevant Company incorporated under the
laws of Germany (a "GERMAN RELEVANT COMPANY") is unable to pay its debts
as they fall due (Zahlungsunfahigkeit) or is over indebted
(uberschuldet), commences negotiations with any one 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 Insolvenzordnung, any German Relevant
Company files for insolvency (Antrag auf Eroffnung eines
Insolvenzverfahrens) or the board of directors (Geschaftsfuhrung)
of any German Relevant Company is required by law to file for insolvency
or the competent court takes any of the actions set out in Section 21 of
the German Insolvenzordnung or institutes insolvency proceedings against
any German Relevant Company (Eroffnung des Insolvenzverfahrens) or any
event occurs with respect to any other Relevant Company which, under the
laws of any jurisdiction to which it is subject or in which it has
assets, has a similar or analogous effect.
(b) Any event or proceedings are taken with respect to any Relevant Company
that has a similar effect to any of the provisions set out in paragraph
(a) above.
(c) A moratorium is declared in respect of any indebtedness of any Relevant
Company.
24.7 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
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(i) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way
of voluntary arrangement, scheme of arrangement or otherwise) of
any Relevant Company other than a solvent liquidation or
reorganisation of any Relevant Company which is not an Obligor;
(ii) a composition, assignment or arrangement with any creditor of any
Relevant Company;
(iii) the appointment of a liquidator (other than in respect of a
solvent liquidation of a Relevant Company which is not an
Obligor), receiver, administrator, provisional administrator,
administrative receiver, compulsory manager or other similar
officer in respect of any Relevant Company or any of its assets;
or
(iv) enforcement of any Security over any material assets of any
Relevant Company,
or any analogous procedure or step is taken in any jurisdiction, unless
such corporate action, legal proceedings or analogous procedure or step
is fully discontinued within fourteen (14) days of its commencement.
24.8 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any asset or
assets of a Relevant Company having an aggregate value of [e]1,500,000
and is not discharged within fourteen (14) days.
24.9 OWNERSHIP OF THE OBLIGORS
Except in relation to a sale of shares in HITCO CARBON COMPOSITES, Inc.
under an existing call option with its chief executive officer, an
Obligor (other than the Company) is not or ceases to be a wholly-owned
Subsidiary of the Company on or after the Closing Date.
24.10 FINANCE DOCUMENTS
If:
(i) it is or becomes unlawful for an Obligor to perform any of its
obligations under the Finance Documents;
(ii) an Obligor repudiates a Finance Document or evidences an intention
to repudiate a Finance Document; or
(iii) any Finance Document is not or ceases to be binding on or
enforceable against an Obligor,
and the risk or security position of the Lenders is materially adversely
affected thereby.
24.11 TRANSACTION SECURITY
If:
(i) any Transaction Security is not in full force and effect with the
ranking and priority it is expressed to have;
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(ii) an Obligor repudiates any of the Transaction Security or evidences
an intention to repudiate any of the Transaction Security; or
(iii) a notification is made to the Facility Agent pursuant to Clause
19.9 (b),
and the security or risk position of the Lender is materially adversely
affected thereby.
24.12 CESSATION OF BUSINESS
Any Obligor suspends or ceases to carry on all or any substantial part of
its business or proposes to do so.
24.13 AUDITORS' QUALIFICATION
The Company's auditors qualify their report on the audited consolidated
financial statements of the Group in any manner that is, in the opinion
of the Majority Lenders (acting reasonably), materially adverse in the
context of the Finance Documents and the transactions contemplated by the
Finance Documents.
24.14 MATERIAL ADVERSE CHANGE OR EFFECT
Any event or circumstance occurs which the Majority Lenders reasonably
believe has had or could have a Material Adverse Effect or, following a
notification pursuant to Clause 23.39 (Notification by a German Obligor),
the Majority Lenders reasonably believe has or could have material
adverse consequences for the Lenders' risk and security position.
24.15 GUARANTOR ACCESSION
Any of the Material Subsidiaries has not become an Additional Guarantor
on or before the date falling ninety (90) days after the respective date
referred to in Clause 23.36 (Additional Guarantors).
24.16 COMPULSORY ACQUISITION
All or any part of the assets of any Group Member having a value in
excess of [e]5,000,000 are seized, nationalised, expropriated or
compulsorily acquired by, or by the order of, any Government Agency where
such seizure, nationalisation, expropriation or compulsory acquisition
might have a Material Adverse Effect.
24.17 CHANGE OF CONTROL
There is a Change of Control.
24.18 PROCEEDINGS
(a) Any litigation, arbitration, labour dispute or administrative proceedings
of or before any court, arbitral body or agency (other than the
proceedings referred to in paragraph (b) below) which, if adversely
determined, could, in the reasonable opinion of the Majority Lenders, be
expected to have a Material Adverse Effect is or are started in
accordance with the applicable procedural rules in the relevant
jurisdiction or threatened against any Group Member.
(b) Other than the Existing Competition Law Proceedings, any competition law
related (i) civil litigation, civil lawsuits or other civil proceedings
of or before any court are started in
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accordance with the applicable procedural rules in any relevant
jurisdiction against any Group Member which, if adversely determined,
could, in the reasonable opinion of the Majority Lenders, be expected to
have a Material Adverse Effect; (ii) fines in the aggregate amount
exceeding [e]2,500,000 are assessed by way of any administrative
proceedings by any Government Agency; or (iii) fines in relation to the
Existing Competition Law Proceedings are subsequently increased.
However, before accelerating the Facilities pursuant to Clause 24.22
(Acceleration), the parties will enter into negotiations in good faith
for a period not exceeding thirty (30) days after the occurrence of any
of the events set out in sub-para. (i), (ii) or (iii) with a view to
continue the Loans as outstanding.
24.19 UNLAWFULNESS
It is or becomes unlawful for any person (other than a Finance Party) to
perform any of its obligations under the Finance Documents.
24.20 REPUDIATION
Any person (other than a Finance Party or a Hedging Bank) repudiates a
Finance Document or evidences an intention to repudiate a Finance
Document.
24.21 INTERCREDITOR AGREEMENT
(i) Any Party (other than a Finance Party) fails to comply with its
obligations under the Intercreditor Agreement.
(ii) Any warranty made by any Group Member in the Intercreditor
Agreement is incorrect in any material respect when made.
(iii) The Intercreditor Agreement is not or ceases to be binding on or
enforceable against any party thereto or shall otherwise not be
effective by reason of any act or omission by any Group Member or
any other party thereto.
24.22 ACCELERATION
On and at any time after the occurrence of an Event of Default, which is
continuing the Facility Agent may, and shall if so directed by the
Majority Lenders, by notice to the Company:
(i) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(ii) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable;
(iii) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Facility Agent on the instructions of the Majority Lenders;
(iv) require the Borrowers to procure that the liabilities of each of
the Lenders are promptly reduced to zero, whereupon the Borrowers
will do so;
(v) more specifically, require the Company to:
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(vi) procure that the liabilities of each of the Issuing Banks under or
in connection with any Letter of Credit are promptly reduced to
zero; or
(vii) provide Cash Collateral for any Letter of Credit in Euros and in
an amount specified by the Facility Agent,
whereupon the Company will do so;
(viii) require the Borrowers to repay or pay all outstandings under the
Subfacilities, whereupon the Borrowers will do so; and/or
(ix) exercise, or direct the Security Agent to exercise, all or any of
its or, as the case may be, the Security Agent's rights, remedies,
powers or discretions under any of the Finance Documents.
24.23 US OBLIGORS
Notwithstanding Clause 24.22 (Acceleration), upon the actual or deemed
entry of an order for relief under the US Bankruptcy Code with respect to
any US Obligor, the Facilities shall cease to be available to such US
Obligor, all Loans outstanding to such US Obligor shall become
immediately due and payable and such US Obligor shall be required to
provide cash cover in respect of the Letters of Credit issued for its
account in each case automatically and without any further action by any
party to this Agreement.
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SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS
25.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
(a) Subject to this Clause 25, a Lender (the "EXISTING LENDER") may assign
and transfer or pledge, as the case may be, any of its rights and
obligations under this Agreement to another bank, financial institution,
trust, fund, special purpose vehicle or other entity (the "NEW LENDER")
PROVIDED THAT in respect of the Revolving Credit Facility, such Existing
Lender may not assign and transfer to a New Lender its rights and
obligations in relation thereto without the prior consent of the Facility
Agent, such consent not to be unreasonably withheld or delayed.
(b) Notwithstanding the subsequent provisions of this Clause, an Existing
Lender may assign or pledge, as the case may be, any claims under this
Agreement to any third party for refinancing purposes. The Existing
Lender shall in case of any such assignments remain responsible in all
respects for the administration of the claims so assigned, and shall
ensure that all information relating to the Obligors and the Finance
Documents made available to any such assignee is subject at all times to
a strict confidentiality obligation, and that the Obligors will following
such assignment be in no less advantageous a position, in terms of cost
and other potentially detrimental effects, than before such assignment.
25.2 CONDITIONS OF ASSIGNMENT AND TRANSFER
(a) The consent of neither the Company nor any other Obligor is
required for an assignment and transfer by a Lender.
(b) An assignment and transfer of a Lender's Commitment and
participation in outstanding Loans must be in a minimum amount of
[e]1,000,000 or any higher amount which is an integral multiple of
[e]500,000 unless all of such Lender's Commitment and
participation in outstanding Loans are assigned or transferred.
(c) If a Lender wishes to enter into an assignment and transfer of its
Term Facility B Commitment and Term Facility B Outstandings, the
consent of the Issuing Banks to the extent such Issuing Banks are
not also Term Facility B Lenders will be required.
(d) An assignment and transfer will only be effective on receipt by
the Facility Agent of written confirmation from the New Lender (in
form and substance satisfactory to the Facility Agent) that the
New Lender will assume the same obligations to the other Finance
Parties as it would have been under if it was an Original Lender.
(e) A transfer will only be effective if the procedure set out in
Clause 25.5 (Procedure for Transfer) is complied with.
(f) If:
(i) a Lender assigns and transfers any of its rights,
obligations or claims under the Finance Documents or
changes its Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be
obliged to make a payment to the New Lender or
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Lender acting through its new Facility Office under Clause
14 (Tax Gross-up and Indemnities) or Clause 15 (Increased
Costs),
then the New Lender or Lender acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same extent
as the Existing Lender or Lender acting through its previous Facility
Office would have been if the assignment, transfer or change had not
occurred.
25.3 ASSIGNMENT AND TRANSFER FEE
Other than in relation to an assignment and transfer under Clause
25.1(b), the New Lender shall, on the date upon which an assignment and
transfer takes effect, pay to the Facility Agent (for its own account) a
fee of [e]1,500.
25.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
(i) the legality, validity, effectiveness, adequacy or enforceability
of the Finance Documents or any other documents;
(ii) the financial condition of 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-transfer from a New Lender of any of the rights,
obligations and claims assigned or transferred under this
Clause 25; 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.
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25.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 25.2 (Conditions of
Assignment and Transfer) an assignment and transfer is effected in
accordance with paragraph (b) below when the Facility Agent executes an
otherwise duly completed Transfer Certificate delivered to it by the
Existing Lender and the New Lender. The Facility Agent shall, as soon as
reasonably practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
(b) On the Transfer Date:
(i) each of the Obligors and the New Lender shall assume obligations
towards one another and/or acquire rights or claims against one
another which differ from the rights, obligations and claims among
the Obligors and the Existing Lender 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;
(ii) the Facility Agent, the Security Agent, the Mandated Lead
Arrangers, the New Lender, the other Lenders and any relevant
Issuing Banks shall acquire the same rights and claims 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, claims and/or obligations acquired or assumed by
it as a result of the transfer and to that extent the Facility
Agent, the Security Agent, the Mandated Lead Arrangers, any
relevant Issuing Banks and the Existing Lender shall each be
released from further obligations to each other under this
Agreement; and
(iii) the New Lender shall become a Party as a "LENDER".
25.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to:
(i) any of its Affiliates and any of its or their respective officers,
employees, Agents, professional advisers or auditors; and
(ii) any other person:
(iii) to (or through) whom that Lender assigns and transfers (or may
potentially assign and transfer) all or any of its rights,
obligations and/or claims under this Agreement;
(iv) 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
(v) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
(vi) any information about any Obligor, the Group and the Finance
Documents as that Lender shall consider appropriate if, in
relation to paragraphs (i) and (ii) above, the person to whom the
information is to be given has entered into a Confidentiality
Undertaking.
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25.7 ANCILLARY PROVISIONS
Each Obligor shall execute and do all such transfers, assignments,
assurances, acts and things as the Facility Agent may reasonably request
for perfecting and completing any assignment and transfer by a Lender.
26. CHANGES TO THE OBLIGORS
26.1 ASSIGNMENTS AND TRANSFER BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
26.2 ADDITIONAL BORROWERS
(a) The Company may request that any of its Material Subsidiaries becomes an
Additional Borrower (and thereby an Additional Guarantor). That Material
Subsidiary shall become an Additional Borrower (and thereby an Additional
Guarantor) if:
(i) the Facility Agent approves the addition of that Material
Subsidiary;
(ii) the Company delivers to the Facility Agent a duly completed and
executed Borrower Accession Letter;
(iii) the Company confirms that no Default is continuing or would occur
as a result of that Material Subsidiary becoming an Additional
Borrower (and thereby an Additional Guarantor);
(iv) such Additional Borrower provides and, to the extent permitted by
law, causes any Subsidiary to provide, such Security for all or
any part of its obligations under the Finance Documents as the
Facility Agent shall reasonably require; and
(v) the Facility Agent has received all of the documents and other
evidence listed in Part IV of Schedule 2 (Conditions Precedent and
Conditions Subsequent) in relation to that Additional Borrower,
each in form and substance satisfactory to the Facility Agent.
(b) The Facility 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 IV of Schedule
2 (Conditions Precedent and Conditions Subsequent).
26.3 ADDITIONAL GUARANTORS
(a) The Company may request that any of its Subsidiaries become an Additional
Guarantor. That Subsidiary (be it a Material Subsidiary or not) shall
become an Additional Guarantor if:
(i) the Company delivers to the Facility Agent a duly completed and
executed Guarantor Accession Letter;
(ii) such Additional Guarantor provides and, to the extent permitted by
law, causes any of its Subsidiaries to provide, such Security for
all or any part of its obligations under the Finance Documents as
the Facility Agent shall require; and
116
(iii) the Facility Agent has received all of the documents and other
evidence listed in Part IV of Schedule 2 (Conditions Precedent and
Conditions Subsequent) in relation to that Additional Guarantor,
each in form and substance satisfactory to the Facility Agent.
(b) The Facility 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 IV of Schedule
2 (Conditions Precedent and Conditions Subsequent).
(c) To comply with the Minimum Guarantor Coverage, the Company may, and shall
at the request of the Facility Agent, cause any of its Subsidiaries to
become an Additional Guarantor by causing such Subsidiary to execute a
Guarantor Accession Letter and all other documents referred to therein.
26.4 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating 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
27. ROLE OF THE FACILITY AGENT, THE SECURITY AGENT, THE DOCUMENTATION AGENT,
THE MANDATED LEAD ARRANGERS AND THE COMPANY AS AGENT OF THE OBLIGORS
27.1 APPOINTMENT OF THE FACILITY AGENT AND THE SECURITY AGENT
(a) Each of the Finance Parties other than the Facility Agent appoints the
Facility Agent to act as its Agent under and in connection with the
Finance Documents.
(b) Each of the Finance Parties other than the Security Agent appoints the
Security Agent to act as its security agent under and in connection with
the Finance Documents.
(c) Each of the Finance Parties other than the Facility Agent authorises the
Facility Agent, and each of the Finance Parties other than the Security
Agent authorises the Security Agent, to exercise the rights, powers,
authorities and discretions specifically given to it under or in
connection with the Finance Documents together with any other incidental
rights, powers, authorities and discretions.
(d) Each of the Finance Parties other than the Facility Agent and the
Security Agent hereby grants power of attorney to the Facility Agent and
the Security Agent, respectively, to be exercised for the purposes
described in Clause 27.1(c). The Facility Agent and the Security Agent
shall be released from the restrictions of Section 181 of the German
Civil Code (Burgerliches Gesetzbuch); they are authorised to delegate
their powers of attorney, including the exemption from the restrictions
of Section 181 of the German Civil Code. At the request of the Facility
Agent and/or the Security Agent, the Mandated Lead Arrangers and the
Lenders shall grant special powers of attorney to the Facility Agent
and/or the
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Security Agent to enter into any Finance Documents, or any amendments
thereof, on their behalf.
27.2 DUTIES OF THE FACILITY AGENT AND THE SECURITY AGENT
(a) The Facility Agent shall promptly forward to a Party the original or a
copy of any document that is delivered to the Facility Agent for that
Party by any other Party.
(b) If the Facility Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Lenders and, where
appropriate, the Issuing Banks.
(c) The Facility Agent shall promptly notify the Lenders and, where
appropriate, the Issuing Banks of any Default arising under Clause 24.1
(Non-payment).
(d) The Facility Agent shall promptly provide the Security Agent with such
certificate(s) as the Security Agent may require as to all amounts which
are owing, actually or contingently, at any time by any Obligor to all or
any of the Finance Parties (other than the Security Agent in its capacity
as security agent) under the Finance Documents, whether or not due.
(e) The Security Agent shall promptly notify the Facility Agent of the
contents of any notice or document received by it, in its capacity as
security agent, from any of the Obligors under any of the Finance
Documents.
(f) Theduties of the Facility Agent and the Security Agent under the Finance
Documents are solely mechanical and administrative in nature.
27.3 ROLE OF THE DOCUMENTATION AGENT AND THE MANDATED LEAD ARRANGERS
Except as specifically provided in the Finance Documents, the
Documentation Agent and each Mandated Lead Arranger has no obligations of
any kind to any other Party under or in connection with any Finance
Document.
27.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Facility Agent, the Security
Agent (except as expressly provided in Schedule 11 (Form of Security
Trust Agreement)), the Documentation Agent, the Issuing Banks or the
Mandated Lead Arrangers as a trustee or fiduciary of any other person.
(b) None of the Facility Agent, the Security Agent (except as expressly
provided in Schedule 11 (Form of Security Trust Agreement) or in any
Security Document), the Documentation Agent, the Issuing Banks or the
Mandated Lead Arrangers shall be bound to account to any Lender for any
sum or the profit element of any sum received by it for its own account.
27.5 BUSINESS WITH THE GROUP
The Facility Agent, the Security Agent, the Documentation Agent, the
Issuing Banks and the Mandated Lead Arrangers may accept deposits from,
lend money to and generally engage in any kind of banking or other
business with any Group Member.
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27.6 RIGHTS AND DISCRETIONS OF THE FACILITY AGENT AND THE SECURITY AGENT
(a) The Facility Agent and the Security Agent may rely on:
(i) any communication, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or employee
of any person regarding any matters which may reasonably be
assumed to be within his knowledge or within his power to verify.
(b) The Facility Agent and the Security Agent may assume (unless it has
received notice to the contrary in its capacity as facility agent or, as
the case may be, as security agent) that:
(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 24.1 (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) Each of the Facility Agent and the Security Agent may engage, pay for and
rely on the advice or services of any lawyers, accountants, surveyors or
other experts.
(d) Each of the Facility Agent and the Security Agent may act in relation to
the Finance Documents through its personnel and agents.
27.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, each of the
Facility Agent and the Security Agent shall:
(i) act in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders,
refrain from acting or exercising any right, power, authority or
discretion vested in it as Facility Agent or Security Agent, as
the case may be); and
(ii) not be liable for any act (or omission) if it acts (or refrains
from taking any action) in accordance with such an instruction of
the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Lenders and the Mandated Lead Arrangers.
(c) Each of the Facility Agent and the Security 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, all the Lenders) each of the Facility Agent and the Security
Agent may act or refrain from taking any action or from exercising any
right, power or discretion vested in it as an agent under any Finance
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Document unless and until instructed by the Majority Lenders as to
whether or not such right, power or discretion is to be exercised and, if
it is to be exercised, as to the manner in which it should be exercised.
(e) Neither the Facility Agent nor the Security Agent is 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.
27.8 RESPONSIBILITY FOR DOCUMENTATION
None of the Facility Agent, the Security Agent, the Documentation Agent
and the Mandated Lead Arrangers:
(i) is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Facility
Agent, the Security Agent, the Documentation Agent, the Mandated
Lead Arrangers, an Obligor or any other person and given in or in
connection with any Finance Document; or
(ii) is responsible for the legality, validity, effectiveness, adequacy
or enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
27.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, neither the Facility Agent nor the
Security Agent will be liable for any action taken by it under or in
connection with, or for any omission by it in relation to, any Finance
Document, unless directly caused by its gross negligence or wilful
misconduct.
(b) No Party may take any proceedings against any officer, employee or agent
of the Facility Agent or the Security Agent in respect of any claim it
might have against the Facility Agent or the Security Agent or in respect
of any act or omission of any kind by that officer, employee or agent in
relation to any Finance Document and any officer, employee or agent of
the Facility Agent or the Security Agent may rely on this Clause.
(c) Neither the Facility Agent nor the Security Agent will be liable for any
delay (or any related consequences) in crediting an account with an
amount required under the Finance Documents to be paid by it if it 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 it for that purpose.
27.10 LENDERS' INDEMNITY TO THE FACILITY AGENT AND THE SECURITY AGENT
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Facility Agent and the Security Agent, within three (3) Business Days of
demand, against any cost, loss or liability incurred by the Facility
Agent or the Security Agent (otherwise than by reason of its gross
negligence or wilful misconduct) in acting as Facility Agent or, as the
case may be, Security Agent under the Finance Documents (unless it has
been reimbursed by an Obligor pursuant to a Finance Document).
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27.11 RESIGNATION OF THE FACILITY AGENT OR THE SECURITY AGENT
(a) The Facility Agent or the Security Agent may resign and appoint one of
its Affiliates as successor by giving notice to the Lenders and the
Company.
(b) Alternatively the Facility Agent or the Security Agent may resign by
giving notice to the Lenders and the Company, in which case the Majority
Lenders (after consultation with the Company) may appoint a successor
agent or, as the case may be, security agent.
(c) If the Majority Lenders have not appointed a successor facility agent or,
as the case may be, security agent in accordance with paragraph (b) above
within thirty (30) days after notice of resignation was given, the
Facility Agent or, as the case may be, the Security Agent (after
consultation with the Company) may appoint a successor facility agent or
security agent.
(d) The retiring Facility Agent or Security Agent shall make available to its
successor such documents and records and provide such assistance as its
successor may reasonably request for the purposes of performing its
functions as facility agent or security agent under the Finance
Documents.
(e) The Facility Agent's resignation notice shall only take effect upon:
(i) the appointment of a successor; and
(ii) the receipt by the Facility Agent of written confirmation from the
successor (in form and substance satisfactory to the Facility
Agent) that the successor agrees to be bound by the provisions of
the Finance Documents and all other related agreements to which
the Facility Agent is a party in its capacity as facility agent.
(f) The Security Agent's resignation notice shall only take effect upon:
(i) the appointment of a successor;
(ii) the receipt by the Security Agent of written confirmation from the
successor (in form and substance satisfactory to the Security
Agent) that the successor agrees to be bound by the provisions of
the Finance Documents and all other related agreements to which
the Security Agent is a party in its capacity as security agent;
and
(iii) the receipt by the Facility Agent of written confirmation from the
Security Agent (in form and substance satisfactory to the Facility
Agent) that it has received, and found satisfactory, the
confirmation referred to in sub-paragraph (ii) above and that all
Security created pursuant to the Security Documents and all the
Security Agent's rights, benefits and obligations as security
agent under the Finance Documents have been transferred to its
successor.
(g) Upon any such resignation notice taking effect, the retiring Facility
Agent or Security Agent shall be discharged from any further obligation
in respect of the Finance Documents but shall remain entitled to the
benefit of this Clause 27 and, in the case of the Security Agent, of
Schedule 11 (Form of Security Trust Agreement)). 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.
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(h) After consultation with the Company, the Majority Lenders may, by notice
to the Facility Agent or, as the case may be, the Security Agent, require
it to resign in accordance with paragraph (b) above. In this event, the
Facility Agent or, as the case may be, the Security Agent shall resign in
accordance with paragraph (b) above.
27.12 CONFIDENTIALITY
(a) The Facility Agent (in acting as facility agent) and the Security Agent
(in acting as security agent) shall be regarded as acting through its
respective agency or security agent division which shall in each case be
treated as a separate entity from any other of its divisions or
departments.
(b) If information is received by another division or department of the
Facility Agent or, as the case may be, the Security Agent, it may be
treated as confidential to that division or department and the Facility
Agent or, as the case may be, the Security Agent shall not be deemed to
have notice of it.
(c) Notwithstanding any other provision of any Finance Document to the
contrary, none of the Facility Agent, the Security Agent, the
Documentation Agent and the Mandated Lead Arrangers is obliged to
disclose to any other person;
(i) any confidential information; or
(ii) any other information if the disclosure would or might in its
reasonable opinion constitute a breach of any law or a breach of a
fiduciary duty.
27.13 RELATIONSHIP WITH THE LENDERS AND ISSUING BANKS
(a) The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility Office
unless it has received not less than five (5) Business Days prior notice
from that Lender to the contrary in accordance with the terms of this
Agreement.
(b) Each Lender shall supply the Facility Agent with any information required
by the Facility Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formula).
(c) Neither the Facility Agent nor the Security Agent shall have any
obligation or liability to any Lender, and Issuing Bank or any other
person as a result of any failure by any Obligor or any other person to
perform any of its obligations under the Finance Documents.
27.14 CREDIT APPRAISAL BY THE LENDERS AND ISSUING BANKS
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 each Issuing Bank confirms to the Facility Agent, the
Security Agent, the Documentation Agent and the Mandated Lead Arrangers
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:
(i) the financial condition, status and nature of each Group Member;
(ii) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and any other agreement, Security,
arrangement or document entered
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into, made or executed in anticipation of, under or in
connection with any Finance Document;
(iii) whether that Lender or, as the case may be, Issuing Bank 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, Security, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with any Finance Document;
(iv) the ownership, value or sufficiency of any of the Charged Assets,
the adequacy or priority of any of the Security created pursuant
to the Security Documents, the right or title of any person in or
to any Charged Assets or the existence of any Security affecting
the same;
(v) the adequacy, accuracy and/or completeness of any other
information provided by the Facility Agent, the Security Agent,
any Party or any other person under or in connection with any
Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, Security, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with any Finance Document; and
(vi) the adequacy, accuracy and/or completeness of any communication
delivered to it under any of the Finance Documents, any legal or
other opinions, reports, valuations, certificates, appraisals or
other documents delivered or made or required to be delivered or
made at any time in connection with any of the Finance Documents
or any other report or other document, statement or information
circulated, delivered or made, whether orally or otherwise and
whether before, on or after the Signing Date.
27.15 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Facility Agent
shall appoint another Lender or an Affiliate of a Lender to replace that
Reference Bank.
27.16 MANAGEMENT TIME OF THE FACILITY AGENT AND THE SECURITY AGENT
Any amount payable to the Facility Agent or the Security Agent under
Clause 16.3 (Indemnity to the Facility Agent and the Security Agent),
Clause 18 (Costs and Expenses) and Clause 27.10 (Lenders' Indemnity to
the Facility Agent and the Security Agent) shall include the cost of
utilising its management time or other resources and will be calculated
on the basis of such reasonable daily or hourly rates as it may notify to
the Company and the Lenders, and is in addition to any fee paid or
payable to it under Clause 13 (Fees).
27.17 PARALLEL DEBT
(a) Each of the Parties hereto agree, and the Obligors acknowledge by way of
an abstract acknowledgement of debt (abstraktes Schuldanerkenntnis) (the
"ACKNOWLEDGEMENT"), that each and every obligation of any such Obligor
(and any of its successors pursuant to this Agreement), and in relation
to the Company in the amount of [e] 350,000,000 under this Agreement and
the other Finance Documents shall also be owing in full to the Security
Agent (and each of the latter's successors under this Agreement), and
that accordingly the
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Security Agent will have its own independent right to demand performance
by such Obligor of those obligations. The Security Agent undertakes
towards the relevant Obligor that in case of any discharge of any such
obligation owing to one of the Security Agent or a Finance Party, it
will, to the same extent, not make a claim against any Obligor under the
Acknowledgement at any time, PROVIDED THAT any such claims can be made
against an Obligor if such discharge is made by virtue of any set off,
counterclaim or similar defence invoked by that Obligor vis-a-vis the
Security Agent.
(b) Without limiting or affecting the Security Agent's rights against any
Obligor (whether under this paragraph or under any other provision of the
Finance Documents), the Security Agent agrees with each other Finance
Party (on a several and divided basis) that, subject as set out in the
next sentence, it will not exercise its rights under the Acknowledgement
except with the consent of the relevant Finance Party. However, for the
avoidance of doubt, nothing in the previous sentence shall in any way
limit the Security Agent's right to act in the protection or preservation
of rights under or to enforce any Security Document as contemplated by
this Agreement and/or the relevant Security Document (or to do any act
reasonably incidental to the foregoing).
27.18 THE COMPANY AS AGENT OF THE OBLIGORS
Each Obligor other than the Company irrevocably authorises the Company to
act on its behalf as its agent in relation to the Finance Documents and
irrevocably authorises:
(a) the Company on its behalf to supply all information concerning itself,
its financial condition and otherwise to the relevant persons
contemplated under this Agreement and to give all notices and
instructions (including, in the case of a Borrower (and without
limitation), Utilisation Requests and Selection Notices) and to make any
agreement capable of being made by it on its behalf under the Finance
Documents without further reference to or the consent of such Obligor;
and
(b) each Finance Party to make any communication or deliver any document to
be made or delivered to such Obligor pursuant to the Finance Documents to
the Company on its behalf in accordance with Clause 33 (Notices),
and in each such case such Obligor will be bound thereby as though such
Obligor had itself supplied such information, given such notice and
instructions or made such agreement or, as the case may be, as if such
communication or document had been made or delivered to it in accordance
with Clause 33 (Notices).
28. THE LENDERS, THE ISSUING BANKS AND THE SUBFACILITY BANKS
28.1 LENDERS' INDEMNITY
(a) If the Company fails to comply with its obligations under Clause 8.2 (The
Company's Indemnity to Issuing Banks) in respect of any Letter of Credit,
the Facility Agent shall make demand on each Term Facility B Lender for
its share of the relevant Letter of Credit Amount in respect of any
Letter of Credit and, subject to Clause 28.2 (Direct Participation), each
Term Facility B Lender shall indemnify each Issuing Bank, respectively,
for that Term Facility B Lender's Letter of Credit Proportion of such
Letter of Credit Amount. The indemnity obligations pursuant to this
Clause 28.1 shall in respect of any Original Issuing Bank which is not a
party to this Agreement create direct claims of such Original Issuing
Bank (Vertrag zugunsten Dritter) against the Term Facility B Lenders.
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(b) If any Borrower fails to comply with its payment obligations under any
Subfacility in case of termination of such Subfacility in accordance with
Clause 2.2 (e) or the scheduled maturity of such Subfacility, the
Facility Agent shall make demand on each Revolving Credit Facility Lender
for its proportionate share of the relevant amount of such Subfacility,
and subject to Clause 28.2 (Direct Participation), each Revolving Credit
Facility Lender shall indemnify each Subfacility Bank for that Revolving
Credit Facility Lender's proportion in such Subfacility in relation to
such Revolving Credit Facility Lender's Available Commitment under the
Revolving Credit Facility.
28.2 DIRECT PARTICIPATION
(a) If any Term Facility B Lender is not permitted (by its constitutional
documents or any applicable law) to comply with Clause 28.1(a) (Lenders'
Indemnity) then that Term Facility B Lender will not be obliged to comply
with Clause 28.1(a) (Lenders' Indemnity) and shall instead be deemed to
have taken on the date any Letter of Credit is issued (or, if later, on
the date that any Letter of Credit Proportion in respect of any Letter of
Credit is transferred or assigned to such Term Facility B Lender in
accordance with the terms of this Agreement), an undivided interest and
participation in the Letter of Credit in an amount equal to that Term
Facility B Lender's Letter of Credit Proportion of the Letter of Credit.
(b) On receipt of demand by the Facility Agent in accordance with Clause
28.1(a) (Lenders' Indemnity), each such Term Facility B Lender shall pay
to the Facility Agent (for the account of the Issuing Bank) its Letter of
Credit Proportion of any Letter of Credit Amount.
(c) If any Revolving Credit Facility Lender is not permitted (by its
constitutional documents or any applicable law) to comply with Clause
28.1(b) (Lenders' Indemnity) then that Revolving Credit Facility Lender
will not be obliged to comply with Clause 28.1(b) (Lenders' Indemnity)
and shall instead be deemed to have taken on the date Subfacility is
agreed, an undivided interest and participation in the Subfacility in an
amount equal to that Revolving Credit Facility Lender's proportion of the
Subfacility.
(d) On receipt of demand by the Facility Agent in accordance with Clause
28.1(b) (Lenders' Indemnity), each such Revolving Credit Facility Lender
shall pay to the Facility Agent (for the account of the Subfacility Bank)
its proportion of the relevant Subfacility.
28.3 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Term Facility B Lender and/or Subfacility
Bank in this Clause 28 nor the rights, powers and remedies conferred upon
any Issuing Bank and/or Subfacility Bank by this Agreement or by law
shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of
the relevant Issuing Bank and/or Subfacility Bank, any Borrower or
any other person or any change in the status, function, control or
ownership of any of them;
(b) any of the obligations of the relevant Issuing Bank and/or
Subfacility Bank, any Borrower or any other person under this
Agreement, under the Letter of Credit, any Subfacility or under
any other security taken in respect of any Borrower's obligations
under this Agreement or otherwise in connection with any Letter of
Credit and/or any Subfacility, respectively, being or becoming
illegal, invalid, unenforceable or ineffective in any respect;
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(c) time or other indulgence being granted or agreed to be granted to
the relevant Issuing Bank, Subfacility Bank, any Borrower or any
other person in respect of the obligations of any of them under
this Agreement, under any Letter of Credit and/or any Subfacility,
respectively, or under any other security taken in respect of any
Borrower's obligations under this Agreement or otherwise in
connection with any Letter of Credit and/or any Subfacility,
respectively;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the relevant Issuing Bank, Subfacility Bank, any
Borrower or any other person under this Agreement, under any
Letter of Credit and/or any Subfacility, respectively, or under
any other security taken in respect of any Borrower's obligations
under this Agreement or otherwise in connection with any Letter of
Credit and/or Subfacility, respectively; and
(e) any other act, event or omission which, but for this Clause 28,
might operate to discharge, impair or otherwise affect any of the
obligations of each Term Facility B Lender and/or Revolving Credit
Facility Lender, respectively, contained in this Agreement or any
of the rights, powers or remedies conferred upon any Issuing Bank
and/or Subfacility Bank by this Agreement or by law.
The obligations of each Lender contained in this Agreement shall be in
addition to and independent of every other security which any Issuing
Bank and/or Subfacility Bank may at any time hold in respect of any
Borrower's obligations under this Agreement or otherwise in connection
with any Letter of Credit and/or Subfacility, respectively.
28.4 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Term Facility B Lender and a
Issuing Bank shall be conditional upon no security or payment to any
Issuing Bank by a Term Facility B Lender or any other person on behalf of
a Term Facility B Lender being avoided or reduced by virtue of any laws
relating to bankruptcy, insolvency, liquidation or similar laws of
general application and, if any such security or payment is so avoided or
reduced, such Issuing Bank shall be entitled to recover the value or
amount of such security or payment from such Term Facility B Lender
subsequently as if such settlement or discharge had not occurred. The
same shall apply mutatis mutandis in relation to a Revolving Credit
Facility Lender and a Subfacility Bank.
28.5 EXERCISE OF RIGHTS
No Issuing Bank and no Subfacility Bank, respectively, shall be obliged
before exercising any of the rights, powers or remedies conferred upon it
in respect of any Term Facility B Lender and Revolving Credit Facility
Lender, respectively, by this Agreement or by law:
(a) to take any action or obtain judgment in any court against any
Obligor;
(b) to make or file any claim or proof in a winding-up or dissolution
of any Obligor; or
(c) to enforce or seek to enforce any other security taken in respect
of any of the obligations of the Obligors under this Agreement.
29. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
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(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.
30. SHARING AMONG THE LENDERS
30.1 PAYMENTS TO LENDERS
If a Lender (a "RECOVERING LENDER") receives or recovers any amount from
an Obligor (including by way of set-off in accordance with Clause 32
(Set-off)) other than in accordance with Clause 31 (Payment Mechanics)
and applies that amount to a payment due under the Finance Documents
then:
(a) the Recovering Lender shall, within three (3) Business Days,
notify details of the receipt or recovery to the Facility Agent;
(b) the Facility Agent shall determine whether the receipt or recovery
is in excess of the amount the Recovering Lender would have been
paid had the receipt or recovery been received or made by the
Facility Agent and distributed in accordance with Clause 31
(Payment Mechanics), without taking account of any Tax which would
be imposed on the Facility Agent in relation to the receipt,
recovery or distribution; and
(c) the Recovering Lender shall, within three (3) Business Days of
demand by the Facility Agent, pay to the Facility Agent an amount
(the "SHARING PAYMENT") equal to such receipt or recovery less any
amount which the Facility Agent determines may be retained by the
Recovering Lender as its share of any payment to be made, in
accordance with Clause 31.5 (Partial Payments).
30.2 REDISTRIBUTION OF PAYMENTS
The Facility 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 Lender) in accordance with Clause 31.5
(Partial Payments).
30.3 RECOVERING LENDER'S RIGHTS
(a) On a distribution by the Facility Agent under Clause 30.2 (Redistribution
of Payments), the Finance Parties that have shared in the redistribution
shall assign to the Recovering Lender their rights to the payments that
were redistributed.
(b) If and to the extent that the Recovering Lender is not able to rely on
its rights under paragraph (a) above, the relevant Obligor shall be
liable to the Recovering Lender for a debt equal to the Sharing Payment
that is immediately due and payable.
30.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender, then:
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(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 30.2 (Redistribution of Payments)
shall, upon request of the Facility Agent, pay to the Facility
Agent for account of that Recovering Lender an amount equal to its
share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Lender for its proportion
of any interest on the Sharing Payment which that Recovering
Lender is required to pay); and
(b) that Recovering Lender's rights to take the benefit of an
assignment in respect of any reimbursement shall be cancelled and
the relevant Obligor will be liable to the reimbursing Lender for
the amount so reimbursed.
30.5 EXCEPTIONS
(a) This Clause 30 shall not apply to the extent that the Recovering Lender
would not, after making any payment pursuant to this Clause, have a valid
and enforceable claim against the relevant Obligor.
(b) A Recovering Lender is not obliged to share with any other Lender any
amount which the Recovering Lender has received or recovered as a result
of taking legal or arbitration proceedings if:
(i) it notified the other Lenders of the legal or arbitration
proceedings; and
(ii) the other Lenders 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.
SECTION 11
ADMINISTRATION
31. PAYMENT MECHANICS
31.1 PAYMENTS TO THE FACILITY AGENT
(i) On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor (subject to
Clause 31.9 (Payments to the Security Agent)) or that Lender shall
make the same available to the Facility Agent (unless a contrary
indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Facility Agent
as being customary at the time for settlement of transactions in
the relevant currency in the place of payment.
(ii) Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to Euro,
in a principal financial centre in a Participating Member State or
London) with such bank as the Facility Agent specifies.
31.2 DISTRIBUTIONS BY THE FACILITY AGENT
Each payment received by the Facility Agent under the Finance Documents
for another Party shall, subject to Clause 31.3 (Distributions to an
Obligor), Clause 31.4 (Clawback) and Clause 31.9 (Payments to the
Security Agent), be made available by the Facility Agent
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as soon as practicable after receipt to the Party entitled to receive
payment in accordance with this Agreement (in the case of a Lender, for
the account of its Facility Office), to such account as that Party may
notify to the Facility Agent by not less than five (5) Business Days'
notice with a bank 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).
31.3 DISTRIBUTIONS TO AN OBLIGOR
Each of the Facility Agent and the Security Agent may (with the consent
of the Obligor or in accordance with Clause 32 (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.
31.4 CLAWBACK
(i) Where a sum is to be paid to the Facility Agent or the Security
Agent under the Finance Documents for another Party, the Facility
Agent or, as the case may be, the Security 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.
(ii) If the Facility Agent or the Security Agent pays an amount to
another Party and it proves to be the case that it had not
actually received that amount, then the Party to whom that amount
(or the proceeds of any related exchange contract) was paid shall
on demand refund the same to the Facility Agent or, as the case
may be, the Security Agent, together with interest on that amount
from the date of payment to the date of receipt by the Facility
Agent or, as the case may be, the Security Agent, calculated by it
to reflect its cost of funds.
31.5 PARTIAL PAYMENTS
(a) If the Facility Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor under the
Finance Documents, the Facility 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 Facility Agent, the Security Agent, the
Documentation Agent or the Mandated Lead Arrangers under the
Finance Documents;
(ii) SECONDLY, in or towards payment of any demand made by an Issuing
Bank in respect of a payment made or to be made by it under any
Letter of Credit due but unpaid;
(iii) THIRDLY, in or towards payment pro rata of any accrued interest or
commission due or Fronting Fees but unpaid under this Agreement;
(iv) FOURTHLY, in or towards payment pro rata of any Outstandings due
but unpaid under this Agreement; and
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(v) FIFTHLY, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Facility Agent shall, if so directed by the Majority Lenders, vary
the order set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by an
Obligor.
31.6 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, except in respect of claims of an Obligor
which are either undisputed between the relevant Finance Party and that
Obligor or which have been the subject of a final court judgement.
31.7 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 an
Unpaid Sum under this Agreement interest is payable on the principal at
the rate payable on the original due date.
31.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (f) below, the Euro is the currency of
account and payment for any sum due from an Obligor under any Finance
Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum
shall be made in the currency in which that Loan or Unpaid Sum is
denominated on its due date.
(c) Each payment in respect of any Letter of Credit (including any Cash
Collateral in respect of any Letter of Credit) shall be made in the
currency in Euros.
(d) Each payment of interest shall be made in the currency in which the sum
in respect of which the interest is payable was denominated when that
interest accrued.
(e) Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.
(f) Any amount expressed to be payable in a currency other than Euros shall
be paid in that other currency.
31.9 PAYMENTS TO THE SECURITY AGENT
Notwithstanding any other provision of any Finance Document, at any time
after any of the Transaction Security becomes enforceable, the Security
Agent may require:
(a) any Obligor to pay all sums due from it under any Finance
Document; or
(b) the Facility Agent to pay all sums received or recovered from any
Obligor under any Finance Document,
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in each case as the Security Agent may direct for application in
accordance with the terms of the Finance Documents.
32. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
33. NOTICES
33.1 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.
33.2 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, each Issuing Bank or any other
Obligor, that notified in writing to the Facility Agent on or
prior to the date on which it becomes a Party;
(c) in the case of the Mandated Lead Arrangers, the Documentation
Agent, the Facility Agent and the Security Agent, that identified
with its name below;
(d) in the case of any successor Agent, that notified in writing to
the retiring Agent on or prior to the date on which the
resignation notice of the retiring Agent takes effect; and
(e) in the case of any successor Security Agent, that notified in
writing to the Facility Agent on or prior to the date on which the
resignation notice of the retiring Security Agent takes effect.
or any substitute address, fax number or department or officer as the
Party may notify to the Facility Agent (or the Facility Agent may notify
to the other Parties, if a change is made by the Facility Agent) by not
less than five (5) Business Days' notice.
33.3 DELIVERY
(a) Subject to Clause 33.6 (Electronic Communication), any communication or
document made or delivered by one person to another under or in
connection with the Finance Documents will only be effective:
(i) if by way of fax, when received in legible form; or
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(ii) if by way of letter, when it has been left at the relevant address
or five (5) 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 33.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the Facility
Agent or the Security Agent will be effective only when actually received
by it and then only if it is expressly marked for the attention of the
department or officer identified with its signature below (or any
substitute department or officer as it shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the Facility
Agent.
(d) Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or delivered
to each of the Obligors.
33.4 NOTIFICATION OF ADDRESS, FAX NUMBER
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 33.2 (Addresses) or
changing its own address or fax number, the Facility Agent shall notify
the other Parties.
33.5 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document must be
in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so reasonably required by the Facility
Agent, accompanied by an English translation and, in this case,
the English translation will prevail unless the document is a
constitutional, statutory or other official document.
33.6 ELECTRONIC COMMUNICATION
(a) Any communication (other than in connection with a Utilisation Request)
to be made between the Facility Agent and a Lender under or in connection
with the Finance Documents may be made by electronic mail or other
electronic means; and the Facility Agent and each Lender:
(i) hereby agree that, unless and until notified to the contrary, this
is to be an accepted form of communication;
(ii) shall notify each other in writing of their current electronic
mail address and/or any other information required to enable the
sending and receipt of information by that means; and
(iii) shall notify each other of any change to their address or any
other such information supplied by them.
(b) Any electronic communication made between the Facility Agent and a Lender
will be effective only when actually received in readable form and in the
case of any electronic
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communication made by a Lender to the Facility Agent only if it is
addressed in such a manner as the Facility Agent shall specify for this
purpose.
34. CALCULATIONS AND CERTIFICATES
34.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
34.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document and by an Issuing Bank as to the amount paid
out by that Issuing Bank in respect of any Letter of Credit is, in the
absence of manifest error, conclusive evidence of the matters to which it
relates.
34.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
35. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
36. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or 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.
37. AMENDMENTS AND WAIVERS
37.1 REQUIRED CONSENTS
(a) Subject to Clause 37.2 (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 Facility Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause 37.
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37.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which relates
to:
(i) the definition of "MAJORITY LENDERS" in Clause 1.1 (Definitions);
(ii) the length of any or all of the Availability Periods;
(iii) an extension to the date of payment of any amount under the
Finance Documents;
(iv) the currency in which any payment under any Finance Document is to
be made;
(v) a reduction in the Margin, the Letter of Credit Commission Rate,
the Guarantee Commission Rate or the amount of any payment of
principal, interest, fees or commission payable;
(vi) an increase in Commitment;
(vii) a change to the Borrowers or Guarantors other than in accordance
with Clause 26 (Changes to the Obligors);
(viii) any provision which expressly requires the consent of all the
Lenders;
(ix) Clause 2.3 (Finance Parties' Rights and Obligations), Clause 25
(Changes to the Lenders) or this Clause 37; or
(x) a release of Security created pursuant to a Security Document,
provided a release of Security shall only require the prior
written consent of the Majority Lenders in case this is requested
in the course of a merger between Group Members provided that the
released Security will be replaced by security of same value and
same kind (as determined in the reasonable discretion of the
Majority Lenders) in favour of the Finance Parties which will be
executed prior to or as of effectiveness of the merger or -
reasonably demonstrated by the Company to the satisfaction of the
Majority Lenders due to legal requirements not otherwise feasible
- without undue delay after such merger.
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver that relates to the rights or obligations of the
Facility Agent, the Security Agent or the Mandated Lead Arrangers may not
be effected without the consent of the Facility Agent, the Security Agent
or the Mandated Lead Arrangers, as the case may be.
37.3 AMENDMENTS BY THE COMPANY AS AGENT OF THE OBLIGORS
The Company (acting on behalf of each Obligor) may agree to any amendment
to or modification of the provisions of any of the Finance Documents, or
grant any waiver or consent in relation to any of the Finance Documents,
and the Obligors will be bound by any such amendment, modification,
waiver or consent, except where the Facility Agent has received written
notice to the contrary from an Obligor prior to the date of any such
amendment or modification.
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38. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
SECTION 12
GOVERNING LAW AND ENFORCEMENT
39. GOVERNING LAW
This Agreement is governed by German law.
40. ENFORCEMENT
40.1 JURISDICTION OF GERMAN COURTS
(a) The courts of Frankfurt am Main have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement (including a
dispute regarding the existence, validity or termination of this
Agreement) (a "DISPUTE").
(b) No Finance Party shall be prevented from taking proceedings relating to a
Dispute in any other courts of competent jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent proceedings in
any number of jurisdictions.
40.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor incorporated in the Federal
Republic of Germany):
(a) irrevocably appoints the Company as its agent for service of
process in relation to any proceedings before the German courts in
connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
40.3 WAIVER OF IMMUNITY
To the extent that any of the Obligors may in any jurisdiction claim for
itself or its assets immunity from suit, execution, attachment (whether
in aid of execution before judgment or otherwise) or other legal process
and to the extent that in any such jurisdiction there may be attributed
to itself or its assets such immunity (whether or not claimed), such
Obligor irrevocably agrees not to claim and irrevocably waives such
immunity to the full extent permitted by the laws of such jurisdiction.
40.4 CONFIRMATIONS PURSUANT TO SECTION 8 MONEY LAUNDERING ACT
Each Borrower expressly confirms towards each Finance Party that all
funds made available to it under this Agreement have been drawn for the
its own account, and that it is
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the economic beneficiary (wirtschaftlich Begunstigter) within the
meaning of Section 8 Money Laundering Act (Geldwaschegesetz).
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING
OF THIS AGREEMENT.
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SCHEDULE 1
THE ORIGINAL PARTIES
PART I
THE ORIGINAL OBLIGORS
NAME OF ORIGINAL BORROWER JURISDICTION OF INCORPORATION AND REGISTRATION NUMBER (OR EQUIVALENT, IF ANY)
SGL Carbon Aktiengesellschaft Germany, registered with the local court Wiesbaden under HRB 9448
SGL CARBON S.A., La Coruna Spain
SGL CARBON S.p.A., Milano Italy
NAME OF ORIGINAL GUARANTOR JURISDICTION OF INCORPORATION AND REGISTRATION NUMBER (OR EQUIVALENT, IF ANY)
SGL Carbon Aktiengesellschaft Germany, registered with the local court Wiesbaden under HRB 9448
SGL Carbon GmbH Germany, registered with the local court Augsburg under HRB 16474
SGL Carbon Beteiligung GmbH, Wiesbaden Germany, registered with the local court Wiesbaden under HRB 11330
SGL ACOTEC GmbH, Siershahn Germany, registered with the local court Montabaur under HRB 6481
KCH Beteiligungs GmbH, Siershahn Germany, registered with the local court Montabaur under HRB 6169
SGL TECHNOLOGIES GmbH, Meitingen Germany, registered with the local court Augsburg under HRB 18142
SGL Brakes GmbH, Meitingen Germany, registered with the local court Augsburg under HRB 18592
SGL CARBON S.p.A, Milan Italy
SGL CARBON S.A., La Coruna Spain
SGL CARBON LLC, Nevada USA
SGL CARBON GmbH, Xxxxx Austria
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SGL CARBON GmbH & Co KG, Xxxxx Austria
RK Carbon International Ltd., Wilmslow England
RK Technologies International Ltd., Wilmslow UK/England
SGL TECHNIC Ltd., Xxxx of Ord UK/Scotland
SGL CARBON S.A.S., Chedde France
SGL ACOTEC SAS, Grenoble France
RADION FINANZIARIA S.p.A., Milan Italy
SGL CANADA Inc., Lachute Canada
SGL Carbon Polska S.A.(formerly "ZEW S.A., Raciborz") Poland
SGL TECHNIC Inc., Valencia USA
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PART II
THE ORIGINAL LENDERS
NAME OF ORIGINAL LENDER TERM TERM TERM REVOLVING CREDIT
FACILITY A FACILITY B FACILITY C FACILITY COMMITMENT
COMMITMENT COMMITMENT COMMITMENT
MANDATED LEAD ARRANGERS
BAYERISCHE LANDESBANK 4,600,000 36,500,000 - 11,900,000
CREDIT SUISSE FIRST BOSTON INTERNATIONAL 1,800,000 14,600,000 - 5,600,000
DRESDNER KLEINWORT XXXXXXXXXXX, THE INVESTMENT BANKING DIVISION OF - - - -
DRESDNER BANK AG
DEUTSCHE BANK AG - - - -
LENDERS
COMMERZBANK AKTIENGESELLSCHAFT 2,100,000 16,600,000 - 5,300,000
DRESDNER BANK AG IN MUNCHEN 2,700,000 21,200,000 - 8,100,000
DEUTSCHE BANK LUXEMBOURG S.A. 2,700,000 21,200,000 - 8,100,000
BAYERISCHE HYPO- UND VEREINSBANK - 20,000,000 - -
KREDITANSTALT FUR WIEDERAUFBAU 10,000,000 - 20,000,000 -
DZ BANK 1,100,000 9,900,000 - 3,000,000
TOTAL [e]25,000,000 [e]140,000,000 [e]20,000,000 [e]42,000,000
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SCHEDULE 2
CONDITIONS PRECEDENT AND CONDITIONS SUBSEQUENT
PART 0
CONDITIONS PRECEDENT TO EFFECTIVENESS OF FINANCE DOCUMENTS
Each of the following original documents duly executed by all of the parties
thereto (other than The Bank of New York as trustee for the High Yield
Investors and the holders of the Convertible Bonds):
(a) this Agreement;
(b) the US Term Loan Agreement;
(c) the Intercreditor Agreement;
(d) the Security Trust Agreement; and
(e) each Fee Letter.
PART I
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. CORPORATE DOCUMENTS
(a) A copy of the constitutional documents of each Original Obligor and of
SGL Technologies North America Corp. in the form required by the Facility
Agent (i.e. in relation to (1) USA, Certificate of Incorporation,
Articles of Incorporation or Articles of Organisation, as appropriate;
By-Laws or Operating Agreement, as appropriate; Good Standing
Certificate; (2) ITALY, Articles of Association (atto costitutivo), most
recent by-laws (statuto in vigore); certificate of registration
(certificato di iscrizione) issued by the Registrar of Enterprises
(Registro delle Imprese) of the competent Chamber of Commerce (Camera di
Commercio); (3) SPAIN, Deed of Incorporation (escritura de
constitucion) and any amendments to the original By- laws
(modificaciones a los estatutos originales); certified commercial
register excerpt (certificacion del Registro Mercantil); (4) AUSTRIA,
Articles of Association (Satzung); commercial registry excerpt
(Handelsregisterauszug); (5) ENGLAND, Certificate of Incorporation or
Certificate of Incorporation on Change of Name, Memorandum of
Association, Articles of Association; (6) SCOTLAND, Directors'
Resolution, Certificate of Incorporation, Memorandum of Association,
Articles of Association; (7) FRANCE, Articles of Association and by-laws
(Statuts), register excerpt (register des mouvements de titres); (8)
POLAND, Articles of Association, Excerpt from the National Court
Register; (9) CANADA, Articles of Incorporation, By-Laws; and (11)
including in relation to a German Obligor an up-to-date officially
certified commercial register extract (beglaubigter
Handelsregisterauszug) and the articles of association (Satzung)).
(b) A copy of a resolution of the shareholders (or the equivalent thereof,
i.e. in relation to (1) USA, a Board of Directors' Resolution; (2) ITALY,
a Board of Directors` Resolution
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(Delibera del Xxxxxxxxx di Amministrazione); (3) SPAIN, Minutes of the
Shareholders Meeting (acta de la Junta de Accionistas) and minutes of the
Board of Directors Meeting (acta de la reunion del Consejo de
Administracion); (4) GERMANY, Shareholder's Resolution
(Gesellschafterbeschluss); (5) AUSTRIA, Shareholder`s Resolution
(Gesellschafterbeschluss); (6) ENGLAND, Director's Resolution,
Shareholders` Resolution; (7) SCOTLAND, Shareholders` Resolution; (8)
FRANCE, Shareholder's Resolution (decision de l'associe unique) or board
resolution (process verbal du conseil d'administration), as appropriate;
(9) POLAND, Shareholder`s Resolution; and (10) CANADA, Directors'
Resolution; Shareholder's Resolution)
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it
executes the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant,
any Utilisation Request 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.
(c) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(d) A certificate of the Company (signed by a director or other authorised
officer) confirming that borrowing or guaranteeing, as appropriate, the
Total Commitments would not cause a violation of any contract of any
Original Obligor.
(e) A copy of the constitutional documents of each Group Member whose shares
are subject to Security under any of the Security Documents referred to
in Part I of this Schedule 2 in the form required by the Facility Agent.
(f) A certificate of an authorised signatory of each Original Obligor
certifying that to the best of its knowledge each copy document relating
to it specified in this paragraph 1 is correct, complete and has not been
amended as at a date no earlier than the Signing Date.
2. TRANSACTION SECURITY DOCUMENTS
Each of the following documents in form and substance satisfactory to the
Security Agent duly executed by all the parties thereto:
(a) release of each of the following share pledge agreements and notarization
of new first ranking share pledges in favour of the Security Agent and
the Senior Lenders:
(i) GmbH Share Pledge Agreement dated 20 December 2002 between SGL
Carbon AG as Pledgor, Deutsche Bank Luxembourg S.A. as Security
Agent and other Pledgees relating to the shares in SGL Carbon
Beteiligung GmbH, SGL ACOTEC GmbH, SGL Carbon GmbH and SGL
Technologies GmbH;
(ii) GmbH Share Pledge Agreement dated 20 December 2002 between SGL
ACOTEC GmbH as Pledgor, Deutsche Bank Luxembourg S.A. as Security
Agent and other Pledgees relating to the shares in KCH
Beteiligungs GmbH; and
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(iii) GmbH Share Pledge Agreement dated 20 December 2002 between SGL
Technologies GmbH as Pledgor, Deutsche Bank Luxembourg S.A. as
Security Agent and other Pledgees relating to the shares in SGL
Brakes GmbH;
(b) release of each of the following share pledge agreements and notarization
of new first ranking pledges in favour of the Security Agent and the
Senior Lenders:
(i) Poliza de Prenda de Acciones/ Deed of Pledge of Shares dated 5
May 2003 between SGL Carbon Beteiligung GmbH as Pledgor and
Deutsche Bank Luxembourg S.A. as Security Agent relating to the
shares in SGL Carbon S.A. (Spain);
(ii) Membership Interest Pledge Agreement dated 1 May 2003 between SGL
Carbon Beteiligung GmbH as Pledgor and Deutsche Bank Luxembourg
S.A. as Security Agent relating to the shares in SGL Carbon, LLC
(USA);
(iii) Stock Pledge Agreement dated 1 May 2003 between SGL Technologies
North America Corp. as Pledgor and Deutsche Bank Luxembourg S.A.
as Security Agent relating to the shares in SGL Technic, Inc.
(USA);
(iv) Share Pledge Agreement dated 2 May 2003 between SGL Carbon AG as
Pledgor, Deutsche Bank Luxembourg S.A. as Security Agent and
certain other pledgees as Pledgees relating to the shares in SGL
Carbon GmbH & Co. KG (Austria);
(v) Agreement for the Establishment of a Registered Pledge on Shares
dated 17 March 2003 between SGL Carbon Holdings B.V. (as legal
successor of SGL Carbon AG) as Pledgor and Deutsche Bank
Luxembourg S.A. as Pledgee relating to the shares in SGL Carbon
Polska (formerly "Zaklady Elektrod Weglowych S.A.") (Parallel Debt
I);
(vi) Agreement for the Establishment of a Registered Pledge on Shares
dated 17 March 2003 between SGL Carbon Holdings B.V. (as legal
successor of SGL Carbon AG) as Pledgor and Deutsche Bank
Luxembourg S.A. as Pledgee relating to the shares in SGL Carbon
Polska (formerly "Zaklady Elektrod Weglowych S.A.") (Parallel Debt
II);
(vii) Pledge over Shares of an S.p.A. dated 30 June 2003 between SGL
Carbon Beteiligung GmbH and Radion Finanziaria S.p.A. as Pledgors
and Deutsche Bank Luxembourg S.A. as Security Agent relating to
the shares in SGL Carbon S.p.A.;
(viii) Share Account Pledge Agreement dated 29 April 2003 between SGL
Carbon AG as Pledgor, Deutsche Bank Luxembourg S.A. as Security
Agent relating to the shares in SGL Carbon S.A.S.; and
(ix) Share Account Pledge Agreement dated 19 November 2003 between KCH
Beteiligungs GmbH as Pledgor and Deutsche Bank Luxembourg S.A. as
Security Agent relating to the shares in SGL Acotec S.A.S.
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(c) release of each of the following account pledge agreements and granting
of new first ranking account pledges in favour of the Security Agent and
the Senior Lenders:
(i) Account Pledge Agreement dated 20 December 2002 between SGL Carbon
AG as Pledgor and Deutsche Bank Luxembourg S.A. as Security Agent
and certain other pledgees as Pledgees;
(ii) Account Pledge Agreement dated 20 December 2002 between SGL Brakes
GmbH as Pledgor and Deutsche Bank Luxembourg S.A. as Security
Agent and certain other pledgees as Pledgees;
(iii) Account Pledge Agreement dated 20 December 2002 between SGL
Technologies GmbH as Pledgor and Deutsche Bank Luxembourg S.A. as
Security Agent and certain other pledgees as Pledgees;
(iv) Account Pledge Agreement dated 20 December 2002 between SGL ACOTEC
GmbH as Pledgor and Deutsche Bank Luxembourg S.A. as Security
Agent and certain other pledgees as Pledgees;
(v) Account Pledge Agreement dated 20 December 2002 between SGL Carbon
GmbH as Pledgor and Deutsche Bank Luxembourg S.A. as Security
Agent and certain other pledgees as Pledgees;
(vi) Account Pledge Agreement dated 20 December 2002 between SGL Carbon
Beteiligung GmbH as Pledgor and Deutsche Bank Luxembourg S.A. as
Security Agent and certain other pledgees as Pledgees; and
(vii) Account Pledge Agreement dated 20 December 2002 between KCH
Beteiligungs GmbH as Pledgor and Deutsche Bank Luxembourg S.A. as
Security Agent and certain other pledgees as Pledgees.
(d) an amendment agreement relating to each of the following security
documents according to which the respective security will cease to secure
the obligations under the Original Finance Documents and will forthwith
serve as security for the Obligors' obligations under this Agreement and
under the other Finance Documents:
(i) Security Assignment of Receivables dated 20 December 2002 between
SGL Carbon AG as Assignor and Deutsche Bank Luxembourg S.A. as
Security Agent;
(ii) Security Assignment of Receivables dated 20 December 2002 between
SGL Brakes GmbH as Assignor and Deutsche Bank Luxembourg S.A. as
Security Agent;
(iii) Security Assignment of Receivables dated 20 December 2002 between
SGL Technologies GmbH as Assignor and Deutsche Bank Luxembourg S.A.
as Security Agent;
(iv) Security Assignment of Receivables dated 20 December 2002 between
SGL ACOTEC GmbH as Assignor and Deutsche Bank Luxembourg S.A. as
Security Agent;
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(v) Security Assignment of Receivables dated 20 December 2002 between
SGL Carbon GmbH as Assignor and Deutsche Bank Luxembourg S.A. as
Security Agent;
(vi) Security Assignment of Receivables dated 20 December 2002 between
SGL Carbon Beteiligung GmbH as Assignor and Deutsche Bank
Luxembourg S.A. as Security Agent;
(vii) Security Assignment of Receivables dated 20 December 2002 between
KCH Beteiligungs GmbH as Assignor and Deutsche Bank Luxembourg S.A.
as Security Agent;
(viii)Assignment of IP-Rights dated 20 December 2002 between SGL Carbon
AG as Assignor and Deutsche Bank Luxembourg S.A. as Security Agent;
(ix) Assignment of IP-Rights dated 20 December 2002 between SGL Brakes
GmbH as Assignor and Deutsche Bank Luxembourg S.A. as Security
Agent;
(x) Assignment of IP-Rights dated 20 December 2002 between SGL
Technologies GmbH as Assignor and Deutsche Bank Luxembourg S.A. as
Security Agent;
(xi) Assignment of IP-Rights dated 20 December 2002 between SGL ACOTEC
GmbH as Assignor and Deutsche Bank Luxembourg S.A. as Security
Agent;
(xii) Assignment of IP-Rights dated 20 December 2002 between SGL Carbon
GmbH as Assignor and Deutsche Bank Luxembourg S.A. as Security
Agent;
(xiii)Assignment of IP-Rights dated 20 December 2002 between SGL Carbon
Beteiligung GmbH as Assignor and Deutsche Bank Luxembourg S.A. as
Security Agent;
(xiv) Assignment of IP-Rights dated 20 December 2002 between KCH
Beteiligungs GmbH as Assignor and Deutsche Bank Luxembourg S.A. as
Security Agent;
(xv) Security Transfer of Equipment and Inventory dated 20 December 2002
between SGL Brakes GmbH as Transferor and Deutsche Bank Luxembourg
S.A. as Security Agent, as amended;
(xvi) Security Transfer of Equipment and Inventory dated 20 December 2002
between SGL Technologies GmbH as Transferor and Deutsche Bank
Luxembourg S.A. as Security Agent, as amended;
(xvii)Security Transfer of Equipment and Inventory dated 20 December 2002
between SGL ACOTEC GmbH as Transferor and Deutsche Bank Luxembourg
S.A. as Security Agent, as amended;
(xviii)Security Transfer of Equipment and Inventory dated 20 December
2002 between SGL Carbon GmbH as Transferor and Deutsche Bank
Luxembourg S.A. as Security Agent, as amended;
(xix) Security Purpose Agreement relating to Land Charges dated 23
December 2002 between - inter alia - SGL Carbon AG as Chargor and
Deutsche Bank
144
Luxembourg S.A. as Security Agent, relating to Land charges
(Grundschuldbestellung) by SGL Carbon AG dated 23 December
2002, as amended 28 November 2003 and the Submission to Immediate
Foreclosure (Zwangsvollstreckungsunterwerfung) relating to Land
Charges by SGL Carbon AG dated 23 December 2002; and
(xx) Security Purpose Agreement relating to Land Charges dated 5 August
2003 between SGL Acotec GmbH as Chargor and Deutsche Bank Luxembourg
S.A. as Security Agent, relating to the Assignment Agreement
(Abtretungserklarung) by SGL Acotec GmbH dated 5 August 2003 and the
Land Charges (Grundschuldbestellung) by SGL Acotec GmbH dated 5
August 2003;
(e) a first ranking pledge in favour of the Security Agent and the Senior
Lenders over
(i) the Cartel Deposit Account; and
(ii) the Convert Deposit Account; and
(f) execution of the Security Trust Agreement and the Intercreditor Agreement
by The Bank of New York as trustee for the High Yield Investors and the
holders of the Convertible Bonds.
3. OTHER DOCUMENTS
Each of the following original documents duly executed by all of the parties
thereto:
(a) the Release Agreement;
(b) the Group Structure Chart showing all the Intra-Group Loans and all Group
Members and a completion of funds flow statement;
(c) the Base Financial Statements; and
(d) certified copy of the application to the relevant commercial registry of
the implementation (Durchfuhrung) of the capital increase in connection
with the Rights Issue.
4. LEGAL OPINIONS
(a) Legal opinions of (i) Shearman & Sterling, Germany, counsels to the
Company in Germany, (ii) Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P., Charlotte,
North Carolina/USA, US legal counsel, (iii) Xxxxxxx Erede Xxxxxxxxxx,
Studio Legale, Milano, Italy, Italian legal counsel, (iv) Uria, Spain,
Spanish legal counsel, (v) Saxinger Xxxxxxxxx Xxxxx & Partner, Austria,
Austrian legal counsel, (vi) Xxxxxx Xxxxxxx, Canada, Quebec legal counsel,
(vii) Hammonds, England, English legal counsel, (viii) Soffal, France,
French legal counsel, (ix) Xxxxxxxx Xxxxxxxxxx Palinka, Poland, Polish
legal counsel, (x) Ledingham Chalmers, Scotland, Scottish legal counsel,
(xi) Faasen & Partners, The Netherlands, Dutch legal counsel, each
addressed to the Secured Parties confirming that the Company and the other
Group Members are duly organised and validly existing and confirming the
capacity and authorisation of the Company and the other Group Members to
enter into the Finance Documents in form and substance satisfactory to the
Facility Agent;
145
(b) a letter from Shearman & Sterling, USA, US legal advisers to the Company,
dated on or about the Signing Date with respect to certain antitrust
matters addressed to the Secured Parties, in the form distributed to the
Original Lenders prior to signing this Agreement;
(c) Legal opinions of Xxxxx & XxXxxxxx, legal counsel in Germany, Spain,
Austria, Poland, France, Italy and the USA, and Oostvogels & De Meester,
legal counsel in Luxembourg, each addressed to the Mandated Lead
Arrangers, the Documentation Agent, the Security Agent and the Facility
Agent, substantially in the form distributed to the Original Lenders
prior to signing this Agreement; and
(d) a Legal opinion of Cravath, Swaine & Xxxxx, US legal advisers, addressed
to the Mandated Lead Arrangers, the Documentation Agent, the Security
Agent and the Facility Agent, regarding the Intercreditor Agreement,
substantially in the form distributed to the Original Lenders prior to
signing this Agreement.
5. OTHER DOCUMENTS AND EVIDENCE
(a) Evidence that the Existing Indebtedness (save for the Original Letter of
Credit and Permitted Indebtedness) has been (or will simultaneously with
the initial Utilisation) repaid or prepaid in full and all Security other
than the Security referred to in Part II of this Schedule 2 relating
thereto has been released.
(b) Evidence that the fees, costs and expenses then due from the Company
pursuant to Clause 13 (Fees) and Clause 18 (Costs and Expenses) have been
paid or will be paid by the first Utilisation Date.
(c) Evidence that the Minimum Guarantor Coverage pursuant to Clause 22.5
(Minimum Guarantor Coverage) amounts to at least eighty-five (85) per
cent. of the Consolidated EBITDA and/or turnover of the Group.
(d) If an Original Obligor is incorporated in a jurisdiction other than the
Federal Republic of Germany, evidence that the process agent specified in
Clause 40.2 (Service of Process) has accepted its appointment in relation
to that Original Obligor.
(e) A certificate of the Company (signed by a director or other authorised
officer, and in case of para. (ii) to (v) below, together with a bank
certificate) confirming that:
(i) no Material Adverse Change has occurred;
(ii) the Company has received not less than [e] 266,000,000 in gross
cash proceeds from the Rights Issue;
(iii) the Company has received not less than [e] 270,000,000 in gross
cash proceeds from the Bridge Loan or the High Yield Notes;
(iv) the Company has irrevocably deposited not less than [e]125,300,000
into the Cartel Deposit Account; and
(v) the Company has irrevocably deposited an amount sufficient to fund
principal and interest (through maturity) of the Convertible Bond
into the Convert Deposit Account, not less than [e]143,000,000,
146
provided that the requirements pursuant to para. (ii) to (v) above shall
also be fulfilled if such amounts are funded concurrently with the
initial Utilisation herunder.
147
PART II
CONDITIONS SUBSEQUENT TO INITIAL UTILISATION
The Company shall ensure that no later than 31 March 2004, all of the
documents and other evidence listed in this Part II of Schedule 2
(Conditions Subsequent and Conditions Subsequent) shall be delivered to
the Facility Agent, each in form and substance satisfactory to the
Security Agent:
1. AUSTRIA
Release of the Share Pledge Agreement dated 2 May 2003 between SGL Carbon
AG as Pledgor, Deutsche Bank Luxembourg S.A. as Security Agent and
certain other pledgees as Pledgees relating to the shares in SGL Carbon
GmbH (Austria) and granting of a new first ranking share pledge.
2. SCOTLAND
Execution of the following documents in connection with the release and
regranting of the
Share Pledge Agreement dated 29 April 2003 between RK Technologies
International Ltd. as Pledgor and Deutsche Bank Luxembourg S.A. as
Security Agent relating to the shares in SGL Technic Ltd.:
(i) a deed of release in relation to the share pledge agreement dated
29 April 2003 between RK Technologies International Limited as
Pledgor and Deutsche Bank Luxembourg S.A. as agent relating to the
shares in SGL Technic Limited together with a Form 403a in relation
thereto;
(ii) an executed stock transfer form transferring the shares in SGL
Technic Limited from Deutsche Bank Luxembourg S.A. or its nominee
to RK Technologies International Limited and share certificate in
the name of RK Technologies International Limited;
(iii) an amended share pledge agreement between RK Technologies
International Limited as Pledgor and Deutsche Bank Luxembourg S.A.
as agent relating to the shares in SGL Technic Limited together
with a Form 395 in relation thereto;
(iv) an executed stock transfer form transferring the shares in SGL
Technic Limited from RK Technologies International Limited to
Deutsche Bank Luxembourg S.A. or its nominee and share certificate
in the name of Deutsche Bank Luxembourg S.A. or its nominee; and
(v) a copy of the register of members of SGL Technic Limited showing
Deutsche Bank Luxembourg S.A. or its nominee as a member of SGL
Technic Limited.
3. ITALY
Release of each of the following existing Security and granting of new
first ranking Security in respect of the following:
148
(i) Pledge over Shares of an S.p.A. dated 30 June 2003 between SGL
Carbon Beteiligung GmbH as Pledgor and Deutsche Bank Luxembourg
S.A. as Security Agent relating to the shares in Radion Finanziaria
S.p.A.;
(ii) Pledge over Bank Account Credit Balance dated 30 June 2003 between
Radion Finanziaria S.p.A. as Pledgor and Deutsche Bank Luxembourg
S.A. as Security Agent;
(iii) Pledge over Bank Account Credit Balance dated 30 June 2003 between
SGL Carbon S.p.A. as Pledgor and Deutsche Bank Luxembourg S.A. as
Security Agent;
(iv) Assignment of Receivables by Way of Security dated 30 June 2003
between Radion Finanziaria S.p.A. as Assignor and Deutsche Bank
Luxembourg S.A. as Security Agent;
(v) Assignment of Receivables by Way of Security dated 30 June 2003
between SGL Carbon S.P.A. as Assignor and Deutsche Bank Luxembourg
S.A. as Security Agent;
(vi) Agreement for the Creation of a Pledge over Future Registered
Patents and Trademarks dated 30 June 2003 between Radion
Finanziaria S.p.A. and Deutsche Bank Luxembourg S.A. as Security
Agent; and
(vii) Agreement for the Creation of a Pledge over Future Registered
Patents and Trademarks dated 30 June 2003 between SGL Carbon S.p.A.
and Deutsche Bank Luxembourg S.A. as Security Agent.
4. USA
Release of each of the following existing Security and granting of new
first ranking Security in respect of the following (other than relating
to the mortgages over the real estate in Niagara Falls, New York, and
Pennsylvania):
(i) Stock Pledge Agreement dated 1 May 2003 between SGL Carbon, LLC as
Pledgor and Deutsche Bank Luxembourg S.A. as Security Agent
relating to the shares in SGL Technologies North America Corp.
(formerly SGL Hitco Acquisition Corp.);
(ii) Stock Pledge Agreement dated 1 May 2003 between KCH Beteiligungs
GmbH as Pledgor and Deutsche Bank Luxembourg S.A. as Security Agent
relating to the shares in SGL Acotec, Inc.;
(iii) Mortgage, Security Agreement and Fixture Filing dated 20 May 2003
made by SGL Carbon, LLC as Mortgagor in favor of Deutsche Bank
Luxembourg S.A. as Security Agent and Mortgagee;
(iv) Open-End Mortgage, Security Agreement and Fixture Filing dated 13
May 2003 made by SGL Carbon, LLC as Mortgagor in favor of Deutsche
Bank Luxembourg S.A. as Security Agent and Mortgagee relating to
the Securing of Future Advances;
(v) Deed of Trust, Security Agreement and Fixture Filing dated 13 May
2003 made by SGL Carbon, LLC as Grantor in favor of Deutsche Bank
Luxembourg S.A. as
149
Security Agent relating to the Securing of Obligations Advances
for Commercial Purposes;
(vi) Deed of Trust, Security Agreement and Fixture Filing dated 13 May
2003 made by SGL Carbon, LLC as Grantor in favor of Deutsche Bank
Luxembourg S.A. as Security Agent relating to real property in the
city of Charlotte, Mecklenburg County, North Carolina;
(vii) Deed of Trust, Security Agreement and Fixture Filing dated 13 May
2003 made by SGL Carbon, LLC as Grantor in favor of Deutsche Bank
Luxembourg S.A. as Security Agent relating to real property in the
city of Morganton, Xxxxx County, North Carolina;
(viii)Mortgage, Security Agreement and Fixture Filing dated 13 May 2003
made by SGL Carbon, LLC as Mortgagor in favor of Deutsche Bank
Luxembourg S.A. as Security Agent;
(ix) Line of Credit Deed of Trust, Security Agreement and Fixture Filing
dated 13 May 2003 made by SGL Carbon, LLC as Grantor in favor of
Deutsche Bank Luxembourg S.A. as Security Agent;
(x) Deed of Trust, Security Agreement and Fixture Filing dated 9 May
2003 made by SGL Technic, Inc. as Grantor in favor of Deutsche Bank
Luxembourg S.A. as Security Agent;
(xi) Environmental Indemnity Agreement dated 16 May 2003 between SGL
Carbon, LLC and Deutsche Bank Luxembourg S.A. as Security Agent in
relation to real property located in the States of Kentucky and
North Carolina;
(xii) Environmental Indemnity Agreement dated 19 May 2003 between SGL
Carbon, LLC and Deutsche Bank Luxembourg S.A. as Security Agent in
relation to real property located in the States of Arkansas, Oregon
and Pennsylvania;
(xiii)Environmental Indemnity Agreement dated 20 May 2003 between SGL
Carbon, LLC and Deutsche Bank Luxembourg S.A. as Security Agent in
relation to real property located in the States of Arkansas,
Kentucky, North Carolina, New York, Oregon and Pennsylvania;
(xiv) Environmental Indemnity Agreement dated 19 May 2003 between SGL
Technic, Inc. and Deutsche Bank Luxembourg S.A. as Security Agent
in relation to real property located in the State of California;
(xv) Security Agreement dated 1 May 2003 between SGL Carbon, LLC as
Grantor and Deutsche Bank Luxembourg S.A. as Security Agent;
(xvi) Security Agreement dated 1 May 2003 between SGL Technic, Inc. as
Grantor and Deutsche Bank Luxembourg S.A. as Security Agent;
(xvii)Security Agreement dated 1 May 2003 between SGL Technologies North
America Corp. as Grantor and Deutsche Bank Luxembourg S.A. as
Security Agent;
150
(xviii) Intellectual Property Security Agreement dated 1 May 2003 made by
SGL Carbon, LLC in favor of Deutsche Bank Luxembourg S.A. as
Security Agent;
(xix) Intellectual Property Security Agreement dated 1 May 2003 between
SGL Technic, Inc. in favor of Deutsche Bank Luxembourg S.A. as
Security Agent;
(xx) Blocked Account Agreement dated 6 May 2003 between SGL Carbon, LLC
and SGL Technic, Inc. as account holders, Deutsche Bank Luxembourg
S.A. as Security Agent and Bank of America, N.A. as Bank;
(xxi) Deposit Account Control Agreement dated 6 May 2003 between SGL
Carbon, LLC and SGL Technic, Inc. as account holders, Deutsche Bank
Luxembourg S.A. as Security Agent and Bank of America, N.A. as Bank
5. CANADA
Release of each of the following existing Security and granting of new
first ranking Security in respect of the following:
(i) Appointment of "Fonde de Pouvoir" dated 7 May 2003 between
Deutsche Bank Luxembourg S.A. as Security Agent in favour of
Computershare Trust Company of Canada as the Trust;
(ii) Deed of Hypotec dated 7 May 2003 between SGL Carbon AG as Grantor
and Computershare Trust Company of Canada as Agent;
(iii) Debenture dated 7 May 2003 between SGL Carbon AG as Grantor and
Computershare Trust Company of Canada as Agent;
(iv) Hypothec of Debenture dated 7 May 2003 between SGL Carbon AG as
Grantor and Deutsche Bank Luxembourg S.A. as Security Agent; and
(v) Delivery Order dated 7 May 2003 by Deutsche Bank Luxembourg S.A. to
Computershare Trust Company of Canada.
6. OTHER DOCUMENTS
(a) A copy of the constitutional documents of each Group Member whose
shares are subject to Security under any of the Security Documents
referred to in this Part II of this Schedule 2 in the form required
by the Facility Agent, including but not limited to, any stock
transfer form and share certificates, and, in case of SGL Carbon
LLC, the amendment to its operating agreement reflecting that
Article 8 of the Uniform Commercial Code will apply to SGL Carbon
LLC; and
(b) The agreements relating to the offer to purchase the Convertible
Bonds (including, without limitation, a dealer manager agreement).
7. LEGAL OPINIONS
In relation to each of the documents set out in this Part II of Schedule
2:
151
(a) Legal opinions of (i) Shearman & Sterling, Germany, counsels to the
Company in Germany, (ii) Parker, Poe, Xxxxx & Xxxxxxxxx L.L.P.,
Charlotte, North Carolina/USA, US legal counsel, (iii) Xxxxxxx
Erede Xxxxxxxxxx, Studio Legale, Milano, Italy, Italian legal
counsel, (iv) Saxinger Xxxxxxxxx Xxxxx & Partner, Austria, Austrian
legal counsel, (v) Hammonds, England, English legal counsel, (vi)
Xxxxxx Xxxxxxx, Canada, Quebec legal counsel, and (vii) Ledingham
Chalmers, Scotland, Scottish legal counsel, each addressed to the
Secured Parties confirming that the Company and the other Group
Members are duly organised and validly existing and confirming the
capacity and authorisation of the Company and the other Group
Members to enter into the Finance Documents in form and substance
satisfactory to the Facility Agent.
(b) Legal opinions of (i) Xxxxxx Xxxxxx & Xxxxx, Scotland, Scottish
legal counsel, (ii) Xxxxxxxx Xxxxxxxxxx, Canada, Quebec legal
counsel, (iii) Oostvogels & De Meester, Luxembourg, Luxembourg
counsel, and (iv) Xxxxx & XxXxxxxx, legal counsel in Austria, Italy
and the USA, each addressed to the Mandated Lead Arrangers, the
Documentation Agent, the Security Agent and the Facility Agent,
substantially in the form distributed to the Original Lenders prior
to signing this Agreement.
152
PART III
CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY A PROPOSED ADDITIONAL OBLIGOR
1. An Accession Letter, duly executed by the proposed Additional Obligor and
the Company (and subject to appropriate Guarantee limitation wording
relating to the respective Additional Obligor in case of legal
restrictions and potential officer's liability).
2. A copy of the constitutional documents of the proposed Additional Obligor
in the form reasonably required by the Facility Agent.
3. A copy of a resolution of the shareholders and/or board of directors (or
the equivalent thereof) of the proposed Additional Obligor:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including, in
relation to a proposed Additional Borrower, any Utilisation
Request or Selection Notice) to be signed and/or despatched by it
under or in connection with the Finance Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. Where the Lenders determine such to be either necessary or desirable,
either in place of or in addition to the resolution referred to in
paragraph 3 above, a certificate or extract from a public commercial
registry or equivalent evidence setting out the names and signatures of
the persons authorised to execute the Accession Letter on behalf of the
proposed Additional Obligor and to sign and/or despatch all 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.
6. A certificate of the proposed Additional Obligor (signed by a director or
other authorised officer) confirming that borrowing or guaranteeing, as
appropriate, the Total Commitments would not cause any borrowing,
guaranteeing or similar limit binding on it to be exceeded.
7. A certificate of an authorised signatory of the proposed Additional
Obligor certifying that each copy document listed in this Part IV 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 which the Facility
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 proposed
Additional Obligor.
10. A legal opinion of Xxxxx & XxXxxxxx, legal advisers to the Mandated Lead
Arrangers, the Security Agent and the Facility Agent in the Federal
Republic of Germany.
153
11. A legal opinion satisfactory to the Lenders of the legal advisers to the
Company in the jurisdiction in which the proposed Additional Obligor is
incorporated opining on the due organisation and valid existence and
confirming the capacity and authorisation of the Additional Obligor to
enter into the Finance Documents.
12. If the proposed Additional Obligor is incorporated in a jurisdiction
other than the Federal Republic of Germany, evidence that the process
agent specified in Clause 40.2 (Service of Process), if not an Obligor,
has accepted its appointment in relation to the proposed Additional
Obligor.
13. Accession to the Security Trust Agreement and the Intercreditor
Agreement.
154
SCHEDULE 3
REQUESTS
PART I
UTILISATION REQUEST
From: [name of relevant Borrower]
To: Deutsche Bank Luxembourg S.A.
Dated:
Dear Sirs
SGL CARBON AKTIENGESELLSCHAFT - [e]227,000,000 FACILITIES AGREEMENT
DATED 3 FEBRUARY 2004 (THE "FACILITIES AGREEMENT")
1. [We wish to borrow a Loan on the following terms:] / [We wish [name of
Issuing Bank] to issue the [Letter of Credit] as follows:]
Proposed Utilisation Date: [ ] (or, if that is not a
Business Day, the next Business Day)
Facility to be utilised: [Term Facility A]/[Term Facility B]/[Term
Facility C]/[Revolving Credit Facility]
Currency of [Loan]/[Letter of Credit]: [ ]
Amount: [ ] or, if less, the [Available
Facility] [amount in such currency which
will reduce the Available Facility to
zero]
Interest Period: [ ]
[Expiry Date:] [ ]
[Issuing Bank:] [ ]
2. We confirm on our own behalf and on behalf of any other Obligor that each
condition specified in Clause 4.2 (Further Conditions Precedent) of the
Facilities Agreement is satisfied on the date of this Utilisation
Request. We confirm that the [Loan]/[Letter of Credit] [is]/[are] to be
applied for the following purpose: [purpose permitted pursuant to Clause
3 (Purpose) of the Facilities Agreement to be specified].
3. [The proceeds of this Loan should be credited to [account].] / [The
Letter of Credit should be issued in favour of [name of beneficiary] in
the form attached and delivered to the recipient at [address of
beneficiary.]
4. This Utilisation Request is irrevocable.
155
Yours faithfully
.....................................
authorised signatory for
[name of relevant Borrower]
Confirmed by:
.....................................
authorised signatory for
SGL CARBON AKTIENGESELLSCHAFT
156
PART II
SELECTION NOTICE APPLICABLE TO A TERM LOAN FACILITY
From: [name of relevant Borrower]
To: Deutsche Bank Luxembourg S.A.
Dated:
Dear Sirs
SGL CARBON AKTIENGESELLSCHAFT - [e]227,000,000 FACILITIES AGREEMENT
DATED 3 FEBRUARY 2004 (THE "FACILITIES AGREEMENT")
1. We refer to the following Term Facility Loan[s] in Euros with an Interest
Period ending on [ ].
2. [We request that the above Term Facility Loan[s] be divided into [
] Term Facility Loans with the following amounts and Interest Periods:]
or
[We request that the next Interest Period for the above Term Facility
Loan[s] is [ ]].
3. We confirm on our own behalf and on behalf of any other Obligor that each
condition specified in Clause 4.2 (Further Conditions Precedent) of the
Facilities Agreement is satisfied on the date of this Selection Notice.
We confirm that the Term Facility Loan[s] [is]/[are] to be applied for
the following purpose: [purpose permitted pursuant to Clause 3 (Purpose)
of the Facilities Agreement to be specified].
4. This Selection Notice is irrevocable.
Yours faithfully
.....................................
authorised signatory for
[name of relevant Borrower]
Confirmed by:
.....................................
authorised signatory for
SGL CARBON AKTIENGESELLSCHAFT
157
SCHEDULE 4
MANDATORY COST FORMULA
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
Financial Services Authority (or 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 Facility 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
Facility 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 Facility Agent as the cost of complying with the minimum
reserve requirements of the European Central Bank.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Facility Agent as follows:
E x 0.01
-------- per cent. per annum.
300
Where:
E is the rate of charge payable by that Lender to the Financial
Services Authority pursuant to the Fees Regulations (but, for this
purpose, ignoring any minimum fee required pursuant to the Fees
Regulations) and expressed in pounds per {pound-sterling}1,000,000
of the Fee Base of that Lender.
5. For the purposes of this Schedule:
(a) "FEES REGULATIONS" means the Banking Supervision (Fees)
Regulations 1999 or such other law or regulation as may be in
force from time to time in respect of the payment of fees for
banking supervision; and
(b) "FEE BASE" has the meaning given to it, and will be calculated in
accordance with, the Fees Regulations.
6. Each Lender shall supply any information required by the Facility Agent
for the purpose of calculating its Additional Cost Rate. In particular,
but without limitation, each Lender shall supply the following
information in writing on or prior to the date on which it becomes a
Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) any other information that the Facility Agent may reasonably
require for such purpose.
158
Each Lender shall promptly notify the Facility Agent in writing of any
change to the information provided by it pursuant to this paragraph.
7. The percentages or rates of charge of each Lender for the purpose of E
above shall be determined by the Facility Agent based upon the
information supplied to it pursuant to paragraph 6 above and on the
assumption that, unless a Lender notifies the Facility Agent to the
contrary, each Lender's obligations in relation to cash ratio deposits,
Special Deposits and the Fees Regulations 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.
8. The Facility 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 pursuant to paragraphs 3 and 6 above
is true and correct in all respects.
9. The Facility 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 pursuant to paragraphs 3 and 6 above.
10. Any determination by the Facility 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.
11. The Facility 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 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.
159
SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
To: Deutsche Luxembourg S.A. as Facility Agent
From: [The Existing Lender] (the "EXISTING LENDER") and [The New Lender] (the
"NEW LENDER")
Dated:
SGL CARBON AKTIENGESELLSCHAFT - [e]227,000,000 FACILITIES AGREEMENT DATED 3
FEBRUARY 2004 (THE "FACILITIES AGREEMENT") AND SALE AND PURCHASE AGREEMENT
DATED [ ] (THE "SALE AGREEMENT")
1. We refer to Clause 25.5 (Procedure for Transfer):
The Existing Lender and the New Lender agree to the Existing Lender and
the New Lender assigning and transferring all or part of the Existing
Lender's Commitment referred to in the Schedule and all its related
rights and obligations under the Facility Agreement and the Security
Trust Agreement in accordance with Clause 25.5 (Procedure for Transfer).
The New Lender agrees to the terms and conditions of the Sale Agreement
and the Terms and Conditions attached hereto.
The proposed Transfer Date is [ ].
The Facility Office and address, fax number and attention details for
notices of the New Lender for the purposes of Clause 33.2 (Addresses) are
set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in Clause 25.2(b).
3. This Transfer Certificate is governed by German law.
By:
_______________________
_______________________
160
THE SCHEDULE
TRANSFER AND ASSUMPTION AGREEMENT
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
EXISTING LENDER'S COMMITMENT TRANSFER AMOUNT
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments]
Date: Date:
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Facility Agent and the Transfer
Date is confirmed as [ ].
Deutsche Bank Luxembourg S.A. By:
161
TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "TRANSFER CERTIFICATE") to which they are
annexed.
1. INTERPRETATION
In these Terms and Conditions words and expressions shall (unless
otherwise expressly defined herein) bear the meaning given to them in the
Transfer Certificate and the Facilities Agreement.
2. TRANSFER
The Existing Lender requests the New Lender to accept and procure the
assignment and transfer of all or a part (as applicable) of such
participation of the Existing Lender under the Facilities Agreement as is
set out in the relevant part of the Transfer Certificate under the
heading "Schedule" (the "PURCHASED ASSETS") by counter-signing and
delivering the Transfer Certificate to the Facility Agent at its address
for the service of notice specified in the Facilities Agreement. On the
Transfer Date the New Lender shall pay to the Existing Lender the
settlement amount as specified in the pricing letter between the Existing
Lender and the New Lender dated the date of the Transfer Certificate
(adjusted, if applicable, in accordance with the Sale Agreement) and
completion of the transfer will take place.
3. EFFECTIVENESS OF TRANSFER
The New Lender hereby requests the Facility Agent to accept the Transfer
Certificate as being delivered to the Facility Agent pursuant to and for
the purposes of the Facilities Agreement so as to take effect in
accordance with the terms of the Facilities Agreement on the Transfer
Date or on such later date as may be determined in accordance with the
terms thereof.
4. NEW LENDER'S UNDERTAKING
The New Lender hereby undertakes with the Facility Agent and the Existing
Lender and each of the other parties to the Finance Documents that it
will perform in accordance with its terms all those obligations which by
the terms thereof will be assumed by it after delivery of the Transfer
Certificate to the Facility Agent and satisfaction of the conditions (if
any) subject to which the Transfer Certificate is to take effect.
5. PAYMENTS
5.1 PLACE
All payments by either party to the other under the Transfer Certificate
shall be made to the account of that other party specified in the Sale
Agreement (the "RECEIVING ACCOUNT"). Each party may designate a
different account as its Receiving Account for payment by giving the
other not less than five (5) Business Days notice before the due date for
payment.
162
5.2 FUNDS
Payments under the Transfer Certificate shall be made in the currency in
which the amount is denominated for value on the due date at such times
and in such funds as are customary at the time for settlement of
transactions in that currency.
6. THE FACILITY AGENT
The Facility Agent shall not be required to concern itself with the Sale
Agreement and may rely on the Transfer Certificate without taking account
of the provisions of such agreement.
7. ASSIGNMENT OF RIGHTS
The Transfer Certificate shall be binding upon and enure to the benefit
of each party and its successors and permitted assigns PROVIDED THAT
neither party may assign and transfer its rights thereunder without the
prior written consent of the other party.
8. GOVERNING LAW AND JURISDICTION
The Transfer Certificate (including, without limitation, these Terms and
Conditions) shall be governed by and construed in accordance with the
laws of the Federal Republic of Germany, and the parties submit to the
non-exclusive jurisdiction of the German courts.
Each party irrevocably appoints the person described as process agent (if
any) specified in the Sale Agreement to receive on its behalf service of
any action, suit or other proceedings in connection with the Transfer
Certificate. If any person appointed as process agent ceases to act for
any reason the appointing party shall notify the other party and shall
promptly appoint another person incorporated within the Federal Republic
of Germany to act as its process agent.
163
SCHEDULE 6
FORM OF ACCESSION LETTER
PART I
FORM OF BORROWER ACCESSION LETTER
To: Deutsche Bank Luxembourg S.A. as Facility Agent
From: [Material Subsidiary] and SGL Carbon Aktiengesellschaft
Dated:
Dear Sirs
SGL CARBON AKTIENGESELLSCHAFT - [e]227,000,000 FACILITIES AGREEMENT
DATED 3 FEBRUARY 2004 (THE "FACILITIES AGREEMENT")
1. [Material Subsidiary] agrees to become an Additional Borrower and an
Additional Guarantor and to be bound by the terms of the Facilities
Agreement as an Additional Borrower and an Additional Guarantor pursuant
to Clause 26 (Changes to the Obligors) of the Facilities Agreement and
the terms of the Security Trust Agreement. [Material Subsidiary] is a
company duly incorporated under the laws of [name of relevant
jurisdiction].
2. [Material Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
3. [Material Subsidiary] agrees to provide and, to the extent permitted by
law, causes any Subsidiary to provide, such Security for all or any part
of its obligations under the Finance Documents as the Facility Agent
shall reasonably require.
4. This letter is governed by German law.
[Company] [Material Subsidiary]
164
PART II
FORM OF GUARANTOR ACCESSION LETTER
To: Deutsche Bank Luxembourg S.A. as Facility Agent
From: [Subsidiary] and SGL Carbon Aktiengesellschaft
Dated:
Dear Sirs
SGL CARBON AKTIENGESELLSCHAFT - [e]227,000,000 FACILITIES AGREEMENT
DATED 3 FEBRUARY 2004 (THE "FACILITIES AGREEMENT")
1. [Subsidiary] agrees to become an Additional Guarantor and to be bound by
the terms of the Facilities Agreement as an Additional Guarantor pursuant
to Clause 26 (Changes to the Obligors) of the Facilities Agreement and
the terms of the Security Trust Agreement. [Subsidiary] is a company
duly incorporated under the laws of [name of relevant jurisdiction].
2. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
3. [Subsidiary] agrees to provide and, to the extent permitted by law,
causes any Subsidiary to provide, such Security for all or any part of
its obligations under the Finance Documents as the Facility Agent shall
reasonably require.
4. This letter is governed by German law.
For and on behalf of
SGL CARBON AKTIENGESELLSCHAFT [Subsidiary]
165
SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
To: Deutsche Bank Luxembourg S.A. as Facility Agent
From: SGL Carbon Aktiengesellschaft
Dated:
Dear Sirs
SGL CARBON AKTIENGESELLSCHAFT - [e]227,000,000 FACILITIES AGREEMENT
DATED 3 FEBRUARY 2004 (THE "FACILITIES AGREEMENT")
1. We refer to the Facilities Agreement. This is a Compliance Certificate.
2. We confirm that: [Insert details of covenants to be certified, including
calculations and explanations]
3. On the basis of above, we confirm that:
(a) the Margin in respect of Term Facility Loans after your receipt of
this Compliance Certificate will be [ ] per cent. per
annum; and
(b) the Margin in respect of Revolving Credit Facility Loans after
your receipt of this Compliance Certificate will be [
] per cent. per annum.
3. The following entities are Material Subsidiaries (as this term is defined
in the Facilities Agreement): [identify relevant entities]
4. We confirm that no Default is continuing.
Signed: ............... ...............
Director Director
of of
SGL CARBON AKTIENGESELLSCHAFT SGL CARBON AKTIENGESELLSCHAFT
[insert applicable certification language]
......................
for and on behalf of
[name of auditors of the Company]
166
SCHEDULE 8
EXISTING SECURITY
Name of Obligor Security Total Principal Amount of Indebtedness Secured
Details of any existing security, which will remain in place after the Closing
Date, to be inserted.
NOT APPLICABLE
167
SCHEDULE 9
LMA FORM OF CONFIDENTIALITY UNDERTAKING
LMA CONFIDENTIALITY LETTER (SELLER)
[LETTERHEAD OF SELLER/SELLER'S AGENT/BROKER]
To:
[insert name of Potential
Buyer/Buyer's Agent/broker]
RE: SGL CARBON AKTIENGESELLSCHAFT - [e]227,000,000 FACILITIES AGREEMENT
BORROWER: SGL CARBON AKTIENGESELLSCHAFT
DATE:
AMOUNT: [e]227,000,000
AGENT:
Dear Sirs
We understand that you are considering [acquiring][1]/[arranging the
acquisition of][2] an interest in the Facilities Agreement (the "ACQUISITION").
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:
1. Confidentiality Undertaking 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 use the
Confidential Information only for the Permitted Purpose, (c) to use all
reasonable endeavours to ensure that any person to whom you pass any
Confidential Information (unless disclosed under paragraph 2[(c)/(d)]
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to it, and (d) not to make
[1] delete if addressee is acting as broker or Agent
[2] delete if addressee is acting as principal
168
enquiries of any Group Member or any of their officers, directors,
employees or professional advisers relating directly or indirectly to
the Acquisition.
2. Permitted Disclosure We agree that you may disclose Confidential
Information:
(a) to members of the Buyer 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 Buyer
Group;
(b) [subject to the requirements of the Facilities Agreement, in
accordance with the Permitted Purpose so long as any prospective
buyer has delivered a letter to you in equivalent form to this
letter;]
[(c/d] subject to the requirements of the Facilities Agreement, to any
person to (or through) whom you assign and transfer (or may
potentially assign and transfer) all or any of the rights,
benefits and obligations which you may acquire under the
Facilities Agreement or with (or through) whom you enter 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, the Facilities Agreement or the Borrower or any
Group Member so long as that person has delivered a letter to you
in equivalent form to this letter; and
[e/f] (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 Buyer 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 Buyer Group.
3. Notification of Required or Unauthorised Disclosure You agree (to the
extent permitted by law) to inform us of the full circumstances of any
disclosure under paragraph 2[(c)/(d)] or upon becoming aware that
Confidential Information has been disclosed in breach of this letter.
4. Return of Copies If we so request in writing, you shall return all
Confidential Information supplied to you by us and destroy or permanently
erase 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 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[(c)/(d)] above.
5. Continuing Obligations 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 (a) if you become a party to
or otherwise acquire (by assignment or sub-participation) an interest,
direct or indirect, in the Facilities Agreement or (b) twelve (12) months
after you have returned all Confidential Information supplied to you by
us and destroyed or permanently erased all copies of Confidential
Information made by you (other than any such Confidential Information or
copies which have been disclosed under paragraph 2 above
169
(other than sub-paragraph 2(a)) or which, pursuant to paragraph 4 above,
are not required to be returned or destroyed)).
6. No Representation; Consequences of Breach etc You acknowledge and agree
that:
(a) neither we, [nor our principal] nor any Group Member nor any of
our or their respective 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 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 be
otherwise liable to you or any other person in respect to the
Confidential Information or any such information; and
(b) we [or our principal] or Group Members may be irreparably harmed
by the breach of the terms hereof and damages may not be an
adequate remedy; each Relevant Person 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 hereunder 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 hereunder. The terms of this letter and your obligations
hereunder 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
relating to insider dealing 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 [our principal,]4 the Borrower
and each other Group Member.
10. 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 the Federal Republic of
Germany and the parties submit to the non-exclusive jurisdiction of the
German courts.
11. Definitions In this letter (including the acknowledgement set out below)
terms defined in the Facilities Agreement shall, unless the context
otherwise requires, have the same meaning and:
"BUYER GROUP" means you, each of your holding companies and subsidiaries
and each subsidiary of each of your holding companies;
170
"CONFIDENTIAL INFORMATION" means any information relating to the
Borrower, the Group, the Facilities Agreement and/or the Acquisition
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 thereafter,
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;
"GROUP" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies; and
"PERMITTED PURPOSE" means [subject to the terms of this letter, passing
on information to a prospective buyer for the purpose of] considering and
evaluating whether to enter into the Acquisition.
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
..............................................
For and on behalf of
[Seller/Seller's Agent/broker]
To: [Seller]
[Seller's Agent/broker]
The Borrower and each other Group Member
We acknowledge and agree to the above:
..............................................
For and on behalf of
[POTENTIAL BUYER/BUYER'S AGENT/BROKER]
171
SCHEDULE 10
TIMETABLES
PART I
LOANS
LOANS IN LOANS IN
EURO DOLLARS
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation X-0 X-0
Request) or a Selection Notice Clause 11.1 (Selection of Interest Periods) 12.00 noon 12.00 noon
Facility Agent notifies the Lenders of the amount and currency of the Loan in accordance X-0 X-0
with Clause 5.4 (Lenders' Participation) 05.00 p.m. 02.00 p.m.
Facility Agent receives a notification from a Lender under Clause 6.2 (Unavailability of Dollars) D-2
09.00 a.m.
Facility Agent gives notice to the relevant Borrower in accordance with Clause 6.2 D-2
(Unavailability of Dollars) 10.00 a.m.
LIBOR or EURIBOR is fixed Quotation Quotation
Day as of Day as of
11:00am 11:00 a.m.
(Brussels London
time) in time
respect of
EURIBOR
D = first day of relevant Interest Period.
D - X = X Business Days prior to D.
172
PART II
LETTERS OF CREDIT
LETTERS
OF
CREDIT
Delivery of a duly completed Utilisation Request (Clause 5.1 (Delivery of a Utilisation Request))
U-5
12.00 noon.
Facility Agent notifies the Lenders and the Issuing Banks of any Letter of Credit in accordance
with Clause 5.4 (Lenders' Participation). U-3
12.00 noon
U = date of utilisation.
U - X = X BUSINESS DAYS PRIOR TO U.
173
SCHEDULE 11
FORM OF SECURITY TRUST AGREEMENT
174
SCHEDULE 12
BORROWERS AND THEIR ALLOCATIONS
PART I
TERM FACILITY A
NAME OF ADDITIONAL BORROWER AMOUNT OF SUCH BORROWER'S ALLOCATION
SGL CARBON S.A., LA CORUNA, SPAIN [e]10,000,000
SGL CARBON S.P.A., MILANO [e]15,000,000
TOTAL [e]25,000,000
PART II
TERM FACILITY B
NAME OF ADDITIONAL BORROWER AMOUNT OF SUCH BORROWER'S ALLOCATION
SGL CARBON AG, WIESBADEN, GERMANY [e]140,000,000
TOTAL [e]140,000,000
PART III
TERM FACILITY C
NAME OF ADDITIONAL BORROWER AMOUNT OF SUCH BORROWER'S ALLOCATION
SGL CARBON AG, WIESBADEN, GERMANY [e]20,000,000
TOTAL [e]20,000,000
175
PART IV
REVOLVING CREDIT FACILITY
NAME OF APPROVED ADDITIONAL BORROWER AMOUNT OF SUCH APPROVED BORROWER'S ALLOCATION
SGL CARBON AG, WIESBADEN, GERMANY [e]42,000,000
TOTAL [e]42,000,000
176
SCHEDULE 13
CURRENT MATERIAL SUBSIDIARIES
NAME OF MATERIAL SUBSIDIARY JURISDICTION OF INCORPORATION AND REGISTRATION
NUMBER (OR EQUIVALENT, IF ANY)
SGL CARBON GMBH, MEITINGEN GERMANY
SGL ACOTEC GMBH, SIEHRSHAHN GERMANY
SGL CARBON GMBH & CO, XXXXX AUSTRIA
SGL CARBON S.P.A., MILAN ITALY
SGL CARBON S.A., LA CORUNA SPAIN
SGL CARBON POLSKA S.A. (FORMERLY "ZEW S.A."), RACIBORZ POLAND
SGL CARBON LLC NEVADA, USA
SGL TECHNIC, INC., VALENCIA, CALIFORNIA CALIFORNIA, USA
SGL ACOTEC SAS FRANCE
177
SCHEDULE 14
FORM OF LETTER OF CREDIT
[Letterhead]
[Date]
BANKBURGSCHAFT
SACHE COMP/E - 1/36.490 - GRAPHITELEKTRODEN
Die nachfolgend genannten Banken bestatigen Ihnen hiermit, dass jede einzelne
Bank als Teilschuldner bis zur Hohe des neben der jeweiligen Bank genannten
Hochstbetrages zuzuglich insoweit gegebenenfalls geschuldeter Zinsen zu einem
Zinssatz von 6,04 % bezogen auf den jeweiligen Hochstbetrag und begrenzt auf den
Zeitraum vom 24. Oktober 2001 bis zum Zeitpunkt der tatsachlichen Erfullung der
gesicherten Verbindlichkeit
BANK HOCHSTBETRAG
Deutsche Bank Luxembourg S.A. :[e] 10.644.457,25
Dresdner Bank AG in Munchen :[e] 10.644.457,25
Bayerische Landesbank :[e] 10.974.736,89
Commerzbank Aktiengesellschaft,
Augsburg Branch :[e] 6.753.684,46
WestLB AG :[e] 6.753.684,46
DZ Bank Deutsche Zentral-
Genossenschaftsbank :[e] 5.179.567,93
Bayerische Hypo- und Vereinsbank AG,
Augsburg Branch :[e] 29.249.411,76
GESAMTBETRAG:
EUR 80.200.000,00
(in Worten: Euro achtzigmillionenzweihunderttausend 00/100)
fur die Erfullung der folgenden Verbindlichkeit der SGL CARBON XX,
Xxxxxxxxxxxxxxx 000, D-65203 Wiesbaden, gegenuber der Kommission der
Europaischen Gemeinschaften die Burgschaft ubernehmen:
- Geldbusse in Hohe von 80,2 Mio. EUR, die der SGL CARBON AG durch die
Entscheidung der Kommission der Europaischen Gemeinschaften vom 18. Juli
2001 in der Sache COMP/E-1/36.490 auferlegt xxxxxx ist und vom 24.
Oktober 2001 bis zum Zeitpunkt der tatsachlichen Zahlung der Geldbusse
mit dem Zinssatz zu verzinsen ist, den die Europaische Zentralbank fur
Hauptrefinanzierungsgeschafte im Xxxxx Xxxx 2001 anwendet (d.h. 4,54 %,
wie im Amtsblatt der Europaischen Gemeinschaften Nr. C 188/1 vom 4. Juli
2001 bekanntgegeben, erhoht um eineinhalb Prozentpunkte, insgesamt 6,04
%).
178
Diese Burgschaftsversprechen konnen nur mit Zustimmung der Kommission
der Europaischen Gemeinschaften widerrufen werden.
Die Banken verzichten auf die Einrede der Vorausklage.
Die genannte Burgschaft wird fallig auf Ihre erste Anforderung durch
mit Einschreibebrief an die Deutsche Bank Luxembourg S.A. (handelnd insoweit
als Empfangsvertreter aller oben genannten Banken) ubersandte,
beglaubigte Abschrift des Urteils des Gerichts erster Instanz bzw. des
Gerichtshofs der Europaischen Gemeinschaften in der Sache COMP/E-
1/36.490.
Die Burgschaft erlischt, abgesehen von der Erfullung der Anspruche,
durch Ruckgabe dieser Urkunden an die Deutsche Bank Luxembourg S.A.
(handelnd insoweit als Vertreter aller oben genannten Banken).
Diese Burgschaft unterliegt dem Recht der Bundesrepublik Deutschland.
Ausschliesslicher Gerichtsstand fur diese Burgschaft ist der
Gerichtshof / das Gericht erster Instanz der Europaischen Gemeinschaft in
Luxembourg.
Deutsche Bank Luxembourg S.A. ____________________________________
Dresdner Bank AG in Munchen ____________________________________
Bayerische Landesbank ____________________________________
Commerzbank Aktiengesellschaft,
Augsburg Branch ____________________________________
WestLB AG ____________________________________
DZ Bank Deutsche Zentral-
Genossenschaftsbank ____________________________________
Bayerische Hypo- und Vereinsbank AG,
Augsburg Branch ____________________________________
179
SCHEDULE 15
EXISTING COMPETITION LAW PROCEEDINGS AND ANTI-TRUST LAWSUITS
I. ALL PENDING ANTITRUST
PROCEEDINGS OF SGL
GROUP:
PLAINTIFF/ CAUSE OF
INVESTIGATING AUTHORITY DEFENDANT COURT/FILING ACTION/ STATUS
NUMBER PLAINTIFF'S
CLAIMS
-----------------------------------------------------------------------------------------------------------------------
1. EU Commission SGL AG EuG/Az.: Graphite Fine imposed on 18.07.01;
T-239/01 electrodes Appeal at European Court
-----------------------------------------------------------------------------------------------------------------------
2. EU Commission SGL AG EuG/Az.: Isostatic Fines imposed by 17 December 2002;
T-91/03 and extruded Appeal at European Court
speciality
products
-----------------------------------------------------------------------------------------------------------------------
3. EU Commission SGL Carbon Sache COMP/ Electrical Fines imposed by 3 December 2003;
Group E- 1/38.359 a. mechanical Appeal at European Court
carbon a. under consideration
graphite
products
-----------------------------------------------------------------------------------------------------------------------
4. Korean Fair SGL AG Case Graphite Interim Appeal denied; Appeal filed denied
Trade Commission No.:2002 electrodes on 27-09-02; appeal to supreme court filed
Shinsam 0585 on 21 October 2003
180
II. ALL PENDING ANTITRUST
RELATED CIVIL LAW
SUITS CONCERNING SGL
GROUP:
CAUSE OF
PLAINTIFF DEFENDANT COURT/FILING ACTION/ STATUS
NUMBER PLAINTIFF'S
CLAIMS
----------------------------------------------------------------------------------------------------------------------------------
1. FOREIGN PURCHASER
LAW SUITS
----------------------------------------------------------------------------------------------------------------------------------
A. FERROMIN SGL AG/SGL D.C. of civil action dismissed for lack of standing and lack of subject
Internat. U.S. and Pennsylvania for damages matter jurisdiction, decision of DC on appeal
Trade Corp. other Cases No. 99 (GE)
and others CV 693
----------------------------------------------------------------------------------------------------------------------------------
B. BROKEN HILL SGL AG/SGL D.C. of civil action dismissed for lack of standing and lack of subject
Proprietary U.S. and Pennsylvania for damages matter jurisdiction, decision of DC on appeal
Co. Ltd other Case No. 99 (GE)
(Australia) CV 4772
and others
----------------------------------------------------------------------------------------------------------------------------------
C. SAUDI IRON SGL AG/SGL D.C. of civil action dismissed subject to reinstatement upon resolution
AND STEEL U.S. and Pennsylvania for damages of Ferromin and BHP appeals
COMPANY other Case No. 00 (GE)
CV 5414
----------------------------------------------------------------------------------------------------------------------------------
D. ARBED S.A. SGL AG/SGL D.C. of civil action dismissed with prejudice
U.S. and Pennsylvania for damages
other Case No. 02 (GE)
CV 822
----------------------------------------------------------------------------------------------------------------------------------
2. ISOSTATIC SGL AG/SGL D.C. of class action Settled April 2003 (not yet presented to or
GRAPHITE U.S. and Pennsylvania (Isographit) approved by Court)
Antitrust other Case No.
litigation 00Master
(consolidated File No. 00
cases) CV 1857
(for all iso)
----------------------------------------------------------------------------------------------------------------------------------
3. BULK AG/SGL D.C. of New class action Motions to dismiss filed
(EXTRUDED) US/SGL Jersey (case (extruded)
GRAPHITE GmbH and no. 02 CV
PRODUCTS others 6030)
Antitrust
litigation
(consolidated
cases)
----------------------------------------------------------------------------------------------------------------------------------
181
----------------------------------------------------------------------------------------------------------------------------------
4. ELECTRICAL SGL AG/ Superior CGC-03- named defendant in December 2003
CARBON SGL US Court of the 422635
PRODUCTS /SGL State of cl
Antitrust Technic California
Litigation Ltd.
----------------------------------------------------------------------------------------------------------------------------------
5. NORTHWEST SGL AG/SGL D.C. of civil action Settlement discussions; case against SGL AG
ALUMINIUM U.S. and Oregon for damages dismissed on jurisdictional grounds (though
COMPANY/ other (GE) plaintiffs are seeking to add new jurisdictional
GOLDENDALE allegations); active discovery regarding SGL U.S.
ALUMINIUM
COMPANY
----------------------------------------------------------------------------------------------------------------------------------
Iso = GE = SGL AG = SGL SGL U.S. = D.C: of Pennsylvania = United States District
Isostatic Graphite Carbon AG SGL Carbon Court for the Eastern District of Pennsylvania
graphite electrodes D.C. = LLC (former
SGL GmbH = SGL District Corp.)
Carbon GmbH Court
182
SCHEDULE 16
EXISTING INTRA-GROUP LOANS
AS OF JANUARY 29, 2004
LENDER BORROWER KIND OF LOAN CURR.LENDER
KCH BETEILIGUNGS GMBH SGL ACOTEC Inc., USA Short-term IC-Loan USD KCH BETEILIGUNGS GMBH
SGL ACOTEC GmbH, Siershahn Short-term IC-Loan EUR NOTIONAL DUE DATE
SGL ACOTEC GMBH SGL Composites SA, France IC balances daily EUR SGL ACOTEC GMBH MEITINGEN 4.722.175 12.02.2004
MEITINGEN due
SGL CARBON AG IC balances daily EUR 5.190.500 31.03.2004
due
SGL ACOTEC GMBH, SGL ACOTEC China Ltd., Wuhan Short-term IC-Loan EUR SGL ACOTEC GMBH, SIERSHAHN
SIERSHAHN
Xxxx GmbH, Pasching Short-term IC-Loan EUR 58.904.762
KCH Beteiligungs GmbH Short-term IC-Loan EUR 150.000 20.04.2004
SGL ACOTEC Ltda., Brazil Short-term IC-Loan EUR 150.000 31.03.2004
SGL ACOTEC Ltda., Brazil Short-term IC-Loan EUR 13.590.698 31.03.2004
SGL ACOTEC Ltda., Brazil Short-term IC-Loan EUR 150.000 11.02.2004
SGL ACOTEC Ltda., Brazil Short-term IC-Loan EUR 25.000 09.03.2004
SGL ACOTEC Ltda., Brazil Short-term IC-Loan EUR 300.000 10.03.2004
SGL ACOTEC Ltda., Brazil Short-term IC-Loan EUR 220.000 30.04.2004
SGL ACOTEC LTD. SGL CARBON AG Short-term IC-Loan GBP SGL ACOTEC LTD. SANDBACH 150.000 28.05.2004
SANDBACH
SGL ACOTEC GmbH, Siershahn Short-term IC-Loan EUR 120.000 02.06.2004
SGL ACOTEC S.A.R.L., SGL ACOTEC GmbH, Siershahn IC balances daily EUR SGL ACOTEC S.A.R.L., LA 212.046 08.04.2004
LA COMTE due COMTE
SGL ACOTEC SPA, ITALY SGL CARBON SpA, Italy IC balances daily EUR SGL ACOTEC SPA, ITALY 200.000 31.03.2004
due
SGL CARBON AG SGL CARBON Beteiligung GmbH IC balances daily EUR SGL CARBON AG 630.000
due
SGL TECHNOLOGIES GmbH IC balances daily EUR 85.887
due
SGL ACOTEC GmbH, Siershahn IC balances daily EUR 183.022.320
due
SGL TECHNIC Ltd., UK Short-term IC-Loan GBP 58.384.731
183
SGL CARBON Japan LTD Short-term IC-Loan JPY 46.122.415
SGL CARBON LLC., USA Long-term IC-Loan USD 30.287.906 08.04.2004
SGL ACOTEC Ltda., Brazil Short-term IC-Loan USD 248.300.000 23.02.2004
SGL CARBON S.p.A., Italy IC balances daily EUR 56.432.248 18.02.2004
due
SGL ACOTEC China Ltd., Wuhan Short-term IC-Loan USD 1.800.000 30.01.2004
SGL Tokai Carbon Ltd, Short-term IC-Loan USD 2.889.574
Shanghai
SGL ACOTEC Singapore Pte. Short-term IC-Loan SGD 3.600.000 30.01.2004
Ltd.
SGL Brakes GmbH IC balances daily EUR 2.600.000 14.04.2004
due
SGL CARBON POLSKA S.A. SGL CARBON AG Short-term IC-Loan PLN SGL CARBON POLSKA S.A. 600.000 29.03.2004
SGL CARBON SGL CARBON AG IC balances daily EUR SGL CARBON GMBH & CO., 10.286.602
GMBH & CO., AUSTRIA due AUSTRIA
SGL CARBON GMBH SGL CARBON AG IC balances daily EUR SGL CARBON GMBH 39.000.000 19.07.2004
due
SGL CARBON SA, Belgium Short-term IC-Loan EUR 1.929.865
SGL CARBON SGL CARBON AG IC balances daily EUR SGL CARBON HOLDINGS B.V., 42.210.979
HOLDINGS B.V., due NETHERLANDS
NETHERLANDS
SGL CARBON SAS, SGL CARBON AG IC balances daily EUR SGL CARBON SAS, FRANCE 3.300.000 21.02.2004
FRANCE due
SGL TECHNIC S.A., France IC balances daily EUR 12.046
due
SGL CARBON SA, SPAIN SGL CARBON AG IC balances daily EUR SGL CARBON SA, SPAIN 424.984
due
SGL CARBON SPA, ITALY Radion Finanziaria SpA, IC balances daily EUR SGL CARBON SPA, ITALY 1.126.278
Italy due
SGL CARBON Specialities SpA, IC balances daily EUR 7.672.750
Italy due
SGL CARBON LLC., USA SGL CARBON AG IC balances daily USD SGL CARBON LLC., USA 3.678.199
due
Xxxxx Canada Inc., Kitchener IC balances daily USD 317.258
due
Hitco Carbon Composites Inc. IC balances daily USD 4.820.963
due
SGL FIBERS SGL CARBON LLC., USA IC balances daily USD SGL FIBERS AND COMPOSITES 1.496.378
AND COMPOSITES INC. due INC.
SGL TECHNIC INC. SGL CARBON LLC., USA IC balances daily USD SGL TECHNIC INC. 5.450.000 31.12.2004
due
M.G.P. LLC SGL CARBON LLC., USA IC balances daily USD M.G.P. LLC 1.226.247
due
CMS GRAPHITE LLC SGL CARBON LLC., USA IC balances daily USD CMS GRAPHITE LLC 2.398.203 31.03.2004
due
SGL ACOTEC INC. SGL CARBON LLC., USA IC balances daily USD SGL ACOTEC INC. 125.000 31.03.2004
due
184
SCHEDULE 17
EXISTING INDEBTEDNESS
AS OF JANUARY 28, 2004
BANK KIND OF LOAN CURR. BALANCE
SGL ACOTEC GMBH, SIERSHAHN
Deutsche Bank Luxembourg S.A. Syndicated loan EUR 15.000.000
Kreissparkasse Hildesheim long-term debt EUR 131.159
TOTAL: 15.131.159
SGL CARBON SA LA CORUNA
Deutsche Bank Luxembourg S.A. Syndicated loan EUR 5.000.000
SGL CARBON SPA MAILAND
Ministerio ICA long-term debt EUR 1.016.253
Deutsche Bank Luxembourg S.A. Syndicated loan EUR 20.000.000
TOTAL: 21.016.253
SGL TECHNOLOGIES, MEITINGEN
Deutsche Bank Luxembourg S.A. Syndicated loan EUR 25.000.000
SGL POLSKA S.A. RACIBORZ
BNP Paribas Poland Syndicated loan EUR 6.529.206
SGL BRAKES GMBH
Deutsche Bank Luxembourg S.A. Syndicated loan EUR 20.000.000
SGL CARBON BETEILIGUNG GMBH
Deutsche Bank Luxembourg S.A. Syndicated loan EUR 20.000.000
SGL CARBON AG
Deutsche Bank Luxembourg S.A. Syndicated loan EUR 135.000.000
Deutsche Bank Luxembourg S.A. Syndicated loan EUR 31.000.000
KFW-Loan Syndicated loan EUR 20.000.000
Convertible Bond long-term debt EUR 133.650.000
TOTAL: 319.650.000
SGL CARBON LLC, USA
Deutsche Bank Luxembourg S.A. Syndicated loan USD 88.340.000
SGL ACOTEC CHINA
Bank of Communication Short-term debt CNY 4.300.000
185
SCHEDULE 18
FORM OF INTERCREDITOR AGREEMENT
186
SIGNATURES
THE COMPANY
SGL CARBON AKTIENGESELLSCHAFT
BY:
ADDRESS: XXXXXXXXXXX. 000
X-00000 XXXXXXXXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
THE ORIGINAL BORROWERS
SGL CARBON AKTIENGESELLSCHAFT
BY:
ADDRESS: XXXXXXXXXXX. 000
X-00000 XXXXXXXXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
187
SGL CARBON, S.A.
BY:
ADDRESS: XXXX XXXXXXXXXX XX XX XXXXX-XXXX. 000
X-00000 LA CORUNA
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL CARBON S.P.A.
BY:
ADDRESS: PIAZZALE X. XXXXX # 5
I-20149 MILANO
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
THE ORIGINAL GUARANTORS
SGL CARBON AKTIENGESELLSCHAFT
BY:
ADDRESS: XXXXXXXXXXX. 000
X-00000 XXXXXXXXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
188
SGL CARBON GMBH
BY:
ADDRESS: XXXXXX-XXX-XXXXXXX-XXXXXXX 00
X-00000 XXXXXXXXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL CARBON BETEILIGUNG GMBH
BY:
ADDRESS: XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL ACOTEC GMBH
BY:
ADDRESS: BERGGARTEN 1
D-56427 SIERSHAHN
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
189
KCH BETEILIGUNGS GMBH
BY:
ADDRESS: BERGGARTEN 1
56427 SIERSHAHN
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL TECHNOLOGIES GMBH
BY:
ADDRESS: XXXXXX-XXX-XXXXXXX-XXXXXXX 00
00000 XXXXXXXXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL BRAKES GMBH
BY:
ADDRESS: XXXXXX-XXX-XXXXXXX-XXXXXXX 00
00000 XXXXXXXXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
190
SGL CARBON S.P.A.
BY:
ADDRESS: PIAZZALE X. XXXXX # 5
I-20149 MILANO
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL CARBON, S.A.
BY:
ADDRESS: XXXX XXXXXXXXXX XX XX XXXXX-XXXX. 000
X-00000 LA CORUNA
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL CARBON LLC.
BY:
ADDRESS: X.X.XXX 563960
XXXXXXXXX, XX 00000-0000, XXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
191
SGL CARBON GMBH
BY:
ADDRESS: A-4823 XXXXX AM HALLSTATTERSEE
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL CARBON GMBH & CO. KG
BY:
ADDRESS: A-4823 XXXXX AM HALLSTATTERSEE
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
RK CARBON INTERNATIONAL LTD.
BY:
ADDRESS: XXXX XX XXX, XXXX-XXXXX, XX00XX, INVERNESS, SCOTTLAND
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: x00 (0) 000-0000 - 235
FAX: x00 (0) 000-0000 - 231
192
RK TECHNOLOGIES INTERNATIONAL LTD.
BY:
ADDRESS: XXXX XX XXX, XXXX-XXXXX, XX00XX, INVERNESS, SCOTLAND
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL TECHNIC LTD.
BY:
ADDRESS: XXXX XX XXX, XXXX-XXXXX, XX00XX, INVERNESS, SCOTTLAND
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL CARBON S.A.S
BY:
ADDRESS: 000 XXXXX XXXXXXXX XXXXXX
X-00000 CHEDDE
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
193
SGL ACOTEC SAS
BY:
ADDRESS: 00 XXXXXX XXXXXX XXXXX
X-00000 XXXXX XXXXXX D' HERES
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
RADION FINANZIARIA S.P.A.
BY:
ADDRESS: PIAZZALE XXXXXXX XXXX # 5
I-20149 MILAN
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL CANADA INC.
BY:
ADDRESS: 000 XXXXXXXX XX.,
XXXXXXX, XXXXXX X0X 0X0, XXXXXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
194
SGL CARBON POLSKA S.A.
BY:
ADDRESS: XXXXXXXXXX 00
00-000 XXXXXXXX, XXXXXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
SGL TECHNIC INC.
BY:
ADDRESS: 0000 XXXX XXXXXXX XXXXX
XXXXXXXXX, XXXXX XXXXXXXX 00000, XXX
ATTENTION: XXXXXXXXX XXXXXXX
SGL CARBON AG
XXXXXXXXXXXXXXX 000
X-00000 XXXXXXXXX
PHONE: +49 (0) 000- 0000-000
FAX: +49 (0) 000- 0000-000
THE MANDATED LEAD ARRANGERS
BAYERISCHE LANDESBANK
BY:
ADDRESS: XXXXXXXX XXXXXXX 00
00000 XXXXXXX
ATTENTION: XX. XXXXXXXX XXXXXX/DEPT. 2530
XXXXXXXX.XXXXXXX@XXXXXXXX.XX
PHONE x00-00-0000-00000
FAX: x00-00-0000-00000
195
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
BY:
ADDRESS: CREDIT SUISSE FIRST BOSTON INTERNATIONAL
XXX XXXXX XXXXXX
XXXXXX X00 0XX
XXXXXX XXXXXXX
ATTENTION:
PHONE:
FAX:
DEUTSCHE BANK AG
BY:
ADDRESS: XXXXXXXXXXXX 00
00000 XXXXXXXXX XX MAIN
ATTENTION: XXXX-XXXXX XXXXXXX
GLOBAL CORPORATE FINANCE
PHONE: x00-00-000-00000
FAX: x00-00-000-00000
DRESDNER KLEINWORT XXXXXXXXXXX,
THE INVESTMENT BANKING DIVISION OF DRESDNER BANK AG
BY:
ADDRESS: XXXXXX-XXXXX-XXXXX 0
00000 XXXXXXXXX XX MAIN
ATTENTION: XXXXXX XXXXXXX
DIRECTOR, GLOBAL LOAN PRODUCT
XXXXXX.XXXXXXXX@XXXX.XXX
PHONE: x00-00-000-00000
FAX: x00-00-000-0000
196
THE FACILITY AGENT AND SECURITY AGENT
DEUTSCHE BANK LUXEMBOURG S.A.
BY:
ADDRESS: 0, XXXXXXXXX XXXXXX XXXXXXXX
X-0000 XXXXXXXXXX
ATTENTION: INTERNATIONAL LOANS & AGENCY SERVICES
XXXXX-XXXXX EWERHARDY/XXXXXX XXXXXXX
XXXXX-XXXXX.XXXXXXXXX@XX.XXX; XXXXXX.XXXXXXX@XX.XXX
PHONE: x000-00000-000/972
FAX: x000-00000-000
THE DOCUMENTATION AGENT
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
BY:
ADDRESS: CREDIT SUISSE FIRST BOSTON INTERNATIONAL
XXX XXXXX XXXXXX
XXXXXX X00 0XX
XXXXXX XXXXXXX
ATTENTION:
PHONE:
FAX:
THE ORIGINAL LENDERS
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
BY:
ADDRESS: CREDIT SUISSE FIRST BOSTON INTERNATIONAL
XXX XXXXX XXXXXX
XXXXXX X00 0XX
XXXXXX XXXXXXX
ATTENTION:
PHONE:
FAX:
000
XXXXXXXXXX XXXX- XXX XXXXXXXXXXX AG
BY:
ADDRESS: NL AUGSBURG
XXXXXXXXXX. 00
00000 XXXXXXXX
XXXXXXXXX: XXXXXX XXXXX
XXXXXX.XXXXXX@XXX.XX
PHONE: x00-000-000-0000
FAX: x00-000-000-0000
DEUTSCHE BANK LUXEMBOURG S.A.
BY:
ADDRESS: 0, XXXXXXXXX XXXXXX XXXXXXXX
X-0000 XXXXXXXXXX
ATTENTION: INTERNATIONAL LOANS & AGENCY SERVICES
XXXXX-XXXXX EWERHARDY/XXXXXX XXXXXXX
XXXXX-XXXXX.XXXXXXXXX@XX.XXX; XXXXXX.XXXXXXX@XX.XXX
PHONE: x000-00000-000/972
FAX: x000-00000-000
DRESDNER BANK AG IN MUNCHEN
BY:
ADDRESS: DRESDNER BANK AG IN MUNCHEN
XXXXXXXXXXXXXX 0
00000 XXXXXXX
ATTENTION: XXXXX XXXXXXX
XXXXX.XXXXXXX@XXXXXXXX-XXXX.XXX
PHONE: x00-00-0000-0000
FAX: x00-00-0000-0000
000
XXXXXXXXXX XXXXXXXXXX
BY:
ADDRESS: XXXXXXXX XXXXXXX 00
00000 XXXXXXX
ATTENTION: XX. XXXXXXXX XXXXXX/DEPT. 2530
XXXXXXXX.XXXXXXX@XXXXXXXX.XX
PHONE x00-00-0000-00000
FAX: x00-00-0000-00000
COMMERZBANK AKTIENGESELLSCHAFT
BY:
ADDRESS: XXXXXXXXXXX
00000 XXXXXXXXX XX XXXX
XXXXXXXXX: XXXXXXX XXXXXXX/XXXXXX XXXXXX, ZRA XX XX
XXX-XX0-XXX@XXXXXXXXXXX.XXX
PHONE: 000-000-00
FAX: 000-000-00000
DZ BANK AG DEUTSCHE ZENTRAL-GENOSSENSCHAFTSBANK
BY:
ADDRESS: XXXXX XXX XXXXXXXX
00000 FRANKFURT AM MAIN
ATTENTION: XXXXXXXXX XXXXX/XXXXXX TUTTENBERG
XXXXXXXXX.XXXXX@XXXXXX.XX/XXXXXXX.XXXXXXXXXXX@XXXXXX.XX
PHONE: x00-00-0000-0000/x00-00-0000-0000
FAX: x00-00-0000-0000/x00-00-0000-0000
KREDITANSTALT FUR WIEDERAUFBAU
BY:
ADDRESS: XXXXXXXXXXXXXXXXXXX 0-0
00000 XXXXXXXXX XX MAIN
ATTENTION: XXXXX XXXXX/ABT. X1 B3
XXXXX.XXXXX@XXX.XX
PHONE. x00-00-0000-0000
FAX: x00-00-0000-0000
199
