Exhibit 4.1
XXXXXXXX
CHANCE
PUNDER
Execution Copy
Dated 8 April 2003
GROHE BETEILIGUNGS GMBH & CO. KG
XXXXXXXXX XXXXX AG & CO. KG
XXXXXXXXX XXXXX GESCHAFTSFUHRUNGS XX
XXXXXXXX BANK LUXEMBOURG S.A.
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
XXXXXXX XXXXX INTERNATIONAL
and
XXXXXXX XXXXX CAPITAL CORPORATION
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SECOND AMENDMENT AND RESTATEMENT
AGREEMENT RELATING TO A
SECURED FACILITIES AGREEMENT
DATED 17 MARCH 2003 AS AMENDED BY AN
AMENDMENT AND RESTATEMENT AGREEMENT
DATED 2 APRIL 2003
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THIS AGREEMENT is made on 8 April 2003
BETWEEN
(1) GROHE BETEILIGUNGS GMBH & CO. KG as parent (the "COMPANY");
(2) XXXXXXXXX XXXXX AG & CO. KG;
(3) XXXXXXXXX XXXXX GESCHAFTSFUHRUNGS AG;
(4) DRESDNER BANK LUXEMBOURG S.A as agent (the "AGENT");
(5) CREDIT SUISSE FIRST BOSTON INTERNATIONAL as joint lead arranger and
original lender;
(6) XXXXXXX XXXXX INTERNATIONAL as joint lead arranger; and
(7) XXXXXXX XXXXX CAPITAL CORPORATION as original lender.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"EFFECTIVE DATE" means the date of this Agreement.
"ORIGINAL FACILITIES AGREEMENT" means the EUR 600,000,000 multicurrency
term and revolving facilities agreement dated 17 March 2003 as amended
by an amendment and restatement agreement dated 2 April 2003 between,
INTER ALIOS, Xxxxxxxxx Xxxxx AG & Co. KG and the Company as original
borrowers, the Company and Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG as
original guarantors, Xxxxxxx Xxxxx International and Credit Suisse
First Boston International as arrangers, and others.
"RESTATED AGREEMENT" means the Original Facilities Agreement, as
amended by this Agreement, the terms of which are set out in Schedule 1
(RESTATED AGREEMENT).
1.2 Incorporation of Defined Terms
1.2.1 Unless a contrary indication appears, a term used in the Original
Facilities Agreement has the same meaning as in this Agreement.
-2-
1.2.2 The principles of construction set out in the Original Facilities
Agreement shall have effect as if set out in this Agreement.
1.3 Clauses
1.3.1 In this Agreement any reference to a "Clause" or "Schedule" is, unless
the context otherwise requires, a reference to a Clause or Schedule of
this Agreement.
1.3.2 Clause and Schedule headings are for ease of reference only.
2. RESTATEMENT
With effect from the Effective Date the Original Facilities Agreement
shall be amended and restated so that it shall be read and construed
for all purposes as set out in Schedule 1 (RESTATED AGREEMENT.).
3. REPRESENTATIONS
The Company (on its own behalf and on behalf of the Obligors) makes the
Repeated Representations as if each reference in those representations
to "this Agreement" or "the Finance Documents" includes a reference to
(a) this Agreement and (b) the Restated Agreement.
4. CONTINUITY AND FURTHER ASSURANCE
4.1 Continuing obligations
The provisions of the Original Facilities Agreement shall, save as
amended in this Agreement, continue in full force and effect.
4.2 Further assurance
Each of the Obligors shall, at the request of the Agent and at their
own expense, do all such acts and things necessary or desirable to give
effect to the amendments effected or to be effected pursuant to this
Agreement.
5. FEES, COSTS AND EXPENSES
5.1 Transaction Expenses
The Company shall, from time to time on demand of the Agent, reimburse
each of the Finance Parties (on a full indemnity basis whether or not
any of the Facilities are drawn-down or utilised) for all reasonable
costs and expenses (including reasonable legal fees) together with any
VAT thereon incurred by it in connection with the negotiation,
preparation and execution of this Agreement.
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5.2 Preservation and Enforcement of Rights
The Company shall, within three Business Days of demand, reimburse each
of the Finance Parties for all costs and expenses (including legal
fees) on a full indemnity basis together with any VAT thereon incurred
in connection with the preservation and/or enforcement of any of the
rights of the Finance Parties under this Agreement and any document
referred to in this Agreement.
6. MISCELLANEOUS
The provisions of clause 36 (PARTIAL INVALIDITY), clause 37 (REMEDIES
AND WAIVERS), clause 38 (AMENDMENTS AND WAIVERS), clause 39
(COUNTERPARTS), clause 40 (GOVERNING LAW) and clause 41 (ENFORCEMENT)
of the Original Facilities Agreement shall be incorporated into this
Agreement as if set out in full in this Agreement and as if references
in those clauses to "this Agreement" or "the Finance Documents" are
references to this Agreement.
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SCHEDULE 1
RESTATED AGREEMENT
SIGNATURES
THE COMPANY
Grohe Beteiligungs GmbH & Co. KG
By:
Address: ? Xxxxxxxxx Xxxxx AG & Co. XX
Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: 0000 (0) 0000 00 0000
Attention: Xxxxxx Xxxxxxxx
THE ORIGINAL BORROWERS
Grohe Beteiligungs GmbH & Co. KG
By:
Address: c/o Xxxxxxxxx Xxxxx AG & Co. XX
Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: 0000 (0) 0000 00 0000
Attention: Xxxxxx Xxxxxxxx
Xxxxxxxxx Xxxxx AG & Co. KG
By:
Address: Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: 0000 (0) 0000 00 0000
Attention: Xxxxxx Xxxxxxxx
THE ORIGINAL GUARANTORS
Grohe Beteiligungs GmbH & Co. KG
By:
Address: ? Xxxxxxxxx Xxxxx AG & Co. XX
Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: 0000 (0) 0000 00 0000
Attention: Xxxxxx Xxxxxxxx
Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG
By:
Address: ? Xxxxxxxxx Xxxxx AG & Co. XX
Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: 0000 (0) 0000 00 0000
Attention: Xxxxxx Xxxxxxxx
THE ARRANGERS
Credit Suisse First Boston International
By:
Address: Xxx Xxxxx Xxxxxx
Xxxxxx X00 0XX, XX
Fax: 0000 000 000 0000
Attention: Xxxxx Xxxxx
Xxxxxxx Xxxxx International
By:
Address: Xxxxxxx Xxxxx Financial Centre
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX, XX
Fax: 00 00 000 000 0000
Attention: Xxx Xxxxxxx
THE AGENT
Dresdner Bank Luxembourg S.A.
By:
Address: 00, Xxx xx Xxxxxx-xxx-Xxxxxx
X-0000 Xxxxxxxxxx
Fax: For Agency Matters: 00352 4760 3222
For Credit Administration Matters: 00352 4760 565
Attention: For Agency Matters: Xxxxxxxxx Xxxxxxxxx
For Credit Administration Matters: Xxxxxx Xxxxxxxxx
THE SECURITY AGENT
Dresdner Bank Luxembourg S.A.
By:
Address: 00, Xxx xx Xxxxxx-xxx-Xxxxxx
X-0000 Xxxxxxxxxx
Fax: 00352 4760 3222
Attention: Xxxxxxxxx Xxxxxxxxx
THE ORIGINAL LENDERS
Credit Suisse First Boston International
By:
Address: Xxx Xxxxx Xxxxxx
Xxxxxx X00 0XX, XX
Fax: For Administrative Matters: 0044 207 888 8398
For Credit Matters: 0044 207 888 8386
Attention: For Administrative Matters: Xxxxx Xxxxxxxx
For Credit Matters: Xxxxxx Xx-Xxxxx
Xxxxxxx Xxxxx Capital Corporation
By:
Address: 4 World Financial Centre
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000, XXX
Fax: 000 000 000 0000
Attention: Xxxxxxx Xxxxx
XXXXXXXX
CHANCE ANNEX I
PUNDER
Dated 17 March 2003
EUR 600,000,000
SECURED FACILITIES AGREEMENT
for
GROHE BETEILIGUNGS GMBH & CO. KG
and
XXXXXXXXX XXXXX AG & CO. KG
arranged by
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
and
XXXXXXX XXXXX INTERNATIONAL
with
DRESDNER BANK LUXEMBOURG S.A.
acting as Agent
and
DRESDNER BANK LUXEMBOURG S.A.
acting as Security Agent
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MULTICURRENCY TERM AND REVOLVING FACILITIES AGREEMENT
AS AMENDED AND RESTATED BY AN AMENDMENT AND RESTATEMENT AGREEMENT DATED 5
APRIL 2003
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CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation................................................................1
2. The Facilities...............................................................................35
3. Purpose......................................................................................36
4. Conditions of Utilisation....................................................................37
5. Utilisation..................................................................................39
6. Letters of Credit and Bank Guarantees........................................................41
7. Optional Currencies..........................................................................45
8. Ancillary Facilities.........................................................................47
9. Repayment....................................................................................51
10. Prepayment and Cancellation..................................................................53
11. Interest.....................................................................................62
12. Interest Periods.............................................................................64
13. Changes to the Calculation of Interest.......................................................66
14. Fees.........................................................................................68
15. Tax Gross Up and Indemnities.................................................................70
16. Increased Costs..............................................................................72
17. Other Indemnities............................................................................73
18. Mitigation by the Lenders....................................................................75
19. Costs and Expenses...........................................................................76
20. Guarantee on First Demand (GARANTIE AUF ERSTES ANFORDERN)....................................77
21. Representations..............................................................................80
22. Information Undertakings.....................................................................85
23. Financial Covenants..........................................................................92
24. General Undertakings........................................................................103
25. Events of Default...........................................................................114
26. Changes to the Lenders......................................................................121
27. Changes to the Obligors.....................................................................125
28. Role of the Agent and the Arrangers.........................................................128
29. The Lenders and the Fronting Bank...........................................................134
30. Conduct of Business by the Finance Parties..................................................136
31. Sharing among the Finance Parties...........................................................136
32. Payment Mechanics...........................................................................139
33. Set-Off.....................................................................................142
34. Notices.....................................................................................142
35. Calculations and Certificates...............................................................145
36. Partial Invalidity..........................................................................145
37. Remedies and Waivers........................................................................145
38. Amendments and Waivers......................................................................145
39. Counterparts................................................................................147
40. Governing Law...............................................................................148
41. Enforcement.................................................................................148
SCHEDULE 1 The Original Parties......................................................................150
Part I The Original Obligors.........................................................................150
Part II The Original Lenders.........................................................................151
SCHEDULE 2 Conditions Precedent......................................................................152
Part I Conditions Precedent to Initial Utilisation...................................................152
Part II Conditions Precedent to Shareholder Loan Refinancing.........................................157
Part III Conditions Precedent required to be delivered by an Additional Obligor......................158
SCHEDULE 3 Requests..................................................................................160
Part I Utilisation Request...........................................................................160
Part II Selection Notice.............................................................................162
SCHEDULE 4 Mandatory Cost Formulae...................................................................164
SCHEDULE 5 Form Of Transfer Certificates.............................................................168
SCHEDULE 6 Form of Accession Letter..................................................................170
SCHEDULE 7 Form of Resignation Letter................................................................171
SCHEDULE 8 Form of Compliance Certificate............................................................172
SCHEDULE 9 Existing Security.........................................................................173
Part I...........................................................................................173
Part II..........................................................................................178
SCHEDULE 10 Timetables...............................................................................180
SCHEDULE 11 Form of Letter of Credit.................................................................182
SCHEDULE 12 Form of Bank Guarantee...................................................................185
SCHEDULE 13 Form of Confidentiality Undertaking......................................................186
SCHEDULE 14 Borrower Exit Transfer Certificate.......................................................190
SCHEDULE 15 List of Current Investors................................................................191
THIS AGREEMENT is dated 17 March 2003 and made
BETWEEN:
(1) GROHE BETEILIGUNGS GMBH & CO. KG as parent (the "COMPANY");
(2) XXXXXXXXX XXXXX AG & CO. KG ("XXXXXXXXX XXXXX") and GROHE BETEILIGUNGS
GMBH & CO. KG ("GROHE BETEILIGUNGS") as original borrowers (together
the "ORIGINAL BORROWERS");
(3) GROHE BETEILIGUNGS GMBH & CO. KG and XXXXXXXXX XXXXX GESCHAFTSFUHRUNGS
AG as guarantors (the "ORIGINAL GUARANTORS");
(4) CREDIT SUISSE FIRST BOSTON INTERNATIONAL and XXXXXXX XXXXX
INTERNATIONAL as joint lead arrangers (the "ARRANGERS");
(5) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (THE
ORIGINAL PARTIES) as lenders (the "ORIGINAL LENDERS");
(6) DRESDNER BANK LUXEMBOURG S.A. as agent of the other Finance Parties
(the "AGENT"); and
(7) DRESDNER BANK LUXEMBOURG S.A. as security agent for the Finance Parties
(the "SECURITY Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a document substantially in the form set out
in Schedule 6 (FORM OF ACCESSION LETTER).
"ADDITIONAL BORROWER" means a company which becomes an Additional
Borrower in accordance with Clause 27 (CHANGES TO THE OBLIGORS).
"ADDITIONAL COST RATE" has the meaning given to it in Schedule 4
(MANDATORY COST FORMULAE).
"ADDITIONAL GUARANTOR" means a company which becomes an Additional
Guarantor in accordance with Clause 27 (CHANGES TO THE OBLIGORS).
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"ADDITIONAL OBLIGOR" means an Additional Borrower or an Additional
Guarantor.
"AFFILIATE" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"AGENT'S SPOT RATE OF EXCHANGE" means the Agent's spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the
Frankfurt am Main foreign exchange market at or about 11:00 a.m. on a
particular day.
"ANCILLARY BANK" means each Lender which becomes an Ancillary Bank by
operation of Clause 8 (ANCILLARY FACILITIES).
"ANCILLARY COMMITMENT" means, in relation to an Ancillary Bank, the
maximum amount from time to time of the Ancillary Facilities to be made
available by that Ancillary Bank which has been authorised as such
under Clause 8 (ANCILLARY FACILITIES) to the extent not cancelled or
otherwise reduced under this Agreement.
"ANCILLARY FACILITY" means the ancillary facility made available under
this agreement as described in Clause 2 (THE FACILITIES).
"ANCILLARY OUTSTANDINGS" means, at any time, the aggregate equivalent
Base Currency Amount of all banking arrangements of the following type
under each Ancillary Facility then in force:
(a) all amounts of principal then outstanding under any overdraft
facilities;
(b) the maximum face amount (excluding amounts in respect of
interest) of all guarantees, bonds and letters of credit then
outstanding under any guarantee, bonding or letter of credit
facilities; and
(c) in respect of any other facility (including any foreign
exchange facility) or financial accommodation such other
amount as the relevant Ancillary Bank may (acting in
consultation with the Agent) determine fairly represents the
aggregate exposure at such time of the Ancillary Bank
providing the same.
"APPLICABLE MARGIN" means for Facility A1, Facility A2 and the
Revolving Facility 2.25 per cent. per annum and for Facility B 2.75 per
cent. per annum, or, for any Interest Period commencing after the date
which is 12 Months after the date of this Agreement, that rate per
annum which may be in effect in accordance with Clause 11.3 (MARGIN
RATCHET) PROVIDED THAT for any Interest Period commencing at least 5
Business Days after receipt by the Agent of
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quarterly accounts of the Grohe Holding Group in accordance with Clause
22.1(b) and the Compliance Certificate pursuant to Clause 22.2 for the
Relevant Period ending on the first Quarter Date after the occurrence
of the Qualifying Public Offering, the Applicable Margin shall be
reduced by 0.25 per cent. per annum in each case, if as of such Quarter
Date (taking into account the actual Net IPO Proceeds received by Grohe
Holding, to the extent not used to repay Indebtedness for Borrowed
Money of the Grohe Holding Group) the Total Debt Leverage of the Grohe
Holding Group is less than 2.50:1.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABILITY PERIOD" means:
(a) in relation to the Term Facilities the period from and
including the date of this Agreement to and including the date
which is two Months following the date of this Agreement; and
(b) in relation to the Revolving Facility, the period from and
including the date of this Agreement to and including the date
which is one Month prior to the Termination Date.
"AVAILABLE COMMITMENT" means, in relation to a Lender at any time the
aggregate of its Available Facility A1 Commitment, Available Facility
A2 Commitment, Available Facility B Commitment and Available Revolving
Commitment.
"AVAILABLE FACILITY A1 COMMITMENT" means a Lender's Commitment under
that Facility minus:
(a) the Base Currency Amount of its participation in any
outstanding Loans under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency
Amount of its participation in any Loans that are due to be
made under that Facility on or before the proposed Utilisation
Date.
"AVAILABLE FACILITY A2 COMMITMENT" means a Lender's Commitment under
that Facility minus:
(a) the amount of its participation in any outstanding Loans under
that Facility; and
(b) in relation to any proposed Utilisation, the amount of its
participation in any Loans that are due to be made under that
Facility on or before the proposed Utilisation Date.
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"AVAILABLE FACILITY B COMMITMENT" means a Lender's Commitment under
that Facility minus:
(a) the amount of its participation in any outstanding Loans under
that Facility; and
(b) in relation to any proposed Utilisation, the amount of its
participation in any Loans that are due to be made under that
Facility 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.
"AVAILABLE REVOLVING COMMITMENT" means a Lender's Commitment under that
Facility minus:
(a) the Base Currency Amount of its participation in any
outstanding Revolving Loans, Letters of Credit or Bank
Guarantees under that Facility;
(b) in relation to any proposed Utilisation, the amount of its
participation in any Revolving Loans, Letters of Credit or
Bank Guarantees that are due to be made or issued under that
Facility on or before the proposed Utilisation Date, other
than that Lender's participation in any Revolving Loans,
Letters of Credit and Bank Guarantees that are due to be
repaid, prepaid or to expire on or before the proposed
Utilisation Date.
"AVERAGE LIFE" means the quotient obtained by dividing (1) the sum of
the products of the number of years from the date of determination to
the dates of each successive principal payment of such indebtedness
multiplied by the amount of such payment by (2) the sum of all such
payments.
"BANK GUARANTEE" means a bank guarantee issued or to be issued by a
Fronting Bank pursuant to Clause 5 (UTILISATION) outstanding in the
form set out in Schedule 12 (FORM OF BANK Guarantees) or in such other
form requested by a Borrower which is acceptable to the Agent and a
Fronting Bank.
"BASE CURRENCY" means EUR.
"BASE CURRENCY AMOUNT" means, in relation to a Loan, Letter of Credit
or Bank Guarantee, the amount specified in the Utilisation Request
delivered by a Borrower for that Loan, Letter of Credit or Bank
Guarantee, or if the amount requested is not denominated in the Base
Currency, that amount converted into the Base Currency at the Agent's
Spot Rate of Exchange on the date which is the date falling three
Business Days before the Utilisation Date or, if later, on the
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date the Agent receives the Utilisation Request, adjusted to reflect
any repayment (other than, in relation to Facility A1, a repayment
arising from a change in currency), prepayment, consolidation or
division of a Loan, Letter of Credit or Bank Guarantee.
"BC FUNDS" means BC European Capital VI-1, BC European Capital VI-2, BC
European Capital VI-3, BC European Capital VI-4, BC European Capital
VI-5, BC European Capital VI-6, BC European Capital VI-7, BC European
Capital VI-8, BC European Capital VI-9, BC European Capital VI-10, BC
European Capital VI-11, BC European Capital VI-12, BC European Capital
VI-14, BC European Capital V-1, BC European Capital V-2, BC European
Capital V-3, BC European Capital V-4, BC European Capital V-5, BC
European Capital V-6, any BC European Capital VII fund, in each case,
organized under the laws of Guernsey, Channel Islands and legally
represented by CIE Management II Ltd and any other fund advised by BC
Partners Limited.
"BORROWER" means an Original Borrower or an Additional Borrower unless
it has ceased to be a Borrower in accordance with Clause 27 (CHANGES TO
THE OBLIGORS).
"BORROWER EXIT DATE" means the date the Agent (after consultation with
the Company) confirms to the Company and the other Finance Parties as
the Borrower Exit Date for the purpose of the Finance Documents (and in
particular Clause 27.4 (TRANSFER ON BORROWER EXIT DATE)) PROVIDED THAT
the Agent may not notify such other Finance Parties of such date unless
the following has been satisfied:
(i) Xxxxxxxxx Xxxxx has become a Borrower under a Facility A2 Loan
in accordance with Clause 27.2 (ADDITIONAL BORROWERS); and
(ii) the Agent has received a Borrower Exit Transfer Certificate
executed by Grohe Beteiligungs and Xxxxxxxxx Xxxxx in form and
substance satisfactory to it.
"BORROWER EXIT TRANSFER CERTIFICATE" means a certificate executed by
Grohe Beteiligungs as exiting Borrower and Xxxxxxxxx Xxxxx as new
Borrower and the Agent in substantially the form set out in Schedule 14
(BORROWER EXIT TRANSFER CERTIFICATE).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest which a Lender should have received for the
period from the date of receipt of all or any part of its
participation in a Loan or Unpaid Sum to the last day of the
current Interest Period in respect of that Loan
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or Unpaid Sum, had the principal amount or Unpaid Sum received
been paid on the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by
placing an amount equal to the principal amount or Unpaid Sum
received by it on deposit with a leading bank in the Relevant
Interbank Market for a period starting on the Business Day
following receipt or recovery and ending on the last day of
the current Interest Period.
"BUDGET" means the profit and loss account, balance sheet and cash flow
statement in agreed terms for the period beginning on 1 January 2003
and ending on 31 December 2003 to be delivered by the Company to the
Agent pursuant to Clause 4.1 (INITIAL CONDITIONS PRECEDENT) and
thereafter any budget to be delivered by the Company to the Agent
pursuant to Clause 22.6 (BUDGET).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London, Frankfurt/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.
"BUSINESS PLAN" means the financial model including profit and loss,
balance sheet and cash flow projections in agreed form relating to the
Grohe Holding Group for the period beginning 31 December 2002 and
ending 31 December 2009.
"CASH COLLATERAL" means, in relation to any Letter of Credit or L/C
Proportion of a Letter of Credit or any Bank Guarantee or Guarantee
Proportion of a Bank Guarantee, a deposit in an interest-bearing
account or accounts as the Agent may specify, that deposit and account
to be secured in favour of, and on terms and conditions acceptable to,
the Security Agent.
"CHARGED PROPERTY" means all the assets of a member of the Grohe
Holding Group which from time to time are, or are expressed to be, the
subject of the Transaction Security.
"CHANGE OF CONTROL" means:
(a) prior to the occurrence of the Qualifying Public Offering or
Listing of Grohe Holding or a company of which Grohe Holding
is a wholly-owned Subsidiary, the Current Investors as a group
ceasing to hold (directly or
-6-
indirectly) at least 51 per cent. of the share capital or the
voting rights in Grohe Holding; or
(b) following a Listing or the occurrence of the Qualifying Public
Offering of Grohe Holding or a company of which Grohe Holding
is a wholly-owned Subsidiary, a person (or a group of persons
acting in concert (as defined in Section 2 (5) of the German
Takeover Code (WERTPAPIERERWERBS- UND UBERNAHMEGESETZ)) owning
at least 35 per cent. of the voting rights in Grohe Holding or
otherwise taking effective control over Grohe Holding and the
Current Investors holding a percentage of the voting rights in
Grohe Holding which is less than the percentage held by such
person or group of persons.
"COMMITMENT" means a Facility A1 Commitment, a Facility A2 Commitment,
a Facility B Commitment or a Revolving Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 8 (FORM OF COMPLIANCE CERTIFICATE).
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in the form set out in Schedule 13 (FORM OF
CONFIDENTIALITY UNDERTAKING) or any other form agreed between the
Company and the Agent.
"CONSENT SOLICITATION STATEMENT" means the consent solicitation
statement of Grohe Holding dated 6 March 2003 relating to the Senior
Notes;
"CURRENT INVESTORS" means BC Funds, Teabar Capital Corporation, and
Capital d'Amerique CDPQ, Inc. and any other shareholder of Grohe
Holding as of the date of this Agreement and as set out in Schedule 15
(LIST OF CURRENT INVESTORS).
"DEFAULT" means an Event of Default or any event or circumstance
specified in Clause 25 (EVENTS OF DEFAULT) which would (with the expiry
of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by
any person in respect of any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in
which any member of the Group conducts business which relates to the
pollution or protection of the environment or harm to or the protection
of human health or the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval
and other authorisation and the filing of any notification, report or
assessment
-7-
required under any Environmental Law for the operation of the business
of any member of the Group conducted on or from the properties owned or
used by the relevant member of the Group.
"ESCROW ACCOUNT" means the Escrow Account as defined in the Escrow
Account Agreement.
"ESCROW ACCOUNT AGREEMENT" means the escrow account agreement dated on
or about the date thereof between the Original Borrowers, the Agent and
HypoVereinsbank Luxembourg Societe Anonyme as escrow agent.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Interest Period of
that Loan) the arithmetic mean of the rates (rounded upwards
to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the
European interbank market;
as of the Specified Time on the Quotation Day for the offering of
deposits in euro for a period comparable to the Interest Period of the
relevant Loan.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 25 (EVENTS OF DEFAULT).
"EXISTING SENIOR CREDIT AGREEMENT" means the facility agreement dated
15 July 1999, as last amended by an amendment agreement dated 27 August
2002, entered into between, INTER ALIA, Xxxxxxxxx Xxxxx and Grohe
Beteiligungs and Dresdner Bank Luxembourg S.A. as facility agent and
Dresdner Bank AG as lead arranger and Bayerische Hypo- und Vereinsbank
AG as co-arranger, as amended and novated.
"EXPIRY DATE" means, in relation to any Letter of Credit or Bank
Guarantee, the date on which the maximum aggregate liability under that
Letter of Credit or Bank Guarantee is to be reduced to zero.
"FACILITY" means a Term Facility or the Revolving Facility (including
without limitation any Ancillary Facility).
"FACILITY A1" means the EUR 180,000,000 multicurrency term loan
facility made available under this Agreement as described in Clause 2
(THE FACILITIES).
-8-
"FACILITY A1 COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "FACILITY A1
COMMITMENT" in Part II of Schedule 1 (THE ORIGINAL PARTIES)
and the amount of any other Facility A1 Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Facility A1 Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY A1 LOAN" means a loan made or to be made under Facility A1 or
the principal amount outstanding for the time being of that loan.
"FACILITY A2" means the EUR 270,000,000 term loan facility made
available under this Agreement as described in Clause 2 (THE
FACILITIES).
"FACILITY A2 COMMITMENT" means:
(a) in relation to an Original Lender, the amount set opposite its
name under the heading "FACILITY A2 COMMITMENT" in Part II of
Schedule 1 (THE ORIGINAL PARTIES) and the amount of any other
Facility A2 Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount of any Facility A2
Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"FACILITY A2 LOAN" means a loan made or to be made under Facility A2 or
the principal amount outstanding for the time being of that loan.
"FACILITY B" means the EUR 100,000,000 term loan facility made
available under this Agreement as described in Clause 2 (THE
FACILITIES).
"FACILITY B COMMITMENT" means:
(a) in relation to an Original Lender, the amount set opposite its
name under the heading "FACILITY B COMMITMENT" in Part II of
Schedule 1 (THE ORIGINAL PARTIES) and the amount of any other
Facility B Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount of any Facility B
Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
-9-
"FACILITY B LOAN" means an advance made or to be made under Facility B
or the principal amount outstanding for the time being of that advance.
"FACILITY OFFICE" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"FEE LETTER" means any letter or letters dated 6 March 2003 and/or on
or about the date hereof between the Arrangers and the Company and/or
Xxxxxxxxx Xxxxx (or the Agent and/or the Security Agent and the Company
and/or Xxxxxxxxx Xxxxx) setting out any of the fees referred to in
Clause 14 (FEES).
"FINANCE DOCUMENT" means this Agreement, the Security Documents, any
Fee Letter, any Accession Letter, any Resignation Letter, any Letter of
Credit, any Bank Guarantee, any document entered into in connection
with any Ancillary Facility, the Hedging Agreements, the Intercreditor
Agreement, the Syndication Letter and any other document designated as
such by the Agent and the Company.
"FINANCE LEASE" means a lease contract where the leased asset and
liability, in accordance with GAAP in the Relevant Jurisdiction, is
accounted for in the balance sheet of the lessee.
"FINANCE PARTIES" means the Agent, any Arranger, the Security Agent,
any Lender (including an Ancillary Bank), the Hedge Counterparties and
any Fronting Bank.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or
the issue of bonds, notes, debentures, loan stock or any
similar instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would be treated as a Finance Lease;
(e) receivables sold or discounted (other than any receivables to
the extent they are sold on a non-recourse basis);
(f) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when
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calculating the value of any derivative transaction, only the
marked to market value shall be taken into account);
(g) 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;
(h) any amount raised by the issue of redeemable shares
(excluding, for clarification purposes, any amount raised by
the repurchase of own shares (RUCKKAUF EIGENER AKTIEN));
(i) any amount of any liability under an advance or deferred
purchase agreement if one of the primary reasons behind the
entry into this agreement is to raise finance;
(j) any amount raised under any other transaction (including any
forward sale or purchase agreement) not referred to under
paragraphs (a) to (i) above having the commercial effect of a
borrowing; and
(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.
"XXXXXXXXX XXXXX MANDATORY PREPAYMENT ACCOUNT" means the
interest-bearing account of Xxxxxxxxx Xxxxx held in the Federal
Republic of Germany with Dresdner Bank AG which is pledged in favour of
the Finance Parties and which is identified in a letter from the
Company to the Agent and is designated as a Mandatory Prepayment
Account by the Company and the Agent (as the same may be redesignated,
substituted or replaced from time to time) from which no withdrawals
may be made by Xxxxxxxxx Xxxxx.
"FRONTING BANK" means any Lender which has notified the Agent that it
has agreed to a Borrower's request to be a fronting bank for a
particular Letter of Credit or Bank Guarantee pursuant to the terms of
this Agreement.
"GAAP" means generally accepted accounting principles in the Relevant
Jurisdiction in effect from time to time and consistently applied
PROVIDED THAT in respect of any consolidated financial statements of
the Grohe Holding Group "GAAP" means generally accepted accounting
principles in the Federal Republic of Germany from time to time and
consistently applied.
"GROHE BETEILIGUNGS MANDATORY PREPAYMENT ACCOUNT" means the
interest-bearing account of Grohe Beteiligungs held in the Federal
Republic of Germany with Dresdner Bank AG which is pledged in favour of
the Finance Parties and which is identified in a letter from Grohe
Beteiligungs to the Agent
-11-
and is designated as a Mandatory Prepayment Account by Grohe
Beteiligungs and the Agent (as the same may be redesignated,
substituted or replaced from time to time) from which no withdrawals
may be made by Grohe Beteiligungs.
"GROHE HOLDING" means Grohe Holding GmbH.
"GROHE HOLDING GROUP" means Grohe Holding, Grohe Consult GmbH and any
member of the Group from time to time but excluding any Unrestricted
Company.
"GROHE HOLDING SHAREHOLDER LOANS" means the loans made available by any
shareholder of Grohe Holding to Grohe Holding pursuant to the Grohe
Holding Shareholder Loan Agreements.
"GROHE HOLDING SHAREHOLDER LOAN AGREEMENTS" means the loan agreements
dated 27 July 1999 and entered into between Grohe Holding and certain
of its shareholders.
"GROHE HOLDING SUBORDINATION AGREEMENT" means the subordination
agreement dated on or about the date hereof and entered into between
Grohe Holding, the Security Agent and the lenders under the Grohe
Holding Shareholder Loans.
"GROUP" means the Company and its Subsidiaries from time to time but
excluding any Unrestricted Company.
"GROUP STRUCTURE CHART" means the group structure chart showing:
(a) all members of the Grohe Holding Group, including current name
and company registration number, its jurisdiction of
incorporation and/or establishment and a list of shareholders;
(b) any person in which any member of the Grohe Holding Group
holds shares in its issued share capital or equivalent
ownership interest of such person.
"GUARANTEE AMOUNT" means:
(a) each sum paid or due and payable by a Fronting Bank to the
beneficiary of a Bank Guarantee pursuant to the terms of that
Bank Guarantee; and
(b) all liabilities (including, without limitation, any costs
incurred in funding any amount which falls due from a Fronting
Bank under a Bank Guarantee), claims, losses and expenses
which that Fronting Bank incurs or sustains in connection with
a Bank Guarantee,
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in each case which has not been reimbursed pursuant to Clause 6.6
(BORROWER'S INDEMNITY TO THE FRONTING BANK).
"GUARANTEE COMMISSION RATE" means, from time to time, a guarantee
commission equal to the Applicable Margin for a Revolving Loan at that
time.
"GUARANTEE PROPORTION" means in respect of any Bank Guarantee and save
as otherwise provided in this Agreement, the proportion (expressed as a
percentage) born by that Lender's Available Revolving Commitment to the
Available Revolving Facility immediately prior to the issue of that
Bank Guarantee.
"GUARANTOR" means an Original Guarantor or an Additional Guarantor.
"HEDGE COUNTERPARTY" means Dresdner Bank AG and any Lender or an
Affiliate of a Lender which has become a party to the Intercreditor
Agreement as Hedge Counterparty.
"HEDGING AGREEMENTS" means each of the agreements entered into between
the Group member(s) approved by the Agent and a Hedge Counterparty for
the purpose of hedging interest rate liabilities in accordance with
Clause 24.22 (HEDGING).
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"INDEBTEDNESS FOR BORROWED MONEY" means Financial Indebtedness save for
any indebtedness for as in respect of paragraphs (f) and (g) of the
definition of "FINANCIAL INDEBTEDNESS".
"INDENTURE" means the indenture dated 13 November 2000 pursuant to
which Grohe Holding issued certain notes, as amended or novated.
"INFORMATION MEMORANDUM" means the document in the form approved by the
Company concerning the Grohe Holding Group which, at the Company's
request and on its behalf, will be prepared in relation to this
transaction and distributed by the Arrangers to selected financial
institutions.
"INITIAL TERM LOAN" means the initial Facility A1 Loan and initial
Facility A2 Loan made or to be made in an amount equal to the amounts
due under the Refinanced Facilities.
"INTELLECTUAL PROPERTY" means any patents, trade marks, service marks,
designs, business names, copyrights, design rights, moral rights,
inventions, confidential information, know-how and other intellectual
property rights and interests,
-13-
whether registered or unregistered, and the benefit of all applications
and rights to use such assets of each member of the Group.
"INTERCREDITOR AGREEMENT" means the security trust and intercreditor
agreement dated on or about the date hereof and entered into between,
INTER ALIA, the Obligors and the Finance Parties.
"INTEREST PERIOD" means, in relation to a Loan, each period determined
in accordance with Clause 12 (INTEREST PERIODS) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 11.4
(DEFAULT INTEREST).
"L/C AMOUNT" means:
(a) each sum paid or due and payable by a Fronting Bank to the
beneficiary of a Letter of Credit pursuant to the terms of
that Letter of Credit; and
(b) all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from a
Fronting Bank under a Letter of Credit), claims, losses and
expenses which a Fronting Bank incurs or sustains in
connection with a Letter of Credit,
in each case which has not been reimbursed pursuant to Clause 6.6
(BORROWERS' INDEMNITY TO THE FRONTING BANK).
"L/C COMMISSION RATE" means, from time to time, a letter of credit
commission equal to the Applicable Revolving Margin at that time.
"L/C PROPORTION" means, in relation to a Lender in respect of any
Letter of Credit and save as otherwise provided in this Agreement, the
proportion (expressed as a percentage) borne by that Lender's Available
Revolving Commitment to the Available Revolving Facility immediately
prior to the issue of that Letter of Credit.
"LEGAL OPINIONS" means the legal opinions delivered to the Agent
pursuant to Schedule 2 (CONDITIONS PRECEDENT).
"LENDER" means:
(a) any Original Lender; and
(b) any bank, financial institution, trust, fund or other entity
which has become a Party in accordance with Clause 26 (CHANGES
TO THE LENDERS),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
-14-
"LETTER OF CREDIT" means a Letter of Credit issued or to be issued by a
Fronting Bank pursuant to Clause 5 (UTILISATION) substantially in the
form set out in Schedule 11 (FORM OF LETTER OF CREDIT) or in such other
form requested by a Borrower which is acceptable to the Agent and a
Fronting Bank.
"LIBOR" means, in relation to any Loan in an Optional Currency:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at
its request quoted by the Reference Banks to leading banks in
the 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.
"LISTING" means the admission to trading of all or any part of the
share capital of a company on any recognised investment or securities
exchange in any country.
"LMA" means the Loan Market Association.
"LOAN" means a Facility A1 Loan, a Facility A2 Loan, a Facility B Loan
or a Revolving Loan.
"MAJORITY LENDERS" means:
(a) if there are no Loans, Letters of Credit or Bank Guarantees
then outstanding, a Lender or Lenders whose Commitments
aggregate more than 51 per cent. of the Total Commitments (or,
if the Total Commitments have been reduced to zero, aggregated
more than 51 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 Loans, Letters of Credit or Bank Guarantees then
outstanding aggregate more than 51 per cent. of all the Loans,
Letters of Credit and Bank Guarantees then outstanding.
"MANDATORY COST" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (MANDATORY COST FORMULAE).
"MANDATORY PREPAYMENT ACCOUNT" means the Xxxxxxxxx Xxxxx Mandatory
Prepayment Account and/or the Grohe Beteiligungs Mandatory Prepayment
Account, as the case may be.
-15-
"MATERIAL ADVERSE EFFECT" means:
(a) a material adverse effect on the business, assets or financial
condition of the Group taken as a whole; or
(b) a material adverse effect on the ability of an Obligor to
perform its payment obligations under the Finance Documents;
or
(c) a material adverse effect on the ability of Grohe Beteiligungs
to meet its obligations under Clause 23 (FINANCIAL COVENANTS);
or
(d) the validity or enforceability of the Finance Documents or the
rights or remedies of any Finance Party under the Finance
Documents is materially adversely affected.
"MATERIAL COMPANY" means, at any time, a Subsidiary of the Company
which is not an Unrestricted Company and which:
(a) is listed in Schedule 1 Part I (ORIGINAL PARTIES); or
(b) Grohe International GmbH, Grohe Deutschland Vertriebs GmbH,
AQUA Xxxxxx GmbH, Xxxxxxxxx Xxxxx Portugal, Grohe Sarl, Grohe
S.p.A., Grohe Gesellschaft m. b. H, Wien, Grohe America Inc.,
DAL GmbH & Co. KG, Grohe Nederland B.V. and Grohe Pacific Pte
Ltd.; or
(c) has EBITA (as defined in Clause 23 (FINANCIAL COVENANTS))
representing 5 per cent. or more of the consolidated EBITA of
the Grohe Holding Group; or
(d) has gross assets representing 5 per cent. or more of the
consolidated gross assets of the Grohe Holding Group; or
(e) has turnover representing 5 per cent. or more of the
consolidated turnover of the Grohe Holding Group,
excluding in the case of paragraphs (c) to (e) above intra-group items.
Compliance with the conditions set out in paragraphs (c), (d) and (e)
shall be determined by reference to the most recent Compliance
Certificate supplied by the Company and/or the latest audited (if
required by law) financial statements of that Subsidiary (aggregated,
in the case of a Subsidiary which itself has one or more Subsidiaries,
with the EBITA, gross assets and turnover of such Subsidiaries) and the
latest audited consolidated financial statements of the Grohe Holding
Group.
-16-
"MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) if the numerically corresponding day is not a Business Day,
that period shall end on the next Business Day in that
calendar month in which that period is to end if there is one,
or if there is not, on the immediately preceding Business Day;
and
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month.
The above rules will only apply to the last Month of any period.
"NOTE DOCUMENTS" means the Indenture, the Senior Notes, the Consent
Solicitation Statement, the subordination agreement dated 13 November
2000 relating to INTER ALIA the subordination of the Grohe Holding
Shareholder Loans behind the Senior Notes and the subordination
agreement dated on or about the date hereof and entered into between
Grohe Holding, Grohe Beteiligungs and Bank of New York as note trustee
relating to the subordination of loans made from the Company to Grohe
Holding in connection with the Shareholder Loan Refinancing.
"OBLIGORS" means a Borrower or a Guarantor.
"OPTIONAL CURRENCY" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.3 (CONDITIONS
RELATING TO OPTIONAL CURRENCIES).
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to Grohe Holding, the audited consolidated
financial statements of the Grohe Holding Group for the
financial year ended 31 December 2001; and
(b) in relation to each Original Obligor, its audited financial
statements for its financial year ended 31 December 2001.
"ORIGINAL OBLIGOR" means an Original Borrower or an Original Guarantor.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Community relating to
Economic and Monetary Union.
"PARTY" means a party to this Agreement.
-17-
"PERMITTED ACQUISITION" means any acquisition comprising the purchase,
subscription for or other acquisition of shares, other securities or
interests in a company or a business or undertaking (the "TARGET") or
any designation of an Unrestricted Company as a member of the Group and
Grohe Holding Group in accordance with Clause 24.27(b) PROVIDED THAT:
(i) the relevant targets or Unrestricted Companies do carry on a
similar or complimentary business to the business of the Group
and would, after the acquisition or designation, constitute a
wholly-owned member of the Group; and
(ii) if such acquisition of a target or designation of an
Unrestricted Company is completed prior to the date of the
Qualifying Public Offering, the amount of the total
consideration (both cash and non-cash, including the amount of
indebtedness assumed by the purchaser or in the assets
acquired or Unrestricted Company designated a member of the
Group, the amount of any deferred purchase price and any costs
and expenses incurred and including, for the designation of an
Unrestricted Company as member of the Group, the Financial
Indebtedness of such Unrestricted Company), when aggregated
with the aggregate total consideration of any other shares,
securities or interests, companies, business or undertaking or
Unrestricted Company acquired by members of the Group during
that financial year does not exceed the aggregate of the
amount of EUR 100,000,000 and the amount allocated in the
Budget for that financial year for capital expenditure and
which has not been spent or committed, unless the excess
amount is financed by cash contributions (whether by way of
capital increase or payment into the reserves) made to the
Company by its direct or indirect shareholders, or by
Shareholder Loans and/or other Financial Indebtedness which
constitutes Permitted Indebtedness pursuant to paragraph (m)
and (n) of such definition; and
(iii) the Company has confirmed to the Agent in writing prior to the
date of such acquisition or designation that the target or
Unrestricted Company, as the case may be, on a stand alone
basis and without any support from any member of the Group, is
in a position to meet its due payment obligations, will be
able to meet its payment obligations that fall due over the
period of 12 Months from the date of the acquisition or
designation and will be able to meet its payment obligations
resulting from any investment or capital expenditure planned
on the date of the acquisition or designation, PROVIDED THAT
no such confirmation will be required for (x) the acquisition
of an Unrestricted Company or (y) any acquisition(s) and/or
redesignation with regard to which the total consideration (as
defined in paragraph (ii) above) and when aggregated with the
total consideration for all acquisitions and/or designations
of
-18-
targets or Unrestricted Companies, as the case may be, which
do not meet the criteria of this paragraph (iii) does not from
the date of this Agreement exceed EUR 25,000,000, and
(iv) at the time of the acquisition or designation, as the case may
be, and immediately thereafter there is no Default which is
continuing; and
(v) for any acquisition or designation which is completed prior to
or on the date of the Qualifying Public Offering and if the
amount of the total consideration for the acquisition is
greater than EUR 25,000,000, the Company has supplied to the
Agent a certificate supported by accompanying calculations and
signed by the financial officer(s) binding the Company and
demonstrating that if the EBITDA of or attributable to those
assets, and the debt to be added to the consolidated financial
statements of the Grohe Holding Group as a result of the
acquisition or designation were included as of the beginning
of the Relevant Period, on a PRO FORMA basis, in the
calculation of the financial covenants, the financial
covenants set out in Clause 23 (FINANCIAL COVENANTS) would be
complied with as at the last Quarter Date in respect of which
financial statements have been delivered pursuant to Clause
22.1 (FINANCIAL STATEMENTS) and as at the four Quarter Dates
following such acquisition or designation; and
(vi) for any acquisition or designation which is completed
following the date of the Qualifying Public Offering, the
incurrence test set out in column 3 of Clause 23.1.4 would be
complied with as at the last Quarter Date in respect of which
Financial Statements have been delivered pursuant to Clause
22.1 (FINANCIAL STATEMENTS) and as at the four Quarter Dates
following such acquisition or designation, in each case tested
on a PRO FORMA basis including as of the beginning of the
Relevant Period the EBITDA of or attributable to those assets
and the debt to be added to the consolidated financial
statements of the Grohe Holding Group as a result of the
acquisition or designation, as the case may be, and the
Company has supplied a certificate to the Agent, supported by
accompanying calculations and signed by financial officer(s)
binding the Company demonstrating this.
"PERMITTED DISPOSAL" means in any financial year disposals of assets
which are:
(a) disposals of stock in trade and machinery by a member of the
Group in its ordinary course of trade on arms' length terms
for fair market value;
(b) disposals of assets on arms' length terms between wholly-owned
members of the Group PROVIDED THAT if such a disposal relates
to assets
-19-
which immediately prior to such disposal are subject to the
Transaction Security the disposal (i) does not adversely
affect any Transaction Security or (ii) is permitted pursuant
to the terms of the Transaction Security or (iii) like
security is provided over such assets;
(c) disposal of assets which are substituted within 12 Months
prior to or following such disposal with replacement assets of
a similar type and quality, PROVIDED THAT prior to the
occurrence of the Qualifying Public Offering and upon request
of the Agent, the Company provides evidence of such
replacement;
(d) disposal of any surplus or obsolete assets not required for
the efficient operation of the business by any member of the
Group;
(e) prior to the date of the Qualifying Public Offering, disposals
of assets in connection with sale- and- lease back
transactions, non-recourse factoring and asset backed
securities transactions where the value (price or other
consideration or market value) of all such assets disposed of
by members of the Group does not exceed the amount of EUR
25,000,000 in any one financial year plus such amount
available under the basket referred to in paragraph (f) below
applicable prior to the date of the Qualifying Public
Offering; or
(f) disposals of assets other than those referred to under (a) to
(e) above or, following the date of the Qualifying Public
Offering, other than those referred to under (a) to (d) above,
for cash by a member of the Group where the value (price or
other consideration or market value) of all such assets
disposed of by members of the Group does not exceed EUR
5,000,000 or, following the occurrence of the Qualifying
Public Offering, EUR 100,000,000 in any one financial year.
"PERMITTED INDEBTEDNESS" means:
(a) any Financial Indebtedness arising under the Finance
Documents;
(b) any Financial Indebtedness arising under the Refinanced
Facilities PROVIDED THAT it will be repaid in full prior to or
concurrently with the first Utilisation under the Facilities
or, if the Utilisation Request specifies that the proceeds of
the proposed Utilisation with regard to the Initial Term Loan
are to be paid to the Escrow Account, concurrently with the
release of proceeds from the Escrow Account in accordance with
the terms of the Escrow Account Agreement;
-20-
(c) any Financial Indebtedness arising under the Senior Notes Loan
provided it is subordinated on the terms of the Senior Notes
Subordination Agreement,
(d) any Financial Indebtedness arising in respect of Shareholder
Loans and amounts credited to the shareholder loan account
(GESELLSCHAFTERDARLEHENSKONTO) of Grohe Beteiligungs, PROVIDED
THAT in each case they are subordinated on terms of a
subordination agreement in form and substance satisfactory to
the Agent;
(e) any Financial Indebtedness (including under interest rate
hedging agreements) disclosed in writing to the Agent pursuant
to the list to be delivered pursuant to Schedule 2 Part I 5(j)
of this Agreement and agreed by the Agent (on behalf of the
Majority Lenders) prior to the date of the first Utilisation
Request PROVIDED THAT the amount thereof is not increased;
(f) any Financial Indebtedness under any other interest rate
hedging agreement hedging the interest exposure of any member
of the Group in respect of Loans outstanding under this
Agreement and Financial Indebtedness permitted under paragraph
(e) above;
(g) any Financial Indebtedness arising under overnight facilities
entered into in connection with cash pooling agreements up to
a maximum aggregate amount of EUR 10,000,000 or, after the
occurrence of a Qualifying Public Offering, EUR 20,000,000;
(h) any Financial Indebtedness arising under a discount line for
xxxx of exchanges PROVIDED THAT the principal amount thereof
shall at no time exceed the amount of EUR 10,000,000 or, after
the occurrence of the Qualifying Public Offering, EUR
25,000,000;
(i) any Financial Indebtedness arising under Permitted Intra-Group
Loans;
(j) any Financial Indebtedness arising under currency hedging
exposures in the ordinary course of trade;
(k) any Financial Indebtedness arising under Finance Leases which
does not exceed an aggregate amount of EUR 25,000,000 at any
time;
(l) any Financial Indebtedness supported by a Letter of Credit or
Bank Guarantee;
(m) any Financial Indebtedness not falling within the categories
set out in paragraphs (a) to (l) above and not exceeding at
any one time in
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aggregate EUR 25,000,000 or, after the occurrence of a
Qualifying Public Offering EUR 100,000,000;
(n) any Financial Indebtedness incurred by Grohe Beteiligungs or,
following the repayment of all Loans made to Grohe
Beteiligungs, by any Original Borrower, including for the
purpose of financing a Permitted Acquisition, PROVIDED THAT:
(i) no later than at the same time that other financial
institutions are invited to bid for such financing,
but in any case at least one Month prior to the
intended incurrence of such Financial Indebtedness,
the Company shall notify the Agent thereof and of its
terms and the Majority Lenders (through the Agent)
are entitled to notify the Company within two weeks
after receipt of the Company's notice by the Agent
that they are willing, subject to satisfactory
documentation relating to the financing and, where
applicable, acquisition documents, finalisation of
the capital, lending and tax structure, satisfactory
completion of the due diligence and such other
conditions which are standard for such type of
transaction, to finance such acquisition on such
terms whereupon such Financial Indebtedness shall be
incurred with some or all of the Lenders only;
(ii) such Financial Indebtedness is incurred with a stated
maturity not before the last Termination Date, the
Average Life at the time such Financial Indebtedness
is incurred equal to or greater than the Average Life
of the outstanding Loans and with the financial
covenants being not more onerous than those under
this Agreement; and
(iii) prior to the date of the Qualifying Public Offering,
such Financial Indebtedness is incurred for the
purpose of financing a Permitted Acquisition or for
refinancing any Financial Indebtedness of any
Unrestricted Company outstanding at the date it
becomes a member of the Group after it has become a
member of the Group and the aggregate total amount of
Financial Indebtedness incurred pursuant to this
paragraph (n) does not exceed EUR 100,000,000;
PROVIDED THAT prior to the date of the Qualifying Public Offering the
amount of Financial Indebtedness incurred under paragraphs (m) and (n)
for the purpose of financing a Permitted Acquisition must not at any
time exceed in aggregate the amount of EUR 100,000,000;
-22-
(o) following the occurrence of the Qualifying Public Offering and
provided the ratio of Total Net Debt to EBITDA on the last
preceding Quarter Date is lower than 2.5:1, any Indebtedness
for Borrowed Money incurred by Grohe Beteiligungs to
(partially) refinance Financial Indebtedness outstanding under
the Senior Notes PROVIDED THAT such Indebtedness for Borrowed
Money is incurred with a stated maturity not before the last
Termination Date, the Average Life at the time such Financial
Indebtedness is incurred is equal to or greater than the
Average Life of the outstanding Loans and that the Senior
Notes Loan is refinanced at the same time and in the same
amount,
PROVIDED THAT any Financial Indebtedness to be incurred after the date
of the Qualifying Public Offering falling within paragraphs (m) and (n)
above may only be incurred upon receipt by the Agent of a certificate
supported by accompanying calculations and signed by the financial
officer(s) binding the Company and demonstrating on a PRO FORMA basis
and assuming such Financial Indebtedness or, if applicable Permitted
Acquisition, had been incurred or completed on the first day of the
Relevant Period, that as at the last Quarter Date in respect of which
financial statements have been delivered pursuant to Clause 22.1
(FINANCIAL STATEMENTS) and as at the four following Quarter Dates, the
incurrence test set out in column 3 of Clause 23.1.4 would be complied
with, PROVIDED FURTHER THAT no such certificate is required for any
Financial Indebtedness incurred after the date of the Qualifying Public
Offering falling within paragraphs (m) and (n) amounting up to EUR
7,500,000 in aggregate from the date of this Agreement.
"PERMITTED INTRA-GROUP LOANS" means:
(a) a trade credit or indemnity granted in the ordinary course of
trading and upon terms usual for such trade;
(b) all loans entered into between any Obligors; and
(c) all loans entered into between wholly-owned members of the
Group, PROVIDED THAT the borrower under such intra-group loan
is either a member of the Group as of the date of this
Agreement or the Relevant Jurisdiction of the borrower under
such intra-group loan is a member state of the Organisation
for Economic Cooperation of Development or the aggregate
amount of any other loans does not at any time exceed the
amount of EUR 25,000,000,
PROVIDED THAT with regard to any loan made to a member of the Group
which is not an Obligor or to a member of the Group whose shares are
subject to the Transaction Security, security satisfactory to the
Majority Lenders over such
-23-
loans has been provided to the Finance Parties and PROVIDED FURTHER
THAT in case of any loan made to an Obligor as borrower, the lender of
such loan, if its Relevant Jurisdiction is the Federal Republic of
Germany and it is a 100 % owned Subsidiary, has acceded to the
Intercreditor Agreement as intra-group lender and that the aggregate
amount of loans outstanding to any Obligor from Group members who have
not acceded to the Intercreditor Agreement as intra-group lender must
not exceed EUR 45,000,000.
"PERMITTED INVESTMENTS" means:
(a) acquisitions comprising the purchase, subscription for or
other acquisition of additional shares, other securities or
interest of a wholly-owned member of the Group (the "RELEVANT
ENTITY"), including by way of capital increase or payment into
the capital reserves PROVIDED THAT (i) if Security has been
given to the Finance Parties over any of the existing shares,
securities or other interest in the Relevant Entity,
equivalent Security is provided without undue delay over the
new shares, securities or other interest in favour of the
Finance Parties and either (ii) the payment of cash or
disposal of assets is made between Obligors or (iii) the
recipient of the cash or asset is either a member of the Group
as at the date of this Agreement or its Relevant Jurisdiction
is a member state of the Organisation for Economic Cooperation
and Development or the value of the cash payments and/or the
disposals does not in aggregate from the date of this
Agreement exceed EUR 25,000,000; or
(b) acquisitions comprising the purchase, subscription for or
other acquisition of shares, other securities or interests in
an Unrestricted Company, non wholly-owned Subsidiary or other
company which following such acquisition would qualify as a
joint venture, in each case carrying on a similar or
complementary business to the business of the Group up to,
from the date of this Agreement and including any loan made
referred to in paragraph (g) of the definition of Permitted
Transactions, the aggregate amount of EUR 40,000,000 or,
following the Qualifying Public Offering, EUR 65,000,000,
PROVIDED THAT the aggregate amount so invested in any
Unrestricted Companies (and including any loans made to
Unrestricted Companies and referred to in paragraph (g) of the
definition of Permitted Transactions) from the date of this
Agreement must not exceed EUR 25,000,000 or, following the
Qualifying Public Offering, EUR 50,000,000.
"PERMITTED TRANSACTIONS" means:
(a) the payment or declaration of any dividend, return on capital,
repayment of capital contributions or other distributions by
any member of the
-24-
Group to any other member of the Group or any minority
shareholder of a member of the Group;
(b) the granting of loans by the Company to Grohe Holding or the
making of withdrawals by Grohe Holding from its partner's
accounts in the Company for the Shareholder Loan Refinancing;
(c) the making of withdrawals by Grohe Holding from its partner's
accounts in the Company, the granting of loans or making of
other payments from the Company to Grohe Holding for the
financing of ongoing administrative costs (including taxes) of
Grohe Holding of up to EUR 2,000,000 in any financial year or
such higher amount approved by the Agent in writing, PROVIDED
THAT such approval shall be granted if and to the extent that
the Company has demonstrated to the reasonable satisfaction of
the Agent that such ongoing administrative costs (including
taxes) have been reasonably incurred;
(d) the making of withdrawals by Grohe Holding from its partners'
accounts in the Company, the granting of loans or making of
other payments from the Company to Grohe Holding for the
financing of the cost of the Qualifying Public Offering or
Listing up to EUR 4,000,000 (including when the Listing
failed), costs incurred in connection with the Shareholder
Loan Refinancing up to EUR 13,000,000 and, PROVIDED THAT the
ratio of Total Net Debt to EBITDA is lower than 2.0:1 on the
last preceding Quarter Date, that no Default has occurred
which is continuing and no Listing or public offering of
shares has occurred, the payment of cash interest up to the
aggregate amount of EUR 5,300,000 in any financial year on the
Grohe Holding Shareholder Loans, PROVIDED THAT in each case
such withdrawals or loans, as the case may be are reasonable
and notified in advance to the Agent;
(e) the set-off by Grohe Holding of withdrawal claims arising from
its partner's accounts against any loans granted by the
Company to Grohe Holding in accordance with paragraph (b)
above or VICE VERSA;
(f) following the date of the Qualifying Public Offering or
Listing, the payment or declaration of any dividend or other
distribution or withdrawal from partners' accounts of the
Company to Grohe Holding, PROVIDED THAT the Agent has received
a certificate supported by calculations and signed by the
financial officer(s) binding the Company demonstrating that,
on a PRO FORMA basis and assuming the relevant dividend having
been paid by Grohe Holding, as at the last Quarter Date in
respect of which financial statements have been delivered
pursuant to Clause 22.1 (FINANCIAL STATEMENTS) and as at the
four Quarter Dates
-25-
following the payment, the incurrence test set out in the
penultimate paragraph of Clause 23.1.2 would be complied with;
(g) the granting of loans by any member of the Group to any
Unrestricted Company, non-wholly-owned Subsidiary or joint
venture of up to, in aggregate from the date of this Agreement
and including any investments referred to in paragraph (b) of
the definitions of Permitted Investment, EUR 40,000,000 or,
following the date of the Qualifying Public Offering, EUR
65,000,000 PROVIDED THAT the aggregate amount of loans made to
Unrestricted Companies or acquisitions of shares, other
securities or interests in an Unrestricted Company referred to
in paragraph (b) of the definition of Permitted Investments
from the date of this Agreement must not exceed EUR 25,000,000
or, following the Qualifying Public Offering, EUR 50,000,000;
and
(h) the granting of any guarantee of Xxxxxxxxx Xxxxx and/or, if it
is a downstream guarantee, Grohe Beteiligungs to guarantee
Financial Indebtedness incurred by an Unrestricted Company to
finance the cash purchase price and the indebtedness assumed
as part of the total consideration (as defined in paragraph
(ii) of the definition of Permitted Acquisition) by the
purchaser, the company or business acquired, PROVIDED THAT the
maximum contingent liability under such guarantee does not,
when aggregated with any other Financial Indebtedness incurred
by any member of the Group and permitted (only) pursuant to
paragraph (m) of the definition of Permitted Indebtedness,
exceed the amount of any Financial Indebtedness that can be
incurred pursuant to paragraph (m) of the definition of
Permitted Indebtedness and PROVIDED FURTHER THAT, prior to the
Qualifying Public Offering and if the total consideration due
by an Unrestricted Company and/or its Subsidiaries exceeds EUR
100,000,000, any Unrestricted Company which has incurred
Financial Indebtedness has guaranteed by way of a guarantee
upon first demand to each Finance Party the due and punctual
performance by each Borrower of all of that Borrower's
obligations under the Finance Documents in form and substance
satisfactory to the Majority Lenders.
"QUALIFYING PUBLIC OFFERING" means the date on which following the
Listing and the initial public offering of shares in Grohe Holding or
any company of which Grohe Holding is a wholly-owned Subsidiary the
primary proceeds from such initial public offering have been received
by the listed company or the seller of the shares PROVIDED THAT:
(i) on such date the Total Debt Leverage (as defined in Clause 23
(FINANCIAL COVENANTS)) of the Grohe Holding Group is less than
2.50:1, it being
-26-
understood that EBITDA, the aggregate amount of all
obligations of any member of the Grohe Holding Group for or in
respect of Indebtedness for Borrowed Money and all other
calculations except for the Net IPO Proceeds will be based on
the latest available quarterly accounts of the Grohe Holding
Group delivered for the 12 months period ending on a Quarter
Date, while the Net IPO Proceeds will be calculated on an
actual basis on the day on which the listed company actually
receives such proceeds, and
(ii) the Agent has not on or prior to the date which is 2 Business
Days before the date on which the offering period begins,
notified the Company of a Default which is continuing as at
the date which is 2 Business Days before the date on which the
offering period begins.
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined two Business Days before the first day of that
period, unless market practice differs in the Relevant Interbank Market
for a currency, in which case the Quotation Day for that currency will
be determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given by
leading banks in the Relevant Interbank Market on more than one day,
the Quotation Day will be the last of those days).
"REFERENCE BANKS" means, in relation to LIBOR the principal London
offices of Dresdner Bank AG, Bayerische Hypo- und Vereinsbank AG and
Westdeutsche Landesbank and, in relation to EURIBOR, the principal
German office of the aforementioned banks, or such other banks as may
be appointed by the Agent in consultation with the Company.
"REFINANCED FACILITIES" means the facilities made available by a
syndicate of lenders to the Original Borrowers under the Existing
Senior Credit Agreement of which an amount of approximately EUR
335,400,000 is outstanding at the date of this Agreement.
"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 the jurisdiction of incorporation of each
member of the Grohe Holding Group and, if different, where it is
resident or has its principal place of business.
"REPAYMENT DATE" means each of the date specified in Clause 9.1
(REPAYMENT OF FACILITY A1 AND FACILITY A2 LOANS).
-27-
"REPAYMENT INSTALMENT" means each instalment for repayment of the Term
Loans referred to in Clause 9.1 (REPAYMENT OF THE FACILITY A1 AND
FACILITY A2 LOANS).
"REPEATING REPRESENTATIONS" means each of the representations set out
in Clauses 21.1 (Status) to 21.7 (DEDUCTION OF TAX), Clause 21.9 (NO
DEFAULT), Clause 21.12 (PARI PASSU ranking) to Clause 21.22 (LEGAL AND
BENEFICIAL OWNER) and Clause 21.24 (INTELLECTUAL PROPERTY) to Clause
21.26 (OWNERSHIP OF THE OBLIGORS).
"REPORTS" means each of the due diligence reports listed in Schedule 2
(CONDITIONS PRECEDENT) Part I.
"RESIGNATION LETTER" means a letter substantially in the form set out
in Schedule 7 (FORM OF RESIGNATION LETTER).
"REVOLVING COMMITMENTS" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "REVOLVING
COMMITMENT" in Part II of Schedule 1 (THE ORIGINAL PARTIES)
and the amount of any other Revolving Commitment transferred
to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Revolving Commitment transferred to it under
this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"REVOLVING FACILITY" means the EUR 50,000,000 multicurrency revolving
loan, letter of credit and bank guarantee facility made available under
this Agreement as described in Clause 2 (THE FACILITIES).
"REVOLVING LOAN" means a loan made or to be made under the Revolving
Facility or the principal amount outstanding for the time being of that
loan.
"ROLLOVER LOAN" means one or more Revolving Loans:
(a) made or to be made on the same day that a maturing Revolving
Loan is due to be repaid or any demand by the Agent or
Fronting Bank pursuant to a drawing under a Letter of Credit
or Bank Guarantee is due to be satisfied;
(b) the aggregate amount of which is equal to or less than the
maturing Revolving Loan or demand in relation to a Letter of
Credit or Bank Guarantee;
-28-
(c) in the same currency as the maturing Revolving Loan (unless it
arose as a result of the operation of Clause 7.2
(UNAVAILABILITY OF A CURRENCY)) or demand in relation to a
Letter of Credit or Bank Guarantee; and
(d) made or to be made to the same Borrower for the purpose of
refinancing a maturing Revolving Loan or satisfying a demand
in relation to a Letter of Credit or Bank Guarantee.
"SALE" means a sale or disposal (whether in a single transaction or
series of related transactions) of all or the majority of the assets
(including shares) of the Group.
"SCREEN RATE" means:
(a) in relation to LIBOR, the British Bankers' Association
Interest Settlement Rate for the relevant currency and period;
and
(b) in relation to EURIBOR, the percentage rate per annum
determined by the Banking Federation of the European Union for
the relevant period,
displayed on the appropriate page of the Reuters screen. If the agreed
page is replaced or service ceases to be available, the Agent may
specify another page or service displaying the appropriate rate after
consultation with the Company and the Lenders.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement
or arrangement having a similar effect.
"SECURITY DOCUMENTS" means each of the documents listed as being a
Security Document in paragraphs 2(a) to (e) of Part I of Schedule 2
(CONDITIONS PRECEDENT) together with any other document creating or
expressed to create any Security over all or any part of its assets in
respect of the obligations of any of the Obligors under any of the
Finance Documents.
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 3 (REQUESTS) given in accordance with Clause 12
(INTEREST PERIODS) in relation to the Term Facilities.
"SENIOR NOTES" means the notes in the aggregate principal amount of EUR
200,000,000 issued by Grohe Holding under the Indenture falling due for
payment on 15 November 2010 and bearing interest in an amount of 11.5
per cent. per annum.
"SENIOR NOTES CONSENT" means the required consent by the holders of the
Senior Notes as solicited in the Consent Solicitation Statement.
-29-
"SENIOR NOTES LOAN" means the loan of the proceeds from the issue of
the Senior Notes made by Grohe Holding to the Company and which is
dated 13 November 2000 and that is subordinated pursuant to the terms
of the Senior Notes Subordination Agreement.
"SENIOR NOTES SUBORDINATION AGREEMENT" means a subordination agreement
between the Security Agent (acting for the benefit of the Finance
Parties), the Company and Grohe Holding by which the Senior Notes Loan
is subordinated on terms satisfactory to the Security Agent.
"SHAREHOLDER LOANS" means any loans granted to a member of the Group by
a (direct or indirect) shareholder of the Company.
"SHAREHOLDER LOAN REFINANCING" means a loan made to and/or a withdrawal
made by Grohe Holding from the Company for the purpose of financing the
partial repayment of certain of the Grohe Holding Shareholders Loans in
an amount of up to EUR 200,000,000 PROVIDED THAT
(i) any such loans and withdrawals are made on terms agreed by and
satisfactory to the Agent; and
(ii) any such loans and withdrawals are only made after receipt of
the Senior Notes Consent in form and substance satisfactory to
the Agent.
"SPECIFIED TIME" means a time determined in accordance with Schedule 10
(TIMETABLES).
"SUBSIDIARY" means in relation to any company or corporation, a company
or corporation:
(a) which is controlled, directly or indirectly, by the first
mentioned company or corporation;
(b) more than half the issued share capital of which is owned,
directly or indirectly by the first mentioned company or
corporation; or
(c) which is a Subsidiary of another Subsidiary of the first
mentioned company or corporation,
and for this purpose, a company or corporation shall be treated as
being controlled by another if that other company or corporation is
able to direct its affairs and/or to control the composition of its
board of directors or equivalent body.
"SYNDICATION DATE" means the day specified by the Arrangers as the day
on which primary syndication of the Facilities is completed.
-30-
"SYNDICATION LETTER" means a letter from, INTER ALIA, Xxxxxxxxx Xxxxx
to the Arrangers in connection with the syndication of the Facilities.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement
of payments in euro.
"TAX" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"TERM FACILITIES" means Facility A1, Facility A2 and Facility B.
"TERM LOAN" means a Facility A1 Loan, a Facility A2 Loan or a Facility
B Loan.
"TERMINATION DATE" means
(a) for Facility A1, Facility A2 and the Revolving Facility 20
December 2009; and
(b) for Facility B 20 July 2010.
"TOTAL COMMITMENTS" means the aggregate of the Total Facility A1
Commitments, the Total Facility A2 Commitments, the Total Facility B
Commitments and the Total Revolving Commitments, being EUR 600,000,000
at the date of this Agreement.
"TOTAL FACILITY A1 COMMITMENTS" means the aggregate of the Facility A1
Commitments, being EUR 180,000,000 at the date of this Agreement.
"TOTAL FACILITY A2 COMMITMENTS" means the aggregate of the Facility B
Commitments, being EUR 270,000,000 at the date of this Agreement.
"TOTAL FACILITY B COMMITMENTS" means the aggregate of the Facility B
Commitments, being EUR 100,000,000 at the date of this Agreement.
"TOTAL REVOLVING COMMITMENTS" means the aggregate of the Revolving
Commitments being EUR 50,000,000 at the date of this Agreement.
"TRANSACTION SECURITY" means the Security created or expressed to be
created in favour of the Security Agent or the Finance Parties, as the
case may be, pursuant to the Security Documents.
-31-
"TRANSFER CERTIFICATE" means a certificate substantially in the form
set out in Schedule 5 (FORM OF TRANSFER CERTIFICATES) or any other form
agreed between the 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 Agent executes the Transfer Certificate.
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"UNRESTRICTED COMPANY" means:
(i) any Subsidiary of the Company that at the time of
determination was designated an Unrestricted Company by the
Company in accordance with Clause 24.27 (DESIGNATION OF
UNRESTRICTED COMPANY); and
(ii) any Subsidiary of an Unrestricted Company
"UTILISATION" means a utilisation of a Facility.
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made or the relevant Letter of Credit
is 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) Unless a contrary indication appears any reference in this
Agreement to:
(i) the "AGENT", any "ARRANGER", the "SECURITY AGENT",
any "FINANCE PARTY", any "LENDER", any "HEDGE
COUNTERPARTY", any "FRONTING BANK", any "ANCILLARY
BANK", any "Obligor" or any "PARTY" shall be
construed so as to include its successors in title,
permitted assigns and permitted transferees;
(ii) "ASSETS" includes present and future properties,
revenues and rights of every description;
(iii) a "FINANCE DOCUMENT" or any other agreement or
instrument is a reference to that Finance Document or
other agreement or instrument as amended;
-32-
(iv) "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;
(v) 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) of two or more
of the foregoing;
(vi) a "REGULATION" includes any regulation, rule,
official directive, request or guideline (whether or
not having the force of law) of any governmental,
intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other
authority or organisation;
(vii) a "WHOLLY-OWNED SUBSIDIARY" of a company or
corporation shall be construed as a reference to a
company or corporation more than 99% of the voting
rights and share capital of which are owned (directly
or indirectly) by that other company or corporation;
(viii) a Letter of Credit or, as the case may be, Bank
Guarantee, is "REPAID" or "PREPAID" or "REDUCED" if:
(1) a Borrower provides Cash Collateral for that
Letter of Credit or L/C Proportion of a
Letter of Credit or, as the case may be,
that Bank Guarantee or Guarantee Proportion
of a Bank Guarantee;
(2) the maximum amount payable under the Letter
of Credit or, as the case may be, Bank
Guarantee is reduced or, as the case may be,
cancelled in accordance with its terms; or
(3) the relevant Fronting Bank has confirmed in
writing to the Agent that it is satisfied
that it has no further liability under that
Letter of Credit or, as the case may be,
Bank Guarantee,
and the amount by which a Letter of Credit or, as the
case may be, Bank Guarantee is repaid, prepaid or
reduced under sub-paragraphs (1) and (2) is the
amount of the relevant Cash Collateral or reduction;
-33-
(ix) an amount borrowed includes any amount utilised by
way of Letter of Credit or Bank Guarantee;
(x) amounts outstanding under this Agreement include the
amounts outstanding under any Letter of Credit or any
Bank Guarantee;
(xi) an outstanding amount of a Letter of Credit or, as
the case may be, Bank Guarantee, at any time is the
maximum amount that is or may be payable by the
relevant Borrower under or in respect of that Letter
of Credit or, as the case may be, Bank Guarantee, at
the time taking into account amounts, repaid, prepaid
or reduced in accordance with paragraph (viii) above;
(xii) a provision of law is a reference to that provision
as amended or re-enacted; and
(xiii) a time of day is a reference to Frankfurt am Main
time.
(b) Section, Clause and Schedule headings are for ease of
reference only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default (other than an Event of Default) is "CONTINUING" if
it has not been remedied or waived and an Event of Default is
"CONTINUING" if it has not been waived.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"$" and "DOLLARS" denote lawful currency of the United States of
America, "(POUND)" and "STERLING" denotes lawful currency of the United
Kingdom and "EUR" and "EURO" means the single currency unit of the
Participating Member States.
-34-
SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
Subject to the terms of this Agreement, the Lenders make available:
(a) to Xxxxxxxxx Xxxxx a multicurrency term loan facility in an
aggregate amount equal to the Total Facility A1 Commitments;
(b) to Grohe Beteiligungs a term loan facility in an aggregate
amount equal to the Total Facility A2 Commitments and the
Total Facility B Commitments; and
(c) to Xxxxxxxxx Xxxxx and any Additional Borrower a multicurrency
revolving loan, letter of credit and bank guarantee facility
in an aggregate amount equal to the Total Revolving
Commitments.
(d) The Ancillary Banks may with the prior written consent of the
Agent and the Company make available Ancillary Facilities to
Xxxxxxxxx Xxxxx and any Additional Borrower in accordance with
Clause 8 (ANCILLARY FACILITIES).
2.2 FINANCE PARTIES' RIGHTS AND OBLIGATIONS
(a) The obligations of each Finance Party under the Finance
Documents are several. Failure by a Finance Party to perform
its obligations under the Finance Documents does not affect
the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations
of any other Finance Party under the Finance Documents.
(b) The rights of each Finance Party under or in connection with
the Finance Documents are separate and independent rights and
any debt arising under the Finance Documents to a Finance
Party from an Obligor shall be a separate and independent
debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
-35-
3. PURPOSE
3.1 PURPOSE
(a) Xxxxxxxxx Xxxxx shall apply all amounts borrowed by it under
Facility A1 towards (i) the refinancing of the Refinanced
Facilities and (ii) the payment of transaction costs arising
from that refinancing;
(b) Grohe Beteiligungs shall apply all amounts borrowed by it
under Facility A2 and Facility B towards (i) the Shareholder
Loan Refinancing; (ii) the refinancing of the Refinanced
Facilities; and (iii) the payment of transaction costs arising
from the refinancing of the Refinanced Facilities and the
Shareholder Loan Refinancing;
(c) Each Borrower shall apply all amounts borrowed by it under the
Revolving Facility towards (i) general corporate and working
capital purposes (including the financing of Permitted
Acquisitions) and (ii) the payment of transaction costs
arising from the refinancing of the Refinanced Facilities.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
-36-
4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
No Borrower may deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in Schedule 2
(CONDITIONS PRECEDENT) Part I and, in addition, in relation to any
Utilisations made for the purpose of the Shareholder Loan Refinancing
in Schedule 2 Part II, in each case in form and substance satisfactory
to the Agent, but excluding with regard to any Utilisation Request made
after the occurrence of the Qualifying Public Offering, the documents
and other evidence listed in Schedule 2 Part I 2 (a). Further, no
Borrower may deliver a Utilisation Request under Facility A2 for any
purpose other than the refinancing of the Refinanced Facilities,
Facility B and the Revolving Facility unless in each case the
Utilisation Date specified in such Utilisation Request is at least
three Business Days following the date on which all amounts outstanding
under the Existing Senior Credit Agreement have been repaid. The Agent
shall notify the Company and the Lenders promptly upon being so
satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
(a) The Lenders and a Fronting Bank will only be obliged to comply
with Clause 5.5 (LENDERS' AND FRONTING BANKS' PARTICIPATION)
if on the date of the Utilisation Request and on the proposed
Utilisation Date:
(i) in the case of a Rollover Loan, no Event of Default
is continuing or would result from the proposed Loan,
renewal of a Letter of Credit or Bank Guarantee and,
in the case of any other Loan, Letter of Credit, or
Bank Guarantee no Default is continuing or would
result from the proposed Loan, Letter of Credit or
Bank Guarantee; and
(ii) the Repeating Representations to be made by each
Obligor and the Company are true in all material
respects.
(b) The Lenders will only be obliged to comply with Clause 32.9
(CHANGE OF CURRENCY) if, on the first day of an Interest
Period, no Default is continuing or would result from the
change of currency and the Repeating Representations to be
made by each Obligor and the Company are true in all material
respects.
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4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
(a) A currency will constitute an Optional Currency in relation to
a Revolving Loan, Letter of Credit or Bank Guarantee if:
(i) it is readily available in the amount required and
freely convertible into the Base Currency in the
Relevant Interbank Market on the Quotation Day and
the Utilisation Date for that Loan, Letter of Credit
or Bank Guarantee; or
(ii) it is dollars, sterling, Swiss franc or yen or has
been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to
receipt by the Agent of the relevant Utilisation
Request for that Revolving Loan, Letter of Credit or
Bank Guarantee.
(b) If the Agent has received a written request from the Company
for a currency to be approved under paragraph (a)(ii) above,
the Agent will confirm to the Company by the Specified Time:
(i) whether or not the Lenders have granted their
approval; and
(ii) if approval has been granted, the minimum amount
(and, if required, integral multiples) for any
subsequent Utilisation in that currency.
4.4 MAXIMUM NUMBER OF LOANS
(a) A Borrower may not deliver a Utilisation Request if as a
result of the proposed Utilisation:
(i) 5 or more Facility A1 Loans would be outstanding;
(ii) 5 or more Facility A2 Loans would be outstanding;
(iii) 2 or more Facility B Loans would be outstanding; or
(iv) 7 or more Revolving Loans, Letters of Credit or Bank
Guarantees would be outstanding.
(b) Any Loan made by a single Lender under Clause 7.2
(UNAVAILABILITY OF A CURRENCY) shall not be taken into account
in this Clause 4.4.
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SECTION 3
UTILISATION
5. UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
A Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be
regarded as having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day
within the Availability Period applicable to that
Facility;
(iii) the currency and amount of the Utilisation comply
with Clause 5.3 (CURRENCY AND AMOUNT);
(iv) the proposed Interest Period complies with Clause 12
(INTEREST PERIODS);
(v) in case of the Revolving Facility it states whether
the Utilisation is to be made by way of Revolving
Loan, Letter of Credit or Bank Guarantee and whether
it is drawn to finance a Permitted Acquisition;
(vi) (in respect of a Letter of Credit or Bank Guarantee)
the proposed amount of the Letter of Credit or Bank
Guarantee when aggregated with the Base Currency
Amount of all Letters of Credit and Bank Guarantees
issued and not expired at such time does not exceed
EUR 25,000,000;
(vii) (in respect of a Letter of Credit or Bank Guarantee)
the proposed term of the Letter of Credit or Bank
Guarantee is a period not exceeding 364 days, ending
on or before the Termination Date; and
(viii) (in respect of a Letter of Credit or Bank Guarantee)
the Fronting Bank and the Agent has each approved the
terms of the Letter of Credit or Bank Guarantee.
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(b) Only one Loan, Letter of Credit or Bank Guarantee may be
requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be the
Base Currency or, in case of the Revolving Facility, an
Optional Currency PROVIDED THAT an amount of up to EUR
50,000,000 of the Facility A1 may be drawn in dollars at
Xxxxxxxxx Xxxxx'x request.
(b) The amount of the proposed Loan, Letter of Credit or Bank
Guarantee must be:
(i) if the currency selected is the Base Currency, a
minimum of EUR 2,500,000 for any Term Loan and EUR
1,000,000 and an integral multiple of EUR 250,000 for
any Revolving Loan or in either case, if less, the
Available Facility; or
(ii) if the currency selected is an Optional Currency, the
minimum amount (and, if required integral multiple)
specified by the Agent and notified to the Company
prior to the date of this Agreement or pursuant to
paragraph (b) (ii) of Clause 4.3 (CONDITIONS RELATING
TO OPTIONAL CURRENCIES) or, if less, the Available
Facility; and
(iii) in any event such that its Base Currency Amount is
less than or equal to the Available Facility.
5.4 LIMITATION ON UTILISATION
The Company shall ensure that no Revolving Loan drawn to finance a
Permitted Acquisition is outstanding for a period of more than 12
Months, including after taking into account any Rollover Loans(s) made
for the purpose of refinancing a Revolving Loan drawn to finance such
Permitted Acquisition.
5.5 LENDERS' AND FRONTING BANK'S PARTICIPATION
(a) If the conditions set out in this Agreement have been met,
(i) each Lender shall make its participation in each Loan
available by the Utilisation Date through its
Facility Office, and
(ii) the relevant Fronting Bank shall issue each Letter of
Credit or Bank Guarantee by the Utilisation Date
through its Facility Office.
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(b) The amount of each Lender's participation in each Loan, Letter
of Credit or Bank Guarantee will be equal to the proportion
borne by its relevant Available Commitment to the relevant
Available Facility immediately prior to making the Loan or,
issuing the Letter of Credit or Bank Guarantee.
(c) The Agent shall determine the Base Currency Amount of each
Loan, Letter of Credit and Bank Guarantee which is to be made
in an Optional Currency and shall notify each Lender of the
amount, currency and the Base Currency Amount of each Loan,
Letter of Credit and Bank Guarantee and the amount of its
participation in that Loan, Letter of Credit or Bank Guarantee
in each case by the Specified Time.
6. LETTERS OF CREDIT AND BANK GUARANTEES
6.1 COMPLETION OF LETTERS OF CREDIT AND BANK GUARANTEE
A Fronting Bank is authorised to issue any Letter of Credit or Bank
Guarantee pursuant to Clause 5 (UTILISATION) by:
(a) completing the issue date and the proposed Expiry Date of that
Letter of Credit or Bank Guarantee; and
(b) executing and delivering that Letter of Credit or Bank
Guarantee to the relevant recipient on the Utilisation Date.
6.2 RENEWAL OF A LETTER OF CREDIT AND BANK GUARANTEE
(a) Not less than three Business Days before the Expiry Date of a
Letter of Credit or Bank Guarantee the relevant Borrower may,
by written notice to the Agent and the relevant Fronting Bank,
request that the term of that Letter of Credit or Bank
Guarantee be extended.
(b) The Lenders shall treat the request in the same way as a
Utilisation Request for a Letter of Credit or Bank Guarantee
in the amount, currency and maturity of the Letter of Credit
or Bank Guarantee (as to be extended).
(c) The terms of each renewed Letter of Credit or Bank Guarantee
shall be the same as those of the relevant Letter of Credit or
Bank Guarantee immediately prior to its renewal, save that its
term shall commence on the date which was the Expiry Date of
that Letter of Credit or Bank Guarantee immediately prior to
its renewal and shall end on the proposed Expiry Date
specified in the request.
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(d) The Fronting Bank is authorised to amend any Letter of Credit
or Bank Guarantee pursuant to a request if the conditions set
out in this Agreement have been complied with.
6.3 RESTRICTIONS ON PARTICIPATION IN LETTERS OF CREDIT
If at any time prior to the issue of a Letter of Credit any Lender is
prohibited by law or pursuant to any request from or requirement of any
central bank or other fiscal, monetary or other authority from having
any right or obligation under this Agreement in respect of a Letter of
Credit, that Lender shall notify the Agent on or before the Business
Day prior to the proposed Utilisation Date and:
(a) the maximum actual and contingent liabilities of the relevant
Fronting Bank under that Letter of Credit shall be reduced by
an amount equal to an amount which would have been the amount
of that Lender's L/C Proportion of that Letter of Credit if
the prohibition had not occurred;
(b) the L/C Proportion of that Lender in relation to that Letter
of Credit shall be nil; and
(c) that Lender's relevant Available Commitment shall be reduced
by an amount equal to an amount which would have been the
amount of that Lender's L/C Proportion of the Letter of Credit
if the prohibition had not occurred.
6.4 RESTRICTIONS ON PARTICIPATION IN BANK GUARANTEES
If at any time prior to the issue of a Bank Guarantee any Lender is
prohibited by law or pursuant to any request from or requirement of any
central bank or other fiscal, monetary or other authority from having
any right or obligation under this Agreement in respect of a Bank
Guarantee, that Lender shall notify the Agent on or before the Business
Day prior to the proposed Utilisation Date and:
(a) the maximum actual and contingent liabilities of the relevant
Fronting Bank under that Bank Guarantee shall be reduced by an
amount equal to an amount which would have been the amount of
that Lender's Guarantee Proportion of that Bank Guarantee if
the prohibition had not occurred;
(b) the Guarantee Proportion of that Lender in relation to that
Bank Guarantee shall be nil; and
that Lender's relevant Available Commitment shall be reduced by an
amount equal to an amount which would have been the amount of that
Lender's Guarantee Proportion of the Bank Guarantee if the prohibition
had not occurred.
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6.5 DEMANDS UNDER LETTERS OF CREDIT AND BANK GUARANTEES
If a demand is made under a Letter of Credit or Bank Guarantee or a
Fronting Bank incurs in connection with a Letter of Credit or Bank
Guarantee any other liability, cost, claim, loss or expense which is to
be reimbursed pursuant to this Agreement, the Fronting Bank shall
promptly notify the Agent of the amount of such demand or such
liability, cost, claim, loss or expense and the Letter of Credit or
Bank Guarantee to which it relates and the Agent shall promptly make
demand upon the Company and the relevant Borrower in accordance with
this Agreement and notify the relevant Lenders.
6.6 BORROWERS' INDEMNITY TO THE FRONTING BANK
The Company shall procure that, and the relevant Borrower shall
irrevocably and unconditionally as a primary obligation indemnify (on
demand of the Agent) the Fronting Bank at its request against:
(a) any sum paid or due and payable by the Fronting Bank under the
Letter of Credit or Bank Guarantee; and
(b) all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from that
Fronting Bank under any Letter of Credit or Bank Guarantee or
in connection with any such Letter of Credit or Bank
Guarantee), claims, losses and expenses which that Fronting
Bank may at any time incur or sustain in connection with or
arising out of any such Letter of Credit or Bank Guarantee.
6.7 BORROWERS' INDEMNITY TO LENDERS
The Company shall procure that, and the relevant Borrower shall
irrevocably and unconditionally as a primary obligation indemnify (on
demand of the Agent) each Lender against:
(a) any sum paid or due and payable by such Lender in connection
with that Letter of Credit or Bank Guarantee; and
(b) all liabilities, costs (including, without limitation, any
costs incurred in funding any amount which falls due from such
Lender in connection with that Letter of Credit or Bank
Guarantee), claims, losses and expenses which that Lender may
at any time incur or sustain in connection with any Letter of
Credit or Bank Guarantee.
6.8 PRESERVATION OF RIGHTS
Neither the obligations of the Borrowers and the Company set out in
this Clause 6 nor the rights, powers and remedies conferred on the
Fronting Bank or Lender by this Agreement or by law shall be
discharged, impaired or otherwise affected by:
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(a) the winding-up, dissolution, administration or re-organisation
of a Fronting Bank, any Lender or any other person or any
change in its status, function, control or ownership;
(b) any of the obligations of a Fronting Bank, any Lender or any
other person under this Agreement or under any Letter of
Credit or Bank Guarantee or under any other security taken in
respect of its obligations under this Agreement or otherwise
in connection with a Letter of Credit or Bank Guarantee being
or becoming illegal, invalid, unenforceable or ineffective in
any respect;
(c) time or other indulgence being granted or agreed to be granted
to a Fronting Bank, any Lender or any other person in respect
of its obligations under this Agreement or under or in
connection with a Letter of Credit or Bank Guarantee or under
any other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of a Fronting Bank, any Lender or any other person
under a Letter of Credit or Bank Guarantee or this Agreement;
(e) any other act, event or omission which, but for this Clause 6,
might operate to discharge, impair or otherwise affect any of
the obligations of the Company or Borrowers set out in this
Clause 6 or any of the rights, powers or remedies conferred
upon a Fronting Bank or any Lender by this Agreement or by
law.
The obligations of the Borrowers and the Company set out in this Clause
6 shall be in addition to and independent of every other security which
a Fronting Bank or any Lender may at any time hold in respect of the
Borrower's obligations under this Agreement.
6.9 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Borrower and a Fronting Bank or a
Lender shall be conditional upon no security or payment to a Fronting
Bank or Lender by the relevant Borrower, or any other person on behalf
of that Borrower, being avoided or reduced by virtue of any laws
relating to bankruptcy, insolvency, liquidation or similar laws of
general application and, if any such security or payment is so avoided
or reduced, the relevant Fronting Bank or Lender shall be entitled to
recover the value or amount of such security or payment from the
relevant Borrower subsequently as if such settlement or discharge had
not occurred.
6.10 RIGHT TO MAKE PAYMENTS UNDER LETTERS OF CREDIT AND BANK GUARANTEES
A Fronting Bank shall be entitled to make any payment in accordance
with the terms of the relevant Letter of Credit or Bank Guarantee
without any reference
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to or further authority from the Company, any Borrower or any other
investigation or enquiry. The Company and each Borrower irrevocably
authorise the relevant Fronting Bank to comply with any demand under a
Letter of Credit or Bank Guarantee which is valid on its face.
7. OPTIONAL CURRENCIES
7.1 SELECTION OF CURRENCY
(a) A Borrower (or the Company on behalf of a Borrower) shall
select the currency of a Facility A1 Loan or a Revolving Loan,
Letter of Credit or Bank Guarantee in the case of an initial
Utilisation in a Utilisation Request and afterwards, in
relation to a Facility A1 Loan made to it, in a Selection
Notice.
(b) If the Borrower fails to select the currency in a Selection
Notice in relation to a Facility A1 Loan, such Loan will
remain denominated for its next Interest Period in the same
currency in which it is then outstanding.
(c) If the Borrower issues a Selection Notice requesting a change
of currency and the first day of the requested Interest Period
is not a Business Day for the new currency, the Agent shall
promptly notify the Borrower and the Lenders and the Facility
A1 Loan will remain in the existing currency (with Interest
Periods running from one Business Day until the next Business
Day) until the next day which is a Business Day for both
currencies, on which day the requested Interest Period will
begin.
7.2 UNAVAILABILITY OF A CURRENCY
If before the Specified Time on any Quotation Day:
(a) a Lender notifies the Agent that the Optional Currency
requested is not readily available to it in the amount
required; or
(b) a Lender notifies the Agent that compliance with its
obligation to participate in a Loan, Letter of Credit or Bank
Guarantee in the proposed Optional Currency would contravene a
law or regulation applicable to it,
the Agent will give notice to the relevant Borrower to that effect by
the Specified Time on that day. In this event, any Lender that gives
notice pursuant to this Clause 7 will be required to participate in the
Loan, Letter of Credit or Bank Guarantee in the Base Currency (in an
amount equal to that Lender's proportion of the Base Currency Amount,
or in respect of a Rollover Loan, an amount equal to that Lender's
proportion of the Base Currency Amount of the Rollover Loan that is due
to be made) and its participation will be treated as a
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separate Loan, Letter of Credit or Bank Guarantee denominated in the
Base Currency during that Interest Period.
7.3 CHANGE OF CURRENCY
(a) If a Facility A1 Loan is to be denominated in dollars in any
succeeding Interest Periods:
(i) the amount of the Facility A1 Loan in dollars will be
calculated by the Agent as the amount of dollars
equal to the Base Currency Amount of the Facility A1
Loan at the Agent's Spot Rate of Exchange at the
Specified Time;
(ii) (unless the Agent and the Borrower agree otherwise in
accordance with paragraph (b) below) the Borrower
shall repay the Facility A1 Loan in Euros on the last
day of the preceding Interest Period; and
(iii) (subject to Clause 4.2 (FURTHER CONDITIONS
PRECEDENT)) the Lenders shall re-advance the Facility
A1 Loan in dollars in accordance with Clause 7.4
(AGENT'S CALCULATIONS).
(b) If the Agent and the Borrower agree, the Agent shall:
(i) apply the amount paid to it by the Lenders pursuant
to paragraph (a)(iii) above (or so much of that
amount as is necessary) in or towards purchase of a
Euro amount; and
(ii) use the amount it purchases in or towards
satisfaction of the Borrower's obligations under
paragraph (a)(ii) above,
PROVIDED THAT no denomination of Facility A1 Loans in dollars
shall become effective unless the parties to this Agreement
have agreed such amendments to the repayment schedule in
Clause 9.1 (REPAYMENT OF FACILITY A1 AND A2 LOANS) setting out
the US dollar amount and euro amount of Facility A1 Loans to
be repaid on each Repayment Date which are necessary to grant
the Lenders protection comparable to that granted on the date
hereof.
(c) If the amount purchased by the Agent pursuant to paragraph
(b)(i) above is less than the amount required to be repaid by
the Borrower, the Agent shall promptly notify the Borrower and
the Borrower shall, on the last day of the succeeding Interest
Period, pay an amount to the Agent (in Euros) equal to the
difference.
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(d) If any part of the amount paid to the Agent by the Lenders
pursuant to paragraph (a)(iii) above is not needed to purchase
the amount required to be repaid by the Borrower, the Agent
shall promptly notify the Borrower and pay the Borrower, on
the last day of the first Interest Period that part of that
amount (in dollars).
(e) A Facility A1 Loan denominated in dollars cannot be
re-denominated in euros.
7.4 AGENT'S CALCULATIONS
(a) All calculations made by the Agent pursuant to this Clause 7
will take into account any repayment, prepayment,
consolidation or division of Facility A1 Loans to be made on
the last day of the first Interest Period.
(b) Each Lender's participation in a Facility A1 Loan will,
subject to paragraph (a) above, be determined in accordance
with paragraph (b) of Clause 5.5 (LENDERS' AND FRONTING BANK'S
PARTICIPATION).
8. ANCILLARY FACILITIES
8.1 AVAILABLE ANCILLARY FACILITIES
Ancillary Facilities may comprise:
(a) overdraft facilities;
(b) guarantee, performance bonds, documentary or stand-by letter
of credit facilities;
(c) short term loans;
(d) foreign exchange facilities; or
(e) other facilities or accommodations as may be required in
connection with the business of the Group and which are agreed
with the relevant Ancillary Bank.
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8.2 REQUEST FOR ANCILLARY FACILITY
A Borrower may, at any time from the date hereof to the Termination
Date, by notice in writing to the Agent, request the establishment of
an Ancillary Facility by the conversion of all or a portion of a
Lender's Available Revolving Commitment into an Ancillary Commitment
(PROVIDED THAT, the aggregate amount of the Ancillary Facilities shall
not exceed EUR 30,000,000) with effect from the date (the "EFFECTIVE
DATE") specified in such notice being a date not less than ten Business
Days after the date such notice is received by the Agent. Any such
notice shall specify:
(a) the proposed Borrower;
(b) the proposed commencement and expiry date for the Ancillary
Facility concerned (and the expiry date must be a Business Day
on or prior to the Termination Date);
(c) the type of the proposed Ancillary Facility;
(d) the proposed Ancillary Bank;
(e) the Ancillary Commitment to apply to the proposed Ancillary
Facility; and
(f) such other details as to the nature, amount and operation of
the proposed Ancillary Facility as the Agent may require,
and shall contain a confirmation by the relevant Ancillary Bank of the
details therein specified and the Agent shall promptly notify each
Lender upon receipt of any such notice, PROVIDED THAT, no Lender shall
be obliged to make available an Ancillary Facility under this Clause 8
(ANCILLARY FACILITIES).
8.3 THE ANCILLARY BANK
Any Lender so nominated in accordance with Clause 8.2 (REQUEST FOR
ANCILLARY FACILITY) may become an Ancillary Bank authorised to make the
proposed Ancillary Facility available with effect on and from the
Effective Date (PROVIDED THAT, it has sufficient Available Revolving
Commitment) and the Agent shall notify the Company, such Ancillary Bank
and the Lenders thereof, PROVIDED THAT, there shall at no time be more
than four Ancillary Banks.
8.4 TERMS OF ANCILLARY FACILITY
Subject to Clause 8.2 (REQUEST FOR ANCILLARY FACILITY) and Clause 8.3
(THE ANCILLARY BANK) above, the terms governing any Ancillary Facility
shall be those determined by agreement between the Ancillary Bank and
the Borrower concerned, PROVIDED THAT such terms are based upon
commercial terms standard in the relevant market.
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8.5 VARIATIONS
Any material variation in any Ancillary Facility or any proposed
increase or reduction in the Ancillary Commitment relating thereto
shall be effected subject to the provisions, MUTATIS MUTANDIS, of this
Clause 8 (ANCILLARY FACILITIES).
8.6 ACCELERATION
Save to the extent any Ancillary Commitment is being transferred to a
Revolving Commitment pursuant to Clause 8.11 (REDUCTION AND INCREASE OF
REVOLVING COMMITMENT) or Clause 8.12 (CANCELLATION OF ANCILLARY
FACILITY), no Ancillary Bank may, until notice has been served under
Clause 25.20 (ACCELERATION), demand repayment of any moneys made
available by it or withdraw prior to its original maturity any
Ancillary Facility or the right to make utilisations thereunder, or
demand cash cover in respect of any guarantees or similar contingent
liabilities made available by it, under its Ancillary Facility or take
any action analogous to any of the foregoing under any other type of
banking arrangements provided by it under its Ancillary Facility.
8.7 TERMINATION
The Ancillary Commitment of each Ancillary Bank shall terminate no
later than the Termination Date in relation to the Revolving Facility.
8.8 PREVAILING AGREEMENT
In the case of inconsistency between any term of an Ancillary Facility
and of this Agreement, the terms of this Agreement shall prevail.
8.9 ANCILLARY OUTSTANDINGS
Each Borrower and each Ancillary Bank agree with and for the benefit of
each Ancillary Bank that the Ancillary Outstandings under any Ancillary
Facility provided by that Ancillary Bank shall not exceed the Ancillary
Commitment applicable to that Ancillary Facility.
8.10 NOTIFICATION
Each Borrower and each Ancillary Bank shall, promptly upon request by
the Agent, supply the Agent with such information relating to the
operation of each Ancillary Facility provided by such Ancillary Bank
(including, without limitation, the Ancillary Outstandings thereunder)
as the Agent may from time to time request. Each Borrower consents to
all such information being released to the Agent and each Lender.
8.11 REDUCTION AND INCREASE OF REVOLVING COMMITMENT
The Revolving Commitment of each Ancillary Bank shall be reduced PRO
TANTO by the amount of its Ancillary Commitment but shall automatically
increase upon that Ancillary Facility ceasing to be available to the
relevant Borrower or
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upon the Ancillary Facility being cancelled in accordance with Clause
8.12 (CANCELLATION OF ANCILLARY FACILITY).
8.12 CANCELLATION OF ANCILLARY FACILITY
Any Borrower which has established an Ancillary Facility may at any
time by notice in writing to the Agent and the relevant Ancillary Bank
cancel such Ancillary Facility, in which event on the date specified in
the notice, being a date not less than ten Business Days after the date
such notice is received by the Agent, the Ancillary Commitment of the
relevant Ancillary Bank shall be converted into a Revolving Commitment.
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
9. REPAYMENT
9.1 REPAYMENT OF FACILITY A1 AND FACILITY A2 LOANS
(a) The Borrowers under any Facility A1 Loan and Facility A2 Loan
shall repay the Facility A1 Loans and Facility A2 Loans in
instalments by repaying on each Repayment Date an amount set
out opposite each Repayment Date below, including on every
Repayment Date a minimum repayment by Grohe Beteiligungs of
Facility A2 Loans (the "MINIMUM FACILITY A2 REPAYMENT AMOUNT")
as also set forth below:
REPAYMENT DATE INSTALMENT
TOTAL MINIMUM AMOUNT
EUR FACILITY A2
20 July 2003 10,000,000 10,000,000
20 December 2003 10,000,000 10,000,000
20 July 2004 25,000,000 12,000,000
20 December 2004 25,000,000 21,000,000
20 July 2005 25,000,000 14,000,000
20 December 2005 25,000,000 24,000,000
20 July 2006 32,500,000 17,000,000
20 December 2006 32,500,000 24,000,000
20 July 2007 40,000,000 17,000,000
20 December 2007 40,000,000 26,000,000
20 July 2008 45,000,000 19,000,000
20 December 2008 45,000,000 26,000,000
20 July 2009 47,500,000 19,000,000
20 December 2009 47,500,000 31,000,000
PROVIDED THAT with regard to any Repayment Date which falls
before the date of the Qualifying Public Offering each Minimum
Facility A2 Repayment Amount shall be increased up to the
total amount due on such Repayment Date by the amount of
Excess Withdrawals, unless pursuant to the last Compliance
Certificate delivered prior to the relevant Repayment Date,
the Total Debt Leverage is less than 2.5:1. Any such payment
in excess of the Minimum Facility A2 Repayment Amount shall be
applied against the Minimum Facility A2 Repayment Amount
falling due on the next Repayment Date.
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The Company shall, by giving the Agent not less than five
Business Days' prior notice, specify which amounts outstanding
under Facility A1 Loans and Facility A2 Loans shall be repaid,
including the amount of Excess Withdrawals and shall provide
to the Agent a revised version of the repayment schedule that
would apply as of the next Repayment Date(s).
"EXCESS WITHDRAWAL" means, for any Withdrawal Period for which it is
calculated, the maximum amount that can be withdrawn by Grohe
Beteiligungs from Xxxxxxxxx Xxxxx on the last day of the immediately
preceding Withdrawal Period in accordance with the provisions of the
partnership agreement for that Withdrawal Period less (i) any amounts
paid by Grohe Beteiligung to Grohe Holding in such Withdrawal Period,
if and to the extent that such payment was permitted under the Finance
Documents, (ii) the amount of any payment obligations due by Grohe
Beteiligungs during such Withdrawal Period, to the extent not incurred
in breach of the Finance Documents, as determined by the Company within
5 Business Days following any Withdrawal Period, and (iii) any amount
of interest or principal paid (including pursuant to a voluntary or
mandatory prepayment) by Grohe Beteiligungs on the Loans during such
Withdrawal Period.
(b) If, in relation to a Repayment Date for a Facility A1 Loan or
Facility A2 Loan, the aggregate amount of the Facility A1
Loans and Facility A2 Loans made to the Borrowers exceeds the
Repayment Instalment to be repaid on such Loans or the minimum
amount to be repaid in relation to Facility A2, the Company
may, if it gives the Agent not less than five Business Days'
prior notice, select which of those Facility A1 Loans and/or
Facility A2 Loans will be wholly or partially repaid so that
the Repayment Instalment is repaid on the relevant Repayment
Date in full. The Company may not make a selection if as a
result more than one Facility A1 Loan denominated in one
currency and/or Facility A2 Loan will be partially repaid.
(c) If the Company fails to deliver a notice to the Agent in
accordance with paragraph (a) or (b) above, the Agent shall
select the relevant Facility A1 Loans and/or Facility A2
Loans, as the case may be, to be wholly or partially repaid.
(d) Any repayment or prepayment of a Facility A1 Loan denominated
in the Optional Currency shall reduce the Facility A1 Loan by
the amount of that Optional Currency repaid.
9.2 REPAYMENT OF FACILITY B LOANS
Grohe Beteiligungs shall repay all Facility B Loans on the Termination
Date.
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9.3 REPAYMENT OF REVOLVING LOANS
Each Borrower which has drawn a Revolving Loan shall repay that
Revolving Loan on the last day of its Interest Period but no later than
on the Termination Date.
10. PREPAYMENT AND CANCELLATION
10.1 ILLEGALITY
If, at any time, it is or will become unlawful in any applicable
jurisdiction for a Lender or a Fronting Bank to perform any of its
obligations as contemplated by this Agreement or to fund, issue or
maintain its participation in any Loan, Letter of Credit or Bank
Guarantee:
(a) that Lender or Fronting Bank, as the case may be, shall
promptly notify the Agent upon becoming aware of that event;
(b) upon the Agent notifying the Company, the Commitment of that
Lender will be immediately cancelled; and
(c) the Borrowers shall, on the last day of the Interest Period
for each Loan or term for each Letter of Credit and Bank
Guarantee, as the case may be, occurring after the Agent has
notified the Company or, if earlier, the date specified by the
Lender in the notice delivered to the Agent:
(i) repay that Lender's participation in the Loans made
to the Borrowers; and
(ii) ensure that the liabilities of that Lender or
Fronting Bank under or in respect of each Letter of
Credit and Bank Guarantee are reduced to zero or
otherwise secured by providing Cash Collateral in an
amount equal to such Lender's L/C Proportion of those
Letters of Credit or Guarantee Proportion of those
Bank Guarantees or that Fronting Bank's maximum
actual and contingent liabilities under that Letter
of Credit or Bank Guarantee in the currency or
currencies of those Letters of Credit or Bank
Guarantees.
10.2 DEFINITIONS
For the purposes of this Clause 10:
"NET DISPOSAL PROCEEDS" means the proceeds of any disposal (including
sale and lease back transactions, non-recourse factoring and asset
backed securities transaction) of any asset of any Obligor or any
member of the Group after deducting reasonable out of pocket expenses
and any VAT or other tax incurred
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due to such disposal, PROVIDED THAT the following disposal proceeds
shall not constitute Net Disposal Proceeds:
(i) proceeds received in respect of any disposal referred to in
paragraphs (a) to (c) of the definition of Permitted
Disposals; and
(ii) Net Disposal Proceeds:
(1) which do not arise from sale and lease back
transactions, non-recourse factoring or other asset
backed securities transactions and, when aggregated
with any other such disposal proceeds within the
respective financial year, are less than EUR
5,000,000; or
(2) which arise from sale and lease back transactions,
non-recourse factoring or other asset backed
securities transactions and, when aggregated with any
other such disposal proceeds within the respective
financial year, are less than EUR 25,000,000.
"NET INSURANCE PROCEEDS" means the proceeds of any insurance claim
received by any Obligor or any member of the Group (after deducting any
reasonable out of pocket expenses incurred in relation to such claim)
other than any proceeds which are:
(a) to meet a third party claim and are applied in meeting such
claim within twelve months of receipt of such proceeds; or
(b) applied to the replacement, reinstatement and/or repair of the
assets in respect of which the relevant insurance claim was
made within eighteen Months of receipt of such proceeds; or
(c) received under a business interruption insurance, to the
extent to which they are to be applied to cover any costs
incurred during the period of business interruption; or
(d) received under a credit insurance; or
(e) in relation to a financial year when aggregated with any other
such insurance proceeds (not falling under paragraphs (a) to
(d)) less than the amount of EUR 2,000,000.
"NET ACQUISITION RECOVERY PROCEEDS" means the proceeds of any claim (a
"RECOVERY CLAIM") for breach of contract or warranty by,
misrepresentation by, indemnity or other claim against any vendor or
any of its affiliates (or any employee, officer or adviser) in relation
to Permitted Acquisitions, in each case after deducting, subject to
Clause 10.7, any amounts required to be applied to
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mandatorily prepay Permitted Indebtedness as defined in paragraphs (m)
and (n) of the definition of Permitted Indebtedness and any reasonable
out of pocket expenses incurred in relation to such claim other than
any proceeds which are:
(a) applied in the replacement, reinstatement and/or repair of
assets of a Group member which have been lost, destroyed or
damaged as a result of the events or circumstances giving rise
to such Recovery Claim; or
(b) are required to be paid to third parties in respect of a
liability, charge or claim upon a Group member arising from
such Recovery Claim,
PROVIDED THAT, proceeds referred to in paragraphs (a) and (b) above are
properly applied in such replacement, reinstatement or repair or
payment to such third party within eighteen Months of receipt of such
proceeds.
10.3 MANDATORY PREPAYMENT OF PROCEEDS
On receipt by any Obligor or any member of the Group of Net Disposal
Proceeds, Net Insurance Proceeds and/or Net Acquisition Recovery
Proceeds, the Company and each Borrower shall procure that an amount
equal to that receipt is promptly used to prepay the Loans. In relation
to Net Disposal Proceeds and Net Insurance Proceeds this Clause 10.3
shall only apply if such disposal occurred or insurance claim arose
prior to the occurrence of the Qualifying Public Offering.
10.4 MANDATORY PREPAYMENT FROM EXCESS CASH
Within one month after the due date of delivery of the annual
consolidated financial statements of the Grohe Holding Group under
Clause 22.1(a)(i) (FINANCIAL STATEMENTS) and starting from the
financial year beginning 1 January 2003, the Company and Xxxxxxxxx
Xxxxx shall procure that Loans made to Xxxxxxxxx Xxxxx or any other
Borrower (but excluding Grohe Beteiligungs) are prepaid in an amount
equal to 75% of the Consolidated Operating Excess Cash Flow (as defined
in Clause 23.2 (FINANCIAL DEFINITIONS)) for the period of twelve Months
ending on the last day of the relevant financial year.
No mandatory prepayment obligation will arise under this Clause 10.4
with respect to any financial year beginning after the occurrence of
the Qualifying Public Offering or with regard to any financial year if,
based on the consolidated financial statements of the Grohe Holding
Group delivered pursuant to Clause 22.1(a)(i) (FINANCIAL STATEMENTS),
and the accompanying Compliance Certificate, the ratio of Total Net
Debt to EBITDA for such financial year is less than 2.5:1, PROVIDED
THAT in the latter case the mandatory prepayment obligation may arise
for any of the following financial years if for any such financial year
the ratio of Total Net Debt to EBITDA is equal to or greater than
2.5:1.
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10.5 MANDATORY PREPAYMENT ON SALE
The Facilities are immediately cancelled and the Company and each
Borrower shall procure that the Loans are immediately prepaid in full
and the Lenders and/or Fronting Banks are released or Cash Collateral
is provided in respect of any Letters of Credit or Bank Guarantees upon
the occurrence of a Sale.
10.6 MANDATORY PREPAYMENT ON CHANGE OF CONTROL
If there is a Change of Control:
(a) the Company shall promptly notify the Agent upon becoming
aware of that event; and
(b) if such Change of Control occurs prior to the date of the
Qualifying Public Offering, the Facilities are immediately
cancelled and the Company and each Borrower shall procure that
the Loans are immediately prepaid in full and the Lenders
and/or Fronting Bank(s) are released or Cash Collateral is
provided in respect of any Letters of Credit or Bank
Guarantees, and, if such Change of Control occurs on or after
the date of the Qualifying Public Offering, if so instructed
by the Majority Lenders, the Agent shall, by notice to the
Company, cancel the Facilities and the Company and each
Borrower shall procure that all Loans shall be repaid and the
Lenders and/or Fronting Bank(s) are released or Cash
Collateral is provided in respect of any Letters of Credit or
Bank Guarantees on the earlier of the last day of the term or
the current Interest Period applicable thereto and the date
falling 60 days after the relevant Change of Control.
10.7 OTHER MANDATORY PREPAYMENT
Each Borrower shall, in the event of any voluntary or mandatory
prepayment to be made under any Financial Indebtedness which
constitutes Permitted Indebtedness under paragraphs (m), (n) and (o) of
such definition, promptly notify the Agent upon becoming aware of that
event and prepay Loans outstanding under this Agreement (including
Letters of Credit and Bank Guarantees) in a PRO RATA amount at the same
time as such other prepayment is made.
10.8 APPLICATION OF PREPAYMENTS
(a) Any prepayment made under Clause 10.3 and 10.7 shall be
applied against repayment of amounts outstanding under the
Term Facilities, as specified by the Company to the Agent, and
if no such specification is made until the date on which the
prepayment falls due, PRO RATA against the Term Facilities
and, in relation to Facility A1 and Facility A2, in equal
portions against the next Repayment Instalment falling due
under
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Clause 9.1 (REPAYMENT OF FACILITY A1 AND A2 LOANS) and the
last Repayment Instalment falling due under Clause 9.1.
(b) Any prepayment made under Clause 10.4 shall be applied:
(i) first, in repayment of amounts outstanding under
Facility A1;
(ii) second, when Facility A1 has been repaid in full, in
repayment of the Revolving Loans (and any amounts so
repaid may not be reborrowed) and the Revolving
Commitments of the Lender will be reduced PRO RATA;
(iii) thirdly, when the Revolving Loans have been repaid in
full, as Cash Collateral for any Letters of Credit
and Bank Guarantees issued (and the Revolving
Commitments of the Lenders will be reduced PRO RATA);
and
(iv) thereafter, in repayment of amounts outstanding by
any Borrower other than Grohe Beteiligungs under
Facility A2,
PROVIDED THAT in relation to both Facility A1 and Facility A2
and unless otherwise specified by the Company or the relevant
Borrower, all amounts shall be applied in equal portions
against the next Repayment Instalment and the last Repayment
Instalment falling due under Clause 9.1.
(c) Until the earlier of (i) the second anniversary of the date of
this Agreement and (ii) the occurrence of the Qualifying
Public Offering, any Lender under Facility B may elect that
any such Facility B Loans shall not be mandatorily prepaid in
accordance with this Clause 10.8 PROVIDED THAT at least 50 per
cent. of the amount which would have been applied towards that
mandatory prepayment will be applied towards the mandatory
prepayment of the Facility A2 Loans and, when Facility A2 has
been repaid in full, Facility A1 Loans which remain
outstanding. Any Lender under Facility B wishing to make such
an election shall notify the Agent accordingly.
10.9 MANDATORY PREPAYMENT ACCOUNT
10.9.1 If a prepayment is to be made under Clauses 10.3 to 10.7, the Company
or the relevant Borrower may give the Agent notice in writing not less
than 5 Business Days before the date of prepayment specifying that
prepayment for the specified Loans should be made on the last day of
the current Interest Period for the relevant Loan (in the case of a
Term Loan) or on maturity (in the case of a
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Revolving Loan); such notice shall include an update of the repayment
schedule set out in Clause 9.1 (REPAYMENT OF FACILITY A1 AND FACILITY
A2 LOANS).
If notice is not given within the required time period, prepayment
shall be made at the time and in the manner set out in the foregoing
provisions of this Clause 10.
10.9.2 If pursuant to sub-clause 10.9.1 the Company or relevant Borrower
requests that prepayment of a Loan is made on the last day of an
Interest Period or on maturity and:
(a) no Default is continuing at the time of such request; and
(b) for any prepayment due on the last day of an Interest Period
which is prior to the date of the Qualifying Public Offering,
the Company or relevant Borrower ensures (if the amount is not
already in a Mandatory Prepayment Account) that the amount
required to be prepaid is promptly credited to the Grohe
Beteiligungs Mandatory Prepayment Account, in the case of a
prepayment due by Grohe Beteiligungs, or to the Xxxxxxxxx
Xxxxx Mandatory Prepayment Account in the case of a prepayment
due by any other Borrower,
the prepayment date shall be delayed in accordance with such request
until the last day of the current Interest Period (in the case of a
Term Loan) or on maturity (in the case of a Revolving Loan) for the
specified Loan provided however payment can be made at any time if an
Event of Default occurs which is continuing.
10.9.3 The Company and Xxxxxxxxx Xxxxx irrevocably authorises the Agent on
behalf of itself and the other Borrowers to withdraw monies from the
relevant Mandatory Prepayment Account and apply such monies against
prepayments which are due to be made hereunder or, upon the occurrence
of an Event of Default pursuant to Clause 25.1 (NON-PAYMENT) which is
continuing, against any amounts due and payable under the Finance
Documents.
Any Finance Party with which such account is held acknowledges and
agrees that interest shall accrue at normal commercial rates on amounts
credited to any Mandatory Prepayment Account and that the account
holder shall be entitled to receive such interest (which shall be paid
in accordance with the mandate relating to such account) PROVIDED THAT
the account holder shall not be entitled to receive such interest while
a Default is continuing.
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10.10 OPTIONAL PREPAYMENT OF LOANS
(a) A Borrower may, if the Company gives the Agent not less than
five Business Days' prior written notice and, if the
prepayment does not take place at the end of the Interest
Period, subject to the payment of Break Costs, prepay the
whole or any part of any Loan (but, if in part, being an
amount that reduces the Base Currency Amount of the relevant
Loan by a minimum amount of EUR 2,500,000); any prepayment
notice shall include an update of the repayment schedule set
out in Clause 9.1 (REPAYMENT OF FACILITY A1 AND FACILITY A2
LOANS)
(b) Any prepayment under this Clause 10.10 shall satisfy the
obligations under Clause 9.1 (REPAYMENT OF FACILITY A1 AND A2
LOANS) as determined by the Company in the relevant notice,
or, if no such determination is made, shall be applied PRO
RATA across the Term Facilities and the Repayment Instalments
under those Facilities.
(c) Clause 10.8(c) shall apply MUTATIS MUTANDIS.
10.11 OPTIONAL CANCELLATION OF FACILITIES
(a) The Company may, if it gives the Agent not less than five
Business Days' prior written notice, cancel the whole or any
part (being a minimum Base Currency Amount of EUR 2,500,000 or
if less, the Available Facility) of the Facilities.
(b) Amounts cancelled pursuant to (a) above may not be reinstated.
10.12 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER OR A
FRONTING BANK
(a) If:
(i) any sum payable to any Lender or a Fronting Bank by
an Obligor is required to be increased under
paragraph (c) of Clause 15.2 (TAX GROSS-UP); or
(ii) any Lender or a Fronting Bank claims indemnification
from the Company under Clause 15.3 (TAX INDEMNITY) or
Clause 16.1 (INCREASED COSTS);
the Company may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent
notice:
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(i) of cancellation of the Commitment of that Lender and
its intention to procure the repayment of that
Lender's participation in the Loans; or
(ii) (if such circumstance relates to a Fronting Bank) of
cancellation of or of the Borrowers' intention to
provide Cash Collateral in respect of that Fronting
Bank's Letter of Credit or Bank Guarantee.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to
zero.
(c) On the last day of each Interest Period or term, as the case
may be, which ends after the Company has given notice under
paragraph (a) above (or, if earlier, the date specified by the
Company in that notice), the Company shall procure and the
relevant Borrowers shall repay that Lender's participation in
the Loans and shall procure either that such Lender's L/C
Proportion of each relevant Letter of Credit or Guarantee
Proportion of each relevant Bank Guarantee be reduced to zero
(by reduction of the amount of that Letter of Credit or Bank
Guarantee in an amount equal to that Lender's L/C Proportion
or Guarantee Proportion) or that Cash Collateral be provided
to the Agent in an amount equal to such Lender's L/C
Proportion of that Letter of Credit or Guarantee Proportion of
that Bank Guarantee; and (if the circumstance relates to a
Fronting Bank) the relevant Borrowers and the Company shall
procure that that Fronting Bank's liability under any Letters
of Credit or Bank Guarantee issued by it shall either be
reduced to zero or otherwise secured by the relevant Borrowers
providing Cash Collateral in an amount equal to that Fronting
Bank's maximum actual and contingent liabilities under those
Letters of Credit or Bank Guarantee.
10.13 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party
under this Clause 10 shall be irrevocable and, unless a
contrary indication appears in this Agreement, shall specify
the date or dates upon which the relevant cancellation or
prepayment is to be made and the amount of that cancellation
or prepayment.
(b) Any prepayment under this Agreement shall be made together
with accrued interest on the amount prepaid and, subject to
any Break Costs, without premium or penalty.
(c) A Borrower shall not repay or prepay all or any part of the
Loans, Letters of Credit or Bank Guarantees or cancel all or
any part of the
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Commitments except at the times and in the manner expressly
provided for in this Agreement.
(d) No amount of the Total Commitments cancelled under this
Agreement may be subsequently reinstated and no amounts
prepaid under this Clause 10 may be re-borrowed save for
Revolving Loans.
(e) If the Agent receives a notice under this Clause 10 it shall
promptly forward a copy of that notice to either the Company
or the affected Lender, as appropriate.
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SECTION 5
COSTS OF UTILISATION
11. INTEREST
11.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of:
(a) the Applicable Margin;
(b) EURIBOR or, in relation to any Loan in an Optional Currency,
LIBOR; and
(c) Mandatory Cost, if any.
11.2 PAYMENT OF INTEREST
The Borrower to which a Loan has been made shall pay accrued interest
on that Loan on the last day of each Interest Period (and, if the
Interest Period is longer than six Months, on the dates falling at six
Monthly intervals after the first day of the Interest Period).
11.3 MARGIN RATCHET
11.3.1 Subject to sub-clauses 11.3.2 to 11.3.5, if the ratio of Total Net Debt
to EBITDA (as defined in Clause 23 (FINANCIAL COVENANTS) (in this
Clause 11, the "RELEVANT RATIO") in respect of the most recent Relevant
Period falls within one of the ranges specified in column 1 of the
margin grid table set out below then the Applicable Margin in respect
of the Facilities shall be the percentage per annum set opposite the
range into which that Relevant Ratio falls.
COLUMN 1 COLUMN 2 COLUMN 3
RELEVANT RATIO APPLICABLE MARGIN APPLICABLE MARGIN
FACILITY A1, A2 AND FACILITY B
REVOLVING FACILITY
Greater than or equal to 3.50:1 2.25% 2.75%
Greater than or equal to 3.00:1 2.00% 2.50%
but less than 3.50:1
Greater than or equal to 2.50:1 1.75% 2.25%
but less than 3.00:1
Less than 2.50:1 1.25% 2.25%
11.3.2 Any reduction or increase to the Applicable Margin provided for in
sub-clause 11.3.1 shall take effect only in relation to any Loan made
or Interest
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Period commencing at least 5 Business Days after receipt by the Agent
for the Relevant Period of (a) quarterly accounts of the Grohe Holding
Group in accordance with Clause 22.1(b) and, in the case of a reduction
of the Applicable Margin, a Compliance Certificate pursuant to Clause
22.2 (COMPLIANCE CERTIFICATES).
11.3.3 Where the Applicable Margin has been determined on the basis of
quarterly accounts of the Grohe Holding Group for the period ending on
the end of any financial year, if on delivery of the annual audited
financial statements of the Grohe Holding Group in accordance with
Clause 22.1(a)(i) and the accompanying Compliance Certificate, such
accounts or certificates show that the determination should have been
different, the original determination shall be cancelled with immediate
effect for each relevant Loan and the relevant Borrowers shall make
payments to the Agent or, as the case may be the Lenders through the
Agent shall make payments to the relevant Borrowers at the end of the
current Interest Period as if such original determination had not
applied for such period and as if the relevant Applicable Margin
applied in accordance with the revised determination. Any moneys
received or recovered as a result of an adjustment pursuant to this
Clause 11.3.3 shall be applied PRO RATA to the Commitments of the
Lenders in the relevant Facility as at the date of any such receipt or
recovery.
11.3.4 If at any time an Event of Default has occurred which is continuing the
Applicable Margin for Facility A1, Facility A2 and the Revolving
Facility shall be 3.25% and the Applicable Margin for Facility B 3.75%.
11.3.5 The change to the Applicable Margin set out in sub-clause 11.3.4 shall
apply from the date certified by the Agent (in writing) as the date on
which an Event of Default has occurred or come into existence until the
date certified by the Agent (in writing) as the date by which such
Event of Default is no longer continuing. The Agent shall give such
certification promptly upon it becoming aware in its absolute
discretion that an Event of Default has occurred or exists and promptly
upon becoming aware it is no longer continuing.
11.4 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue or,
insofar as it relates to unpaid interest, lump sum damages
shall accrue on the overdue amount from the due date up to the
date of actual payment (both before and after judgment) at a
rate which is one per cent. higher than the rate which would
have been payable if the overdue amount had, during the period
of non-payment, constituted a Loan in the currency of the
overdue amount for successive Interest Periods, each of a
duration selected by the Agent
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(acting reasonably). In the case of lump sum damages the
relevant Obligor shall be free to prove that no damages have
arisen or that damages have not arisen in the asserted amount.
Any interest or lump sum damages accruing under this Clause
11.4 shall be immediately payable by the Obligor on demand by
the Agent.
(b) If any overdue amount consists of all or part of a Loan which
became due on a day which was not the last day of an Interest
Period relating to that Loan:
(i) the first Interest Period for that overdue amount
shall have a duration equal to the unexpired portion
of the current Interest Period relating to that Loan;
and
(ii) the rate of interest applying to the overdue amount
during that first Interest Period shall be one per
cent. higher than the rate which would have applied
if the overdue amount had not become due.
(c) Each Finance Party shall be entitled to claim from the
relevant Borrower further compensation for any further losses
(i.e. not compensated for by the operation of Clause 11.4(a)
and 11.3.4) incurred and/or damages suffered as a result of
that Borrower having failed to pay any amount payable by it
under the Finance Documents on the due date for such payment.
11.5 NOTIFICATION OF RATES OF INTEREST
The Agent shall promptly notify the Lenders and the relevant Borrower
of the determination of a rate of interest under this Agreement.
12. INTEREST PERIODS
12.1 SELECTION OF INTEREST PERIODS
(a) A Borrower (or the Company on behalf of a Borrower) may select
an Interest Period for a Loan and a term for a Letter of
Credit or Bank Guarantee in the Utilisation Request for that
Loan, Letter of Credit or Bank Guarantee (as the case may be)
or (for a Term Loan already been borrowed) in a Selection
Notice.
(b) Each Selection Notice for a Term Loan is irrevocable and must
be delivered to the Agent by the relevant Borrower (or the
Company on behalf of a Borrower) not later than the Specified
Time.
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(c) If a Borrower (or the Company) fails to deliver a Selection
Notice to the Agent in accordance with paragraph (b) above,
the relevant Interest Period will, subject to Clause 12.2
(CHANGES TO INTEREST PERIODS), be one Month.
(d) Subject to this Clause 12, a Borrower (or the Company) may
select an Interest Period of one, two, three, five or six
Months or any other period agreed between the Company and the
Agent (acting on the instructions of the Majority Lenders).
In addition, a relevant Borrower (or the Company on its
behalf) may select an Interest Period of less than one Month
if necessary to ensure that there are sufficient Facility A1
Loans and/or Facility A2 Loans, as the case may be (with an
aggregate Base Currency Amount equal to or greater than the
relevant Repayment Instalment) which have an Interest Period
ending on a Repayment Date, for the relevant Borrower to make
the Repayment Instalment due on that date.
(e) An Interest Period for a Loan and a term for a Letter of
Credit or Bank Guarantee shall not extend beyond the
Termination Date applicable to its Facility.
(f) Each Interest Period for a Term Loan shall start on the
Utilisation Date or (if already made) on the last day of its
preceding Interest Period.
(g) A Revolving Loan has one Interest Period term only.
(h) Prior to the Syndication Date, Interest Periods shall be one
Month or such other period as the Agent and the relevant
Borrower may agree and any Interest Period which would
otherwise end during the month preceding or extend beyond the
Syndication Date shall end on the Syndication Date.
12.2 CHANGES TO INTEREST PERIODS
(a) Prior to determining the interest rate for a Term Loan, the
Agent may shorten an Interest Period for any Term Loan to
ensure there are sufficient Term Loans (with an aggregate Base
Currency Amount equal to or greater than the Repayment
Instalment) which have an Interest Period ending on a date for
the Borrowers to make the Repayment Instalment due on that
date.
(b) If the Agent makes any of the changes to an Interest Period
referred to in this Clause 12.2, it shall promptly notify the
Company and the Lenders.
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12.3 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
12.4 CONSOLIDATION AND DIVISION OF TERM LOANS
(a) Subject to paragraph (b) below and in relation to each Term
Facility if two or more Interest Periods:
(i) relate to Term Loans in the same currency; and
(ii) end on the same date; and
(iii) are made to the same Borrower
those Term Loans will, unless that Borrower (or the Company on
its behalf) specifies to the contrary in the Selection Notice
for the next Interest Period, be consolidated into, and
treated as, a single Term Loan on the last day of the Interest
Period.
(b) Subject to Clause 4.4 (MAXIMUM NUMBER OF LOANS) and Clause 5.3
(CURRENCY AND AMOUNT), if a Borrower (or the Company on its
behalf) requests in a Selection Notice that a Term Loan be
divided into two or more Term Loans, that Term Loan will, on
the last day of its Interest Period, be so divided with Base
Currency Amounts specified in that Selection Notice, being an
aggregate Base Currency Amount equal to the Base Currency
Amount of the Term Loan immediately before its division.
13. CHANGES TO THE CALCULATION OF INTEREST
13.1 ABSENCE OF QUOTATIONS
Subject to Clause 13.2 (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.
13.2 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 Applicable Margin;
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(ii) the rate notified to the Agent by that Lender as soon
as practicable and in any event before interest is
due to be paid in respect of that Interest Period, to
be that which expresses as a percentage rate per
annum the cost to that Lender of funding its
participation in that Loan from whatever source it
may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that
Lender's participation in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the
relevant Interest Period the Screen Rate is not
available and none or only one of the Reference Banks
supplies a rate to the Agent to determine EURIBOR or,
if applicable, LIBOR for the relevant currency and
Interest Period; or
(ii) before close of business in Frankfurt on the
Quotation Day for the relevant Interest Period, the
Agent receives notifications from a Lender or Lenders
(whose participations in a Loan exceed 35 per cent.
of that Loan) that the cost to it of obtaining
matching deposits in the Relevant Interbank Market
would be in excess of EURIBOR or, if applicable,
LIBOR.
13.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Agent or the
Company so requires, the Agent and the Company shall enter
into negotiations (for a period of not more than thirty days)
with a view to agreeing a substitute basis for determining the
rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the
Company, be binding on all Parties.
13.4 BREAK COSTS
(a) Each Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by that Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
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(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Break Costs for any Interest Period in which
they accrue.
14. FEES
14.1 COMMITMENT FEE
(a) The Company shall pay to the Agent (for the account of each
Lender and in relation to each Facility) a fee in the Base
Currency computed at a rate equal to half of the Applicable
Margin for the Facilities, in each case on that Lender's
Available Commitment under the Facilities for the Availability
Period applicable to the relevant Facility, PROVIDED THAT the
commitment fee on the Term Facility will be reimbursed if and
to the extent that the Term Facilities are drawn within thirty
days from the date of this Agreement and PROVIDED FURTHER THAT
the commitment fee on any Commitment shall at no time be
higher than 0.625%.
(b) The accrued commitment fee is payable on the last day of each
successive period of three Months which ends during the
relevant Availability Period, on the last day of the
Availability Period and, if cancelled in full, on the
cancelled amount of the relevant Lender's Commitment at the
time the cancellation is effective.
14.2 ARRANGEMENT FEE
The Company and/or Xxxxxxxxx Xxxxx shall pay to the Arrangers an
arrangement fee in the amount and at the times agreed in a Fee Letter.
14.3 AGENCY AND SECURITY TRUSTEE FEE
The Company or Xxxxxxxxx Xxxxx, as the case may be, shall pay to the
Agent and Security Agent (for its own account) an agency and security
trustee fee in the amount and at the times agreed in the Fee Letter(s).
14.4 LETTER OF CREDIT AND BANK GUARANTEE COMMISSION
(a) A Borrower shall, in respect of all Letters of Credit or Bank
Guarantees which it requests, pay to the Agent (for the
account of each Lender) (for distribution in proportion to
each Lender's L/C Proportion of those Letters of Credit or
Guarantee Proportion of those Bank Guarantees, as the case may
be,) a letter of credit or bank guarantee commission in the
Base Currency at the L/C Commission Rate or the Guarantee
Commission Rate, as the case may be, on the maximum actual and
contingent liabilities of a Fronting Bank under such Letters
of Credit or Bank Guarantees.
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(b) The accrued letter of credit and bank guarantee commission is
payable on the last day of each successive period of three
Months starting from the date of this Agreement and in each
case on all Letters of Credit and Bank Guarantees drawn and
not expired as of such dates.
14.5 FRONTING BANK FEE
The Company shall, in respect of each Letter of Credit and Bank
Guarantee, pay to the relevant Fronting Bank a fee in the amounts and
at the times agreed between the relevant Fronting Bank and the Company.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
15. TAX GROSS UP AND INDEMNITIES
15.1 DEFINITIONS
In this Agreement:
"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 either the increase in a payment made by an Obligor
to a Finance Party under Clause 15.2 (TAX GROSS-UP) or a payment under
Clause 15.3 (TAX INDEMNITY).
15.2 TAX GROSS-UP
(a) Each Obligor shall make all payments to be made by it without
any Tax Deduction, unless a Tax Deduction is required by law.
(b) The Company shall promptly upon becoming aware that an Obligor
must make a Tax Deduction (or that there is any change in the
rate or the basis of a Tax Deduction) notify the Agent
accordingly. Similarly, a Lender or Fronting Bank shall notify
the Agent on becoming so aware in respect of a payment payable
to that Lender or Fronting Bank. If the Agent receives such
notification from a Lender or Fronting Bank it shall notify
the Company and that Obligor.
(c) If a Tax Deduction is required by law to be made by an
Obligor, the amount of the payment due from that Obligor shall
be increased to an amount which (after making any Tax
Deduction) leaves an amount equal to the payment which would
have been due if no Tax Deduction had been required.
(d) 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.
(e) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Obligor making that Tax Deduction shall deliver to the Agent
for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that
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the Tax Deduction has been made or (as applicable) any
appropriate payment paid to the relevant taxing authority.
15.3 TAX INDEMNITY
(a) The Company shall (within three Business Days of demand by the
Agent) pay to a Finance Party an amount equal to the loss,
liability or cost which that Finance Party reasonably
determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Finance Party in
respect of a Finance Document.
(b) Paragraph (a) above shall not apply with respect to any Tax
assessed on a Finance Party:
(1) 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
(2) under the law of the jurisdiction in which
that Finance Party's Facility Office is
located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the
net income received or receivable (but not any sum deemed to
be received or receivable) by that Finance Party or to the
extent a loss, liability or cost is compensated for by an
increased payment under Clause 15.2 (TAX GROSS-UP).
(c) A Finance Party making, or intending to make a claim under
paragraph (a) above shall promptly notify the Agent of the
event which will give, or has given, rise to the claim,
following which the Agent shall notify the Company.
(d) A Finance Party shall, on receiving a payment from an Obligor
under this Clause 15.3, notify the Agent.
15.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party
reasonably determines that:
(a) a Tax Credit is attributable either to an increased payment of
which that Tax Payment forms part, or to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that
Tax Credit,
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the Finance Party shall pay an amount to the Obligor which that Finance
Party reasonably determines will leave it (after that payment) in the
same after-Tax position as it would have been in had the Tax Payment
not been required to be made by the Obligor.
15.5 STAMP TAXES
The Company shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
15.6 VALUE ADDED TAX
(a) All consideration expressed to be payable under a Finance
Document by any Party to a Finance Party shall be deemed to be
exclusive of any VAT. If VAT is chargeable on any supply made
by any Finance Party to any Party in connection with a Finance
Document, that Party shall pay to the Finance Party (in
addition to and at the same time as paying the consideration)
an amount equal to the amount of the VAT.
(b) Where a Finance Document requires any Party to reimburse a
Finance Party for any costs or expenses, that Party shall also
at the same time pay and indemnify the Finance Party against
all VAT incurred by the Finance Party in respect of the costs
or expenses to the extent that the Finance Party reasonably
determines that it is not entitled to credit or repayment of
the VAT.
16. INCREASED COSTS
16.1 INCREASED COSTS
(a) Subject to Clause 16.3 (EXCEPTIONS) the Company shall, within
three Business Days of a demand by the Agent, pay for the
account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a
result of the imposition of, or any change in the
interpretation, administration or application, of any law or
regulation (including but not limited to capital ratio or
reserve requirements).
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility
or on a Finance Party's (or its Affiliate's) overall
capital;
(ii) an additional or increased cost; or
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(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.
16.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause
16.1 (INCREASED COSTS) shall notify the Agent of the event
giving rise to the claim and provide sufficient detail for the
calculations to be checked for plausibility by the Company,
following which the Agent shall promptly notify the Company.
(b) Each Finance Party shall, as soon as practicable after a
demand by the Agent, provide a certificate confirming the
amount of its Increased Costs.
16.3 EXCEPTIONS
(a) Clause 16.1 (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 15.3 (TAX INDEMNITY) (or
would have been compensated for under Clause 15.3
(TAX INDEMNITY) but was not so compensated solely
because any of the exclusions in paragraph (b) of
Clause 15.3 (TAX INDEMNITY) applied);
(iii) compensated for by the payment of the Mandatory Cost;
or
(iv) attributable to the gross negligence or the wilful
breach by the relevant Finance Party or its
Affiliates of any law or regulation.
(b) In this Clause 16.3, a reference to a "Tax Deduction" has the
same meaning given to the term in Clause 15.1 (DEFINITIONS).
17. OTHER INDEMNITIES
17.1 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
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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 five
Business Days of demand, indemnify each Finance Party to whom
that Sum is due against any cost, loss or liability arising
out of or as a result of the conversion including any
discrepancy between (A) the rate of exchange used to convert
that Sum from the First Currency into the Second Currency and
(B) the rate or rates of exchange available to that person at
the time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction
to pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
17.2 OTHER INDEMNITIES
The Company shall (or shall procure that an Obligor will), within five
Business Days of demand, indemnify each Finance Party against any cost,
loss or liability incurred by that Finance Party as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any
cost, loss or liability arising as a result of Clause 31
(SHARING AMONG THE FINANCE PARTIES);
(c) funding, or making arrangements to fund, its participation in
a Loan requested by a Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of wilful
misconduct or gross negligence by that Finance Party alone);
(d) issuing or making arrangements to issue a Letter of Credit or
Bank Guarantee requested by a Borrower in a Utilisation
Request but not issued by reason of the operation of any one
or more of the provisions of this Agreement (other than by
reason of wilful misconduct or gross negligence of that
Finance Party alone); or
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(e) a Loan (or part of a Loan) not being prepaid or Cash
Collateral for any Letter of Credit or Bank Guarantee not
bring provided in accordance with a notice of prepayment given
by a Borrower or the Company.
17.3 INDEMNITY TO THE AGENT
The Company shall promptly indemnify the Agent against any cost, loss
or liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a
Default; or
(b) acting or relying on any notice, request or instruction
received by it from any Finance Party or other party to a
Finance Document in connection with or pursuant to any Finance
Document which it reasonably believes to be genuine, correct
and appropriately authorised.
18. MITIGATION BY THE LENDERS
18.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Company,
take all reasonable steps to mitigate any circumstances which
arise and which would result in any amount becoming payable
under or pursuant to, or cancelled pursuant to, any of Clause
10.1 (Illegality), Clause 15 (TAX GROSS-UP AND INDEMNITIES),
Clause 16 (INCREASED COSTS), Clause 17.2 (OTHER INDEMNITIES),
Clause 17.3 (INDEMNITY TO THE AGENT) or paragraph 3 of
Schedule 4 (MANDATORY COST FORMULAE) including (but not
limited to) transferring its rights and obligations under the
Finance Documents to another Affiliate or Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations
of any Obligor under the Finance Documents.
18.2 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 18.1 (MITIGATION).
(b) A Finance Party is not obliged to take any steps under Clause
18.1 (MITIGATION) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
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19. COSTS AND EXPENSES
19.1 TRANSACTION EXPENSES
The Company shall promptly on demand pay the Agent and the 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 and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
19.2 AMENDMENT COSTS
If (a) an Obligor requests an amendment, waiver or consent with regard
to any Finance Document or (b) an amendment is required pursuant to
Clause 32.9 (CHANGE OF CURRENCY), the Company shall, within three
Business Days of demand, reimburse the Agent for the amount of all
costs and expenses (including legal fees) reasonably incurred by the
Agent in responding to, evaluating, negotiating or complying with that
request or requirement.
19.3 ENFORCEMENT COSTS
The Company shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the enforcement
of, or the preservation of any rights under, any Finance Document.
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SECTION 7
GUARANTEE
20. GUARANTEE ON FIRST DEMAND (GARANTIE AUF ERSTES ANFORDERN)
20.1 GUARANTEE ON FIRST DEMAND (GARANTIE AUF ERSTES ANFORDERN)
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by each
Borrower of all that Borrower's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever a Borrower
does not pay any amount when due under or in connection with
any Finance Document, that Guarantor shall immediately on
first demand pay that amount as if it was the principal
obligor; and
(c) indemnifies each Finance Party immediately on first 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,
PROVIDED THAT with regard to the guarantee by Xxxxxxxxx Xxxxx
Geschaftsfuhrung AG under this Clause 20, this guarantee shall not
extend to any obligations of Grohe Beteiligungs under the Finance
Document.
20.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of sums payable by any Borrower under the Finance
Documents (including, for clarification purposes, any Facility A2 Loans
outstanding by Xxxxxxxxx Xxxxx following the Borrower Exit Date),
regardless of any intermediate payment or discharge in whole or in
part.
20.3 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
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(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.
20.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 20 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 20 (without limitation and whether or not known to it or
any Finance Party) including:
(a) any time, waiver or consent granted to, or composition with,
any Obligor or other person;
(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of
any member of the Group;
(c) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of, any
Obligor or other person or any non-presentation or
non-observance of any formality or other requirement in
respect of any instrument or any failure to realise the full
value of any security;
(d) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of an Obligor or any other person;
(e) any amendment (however fundamental) or replacement of a
Finance Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document or any
other document or security;
(g) any insolvency or similar proceedings; or
(h) the transfer of Facility A2 Loans from Grohe Beteiligungs to
Xxxxxxxxx Xxxxx.
20.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any 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 20. This waiver
applies irrespective of any law or any provision of a Finance Document
to the contrary.
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20.6 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 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 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 20.
20.7 DEFERRAL OF GUARANTORS' RIGHTS
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Agent otherwise directs, no Guarantor will
exercise any rights which it may have by reason of performance by it of
its obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or
security taken pursuant to, or in connection with, the Finance
Documents by any Finance Party.
20.8 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.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
21. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 21 to each Finance Party on its own behalf and in addition, the
Company makes the representations set out therein on behalf of each
member of the Group on the date of this Agreement.
21.1 STATUS
(a) It is a corporation or partnership, duly incorporated and
validly existing under the law of its jurisdiction of
incorporation.
(b) It and each of its Subsidiaries has the power to own its
assets and carry on its business as it is being conducted.
21.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document
are legal, valid, binding and enforceable obligations.
21.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not conflict:
(a) in any material way with any law or regulation applicable to
it;
(b) with its or any of its Subsidiaries' constitutional documents;
(c) in any material way with any material agreement or instrument
binding upon it or any of its Subsidiaries or any of its or
any of its Subsidiaries' assets other than the Existing Senior
Credit Agreement and any other agreement entered into with any
of the lenders under the Existing Senior Credit Agreement in
connection therewith; or
(d) with the Note Documents, except for the Shareholder Loan
Refinancing, which will not conflict following the Senior
Notes Consent.
21.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
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21.5 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; and
(b) to make the Finance Documents to which it is a party
admissible in evidence in each Relevant Jurisdiction,
have been obtained or effected and are in full force and effect.
21.6 GOVERNING LAW AND ENFORCEMENT
(a) The choice of governing law of each of the Finance Documents
will be recognised and enforced in each Relevant Jurisdiction
of a party to a Finance Document.
(b) Any judgment obtained in the Federal Republic of Germany in
relation to a Finance Document will be recognised and enforced
in each Relevant Jurisdiction of a party to a Finance
Document.
21.7 DEDUCTION OF TAX
Subject to any changes in applicable tax laws that may take place after
the date of the Agreement, it is not required under the law of each
Relevant Jurisdiction to make any deduction for or on account of Tax
from any payment it may make under any Finance Document.
21.8 NO FILING OR STAMP TAXES
Under the law of each Relevant Jurisdiction of a party to a Finance
Document it is not necessary that the Finance Documents be filed,
recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to the Finance Documents or the transactions
contemplated by the Finance Documents.
21.9 NO DEFAULT
(a) No Event of Default is continuing or might reasonably be
expected to result from the making of any Utilisation.
(b) No other event or circumstance is outstanding which
constitutes a default under any other agreement or instrument
which is binding on it or any of its Subsidiaries or to which
its (or its Subsidiaries') assets are subject which might have
a Material Adverse Effect.
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21.10 NO MISLEADING INFORMATION
(a) Any factual information provided by any member of the Group
for the purposes of the Information Memorandum, the Budget,
the Business Plan or any Report was true and accurate in all
material respects as at the date it was provided or as at the
date (if any) at which it is stated.
(b) The financial projections contained in the Information
Memorandum and the Business Plan have been prepared on the
basis of recent historical information and on the basis of
reasonable assumptions.
(c) Nothing has occurred or been omitted from the Information
Memorandum, the Budget, the Business Plan or the Reports and
no information has been given or withheld that results in the
information contained in the Information Memorandum, the
Budget, the Business Plan or the Reports being untrue or
misleading in any material respect.
(d) All written information supplied to any Finance Party by Grohe
Beteiligungs, Xxxxxxxxx Xxxxx or, if required to be supplied
pursuant to any Finance Document, any other party to such
Finance Document is true, complete and accurate in all
material respects as at the date it was given and is not
misleading in any material respect.
21.11 FINANCIAL STATEMENTS
(a) The Original Financial Statements were prepared in accordance
with GAAP consistently applied.
(b) The Original Financial Statements fairly represent its
financial condition and operations (consolidated in the case
of Grohe Holding) during the relevant financial year.
(c) There has been no material adverse change in its business or
financial condition (or the business or consolidated financial
condition of the Grohe Holding Group, in the case of Grohe
Holding) since 31 December 2001.
21.12 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least PARI
PASSU with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
21.13 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which, if adversely determined,
might reasonably be
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expected to have a Material Adverse Effect have been started or (to the
best of its knowledge and belief) threatened against it or any of its
Subsidiaries.
21.14 ENVIRONMENTAL COMPLIANCE
Each member of the Group has performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or agreements directly or
indirectly concerned with any contamination, pollution or waste or the
release or discharge of any toxic or hazardous substance in connection
with any real property which is or was at any time owned, leased or
occupied by any member of the Group or on which any member of the Group
has conducted any activity where failure to do so might reasonably be
expected to have a Material Adverse Effect.
21.15 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against any member of the Group
where that claim would be reasonably likely, if determined against that
member of the Group to have a Material Adverse Effect.
21.16 TAXATION
(a) It and each member of the Group has duly and punctually paid
and discharged all material 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, (ii) it has maintained adequate
reserves for those Taxes and (iii) payment can be lawfully
withheld).
(b) It and each member of the Group is not materially overdue in
the filing of any Tax returns.
(c) No claims are being or are reasonably likely to be asserted
against it or any member of the Group with respect to Taxes
which might reasonably be expected to have a Material Adverse
Effect.
21.17 SECURITY
No Security exists over all or any of the present or future assets of
any Obligor or other member of the Group other than any Security
permitted under Clause 24.3 (NEGATIVE PLEDGE).
21.18 FINANCIAL INDEBTEDNESS
It has no Financial Indebtedness other than Permitted Indebtedness.
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21.19 RANKING
The Transaction Security has or upon release of the Security permitted
under paragraph (c) (i) of Clause 24.3 (NEGATIVE PLEDGE) will have
first ranking priority and it is not subject to any prior ranking or
PARI PASSU ranking Security, except for certain of the land charges
granted by GROHEDAL Sanitarsysteme GmbH & Co. KG, DAL
Sanitartechnologie GmbH and AQUA Xxxxxx GmbH to the Security Agent over
the pieces of land set out in Part II of Schedule 9 (EXISTING
SECURITY), which will rank behind the land charges or, until their
subordination in accordance with Clause 24.25(b), owner's land charges,
as the case may be, granted by the relevant chargors and listed in Part
II of Schedule 9 (EXISTING SECURITY).
21.20 TRANSACTION SECURITY
Each Security Document to which it is a party validly creates the
Security which is expressed to be created by that Security Document and
evidences the Security it is expressed to evidence.
21.21 GOOD TITLE TO ASSETS
It has good, valid and marketable title to, or valid material leases or
licences of, and all appropriate material Authorisations to use, the
material assets necessary to carry on its business as presently
conducted.
21.22 LEGAL AND BENEFICIAL OWNER
It is the legal and, where applicable, beneficial owner of the assets
subject to the Transaction Security.
21.23 SHARES
The shares which are subject to the Transaction Security are fully paid
and not subject to any option to purchase or similar rights. The
constitutional documents of companies whose shares are subject to the
Transaction Security do not and could not restrict or inhibit any
transfer of those shares on creation or on enforcement of the
Transaction Security.
21.24 INTELLECTUAL PROPERTY
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its material Intellectual Property which
could reasonably be expected to have a Material Adverse Effect.
21.25 GROUP STRUCTURE
The Group Structure Chart delivered to the Agent pursuant to Schedule 2
(CONDITIONS Precedent) is true, complete and accurate.
21.26 OWNERSHIP OF THE OBLIGORS
Each Obligor (other than the Company) is a wholly-owned Subsidiary of
the Company.
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21.27 REPETITION
The Repeating Representations shall be made by each Obligor and the
Company (by reference to the facts and circumstances then existing) on:
(a) the date of each Utilisation Request and the first day of each
Interest Period; and
(b) in the case of an Additional Obligor, the day on which the
company becomes (or it is proposed that the company becomes)
an Additional Obligor.
In relation to the Information Memorandum only, the Representations
contained in Clause 21.10(a) to (c) shall be made by each Obligor and
the Company on the date that the Information Memorandum is approved by
the Company and on the Syndication Date.
22. INFORMATION UNDERTAKINGS
The undertakings in this Clause remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
22.1 FINANCIAL STATEMENTS
The Company shall supply to the Agent in sufficient copies for all the
Lenders:
(a) as soon as the same become available, but in any event within
120 days after the end of each of its financial years:
(i) the audited consolidated financial statements for the
Grohe Holding Group for that financial year; and
(ii) the financial statements of each Obligor for that
financial year, audited, if such company is required
by law to prepare audited financial statements; and
(b) as soon as the same become available, but in any event within
45 days after the end of each Financial Quarter ending on any
of the first three Quarter Dates of any financial year and
within 75 days after the end of each Financial Quarter ending
on the last Quarter Date of any financial year, the
consolidated interim financial statements for the Grohe
Holding Group for that period (in case the relevant financial
statements of a financial year are not yet available in
audited form the aforementioned reports relevant for the
fourth Financial Quarter of a financial year will be based on
unaudited numbers). Such interim financial statements shall be
on a quarter-to-quarter and cumulative basis and in a form
reasonably
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acceptable to the Agent and shall include a balance sheet,
profit and loss account and cash-flow statements and a written
discussion and analysis of the relevant balance sheet and cash
flow statements with regard to variances between actual and
projected numbers; such aforementioned consolidated interim
financial statements shall also contain a comparison of actual
performance by the Grohe Holding Group with the performance in
the corresponding period in the previous financial year and,
prior to a Qualifying Public Offering, the performance
projected by the Budget for such period;
(c) prior to the occurrence of the Qualifying Public Offering, as
soon as the same become available, but in any event within 45
days after the end of each calendar Month the consolidated
unaudited management accounts for the Grohe Holding Group for
that period. Such management accounts shall be on a
month-to-month and cumulative basis and in a form reasonably
acceptable to the Agent and shall include a pre-tax profit and
loss account and provide a management commentary thereon; such
aforementioned pre-tax profit and loss account shall contain a
comparison of actual performance by the Grohe Holding Group
with the performance in the corresponding period in the
previous financial year and, prior to a Qualifying Public
Offering, the performance projected by the Budget for such
period, and shall further contain a list of orders in hand and
orders received, a list of inventory, capital expenditure,
claims/receivables and liabilities, a statement of cash
balances including cash at bank and statement of liabilities
to banks, each as per the end of the relevant month;
(d) after the occurrence of the Qualifying Public Offering as soon
as the same become available, but in any event within a time
frame appropriate for a public company listed on a recognised
investment or securities exchange in any country, after the
end of each half of each of the financial years the
consolidated financial statements for the Grohe Holding Group
for that financial half year, or, if required pursuant to the
applicable stock exchange rules, after the end of each
Financial Quarter of the financial years, the consolidated
financial statements for that Financial Quarter; and
(e) quarterly reports as soon, to the extent and in the form the
same are submitted under the Senior Notes.
22.2 COMPLIANCE CERTIFICATE
(a) The Company shall supply to the Agent, with each set of
quarterly consolidated interim financial statements for the
Grohe Holding Group
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delivered pursuant to Clause 22.1(b) or quarterly or
half-yearly consolidated interim financial statements for the
Grohe Holding Group delivered pursuant to Clause 22.1(d) and
each set of financial statements delivered pursuant to Clause
22.1(a)(i), a Compliance Certificate setting out (in
reasonable detail) computations as to compliance with Clause
23 (FINANCIAL COVENANTS) as at the date as at which the
consolidated financial statements of the Grohe Holding Group
were drawn up.
(b) Each Compliance Certificate shall be signed by the financial
officer(s) of the Company authorised to bind the Company and,
if required to be delivered with the financial statements
delivered pursuant to paragraph (a)(i) of Clause 22.1
(FINANCIAL statements), by the Company's auditors.
22.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered by the Company
pursuant to Clause 22.1 (FINANCIAL STATEMENTS) shall be
certified by a director of the relevant company as fairly
representing its financial condition (or, in the case of
audited consolidated financial statements to be delivered by
the Company, the consolidated financial condition of the Grohe
Holding Group) as at the date as at which those financial
statements were drawn up.
(b) The Company shall procure that each set of financial
statements delivered pursuant to Clause 22.1 (FINANCIAL
STATEMENTS) is prepared using GAAP, except with regard to the
monthly management accounts delivered pursuant to Clause
22.1(c), in so far as the application of budget exchange rates
and the presentation of specific profit and loss lines are
concerned.
22.4 ACCOUNTING POLICIES
Each Obligor shall ensure that each set of financial statements
delivered pursuant to this Clause 22, but excluding the monthly
management accounts delivered pursuant to Clause 22.1(c), is prepared
using accounting policies, practices, procedures and reference period
consistent with those applied in the preparation of the Original
Financial Statements (with normal period end adjustments for quarterly
accounts) unless, in relation to any such set of financial statements,
the relevant Obligor notifies the Agent that there have been one or
more material changes in any such accounting policies, practices,
procedures or reference period and it or, after consultation with it
and if reasonably requested by the Agent, the auditors of such Obligor
provide:
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22.4.1 a description of such changes and the adjustments which would be
required to be made to those financial statements in order to cause
them to use the accounting policies, practices, procedures and
reference period upon which the Original Financial Statements were
prepared; and
22.4.2 sufficient information, in such detail and format as may be reasonably
required by the Agent, to enable the Lenders to make an accurate
comparison between the financial position indicated by those financial
statements and the Original Financial Statements.
If there has been a material change in accounting policies, practices,
procedures or reference period and the description and information
required by this Clause 22.4 have been provided by the relevant Obligor
or the auditors, as the case may be, in connection with such change and
any amendments have been agreed pursuant to Clause 22.5 (CHANGE IN
ACCOUNTING POLICY) in connection with such change, then such change
shall become part of the normal accounting policies, practices,
procedures and reference period as if it were used in the preparation
of the Original Financial Statements.
22.5 CHANGE IN ACCOUNTING POLICIES
If there has been one or more such material changes in any accounting
policies, practices or procedures or reference period:
22.5.1 the Agent and the Company shall (in consultation with the auditors of
the Company), at the Agent's request, negotiate in good faith with a
view to agreeing such amendments to the financial covenants in Clause
23 (FINANCIAL COVENANTS), the margin ratchet in Clause 11.3 (MARGIN
RATCHET), and the mandatory prepayment from excess cash in Clause 10.4
(MANDATORY PREPAYMENT FROM EXCESS CASH) and/or in each case, the
definitions used therein as may be necessary to grant to the Lenders
protection comparable to that granted on the date hereof, and any
amendments as agreed will have effect on the date agreed between the
Agent and the Company; and
22.5.2 if no such agreement is reached within 30 days of the Agent's request,
the Agent shall (if so requested by the Majority Lenders) instruct the
auditors of the Company or independent accountants (approved by the
Company or, in the absence of such approval within 5 days of request by
the Agent therefore, a firm with recognised expertise) to determine any
amendment to Clause 23 (FINANCIAL COVENANTS), Clause 11.3 (MARGIN
RATCHET), and Clause 10.4 (MANDATORY PREPAYMENT FROM EXCESS CASH) which
those auditors or, as the case may be, accountants (acting as experts
and not arbitrators) consider appropriate to grant to the Lenders
protection comparable to that granted on the date hereof, which
amendments shall take effect when so determined by those auditors, or
as the case may be, accountants. Where such auditors or accountants are
instructed
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hereunder, the cost and expense of those auditors or accountants shall
be for the account of the Company.
22.6 BUDGET
Prior to the occurrence of the Qualifying Public Offering, the Company
shall supply to the Agent in sufficient copies for all Lenders no later
than ten days before the end of any financial year an annual Budget,
and, no later than sixty days following the beginning of any financial
year an annual Budget prepared by reference to each Financial Quarter,
in respect of such financial year of the Grohe Holding Group including:
(a) projected annual profit and loss accounts and projected
balance sheet and cash flow statements on a quarterly basis
for such financial year on a consolidated basis for the Grohe
Holding Group;
(b) projected capital expenditure to be incurred on a quarterly
basis for such financial year on a consolidated basis for the
Grohe Holding Group;
(c) projected EBITDA/EBITA at the end of each Financial Quarter in
such financial year; and
(d) a written analysis concerning the basic assumptions of such
projected financial statements.
22.7 INFORMATION: MISCELLANEOUS
The Company shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) all documents publicly available dispatched by the Company or
Grohe Holding or, following a Listing, by the relevant listed
company, to its shareholders (or any class of them) and all
documents dispatched by Grohe Holding to its creditors under
the Senior Notes or under any other Financial Indebtedness at
the same time as they are dispatched;
(b) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which
are current, threatened or pending against any member of the
Group, and which might, if adversely determined, have a
Material Adverse Effect; and
(c) promptly, such further information regarding the financial
condition, business and operations of Grohe Holding or any
member of the Group as any Finance Party (through the Agent)
may reasonably request.
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22.8 NOTIFICATION OF DEFAULT
(a) Each Obligor shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence (unless that Obligor is aware
that a notification has already been provided by another
Obligor).
(b) Promptly upon a request by the Agent, the Company shall supply
to the Agent a certificate signed by two of its directors or
senior officers on its behalf certifying that no Default is
continuing (or if a Default is continuing, specifying the
Default and the steps, if any, being taken to remedy it).
22.9 OTHER INFORMATION
22.9.1 Each Borrower and the Company in respect of the affairs of any member
of the Group will undertake the following measures only after having
notified the Agent in writing in advance thereof on a timely basis, and
shall procure that all members of the Group so notify the Agent in
writing in advance:
(a) any change of circumstances relevant for the contents of the
Commercial Register extracts (other than, with regard to
Xxxxxxxxx Xxxxx, a change in the person holding such limited
partnership interests which at the date of this Agreement are
not held by a member of the Group) and Articles of Association
of the Company, any Obligor and any Material Company to the
extent that such change relates to the shareholders, the share
capital, the registered office, the management and the legal
form of the respective entity; and
(b) any disposal of assets by the Company, any Obligor and any
Material Company which is not a Permitted Disposal.
22.9.2 In all notifications pursuant to this Clause 22.9, the Company shall
explain in writing whether and to what extent the circumstances
disclosed pursuant to this Clause 22.9 may affect the financial
situation of the Obligors and each of the relevant members of the
Group. The Agent (on behalf of the Majority Lenders) will determine on
a case-by-case basis in their own discretion (acting reasonably),
following a written request by the Company, within fifteen Business
Days after submission of the relevant documents and information whether
the relevant circumstances may have a Material Adverse Effect. The
Lenders shall be entitled to determine the scope of documents and
information relevant for their decision.
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22.10 ANNUAL PRESENTATION
Once in every financial year of the Company prior to the occurrence of
the Qualifying Public Offering, at least two executive directors of the
Company will give a presentation to the Lenders, at a time and venue
agreed with the Agent, about the business and financial performance of
the Grohe Holding Group and any such other related matters as any of
the Lenders may reasonably request.
22.11 USE OF WEBSITES
(a) The Company may satisfy its obligation under this Agreement to
deliver any information in relation to those Lenders (the
"WEBSITE LENDERS") who accept this method of communication by
posting this information onto an electronic website designated
by the Company and the Agent (the "DESIGNATED WEBSITE") if:
(i) the Agent expressly agrees (after consultation with
each of the Lenders) that it will accept
communication of the information by this method;
(ii) both the Company and the Agent are aware of the
address of and any relevant password specifications
for the Designated Website; and
(iii) the information is in a format previously agreed
between the Company and the Agent.
If any Lender (a "PAPER FORM LENDER") does not agree to the
delivery of information electronically then the Agent shall
notify the Company accordingly and the Company shall supply
the information to the Agent (in sufficient copies for each
Paper Form Lender) in paper form. In any event the Company
shall supply the Agent with at least one copy in paper form of
any information required to be provided by it.
(b) The Agent shall supply each Website Lender with the address of
and any relevant password specifications for the Designated
Website following designation of that website by the Company
and the Agent.
(c) The Company shall promptly upon becoming aware of its
occurrence notify the Agent if:
(i) the Designated Website cannot be accessed due to
technical failure;
(ii) the password specifications for the Designated
Website change;
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(iii) any new information which is required to be provided
under this Agreement is posted onto the Designated
Website;
(iv) any existing information which has been provided
under this Agreement and posted onto the Designated
Website is amended; or
(v) the Company becomes aware that the Designated Website
or any information posted onto the Designated Website
is or has been infected by any electronic virus or
similar software.
If the Company notifies the Agent under paragraph (c)(i) or
paragraph (c)(v) above, all information to be provided by the
Company under this Agreement after the date of that notice
shall be supplied in paper form unless and until the Agent and
each Website Lender is satisfied that the circumstances giving
rise to the notification are no longer continuing.
(d) Any Website Lender may request, through the Agent, one paper
copy of any information required to be provided under this
Agreement which is posted onto the Designated Website. The
Company shall comply with any such request within ten Business
Days.
23. FINANCIAL COVENANTS
23.1 FINANCIAL COVENANTS AND INCURRENCE TEST
23.1.1 FIXED CHARGE COVER: Fixed Charge Cover for each Relevant Period ending
on a Quarter Date prior to the occurrence of the Qualifying Public
Offering shall not be less than 1.0:1
"FIXED CHARGE COVER" means, in relation to any Relevant Period, the
ratio of Consolidated Operating Cash Flow to Net Debt Service for such
Relevant Period.
23.1.2 TOTAL NET INTEREST COVER: Total Net Interest Cover for each Relevant
Period specified in column 1 below which is before the occurrence of
the Qualifying Public Offering shall not be less than the ratio set out
in column 2 below opposite such Relevant Period
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COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO
(ENDING ON)
30 June 2003 2.60:1
30 September 2003 2.60:1
31 December 2003 2.60:1
31 March 2004 2.70:1
30 June 2004 2.70:1
30 September 2004 2.75:1
31 December 2004 2.75:1
31 March 2005 2.95:1
30 June 2005 3.10:1
30 September 2005 3.25:1
31 December 2005 3.40:1
31 March 2006 3.55:1
30 June 2006 3.65:1
30 September 2006 3.80:1
31 December 2006 3.90:1
31 March 2007 4.00:1
30 June 2007 4.10:1
30 September 2007 4.20:1
31 December 2007 4.25:1
and any Quarter Date
thereafter
PROVIDED THAT for each Relevant Period ending on a Quarter Date after
the occurrence of the Qualifying Public Offering the ratios shall be
not less than 2.50:1 or, for the purpose of the incurrence test
referred to in paragraph (f) of the definition of Permitted Transaction
3.00:1.
"TOTAL NET INTEREST COVER" means, in relation to any Relevant Period,
the ratio of EBITDA to Consolidated Net Finance Charges for such
Relevant Period.
23.1.3 SENIOR DEBT LEVERAGE: Senior Debt Leverage in respect of each Quarter
Date prior to the occurrence of the Qualifying Public Offering
specified in column 1 below shall not be more than the ratio set out in
column 2 below opposite such Quarter Date.
COLUMN 1 COLUMN 2
QUARTER DATE RATIO
30 June 2003 3.20:1
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30 September 2003 3.20:1
31 December 2003 3.00:1
31 March 2004 3.00:1
30 June 2004 2.90:1
30 September 2004 2.85:1
31 December 2004 2.75:1
31 March 2005 2.75:1
30 June 2005 2.50:1
30 September 2005 2.40:1
31 December 2005 2.25:1
31 March 2006 2.25:1
30 June 2006 2.00:1
30 September 2006 1.90:1
31 December 2006 1.75:1
31 March 2007 1.75:1
30 June 2007 1.65:1
30 September 2007 1.60:1
31 December 2007 and any 1.50:1
Quarter Date thereafter
"SENIOR DEBT LEVERAGE" means, in respect of any Quarter Date, the ratio
of Total Net Senior Debt to EBITDA for the Relevant Period ending on
that Quarter Date.
23.1.4 TOTAL DEBT LEVERAGE: Total Debt Leverage in respect of each Quarter
Date specified in column 1 below shall not be more than the ratio set
out in column 2 below opposite such Quarter Date
COLUMN 1 COLUMN 2
QUARTER DATE RATIO
30 June 2003 4.50:1
30 September 2003 4.50:1
31 December 2003 4.30:1
31 March 2004 4.30:1
30 June 2004 4.20:1
30 September 2004 4.15:1
31 December 2004 4.10:1
31 March 2005 4.10:1
30 June 2005 3.85:1
30 September 2005 3.75:1
31 December 2005 3.60:1
31 March 2006 3.60:1
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30 June 2006 3.30:1
30 September 2006 3.15:1
31 December 2006 3.00:1
31 March 2007 3.00:1
30 June 2007 2.75:1
30 September 2007 2.65:1
31 December 2007 and any Quarter 2.50:1
thereafter
PROVIDED THAT for each Relevant Period ending after the occurrence of
the Qualifying Public Offering the ratios shall be as set out in column
2 below
COLUMN 1 COLUMN 2 COLUMN 3
QUARTER DATE RATIO RATIO
30 June 2003 4.00:1 3.00:1
30 September 2003 4.00:1 3.00:1
31 December 2003 4.00:1 3.00:1
31 March 2004 4.00:1 3.00:1
30 June 2004 4.00:1 3.00:1
30 September 2004 4.00:1 3.00:1
31 December 2004 4.00:1 3.00:1
31 March 2005 4.00:1 3.00:1
30 June 2005 4.00:1 3.00:1
30 September 2005 4.00:1 3.00:1
31 December 2005 4.00:1 3.00:1
31 March 2006 4.00:1 3.00:1
30 June 2006 4.00:1 3.00:1
30 September 2006 4.00:1 3.00:1
31 December 2006 4.00:1 3.00:1
31 March 2007 3.00:1 3.00:1
30 June 2007 3.00:1 3.00:1
30 September 2007 3.00:1 3.00:1
31 December 2007 and any 3.00:1 3.00:1
Quarter thereafter
"TOTAL DEBT LEVERAGE" means, in respect of any Quarter Date, the ratio
of Total Net Debt to EBITDA for the Relevant Period ending on that
Quarter Date.
23.2 FINANCIAL DEFINITIONS
In Clause 23 (FINANCIAL COVENANTS) the following terms have the
following meanings and shall relate, in each case, to the Grohe Holding
Group on a consolidated basis.
"CASH EQUIVALENTS" means;
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(a) debt securities denominated in euro or any currency the
exchange rate of which has been irrevocably fixed to euro
issued by the Federal Republic of Germany or any of its
federal states (BUNDESLANDER), any other Participating Member
State or a member state of the European Union of which such
currency is the lawful currency having not more than 6 months
to final maturity which are not convertible into any other
form of security; and
(b) debt securities (denominated in euro) or any other currency
the exchange rate of which has been irrevocably fixed to euro,
or in an Optional Currency which have not more than 90 days to
final maturity, are not convertible into any other form of
security, are rated not less than P1 (Xxxxx'x) or A-1
(Standard and Poor's), and are not issued or guaranteed by any
member of the Grohe Holding Group; and
(c) such other securities (if any) as are approved as such in
writing by the Agent.
"CONSOLIDATED NET FINANCE CHARGES" means, in respect of any Relevant
Period, the aggregate amount of the consolidated interest, commission,
fees, discounts, other finance payments and dividends payable or made
by any member of the Grohe Holding Group INCLUDING any commission,
fees, discounts and other finance payments payable by any member of the
Grohe Holding Group under any interest rate hedging arrangement and
excluding any capitalised interest BUT DEDUCTING (a) any commission,
fees, discounts and other finance payments receivable by any member of
the Grohe Holding Group under any interest rate hedging instrument
permitted by this Agreement, (b) any interest receivable by any member
of the Grohe Holding Group on any deposit (including from time deposit
investments) or bank account from any member outside the Grohe Holding
Group and (c) all fees and other finance payments incurred by any
member of the Grohe Holding Group in connection with this Agreement,
the purchase of Xxxxxxxxx Xxxxx by Grohe Holding or any Permitted
Acquisition.
"CONSOLIDATED NET INTEREST EXPENSE" means Consolidated Net Finance
Charges plus capitalised interest payable by any member of the Grohe
Holding Group to any person which is not a member of the Grohe Holding
Group.
"CONSOLIDATED OPERATING CASH FLOW" means, in respect of the Grohe
Holding Group in relation to any period (and on the basis that there is
no double counting), EBITDA for that period:
(a) plus any increase or minus any decrease in provisions for
liabilities other than Short-Term Liabilities and charges made
in respect of that period;
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(b) plus any decrease, or minus any increase, in Short-Term Assets
at the end of such period compared against the Short-Term
Assets at the beginning of such period;
(c) plus any increase, or minus any decrease, in Short-Term
Liabilities at the end of such period compared against the
Short-Term Liabilities at the beginning of such period;
(d) plus, to the extent not already taken into account of in
EBITDA, the net proceeds of assets other than Short Term
Assets disposed of during that period;
(e) minus any investment in fixed assets, i.e. any expenditure or
obligations in respect of expenditure for the acquisition of
real property, plants, equipment and other assets which in
accordance with GAAP is treated as capital expenditure and
including the capital element of any expenditure or obligation
incurred in connection with a Finance Lease;
(f) plus any increase, or minus any decrease in special fixed
assets items, i.e. items pursuant to Section 6b of the German
Income Tax Law and Section 4 German Assisted Areas Law and
items for investment grants and premiums to fixed assets;
(g) plus any receipts by way of extraordinary or exceptional items
and minus any payments by way of extraordinary or exceptional
items, in each case, received or made during that period;
(h) minus any dividends actually paid in cash or cash dividends
declared by any member of the Grohe Holding Group to any
person who is not a member of the Grohe Holding Group for that
period;
(i) plus any non-cash items charged or amortised and minus any
non-cash items credited against the Grohe Holding Group's
consolidated profit and loss account in such period (but
excluding the items referred to in the definition of EBITDA);
(j) plus, to the extent not already taken account of in EBITDA,
(i) all payments by any vendor to a member of the Grohe
Holding Group under any acquisition agreement relating to
Permitted Acquisitions received in cash, in such period to the
extent not applied in prepaying the Term Facilities and (ii)
all payments received in cash in such period from any such
vendor in respect of purchase price adjustments in respect of
working capital, capital expenditure and other items set out
in the acquisition agreement;
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(k) plus, to the extent not already taken account of in EBITDA,
income from participating interests in associated undertakings
to the extent received in cash and minus any payment made to
associated undertakings during that period;
(l) plus realised exchange gains and minus realised exchange
losses charged during that period to the extent not already
taken account of in EBITDA for that period;
(m) minus the aggregate of all corporation or other similar taxes
paid during that period;
(n) plus any amounts to the extent funded from Permitted
Indebtedness incurred pursuant to paragraphs (n) or, if and to
the extent used to finance a Permitted Acquisition, (m) of the
definition of Permitted Indebtedness, cash contributions (by
the way of a capital increase or payment into the reserves in
cash or in kind) made to the Company by its direct or indirect
shareholders or by Shareholder Loans;
(o) plus any transaction costs paid in connection with the
refinancing of the Existing Senior Credit Agreement and the
Shareholder Loan Refinancing, to the extent funded out of
Financial Indebtedness incurred by any member of the Group or
additional equity provided to any member of the Group.
"DEPRECIATION" has the meaning given to that term by GAAP.
"EBITA" means, in respect of any Relevant Period, (and on the basis
that there is no double counting) EBITDA minus Depreciation;
"EBITDA" means, for any Relevant Period, (and on the basis that there
is no double counting) the aggregate of:
(a) the consolidated net income of the Grohe Holding Group for
that period after taking into account profit attributable to
minority interests, before deducting
(i) any provision on account of taxation;
(ii) Consolidated Net Interest Expenses;
(iii) Depreciation;
(iv) amounts of the value attributed to goodwill or step
up written-off during such period or charged to the
profit and loss account of the Grohe Holding Group
during such period;
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(v) amounts amortized against, or charged to, the profit
and loss account of the Grohe Holding Group during
such period in respect of fees, out-of-pocket costs
and expenses and taxes incurred by any member of the
Grohe Holding Group in connection with this
Agreement, the purchase of Xxxxxxxxx Xxxxx by Grohe
Holding or any Permitted Acquisition; and
(b) any items treated as exceptional or extraordinary items.
"FINANCIAL QUARTER" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"NET DEBT SERVICE" means, in respect of any Relevant Period, the
aggregate of:
(a) Consolidated Net Finance Charges; and
(b) the aggregate of scheduled and mandatory payments (except for
mandatory prepayments pursuant to Clause 10.4 (MANDATORY
PREPAYMENT FROM EXCESS CASH) of any Indebtedness for Borrowed
Money falling due but excluding any amounts falling due under
any Indebtedness for Borrowed Money referred to in paragraph
(e) of the definition of Permitted Indebtedness or under the
Revolving Facility other than any payments required to be made
in permanent reduction of the Revolving Facility and excluding
the amount of any payment falling due under Finance Leases.
"NET IPO PROCEEDS" means with respect to any issuance of new shares,
the cash proceeds of such issuance net of attorneys' fees,
underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees actually incurred in connection
with such issuance and net of taxes paid or payable as a result
thereof.
"OPERATING EXCESS CASH FLOW" means, for any period for which it is
being calculated, Consolidated Operating Cash Flow for that period of
Xxxxxxxxx Xxxxx and its Subsidiaries LESS
(a) (to the extent incurred by Xxxxxxxxx Xxxxx and its
Subsidiaries) Net Debt Service (without double counting
Consolidated Net Finance Charges) for such period;
(b) the amount of distributions made by Xxxxxxxxx Xxxxx to Grohe
Beteiligungs (including by way of withdrawals from the
partners' accounts) in such period up to the amount necessary
for Grohe Beteiligungs (i) to meet its scheduled payment
obligations falling due in such period under this Agreement,
(ii) to make payments to Grohe
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Holding during such period, if such payments are permitted
under this Agreement, and (iii) to finance payments due by
Grohe Beteiligungs during such period, to the extent such
payment obligation was not incurred in breach of the Finance
Documents; and
(c) the amount of distributions made to minority shareholders of
Xxxxxxxxx Xxxxx or any of its Subsidiaries (including by way
of withdrawals from the partners' accounts) in such period
PROVIDED THAT with regard to distributions to minority
shareholders of Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxx is obliged by
law to make such distributions and allow such withdrawals.
"QUARTER DATE" means each of 31 March, 30 June, 30 September and 31
December.
"RELEVANT PERIOD" means each period of twelve months ending on the last
day of each Financial Quarter of the Company's financial year.
"SHORT-TERM ASSETS" means the aggregate of inventory, trade and other
receivables (including, for clarification purposes, receivables from
unconsolidated associated companies and prepaid expenses) of each
member of the Grohe Holding Group including sundry debtors (but
excluding cash and Cash Equivalents) maturing within twelve months from
the date of computation and excluding amounts due from any vendor in
connection with a Permitted Acquisition and further excluding
intra-group items.
"SHORT-TERM LIABILITIES" means the aggregate of all liabilities
(including trade creditors, accruals and provisions and prepayments and
including further, for clarification purposes, liabilities to
unconsolidated associated companies and prepaid expenses) of each
member of the Grohe Holding Group falling due within twelve months from
the date of computation but excluding consolidated aggregate Financial
Indebtedness of the Grohe Holding Group falling due within such period
and any interest accruing on such Financial Indebtedness due in such
period and excluding amounts due to any vendors in connection with a
Permitted Acquisition and further excluding intra-group items.
"TOTAL NET DEBT" means, at any time (without double counting), the
aggregate amount of all obligations of any member of the Grohe Holding
Group for or in respect of Indebtedness for Borrowed Money (including
under this Agreement and under the Senior Notes Loan) but excluding any
such obligation to any other member of the Grohe Holding Group and
excluding further any such obligation in respect of Shareholder Loans
to the extent they constitute Permitted Indebtedness pursuant to
paragraph (d) of such definition, Grohe Holding Shareholder Loans
subordinated pursuant to the Grohe Holding Subordination
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Agreement and Indebtedness for Borrowed Money to the extent incurred by
Grohe Holding on terms set out in Clause 24.14(i) to repay Grohe
Holding Shareholder Loans in accordance with Clause 24.14 (SUBORDINATED
DEBT) and applied against such repayment, minus cash and Cash
Equivalents held by any member of the Group and only for the purpose of
determining whether a Qualifying Public Offering has occurred the Net
IPO Proceeds (and so that no amount shall be included or excluded more
than once).
"TOTAL NET SENIOR DEBT" means, at any time (without double counting),
the aggregate amount of all obligations of any Grohe Holding Group
member under the Finance Documents and the Existing Senior Credit
Agreement minus cash and Cash Equivalents held by any member of the
Group, including cash on the Escrow Account (and so that no amount
shall be included or excluded more than once).
"WITHDRAWAL PERIOD" means in relation to each calendar year each of the
periods commencing on 1 July and ending 30 November and commencing 1
December and ending 30 June, respectively.
23.3 FINANCIAL TESTING
The financial covenants set out in Clause 23 (FINANCIAL COVENANTS)
shall be tested by reference to each of the financial statements and/or
each Compliance Certificate delivered pursuant to Clause 22
(INFORMATION UNDERTAKINGS), however, for the first time by reference to
the statements for the first Quarter Date falling after the date of
this Agreement. For the purpose of the testing of the financial
covenants set out in Clause 23 any Subsidiary acquired by a member of
the Grohe Holding Group in the course of a Financial Quarter including
any Unrestricted Company designated a member of the Grohe Holding Group
in accordance with Clause 24.27 (DESIGNATION OF UNRESTRICTED COMPANY)
shall be deemed to have been acquired by that member of the Grohe
Holding Group (or designated a member of the Grohe Holding Group) on
the first day of that Financial Quarter.
23.4 ADJUSTMENTS
Notwithstanding any other provision of this Agreement, for the purpose
of calculating the ratio of Consolidated Operating Cash Flow to Net
Debt Service and EBITDA to Consolidated Net Finance Charges in relation
to any Relevant Period ending on any Quarter Date before 31 March 2004,
Consolidated Net Finance Charges and Net Debt Service shall be equal to
an amount of Consolidated Net Finance Charges or Net Debt Service, as
the case may be,
(i) in relation to the Relevant Period ending on 30 June
2003, equal to the respective amount for the
Financial Quarter ending on June 2003 multiplied by
four;
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(ii) in relation to the Relevant Period ending on 30
September 2003, equal to the respective amount for
the period ending on 30 September 2003 divided by two
and multiplied by four; and
(iii) in relation to the Relevant Period ending on 31
December 2003, equal to the respective amount for the
period ending on 31 December 2003 divided by three
and multiplied by four, PROVIDED THAT for the purpose
of calculating Net Debt Service the scheduled
payments for Indebtedness for Borrowed Money incurred
under this Agreement shall not be higher than the
total repayment amount scheduled for the calendar
year 2003 as set out in Clause 9.1 (REPAYMENT OF
FACILITY A1 AND FACILITY A2 LOANS).
23.5 AUDITOR'S VERIFICATION
The Agent may, at any time and after consultation with the Company, if
it demonstrates that it has grounds for believing that the figures
prepared by the Company are materially incorrect, inaccurate or
in-complete at the Company's expense require the auditors of the Grohe
Holding Group to verify the figures supplied by the Company in
connection with:
(a) the financial covenants set out in Clause 23.1 (FINANCIAL
COVENANTS), or the financial covenants to be satisfied in
order to permit a reduction in margin in accordance with
Clause 11.3 (MARGIN RATCHET) or the ratio of Total Net Debt to
EBITDA referred to elsewhere in this Agreement or any other
Finance Document; or
(b) the financial covenants to be satisfied in order to permit a
reduction in L/C Commission Rate or Guarantee Commission Rate
in accordance with the definition thereof.
The Agent may, in accordance with this Clause 23.5, request
verification of any figure or calculation made in a Compliance
Certificate delivered under Clause 22.2 (COMPLIANCE CERTIFICATES)
and/or any figure contained in the financial statements delivered under
Clause 22 (INFORMATION UNDERTAKINGS) which is relevant to the
calculation of the financial covenants referred to above.
If such auditors fail to verify such figures to the satisfaction of the
Agent after being requested to do so, the Agent may appoint an
independent firm of accountants to carry out an appropriate
investigation and give a certificate in a form and content satisfactory
to the Agent certifying or verifying the relevant figures and
satisfaction of the above financial covenants shall be determined by
reference to the figures so verified or certified even if the audited
or management accounts for the same date or period have not yet been
published.
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23.6 ACCOUNTING TERMS
All accounting expressions to the extent that not otherwise defined
herein shall be construed in accordance with generally accepted
accounting principles in the Federal Republic of Germany.
24. GENERAL UNDERTAKINGS
The undertakings in this Clause 24 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
24.1 AUTHORISATIONS
Each Obligor shall and the Company shall ensure that each member of the
Group shall promptly:
(a) obtain, comply with and do all that is necessary to maintain
in full force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of the Relevant
Jurisdictions to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or
admissibility in evidence in each Relevant Jurisdiction of any Finance
Document.
24.2 COMPLIANCE WITH LAWS
Each Obligor shall and the Company shall ensure that each member of the
Group shall comply in all respects with all laws to which it may be
subject, if failure so to comply would materially impair its ability to
perform its obligations under the Finance Documents.
24.3 NEGATIVE PLEDGE
(a) No Obligor shall (and the Company shall ensure that no other
member of the Group will) prior to the occurrence of a
Qualifying Public Offering create or permit to subsist any
Security over any of its assets.
(b) Prior to a Qualifying Public Offering, no Obligor shall (and
the Company shall procure that no other member of the Group
will):
(i) sell, transfer or otherwise dispose of any of its
assets on terms whereby they are or may be leased to
or re-acquired by an Obligor or any other member of
the Group;
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(ii) sell, transfer or otherwise dispose of any of its
receivables on recourse terms except to the extent
this constitutes Permitted Indebtedness;
(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;
(iv) enter into any other preferential arrangement having
a similar effect,
in circumstances where the arrangement or transaction is
entered into primarily as a method of raising Financial
Indebtedness or of financing the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to:
(i) any Security securing the Refinanced Facilities
listed in Part I of Schedule 9 (EXISTING SECURITY)
PROVIDED THAT that Security is released in accordance
with Clause 24.25 (CONDITIONS SUBSEQUENT);
(ii) any Security listed in Part II of Schedule 9
(EXISTING SECURITY) except to the extent the
principal amount secured by that Security exceeds the
amount stated in that Schedule;
(iii) any netting or set-off arrangement entered into by
any member of the Group in the ordinary course of its
banking arrangements for the purpose of netting debit
and credit balances;
(iv) any lien arising by operation of law and in the
ordinary course of trading other than as a result of
a default;
(v) any Security created in relation to the netting of
Group bank account balances;
(vi) any Security arising pursuant to an order of
attachment or injunction restraining disposed of
assets or similar legal process arising in connection
with court proceedings being contested by the
relevant Obligor or other member of the Group in good
faith with a reasonable prospect of success where the
amount of any claims being contested does not exceed
EUR 3,000,000 in aggregate in respect of all Obligors
and other member of the Group;
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(vii) any retention of title of goods supplied to the
relevant Obligor or other member of the Group where
such retention is agreed in the ordinary course of
its trading activities and on customary terms;
(viii) any customary Security in favour of shippers and
forwarders agreed in the ordinary course of trading
activities and on customary terms;
(ix) any Security constituted by a Finance Lease, hire
purchase or conditional sale agreement where the
Financial Indebtedness arising under such arrangement
constitutes Permitted Indebtedness;
(x) any Security arising under the general business
conditions of German banks or similar provisions of
other banks with whom any Obligor or other member of
the Group maintains a banking relationship in the
ordinary course of business;
(xi) any Security over or affecting any asset acquired by
an Obligor or other member of the Group after the
date hereof and subject to which such asset is
acquired PROVIDED THAT in any case;
(1) such Security was not created in
contemplation of the acquisition of such
asset by the Obligor or other member of the
Group;
(2) the amount thereby secured has not been
increased in contemplation of, or since the
date of, the acquisition of such asset by
the Obligor or other member of the Group;
and
(3) such Security is removed or discharged
within three months of the date of
acquisition of such asset;
(xii) until the occurrence of the Qualifying Public
Offering any Security over assets acquired pursuant
to a Permitted Acquisition that secures Financial
Indebtedness incurred to finance such acquisition
constituting Permitted Indebtedness under paragraph
(m) or (n) of such definition;
(xiii) the Transaction Security; or
(xiv) any Security securing indebtedness the principal
amount of which (when aggregated with the principal
amount of any other indebtedness which has the
benefit of Security given by any
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Obligor or other member of the Group other than any
Security permitted under paragraphs (i) to (xiii)
above) does not exceed EUR 25,000,000.
(d) After the occurrence of the Qualifying Public Offering, no
Obligor shall (and the Company shall ensure that no other
member of the Group will) create or permit to subsist any
Security over any of its assets unless equivalent Security is
simultaneously granted to the Security Agent for the benefit
of the Finance Parties.
This does not apply to the Security listed in Clause 24.3(c)
of this Agreement, but excluding the Security listed in Clause
24.3(c)(xii).
24.4 MERGER
Prior to the occurrence of the Qualifying Public Offering, no Obligor
shall (and the Company shall ensure that no other member of the Group
will) enter into any amalgamation, demerger, merger or corporate
reconstruction other than between members of the Group but excluding
Obligors, unless such Obligor is merged with a Group member existing as
of the date of this Agreement and which is not a member of the Group
referred to in the last paragraph of Clause 25.7 (INSOLVENCY) and the
Obligor is the surviving entity and in each case PROVIDED that such
transactions do not adversely affect the Transaction Security.
24.5 CHANGE OF BUSINESS
The Company shall procure that no substantial change is made to the
general nature of the business of the Company or the Group from that
carried on at the date of this Agreement.
24.6 INSURANCE
Each Obligor shall (and the Company shall ensure that each member of
the Group will) maintain insurances on and in relation to its business
and assets with reputable underwriters or insurance companies against
those risks and to the extent as is usual for companies carrying on the
same or substantially similar business (including against loss of
earnings).
24.7 ENVIRONMENTAL COMPLIANCE
Each Obligor shall (and the Company shall ensure that each member of
the Group will) comply in all material respects with all Environmental
Law and obtain and maintain any Environmental Permits and take all
reasonable steps in anticipation of known or expected future changes to
or obligations under the same where failure to do so might reasonably
be expected to have a Material Adverse Effect.
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24.8 ENVIRONMENTAL CLAIMS
The Company shall inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same:
(a) if any Environmental Claim has been commenced or (to the best
of the Company's knowledge and belief) is threatened against
any member of the Group; or
(b) of any facts or circumstances which will or are reasonably
likely to result in any Environmental Claim being commenced or
threatened against any member of the Group,
where the claim would be reasonably likely, if determined against that
member of the Group, to have a Material Adverse Effect.
24.9 TAXATION
Each Obligor shall (and the Company shall ensure that each member of
the Group will) duly and punctually pay and discharge all material
Taxes imposed upon it or its assets within the time period allowed
without incurring penalties (expect to the extent that (a) such payment
is being contested in good faith, (b) adequate reserves are being
maintained for those Taxes and (c) where such payment can be lawfully
withheld).
24.10 ACQUISITIONS
Other than Permitted Acquisitions and Permitted Investments, no Obligor
shall (and the Company shall ensure that no other member of the Group
will) acquire, subscribe for or otherwise acquire any shares or other
securities or interest or any company, business or undertaking or
incorporate any company.
24.11 LOANS AND GUARANTEES
No Obligor shall (and the Company shall ensure that no member of the
Group will) make any loans, grant any credit (save in the ordinary
course of business) or give any guarantee or indemnity (except as
required under any of the Finance Documents) to or for the benefit of
any person or otherwise voluntarily assume any liability, whether
actual or contingent, in respect of any obligation of any person other
than pursuant to Permitted Intra-Group Loans or the Permitted
Transactions.
24.12 DISTRIBUTIONS
No Obligor shall (and the Company shall ensure that no member of the
Group will) pay, make or declare any dividend or other distribution
(whether in cash or in kind), allow any withdrawal from its partners'
accounts, or make any payment whatsoever in respect of share capital or
partners' interests other than pursuant to the Permitted Transactions.
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24.13 SHARE CAPITAL
No Obligor shall (and the Company shall ensure that no member of the
Group nor Grohe Holding will) redeem or repurchase, defease or retire
any shares in Grohe Holding or Grohe Beteiligungs, PROVIDED THAT
following the Qualifying Public Offering this shall not apply to the
redemption, repurchase or retirement of shares in Grohe Holding in
accordance with the German Stock Corporation Act.
24.14 SUBORDINATED DEBT
No Obligor shall (and the Company shall ensure that no member of the
Group will) pay, prepay or repay or defease, exchange or repurchase any
amount under:
(a) any Shareholder Loan or Grohe Holding Shareholder Loan save as
permitted under the relevant subordination agreement or, in
the case of a Shareholder Loan made by Grohe Holding to Grohe
Beteiligungs, by way of set-off against amounts owing by Grohe
Holding to Grohe Beteiligungs under any loan made pursuant to
the Shareholder Loan Refinancing; or
(b) the Senior Notes Loan save (i) as permitted under the Senior
Notes Subordination Agreement or, (ii) following the
occurrence of a Qualifying Public Offering and PROVIDED THAT
no Default has occurred which is continuing; or
(c) the Senior Notes save following the occurrence of a Qualifying
Public Offering and PROVIDED THAT no Default has occurred
which is continuing,
unless:
(i) with respect to the Grohe Holding Shareholder Loans
and the Senior Notes these are refinanced through
Indebtedness for Borrowed Money incurred by Grohe
Holding in accordance with the provisions of the
Finance Documents on terms no more restrictive than
their current terms in respect of repayment,
prepayment and termination rights and PROVIDED THAT
the refinancing indebtedness (x) to the extent it
refinances Grohe Holding Shareholder Loans, does not
require the payment of cash interest and is
subordinated to the Facilities pursuant to a
subordination agreement identical to the Grohe
Holding Subordination Agreement and, (y) to the
extent it refinances Senior Notes, bears interest (or
any similar finance charge) at a rate which is not
higher than the interest rate of the Senior Notes and
is subordinated to at least the same extent as the
the Senior Notes; or
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(ii) with respect to the Grohe Holding Shareholder Loans,
the Senior Notes Loan and the Senior Notes, these are
refinanced out of (x) the proceeds of any Shareholder
Loan which constitutes Permitted Indebtedness
pursuant to paragraph (d) of such definition or (y)
the investment from any share capital increase (other
than a share capital increase effected with assets of
a member of the Group) of Grohe Holding or any member
of the Group which has been taking place after the
date of this Agreement or, up to the aggregate amount
of EUR 2,000,000, after 15 November 2000 and before
the date of this Agreement.
24.15 SYNDICATION
The Company shall provide reasonable assistance to the Arrangers in the
preparation of the Information Memorandum and the primary syndication
of the Facility (including, without limitation, by making senior
management available for the purpose of making presentations to, or
meeting, potential lending institutions) and will comply with all
reasonable requests for information from potential syndicate members
prior to completion of syndication.
24.16 INDEBTEDNESS
No Obligor shall and the Company shall ensure that no member of the
Group will incur, create or permit to subsist or have outstanding any
Financial Indebtedness or enter into any agreement or arrangement
whereby it is entitled to incur, create or permit to subsist any
Financial Indebtedness other than Permitted Indebtedness.
24.17 PRESERVATION OF ASSETS
Each Obligor shall, and the Company shall ensure that each member of
the Group shall, maintain and preserve all of its assets that are
necessary for the conduct of its business, as conducted at the date of
this Agreement, in good working order and condition, ordinary wear and
tear excepted.
24.18 ACCESS
Each Obligor shall, and the Company shall ensure that each member of
the Group whose shares are the subject of the Transaction Security
shall:
(a) on request of the Agent, provide the Agent and Security Agent
with any information the Agent or Security Agent may
reasonably require about that company's business and affairs,
the Charged Property and its compliance with the terms of the
Security Documents; and
(b) permit the Security Agent, its representatives, delegates,
professional advisers and contractors, free access at all
reasonable times and on reasonable notice at the cost of the
Obligors, (a) to inspect and take
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copies and extracts from the books, accounts and records of
that company and (b) to view the Charged Property (without
becoming liable as mortgagee in possession).
24.19 INTELLECTUAL PROPERTY
Prior to the occurrence of the Qualifying Public Offering, each Obligor
shall, and the Company shall ensure that each member of the Group will:
(a) do all acts as are reasonably practicable (including, without
limitation, the institution of legal proceedings) to maintain,
protect and safeguard the material Intellectual Property
necessary for the business of the relevant member of the Group
and not terminate or discontinue the use of any such material
Intellectual Property nor terminate any material contract
relating thereto;
(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 material Intellectual
Property or any part thereof is subject;
(c) pay all fees necessary to maintain, protect and safeguard the
material Intellectual Property (as it is owned or licensed by
a member of the Group) which is necessary for the business of
the relevant member of the Group and the registrations
reasonably necessary or desirable to be made in connection
therewith before the latest time provided for payment thereof
and not permit any registration of such property to terminate,
be abandoned, cancelled, lapse or be liable to any claim of
abandonment; and
(d) not to enter into or change the terms of any material contract
relating to material Intellectual Property.
24.20 ARM'S LENGTH BASIS
No Obligor shall, and the Company shall ensure that no member of the
Group will, enter into any arrangement or contract other than on arm's
length commercial terms.
24.21 JOINT VENTURES AND UNRESTRICTED COMPANIES
No Obligor shall, and the Company shall procure that no member of the
Group will, enter into or acquire or subscribe (or agree to enter into
or acquire or subscribe) for any shares, stocks, securities or other
interest in or transfer of any assets to or lend to or guarantee or
give security for the obligations of any joint venture or Unrestricted
Company except for any Permitted Investment under paragraph (b) of the
definition of Permitted Investment or any loans permitted pursuant to
paragraph (g) of the definition of Permitted Transaction.
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24.22 HEDGING
The Company shall ensure that at all times prior to the occurrence of a
Qualifying Public Offering the member(s) of the Group approved by the
Agent shall, within 90 days of the first Utilisation Date enter into
hedging arrangements satisfactory to the Agent with a Lender or Lenders
or any affiliate thereof or Dresdner Bank AG in order to cap its total
interest cost in respect of at least 50 per cent. of Term Loans
outstanding under this Agreement from time to time for a minimum period
being not less than 18 months from the date of this Agreement.
24.23 WITHDRAWALS BY GROHE BETEILIGUNGS
At all times prior to the date of the Qualifying Public Offering and as
long as Loans under this Agreement are outstanding to Grohe
Beteiligungs, Grohe Beteiligungs undertakes (i) not to allow for any
changes to be made to the provisions in the partnership agreement of
Xxxxxxxxx Xxxxx which changes would restrict its ability to make
withdrawals from its partner's account with Xxxxxxxxx Xxxxx and (ii)
unless the Total Debt Leverage pursuant to the latest available
Compliance Certificate is less than 2.5:1, to withdraw at any time the
maximum amount that it is permitted to withdraw from such accounts and
pay all amounts so withdrawn into an account of Grohe Beteiligungs held
with Dresdner Bank AG and which is pledged in favour of the Finance
Parties and from which no withdrawals may be made by Grohe Beteiligungs
unless agreed otherwise in the relevant account pledge agreement.
24.24 QUALIFYING PUBLIC OFFERING
The Company undertakes:
(a) to inform the Agent without undue delay of any steps it is
taking in preparation of a Listing of Grohe Holding or any
company of which Grohe Holding is a wholly-owned subsidiary;
(b) no later than 5 Business Days prior to the date on which the
offering memorandum is filed with the admission office of any
German stock exchange or equivalent authority for any Listing
in any other country to inform the Agent in detail of the
intended application of Net IPO Proceeds and, to the extent
legally permissible, make available to the Agent the latest
available draft of the offering memorandum prepared for such
Listing;
(c) to represent to each Finance Party in writing on the day which
is 5 Business Days prior to the date on which the offering
period begins that:
(i) as of such date no Default has occurred which is
continuing;
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(ii) it is not aware of any circumstances that could
reasonably be expected to give rise to a Default on
the date of the Qualifying Public Offering; and
(iii) on the assumption that the Net IPO Proceeds are at
least equal to the minimum offer price of the
book-building margin multiplied by the maximum number
of newly issued shares to be offered, that the Total
Debt Leverage of the Grohe Holding Group calculated
as set out in the definition of Qualifying Public
Offering is less that 2.50:1;
(d) following the last Quarter Date as of which quarterly accounts
were available prior to the Qualifying Public Offering, it
will not, nor will any other member of the Group or Grohe
Holding, incur any additional Indebtedness for Borrowed Money
unless the Company has satisfied itself that the Total Debt
Leverage of the Grohe Holding Group calculated as set out in
the definition of Qualifying Public Offering would, on the
assumption set out in the Clause 24.24(c)(iii) above, continue
to be less that 2.50:1 if such additional Indebtedness for
Borrowed Money had been included in the calculations;
(e) to make available to the Agent the offering memorandum
prepared for the listing of Grohe Holding or its parent
company, as the case may be, no later than on the day of its
publication;
(f) to apply all Net IPO Proceeds without undue delay (only)
towards a (full or partial) repayment of Grohe Holding
Shareholder Loans, Shareholder Loans, the Senior Notes
(including through repaying the Senior Notes Loan), any
Permitted Indebtedness incurred by Grohe Beteiligungs, any
Financial Indebtedness incurred by Grohe Holding and Loans
outstanding under this Agreement, it being understood that as
long as the relevant Net IPO Proceeds are made available to a
member of the Group this shall not require any repayment
otherwise than at the end of an interest period if this would
trigger a prepayment penalty (VORFALLIGKEITSENTSCHADIGUNG) and
to confirm to the Agent without undue delay that the Net IPO
Proceeds have been so applied; and
(g) if it claims that a Qualifying Public Offering has occurred,
to represent to each Finance Party in writing on the day of
receipt of the proceeds from the initial public offering and
by setting out the computations in reasonable detail that,
based on the actual Net IPO Proceeds received and including
any additional Indebtedness for Borrowed Money incurred since
the last Quarter Date for which quarterly accounts were
available prior to the date of the Qualifying Public Offering,
the Listing and initial
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public offering constitutes, as of the day of receipt of such
proceeds, a Qualifying Public Offering.
24.25 CONDITIONS SUBSEQUENT
(a) Each Obligor shall, and the Company shall procure that each
member of the Group will, use its best efforts to obtain all
releases and perform all other acts required to discharge in
full any Security which secures the Financial Indebtedness
arising under the Refinanced Facilities (except for the land
charges set out in Part II of Schedule 9 (EXISTING SECURITY)
and in any event shall ensure that all such releases and
assignments, as the case may be, are obtained and shall
perform all such other acts within 45 days from the first
Utilisation Date and, if such Security is governed by any law
other than German law, within 60 days from the first
Utilisation Date.
(b) The Company shall ensure that a registration for the
subordination of the owner's land charges
(EIGENTUMERGRUNDSCHULDEN) referred to in Part II of Schedule 9
(EXISTING SECURITY) behind the land charges granted by the
relevant Group member and which constitute Transaction
Security will be filed with the competent land registry within
30 days from the first Utilisation Date.
(c) The Company shall within 30 days from the first Utilisation
Date deliver to the Agent a legal opinion with regard to the
Grohe Holding Subordination Agreement in respect of BC
European Capital V, BC European Capital VI, Teabar Capital
Corporation and Capital d'Amerique by the Agent's local
counsel, or, except for BC European Capital V and BC European
Capital VI, its in-house legal counsel, in each case in form
and substance satisfactory to the Agent.
24.26 PERMITTED DISPOSALS
With regard to any disposal of assets which (i) is not referred to in
paragraphs (a) to (c) of the definition of Permitted Disposals, (ii)
has a value (price or other consideration or market value) in excess of
EUR 30,000,000 (aggregated with all other assets disposed of in a
related transaction) or where the asset is a Material Company (whether
through a disposal of shares or assets) and (iii) is completed after
the date of the Qualifying Public Offering, the Obligor undertakes not
to, and the Company shall procure that each member of the Group will
not, complete such disposal until the Agent has received a certificate
supported by accompanying calculations and signed by the financial
officer(s) binding the Company demonstrating on a PRO FORMA basis and
assuming such disposal had been completed on the first day of the
Relevant Period, that as at the last Quarter Date in respect of which
financial statements
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have been delivered pursuant to Clause 22.1 (FINANCIAL STATEMENTS) and
as at the four following Quarter Dates, the incurrence test set out in
column 3 of Clause 23.1.4 would be complied with.
24.27 DESIGNATION OF UNRESTRICTED COMPANY
(a) The Company shall determine by written notice to the Agent
whether any new member of the Group (including any newly
acquired or newly formed member of the Group) is an
Unrestricted Company, PROVIDED THAT a company may only be
designated an Unrestricted Company if no Default would occur
immediately following such determination, it being understood
that no member of the Group as of the date of this Agreement
and, unless designated an Unrestricted Company before becoming
a member of the Group, no new Group member may become an
Unrestricted Company.
(b) The Company may at any time and from time to time by written
notice to the Agent designate any Unrestricted Company to
become a member of the Group and Grohe Holding Group, PROVIDED
THAT the requirements for a Permitted Acquisition are complied
with.
(c) Any notice by the Company to the Agent pursuant to paragraph
(a) must be received by the Agent no later than 5 Business
Days prior to the date on which such company were to become a
member of the Group; if no such timely notice is received, the
company will become a member of the Group and cannot
thereafter be designated as an Unrestricted Company. Any
notice by the Company to the Agent pursuant to paragraph (b)
above shall specify the date as of which the relevant
Unrestricted Company shall become a member of the Group and
Grohe Holding Group, PROVIDED THAT such date must be no
earlier than 5 Business Days after receipt by the Agent of
such notice.
25. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 25 is an
Event of Default.
25.1 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 unless:
(a) its failure to pay is caused by administrative or technical
error; and
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(b) payment is made within three Business Days, or, following the
occurrence of the Qualifying Public Offering, five Business
Days of its due date.
25.2 FINANCIAL COVENANTS
Any requirement of Clause 23 (FINANCIAL COVENANTS) is not satisfied.
25.3 OTHER OBLIGATIONS
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 25.1
(NON-PAYMENT) and Clause 25.2 (FINANCIAL COVENANTS)).
(b) No Event of Default under paragraph (a) above will occur if
the failure to comply is capable of remedy and is remedied
within 21 Business Days of the earlier of the Agent giving
notice to the Company or the Company or relevant Obligor
becoming aware of the failure to comply.
25.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by any member
of the Group in the Finance Documents or any other document delivered
by or on behalf of any member of the Group 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.
25.5 PARTNERSHIP AGREEMENT
The partnership agreements of Xxxxxxxxx Xxxxx or of Grohe Beteiligungs
are modified in a way which adversely affects the interests of the
Finance Parties, including, but not limited, to the partnership
agreement of Xxxxxxxxx Xxxxx being modified in respect of the time at
which and amounts or manners in which withdrawals from the partnership
accounts can be made.
25.6 CROSS DEFAULT
(a) Any Financial Indebtedness of any member of the Group or Grohe
Holding is not paid when due nor within any originally
applicable grace period.
(b) Any Financial Indebtedness of any member of the Group or Grohe
Holding 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 member of
the Group or Grohe Holding is cancelled or suspended by a
creditor of any
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member of the Group or Grohe Holding as a result of an event
of default (however described).
(d) Any creditor of any member of the Group or Grohe Holding
becomes entitled to declare any Financial Indebtedness of any
member of the Group or Grohe Holding 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 25.6 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d)
above is, if it relates to payment of principal or interest or
if the circumstances described in paragraph (b) above arise,
less than EUR 5,000,000 or, in any other case, less than EUR
10,000,000.
(f) No Event of Default will occur under this Clause 25.6 if it
arises due to a default under the Existing Senior Credit
Agreement as a result of the execution of the Finance
Documents or a default under the Indenture as a result of the
Transaction Security being provided before the Security
securing the Existing Senior Credit Agreement is released, but
only for as long as it is permitted pursuant to paragraph (i)
of Clause 24.3 (NEGATIVE PLEDGE).
25.7 INSOLVENCY
(a) A member of the Group or Grohe Holding 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.
(b) Grohe Holding or a member of the Group whose Relevant
Jurisdiction is Germany is overindebted within the meaning of
Section 19 of the German Insolvency Code or the value of the
assets of any other member of the Group is less than its
liabilities.
(c) A moratorium is declared in respect of any indebtedness of any
member of the Group or Grohe Holding.
No Event of Default will occur under this Clause 25.7 if (i) the higher
of the net book value or market value (VERKEHRSWERT) of all assets of
the relevant member of the Group (taken together with the assets of its
Subsidiaries, if any) other than Grohe Holding, any Obligor, any other
party to a Finance Document or any member of the Group whose shares are
subject to the Transaction Security does not exceed EUR 2,500,000 and
(ii) the average annual turnover of such relevant
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member of the Group (taken together with the turnover of its
Subsidiaries, if any) in the preceding two years was less than EUR
7,500,000, PROVIDED THAT from the date of this Agreement neither the
aggregate net book value nor the market value of all such insolvent
members of the Group (including its Subsidiaries) whose insolvency
would, but for this paragraph, lead to an Event of Default exceeds EUR
5,000,000 and that the aggregate average annual turnover must not
exceed EUR 10,000,000.
25.8 INSOLVENCY PROCEEDINGS
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the opening of insolvency proceedings, 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 member
of the Group or Grohe Holding other than a solvent liquidation
or reorganisation of any member of the Group or Grohe Holding
which is not an Obligor and which is dormant;
(b) a composition, assignment or arrangement with any creditor of
any member of the Group or Grohe Holding;
(c) the appointment of an insolvency administrator, a liquidator
(other than in respect of a solvent liquidation of a member of
the Group or Grohe Holding which is not an Obligor and which
is dormant), receiver, administrator, administrative receiver,
compulsory manager or other similar officer in respect of any
member of the Group or Grohe Holding or any of its assets; or
(d) enforcement of any Security over any assets of any member of
the Group or Grohe Holding, or any analogous procedure or step
is taken in any jurisdiction.
No Event of Default will occur under this Clause 25.8 if (i) any
corporate action, legal proceedings or other procedure or step is taken
in relation to a member of the Group other than Grohe Holding, any
Obligor, any other party to a Finance Document or any member of the
Group whose shares are subject to the Transaction Security (x) where
the higher of the net book value or market value (VERKEHRSWERT) of all
assets (taken together with the assets of its Subsidiaries, if any)
does not exceed EUR 2,500,000 and (y) the average annual turnover in
the preceding two years (taken together with the turnover of its
Subsidiaries, if any) was less than EUR 7,500,000, PROVIDED THAT from
the date of this Agreement neither the aggregate net book value nor the
market value of all such members of
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the Group (including their Subsidiaries) with regard to which corporate
actions, legal proceedings or other procedures or steps as described in
this Clause 25.8 have been taken and which, but for this paragraph,
would lead to an Event of Default exceeds EUR 5,000,000 and that the
aggregate average annual turnover must not exceed EUR 10,000,000, or
(ii) the Majority Lenders (acting reasonably) are satisfied that the
Company or relevant member of the Group is contesting in good faith and
by appropriate proceedings the relevant procedures or steps and that it
is reasonably likely that such proceedings or steps will be discharged
within 60 days of their commencement.
25.9 CREDITORS' PROCESS
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of a member of the Group or Grohe Holding
having an aggregate value of EUR 3,000,000 and is not discharged within
60 days.
25.10 UNLAWFULNESS
It is or becomes unlawful for any member of the Group to perform any of
its obligations under the Finance Documents or any Transaction Security
created or expressed to be created or evidenced by the Security
Documents ceases to be effective.
25.11 REPUDIATION
A member of the Group repudiates a Finance Document or any of the
Transaction Security to which it is a party or evidences an intention
to repudiate a Finance Document or any of the Transaction Security.
25.12 TRANSACTION SECURITY
(a) Any member of the Group fails to perform or comply with any of
the obligations assumed by it in the Security Documents in any
material way, PROVIDED THAT no Event of Default under this
paragraph (a) will occur if the failure to comply is capable
of remedy and is remedied within 21 Business Days of the
earlier of the Agent giving notice to the Company or the
Company or relevant member of the Group becoming aware of the
failure to so comply.
(b) At any time any of the Transaction Security is or becomes
unlawful or is not, or ceases to be legal, valid, binding or
enforceable or otherwise ceases to be effective.
(c) At any time and except as provided for in Clause 24.25
(CONDITION SUBSEQUENT), any of the Transaction Security fails
to have first ranking priority or is subject to any prior
ranking Security.
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25.13 OWNERSHIP OF THE OBLIGORS
The Company ceases to hold all shares in the general partner of
Xxxxxxxxx Xxxxx or at least 99.5% of the limited partners' interests in
Xxxxxxxxx Xxxxx.
25.14 OWNERSHIP OF THE COMPANY
Grohe Holding ceases to be the sole general partner of the Company or
ceases to hold all shares in Grohe Consult GmbH as the limited partner
of the Company.
25.15 THE GROUP'S BUSINESS
Any Obligor or any other member of the Group ceases to carry on the
business or to carry on the business in the character it is carried on
at the date of this Agreement or enters into any unrelated business to
a material extent.
25.16 AUDITOR'S QUALIFICATIONS
Any Obligor's auditor's or the auditor's of Grohe Holding qualify their
annual audited report to the consolidated or unconsolidated accounts of
any Obligor or Grohe Holding in a manner which is, in the reasonable
opinion of the Majority Lenders, material and adverse in the context of
the Facilities.
25.17 FAILURE TO COMPLY WITH FINAL JUDGEMENT
Any member(s) of the Group other than a member of the Group described
in the last paragraph of Clause 25.7 (INSOLVENCY) or Grohe Holding fail
to comply with or pay any sum due from it or them under any final
judgement or any final order made or given by any court or competent
jurisdiction when such sum exceeds EUR 3,000,000 in aggregate at any
time.
25.18 ENVIRONMENTAL
Any member of the Group breaches any Environmental Law or any
Environmental Claim is made or threatened against any member of the
Group which, in either case, could reasonably be expected to have a
Material Adverse Effect.
25.19 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which could reasonably be expected to
have a Material Adverse Effect.
25.20 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Company:
(a) cancel the Total Commitments (including without limitation the
Ancillary Commitments) whereupon they shall immediately be
cancelled;
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(b) declare that all or part of the Loans (including without
limitation the Ancillary Outstandings), together with accrued
interest, and all other amounts accrued or outstanding under
the Finance Documents be immediately due and payable,
whereupon they shall become immediately due and payable;
and/or
(c) declare that all or part of the Loans (including without
limitation the Ancillary Outstandings) be payable on demand,
whereupon they shall immediately become payable on demand by
the Agent on the instructions of the Majority Lenders; and/or
(d) exercise, or direct the Security Agent to exercise, any or all
of its rights, remedies and powers under any of the Finance
Documents; and/or
(e) require the Company and the relevant Borrower to procure that
the liabilities of each of the Lenders and the Fronting Banks
under each Letter of Credit and Bank Guarantee are promptly
reduced to zero; and/or to provide Cash Collateral for each
Letter of Credit and Bank Guarantee in an amount specified by
the Agent and in the currency of that Letter of Credit and
Bank Guarantee .
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SECTION 9
CHANGES TO PARTIES
26. CHANGES TO THE LENDERS
26.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 26, a Lender (the "EXISTING LENDER") may:
(a) assign any of its rights; or
(b) transfer any of its rights and obligations,
to another bank or financial institution or to a trust, fund or other
entity which is regularly engaged in or established for the purpose of
making, purchasing or investing in loans, securities or other financial
assets (the "NEW LENDER").
26.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of the relevant Fronting Bank is required for an
assignment or transfer by a Lender in relation to a Bank
Guarantee or Letter of Credit, such consent not to be
unreasonably withheld or delayed.
(b) The consent of the Company is required for an assignment or
transfer by a Lender, unless the assignment or transfer is to
another Lender or an Affiliate of a Lender or following an
Event of Default.
(c) The consent of the Company to an assignment or transfer must
not be unreasonably withheld or delayed. The Company will be
deemed to have given its consent five Business Days after the
Lender has requested it unless such consent is expressly
refused by the Company within that time.
(d) The consent of the Company to an assignment or transfer must
not be withheld solely because the assignment or transfer may
result in an increase to the Mandatory Cost.
(e) An assignment will only be effective on receipt by the Agent
of written confirmation from the New Lender (in form and
substance satisfactory to the Agent) that the New Lender will
assume the same obligations to the other Finance Parties as it
would have been under if it was an Original Lender.
(f) Any assignment or transfer shall be in a minimum amount of EUR
7,500,000 except in the case of an assignment or transfer
which has the effect of reducing the participation of the
relevant Lender to zero in any of the Facilities.
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(g) A transfer will only be effective if the procedure set out in
Clause 26.5 (PROCEDURE FOR TRANSFER) is complied with.
(h) If:
(i) a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or changes
its Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor
would be obliged to make a payment to the New Lender
or Lender acting through its new Facility Office
under Clause 15 (TAX GROSS-UP AND INDEMNITIES) or
Clause 16 (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.
26.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of EUR
1,500, other than in the case of an assignment or transfer which takes
effect prior to the Syndication Date.
26.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender
makes no representation or warranty and assumes no
responsibility to a New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents, the
Transaction Security or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor 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.
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(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own
independent investigation and assessment of the
financial condition and affairs of each Obligor and
its related entities in connection with its
participation in this Agreement and has not relied
exclusively on any information provided to it by the
Existing Lender in connection with any Finance
Document; and
(ii) will continue to make its own independent appraisal
of the creditworthiness of each Obligor and its
related entities whilst any amount is or may be
outstanding under the Finance Documents or any
Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under
this Clause 26; 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.
26.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 26.2 (CONDITIONS
OF ASSIGNMENT OR TRANSFER) a transfer (VERTRAGSUBERNAHME) is
effected in accordance with paragraph (b) below when the Agent
executes an otherwise duly completed Transfer Certificate
delivered to it by the Existing Lender and the New Lender. The
Agent shall, as soon as reasonably practicable after receipt
by it of a duly completed Transfer Certificate appearing on
its face to comply with the terms of this Agreement and
delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer its rights and
obligations under the Finance Documents and in
respect of the Transaction Security each of the
Obligors and the Existing Lender shall be released
from further obligations towards one another under
the Finance Documents and in respect of the
Transaction Security and their respective
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rights against one another shall be cancelled (being
the "DISCHARGED RIGHTS AND OBLIGATIONS");
(ii) each of the Obligors and the New Lender shall assume
obligations towards one another and/or acquire rights
against one another which differ from the Discharged
Rights and Obligations only insofar as that Obligor
and the New Lender have assumed and/or acquired the
same in place of that Obligor and the Existing
Lender;
(iii) the Agent, the Arrangers, the Security Agent, the New
Lender and other Lenders shall acquire the same
rights and assume the same obligations between
themselves and in respect of the Transaction Security
as they would have acquired and assumed had the New
Lender been an Original Lender with the rights and/or
obligations acquired or assumed by it as a result of
the transfer and to that extent the Agent, the
Arrangers, the Security Agent and the Existing Lender
shall each be released from further obligations to
each other under the Finance Documents; and
(iv) the New Lender shall become a Party as a "LENDER".
26.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to,
or any other transaction under which payments are to be made
by reference to, this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate, if, in relation to
paragraphs (a) and (b) above, the person to whom the information is to
be given has entered into a Confidentiality Undertaking.
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27. CHANGES TO THE OBLIGORS
27.1 ASSIGNMENT AND TRANSFERS BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
27.2 ADDITIONAL BORROWERS
(a) Xxxxxxxxx Xxxxx may request that any of its wholly owned
Subsidiaries becomes an Additional Borrower. That Subsidiary
shall become an Additional Borrower if:
(i) the Majority Lenders approve the addition of that
Subsidiary;
(ii) Xxxxxxxxx Xxxxx delivers to the Agent a duly
completed and executed Accession Letter;
(iii) Xxxxxxxxx Xxxxx accedes to this Agreement as
Additional Guarantor to secure the obligations of
such Additional Borrower under the Finance Documents;
(iv) Xxxxxxxxx Xxxxx confirms that no Default is
continuing or would occur as a result of that
Subsidiary becoming an Additional Borrower; and
(v) the Agent has received all of the documents and other
evidence listed in Part III of Schedule 2 (CONDITIONS
PRECEDENT) in relation to that Additional Borrower,
each in form and substance satisfactory to the Agent.
(b) The Agent shall notify Xxxxxxxxx Xxxxx and the Lenders
promptly upon being satisfied that it has received (in form
and substance satisfactory to it) all the documents and other
evidence listed in Part III of Schedule 2 (CONDITIONS
PRECEDENT).
27.3 RESIGNATION OF A BORROWER
(a) The Company may request that a Borrower (other than the
Company) ceases to be a Borrower by delivering to the Agent a
Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the
Company and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the
acceptance of the Resignation Letter (and the Company
has confirmed this is the case); and
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(ii) the Borrower is under no actual or contingent
obligations as a Borrower under any Finance
Documents,
whereupon that company shall cease to be a Borrower and shall
have no further rights or obligations under the Finance
Documents.
27.4 TRANSFER ON BORROWER EXIT DATE
The parties hereto agree that on the Borrower Exit Date the rights and
obligations of Grohe Beteiligungs as a borrower under a Facility A2
Loan in respect of such Facility A2 Loans shall automatically be
transferred to Xxxxxxxxx Xxxxx and in the amounts specified in the
Borrower Exit Transfer Certificate PROVIDED THAT the provisions of
Clause 12.4 (CONSOLIDATION AND DIVISION OF TERM LOANS) are complied
with so that on the Borrower Exit Date:
27.4.1 Grohe Beteiligungs shall be released from its obligations as a Borrower
under the Finance Documents in the amounts specified in the Borrower
Exit Transfer Certificate (being the "BORROWER DISCHARGED RIGHTS AND
OBLIGATIONS"); and
27.4.2 Xxxxxxxxx Xxxxx shall assume obligations and acquire rights under the
Finance Documents in relation to each Facility A2 Loan or portion of
such Facility A2 Loan identified as being transferred to it in the
Borrower Exit Transfer Certificate which differ from the Borrower
Discharged Rights and Obligations in respect of each such Facility A2
Loan, or, as the case may be, each such portion of a Facility A2 Loan
only insofar as Xxxxxxxxx Xxxxx has assumed the same in place of Grohe
Beteiligungs ((partial) assumption of contract/(TEILWEISE)
VERTRAGSUBERNAHME).
Waiving section 418 of the German Civil Code, the parties agree that
any Security created by any party to a Finance Document prior to the
Borrower Exit Date shall not be affected by any transfer or assumption
of the obligations secured by that Security to Xxxxxxxxx Xxxxx.
27.5 ADDITIONAL GUARANTORS
(a) The Company may request that any of its Subsidiaries become an
Additional Guarantor. That Subsidiary shall become an
Additional Guarantor if:
(i) the Company delivers to the Agent a duly completed
and executed Accession Letter; and
(ii) the Agent has received all of the documents and other
evidence listed in Part III of Schedule 2 (CONDITIONS
PRECEDENT) in relation to that Additional Guarantor,
each in form and substance satisfactory to the Agent.
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(b) The Agent shall notify the Company and the Lenders promptly
upon being satisfied that it has received (in form and
substance satisfactory to it) all the documents and other
evidence listed in Part III of Schedule 2 (CONDITIONS
PRECEDENT).
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SECTION 10
THE FINANCE PARTIES
28. ROLE OF THE AGENT AND THE ARRANGERS
28.1 APPOINTMENT OF THE AGENT
(a) Each other Finance Party (other than the Security Agent)
appoints the Agent to act as its agent under and in connection
with the Finance Documents.
(b) Each other Finance Party authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given
to the Agent under or in connection with the Finance Documents
together with any other incidental rights, powers, authorities
and discretions.
(c) The Agent shall be released from the restrictions set out in
Section 181 of the German Civil Code.
28.2 DUTIES OF THE AGENT
(a) The Agent shall without undue delay forward to a Party the
original or a copy of any document which is delivered to the
Agent for that Party by any other Party.
(b) Except where a Finance Document specifically provides
otherwise, the Agent is not obliged to review or check the
adequacy, accuracy or completeness of any document it forwards
to another Party.
(c) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the
circumstance described is a Default, it shall without undue
delay notify the other Finance Parties.
(d) If the Agent is aware of the non-payment of any principal,
interest, commitment fee or other fee payable to a Finance
Party (other than the Agent, the Arrangers or the Security
Agent) under this Agreement it shall without undue delay
notify the other Finance Parties.
(e) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
28.3 ROLE OF THE ARRANGERS
Except as specifically provided in the Finance Documents, the Arrangers
have no obligations of any kind to any other Party under or in
connection with any Finance Document.
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28.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Agent or the
Arrangers as a fiduciary of any other person.
(b) Neither the Agent nor the 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.
28.5 BUSINESS WITH THE GROHE HOLDING GROUP
The Agent and the Arrangers may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any
member of the Grohe Holding Group.
28.6 RIGHTS AND DISCRETIONS OF THE AGENT
(a) The Agent may rely on:
(i) any representation, notice or document believed by it
to be genuine, correct and appropriately authorised;
and
(ii) any statement made by a director, authorised
signatory or employee of any person regarding any
matters which may reasonably be assumed to be within
his knowledge or within his power to verify.
(b) The Agent may assume (unless it has received notice to the
contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual
knowledge of a Default arising under Clause 25.1
(NON-PAYMENT));
(ii) any right, power, authority or discretion vested in
any Party or the Majority Lenders has not been
exercised; and
(iii) any notice or request made by the Company (other than
a Utilisation Request or Selection Notice) is made on
behalf of and with the consent and knowledge of all
the Obligors.
(c) The Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other
experts.
(d) The Agent may act in relation to the Finance Documents through
its personnel and agents.
(e) The Agent may disclose to any other Party any information it
reasonably believes it has received as agent under this
Agreement.
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(f) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent nor any Arranger is obliged to
do or omit to do anything if it would or might in its
reasonable opinion constitute a breach of any law or
regulation or a breach of a fiduciary duty or duty of
confidentiality.
28.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document,
the Agent shall (i) exercise any right, power, authority or
discretion vested in it as Agent in accordance with any
instructions given to it by the Majority Lenders (or, if so
instructed by the Majority Lenders, refrain from exercising
any right, power, authority or discretion vested in it as
Agent) and (ii) not be liable for any act (or omission) if it
acts (or refrains from taking any action) in accordance with
an instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document,
any instructions given by the Majority Lenders will be binding
on all the Finance Parties other than the Security Agent.
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or,
if appropriate, the Lenders) the Agent may act (or refrain
from taking action) as it considers to be in the best interest
of the Lenders.
(e) The Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal
or arbitration proceedings relating to any Finance Document.
28.8 RESPONSIBILITY FOR DOCUMENTATION
None of the Agent, the Arrangers and the Security Agent:
(a) is responsible for the adequacy, accuracy and/or completeness
of any information (whether oral or written) supplied by the
Agent, the Arrangers, the Security Agent, an Obligor or any
other person given in or in connection with any Finance
Document or the Information Memorandum or the transactions
contemplated in the Finance Documents; or
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(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or the
Transaction Security or any other agreement, arrangement or
document entered into, made or executed in anticipation of or
in connection with any Finance Document or the Transaction
Security.
28.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, the Agent will not be
liable for any action taken by it under or in connection with
any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.
(b) No Party (other than the Agent or, as the case may be, the
Security Agent) may take any proceedings against any officer,
employee or agent of the Agent or the Security Agent in
respect of any claim it might have against the Agent or
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
Agent or of the Security Agent may rely on this Clause.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the
Agent has taken all necessary steps as soon as reasonably
practicable to comply with the regulations or operating
procedures of any recognised clearing or settlement system
used by the Agent for that purpose.
28.10 LENDERS' INDEMNITY TO THE AGENT AND SECURITY AGENT
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify
each of the Agent and the Security Agent, within five Business Days of
demand, against any cost, loss or liability incurred by the Agent or
the Security Agent (otherwise than by reason of the Agent's or the
Security Agent's gross negligence or wilful misconduct) in acting as
Agent or as Security Agent under the Finance Documents (unless the
Agent or the Security Agent has been reimbursed by an Obligor pursuant
to a Finance Document).
28.11 RESIGNATION OF THE AGENT
(a) The Agent may resign and appoint one of its Affiliates as
successor by giving notice to the other Finance Parties and
the Company.
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(b) Alternatively the Agent may resign by giving notice to the
other Finance Parties and the Company, in which case the
Majority Lenders (after consultation with the Company) may
appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent
in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Agent (after consultation
with the Company) may appoint a successor Agent.
(d) The retiring Agent shall, at its own cost, make available to
the successor Agent such documents and records and provide
such assistance as the successor Agent may reasonably request
for the purposes of performing its functions as Agent under
the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall
be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 28. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves
as they would have had if such successor had been an original
Party.
(g) After consultation with the Company, the Majority Lenders may,
by notice to the Agent, require it to resign in accordance
with paragraph (b) above. In this event, the Agent shall
resign in accordance with paragraph (b) above.
28.12 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties or, as the case may
be, for the Finance Parties, each of the Agent and the
Security Agent shall be regarded as acting through its agency
division, which shall be treated as a separate entity from any
other of its divisions or departments.
(b) If information is received by another division or department
of the Agent or the Security Agent, it may be treated as
confidential to that division or department and neither the
Agent nor the Security Agent shall be deemed to have notice of
it.
28.13 RELATIONSHIP WITH THE LENDERS
(a) The Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility
Office unless it has
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received not less than five Business Days prior notice from
that Lender to the contrary in accordance with the terms of
this Agreement.
(b) Each Lender shall supply the Agent with any information
required by the Agent in order to calculate the Mandatory Cost
in accordance with Schedule 4 (MANDATORY COST FORMULAE).
(c) Each Finance Party shall supply the Agent with any information
that the Security Agent may reasonably specify (through the
Agent) as being necessary or desirable to enable the Security
Agent to perform its functions as Security Agent. Each Lender
shall deal with the Security Agent exclusively through the
Agent and shall not deal directly with the Security Agent.
28.14 CREDIT APPRAISAL BY THE FINANCE PARTIES
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance
Document, each Finance Party confirms to the Agent, the Arrangers and
the Security Agent that it has been, and will continue to be, solely
responsible for making its own independent appraisal and investigation
of all risks arising under or in connection with any Finance Document
including but not limited to:
(a) the financial condition, status and nature of each member of
the Grohe Holding Group;
(b) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and the Transaction
Security and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document or the Transaction
Security;
(c) whether that Finance Party has recourse, and the nature and
extent of that recourse, against any Party or any of its
respective assets under or in connection with any Finance
Document, the Transaction Security, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document;
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent,
the Security Agent, any Party or by any other person under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document; and
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(e) the right or title of any person in or to, or the value or
sufficiency of any part of the Charged Property, the priority
of any of the Transaction Security or the existence of any
Security affecting the Charged Property.
28.15 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 Agent
shall (in consultation with the Company) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
28.16 DEDUCTION FROM AMOUNTS PAYABLE BY THE AGENT
If any Party owes an amount to the Agent under the Finance Documents
the Agent may, after giving notice to that Party, deduct an amount not
exceeding that amount from any payment to that Party which the Agent
would otherwise be obliged to make under the Finance Documents and
apply the amount deducted in or towards satisfaction of the amount
owed. For the purposes of the Finance Documents that Party shall be
regarded as having received any amount so deducted.
29. THE LENDERS AND THE FRONTING BANK
29.1 LENDERS' INDEMNITY
If any Borrower fails to comply with its obligations under Clause 6.6
(BORROWERS' INDEMNITY TO THE FRONTING BANK) the Agent shall make demand
on each Lender for its share of that L/C Amount or Guarantee Amount
and, subject to Clause 29.2 (DIRECT PARTICIPATION), each Lender shall
indemnify each Fronting Bank for that Lender's L/C Proportion of each
L/C Amount and Guarantee Proportion of each Guarantee Amount.
29.2 DIRECT PARTICIPATION
If any Lender is not permitted (by its constitutional documents or any
applicable law) to comply with Clause 29.1 then that Lender will not be
obliged to comply with Clause 29.1 and shall instead be deemed to have
taken, on the date the Letter of Credit is issued (or if later, on the
date that L/C Proportion is transferred or assigned to such Lender in
accordance with the terms of this Agreement) or, in the case of a Bank
Guarantee, on the date the Bank Guarantee is issued (or, if later, on
the date that Guarantee Proportion is transferred or assigned to such
Lender in accordance with the terms of this Agreement), an undivided
interest and participation in that Letter of Credit or Bank Guarantee
in an amount equal to that Lender's L/C Proportion of that Letter of
Credit or Guarantee Proportion of that Bank Guarantee, as the case may
be. On receipt of demand by the Agent in accordance with Clause 29.1,
each such Lender shall pay to the Agent (for the account of the
Fronting Bank) its L/C Proportion of any L/C Amount or Guarantee
Proportion of any Guarantee Amount.
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29.3 OBLIGATIONS NOT DISCHARGED
Neither the obligations of a Lender in this Clause 29 nor the rights,
powers and remedies conferred upon a Fronting Bank by this Agreement or
by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation
of a Fronting Bank, a Borrower or any other person or any
change in its status, function, control or ownership;
(b) any of the obligations of a Fronting Bank, a Borrower or any
other person under this Agreement, under a Letter of Credit or
Bank Guarantee or under any other security taken in respect of
its obligations under this Agreement or under a Letter of
Credit or Bank Guarantee being or becoming illegal, invalid,
unenforceable or ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted
to a Fronting Bank, a Borrower or any other person in respect
of its obligations under this Agreement, under a Letter of
Credit or Bank Guarantee or under any other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of a Fronting Bank, a Borrower or any other person
under this Agreement, under a Letter of Credit or Bank
Guarantee or under any other security; and
(e) any other act, event or omission which, but for this Clause
29.3, might operate to discharge, impair or otherwise affect
any of the obligations of a Lender in this Agreement contained
or any of the rights, powers or remedies conferred upon a
Fronting Bank by this Agreement or by law.
The obligations of each Lender contained in any Finance Document shall
be in addition to and independent of every other security which a
Fronting Bank may at any time hold in respect of any Letter of Credit
or Bank Guarantee.
29.4 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Lender and a Fronting Bank shall
be conditional upon no security or payment to that Fronting Bank by a
Lender or any other person on behalf of a Lender being avoided or
reduced by virtue of any laws relating to bankruptcy, insolvency,
liquidation or similar laws of general application and, if any such
security or payment is so avoided or reduced, the Fronting Bank shall
be entitled to recover the value or amount of such security or payment
from such Lender subsequently as if such settlement or discharge had
not occurred.
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29.5 EXERCISE OF RIGHTS
A Fronting Bank shall not be obliged before exercising any of the
rights, powers or remedies conferred upon it in respect of any Lender
by this Agreement or by law:
(a) to take any action or obtain judgment in any court against the
Borrower;
(b) to make or file any claim or proof in a winding-up or
dissolution of any Borrower; or
(c) to enforce or seek to enforce any other security taken in
respect of any of the obligations of any Borrower under this
Agreement.
30. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating
to its affairs (tax or otherwise) or any computations in
respect of Tax.
31. SHARING AMONG THE FINANCE PARTIES
31.1 PAYMENTS TO FINANCE PARTIES
If a Finance Party (a "RECOVERING FINANCE PARTY") receives or recovers
any amount from an Obligor other than in accordance with Clause 32
(PAYMENT MECHANICS) or Clause 8 (APPLICATION OF PROCEEDS AND CAPITAL
MAINTENANCE) of the Intercreditor Agreement and applies that amount to
a payment due under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business
Days, notify details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is
in excess of the amount the Recovering Finance Party would
have been paid had the receipt or recovery been received or
made by the Agent and distributed in accordance with Clause 32
(PAYMENT MECHANICS), without taking account of any Tax which
would be imposed on the Agent in relation to the receipt,
recovery or distribution; and
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(c) the Recovering Finance Party shall, within three Business Days
of demand by the Agent, pay to the Agent an amount (the
"SHARING PAYMENT") equal to such receipt or recovery less any
amount which the Agent determines may be retained by the
Recovering Finance Party as its share of any payment to be
made, in accordance with Clause 32.5 (PARTIAL PAYMENTS).
31.2 REDISTRIBUTION OF PAYMENTS
31.2.1 Subject to Clause 31.2.2, the Agent shall treat the Sharing Payment as
if it had been paid by the relevant Obligor and distribute it between
the Finance Parties (other than the Recovering Finance Party) in
accordance with Clause 32.5 (PARTIAL PAYMENTS).
31.2.2 If a notice is served under Clause 25.20 (ACCELERATION) each Lender
(and each Ancillary Bank) shall adjust by corresponding transfers (to
the extent necessary) their claims in respect of amounts outstanding to
them under the Revolving Facility and the Ancillary Facilities so that
after such transfers each Lender shall have the same amount of
outstandings under the Revolving Facility and the Ancillary Facilities
PRO RATA corresponding to the proportion of each Lender's Revolving
Commitment to the aggregate Revolving Commitments of all Lenders, each
as at the date the relevant notice is served.
31.3 RECOVERING FINANCE PARTY'S RIGHTS
(a) On a distribution by the Agent under Clause 31.2
(REDISTRIBUTION OF PAYMENTS), each Finance Party will assign
to the Recovering Finance Party the claims (or the proof
thereof) to which the Sharing Payment is allocated and the
relevant Obligor shall be liable to the Recovering Finance
Party in an amount equal to that Sharing Payment.
(b) If and to the extent that the Recovering Finance Party is not
able to rely on its rights under paragraph (a) above, the
relevant Obligor shall be liable to the Recovering Finance
Party for a debt equal to the Sharing Payment which is
immediately due and payable.
31.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a
Recovering Finance Party becomes repayable and is repaid by that
Recovering Finance Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 31.2 (REDISTRIBUTION OF
PAYMENTS) shall, upon request of the Agent, pay to the Agent
for account of that Recovering Finance Party an amount equal
to the appropriate part of its
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share of the Sharing Payment (together with an amount as is
necessary to reimburse that Recovering Finance Party for its
proportion of any interest on the Sharing Payment which that
Recovering Finance Party is required to pay); and
(b) that Recovering Finance Party's rights of assignment in
respect of any reimbursement shall be cancelled, the relevant
Obligor will be liable to the reimbursing Finance Party for
the amount so reimbursed and the Recovering Finance Party
shall re-assign any claims assigned to it pursuant to Clause
31.3(b).
31.5 EXCEPTIONS
(a) This Clause 31 shall not apply to the extent that the
Recovering Finance Party would not, after making any payment
pursuant to this Clause, have a valid and enforceable claim
against the relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any
other Finance Party any amount which the Recovering Finance
Party has received or recovered as a result of taking legal
proceedings, if:
(i) it notified that other Finance Party of the legal
proceedings; and
(ii) that other Finance Party had an opportunity to
participate in those legal proceedings but did not do
so as soon as reasonably practicable having received
notice and did not take separate legal proceedings.
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00. PAYMENT MECHANICS
32.1 PAYMENTS TO THE AGENT
(a) On each date on which an Obligor or a Lender is required to
make a payment under a Finance Document, that Obligor or
Lender shall make the same available to the Agent (unless a
contrary indication appears in a Finance Document) for value
on the due date at the time and in such funds specified by the
Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal
financial centre of the country of that currency (or, in
relation to euro, in a principal financial centre in a
Participating Member State or London) with such bank as the
Agent specifies.
32.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 32.3 (DISTRIBUTIONS TO AN
OBLIGOR), Clause 32.4 (CLAWBACK) and Clause 28.16 (DEDUCTION FROM
AMOUNTS PAYABLE BY THE AGENT) be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the
account of its Facility Office), to such account as that Party may
notify to the Agent by not less than five Business Days' notice with a
bank in the principal financial centre of the country of that currency
(or, in relation to euro, in the principal financial centre of a
Participating Member State or London).
32.3 DISTRIBUTIONS TO AN OBLIGOR
The Agent may (with the consent of the Obligor or in accordance with
Clause 33 (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.
32.4 CLAWBACK
(a) Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay
that sum to that other Party (or to enter into or perform any
related exchange contract) until it has been able to establish
to its satisfaction that it has actually received that sum.
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(b) If the Agent pays an amount to another Party and it proves to
be the case that the Agent had not actually received that
amount, then the Party to whom that amount (or the proceeds of
any related exchange contract) was paid by the Agent shall on
demand refund the same to the Agent together with interest on
that amount from the date of payment to the date of receipt by
the Agent, calculated by the Agent to reflect its cost of
funds.
32.5 PARTIAL PAYMENTS
(a) If the Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Agent shall apply that
payment towards the obligations of that Obligor under the
Finance Documents in the following order:
(i) first, in or towards payment PRO RATA of any unpaid
fees, costs and expenses of the Agent, the Security
Agent and the Arrangers under the Finance Documents;
(ii) secondly, in or towards payment of any demand made by
a Fronting Bank in respect of a payment made or to be
made by it under a Letter of Credit or Bank Guarantee
due but unpaid;
(iii) thirdly, in or towards payment PRO RATA of any
accrued interest, fee or commission due but unpaid
under this Agreement;
(iv) fourthly, in or towards payment PRO RATA of any
principal or cash cover due but unpaid under this
Agreement; and
(v) fifthly, in or towards payment PRO RATA of any other
sum due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary
the order set out in paragraphs (a)(iii) to (v) above.
(c) Paragraphs (a) and (b) above will override any appropriation
made by an Obligor.
(d) Following the service of a notice in accordance with Clause
25.20 (ACCELERATION) any monies standing to the credit of any
account of any Obligor held by any Ancillary Bank as part of
the Ancillary Facilities shall be applied by that Ancillary
Bank against any amounts then due to it in respect of the
Ancillary Facilities and any amounts, after that application,
standing to the credit of any account of any Obligor held by
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any Ancillary Bank shall be immediately paid to the Agent for
application in accordance with Clause 32.5 (PARTIAL PAYMENTS).
32.6 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.
32.7 BUSINESS DAYS
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the
same calendar month (if there is one) or the preceding
Business Day (if there is not).
(b) During any extension of the due date for payment of any
principal or Unpaid Sum under this Agreement interest is
payable on the principal or Unpaid Sum at the rate payable on
the original due date.
32.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (f) below, the Base Currency is
the currency of account and payment for any sum due from an
Obligor under any Finance Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or
Unpaid Sum shall be made in the currency in which that Loan or
Unpaid Sum is denominated on its due date.
(c) Each payment in respect of a Letter of Credit or Bank
Guarantee (including any Cash Collateral in respect of a
Letter of Credit or Bank Guarantee) shall be made in the
currency in which that Letter of Credit or Bank Guarantee is
denominated.
(d) Each payment of interest shall be made in the currency in
which the sum in respect of which the interest is payable was
denominated when that interest accrued.
(e) Each payment in respect of costs, expenses or Taxes shall be
made in the currency in which the costs, expenses or Taxes are
incurred.
(f) Any amount expressed to be payable in a currency other than
the Base Currency shall be paid in that other currency.
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32.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency
or currency unit are at the same time recognised by the
central bank of any country as the lawful currency of that
country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in,
the currency of that country shall be translated
into, or paid in, the currency or currency unit of
that country designated by the Agent (after
consultation with the Company); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of
that currency or currency unit into the other,
rounded up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this
Agreement will, to the extent the Agent (acting reasonably and
after consultation with the Company) specifies to be
necessary, be amended to comply with any generally accepted
conventions and market practice in the Relevant Interbank
Market and otherwise to reflect the change in currency.
33. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent owned by that Finance Party)
against any obligation (whether matured or not) 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.
34. NOTICES
34.1 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.
34.2 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:
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(a) in the case of the Company and any Original Obligor, that
identified with its name below;
(b) in the case of each Lender or any Obligor, that notified in
writing to the Agent on or prior to the date on which it
becomes a Party; and
(c) in the case of the Agent and Security Agent, that identified
with its name below,
or any substitute address, fax number or department or officer as the
Party may notify to the Agent (or the Agent may notify to the other
Parties, if a change is made by the Agent) by not less than five
Business Days' notice.
34.3 DELIVERY
(a) Any communication or document made or delivered by one person
to another under or in connection with the Finance Documents
will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the
relevant address or five Business Days after being
deposited in the post postage prepaid in an envelope
addressed to it at that address;
and, if a particular department or officer is specified as
part of its address details provided under Clause 34.2
(ADDRESSES), if addressed to that department or officer.
(b) Any communication or document to be made or delivered to the
Agent or to the Security Agent will be effective only when
actually received by the Agent or the Security Agent and then
only if it is expressly marked for the attention of the
department or officer identified with the Agent's or the
Security Agent's signature below (or any substitute department
or officer as the Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Agent.
(d) Any communication or document made or delivered to the Company
in accordance with this Clause will be deemed to have been
made or delivered to each of the Obligors.
(e) All notices to a Lender from the Security Agent shall be sent
through the Agent.
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34.4 NOTIFICATION OF ADDRESS AND FAX NUMBER
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 34.2 (ADDRESSES) or
changing its own address or fax number, the Agent shall notify the
other Parties.
34.5 ELECTRONIC COMMUNICATION
(a) Any communication to be made between the Agent or the Security
Agent and a Lender under or in connection with the Finance
Documents may be made by electronic mail or other electronic
means, if the Agent, the Security Agent and the relevant
Lender:
(i) agree that, unless and until notified to the
contrary, this is to be an accepted form of
communication;
(ii) notify each other in writing of their electronic mail
address and/or any other information required to
enable the sending and receipt of information by that
means; and
(iii) notify each other of any change to their address or
any other such information supplied by them.
(b) Any electronic communication made between the Agent and a
Lender or the Security Agent will be effective only when
actually received in readable form and in the case of any
electronic communication made by a Lender to the Agent or the
Security Agent only if it is addressed in such a manner as the
Agent or Security Agent shall specify for this purpose.
34.6 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance
Document must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent,
accompanied by a certified English translation and,
in this case, the English translation will prevail
unless the document is a constitutional, statutory or
other official document.
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35. CALCULATIONS AND CERTIFICATES
35.1 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.
35.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
35.3 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.
36. 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 and the relevant provision shall be deemed
replaced with a provision which comes as close as possible to the
purpose of the replaced provision. This also applies in the event of
gaps (VERTRAGSLUCKEN).
37. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party or the Arrangers, 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.
38. AMENDMENTS AND WAIVERS
38.1 REQUIRED CONSENTS
(a) Subject to Clause 38.2 (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.
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(b) The Agent, or in respect of the Security Documents the
Security Agent, may effect, on behalf of any Finance Party,
any amendment or waiver permitted by this Clause.
38.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or
which relates to:
(i) an extension of the Availability Period;
(ii) the definition of "MAJORITY LENDERS" in Clause 1.1
(DEFINITIONS);
(iii) an extension to the date of payment of any amount
under the Finance Documents or Clause 9 (REPAYMENT);
(iv) a reduction in the Applicable Margin or a reduction
in the amount of any payment of principal, interest
or commitment fees payable;
(v) an increase in or an extension of any Commitment;
(vi) a change to the Borrowers or Guarantors other than in
accordance with Clause 27 (CHANGES TO THE OBLIGORS);
(vii) any provision which expressly requires the consent of
all the Lenders;
(viii) Clause 2.2 (FINANCE PARTIES' RIGHTS AND OBLIGATIONS),
Clause 26 (CHANGES TO THE LENDERS) or this Clause 38;
(ix) subject to the provisions of the Intercreditor
Agreement, the nature or scope of the Charged
Property or the manner in which the proceeds of
enforcement of the Transaction Security are
distributed;
shall not be made without the prior consent of all the
Lenders.
(b) An amendment or waiver which has the effect of changing or
relates to the definition of "QUALIFYING PUBLIC OFFERING" in
Clause 1.1 (DEFINITIONS) shall not be made without the consent
of a group of Lenders whose participation in the Loans,
Letters of Credit and Bank Guarantees then outstanding (or, if
there are no Loans, Letters of Credit or Bank Guarantees then
outstanding, whose Commitments) aggregate more than 90 per
cent. of all the Loans, Letters of Credit and Bank Guarantees
then outstanding (or, as the case may be, the Total
Commitments).
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(c) An amendment or waiver which relates to the rights or
obligations of the Agent, the Security Agent or the Arrangers
may not be effected without the consent of the Agent, the
Security Agent or the Arrangers.
38.3 AMENDMENT BY COMPANY
The Company (acting on behalf of each of the Obligors) may agree any
amendment to or modification to the provisions of any of the Finance
Documents or any schedule thereto, or grant any waiver or consent in
relation thereto and each Obligor hereby authorises the Company to
agree any such amendment, modification, waiver or consent on its
behalf. The Company shall be released from the restrictions set out in
Section 181 of the German Civil Code. Nothing in this Clause 38.3 shall
prejudice the right of the Agent to require all Obligors to agree any
such amendment, modification, waiver or consent.
38.4 AMENDMENT TO CORRECT MANIFEST ERROR
The Agent may agree with the Company (acting on behalf of each of the
Obligors) any amendment to or the modification of the provisions of any
of the Finance Documents or any schedule thereto, which is necessary to
correct a manifest error.
39. 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.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
40. GOVERNING LAW
This Agreement is governed by German law.
41. ENFORCEMENT
41.1 JURISDICTION OF GERMAN COURTS
(a) The courts of Frankfurt am Main have exclusive jurisdiction to
settle any dispute arising out of or in connection with this
Agreement (including a dispute regarding the existence,
validity or termination of this Agreement) (a "DISPUTE").
(b) The Parties agree that the courts of Frankfurt am Main are the
most appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 41.1 is for the benefit of the Finance Parties
only. As a result, no Finance Party shall be prevented from
taking proceedings relating to a Dispute in any other courts
with jurisdiction. To the extent allowed by law, the Finance
Parties may take concurrent proceedings in any number of
jurisdictions.
41.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any
relevant law, each Obligor (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.
41.3 Confirmation pursuant to Section 8 Money Laundering Act
Each Borrower expressly confirms to the Finance Parties that all funds
made available to it under this Agreement have been drawn for its own
account and that it is the economic beneficiary within the meaning of
Section 8 Money Laundering Act (GELDWASCHEGESETZ)
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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 Registration number (or equivalent, if
any)
Grohe Beteiligungs GmbH & Co. KG Local court of Iserlohn, HRA 2093
Xxxxxxxxx Xxxxx AG & Co. KG Local court of Iserlohn, HRA 2031
Name of Original Guarantor Registration number (or equivalent, if
any)
Grohe Beteiligungs GmbH & Co. KG Local court of Iserlohn, HRB 2093
Xxxxxxxxx Xxxxx Geschaftsfuhrung AG Local court of Iserlohn, HRB 2352
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PART II
THE ORIGINAL LENDERS
Name of Original Facility A1 Facility A2 Facility B Revolving
Lender Commitment Commitment Commitment Commitment
Credit Suisse First 90,000,000 135,000,000 50,000,000 25,000,000
Boston International
Xxxxxxx Xxxxx Capital 90,000,000 135,000,000 50,000,000 25,000,000
Corporation
TOTAL 180,000,000 270,000,000 100,000,000 50,000,000
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SCHEDULE 2
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. ORIGINAL OBLIGORS: CORPORATE DOCUMENTS
(a) A certified copy of the constitutional documents of each
Original Obligor, Grohe Holding, Grohe Consult GmbH, AQUA
Xxxxxx GmbH, Eggemann Armaturenfabrik GmbH & Co. KG, Grohe
International GmbH, Grohe Deutschland Vertriebs GmbH, DAL GmbH
& Co. KG, Schmole GmbH & Co. KG, H.D. Xxxxxxxxxx & Co. GmbH,
GROHEDAL Sanitarsysteme GmbH & Co. KG, DAL Sanitartechnologie
GmbH, AQERO Vertriebs-GmbH, Grohe Verwaltungsgesellschaft mbH
and each company the shares of which are pledged as part of
the Transaction Security.
(b) A copy of a resolution of the shareholders or partners of each
Original Obligor (other than Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxx
Geschaftsfuhrungs AG and AQUA Xxxxxx GmbH), Grohe Holding,
Grohe Consult GmbH, AQUA Xxxxxx GmbH, Eggemann Armaturenfabrik
GmbH & Co. KG, Grohe International GmbH, Grohe Deutschland
Vertriebs GmbH, DAL GmbH & Co. KG, Schmole GmbH & Co. KG, H.D.
Xxxxxxxxxx & Co. GmbH, GROHEDAL Sanitarsysteme GmbH & Co. KG,
DAL Sanitartechnologie GmbH, AQERO Vertriebs-GmbH and Grohe
Verwaltungsgesellschaft mbH and approving the terms of, and
the transactions contemplated by, the Finance Documents to
which it is a party and resolving that it execute the Finance
Documents to which it is a party.
(c) A specimen of the signature of each person authorised to sign
the Finance Documents on behalf of an Original Obligor, Grohe
Holding, Grohe Consult GmbH, AQUA Xxxxxx GmbH, Eggemann
Armaturenfabrik GmbH & Co. KG, Grohe International GmbH, Grohe
Deutschland Vertriebs GmbH, DAL GmbH & Co. KG, Schmole GmbH &
Co. KG, H.D. Xxxxxxxxxx & Co. GmbH, GROHEDAL Sanitarsysteme
GmbH & Co. KG, DAL Sanitartechnologie GmbH, AQERO
Vertriebs-GmbH and Grohe Verwaltungsgesellschaft mbH.
(d) A certificate of an authorised signatory of the relevant
Original Obligor, Grohe Holding, Grohe Consult GmbH, AQUA
Xxxxxx GmbH, Eggemann Armaturenfabrik GmbH & Co. KG, Grohe
International GmbH, Grohe Deutschland Vertriebs GmbH, DAL GmbH
& Co. KG,
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Schmole GmbH & Co. KG, H.D. Xxxxxxxxxx & Co. GmbH, GROHEDAL
Sanitarsysteme GmbH & Co. KG, DAL Sanitartechnologie GmbH,
AQERO Vertriebs-GmbH and Grohe Verwaltungsgesellschaft mbH and
certifying that each copy document relating to it specified in
Part I of this Schedule 2 is correct, complete and in full
force and effect as at a date no earlier than the date of this
Agreement.
(e) The Group Structure Chart certified by the Company as being
true at the date of this Agreement.
2. SECURITY DOCUMENTS
(a) The following Security Documents duly executed by the relevant
parties and in each case granting a first ranking security
interest, except for security permitted under Clause 24.25
(CONDITIONS SUBSEQUENT):
(i) pledge by Grohe Beteiligungs over the shares in
Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG;
(ii) pledge by Grohe Beteiligungs and Xxxxxxxxx Xxxxx
Geschaftsfuhrungs AG over their partnership interests
in Xxxxxxxxx Xxxxx;
(iii) pledge by Xxxxxxxxx Xxxxx over the shares or
partnership interests, as the case may be, in Grohe
Deutschland Vertriebs GmbH, Grohe
Verwaltungsgesellschaft mbH, Grohe International
GmbH, Schmole GmbH & Co. KG, H.D. Xxxxxxxxxx & Co.
GmbH and, together with Grohe Verwaltungsgesellschaft
mbH, DAL GmbH & Co. KG;
(iv) pledge by Grohe Beteiligungs of its escrow account;
(v) a bank account pledge by Xxxxxxxxx Xxxxx relating to
the Xxxxxxxxx Xxxxx Mandatory Prepayment Account;
(vi) a bank account pledge by Grohe Beteiligungs relating
to the Grohe Beteiligungs Mandatory Prepayment
Account;
(vii) assignment by way of security of receivables
(including intercompany loans) by Xxxxxxxxx Xxxxx and
Grohe Deutschland Vertriebs GmbH;
(viii) assignment by way of security of intercompany loans
by Grohe International GmbH and DAL GmbH & Co. KG;
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(ix) transfer by way of security of fixed and current
assets by Xxxxxxxxx Xxxxx;
(x) assignment or pledges of the Grohe brands;
(xi) security over the shares in Grohe Nederland B.V.;
(xii) security over the shares in Grohe America Inc.;
(xiii) security over the shares in Grohe Gesellschaft mbH,
Wien;
(xiv) security over the shares in Grohe Sar.1. (France);
(xv) security over the shares in Grohe SpA (Italy);
(xvi) security over the shares in Grohe N.V. (Belgium),
(xvii) security propose agreement relating to the existing
land charges registered in the name of Dresdner Bank
AG to be entered into by each relevant chargor with
the Security Agent,
it being understood that the security granted by Grohe
Beteiligungs and Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG shall
secure any and all obligations (present and future, actual and
contingent) which are (or are expressed to be) or became owing
by the Obligors (or any of them) (excluding, in the case of
Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG, Grohe Beteiligungs) to
the Finance Parties or any of them under the Finance
Documents, while, the security granted by Xxxxxxxxx Xxxxx and
any of its Subsidiaries shall secure any and all obligations
(present and future, actual and contingent) which are (or are
expressed to be) or become owing by any Obligor other than
Grohe Beteiligungs and Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG to
the Finance Parties or any of them under the Finance
Documents.
(b) The Intercreditor Agreement.
(c) The Grohe Holding Subordination Agreement and the Grohe
Holding Shareholder Loans.
(d) The Senior Notes Subordination Agreement and the Senior Notes
Loan.
(e) Copy of any Shareholder Loan, if any, and the Subordination
Agreement relating thereto.
(f) Evidence of the discharge of any Security or guarantees
granted by any member of the Group which is not permitted by
Clause 24.3 (NEGATIVE PLEDGE) and evidence that the Refinanced
Facilities will be refinanced on
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or immediately prior to the first Utilisation Date, or, if the
Utilisation Request specifies that the proceeds of the
proposed Utilisation with regard to the Initial Term Loan are
to be paid to the Escrow Account, concurrently with the
release of proceeds from the Escrow Account in accordance with
the terms of the Escrow Account Agreement.
(g) A copy of the corporate agreement between Grohe Holding, Grohe
Consult GmbH and Grohe Beteiligungs GmbH & Co. KG.
3. LEGAL OPINIONS
(a) A legal opinion of Xxxxxxxx Chance Punder, legal advisers to
the Arrangers and the Agent in the Federal Republic of Germany
in form and substance satisfactory to the Agent.
(b) A legal opinion of the Agent's local counsel in each
jurisdiction in which an Obligor, a party to a Finance
Document other than the Grohe Holding Subordination Agreement
or a company to be pledged is incorporated.
4. NOTE DOCUMENTS
(a) A copy of all Note Documents.
(b) A copy of the Senior Notes Loan and the Senior Notes
Subordination Agreement.
5. OTHER DOCUMENTS AND EVIDENCE
(a) Evidence that any process agent referred to in Clause 41.2
(SERVICE OF PROCESS), if not an Original Obligor, has accepted
its appointment.
(b) A copy of any other Authorisation or other document, opinion
or assurance which the Agent considers to be necessary or
desirable (if it has notified the Company accordingly) in
connection with the entry into and performance of the
transactions contemplated by any Finance Document or for the
validity or enforceability of any Finance Document or of the
Transaction Security.
(c) The Original Financial Statements of each Original Obligor and
Grohe Holding.
(d) The Budget for the financial year 2003.
(e) The Business Plan.
(f) Evidence that the fees, costs and expenses then due pursuant
to Clause 14 (FEES), Clause 19 (COSTS AND EXPENSES) and Clause
15.5
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(STAMP TAXES) have been paid or will be paid by the first
Utilisation Date.
(g) The executed Fee Letters.
(h) The following reports:
(i) an up-date of the legal review report dated 13 March
2003 and relating to the Group and Grohe Holding by
CMS Xxxxxx Xxxxx Eschenlohr Xxxxxxx;
(ii) an up-date of the market report dated 7 March 2003
and relating to the Group by Boston Consulting Group;
(iii) an up-date of the financial and tax report dated 29
January 2003 and relating to the Group and Grohe
Holding by Ernst & Young;
in each case addressed to the Agent on behalf of the Finance
Parties; and
(iv) the environmental report dated August 2000 and
relating to the Group and Grohe Holding by ERM
Laymeyer.
(h) The executed Escrow Account Agreement, if any.
(i) The Funds Flow Statement.
(j) A list of Financial Indebtedness (including interest rate
hedging), setting out the name of the debtor, the name of the
creditor, the outstanding amount, the undrawn commitment, the
purpose, the repayment dates and the final maturity date or,
in the case of interest rate hedging agreements, the name of
the debtor and the creditor, the xxxx-to-market valuation and
the termination date.
(k) A copy of the Existing Senior Credit Agreement and all other
documents entered into in connection therewith, including in
particular all security documents.
(l) Copy of the Syndication Letter.
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PART II
CONDITIONS PRECEDENT TO SHAREHOLDER LOAN REFINANCING
1. Evidence that the Senior Notes Consent has been granted.
2. Evidence that any loans made by Grohe Beteiligungs to Grohe Holding and
any withdrawals made from Grohe Beteiligungs will be made in form and
substance satisfactory to the Agent.
3. A copy of the loan agreement and the subordination agreement relating
to the loan from Grohe Beteiligungs to Grohe Holding with respect to
the Shareholder Loan Refinancing.
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PART III
CONDITIONS PRECEDENT REQUIRED TO BE DELIVERED BY AN ADDITIONAL OBLIGOR
1. An Accession Letter, duly executed by the Additional Obligor and the
Company.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of a resolution of the shareholders or partners of the
Additional Obligor approving the terms of, and the transactions
contemplated by, the Accession Letter and the Finance Documents and
resolving that it execute the Accession Letter and any other Finance
Document to which it is a party.
4. A specimen of the signature of each person authorised to execute the
Accession Letter and the Finance Documents on behalf of the Additional
Obligor.
5. A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Part II 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.
6. If available, the latest audited financial statements of the Additional
Obligor.
7. Each Security Document which the Agent may require to be given by that
Additional Obligor, duly executed by that Additional Obligor and, if
required, the Security Agent.
8. Any notices or documents required to be given or executed or made under
the terms of the Security Documents entered into by the Additional
Obligor.
9. A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable in
connection with the entry into and performance of the transactions
contemplated by the Accession Letter and each Finance Document to which
the Additional Obligor is a party or for the validity and
enforceability of any Finance Document or of any Transaction Security
created or intended to be created by the Additional Obligor.
10. A legal opinion of Xxxxxxxx Chance Punder, legal advisers to the
Arrangers and the Agent in the Federal Republic of Germany.
11. If the Additional Obligor is incorporated in a jurisdiction other than
the Federal Republic of Germany, a legal opinion of the legal advisers
to the Arranger and the Agent in the jurisdiction in which the
Additional Obligor is incorporated.
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
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Clause 41.2 (SERVICE OF PROCESS) has accepted its appointment in
relation to the proposed Additional Obligor.
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SCHEDULE 3
REQUESTS
PART I
UTILISATION REQUEST
From: [BORROWER]
To: [AGENT]
Dated:
Dear Sirs
[COMPANY] - [O] FACILITY AGREEMENT
DATED [O] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined
in the Agreement have the same meaning in this Utilisation Request
unless given a different meaning in this Utilisation Request.
2. We wish to borrow a Loan on the following terms:/We wish [o] as
Fronting Bank to issue a Letter of Credit as follows:
Proposed Utilisation Date: [o] (or, if that is not a Business Day,
the next Business Day)
Facility to be utilised: [Facility A1]/[Facility A2/[Facility
B]/[Revolving Facility]]*
Currency of Loan/Letter of Credit/
Bank Guarantee: [o]
Amount: [o] or, if less, the Available Facility
Interest Period/Term: [o]
3. We confirm that each condition specified in Clause 4.2 (FURTHER
CONDITIONS PRECEDENT) is satisfied on the date of this Utilisation
Request, in particular that no [Default/ for Rollover Loan: Event of
Default/ Certain Funds Event of Default] is continuing and that the
[Repeating Representations/ Certain Funds Repeating Representations]
continue to be true and correct.
4. The proceeds of this Loan should be credited to [ACCOUNT]/The Letter of
Credit/Bank Guarantee should be issued in favour of [o] in the form
attached and delivered to the recipient at [o]. The purpose of its
issue is [o].
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5. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
[NAME OF RELEVANT BORROWER]
* delete as appropriate
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PART II
SELECTION NOTICE
APPLICABLE TO A TERM LOAN
From: [BORROWER]
To: [AGENT]
Dated:
Dear Sirs
[COMPANY] - [O] FACILITY AGREEMENT
DATED [O] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Selection Notice. Terms defined in
the Agreement have the same meaning in this Selection Notice unless
given a different meaning in this Selection Notice.
2. We refer to the following Term Loan[s] in [EUR/dollars] with an
Interest Period ending on [o].
3. [We request that the above Term Loan[s] be divided into [o] Term Loans
with the following Base Currency Amounts and Interest Periods:]
OR
[We request that the next Interest Period for the above Term Loan[s] is
[o]].
4. [We request that the above Facility A1 Loan[s] [is]/[are] [denominated
in the same currency for the next Interest Period]/[denominated in the
following currencies: [o]. As this results in a change of currency we
confirm that each condition specified in Clause 4.2 (FURTHER CONDITIONS
PRECEDENT) is satisfied on the date of this Selection Notice. The
proceeds of any change in currency should be credited to [ACCOUNT].].
5. We confirm that no Default is continuing and that the Repeating
Representations continue to be true and correct.
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6. This Selection Notice is irrevocable.
Yours faithfully
.....................................
authorised signatory for
[THE COMPANY ON BEHALF OF]
[NAME OF RELEVANT BORROWER]
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SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the
Bank of England and/or the Financial Services Authority (or, in either
case, any other authority which replaces all or any of its functions)
or (b) the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate
(the "ADDITIONAL COST RATE") for each Lender, in accordance with the
paragraphs set out below. The Mandatory Cost will be calculated by the
Agent as a weighted average of the Lenders' Additional Cost Rates
(weighted in proportion to the percentage participation of each Lender
in the relevant Loan) and will be expressed as a percentage rate per
annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Lender to the Agent. This percentage will be certified by that Lender
in its notice to the Agent to be its reasonable determination of the
cost (expressed as a percentage of that Lender's participation in all
Loans made from that Facility Office) of complying with the minimum
reserve requirements of the European Central Bank in respect of loans
made from that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB + C (B-D) + E x 0.01
----------------------- per cent. per annum
100 - (A + C)
(b) in relation to a Loan in any currency other than sterling:
E x 0.01
-------- per cent. per annum.
300
Where:
(A) is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Lender is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
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(B) is the percentage rate of interest (excluding the Margin and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate
of interest specified in paragraph (a) of Clause 11.4 (DEFAULT
INTEREST)) payable for the relevant Interest Period on the Loan.
(C) is the percentage (if any) of Eligible Liabilities which that Lender is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
(D) is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
(E) is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in pounds per
(pound)1,000,000.
5. For the purposes of this Schedule:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the
meanings given to them from time to time under or pursuant to
the Bank of England Act 1998 or (as may be appropriate) by the
Bank of England;
(b) "FEES RULES" means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may
be in force from time to time in respect of the payment of
fees for the acceptance of deposits;
(c) "FEE TARIFFS" means the fee tariffs specified in the Fees
Rules under the activity group A.1 Deposit acceptors (ignoring
any minimum fee or zero rated fee required pursuant to the
Fees Rules but taking into account any applicable discount
rate); and
(d) "TARIFF BASE" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by
subtracting D from B shall be taken as zero. The resulting figures
shall be rounded to four decimal places.
7. If requested by the Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority,
supply to the Agent, the rate of charge payable by that Reference Bank
to the Financial Services Authority pursuant to the Fees Rules in
respect of the relevant financial year of
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the Financial Services Authority (calculated for this purpose by that
Reference Bank as being the average of the Fee Tariffs applicable to
that Reference Bank for that financial year) and expressed in pounds
per (pound)1,000,000 oF THe Tariff Base of that Reference Bank.
8. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information
on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require
for such purpose.
Each Lender shall promptly notify the Agent of any change to the
information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall
be determined by the Agent based upon the information supplied to it
pursuant to paragraphs 7 and 8 above and on the assumption that, unless
a Lender notifies the Agent to the contrary, each Lender's obligations
in relation to cash ratio deposits and Special Deposits are the same as
those of a typical bank from its jurisdiction of incorporation with a
Facility Office in the same jurisdiction as its Facility Office.
10. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above is
true and correct in all respects.
11. The Agent shall distribute the additional amounts received as a result
of the Mandatory Cost to the Lenders on the basis of the Additional
Cost Rate for each Lender based on the information provided by each
Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8 above.
12. Any determination by the Agent pursuant to this Schedule in relation to
a formula, the Mandatory Cost, an Additional Cost Rate or any amount
payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all Parties.
13. The Agent may from time to time, after consultation with the Company
and the Lenders, determine and notify to all Parties any amendments
which are required to be made to this Schedule in order to comply with
any change in law,
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regulation or any requirements from time to time imposed by the Bank of
England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
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SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
To: Dresdner Bank Luxembourg S. A. as Agent and Security Agent
From: [THE EXISTING LENDER] (the "EXISTING LENDER") and [THE NEW LENDER] (the
"NEW LENDER")
Dated:
[COMPANY] - [O] FACILITY AGREEMENT
DATED [O] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Transfer Certificate. Terms
defined in the Agreement have the same meaning in this Transfer
Certificate unless given a different meaning in this Transfer
Certificate.
2. We refer to Clause 26.5 (PROCEDURE FOR TRANSFER):
(a) The Existing Lender and the New Lender agree to the Existing
Lender transferring to the New Lender all or part of the
Existing Lender's Commitment, rights and obligations referred
to in the Schedule in accordance with Clause 26.5 (PROCEDURE
FOR TRANSFER).
(b) The proposed Transfer Date is [o].
(c) The Facility Office and address, fax number and attention
details for notices of the New Lender for the purposes of
Clause 34.2 (ADDRESSES) are set out in the Schedule.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 26.4
(LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS).
4. The New Lender confirms that it has received a copy of each of the
Security Documents which are governed by German law and are pledges, is
aware of their contents and hereby expressly consents to the
declarations of the Security Agent made on behalf of the New Lender as
future pledgee in those Security Documents.
5. This Transfer Certificate may be executed in any number of counterparts
and this has the same effect as if the signatures on the counterparts
were on a single copy of this Transfer Certificate.
6. This Transfer Certificate is governed by German law.
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THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[INSERT RELEVANT DETAILS]
[FACILITY OFFICE ADDRESS, FAX NUMBER
AND ATTENTION DETAILS FOR NOTICES AND ACCOUNT
DETAILS FOR PAYMENTS,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [o].
[Agent]
By:
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SCHEDULE 6
FORM OF ACCESSION LETTER
To: [o] as Agent
From: [SUBSIDIARY] and [Company]
Dated:
Dear Sirs
[COMPANY] - [O] FACILITY AGREEMENT
DATED [O] (THE "AGREEMENT")
1. We refer to the Agreement. This is an Accession Letter. Terms defined
in the Agreement have the same meaning in this Accession Letter unless
given a different meaning in this Accession Letter.
2. [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and
to be bound by the terms of the Agreement as an Additional
[Borrower]/[Guarantor] pursuant to Clause [27.2 (ADDITIONAL
BORROWERS)]/[Clause 27.5 (ADDITIONAL GUARANTORS)] of the Agreement.
[SUBSIDIARY] is a company duly incorporated under the laws of [NAME OF
RELEVANT JURISDICTION].
3. [SUBSIDIARY'S] administrative details are as follows:
Address:
Fax No:
Attention:
4. We hereby confirm that
(a) no Default is continuing or would occurs as a result of the
accession;
(b) the Repeating Representations are true and correct in relation
to [Subsidiary] as at the date of delivery of this Accession
Letter.
5. This Accession Letter is governed by German law.
[Company] [Subsidiary]
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SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [o] as Agent
From: [RESIGNING OBLIGOR] and [Company]
Dated:
Dear Sirs
[COMPANY] - [O] FACILITY AGREEMENT
DATED [O] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Resignation Letter. Terms defined
in the Agreement have the same meaning in this Resignation Letter
unless given a different meaning in this Resignation Letter.
2. Pursuant to Clause 27.3 (RESIGNATION OF A BORROWER), we request that
[resigning Obligor] be released from its obligations as a [Borrower]
under the Agreement.
3. We confirm that:
(a) no Default is continuing or would result from the acceptance
of this request; and
(b) the Repeating Representations are true and correct as at the
date of delivery of this Resignation Letter.
4. This Resignation Letter is governed by German law.
[Company] [Subsidiary]
By: By:
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SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: [o] as Agent
From: [COMPANY]
Dated:
Dear Sirs
[COMPANY] - [O] FACILITY AGREEMENT
DATED [O] (THE "AGREEMENT")
1. We refer to the Agreement. This is a Compliance Certificate. Terms
defined in the Agreement have the same meaning when used in this
Compliance Certificate unless given a different meaning in this
Compliance Certificate.
2. We confirm that:
[INSERT DETAILS OF FINANCIAL COVENANTS AND WHETHER THE GROUP IS IN
COMPLIANCE WITH THOSE COVENANTS]
3. We confirm that no Default is continuing and that the Repeating
Representations continue to be true and correct.
Signed: .............................. ..............................
Director of Director of
[COMPANY] [COMPANY]
[INSERT APPLICABLE CERTIFICATION LANGUAGE]
......................
for and on behalf of
[NAME OF AUDITORS OF THE COMPANY]
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SCHEDULE 9
EXISTING SECURITY
PART I
1. the pledge of the partnership interest in Xxxxxxxxx Xxxxx under a
partnership interest pledge agreement dated 29 May and 15/19 June 2000,
amended on 26 October 2000, and entered into between, among others,
Grohe Holding as pledgor and Dresdner Bank AG as pledgee;
2. the pledge of one share in the nominal value of DM 500.00 of Xxxx & Co.
GmbH (which was later transformed into DAL GmbH & Co. KG) and one share
in the nominal value of DM 24,500.00 in Grohe Thermostat GmbH (which
was later transformed into Grohe Thermostat GmbH & Co. KG and
subsequently merged into Xxxxxxxxx Xxxxx AG & Co. KG) under a share
pledge agreement dated 27 March 2000 and entered into, among others, BC
European Capital VI-1 as pledgor and Dresdner Bank Luxembourg S. A. as
pledgee;
3. the pledge of the shares of Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG dated
under a share pledge agreement dated 19/20 June 2000, amended on 26
October 2000, and entered into between, among others, Grohe Holding as
pledgor and Dresdner Bank AG as pledgee;
4. the pledge of the limited partnership interest in Schmohle GmbH & Co.
created under an interest pledge agreement dated 21 June 2000 and
entered into between, among others, Xxxxxxxxx Xxxxx as pledgor and
Dresdner Bank AG as pledgee;
5. the pledges of the shares of Xxxx & Co. GmbH (which was later
transformed into DAL GmbH & Co. KG), Grohe Thermostat GmbH (which was
later transformed into Grohe Thermostat GmbH & Co. KG and subsequently
merged into Xxxxxxxxx Xxxxx XX & Xx. XX), Xxxxx XxxxxxxxxxxXxxX, H. D.
Xxxxxxxxxx & Co. Gesellschaft mit beschrankter Haftung, Xxxxxxxxxx
Armaturen GmbH (which was later transformed into Xxxxxxxxxx Armaturen
GmbH & Co. KG and subsequently merged into Xxxxxxxxx Xxxxx AG & Co. KG)
and Grohe International created under a share pledge agreement dated 19
June 2000 and entered into between, among others, Xxxxxxxxx Xxxxx as
pledgor and Dresdner Bank AG as pledgee;
6. the pledge of the shares of Grohe Gesellschaft m.b.H., Vienna, Grohe
S.A.R.L., Grohe S.p.A., Grohe N.V., Grohe Japan K.K., Grohe A/S, Grohe
Pacific Pte. Ltd., Tempress Ltd., Grohe Polska Sp.zo.o., Grohe
Nederland B.V., Grohe America Inc. and Grohe Espana S.A. created under
an umbrella share pledge
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agreement dated 28 December 2000 and entered into between, among
others, Grohe International as pledgor and Dresdner Bank AG as pledgee;
7. the pledge of the shares in Grohe Gesellschaft m.b.H., Vienna created
under a share pledge agreement dated 28 December 2000 and entered into
between, among others, Grohe International as pledgor and Dresdner Bank
AG as pledgee;
8. the pledge of the shares of Grohe N. V. created under a share pledge
agreement dated 28 December 2000 and entered into between, among
others, Grohe International as pledgor and Dresdner Bank AG as pledgee;
9. the pledge of the share capital of Grohe Japan K. K. created under a
share pledge agreement dated 28 December 2000 and entered into between,
among others, Grohe International as pledgor and Dresdner Bank AG as
pledgee;
10. the pledge of shares in Grohe Pacific Pte. Ltd. created under a share
pledge agreement dated 28 December 2000 and entered into between, among
others, Grohe International as pledgor and Dresdner Bank AG as pledgee;
11. the pledge of 75 % of the share capital of Grohe A/S created under a
share pledge agreement dated 28 December 2000 and entered into between,
among others, Grohe International as pledgor and Dresdner Bank AG as
pledgee;
12. the first ranking pledge of 25 % of the share capital in Grohe A/S
created under a share pledge agreement dated 6 October 1999, amended on
24 March/6 April 2000 and amended on 26 October 2000 and entered into
between, among others, Grohe Holding as pledgor and Dresdner Bank AG as
pledgee;
13. the second ranking pledge of 25 % of the share capital in Grohe A/S
created under a share pledge agreement dated 26 October 2000 and
entered into between, among others, Grohe Beteiligungs as pledgor and
Dresdner Bank AG as pledgee;
14. the second ranking pledge of 25 % of the share capital in Grohe A/S
created under a share pledge agreement dated 6 October 1999 and amended
on 24 March/6 April 2000 and entered into between, among others, Grohe
Holding as pledgor and Dresdner Bank AG as pledgee;
15. the third ranking pledge of 25 % of the share capital in Grohe A/S
created under a share pledge agreement dated 6 October 1999 and amended
on 24 March/6 April 2000 and entered into between, among others, Grohe
Holding as pledgor and Dresdner Bank AG as pledgee;
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16. the pledge of the shares of Grohe America Inc. created under a share
pledge agreement dated 28 December 2000 and entered into, among others,
between Grohe International as pledgor and Dresdner Bank AG as pledgee;
17. the pledge of the shares of Grohe S.A.R.L. created under a share pledge
agreement (ACTE DE NANTISSEMENT DE PARTS SOCIALES) dated 28 December
2000 and entered into between, among others, Grohe International as
pledgor and Dresdner Bank AG as pledgee and registered with the French
tax authorities on 8 February 2001 and notified upon Grohe S.A.R.L. by
bailiff (SIGNIFICATION PAR HUISSIER) on 26 February 2001;
18. the pledge of 99.9 % of the ordinary shares of Grohe S.p.A. created
under a share pledge agreement dated 28 December 2000 and entered into
between, among others, Grohe International as pledgor and Dresdner Bank
AG as pledgee;
19. the pledge of shares of Grohe Espana, S. A. created under a share
pledge agreement dated 28 December 2000 and entered into between, among
others, Grohe International as pledgor and Dresdner Bank AG as pledgee;
20. the security interest in the shares of Tempress Ltd. (Ontario) created
under a share pledge agreement dated 28 December 2000 and entered into
between, among others, Grohe International as pledgor and Dresdner Bank
AG as pledgee;
21. the pledge of the shares of Grohe Deutschland Vertriebs GmbH created
under a share pledge agreement dated 7 November 2000 and entered into
between, among others, Xxxxxxxxx Xxxxx as pledgor and Dresdner Bank AG
as pledgee;
22. the security assignment agreement dated 26 October 2000 regarding all
existing and future claims arising out of or in connection with the
Share Purchase Agreement and the Danish Share Purchase Agreement and
entered into between Grohe Holding and Grohe Beteiligungs as assignors
and the security agent as assignee;
23. the hedging security assignment agreement dated 26 October 2000
regarding all present and future claims of the assignors out of (i)
agreements for interest rate swaps, interest rate options, interest
rate swap options, (ii) transactions with third parties in which
obligations of Grohe Beteiligungs are directly or indirectly affected
by the level of interest rates, and (iii) all other transactions with
third parties a primary purpose of which is to hedge against the
financial risks resulting from interest rate fluctuations and entered
into between Grohe Holding and Grohe Beteiligungs as assignors and the
security agent as assignee;
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24. the hedging security assignment agreement dated 19/21 June 2000
regarding all present and future claims of the assignors out of (i)
agreements for interest rate swaps, interest rate options, interest
rate swap options, (ii) all of the transactions with third parties in
which the obligations of the assignor and/or of his business partners
are directly or indirectly determined or affected by the level of
interest rates or their development and (iii) all other transactions
with third parties the primary purpose of which is to hedge against the
financial risks resulting from interest fluctuations and entered into
between Xxxxxxxxx Xxxxx as assignor and the Security Agent as assignee;
25. the assignment agreement dated 19 June 2000 regarding all present and
future receivables and other monetary claims against all of its debtors
and entered into between Xxxxxxxxx Xxxxx as assignor and the Security
Agent as assignee. All rights and claims assigned to the Security Agent
under this agreement are hereby reassigned to Xxxxxxxxx Xxxxx;
26. the assignment agreement dated 2/8 November 2000 regarding all present
and future receivables and other monetary claims against all of the
assignor's debtors and entered into between Grohe Deutschland Vertriebs
GmbH as assignor and Dresdner Bank AG as assignee;
27. the IP assignment agreement dated 2 October 2002 regarding patents,
trade-marks and other intellectual property rights and entered into
between Xxxxxxxxx Xxxxx as assignor and Dresdner Bank AG as assignee;
28. the first ranking pledge of all present and future claims of Grohe
Holding GmbH out of (i) agreements for interest rate swaps, interest
rate options, interest rate swap options, (ii) all other transactions
with the security agent in which the obligations of the borrower and/or
his business partners are directly or indirectly determined or affected
by the level of interest rates or their development and (iii) all other
transactions with the security agent the primary purpose of which is to
hedge against the financial risks resulting from interest rate
fluctuations, created under a pledge agreement dated 6 October 1999,
amended 26 October 2000 and entered into between, among others, Grohe
Holding as pledgor and Dresdner Bank AG as pledgee;
29. the second ranking pledge of all present and future claims of Grohe
Beteiligungs out of (i) agreements for interest rate swaps, interest
rate options, interest rate swap options, (ii) transactions with third
parties in which obligations of Grohe Beteiligungs are directly or
indirectly effected by the level of interest rates, and (iii) all other
transactions with third parties the primary purpose of which is to
hedge against the financial risks resulting from interest rate
fluctuations, created under a pledge agreement dated 26 October 2000
and entered into between,
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among others, Grohe Beteiligungs as pledgor and Dresdner Bank AG as
pledgee;
30. the pledge over all present and future claims of Xxxxxxxxx Xxxxx
against Dresdner Bank AG arising out of (i) interest rate swaps,
interest rate options, interest rate swaps options, (ii) all other
transactions with the security agent in which obligations of Xxxxxxxxx
Xxxxx are directly or indirectly determined or affected by the level of
interest rates or their development, and (iii) all other transactions
with the security agent the primary purpose of which is to hedge
against the financial risks from interest rate fluctuation, created
under a pledge agreement dated 19/20 June 2000 and entered into
between, among others, Xxxxxxxxx Xxxxx as pledgor and Dresdner Bank AG
as pledgee;
31. the pledge of the escrow account (no. 103-243/0/002/090) at Dresdner
Bank Luxembourg S.A. created under a share pledge agreement dated 26
October 2000 and the pledge of the escrow account (no. 103
922/0/002/090) at Dresdner Bank Luxembourg S.A. created under a share
pledge agreement dated 8 November 2000, both entered into between,
among others, Grohe Beteiligungs as pledgor and Dresdner Bank AG as
pledgee;
32. the security transfer of current assets (SICHERUNGSUBEREIGNUNG VON
UMLAUFVERMOGEN) dated 19 June 2000 and entered into between Xxxxxxxxx
Xxxxx as as-xxxxxx and Dresdner Bank AG as assignee;
33. the security transfer of fixed assets (SICHERUNGSUBEREIGNUNG VON
ANLAGEVERMOGEN) dated 19 June 2000 and entered into between Xxxxxxxxx
Xxxxx as assignor and Dresdner Bank AG as assignee.
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PART II
Name of Company Security Total Principal Amount of
Indebtedness Secured
GROHEDAL land charge over DM 8,000,000 in EUR 639,115
SANITARSYSTEME favour of IkB, Dusseldorf over (as of 31 December 2002)
GmbH & Co. KG land registered with the land
registry Haldensleben, leaf 6245
owner's land charge over 0
DM 7,000,000 over land
registered with the land
registry in Minden/Lerbeck, leaf
448A
DAL owner's land charge over 0
Sanitartechnologie DM 5,000,000 over land
GmbH registered with the land
registry in Eilenburg/Zwochau,
leaf 412
AQUA Xxxxxx GmbH land charge over DM 15,000,000 EUR 5,752,034
in favour of WestLB, Dusseldorf
over land registered with the (as of 31 December 2002)
land registry in Zossen, leaf
2588
Rolto GmbH & Co. KG land charge over DM 5,000,000 in EUR 1,214,818
favour of Berliner Bank, Berlin
over land registered with the (as of 31 December 2002)
land registry in Wittenau, leaf
9940
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Name of Company Security Total Principal Amount of
Indebtedness Secured
Schmole GmbH & Co. KG land charge over DM 9,000,000 in EUR 176,986
favour of Commerzbank AG,
Iserlohn over heredity building (as of 31 December 2002)
right registered with the land
registry in Iserlohn/Becke, leaf
0509
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SCHEDULE 10
TIMETABLES
LOANS IN EURO LOANS IN OTHER CURRENCIES
Agent notifies the Company if a currency is - U-4
approved as an Optional Currency in
accordance with Clause 4.3 (CONDITIONS
RELATING TO OPTIONAL CURRENCIES)
Delivery of a duly completed Utilisation U-3 U-3
Request (Clause 5.1 (DELIVERY OF A
UTILISATION REQUEST) or a Selection Notice 9.30am 9.30am
(Clause 12.1 (SELECTION OF INTEREST PERIODS))
Agent determines (in relation to a - U-3
Utilisation) the Base Currency Amount of the
Loan, Letter of Credit or Bank Guarantee, if noon
required under Clause 5.4 (LENDERS'
PARTICIPATION)
Agent notifies the Lenders of the Loan, U-3 U-3
Letter of Credit or Bank Guarantee in
accordance with Clause 5.4 (LENDERS' 3.00pm 3.00pm
PARTICIPATION) or the interest period
selected in accordance with Clause 12.1
(SELECTION OF INTEREST PERIODS)
Agent receives a notification from a Lender U-3
under Clause 7.2 (UNAVAILABILITY OF A
currency) 5.00pm
Agent gives notice in accordance with U-2
Clause 7.2 (UNAVAILABILITY OF A CURRENCY)
9.30am
LIBOR or EURIBOR is fixed Quotation Day as of Quotation Day as of 11:00 a.m.
11:00 a.m. Frankfurt London time
time
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LOANS IN EURO LOANS IN OTHER CURRENCIES
"U" = date of utilisation
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SCHEDULE 11
FORM OF LETTER OF CREDIT
To: [beneficiary]
Date:
Dear Sirs
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [O]
This Letter of Credit is issued by [o], (the "ISSUER") at the request of [o] in
your favour on the following terms:
34. The Issuer shall not be obliged to make payments hereunder exceeding in
aggregate the maximum amount of [o]. Any payment hereunder shall be
made in [CURRENCY] and shall reduce the Issuer's liability to make
payment hereunder accordingly.
35. This Letter of Credit shall expire at [o] a.m./p.m., London time on [o]
200[o] (the "EXPIRY DATE"). The Issuer will have no liability in
respect of any demand delivered after such time [and a demand not
accompanied by the information mentioned in paragraph 3(b) below shall
not be validly delivered].
36. Subject to paragraph 2 above, within [four] business days of receiving
your demand on the Issuer in the form set out in the Appendix hereto
specifying the amount claimed under this Letter of Credit and bearing
an endorsement of the above Letter of Credit number [1TOGETHER WITH
VERIFICATION BY YOUR BANKERS CONFIRMING THAT THE SIGNATORIES ON SUCH
DEMAND ARE AUTHORISED TO SIGN AND DELIVER SUCH DEMAND ON YOUR BEHALF]
AT [DETAILS OF ISSUER'S OFFICE TO BE INSERTED] the Issuer hereby agrees
to pay to you in the currency specified in paragraph 1 above, subject
to the maximum amount referred to in paragraph 1 above.
37. Your rights and the rights of the Issuer under this Letter of Credit
may not be assigned or transferred.
38. This Letter of Credit is subject to Uniform Customs and Practice for
Documentary Credits (International Chamber of Commerce, Publication No.
500-1993).
----------
1 Delete if beneficiary is a bank.
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39. This Letter of Credit is governed by [INSERT LAW OF THE ISSUER] law
and, for the benefit of the Issuer only, the courts of the [o] shall
have exclusive jurisdiction.
Yours faithfully
.........................................
for and on behalf of
[name of Fronting Bank]
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APPENDIX TO LETTER OF CREDIT
FORM OF DEMAND
To: [o]
From: [The beneficiary]
[Date]
Dear Sirs
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [O] (THE "LETTER OF CREDIT")
We refer to the Letter of Credit. Terms defined in the Letter of Credit and not
otherwise defined herein bear the same meaning herein.
We are writing to inform you that we are entitled to make demand on you under
the Letter of Credit in the amount of [o], being the amount which has become due
and payable by the [o] but which has not been paid and we hereby demand payment
of such amount.
Yours faithfully
.....................................
for and on behalf of beneficiary]
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SCHEDULE 12
FORM OF BANK GUARANTEE
To: [beneficiary]
Date:
Dear Sirs,
As security for a credit which you will grant to [o] we, [o] hereby irrevocably
undertake to pay you on first demand, irrespective of the validity and the
effects of the abovementioned credit relationship and waiving all rights of
objection and defence arising therefrom, any amount up to a maximum of [o]
(words [o]) (principal, interest and all other charges included) upon receipt of
your duly signed written request for payment, or your duly encoded SWIFT or
telex, stating that the amount claimed has become due to you by [o] and remained
unpaid. Your claim will be considered as having been made once we are in
possession of your written request for payment, or your telex/SWIFT to this
effect, at our above address.
The total amount of this guarantee will be reduced by any payment effected
hereunder.
This guarantee is valid until close of business in [o] on [o] and expires in
full and automatically if your claim has not been made on or before that date,
regardless of such date being a banking day or not.
This guarantee shall be governed by and construed in accordance with [INSERT LAW
OF ISSUER] law and, for our benefit only, the courts of [o] shall have exclusive
jurisdiction.
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SCHEDULE 13
FORM OF CONFIDENTIALITY UNDERTAKING
From: [Existing Lender]
To: [New Lender]
[ ] 2003
CONFIDENTIALITY AGREEMENT RELATING TO A
FACILITY AGREEMENT DATED [ ] (THE "AGREEMENT")
You are considering acquiring an interest in the facilities made available
pursuant to the Agreement (the "FACILITIES"). In connection with such
acquisition, you or any of your representatives, including but not limited to,
lawyers, accountants, consultants and financial advisors (together with
employees, officers and directors "REPRESENTATIVES") will receive certain
financial and other information about Grohe Holding GmbH, the ultimate parent
company of the Grohe group, Xxxxxxxxx Xxxxx and / or Grohe Beteiligung or
companies in which Xxxxxxxxx Xxxxx holds a direct or indirect interest or which
are affiliated with Xxxxxxxxx Xxxxx (together the "GROUP") which is either not
public, confidential or proprietary in nature and which may be disclosed either
in written form, electronically, orally, or otherwise. Any such information
furnished to you or your Representatives, together with any copies, analyses,
compilations, forecasts, studies or other documents prepared by you or your
Representatives which contain or otherwise reflect such information or your
review of, or interest in, the Group is hereinafter referred to as the
"INFORMATION".
In considering of us furnishing you with the Information, you agree that:
1. The Information will be kept confidential and shall not, expect as
provided in this paragraph and in paragraph 6 below, without our prior
written consent, be disclosed either directly or indirectly by you or
by your Representatives, in any manner whatsoever, in whole or in part,
and shall not be used by you or by your Representatives, for any
purpose whatsoever other than for the purpose of the evaluating whether
to acquire any interest in the Facilities. You shall keep the
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Information secure and in such a way to prevent unauthorised access by
any third party. You shall have no rights over the Information beyond
those expressly contained in this Agreement. Moreover, you agree to
reveal the Information only to such of your Representatives who need to
know the Information for the purpose of evaluating your acquisition
described above. You shall procure that all of your Representatives to
whom such disclosure is made will act in accordance with the terms of
this Agreement as if each of them were a party hereto, and you agree
that you shall be fully responsible to us for any breach of this
Agreement by you or by any of your Representatives.
2. Without our prior written consent, except as provided for in paragraphs
1 and 6, you and your Representatives will not, directly or indirectly,
disclose to any person or entity the fact that the Information has been
made available or that discussions or negotiations are taking place or
have taken place in connection with the Facilities.
3. All copies of the Information, including analyses, compilations,
forecasts, studies or other documents prepared by you or by your
Representatives will be returned to us or destroyed immediately upon
our request and no copy thereof will be retained by you. On request,
you will provide a written certificate signed by a director to the
effect that all Information has either been returned or destroyed in
accordance with this paragraph. Notwithstanding the foregoing, you may
retain such copies of the Information as may be required for your
compliance with internal and external regulatory or legal purposes.
4. The term Information shall not include such portions of the Information
which you can show (i) are generally available to the public other than
as a result of any failure to comply with the terms of this Agreement
by you or by your Representatives or (ii) are or become available to
you from a source which is not prohibited from disclosing such
information to you by any legal, contractual or fiduciary obligation to
us.
5. In the event that you become compelled (pursuant to any law or
regulation or the requirements of any stock exchange or other
regulatory organisation, with whose rules you are required to comply)
to disclose any part of the Information, you shall promptly (to the
extent permitted by law) before complying with any such requirement
notify us in writing of the same and of the action which is proposed to
be taken in response.
6. 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 or (b) twelve months
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after you have returned all Information supplied to you by us and
destroyed or permanently erased all copies of Information made by you
(other than any such Information or copies which have been disclosed
under paragraph 1 or 6 above or which are not required to be returned
or destroyed.
7. You acknowledge and agree that:
(a) Neither we or any of our officers, employees or advisers (each
a "RELEVANT PERSON" (i) make any representation or warranty,
express or implied, as to, or assume any responsibility for,
the accuracy, reliability or completeness of any of the
Information or any other information supplied by us or any
member of the Group or the assumptions on which it is based or
(ii) shall be under any obligation to update or correct any
inaccuracy in the Information or any other information
supplied by us or any member of the Group or be otherwise
liable to you or any other person in respect to the
Information or any such information; and
(b) we or members of the Group may be irreparably harmed by the
breach of the terms of this letter and damages may not be an
adequate remedy; each Relevant Person or member of the Group
may be granted an injunction or specific performance for any
threatened or actual breach of the provisions of this letter
by you.
8. No failure or delay by us in exercising any right under this Agreement
shall operate as a waiver thereof, and no variation shall be effective,
and less in writing and signed by us.
9. The provisions contained herein shall be governed by and construed in
accordance with German law. Exclusive forum for all disputes arising
out of or in connection with this Agreement shall be the court of
Frankfurt.
10. If any term or provision of this Agreement shall be held invalid or
unenforceable, in whole or in part, such invalidity or unenforceability
shall not affect the validity of the remainder of this Agreement.
Yours sincerely,
[Existing Lender] [Existing Lender]
_________________________ _______________________________
-188-
Accepted:
By: [New Lender]
-189-
SCHEDULE 14
BORROWER EXIT TRANSFER CERTIFICATE
To: [o] as Agent
From: Grohe Beteiligungs GmbH & Co. KG ("EXITING BORROWER") and Xxxxxxxxx
Xxxxx AG & Co. KG (the "NEW BORROWER")
Dated:
1. We refer to an agreement (the "CREDIT AGREEMENT") dated [o] and made,
amongst others between Grohe Beteiligungs GmbH & Co. KG as Company, [o]
as Agent and Security Agent, the financial institutions defined therein
as Lenders and others.
2. Terms defined in the Credit Agreement shall bear the same meaning
herein.
3. This is to record that transfers referred to in Clause [o] (TRANSFERS
ON BORROWER EXIT DATE) which are to take effect in accordance with such
Clause on the Borrower Exit Date in respect of the following Facility
A2 Loans are to be transferred from the Exiting Borrower to the New
Borrower(s) as follows:
Advance Amount of Facility Current Interest Amount transferred
A2 Loan Period
4. This certificate is governed by German law.
Grohe Beteiligungs GmbH & Co. KG Xxxxxxxxx Xxxxx AG & Co. KG
By: By:
Accepted by the Agent
[Agent]
By:
Date:
-190-
SCHEDULE 15
LIST OF CURRENT INVESTORS
Gesellschafter/ Geschaftsanteil/
SHAREHOLDER SHARE
1 BC European Capital VI-1
mit Geschaftsanteilen im Nennbetrag von / (euro) 1.837.550,00
with shares with a nominal value of
2 BC European Capital VI-2
mit Geschaftsanteilen im Nennbetrag von / (euro) 1.837.550,00
with shares with a nominal value of
3 BC European Capital VI-3
mit Geschaftsanteilen im Nennbetrag von / (euro) 1.837.550,00
with shares with a nominal value of
4 BC European Capital VI-4
mit Geschaftsanteilen im Nennbetrag von / (euro) 1.804.250,00
with shares with a nominal value of
5 BC European Capital VI-5
mit Geschaftsanteilen im Nennbetrag von / (euro) 1.790.850,00
with shares with a nominal value of
-191-
6 BC European Capital VI-6
mit Geschaftsanteilen im Nennbetrag von / (euro) 1.789.150,00
with shares with a nominal value of
7 BC European Capital VI-7
mit Geschaftsanteilen im Nennbetrag von / (euro) 1.780.800,00
with shares with a nominal value of
8 BC European Capital VI-8
mit Geschaftsanteilen im Nennbetrag von / (euro) 1.779.300,00
with shares with a nominal value of
9 BC European Capital VI-9
mit Geschaftsanteilen im Nennbetrag von / (euro) 1.812.550,00
with shares with a nominal value of
10 BC European Capital VI-10
mit Geschaftsanteilen im Nennbetrag von / (euro) 1.787.500,00
with shares with a nominal value of
11 BC European Capital VI-11
mit Geschaftsanteilen im Nennbetrag von / (euro) 133.700,00
with shares with a nominal value of
12 BC European Capital VI-12
mit Geschaftsanteilen im Nennbetrag von / (euro) 367.650,00
with shares with a nominal value of
-192-
13 BC European Capital VI-14
mit Geschaftsanteilen im Nennbetrag von / (euro) 16.650,00
with shares with a nominal value of
14 Teabar Capital Corporation
mit Geschaftsanteilen im Nennbetrag von / (euro) 10.722.950,00
with shares with a nominal value of
15 Xxxxxx Xxxxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 33.450,00
with shares with a nominal value of
16 Xxxxx Xxxxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 800,00
with shares with a nominal value of
17 Xxxxxxx Xxxxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 800,00
with shares with a nominal value of
18 Xxxxxxx Xxxxxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 16.650,00
with shares with a nominal value of
19 Xxxxxxx Xxxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 16.650,00
with shares with a nominal value of
-193-
20 Xxxxxxx Fesquet
mit Geschaftsanteilen im Nennbetrag von / (euro) 350,00
with shares with a nominal value of
21 Xxxx Xxxxxxx (euro) 350,00
mit Geschaftsanteilen im Nennbetrag von /
with shares with a nominal value of
22 Capital d'Amerique CDPQ Inc.
mit Geschaftsanteilen im Nennbetrag von / (euro) 8.223.750,00
with shares with a nominal value of
23 Xxxxx Xxxxxx-Xxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 297.700,00
with shares with a nominal value of (euro) 54.800,00
24 Xx. Xxxxxx Xxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 297.700,00
with shares with a nominal value of (euro) 54.800,00
25 BdW Beteiligungsgesellschaft fur die deutsche
Wirtschaft mbH & Co. KG
(euro) 2.824.850,00
mit Geschaftsanteilen im Nennbetrag von /
with a share with a nominal value of
-194-
26 HVB Offene Unternehmensbeteiligungs AG
mit Geschaftsanteilen im Nennbetrag von / (euro) 2.824.850,00
with shares with a nominal value of
27 Crescat Equity 1 Beteiligungsgesellschaft mbH &
Co. KG
(euro) 657.900,00
mit Geschaftsanteilen im Nennbetrag von /
with shares with a nominal value of
28 South Light Investment Pte Limited
mit Geschaftsanteilen im Nennbetrag von / (euro) 2.824.850,00
with shares with a nominal value of
29 HarbourVest International Private Equity
Partners III-Direct Fund L.P.
(euro) 1.694.850,00
mit Geschaftsanteilen im Nennbetrag von /
with shares with a nominal value of
30 Laranjedo Servicios e Gestao Lda
mit Geschaftsanteilen im Nennbetrag von / (euro) 564.950,00
with shares with a nominal value of
31 BC European Capital V-1
mit Geschaftsanteilen im Nennbetrag von / (euro) 163.850,00
with shares with a nominal value of
-195-
32 BC European Capital V-2
mit Geschaftsanteilen im Nennbetrag von / (euro) 163.850,00
with shares with a nominal value of
33 BC European Capital V-3
mit Geschaftsanteilen im Nennbetrag von / (euro) 179.400,00
with shares with a nominal value of
34 BC European Capital V-4
mit Geschaftsanteilen im Nennbetrag von / (euro) 175.950,00
with shares with a nominal value of
35 BC European Capital V-5
mit Geschaftsanteilen im Nennbetrag von / (euro) 178.050,00
with shares with a nominal value of
36 BC European Capital V-6
mit Geschaftsanteilen im Nennbetrag von / (euro) 155.850,00
with shares with a nominal value of
37 Xxxxxx Xxxxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 228.050,00
with shares with a nominal value of
38 Xx. Xxxxxxx X. Xxxxxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 59.900,00
with shares with a nominal value of
-196-
39 Xxxxxxxxx Xxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 9.750,00
with shares with a nominal value of (euro) 400,00
40 Xxxxxxx X. Xxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 185.600,00
with shares with a nominal value of
41 Xxxxxxx Xxxxx
mit Geschaftsanteilen im Nennbetrag von / (euro) 185.600,00
with shares with a nominal value of
-197-
SIGNATURES
THE COMPANY
Grohe Beteiligungs GmbH & Co. KG
By:
Address: c/o Xxxxxxxxx Xxxxx AG & Co. XX
Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: 0000 (0) 0000 00 0000
Attention: Xxxxxx Xxxxxxxx
THE ORIGINAL BORROWERS
Grohe Beteiligungs GmbH & Co. KG
By:
Address: c/o Xxxxxxxxx Xxxxx AG & Co. XX
Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: 0000 (0) 0000 00 0000
Attention: Xxxxxx Xxxxxxxx
Xxxxxxxxx Xxxxx AG & Co. KG
By:
Address: Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: 0000 (0) 0000 00 0000
Attention: Xxxxxx Xxxxxxxx
-198-
THE ORIGINAL GUARANTORS
Grohe Beteiligungs GmbH & Co. KG
By:
Address: c/o Xxxxxxxxx Xxxxx AG & Co. XX
Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: 0000 (0) 0000 00 0000
Attention: Xxxxxx Xxxxxxxx
Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG
By:
Address: c/o Xxxxxxxxx Xxxxx AG & Co. XX
Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: 0000 (0) 0000 00 0000
Attention: Xxxxxx Xxxxxxxx
THE ARRANGERS
Credit Suisse First Boston International
By:
Address: Xxx Xxxxx Xxxxxx
Xxxxxx X00 0XX, XX
Fax: 0000 000 000 0000
Attention: Xxxxx Xxxxx
-199-
Xxxxxxx Xxxxx International
By:
Address: Xxxxxxx Xxxxx Financial Centre
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX, XX
Fax: 00 00 000 000 0000
Attention: Xxx Xxxxxxx
THE AGENT
Dresdner Bank Luxembourg S.A.
By:
Address: 00, Xxx xx Xxxxxx-xxx-Xxxxxx
X-0000 Xxxxxxxxxx
Fax: For Agency Matters: 00352 4760 3222
For Credit Administration Matters: 00352 4760 565
Attention: For Agency Matters: Xxxxxxxxx Xxxxxxxxx
For Credit Administration Matters: Xxxxxx Xxxxxxxxx
THE SECURITY AGENT
Dresdner Bank Luxembourg S.A.
By:
Address: 00, Xxx xx Xxxxxx-xxx-Xxxxxx
X-0000 Xxxxxxxxxx
Fax: 00352 4760 3222
Attention: Xxxxxxxxx Xxxxxxxxx
-200-
THE ORIGINAL LENDERS
Credit Suisse First Boston International
By:
Address: Xxx Xxxxx Xxxxxx
Xxxxxx X00 0XX, XX
Fax: For Administrative Matters: 0044 207 888 8398
For Credit Matters: 0044 207 888 8386
Attention: For Administrative Matters: Xxxxx Xxxxxxxx
For Credit Matters: Xxxxxx Xx-Xxxxx
Xxxxxxx Xxxxx Capital Corporation
By:
Address: 4 World Financial Centre
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000, XXX
Fax: 000 000 000 0000
Attention: Xxxxxxx Xxxxx
-201-
Exhibit 4.1
XXXXXXXX
CHANCE
PUNDER
EXECUTION COPY
DRESDNER BANK LUXEMBOURG S.A.
as Security Agent
GROHE HOLDING GMBH
as Creditor
GROHE BETEILIGUNGS GMBH & CO. KG
as Borrower
and
GROHE CONSULT GMBH
---------------------------------------------------------------------------
SENIOR NOTES SUBORDINATION AGREEMENT
---------------------------------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Interpretation......................................................2
2. Subordination.......................................................3
3. Undertakings........................................................4
4. Enforcement by the Creditor; Event Of Default.......................6
5. Distribution of Proceeds............................................7
6. Insolvency..........................................................8
7. Undertakings and Covenants..........................................9
8. Relative Rights....................................................10
9. Transfer and Assignment............................................11
10. Notices, Amendments, Waiver........................................11
11. Partial Invalidity; Waiver.........................................11
12. Law................................................................12
13. Jurisdiction.......................................................12
THIS SUBORDINATION AGREEMENT is made the 17th day of March 2003
BETWEEN:
(1) GROHE HOLDING GMBH, a limited liability company organised under the
laws of the Federal Republic of Germany, which is registered in the
commercial register (HANDELSREGISTER) of the local court (AMTSGERICHT)
of Iserlohn under HRB 2316 (the "CREDITOR");
(2) GROHE CONSULT GMBH, a limited liability company organised under the
laws of the Federal Republic of Germany, which is registered in the
commercial register (HANDELSREGISTER) of the local court of Iserlohn
under HRB 2366 ("GROHE CONSULT");
(3) GROHE BETEILIGUNGS GMBH & CO. KG, a limited partnership organised under
the laws of the Federal Republic of Germany, which is registered in the
commercial register of the local court of Iserlohn under HRB 2093
("GROHE BETEILIGUNGS"); and
(4) DRESDNER BANK LUXEMBOURG S.A. in its capacity as trustee and
administrator of security for the Finance Parties (the "SECURITY
AGENT").
WHEREAS:
(A) Pursuant to a EUR 600,000,000 multicurrency term and revolving
facilities agreement dated 17 March 2003 between, INTER ALIOS,
Xxxxxxxxx Xxxxx AG & Co. KG and Grohe Beteiligungs GmbH & Co. KG as
original borrowers (the "ORIGINAL BORROWERS"), Grohe Beteiligungs GmbH
& Co. KG and Xxxxxxxxx Xxxxx Geschaftsfuhrungs AG as original
guarantors (the "ORIGINAL GUARANTORS"), Xxxxxxx Xxxxx International and
Credit Suisse First Boston International as arrangers, Dresdner Bank
Luxembourg S.A. as agent and security agent and others (as amended,
varied, novated, supplemented, superseded or extended from time to
time, the "FACILITIES AGREEMENT"), certain lenders have agreed to grant
certain facilities to the original borrowers and certain other entities
which may accede to the Facilities Agreement as additional borrowers.
(B) The Creditor has constituted an aggregate principal amount of EUR
200,000,000 of senior notes falling due for payment on 15 November 2010
and bearing interest in an amount of 11.5 per cent. per annum (the
"HYB"), the terms of which (the "HYB TERMS") are set out in an
indenture (the "INDENTURE") dated 13 November 2000 and the net proceeds
of which are lent to Grohe Beteiligungs pursuant to the HYB Proceeds
Intercompany Loan Agreement (as defined below).
-1-
(C) The Creditor has entered into a loan agreement dated 13 November 2000
with Grohe Beteiligungs (as amended, novated, supplemented, superseded
or extended from time to time the "HYB PROCEEDS INTERCOMPANY LOAN
AGREEMENT") and, in relation to the subordination of the loans made
under the HYB Proceeds Intercompany Loan Agreement to, among others,
the claims of certain financial institutions under the Existing Senior
Credit Agreement (as defined in the Facilities Agreement), into a
subordination agreement dated 26 October 2000 with, among others,
Dresdner Bank Luxembourg S.A. as agent under the Existing Senior Credit
Agreement.
(D) The facilities made available under the Existing Senior Credit
Agreement will be refinanced on or about the first Utilisation Date (as
defined in the Facilities Agreement) under the Facilities Agreement.
(E) The parties to this Agreement are aware that the Agent and the Security
Agent, or any of them, may resign from their respective position as
Agent or Security Agent under the Finance Documents and that a
successor may be appointed by the Majority Lenders or the Agent or the
Security Agent, as the case may be, in accordance with the respective
provisions of the Facilities Agreement and the Intercreditor Agreement.
(F) It has been agreed between the parties hereto that any payment claims
of the Creditor and Grohe Consult against Grohe Beteiligungs in
relation to the Creditors' Claims (as defined below) shall be regulated
and/or subordinated in the manner set out herein.
NOW IT IS HEREBY AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement:
"BANKS" has the meaning ascribed thereto in Clause 2.1.
"BANKS' CLAIMS" has the meaning ascribed thereto in Clause 2.1.
"CREDITORS' CLAIMS" has the meaning ascribed thereto in Clause 2.1.
"HYB PROCEEDS INTERCOMPANY LOAN" means the loans made available by the
Creditor to Grohe Beteiligungs under the HYB Proceeds Intercompany Loan
Agreement.
"SECURED LOANS" means all liabilities and obligations owing by any
Obligor to any of the Finance Parties under or in connection with the
Finance Documents (each as defined in the Facilities Agreement).
-2-
"SECURED LOANS DISCHARGE DATE" means the date on which all Secured
Loans have been satisfied in full to the satisfaction of the Security
Agent.
"TRUSTEE" means the Bank of New York acting in its capacity as trustee
under the Indenture.
1.2 Unless the context or the express provisions of this Agreement
otherwise require, all references to a party include references to its
permitted assignees and transferees and its successors in title and
(where applicable) to any replacement or additional agent or security
agent.
1.3 This Agreement is made in the English language. For the avoidance of
doubt, the English language version of this Agreement shall prevail
over any translation of this Agreement. However, where a German
translation of a word or phrase appears in the text of this Agreement,
the German translation of such word or phrase shall prevail.
1.4 Terms and expressions defined in the Facilities Agreement shall have
the same meaning in this Agreement except as otherwise defined herein
or unless the context requires.
2. SUBORDINATION
2.1 The Creditor and Grohe Consult hereby agree that the HYB Proceeds
Intercompany Loan and any other claims for payment that they may have
against Grohe Beteiligungs, both present and future, arising out of the
HYB Proceeds Intercompany Loan Agreement, in relation to withdrawals
from their partnership accounts with Grohe Beteiligungs or otherwise
(the "CREDITORS' CLAIMS") shall rank behind all present and future,
unconditional and conditional claims of the Finance Parties (hereafter
together with any other parties having acquired a participation, and
the related claims and rights, under the Facilities Agreement, the
"Banks", and each a "BANK" and such claims referred to collectively as
the "BANKS' CLAIMS") against Grohe Beteiligungs and/or Xxxxxxxxx Xxxxx
arising out of or in connection with the Facilities Agreement, except
as otherwise provided in this Agreement.
2.2 The order of priority agreed in Clause 2.1 shall apply irrespective of
any change in the legal form of Grohe Beteiligungs, Xxxxxxxxx Xxxxx,
Grohe Consult or the Creditor.
2.3 The Creditor, Grohe Consult and Grohe Beteiligungs hereby agree that
any present or future Creditors' Claims must not be assigned, save to
any of the Banks, and that the prohibitions contained in Clause 3.1
below shall also apply as between the Creditor and Grohe Beteiligungs.
-3-
3. UNDERTAKINGS
3.1 Until such time as the Banks' Claims have been satisfied in full and,
save as permitted under Clause 3.3 and Clause 4, or required under
Clause 6, the Creditor and Grohe Consult shall not
3.1.1 demand or receive payment, prepayment or repayment for, or any
distribution in respect of, the Creditors' Claims, whether in cash or
in kind;
3.1.2 discharge any of the Creditors' Claims by set-off, any right of
combination of accounts or by any other voluntary action; or
3.1.3 permit to subsist or receive any Security or any guarantee, indemnity
or other assurance against loss, or the making of deposits for, in
respect of any of the Creditors' Claims, unless the person or entity
providing such Security, guarantee, indemnity or other assurances, or
providing deposits is not a member of the Group and any claim
(including rights of recourse) of such person or entity against Grohe
Beteiligungs in connection therewith is subordinated to the Banks'
Claims in accordance with the provisions of this Agreement.
3.2 Nothing in this Agreement prohibits:
3.2.1 the making of withdrawals by the Creditor from its partner's accounts
in Grohe Beteiligungs to the extent that such withdrawals fall under
paragraphs (b), (c), (d) or (f) of the definition of Permitted
Transactions under the Facilities Agreeement and are permitted under
Clause 24.12 (DISTRIBUTIONS) of the Facilities Agreement; or
3.2.2 a set-off of withdrawal claims of the Creditor arising from its
partners' accounts against any loans granted by Grohe Beteiligungs to
the Creditor for the Shareholder Loan Refinancing; or
3.2.3 a refinancing of the HYB Proceeds Intercompany Loan to the extent that
such refinancing is permitted pursuant to Clause 24.14 (SUBORDINATED
DEBT) of the Facilities Agreement.
3.3 Subject to Clause 3.4, the Creditor shall be entitled to demand and
receive any amount payable to the Creditor under the HYB Proceeds
Intercompany Loan Agreement (and Grohe Beteiligungs shall be entitled
to make such payments) unless at that time, before the Secured Loans
Discharge Date,
3.3.1 Grohe Beteiligungs is in default (without regard to any grace period)
with any payments due in respect of any of the Secured Loans (a
"SECURED LOANS DEFAULT"), or
-4-
3.3.2 any other event or circumstance (other than a Secured Loans Default)
which entitles the Banks to accelerate the Facilities has occurred, and
the Security Agent has served written notice (the "BLOCKING NOTICE") on
the Creditor and Grohe Beteiligungs suspending such payments for a
period (the "BLOCKING PERIOD (A)") commencing upon receipt of such
Blocking Notice and ending on the earliest of
(a) 120 days after the date of the Blocking Notice or if a
Blocking Period (B) (as defined in Clause 4.1) is in effect,
the date, if earlier, on which the Blocking Period (B)
expires,
(b) the date on which the Security Agent determines that the
relevant event or circumstance has ceased or has been cured or
waived (and the Security Agent will notify the Creditor and
Grohe Beteiligungs accordingly without undue delay),
(c) the date on which the Security Agent notifies the Creditor and
Grohe Beteiligungs that the Blocking Notice is cancelled or
all Secured Loans have been fully repaid, or
(d) the date on which all Secured Loans have been fully repaid.
In any consecutive 360-day period, only one Blocking Period (A) can be
declared. In addition, only one Blocking Period (A) can be declared in
respect of the same event or circumstance under the Facilities
Agreement (unless cured for more than 180 days).
3.4 Nothing in Clause 3.3 permits any prepayment or repayment of principal
under the HYB Proceeds Intercompany Loan Agreement prior to, whichever
is earlier, (i) the Secured Loans Discharge Date or (ii) the final
maturity date of the HYB pursuant to the HYB Terms ("HYB FINAL
Maturity") without the consent of the Banks. After the Secured Loans
Discharge Date or the HYB Final Maturity, whichever is earlier, any
such payments to the Creditor may be made and received without
restriction. If, however, upon the occurrence of a HYB Final Maturity,
a Secured Loans Default has occurred and is continuing or the Security
Agent has served a Blocking Notice pursuant to Clause 3.3.2 and such
Blocking Period A has not expired, Clauses 3.6, 3.7 and 3.8 shall
apply.
3.5 For as long as a Secured Loans Default is continuing and during any
Blocking Period (A), Grohe Beteiligungs shall make any payments due
under the HYB Proceeds Intercompany Loan Agreement exclusively to the
Security Agent (for and on behalf of the Banks) into an account
designated by the Security Agent. The Security Agent shall hold any
such amounts in trust for the Banks on such bank account which shall
carry interest at the Security Agent's then current overnight rate for
the period from receipt by the Security Agent of the relevant
-5-
funds until application thereof pursuant to Clause 3.7 or payment
thereof to the Creditor pursuant to Clause 3.8. The Security Agent
shall promptly notify the Creditor and Grohe Beteiligungs of the
cessation, cure or waiver of any Secured Loans Default or the end of
any Blocking Period (A).
3.6 The suspension of payments pursuant to this Clause 3 shall not be
construed as a waiver by the Creditor of the relevant Creditors'
Claims, but shall mean that
3.6.1 except as otherwise permitted by this Agreement, the Creditor shall not
be entitled to demand or receive such payments and any such payments
shall be deferred (EINREDE DER STUNDUNG) until the first date
thereafter on which payment is permitted under this Agreement; and
3.6.2 any payments received by the Creditor in breach of this Clause 3 shall
be remitted promptly to the Security Agent for application in
accordance with Clauses 3.5, 5 or 6.2, as the case may be, and
otherwise in trust for the Creditor.
3.7 The Security Agent shall be entitled to use any funds owing under the
Creditors' Claims and received from the Creditor or Grohe Beteiligungs
in accordance with Clause 3.5, Clause 3.6, Clause 4 or Clause 5 to
satisfy any of the Banks' Claims which have become due under the
Facilities Agreement in accordance with the applicable contractual
provisions between the parties concerned, PROVIDED THAT in each such
case, the relevant Banks shall assign their corresponding rights and
claims against the Borrower to the Creditor, provided (for the
avoidance of doubt) that any rights and claims so assigned to the
Creditor shall always be deemed Creditors' Claims and shall rank behind
all other Banks' Claims in accordance with the terms of this Agreement.
3.8 Following the expiry of a Secured Loan Default or a Blocking Period
(A), as the case may be, the Security Agent shall pay to the Creditor
any amounts held in trust by the Security Agent for the Creditor
pursuant to Clause 3.5, plus any interest accrued thereon, to the
extent such amounts have not been used to satisfy any of the Banks'
Claims in accordance with Clause 3.7.
4. ENFORCEMENT BY THE CREDITOR; EVENT OF DEFAULT
4.1 If at any time before the Secured Loans Discharge Date, there occurs
any event giving the Creditor the right to terminate the HYB Proceeds
Intercompany Loan Agreement or to accelerate any payments thereunder,
the Creditor shall promptly notify the Security Agent of such event but
shall not, without the prior written consent of the Security Agent (for
and on behalf of the Banks), and subject to Clause 4.3, prior to the
expiry of 120 days after such notification to the Security Agent (the
"BLOCKING PERIOD (B)"),
-6-
4.1.1 accelerate any of the Creditors' Claims or otherwise declare any of the
Creditors' Claims prematurely payable or due on an event of default or
otherwise,
4.1.2 take any action for enforcing the Creditors' Claims, including, but not
limited to, by way of attachment, execution or by initiating or
supporting any insolvency proceedings, or
4.1.3 take any other legally permissible action to enforce the Creditors'
Claims.
4.2 After the lapse of the Blocking Period (B), the Creditor may demand and
pursue payment as set out in Clause 4.1 above, but for any time prior
to the Secured Loans Discharge Date, payment shall be made only to the
Security Agent (for and on behalf of the Banks) into an account
designated by the Security Agent (PROVIDED, HOWEVER, THAT the payments
referred to in Clause 3.2 or Clause 3.4 may be made to the Creditor
unless prohibited pursuant to Clause 3). The Banks agree to equitably
consider any request by the Creditor during the Blocking Period (B) to
the taking of actions described under Clause 4.1 following the
occurrence of any of the events referred to in Clause 4.1, and shall in
each case not unreasonably withhold their consent.
4.3 Subject to the provisions of Clause 6, the Creditor is permitted to
take any action described in Clause 4.1 if
4.3.1 the Banks have given to the Creditor their prior consent in writing in
accordance with Clause 4.2;
4.3.2 the Security Agent or a Bank is taking the same or equivalent action in
respect of the Banks' Claims; or
4.3.3 insolvency proceedings against Grohe Beteiligungs have been applied for
and it has not been demonstrated without delay that the application is
without merit or have been commenced.
4.4 Save as otherwise provided herein, the Creditor shall not be restricted
in enforcing the Creditors' Claims.
5. DISTRIBUTION OF PROCEEDS
If at any time prior to the Secured Loans Discharge Date
(a) the Creditor or Grohe Consult receive or recover a payment or
distribution in cash or in kind of, or on account of, any of
the Creditors' Claims in violation of a prohibition under this
Agreement or which arises from an action permitted under
Clause 4.3;
-7-
(b) the Creditor or Grohe Consult receive or recover the proceeds
of any enforcement of any Security;
(c) Grohe Beteiligungs makes a payment or distribution in cash or
in kind to the Creditor or Grohe Consult on account of the
purchase or other acquisition of any of the Creditors' Claims
in violation of a prohibition under this Agreement;
(d) any of the Creditors' Claims is discharged by set-off,
combination of accounts or any other voluntary action by the
Creditor or Grohe Consult other than as permitted under Clause
3.2.2;
the Creditor (or, as the case may be, Grohe Consult) shall pay to the
Security Agent (for distribution to the Banks) on demand an amount
equal to the lesser of (i) the aggregate outstanding unrecovered
balance of the Banks' Claims and (ii) the amount of such payment,
distribution, recovered proceeds, set-off, combination of accounts or
other discharge after deducting therefrom (except to the extent the
Creditor (or, as the case may be, Grohe Consult) has acted in breach of
its obligations hereunder) the costs, liabilities and expenses (if any)
reasonably incurred by the Creditor (or, as the case may be, Grohe
Consult) in recovering such payment, distribution, recovered proceeds,
set-off or other discharge or effecting such combination of accounts,
less any amounts due by the Security Agent to the Creditor (or, as the
case may be, Grohe Consult) pursuant to Clauses 3.7 and 3.8.
6. INSOLVENCY
6.1 If prior to the Secured Loans Discharge Date insolvency proceedings are
commenced against Grohe Beteiligungs,
(a) the Creditor's (and Grohe Consult's) rights in respect of the
Creditors' Claims will be subordinated in right of payment to
the Banks' rights in respect of the Banks' Claims;
(b) the Creditor (or, as the case may be, Grohe Consult) shall
promptly lodge a claim and shall take all reasonable action
necessary to preserve the Creditors' Claims for the purposes
of such proceedings, and
(c) the Creditor (or, as the case may be, Grohe Consult) shall
instruct the insolvency administrator to pay to the Security
Agent for distribution to the Banks any amounts to which the
Creditor (or, as the case may be, Grohe Consult) is entitled
in such insolvency proceedings;
in each case until the Banks' Claims are discharged in full.
-8-
6.2 The Security Agent shall apply any amounts received pursuant to Clause
6.1 as follows:
6.2.1 first, in payment to the Banks in the proportion of their respective
claims under and in connection with the Facilities Agreement in
accordance with the applicable contractual provisions between the
parties concerned until satisfaction of the Banks' Claims in full;
6.2.2 second, in payment to the Creditor (or, as the case may be, Grohe
Consult).
6.3 If amounts are distributed to the Creditor (or, as the case may be,
Grohe Consult) not in compliance with the provisions of this Agreement,
the Creditor (or, as the case may be, Grohe Consult) shall pay such
amounts to the Security Agent promptly upon receipt thereof; in such
case, the provisions of Clause 3.6 shall apply accordingly.
7. UNDERTAKINGS AND COVENANTS
7.1 The Creditor, Grohe Consult and Grohe Beteiligungs, except with the
prior written consent of the Banks, shall not
7.1.1 grant any loan to Grohe Beteiligungs in excess of the commitments under
the HYB Proceeds Intercompany Loan Agreement;
7.1.2 increase interest, margin or any fees, or make or accept any other
changes to the terms of the HYB Proceeds Intercompany Loan Agreement or
to the payments made thereunder;
7.1.3 make or agree to any material changes other than changes of a technical
or administrative nature only of the HYB Terms, the HYB Proceeds
Intercompany Loan Agreement and any other agreements made between the
Creditor, Grohe Beteiligungs and/or Grohe Consult, and to always comply
with the terms of such agreements and to perform all obligations
thereunder.
7.2 The Creditor undertakes
(a) to immediately inform the Security Agent about any events or
circumstances which may give rise, whether with the lapse of
time or otherwise, to an acceleration of payments under the
HYB, and to provide the Security Agent with all information
relevant therefore;
(b) not to incur any financial indebtedness other than under
shareholder loans which are fully subordinated to the Banks'
Claims, in a form acceptable to the Banks or any other
financial indebtedness upon receipt by the Security Agent of a
certificate supported by accompanying calculations and signed
by the financial officer(s) binding the Creditor
-9-
and demonstrating on a PRO FORMA basis and assuming such
financial indebtedness had been incurred on the first day of
the Relevant Period that as at the last Quarter Date in
respect of which financial statements have been delivered
pursuant to Clause 22.1 (FINANCIAL STATEMENTS) of the
Facilities Agreement and as at the four following such Quarter
Dates, the financial covenants set out in Clause 23 (FINANCIAL
COVENANTS) or, for any financial indebtedness to be incurred
following the date of the Qualifying Public Offering, the
incurrence test set out in column 4 of Clause 23.1.4 of the
Facilities Agreement would be complied with;
(c) not to cause or allow Grohe Consult to incur any financial
indebtedness other than under shareholder loans which are
fully subordinated to the Banks' Claims, in a form acceptable
to the Banks;
(d) to provide the Security Agent, in respect of its own company,
with the financial statements and information referred to in
Clause 22.1 (a) (ii) of the Facilities Agreement, within the
timeframe set out in such provision;
(e) to not enter into merger agreements or consolidation
agreements with other entities without the prior written
consent of the Banks which shall not be unreasonably withheld;
(f) to not acquire any interest in other companies unless such
other companies do carry on a similar or complimentary
business to the business of the Group;
(g) not to sell any of its shares in Grohe Beteiligungs and Grohe
Consult without the prior written consent of the Security
Agent which shall not be unreasonably withheld;
(h) to immediately provide the Security Agent with all information
received by the Creditor from the Trustee, any noteholder or
otherwise in connection with any event of default or any
potential event of default under the HYB Terms or other
financial indebtedness incurred or relating to a material
change or potential change of the HYB Terms; and
(i) to ensure that Grohe Beteiligungs always complies with its
obligations pursuant to Clause 24.23 (WITHDRAWALS BY GROHE
BETEILIGUNGS) of the Facilities Agreement.
8. RELATIVE RIGHTS
This Agreement defines the relative rights of the Banks, the Creditor
and Grohe Consult. Nothing in this Agreement shall impair, as between
Grohe Beteiligungs and the Creditor, the obligation of Grohe
Beteiligungs, which is
-10-
absolute and unconditional, to pay amounts owing from time to time
under the HYB Proceeds Intercompany Loan Agreement or the HYB Proceeds
Intercompany Loan in accordance with their terms.
9. TRANSFER AND ASSIGNMENT
9.1 This Agreement is a contract for the benefit of the Finance Parties
(VERTRAG MIT SCHUTZWIRKUNG FUR DRITTE). The Creditor, Grohe Consult and
Grohe Beteiligungs agree with the Security Agent that upon an
assignment and/or transfer of any rights and benefits of any Finance
Party under the Finance Documents the relevant assignee or transferee
shall become a beneficiary under this Agreement.
9.2 The Creditor, Grohe Consult and Grohe Beteiligungs agree to the
Security Agent transferring its rights and obligations under this
Agreement to a new security agent by way of a transfer agreement
between the Security Agent and such new security agent and confirm that
upon execution of such transfer agreement by the new security agent and
the Security Agent, the new security agent shall become a party to this
Agreement and shall have the same rights and obligations hereunder as
if it had been the original Security Agent under this Agreement and the
original Security Agent shall cease to be a party to this Agreement and
any reference to the Security Agent shall be construed to include the
new security agent.
10. NOTICES, AMENDMENTS, WAIVER
10.1 Each communication to be made hereunder shall be made in writing but,
unless otherwise stated, may be made by facsimile or letter. Each
communication shall be in English or, if in any other language, shall
be accompanied by a translation into English.
10.2 Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall (unless that other person has
by written notice to the other parties hereto specified another
address) be made or delivered to that other person at the addresses as
set out on the execution pages hereof.
10.3 All amendments or supplements to this Agreement or any waiver with
regard to this Agreement (including this Clause 10.3) shall be made in
writing.
11. PARTIAL INVALIDITY; WAIVER
11.1 If at any time, one or more of the provisions hereof is or becomes
invalid, illegal or unenforceable in any respect under the law of any
jurisdiction, such provision shall as to such jurisdiction, be
ineffective to the extent necessary without affecting or impairing the
validity, legality and enforceability of the remaining provisions
hereof or of such provisions in any other jurisdiction. The invalid or
-11-
unenforceable provision shall be deemed replaced by such provision
which comes as close as possible to the original intent of the parties
and the invalid, illegal or unenforceable provision. This applies
analogously in the event of gaps (VERTRAGSLUCKEN).
11.2 No failure to exercise, nor any delay in exercising, on the part of the
Security Agent, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of
any other right or remedy. The rights and remedies provided hereunder
are cumulative and not exclusive of any rights or remedies provided by
law.
12. LAW
This Agreement shall be governed by and construed in accordance with
German law.
13. JURISDICTION
13.1 The Creditor, Grohe Consult and Grohe Beteiligungs irrevocably agree
for the benefit of the Security Agent and the Finance Parties that the
place of jurisdiction for any and all disputes arising under or in
connection with this Agreement shall be Frankfurt am Main and, for such
purposes, irrevocably submit to the jurisdiction of such courts.
13.2 The submission to the jurisdiction of the courts referred to in Clause
13.1 shall not (and shall not be construed so as to) limit the right of
the Security Agent or the Finance Parties to take proceedings in any
other court of competent jurisdiction nor shall the taking of
proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not.
-12-
THIS AGREEMENT has been executed by the parties the day and year first above
written.
GROHE HOLDING GMBH
By: /s/ X. Xxxxx
-------------------------------
X. Xxxxx
GROHE CONSULT GMBH
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Jacog Xxxxxxx
GROHE BETEILIGUNGS GMBH & CO. KG
By: /s/ X. Xxxxx
-------------------------------
X. Xxxxx
By: /s/ Simmat
-------------------------------
Simmat
DRESDNER BANK LUXEMBOURG S.A.
By: /s/ X. Xxxxxxxxx
-------------------------------
X. Xxxxxxxxx
-13-
Exhibit 4.1
LOAN FACILITY
between
1. Grohe Beteiligungs GmbH & Co. KG
- the "LENDER" -
and
2. Grohe Holding GmbH
- the "BORROWER" -
PREAMBLE
--------
1. The Borrower is the sole general partner of the Lender.
2. The Borrower has issued notes in the principal amount of EUR
200,000,000.00 under an indenture dated November 13, 2000 (the
"INDENTURE") falling due for payment on 15.11.2010 and bearing interest in
an amount of 11.5 % p. a. (the "SENIOR NOTES"). The Borrower has issued a
consent solicitation statement (the "CONSENT SOLICITATION STATEMENT") to
the holders of the Senior Notes in order to receive consent to certain
waivers and amendments to the Indenture. In the event that such consent of
the holders is received and the amendments to the Indenture are made, the
consenting holders will receive a consent payment (the "CONSENT PAYMENT"),
subject to the provisions of the Consent Solicitation Statement.
3. The Borrower has received loans from its shareholders in the total
principal amount of approx. EUR 259,600,000.00 (the "SHAREHOLDER LOANS").
The Borrower is willing to repay part of the principal and interest of the
Shareholder Loans.
4. The Consent Payment, the partial repayment of the Shareholder Loans and
the payment of certain transaction costs shall be financed, inter alia, by
a Loan (as defined below) granted by the Lender to the Borrower.
Based on the foregoing, the Lender and the Borrower agree the following
Seite 2
--------------------------------------------------------------------------------
LOAN FACILITY
SECTION 1
LOAN
----
(1) The Lender grants the Borrower a loan of EUR 125,000,000.00 (the "LOAN").
(2) The Loan shall be paid out to the Borrower promptly upon request by the
Borrower, however, the Lender shall not be obliged to pay out any amount
of the Loan before it has obtained advances under a senior secured credit
facility dated 17.03.2003.
SECTION 2
PURPOSE
-------
(1) The Borrower shall apply part of the Loan in the amount of EUR
112,000,000.00 towards the partial repayment of principal and interest on
the Shareholder Loans in accordance with the Shareholder Loan prepayment
schedule attached to this Loan Facility as an APPENDIX.
(2) The Borrower shall apply the remaining amount of EUR 13,000,000.00 towards
Consent Payments due in accordance with the Consent Solicitation Statement
and towards paying transaction costs.
SECTION 3
INTEREST
--------
(1) The Loan shall bear interest of
a) 12 % p. a. from the date of payment of the Loan pursuant toss.1 (2)
until 31.07.2006;
b) 14 % p. a. from 01.08.2006 until 31.07.2009;
c) 16 % p. a. from 01.08.2009 until the repayment date as set forth
underss. 4 (1).
(2) Interest shall be paid by the Borrower only in accordance with ss. 4.
Seite 3
--------------------------------------------------------------------------------
(3) If the Borrower fails to pay any amount payable by it under ss. 4 (1) on
the due date specified in ss. 4 (1), interest shall accrue or, insofar as
it relates to unpaid interest, lump sum damages shall accrue on the
overdue amount from the due date up to the date of actual payment (both
before and after judgement) at a rate which is 1 % higher than the rate
which would have been payable in accordance with ss. 3 (1) c) if the
overdue amount had, during the period of non-payment, constituted a Loan.
In the case of lump sum damages the Borrower shall be free to prove that
no damages have arisen or that damages have not arisen in the accrued
amount. Any interest or lump sum damages accruing under this ss. 3 (3)
shall be immediately payable by the Borrower on demand by the Lender.
SECTION 4
REPAYMENT
---------
(1) The Loan together with all interest accrued and not prepaid in accordance
with (2) below shall be repaid by the Borrower on the earlier of (i)
30.11.2011 or (ii) the date on which all amounts payable under or in
respect of the Senior Notes have been fully paid in accordance with the
Indenture.
(2) The Borrower shall be entitled to prepay the Loan and interest in whole or
in part at any time by way of set-off against any claims the Borrower has
from time to time to withdraw profits from the Lender.
SECTION 5
FINAL PROVISIONS
----------------
(1) Amendments and additions to this Loan Facility shall be in writing to be
valid. This shall also apply to any amendment or addition to the written
form requirement.
(2) Should any provision of this Loan Facility, including any provision added
at a later date, be or become ineffective or invalid in whole or in part,
this shall have no effect on the validity of the remaining provisions. In
such an event the parties are obliged jointly to establish legally
effective provisions which as closely as possible reflect the legal and
economic intent of the legally ineffective or invalid provisions.
(3) Should the Loan Facility contain a lacuna, (2) shall apply accordingly.
Seite 4
--------------------------------------------------------------------------------
(4) This Loan Facility shall be subject solely to German law excluding to the
greatest extent permitted by law any rule of law that would cause the
application of the laws of any jurisdiction other than the Federal
Republic of Germany.
Hemer, 28.03.03 /s/ Xxxxxx Xxxxxxxxx
------------------------------------ ------------------------------------
(place/date) Grohe Beteiligungs GmbH & Co. KG
Hemer, 28.03.03 /s/ Xxxxxx Xxxxx
------------------------------------ ------------------------------------
(place/date) Grohe Holding GmbH
Seite 5
--------------------------------------------------------------------------------
APPENDIX
SHAREHOLDER LOAN PREPAYMENT SCHEDULE
SHAREHOLDER TOTAL AMOUNT OF AMOUNT OF PRINCIPAL AMOUNT OF INTEREST TOTAL AMOUNT TO BE
PRINCIPAL AND TO BE REPAID TO BE REPAID REPAID
INTEREST OUTSTANDING
BC EC VI-1 11.182.289,93 5.685.704,66 1.655.312,35 7.341.017,01
BC EC VI-2 11.182.433,26 5.685.777,53 1.655.333,58 7.341.111,10
BC EC VI-3 11.182.433,26 5.685.777,53 1.655.333,58 7.341.111,11
BC EC VI-4 10.979.084,27 5.582.383,47 1.625.231,87 7.207.615,34
BC EC VI-5 10.897.783,80 5.541.045,75 1.613.196,96 7.154.242,71
BC EC VI-6 10.887.606,56 5.535.871,07 1.611.690,43 7.147.561,50
BC EC VI-7 10.836.798,68 5.510.037,49 1.604.169,35 7.114.206,84
BC EC VI-8 10.826.621,44 5.504.862,80 1.602.662,82 7.107.525,62
BC EC VI-9 11.029.931,28 5.608.236,96 1.632.758,73 7.240.995,69
BC EC VI-10 10.877.468,47 5.530.716,30 1.610.189,69 7.140.905,99
BC EC VI-11 813.278,55 413.516,52 120.389,48 533.906,00
BC EC VI-12 2.236.486,65 1.137.155,50 331.066,72 1.468.222,22
BC EC VI-14 101.654,91 51.687,07 15.047,95 66.735,02
Xxxxxx Xxxxxxx 203.309,83 103.374,15 30.095,91 133.470,06
Xxxxx Xxxxxxx 5.000,66 2.542,62 740,24 3.282,86
Xxxxxxx Xxxxxxx 5.000,66 2.542,62 740,24 3.282,86
Xxxxxxx Xxxxxxxx 101.654,92 51.687,07 15.047,96 66.735,03
Xxxxxxx Xxxxxx 101.654,92 51.687,07 15.047,96 66.735,03
Xxxxxxx Fesquent 1.804,17 917,35 267,06 1.184,40
Xxxx Xxxxxxx 1.804,17 917,35 267,06 1.184,40
BC EC V-1 997.076,61 506.969,79 147.597,07 654.566,85
BC EC V-2 997.076,61 506.969,79 147.597,07 654.566,85
BC EC V-3 1.091.703,25 555.083,29 161.604,63 716.687,92
BC EC V-4 1.070.708,74 544.408,50 158.496,81 702.905,32
BC EC V-5 1.083.487,90 550.906,13 160.388,53 711.294,66
BC EC V-6 948.394,18 482.216,91 140.390,61 622.607,52
Teabar 65.252.273,94 33.177.923,32 9.659.282,30 42.837.205,62
Caisse de Depot 50.043.482,39 25.444.918,96 7.407.927,62 32.852.846,58
BDW 17.190.395,68 8.740.563,27 2.544.691,18 11.285.254,45
HVB 17.190.395,68 8.740.563,27 2.544.691,18 11.285.254,45
Crescat 4.003.728,54 2.035.720,60 592.671,21 2.628.391,81
Xxxx Xx. Xxxxxxxx 333.167,27 184.938,32 23.284,27 208.222,59
Seite 5
--------------------------------------------------------------------------------
Xxxx Geber 73.332,25 40.685,08 5.160,25 45.845,33
GIC 17.190.395,65 8.740.563,27 2.544.691,16 11.285.254,42
Harbour Vest 10.314.078,92 5.244.257,38 1.526.791,25 6.771.048,63
Laranjedo Servicios 3.438.026,27 1.748.085,77 508.930,41 2.257.016,18
Exhibit 4.1
SUBORDINATION AGREEMENT
among
GROHE HOLDING GMBH
as Borrower
and
GROHE BETEILIGUNGS GMBH & CO. KG
as Lender
and
THE BANK OF NEW YORK
as Trustee
TABLE OF CONTENTS
Page
1. Priorities.........................................................5
2. Obligations of the Borrower and the Lender.........................5
3. Permitted Payments.................................................5
4. Turnover of receipts...............................................6
5. Repayment..........................................................6
6. Insolvency.........................................................6
7. Miscellaneous......................................................6
2
THIS SUBORDINATION AGREEMENT (this "AGREEMENT") is made on28 MARCH 2003 AMONG:
1 GROHE HOLDING GMBH, a company organized under the laws of the Federal
Republic of Germany, registered in the commercial register
(HANDELSREGISTER) of the local court (AMTSGERICHT) of Iserlohn under
HRB 2316, having its business address at Xxxxxxxxx(xxxx)x 000, 00000
Xxxxx, Xxxxxxx Xxxxxxxx of Germany (the "BORROWER");
2. GROHE BETEILIGUNGS GMBH & CO. KG, a company organized under the laws of
the Federal Republic of Germany, registered in the commercial register
of the local court of Iserlohn under HRB 2093, having its business
address at Xxxxxxxxxxxx 000, 00000 Xxxxx, Xxxxxxx Xxxxxxxx of Germany
(the "LENDER");
and
3. THE BANK OF NEW YORK, LONDON BRANCH a credit institution organized
under the laws of the State of New York, USA having its business
address at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx
Xxxxxxx as trustee under the Indenture (as defined below) (the
"TRUSTEE").
3
WHEREAS
(A) The Borrower and the Trustee have entered into an indenture dated
November 13, 2000 (the "Indenture") under which the Borrower has issued
11.5% senior notes due November 15, 2010 (the "Notes"). The date on
which all amounts payable under or in respect of the Notes have been
fully paid in accordance with the Indenture is referred to herein as
the "NOTES REPAYMENT DATE".
(B) Pursuant to a loan facility dated 28 March 2003 (the "INTER-COMPANY
LOAN AGREEMENT") the Lender has agreed to grant a loan in the aggregate
amount of EUR 125,000,000.00 to the Borrower (the "INTER-COMPANY
LOAN").
(C) Pursuant to a consent solicitation statement dated 6 March 2003 (the
"CONSENT SOLICITATION Statement") the Borrower has proposed to the
holders of the Notes (the "NOTEHOLDERS") to amend and waive certain
provisions of the Indenture in order to allow partial repayment of
loans granted by shareholders of the Borrower to the Borrower (the
"SHAREHOLDER LOANS") and has given notice of certain amendments to the
Indenture under the terms of which the Borrower is obliged to
subordinate the Inter-Company Loan to the Senior Claims (as defined
below).
(D) Purpose of the Inter-Company Loan is to finance the partial repayment
of the Shareholder Loans, consent payments due to the Noteholders in
accordance with the Consent Solicitation Statement and the payment of
certain transaction costs.
4
NOW IT IS HEREBY AGREED as follows:
1. PRIORITIES
1.1 The Lender hereby agrees for the benefit of the Noteholders and the
Trustee that the Inter-Company Loan and the Lender's claims for payment
against the Borrower, both present or future, arising out of the
Inter-Company Loan Agreement (including any accrued but unpaid
interest), shall rank behind all present, future and conditional claims
by the Noteholders, and the Trustee on their behalf, against the
Borrower (collectively the "SENIOR CLAIMS").
1.2 The order of priority agreed in Section 1.1 shall apply irrespective of
any change in the legal form of the Borrower or the Lender.
1.3 The Lender and the Borrower hereby agree that any present or future
claims the Lender may have against the Borrower under the Inter-Company
Loan are not assignable, and that the prohibitions contained in Section
2.1 below shall also apply as between the Lender and the Borrower,
respectively.
2. OBLIGATIONS OF THE BORROWER AND THE LENDER
2.1 Until the Notes Repayment Date, the Lender undertakes not to exercise or
deal in (VERFUGEN UBER) any of its claims as described in Section 1.1
against the Borrower, including by terminating the Inter-Company Loan
Agreement or accelerating its claims thereunder, by accepting or
demanding payment of such claims other than payments permitted by
Section 3, by allowing security to be taken for such claims, by
accepting any guarantee in respect of such claims, by assigning such
claims, by pledging such claims, by setting-off such claims, other than
set-offs permitted by Section 3, by mobilization of drawings under bills
of exchange or by agreeing that such claims should rank behind any
claims of any other creditor of the Borrower. The Borrower hereby agrees
not to terminate the Inter-Company Loan except with the prior written
consent of the Trustee acting on behalf of the Noteholders.
2.2 The Borrower may not make any interest payment in cash under the
Inter-Company Loan and the Lender may not accept such interest payment
prior to the Notes Repayment Date.
3. PERMITTED PAYMENTS
The Borrower shall be entitled to prepay the Inter-Company Loan and
interest in whole or in part at any time by way of set-off against any
claims the Borrower has from time to time to withdraw profits from the
Lender.
5
4. TURNOVER OF RECEIPTS
4.1 If at any time on or before the Notes Repayment Date a payment or
distribution of any kind whatsoever (including, without limitation, by
way of discharge by set-off, combination of accounts or otherwise) in
respect or on account of the Inter-Company Loan is made which is not
permitted by Section 3, the recipient or beneficiary of that payment,
distribution, set-off or combination will promptly pay or hand over all
amounts and/or property received to the Trustee and, pending such
payment or handing over, will hold those amounts or such property on
trust for the Trustee.
4.2 No Senior Claim shall be deemed to have been reduced or discharged in
any way or to any extent by any payment or distribution to the Trustee
in accordance with Section 4.1.
4.3 All monies received by the Trustee shall, until used or applied as
provided in the Indenture, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except
to the extent required by mandatory provisions of law.
5. REPAYMENT
The Borrower is not obliged to repay the Inter-Company Loan prior to the
earlier of (i) 30 November 2011 or (ii) the Notes Repayment Date.
6. INSOLVENCY
If prior to the Notes Repayment Date insolvency, liquidation or other
similar proceedings are commenced against the Borrower, the claims
against the Borrower
(a) in respect of the Inter-Company Loan will be subordinate in
right of payment to all Senior Claims;
(b) the Lender shall promptly lodge a claim and shall take all
reasonable action necessary to preserve the Lender's claims for
the purposes of such proceedings; and
(c) the Lender shall instruct the insolvency administrator to pay to
the Trustee any amounts to which the Lender is entitled in such
insolvency proceedings;
in each case until all Senior Claims are repaid in full.
7. MISCELLANEOUS
7.1 This Agreement is entered into by the Trustee as trustee under the
Indenture and for the benefit of each Noteholder from time to time. The
Trustee holds the benefit of the covenants, agreements and undertakings
of the Lender and Borrower under this Agreement and all other monies and
assets paid to, or held by the Trustee or received or recovered by the
Trustee pursuant to or in connection with this Agreement with effect
from the date of this Agreement on trust for the Noteholders.
7.2 This Agreement shall remain in force until
(a) all the Senior Claims have been discharged in full; or
(b) this Agreement is terminated by written consent of all the
parties hereto.
6
7.3 Any notice or communication under or in connection with this Agreement
shall be in writing and shall be delivered personally or by registered
letter, courier or telefax to the following addresses (or such other
address notified in writing by the recipient to the other parties in
accordance herewith) set out below:
Borrower: Grohe Holding GmbH
Attn.: Xxxxxxx Xxxxx
Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: x00 00 00 00 00 00
Lender: Grohe Beteiligungs GmbH & Xx.XX
Attn.: Xxxxxxx Xxxxx
Xxxxxxxxxxxx 000
00000 Xxxxx
Xxxxxxx
Fax: x00 00 00 00 00 00
Trustee: The Bank of New York, London Branch
Attn.: Corporate Trust Administration
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxx Xxxxxxx
Fax: x00 00 0000 0000
7.4 All amendments and supplements to this Agreement must be in writing and
signed by each of the parties hereto. This requirement shall also apply
to any amendment, release or waiver of the requirement for such written
form.
7.5 Should any provision of this Agreement be legally invalid or
unenforceable, the validity of the remaining contents of this Agreement
shall remain unaffected. The invalid or unenforceable provision shall be
replaced by such valid provision as comes as close as possible to the
economic purpose of the invalid or unenforceable provision. The
foregoing shall apply accordingly if this Agreement should contain any
omission.
7.6 Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) "including" means including without limitation; and
(c) words in the singular include the plural and words in the plural
include the singular.
7
7.7 This Agreement shall be governed by the laws of the Federal Republic of
Germany.
7.8 Place of performance shall be Frankfurt am Main, Federal Republic of
Germany. Venue for the Borrower, the Lender, and the Trustee shall be
the courts of Frankfurt am Main, Federal Republic of Germany. This shall
not affect the right of the Trustee to commence any action against the
Borrower and/or Lender in any other court of competent jurisdiction,
including the courts of England.
7.9 The parties hereby submit to the jurisdiction of the courts of England,
and waive any obligations they may have now or hereafter to the courts
of England being nominated as the forum to hear and determine any suit,
action or proceedings and to settle any disputes and have agreed not to
claim that any such court is not a convenient or appropriate forum.
8
IN WITNESS WHEREOF the parties hereto have executed this Agreement on
the day and year first above written.
Grohe Holding GmbH,
by /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Principal Accounting Officer
and by /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Head of Finance Department
Grohe Beteiligungs GmbH & Co. KG
by Grohe Holding GmbH
by /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
Title: Principal Accounting Officer
and by /s/ Xxxxxx Xxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Head of Finance Department
The Bank of New York
by /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Vice President
9
Exhibit 4.1
TRANSLATION FOR INFORMATION PURPOSES ONLY
CORPORATE AGREEMENT
between
Grohe Holding GmbH, entered in the Commercial Register of Iserlohn Local Court
under HRB 2316, Xxxxxxxxxxxx 000, 00000 Hemer
- hereinafter referred to as "Grohe Holding" -
Grohe Consult GmbH, entered in the Commercial Register of Iserlohn Local Court
under HRB 2366, Xxxxxxxxxxxx 000, 00000 Hemer
- hereinafter referred to as "Grohe Consult" -
and
Grohe Beteiligungs GmbH & Co. KG, entered in the Commercial Register of Iserlohn
Local Court under HRA 2093, Xxxxxxxxxxxx 000, 00000 Hemer
- hereinafter referred to as "Grohe Beteiligungs KG" -
PREAMBLE
Grohe Holding and Grohe Consult formed Grohe Beteiligungs KG in order to create
a group structure for the Grohe group for the issue of a high yield bond which
establishes a ranking between various debt instruments of the Grohe group by
means of placing these debt instruments in companies independent of one another
at the different levels within the group.
Seite 2
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Such a ranking is necessary to achieve as favourable as possible a debt
structure for the group.
One of the measures undertaken to this end was the conclusion of an agreement
issuing a shareholders' loan from Grohe Holding to Grohe Beteiligungs KG
("Intercompany Loan Agreement") and an agreement relating to the conditions of
the issue of the aforementioned bond between Grohe Holding and the purchasers of
the bond ("Trust Indenture"). Both agreements contain provisions relating to
payment default and other events of default. In accordance therewith, if these
events of default take place the loans issued under these agreements become due
for payment. In some cases notice of the impending occurrence or the assertion
of the event of default must precede the due date, this is linked with a
deadline by which the avoidance or remedy of the event of default has been
achieved.
AGREEMENT
1. The parties regard it as their joint aim to achieve the aforementioned
corporate structure also in the event that
- an event of default occurs pursuant to the Intercompany Loan Agreement
or the Trust Indenture,
- a notice is submitted pursuant to the Intercompany Loan Agreement or the
Trust Indenture or
- the occurrence of one of the events of default or the submission of a
notice pursuant to the Intercompany Loan Agreement or the Trust
Indenture is imminent.
2. The parties undertake to pursue the above aim jointly and to employ their
best efforts to ensure that in particular all information relating to an
impending event of default, the submission of a notice and the associated
occurrence of events indicating an impending event of default is forwarded
without undue delay.
Seite 3
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3. Furthermore, Grohe Consult shall not leave Grohe Beteiligungs KG under any
circumstances.
4. None of the provisions in this Agreement prevent the partners in Grohe
Beteiligungs KG from dissolving or liquidating Grohe Beteiligungs KG in
such a way that all creditors of Grohe Beteiligungs KG can be satisfied
from the assets of Grohe Beteiligungs KG pursuant to the ranking in
existence before the distribution of the liquidation proceeds, if such a
liquidation is undertaken in compliance with the Senior Notes Subordination
Agreement of 17.03.2003 between Grohe Holding, Grohe Consult, Grohe
Beteiligungs KG, Xxxxxxxxx Xxxxx AG & Co. KG and the banks named therein.
5. None of the provisions in this Agreement and none of the agreements
following this Agreement shall prevent the partners in Grohe Beteiligungs
KG from selling their interest in Grohe Beteiligungs KG, provided that the
purchasers enter into this Agreement and the Senior Notes Subordination
Agreement of 17.03.2003.
6. The parties agree within the meaning of an agreement in favour of the
financing banks (VERTRAG ZUGUNSTEN DER FINANZIERENDEN BANKEN) which are
named in the Multicurrency Term and Revolving Facilities Agreement between
Grohe Beteiligungs KG and Xxxxxxxxx Xxxxx AG & Co. KG and these banks of
17.03.2003 that they will only amend the partnership agreement of Grohe
Beteiligungs KG after prior consent of the Dresdner Bank Luxembourg S.A. as
agent of these financing banks.
7. The parties agree that this Agreement shall only become valid after the
mutual termination of the Corporate Agreement of 26.10.2000, in particular
after issuing the consent of Dresdner Bank Luxembourg S.A.
Frankfurt, 17.03.2003
Grohe Holding GmbH Grohe Consult GmbH
____________________ ____________________
Xxxxx 0
--------------------------------------------------------------------------------
Xxxxx Xxxxxxxxxxxx XxxX & Xx. XX
____________________
On behalf of the financing banks named under 6. we hereby acknowledge this
Agreement and the partnership agreement of Grohe Beteiligungs KG and declare:
After the expiry of the blocking period set out in 4.1. of the Senior
Notes Subordination Agreement between Grohe Holding, Grohe Consult and
the financing banks we shall grant our consent to an amendment to the
partnership agreement pursuant to ss. 15 (2) of the partnership agreement
of Grohe Beteiligungs KG if Grohe Holding can exercise its rights
pursuant to the Senior Notes Subordination Agreement vis-a-vis Grohe
Beteiligungs KG.
Dresdner Bank Luxembourg S.A.
____________________
